United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
January 5, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-60258
JOSEPHINE NAKIMBUGWE,
Petitioner,
v.
ALBERTO R. GONZALES,
U.S. ATTORNEY GENERAL,
Respondent.
On Petition for Review of the Decision of the Board of
Immigration Appeals
Before KING, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:
Josephine Nakimbugwe, a native and citizen of Uganda, was
admitted to the United States on May 30, 2001 with authorization to
stay until August 30, 2001. She remained in the country past that
date, and in August 2002, the Immigration and Naturalization
Service began removal proceedings against her. At a hearing, the
immigration judge (“IJ”) determined that Nakimbugwe’s removability
was established by clear and convincing evidence. Nakimbugwe
subsequently applied for asylum and, in the alternative,
withholding of removal. The IJ denied the asylum request on the
grounds that her application was untimely and that she was not
credible. He then denied her application for withholding of
removal, finding that Nakimbugwe had failed to show that it was
more likely than not that she would face persecution on her return
to Uganda.
The Board of Immigration of Appeals (“BIA”) subsequently
dismissed Nakimbugwe’s appeal and adopted the IJ’s findings that
her asylum application was untimely and that she had failed to show
a likelihood of persecution upon her return. The BIA did not
specifically adopt the IJ’s finding that Nakimbugwe was not
credible. Nakimbugwe now challenges the BIA’s rulings on both
asylum and withholding of removal. We REVERSE the BIA’s holding
that the asylum claim was untimely and REMAND the case to the BIA
so that it can consider the merits of Ms. Nakimbugwe’s asylum
claim. We AFFIRM the BIA’s denial of withholding of removal.
I. STANDARD OF REVIEW
Generally, we have authority to review only the decision of
the BIA, but where, as here, the BIA only affirms the IJ’s decision
without opinion, we review the IJ’s decision. Majd v. Gonzales,
446 F.3d 590, 594 (5th Cir. 2006). As we discuss below, the
determination of timeliness in this case is purely a question of
law, so we review it de novo. We review the IJ’s ruling on
withholding of removal under the “substantial evidence” test, and
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“reversal of the IJ is improper unless we decide not only that the
evidence supports a contrary conclusion, but also that the evidence
compels it.” Majd, 446 F.3d at 594 (citations omitted).
II. THE TIMELINESS OF THE ASYLUM APPLICATION
Under 8 U.S.C. § 1158, an alien seeking asylum typically must
file an application within one year of his or her arrival in the
United States. In Nakimbugwe’s case, this meant that her
application was due on May 30, 2002. She produced evidence in the
form of a certified mail receipt showing that she mailed the
application on May 29, 2002, but it was not received by the agency
until June 3, 2002, four days after the deadline.
Federal law sets forth how the agency is to treat applications
that are not received by the deadline:
In a case in which the application has not been received
by the Service within 1 year from the applicant’s date of
entry into the United States, but the applicant provides
clear and convincing documentary evidence of mailing the
application within the 1-year period, the mailing date
shall be considered the filing date.
8 C.F.R. § 208.4(a)(2)(ii) (2000). Nakimbugwe relied on the plain
language of the statute to argue that the mailing date should be
considered the filing date. The IJ concluded that the statute only
applied to those applications that are never received by the
agency, but not to those that merely arrive late, and ruled
Nakimbugwe’s application untimely.
Before resolving this dispute, we note that we do have
jurisdiction to review the IJ’s determination as to timeliness. It
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is true that 8 U.S.C. § 1158 contains a jurisdiction-stripping
provision stating that “[n]o court shall have jurisdiction to
review any determination of the Attorney General under paragraph
(2).” 8 U.S.C. § 1158(a)(3). In the past, this section would have
precluded us from reviewing an IJ’s ruling on timeliness. However,
the Real ID Act of 2005 recently restored this Court’s jurisdiction
over an IJ’s rulings on both constitutional claims and questions of
law. See 8 U.S.C. § 1252(a)(2)(D) (2005); Rosales v. Bureau of
Immigration & Customs Enforcement, 426 F.3d 733, 736 (5th Cir.
2005) (interpreting 8 U.S.C. § 1252(a)(2)(D) (2005)), cert. denied,
126 S. Ct. 1055 (2006). Many determinations of timeliness are
based on an IJ’s assessment of facts and circumstances that
affected the applicant’s filing, and even after the passage of the
Real ID Act, such rulings are clearly unreviewable by this Court.1
In the instant case, however, the IJ’s determination was based
entirely on his construction of a federal regulation, which is a
question of law over which we now have jurisdiction.2
1
For example, Nakimbugwe also challenges the IJ’s (and the
BIA’s) determination that she failed to demonstrate extraordinary
circumstances preventing her from filing for asylum within a year.
This challenge turns entirely on a question of fact, and this Court
therefore has no jurisdiction to consider it, even after the
passage of the Real ID Act. 8 U.S.C. § 1158(a)(3); Tjie v.
Gonzales, 2006 WL 1933814, at *1 (5th Cir. July 12, 2006)
(unpublished opinion).
2
The legislative history of the Real ID Act and recent
decisions in other circuits all suggest that this is exactly the
kind of case over which the federal courts now have jurisdiction.
See H.R. Rep. No. 109-72, at 175 (2005) (“[For purposes of the Real
ID Act], a ‘question of law’ is a question regarding the
4
We now turn to the immigration judge’s reading of the federal
regulation. The IJ provided no citation or support for the
conclusion that the regulation only applies to those applications
that are never received by the agency, and we have found none.
Rather, we find the language of the regulation to be clear and
unambiguous. When an application “has not been received by the
Service within 1 year,” the mailing date “shall” be considered the
filing date if the applicant provides clear and convincing evidence
that it was mailed before the deadline expired. 8 C.F.R. §
208.4(a)(2)(ii). The regulation does not distinguish between those
applications that are never received and those that are received
late, and we decline to read in such a distinction without a basis
for doing so.3
There is no dispute that Nakimbugwe’s application was not
received within the one-year deadline. There is also no dispute
that she mailed the application before the deadline. Accordingly,
the mailing date shall be considered the filing date, and her
application for asylum shall be considered timely. Because the BIA
construction of a statute.”); Xiao Ji Chen v. U.S. Dep’t of
Justice, 434 F.3d 144, 154 (2nd Cir. 2006) (quoting same and adding
that “questions of law . . . refers to ‘a narrow category of issues
regarding statutory construction’”) (citations omitted); Ramadan v.
Gonzalez, 427 F.3d 1218, 1222 (9th Cir. 2005) (same) (citations
omitted).
3
The IJ reached a contrary conclusion for fear that our
reading “would thwart and gut the requirement that [an applicant]
file an asylum application within one year of arrival.” Suffice it
to say, we disagree.
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erroneously adopted the IJ’s ruling on timeliness, however, it
never considered the merits of Nakimbugwe’s asylum application. We
therefore REVERSE the Board’s ruling on timeliness and REMAND to
the BIA with instructions to consider the merits of her asylum
request.
III. NAKIMBUGWE’S REQUEST FOR WITHHOLDING OF REMOVAL
Unlike the asylum claim, the BIA affirmed the IJ’s ruling as
to withholding of removal on the merits. The BIA agreed with the
IJ that Nakimbugwe failed to establish a likelihood of persecution
or torture upon return to her native Uganda. On appeal, then,
Nakimbugwe cannot prevail unless she can show that “the evidence
[she] presented was so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution.” INS v.
Elias-Zacarias, 502 U.S. 478, 483–84 (1992). Nakimbugwe has failed
to carry this burden.
The immigration judge addressed Nakimbugwe’s request for
withholding of removal at great length, and offered several
detailed reasons for denying it. One of the IJ’s reasons was the
existence of certain inconsistencies between Nakimbugwe’s testimony
and the evidence, which cast doubt on her credibility. On appeal,
Nakimbugwe’s only argument for reversal is that some of these
inconsistencies were relatively minor mistakes involving dates and
the like. Even if we were to agree with her that some of the
discrepancies were relatively minor, we would not be persuaded that
the IJ was unreasonable in ruling against her, because the IJ did
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not base his decision exclusively on these inconsistencies. The IJ
also considered photographic and other evidence and found it
unpersuasive, and Nakimbugwe has not presented this Court with any
reason to doubt these findings. Therefore, we cannot say that the
record before us compels a contrary conclusion, nor that the IJ’s
decision was unreasonable. Accordingly, we AFFIRM the immigration
judge’s decision denying withholding of removal.
IV. CONCLUSION
In light of the foregoing analysis, we REVERSE the BIA’s
determination on timeliness and REMAND Nakimbugwe’s case to the
Board for a ruling on the merits of her asylum application. We
AFFIRM the immigration judge’s denial of withholding of removal
because Nakimbugwe has not carried her burden on appeal.
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