UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1232
ABDULLAHI SAID HERSI; ABDULKADIR A. SAID; MOHAMUD AB SAID;
MOHAMED ABDULLAHI SAID,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: March 15, 2010 Decided: March 29, 2010
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Ivan Yacub, YACUB LAW OFFICES, Falls Church, Virginia, for
Petitioners. Tony West, Assistant Attorney General, Stephen J.
Flynn, Assistant Director, Annette M. Wietecha, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The Petitioners, Abdullahi Said Hersi, and his adult
children, Abdulkadir A. Said, Mohamud Ab Said, and Mohamed
Abdullahi Said, natives and citizens of Somalia, petition for
review of an order of the Board of Immigration Appeals (“Board”)
dismissing their appeal from the immigration judge’s decision,
which denied their asylum applications as untimely and granted
their requests for withholding of removal. Finding no error, we
deny the petition for review.
An asylum applicant must demonstrate “by clear and
convincing evidence that the application has been filed within 1
year after the date of the alien’s arrival in the United
States.” 8 U.S.C. § 1158(a)(2)(B) (2006). An application may
be considered outside of the one-year period where an alien
demonstrates the existence of changed or extraordinary
circumstances to excuse the untimely filing pursuant to 8 U.S.C.
§ 1158(a)(2)(D).
Pursuant to 8 U.S.C. § 1158(a)(3), the court typically
lacks jurisdiction to review a determination that an alien has
failed to timely file his asylum application. See Gomis v.
Holder, 571 F.3d 353, 358-59 (4th Cir. 2009), cert. denied, __
S. Ct. __, 78 U.S.L.W. 3091 (U.S. Jan. 11, 2010) (No. 09-194).
Although 8 U.S.C. § 1252(a)(2)(D) (2006) provides that nothing
in § 1252(a)(2)(B), (C), “or in any other provision of this Act
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. . . which limits or eliminates judicial review, shall be
construed as precluding review of constitutional claims or
questions of law,” this court has found that the question of
whether an alien timely filed his asylum application “is a
discretionary determination based on factual circumstances.”
Gomis, 571 F.3d at 358. Accordingly, “absent a colorable
constitutional claim or question of law, [the court’s] review of
the issue is not authorized by § 1252(a)(2)(D).” Id.
In this case, however, the Petitioners raise a
reviewable question of law over which we retain jurisdiction
pursuant to § 1252(a)(2)(D). * In their brief before this court,
the Petitioners argue that the immigration judge and the Board
impermissibly held them to a stricter legal standard than the
“clear and convincing evidence” standard set forth in 8 U.S.C.
§ 1158(a)(2)(B). They maintain that the Board “imposed a more
stringent standard than what is required to convict under a
beyond a reasonable doubt evidentiary standard.” As found by
several of our sister courts, “[a] reviewable ‘question of law’
may be raised where the agency used the ‘wrong legal standard’
in coming to a determination on a discretionary determination.”
Lumataw v. Holder, 582 F.3d 78, 85 (1st Cir. 2009) (holding that
*
We previously denied the Attorney General’s motion to
dismiss the petition for review on this ground.
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the question of whether the immigration judge and the Board
applied the correct filing deadline in assessing the timeliness
of petitioner’s asylum application was a reviewable question of
law); see Khan v. Filip, 554 F.3d 681, 689 (7th Cir. 2009)
(recognizing that “[s]ome discretionary determinations do
present underlying, reviewable questions of law, such as those
in which the agency is alleged to have applied the wrong legal
standard”); Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007)
(holding that “where, as here, a petitioner argues that the
agency applied an erroneous legal standard in making a
discretionary determination, the petitioner raises a question of
law, which we have jurisdiction to review”).
Based on our review of the record, we find no
indication that the Petitioners were held to an impermissibly
high standard of review. We find that the Board articulated the
correct standard of review, thoroughly analyzed the evidence
submitted by the Petitioners, and properly upheld the
immigration judge’s finding that the evidence was insufficient
to establish by clear and convincing evidence that the
Petitioners filed their asylum application within one year of
their arrival in the United States.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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