By Attorneys Robert L. Reeves and Jeff L. Khurgel
Individuals applying for United States immigration benefits received good news last week in an important opinion from the 9th Circuit Court of Appeals. Before this opinion, the 9th Circuit had been very limited in the kinds of issues it could review from immigration judges and immigration agencies since the passing of the Immigration Reform and Immigrant Responsibility Act of 1996. With its February 2007 opinion in Ramadan v. Gonzales, the 9th Circuit found it has the authority under the Real ID Act to review an expanded scope of immigration issues. This means that future immigration applicants in certain cases whose applications for immigration benefits have been denied can ask that the 9th Circuit take a closer look.
With Ramadan, the 9th Circuit recently found it can review not only purely legal questions, but also application of law to undisputed facts. The Ramadan holding may have a major impact on a range of immigration cases, even though it specifically involves the one-year filing deadline in an asylum case. One may qualify for asylum and eventually receive lawful permanent status, if they fear they would be persecuted if forced to return home. The fear of persecution must be based on account of their race, religion, nationality, membership in a particular social group, or political opinion. However, the asylum seeker generally must file for asylum within one year of their last entry into the U.S.
There are certain exceptions to this one-year filing deadline. An applicant’s late asylum filing can be excused if changed or extraordinary circumstances can be proven. Changed circumstances include changes in conditions in the home country and changes in the applicant’s circumstances that materially affect the applicant’s asylum eligibility. Extraordinary circumstances include serious mental or physical illness befalling the applicant, legal disability, certain ineffective assistance of counsel situations, filing properly but having the application rejected, and death or serious illness befalling the applicant’s legal representative, among others. The applicant must also prove that in addition to the extraordinary circumstance, the circumstance was directly related to the failure to file within the one-year period and that the delay was reasonable under the circumstances.
In Ramadan, the applicant waited beyond the one-year deadline in applying for asylum, and claimed that changed circumstances had occurred, excusing the late filing. The applicant was an Egyptian national, who had been in the U.S. for two years before filing for asylum. She claimed that her changed circumstances resulted from her participation in a large meeting in the U.S. where she expressed her views on women in Egypt. After this meeting, her family in Egypt received threats stating that she would be “taught a lesson” if she were to return to Egypt.
Prior to Ramadan, the 9th Circuit could not review one-year deadline issues as the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) had limited court review to constitutional and purely legal issues. If an immigration judge and the Board of Immigration Appeals decided that the applicant did not qualify for an exception to the one-year deadline, the asylum seeker could not appeal to a high court unless the activity of the judge or board was so egregious that it denied fundamental standards of fairness. The asylum seeker was only left with the possibility of applying for the remedy of withholding of removal. Unfortunately, withholding of removal has a much higher standard of proof and does not lead to a green card or allow the alien to immigrate his family to the U.S, as asylum does.
With its significant Ramadan opinion, the 9th Circuit has stated that with regards to the one-year filing deadline, it will consider issues of law as it applies to undisputed fact. Application of the one-year deadline to the facts surrounding the changed circumstances claimed by the applicant in Ramadan is such a situation.
How broad Ramadan’s influence will reach remains to be seen. Other important immigration review which commonly hinges on applications of law to undisputed fact may reach the 9th Circuit based on similar reasoning in the future. For example, if an individual has been ordered removed (deported) by an immigration judge, he/she may be eligible for cancellation of removal, an important immigration law remedy by which an individual who has been ordered to leave the U.S. by an immigration judge may overcome this order and remain in the country.
In order to qualify for cancellation of removal, one who is not a permanent resident of the U.S. must prove 4 factors. This individual must prove that he/she has been continuously present in the country for at least ten years, is of good moral character, has not committed certain crimes, and that their absence would cause exceptional and extremely unusual hardship to permanent resident or citizen immediate family members in the U.S.
Although in the past the 9th Circuit has found hardship determinations to be discretionary and beyond its review, with Ramadan this may change. Similar to the one-year asylum filing deadline, hardship determinations commonly involve the application of law to undisputed fact. Perhaps, upon considering that significant case law has been compiled defining what makes up the standard that must be reached for a hardship to be exceptional and extremely unusual, courts will also one day find that hardship determinations are reviewable as issues of mixed law and fact.
The applicability of judicial review in immigration cases is exceedingly complex and governed by a number of court decisions and interpretations that, in many circumstances, are not clearly resolved. If you are considering seeking asylum status or cancellation of removal as a means to stay legally in the United States, the expertise and consultation of a knowledgeable immigration law attorney may mean the difference between being able to stay in the U.S. or having to leave.