                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-3-2005

Huang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4137




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                                                                         NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                    Nos. 03-4137 & 04-2879


                             GUO PING HUANG,
                                          Petitioner
                                       v.
                 JOHN ASHCROFT, Attorney General of the United States
                                          Respondent




                             On Petition for Review of an Order
                             of the Board of Immigration Appeals
                                   Agency No. A78-707-887


               Submitted Under Third Circuit LAR 34.1(a): January 10, 2005

                 Before: ROTH and CHERTOFF*, Circuit Judges, and
              RESTANI**, Judge, United States Court of International Trade


                                    (Filed    March 3, 2005 )




                                             OPINION


___________________
       * This case was submitted to the panel of judges Roth, Chertoff, and Restani. Judge
Chertoff resigned after submission, but before the filing of the opinion. The decision is filed by a
quorum of the panel. 28 U.S.C. § 46(d).

       ** Honorable Jane A. Restani, Chief Judge of the United States Court of International
Trade, sitting by designation.
RESTANI, Judge.

        Guo Ping Huang (“Huang”) petitions this court for review of an order by the Board of

Immigration Appeals (the “BIA”), which denied Huang’s application for asylum. We deny the

petition for a lack of jurisdiction.

I.      Procedural and Factual Background

        Huang, a native and citizen of the People’s Republic of China (“PRC”), filed an

application with the Immigration & Naturalization Service (“INS”) on August 21, 2000, for

asylum under 8 U.S.C. § 1158 (2000), withholding of removal under 8 U.S.C. § 1231(b) (2000),

and protection under the Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (“Convention Against Torture”).

Huang claims that he entered the United States on September 11, 1999, to escape persecution

under the PRC’s coercive family planning policy, which included his wife’s forced sterilization.

        On December 26, 2000, the INS issued a notice to appear before an immigration judge,

charging Huang with being subject to removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) (2000), as

an alien present in the United States without being admitted or paroled. Huang conceded that he

was subject to removal and renewed his application for asylum, withholding of removal,

protection under the Convention Against Torture, or the alternative relief of voluntary departure

under 8 U.S.C. § 1229c(b) (2000). On February 26, 2002, the immigration judge denied all of

Huang’s requests. As to the asylum application, the judge determined that Huang failed to prove

that he was in the United States for less than one year prior to filing his asylum application. As

to the withholding of removal request, the immigration judge determined that forced sterilization

of Huang’s wife constituted a fundamental change in circumstances negating Huang’s fear of


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persecution under 8 C.F.R. § 1208.13(b)(1)(i)(A) (2000).1 Huang appealed to the BIA.

       On October 2, 2003, the BIA sustained Huang’s appeal with respect to the immigration

judge’s denial of voluntary departure, but dismissed the remainder of his appeal. Huang filed a

timely motion to reconsider his denied requests, arguing that the BIA failed to consider its

decision in In re Y-T-L, 23 I & N Dec. 601 (BIA 2003) (holding that an act of forced sterilization

does not constitute a changed circumstance sufficient for discretionary denial under 8 C.F.R. §

1208.13(b)(1)). On June 1, 2004, the BIA granted Huang’s motion to reconsider, and granted

him withholding of removal to the PRC based on his wife’s forced sterilization procedure. The

BIA rejected Huang’s appeal of the immigration judge’s denial of asylum, holding that the

issuance of Y-T-L did not constitute either “extraordinary circumstances” or “changed

circumstances,” which would materially alter his persecution claim and toll the one-year asylum

application deadline under 8 U.S.C § 1158(a)(2)(D).

       On petition for review, Huang argues that the BIA erred in finding his application to be

untimely because the Y-T-L decision constitutes changed circumstances which materially affect

Huang’s eligibility for asylum. See 8 C.F.R. § 208.4(a)(4)(i)(B) (2000) (changed circumstances

may include changes in the applicable United States law that creates a reasonable possibility that

the applicant may qualify for asylum). Huang asserts that the court must review the BIA’s failure

to toll the one-year asylum application deadline de novo.



       1
          The immigration judge also denied Huang’s requests for protection under the
Convention Against Torture and the alternative relief of voluntary departure. With regard to
protection under the Convention Against Torture, the immigration judge determined that Huang
failed to demonstrate that it is more likely than not that he would face torture if he were returned
to China. As to voluntary departure, the judge determined that Huang was never qualified for
this relief.

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II.    Discussion

       An alien has the right to apply for asylum pursuant to 8 U.S.C. § 1158(a)(1), although this

right is subject to certain exceptions. See 8 U.S.C. § 1158(a)(2). The right to apply for asylum is

barred, “unless the alien demonstrates 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). An alien’s untimely asylum application may be considered, “if the alien

demonstrates to the satisfaction of the Attorney General either the existence of changed

circumstances which materially affect the applicant’s eligibility for asylum or extraordinary

circumstances relating to the delay in filing an application within the [1 year] period . . . .” 8

U.S.C. § 1158(a)(2)(D).

       Generally, the court has jurisdiction to review the denial of an alien’s asylum request.

See 8 U.S.C. § 1252(a)(2)(B)(ii) (2000) (excepting an asylum decision from a provision

divesting courts of jurisdiction to review denials of discretionary relief). To support a finding

that Congress intended to preclude judicial review of an administrative action, there must be

“clear and convincing evidence,” such as that “provided by the language of the statute.”

Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 462 (1979). The government

argues that the specific language of 8 U.S.C. § 1158(a)(3) precludes the court from reviewing the

immigration judge’s determination that the issuance of Y-T-L did not constitute “changed

circumstances,” which would materially alter Huang’s persecution claim and toll the one-year

asylum application deadline.

       The specific language of 8 U.S.C. § 1158(a)(3) states, “[n]o court shall have jurisdiction

to review any determination of the Attorney General under paragraph (2).” Paragraph 2 includes


                                                  4
the provisions relating to whether “changed circumstances” warrant tolling the one-year time

limitation for asylum applications. See 8 U.S.C. §§ 1158(a)(2)(B), 1158(a)(2)(D). Accordingly,

this court, and other federal circuits addressing the issue, have held that “the language of 8

U.S.C. § 1158(a)(3) clearly deprives us of jurisdiction to review an [immigration judge’s]

determination that an asylum petition was not filed within the one-year limitations period, and

that such period was not tolled by extraordinary circumstances.” Tarrawally v. Ashcroft, 338

F.3d 180, 185 (3d Cir. 2003); see also Haoud v. Ashcroft, 350 F.3d 201, 205 (1st Cir. 2003);

Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir. 2003); Tsevegmid v. Ashcroft, 336 F.3d

1231, 1235 (10th Cir. 2003); Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1217 (11th Cir. 2002)

(per curiam); Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir. 2001); Hakeem v. INS, 273 F.3d

812, 815 (9th Cir. 2001).

       The petition for review is therefore DENIED.




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