                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-26-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4010




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                                                                     NOT PRECEDENTIAL

                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT

                                         No.: 05-4010

                       ALBERTO R. GONZALES, UNITED STATES
                              ATTORNEY GENERAL,
                                                  Respondent
                                       v.

                                        CAI DI CHEN,
                                                           Petitioner

           On Petition for Review of a Decision of the Board of Immigration Appeals
                                   U.S. Department of Justice
                            Executive Office for Immigration Review
                                    (BIA No.: A95-874-285)


                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      October 3, 2006

                 Before: McKEE, AMBRO, and NYGAARD, Circuit Judges

                                  (Filed: October 26, 2006)

                                          OPINION

McKEE, Circuit Judge

       Cai D. Chen asks us to review the decision of the Board of Immigration Appeals

affirming the Immigration Judge’s dismissal of Chen’s application for asylum because it

was untimely.1 For the reasons that follow, we will dismiss the petition.2

       1
         The BIA also affirmed the IJ’s denial of Chen’s request for withholding of removal and
relief under Article III of the Convention Against Torture (“CAT”). However, Chen has only
raised the denial of asylum in his petition for review. Therefore, we need not address the BIA’s

                                               1
                                                 I.

       Our review is limited to final orders of the BIA. Abdulai v. Ashcroft, 239 F.3d 542

(3d Cir. 2001). However, “[w]hen the BIA defers to an IJ, [we] must . . . review the IJ’s

decision.” Id. at 549 n.2. Here, the BIA simply adopted the decision of the IJ on the

issue of the timeliness of Chen’s asylum application. Accordingly, it is the IJ’s decision

that is before us.

       Chen admits that he has the burden of establishing by clear and convincing

evidence that his application for asylum “ha[d] been filed within one year after the date of

[his] arrival in the United States.” 8 U.S.C. §1158(a)(2)(B) (2005). The IJ concluded that

Chen failed to meet this burden because he could not establish the date of his arrival with

any precision, he could not chronicle events that would establish when he arrived, and he

offered no documentary evidence to pinpoint the date of his arrival.

       Chen acknowledges, as he must, that 8 U.S.C. §1158(a)(3) strips us of jurisdiction

to review the ruling that his asylum application was untimely. See Tarrawally v.

Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003) (recognizing that §1158(a)(3) divests courts of

appeals jurisdiction to review whether an application for asylum was filed within the one-

year deadline). Nonetheless, Chen argues that the REAL ID Act of 2005 (the “REAL ID

Act”), Pub. L. No. 109-13, 119 Stat. 302 (2005), overrides the jurisdiction-stripping effect



other rulings.
       2
        Since we are writing primarily for the parties, we need not set forth the full factual and
procedural background on this appeal.

                                                 2
of §1158(a)(3), and permits us to review the IJ’s determination that his asylum

application was untimely.

       Chen directs us to the section of the REAL ID Act that states:

              Nothing in subparagraph (B) or ©), or in any other
              provision of this chapter (other than this section)
              which limits or eliminates judicial review, shall be
              construed as precluding review of constitutional
              claims or questions of law raised upon a petition for
              review filed with an appropriate court of appeals in
              accordance with this section.

8 U.S.C. § 1252(a)(2)(D) (2005). Chen asserts that the IJ’s conclusion that his asylum

application was untimely raises three questions of law that are reviewable pursuant to this

provision of the REAL ID Act. First, Chen posits that the IJ committed legal error

because he did not provide reasons to support his rejection of Chen’s testimony. Second,

he contends that the IJ applied an erroneous standard in assessing the evidence. Third,

Chen argues that the IJ committed legal error in failing to consider a letter from Chen’s

wife, which was offered to establish the date of Chen’s arrival.

       Chen’s attempt to ride the REAL ID Act around the jurisdictional limitations on

our review of an IJ’s asylum ruling is foreclosed by Sukwanputra v. Gonzales, 434 F.3d

627 (3d Cir. 2006). There, we held that “despite the changes to the REAL ID Act, factual

or discretionary determinations . . . fall outside the jurisdiction of the court of appeals

entertaining a petition for review.” Id. at 634.

       Although Chen attempts to claim that the IJ’s ruling was an error of law, he is

clearly attempting to challenge the IJ’s factual conclusions. Accordingly, we must

                                               3
dismiss Chen’s petition for review for lack of jurisdiction.




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