Huang v. Mukasey (7th Cir. 5/7/08)

FLAUM Wood Evans

The 7th cir denied a Chinese asylum case, finding that the fact of filing within one year is a factual, not legal determination (though also, ambiguously, finding that the IJ's finding was correct in saying that clear and convincing evidence didn't support the claimed entry date); and that substantial evidence supports credibility denial.  In dicta, noted that IJ's analysis of time required for abortion was not supported, and also discussed the forensic analysis. 

Read opinion here: 

1.  7th Cir ambiguously rejects claim that applicant filed within a year - and holds that it cannot be under 1252(a)(2)(D0, because it's a factual determination.

   [W]e are left with nothing more than her own testimony that she knew she arrived on February 14, 2002 because she was told it was Valentine’s Day. This in and of itself—particularly given the amount of time she has now spent in the U.S.—does not add up to clear and convincing evidence regarding her date of arrival.

   Since petitioners cannot pass this statutory bar, they argue in the alternative that the IJ’s ruling on asylum raises a “question of law,” and so we are not precluded from having jurisdiction to hear their claim. Indeed, under the INA, “[n]o court shall have jurisdiction to review any determination of the Attorney General” regarding timeliness of applications for asylum. 8 U.S.C. § 1158(a)(3). It is true that the Real ID Act amended the judicial review provisions of the INA to allow review of constitutional claims and questions of law. See, e.g., Ramos v. Gonzales, 414 F.3d 800, 801-02 (7th Cir. 2005). Nevertheless, we have squarely held that an IJ’s determination that an asylum application is untimely is a factual determination, and does not raise a question of law. See Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005) (“Perhaps Vasile would like to shoehorn his [untimely asylum] claim into the ‘question of law’ category, but it simply does not fit there.”).

2.  Also notes that petitioners failed to exhaust administrative remedies.

3.  Detailed about 6 problems with their testimony (including fake documents, inconsistencies with affidavit, implausible storty, etc.), which were sufficient evidence of a lack of credibility.

4.  Brief discussion of forensic report.

  FN5 The phrase “not genuine” is a term of art used by the forensic examiner and is distinct from the concept of a “counterfeit” document. If we imagine a spectrum of authenticity, a counterfeit document would be at one end of the spectrum. In that case, the examiner would have an exact copy of the document from the same location (e.g., Lianjiang jail), and could compare the proffered document to see whether it matches. Or, the examiner would have substantial information that the document is standardized everywhere, regardless of location, and so any deviation from this standard form would be deemed counterfeit. The designation “not genuine,” on the other hand, applies to documents where there is no exact specimen from the same location that can be used for comparison. Instead, there are standardized forms used throughout the country, and these are used for comparison, but there is not crystal clear evidence that the standardized forms are used in all locations.

5.  Noted that IJ's reasoning with regard to the length of time required for the abortion was flawed.

   [W]e pause to note one methodological flaw in the opinion below. The IJ found that one additional reason Huang was not to be believed was that she declared that her entire forced abortion incident—from the time she was picked up by officials to the time she was discharged—took two-and-ahalf hours. * * *  The IJ does not cite to any medical evidence whatsoever to support his incredulity at the notion that a patient could be given a pregnancy test, anesthetized, subjected to the procedure, and then sent home all in a matter of one-and-a-half hours. This appears to be a questionable assumption, particularly since our research indicates that a dilation and curettage procedure, for instance, can be performed in fifteen minutes. See Richard S. Guido, M.D. & Dale W. Stovall, M.D., Patient Information: Dilation and Curettage (D & C) (William J. Mann, Jr., M.D., ed., 2006), www.uptodate.com. Hence, we urge caution when drawing adverse inferences of this nature in medically sensitive cases.

Atty: Thomas Massucci, NYC

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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.