Samad Radamis Fahim v. U.S. Attorney Gen., 278 F.3d 1216 (11th Cir. 2002). · Go Syfert
Samad Radamis Fahim v. U.S. Attorney Gen., 278 F.3d 1216 (11th Cir. 2002). Cases Citing This Book View Copy Cite
Quick Summary

Federal courts lack jurisdiction to review the Attorney General’s determination that an asylum application was untimely under 8 U.S.C. § 1158(a)(3).

An Egyptian national, admitted as a student, faced removal after failing to maintain status and filed an asylum application that the Immigration Judge deemed untimely. The Board of Immigration Appeals affirmed the denial of asylum and withholding of deportation. The court addresses whether federal courts possess jurisdiction to review the Attorney General’s determination that an asylum application was filed outside the statutory one-year limit. Applying 8 U.S.C. § 1158(a)(3), the court holds that the statute clearly precludes judicial review of such timeliness determinations. Because the specific statutory language overcomes the presumption favoring judicial review, the court lacks jurisdiction to examine the timeliness issue. The court separately affirms the denial of withholding of deportation, finding the record does not compel a contrary conclusion regarding the likelihood of persecution.

245 citation events (245 in the last 25 years) across 9 distinct courts.
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At page 1218 Limiting judicial review of agency decisions117 citing cases“must find that the record not only supports that conclusion, but compels it.”6 citing courts quote it · 110 listed here
  • Albert Adefemi v. John Ashcroft, 386 F.3d 1022 (11th Cir. 2004).published
    (To conclude that the Board should be reversed, a reviewing Court must find that the record ‘not only supports that conclusion, but compels it.’)
  • Sergio Leonel Mendoze v. U.S. Attorney Gen., Immigr. & Naturalization Serv., 327 F.3d 1283 (11th Cir. 2003).published 3 cites
    (To conclude that the Board [of Immigration Appeals] should be reversed, a reviewing Court must find that the record not only supports that conclusion, but compels it.)
  • Elsy Nohemy Martinez-Bobadilla v. U.S. Attorney Gen., No. 21-10073 (11th Cir. Nov. 16, 2021).unpublished
    The alien must show that it is “‘more likely than not’ she will be persecuted . . . upon being returned to her country.” Sepulveda, 401 F.3d at 1232 (quoting Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)).
  • Taohid Hasnet Akash v. U.S. Attorney Gen., No. 20-12378 (11th Cir. Apr. 28, 2021).unpublished
    See Sepulveda, 401 F.3d at 1232 (explaining that an alien seeking withholding of removal “bears the burden of demonstrating that it is ‘more likely than not’ [he] will be persecuted or tortured 12 USCA11 Case: 20-12378 Date Filed: 04/28/20…
  • Maria Clemencia Diego-Francisco v. U.S. Attorney Gen., No. 20-12916 (11th Cir. Apr. 22, 2021).unpublished
    Under the “substantial evidence test,” factual findings “are conclusive unless the record demonstrates that ‘any reasonable adjudicator would be compelled to conclude the contrary.’” Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir.…
  • Esward Ronaldo Gomez Aceituno v. U.S. Attorney Gen., No. 20-10176 (11th Cir. Jan. 4, 2021).unpublished
    Under the “substantial evidence test,” factual findings “are conclusive unless the record demonstrates that ‘any reasonable adjudicator would be compelled 5 USCA11 Case: 20-10176 Date Filed: 01/04/2021 Page: 6 of 9 to conclude the contrary…
  • Jhensy Rosmery Pena-Nolasco v. U.S. Attorney Gen., No. 20-10019 (11th Cir. Oct. 30, 2020).unpublished
    Under that test, the BIA’s factual findings “are conclusive unless the record demonstrates that ‘any reasonable adjudicator would be compelled to conclude the contrary.’” Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002) (quot…
  • Kagendran Ratnam v. U.S. Attorney Gen., No. 19-11984 (11th Cir. Oct. 20, 2020).unpublished
    Under that test, the BIA’s factual findings “are conclusive unless the record demonstrates that ‘any reasonable adjudicator would be compelled to conclude the contrary.’” Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002) (quot…
  • Leonard Green Malunga v. U.S. Attorney Gen., No. 17-13381 (11th Cir. Sept. 27, 2018).unpublished
    See id.; Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002).
  • Xuejun Chen v. U.S. Attorney Gen., 571 F. App'x 894 (11th Cir. 2014).unpublished
    Withholding of Removal An alien seeking withholding of removal under the INA “bears the burden of demonstrating that it is ‘more likely than not’ [he] will be persecuted or tortured upon being returned to [his] country.” Sepulveda v. U.S.…
Show 100 more citing cases
At page 1217 Reviewability of attorney general's asylum timeliness decisions80 citing casesAs to the denial of the request for asylum as being untimely, we hold that federal courts do not have jurisdiction to review the Attorney General’s decision as to timeliness of such a request.2 citing courts put it this way · 79 listed here
  • Sergio Leonel Mendoze v. U.S. Attorney Gen., Immigr. & Naturalization Serv., 327 F.3d 1283 (11th Cir. 2003).published 3 cites
    Fahim, 278 F.3d at 1218 (“To conclude that the Board [of Immigration Appeals] should be reversed, a reviewing Court must find that the record not only supports that conclusion, but compels it.”) (quotation marks and citation omitted).
  • Santos Elias Paz-Castillo v. U.S. Attorney Gen., No. 22-13557 (11th Cir. Nov. 28, 2023).unpublished
    The BIA’s decision whether Paz-Castillo “complied with the one-year time limit or established extraordinary circumstances . . . is not reviewable by any court.” Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1217 (11th Cir. 2002) (per curiam). 4…
  • Melanie Margarita Rodriguez v. Us Attorney Gen., 447 F. App'x 74 (11th Cir. 2011).unpublished
    (holding that federal courts do not have jurisdiction to review the Attorney General’s decision regarding the timeliness of an asylum application)
  • Majid v. Holder, 336 F. App'x 389 (4th Cir. 2009).unpublished
    See Hana v. Gonzales, 503 F.3d 39, 42 (1st Cir.2007); Yakovenko v. Gonzales, 477 F.3d 631, 635 (8th Cir.2007); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003); Tsevegmid v. Ashcroft, 318 F.3d 1226, 1230 (10th Cir.2003); Fahim v. U.…
  • Ginette Cadet v. U.S. Attorney Gen., 332 F. App'x 539 (11th Cir. 2009).unpublished
    (As to the denial of the request for asylum as being untimely, we hold that federal courts do not have jurisdiction to review the Attorney General’s decision as to timeliness of such a request.)
  • FNU Zulkifli v. U.S. Attorney Gen., 309 F. App'x 363 (11th Cir. 2009).unpublished
    Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1217 (11th Cir.2002) (per curiam) (holding that federal courts lack jurisdiction to review the Attorney General’s decision as to timeliness of an asylum request); see also Ruiz v. Gonzales, 479 F.3d…
  • Ng Cristeven v. U.S. Attorney Gen., 300 F. App'x 883 (11th Cir. 2008).unpublished
    Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1217 (11th Cir.2002) (per curiam) (holding that federal courts lack jurisdiction to review the Attorney General’s decision as to timeliness of an asylum request: “Pursuant to 8 U.S.C. § 1158 (a)(3),…
  • Carlos Alberto Galarraga-Aguilar v. U.S. Atty. Gen, 314 F. App'x 223 (11th Cir. 2008).unpublished
    Fahim v. Att’y Gen., 278 F.3d 1216, 1217-18 (11th Cir.2002).
  • Shahzad v. Ashcroft, No. 02-60025 (5th Cir. Oct. 10, 2002).unpublished
  • Yves Alvard v. U.S. Attorney Gen., 160 F. App'x 899 (11th Cir. 2005).unpublished
Show 69 more citing cases
At page 1216 “is not reviewable by any court.”0 citing cases6 citing courts quote it
    Retrieving the full opinion text from the archive…
    Samad Radamis FAHIM, Petitioner,
    v.
    U.S. ATTORNEY GENERAL, Immigration and Naturalization Service, Respondent
    01-11597.
    Court of Appeals for the Eleventh Circuit.
    Jan 9, 2002.
    Published opinion
    278 F.3d 1216
    2002 U.S. App. LEXIS 295
    Charles H. Kick, Schwartz, Kuck & Associates, LLP, Atlanta, GA, for Petitioner., David V. Bernal, Anthony Cardozo Payne, Ernesto H. Molina, Emily Anne Radford, Joshua E. Braunstein, U.S. Dept, of Justice, Office of Immigration Litigation Station, Washington, DC, for Respondent.
    Birch, Per Curiam, Roney, Tjoflat.
    Cited by 197 opinions  |  Published
    PER CURIAM:

    This case is a challenge to the Board of Immigration Appeals’ (BIA) affirmance of an order denying relief from an order of removal and deportation. Samad Radamis Fahim, a native and citizen of Egypt, was admitted to the United States as a non-immigrant student in 1990. He stopped attending school in 1996, and in 1999 he was issued a Notice to Appear before the Immigration and Naturalization Service (INS), charging that he failed to comply with the conditions of the status under which he was admitted. An Immigration Judge (1) found he was subject to removal and deportation pursuant to the Notice to Appear (an order not appealed), (2) held that his request for asylum was untimely, and (3) denied on the merits his application for withholding deportation and Torture Convention relief on the ground that his life, health, and freedom would be threatened should he return to Egypt. The BIA affirmed the denial. Fahim appeals. We affirm.

    As to the denial of the request for asylum as being untimely, we hold that federal courts do not have jurisdiction to review the Attorney General’s decision as to timeliness of such a request. Pursuant to 8 U.S.C. § 1168(a)(3), the Attorney General’s decision regarding whether an alien complied with the one-year time limit or established extraordinary circumstances, such that the time limit should be waived, is not reviewable by any court. Although courts generally will not infer congressional intent to restrict their jurisdiction, in this case the statute clearly indicates that Congress intended to restrict judicial review. Section 1158(a)(3) states, “[n]o court shall have the jurisdiction to review any determination of the Attorney General under paragraph (2) [the provision providing that the one-year time limit may be waived if extraordinary circumstances are demonstrated].”

    Although there is a presumption favoring judicial review, the presumption may be overcome by specific statutory language precluding that review. Block v. Community Nutrition Inst, 467 U.S. 340, 349, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). Two circuits have refused to review untimely asylum applications because section 1158(a)(3) contains such specific language. Hakeem v. I.N.S., No. 00-70525, 273 F.3d 812, 815 (9th Cir.2001) (holding that section 1158(a)(3) precludes judicial review of Immigration Judge’s determination that immigrant’s asylum application was untimely); Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir.2001) (stating, “the meaning of § 1158(a)(3) is clear: Congress intended to[*1218] bar judicial review of decisions made under § 1158(a)(2).”).

    The language of section 1158(a)(3) is so clear that several courts have, in dicta, used the section as an example of a clear congressional limit on courts’ jurisdiction. Montero-Martinez v. Ashcroft, 249 F.3d 1156 (9th Cir.2001) (section 1158(a)(3) unambiguously limits federal court jurisdiction); Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir.1999) (section 1158(a)(3) serves to “preclude direct review by any court of certain discretionary decisions made by the Attorney General.”) (emphasis in original); Gonzalez v. Reno, 86 F.Supp.2d 1167, 1179 (S.D.Fla.2000) (in light of section 1158(a)(3), only subsection (a)(1) is subject to judicial review).

    We join the 8th and 9th Circuits in holding that the language of 8 U.S.C. § 1158(a)(3) precludes federal court review of determinations made by the Attorney General pursuant to 8 U.S.C. § 1158(a)(2).

    As to the appeal of the denial of withholding of removal under § 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3), the findings of fact are conclusive unless the record demonstrates that “any reasonable adjudicator would be compelled to conclude to the contrary.” INA §§ 242(b)(4)(A)-(B), 8 U.S.C. §§ 1252(b)(4)(A)-(B)(1998). To conclude that the Board should be reversed, a reviewing Court must find that the record “not only supports that conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 480 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

    When an alien is seeking withholding of deportation, he bears the burden of demonstrating that it is “more likely than not” that he will be persecuted or tortured upon his return to the country in question. I.N.S. v. Stevie, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984); 8 C.F.R. 208.16(c)(2)(2000). The Board found from the documentary and testimonial evidence that Fahim had not sustained this burden. It held that the record lacks sufficient evidence that anyone in Egypt has the present inclination to persecute the respondent.

    The Board also found that Fahim had failed to provide any evidence indicating that an individual in his circumstances would be subject to any mistreatment by a public official or other person acting in an official capacity as required under the Convention Against Torture.

    A careful review of the briefs and record fails to convince us that any reasonable adjudicator would be compelled to conclude to the contrary.

    AFFIRMED.