United States 8th Circuit Court of Appeals Reports

SOMAKOKO v. GONZALES, 399 F.3d 882 (8th Cir. 2005) Zita
Marie Valerie SOMAKOKO, also known as Zita Marie Valerie
Camara, Petitioner, v. Alberto GONZALES, Attorney General
of the United States of America, Respondent. No. 04-1582.
United States Court of Appeals, Eighth Circuit. Submitted:
December 17, 2004. Filed: March 1, 2005.

Petition for review from the Board of Immigration Appeals.

Benjamin Casper, argued, West St. Paul, Minnesota, for
appellant.

Mark S. Davies, argued, U.S. Department of Justice,
Washington, D.C. (Michael S. Raab, U.S. Department of
Justice, Washington, D.C., on the brief), for appellee.

Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD and
RILEY, Circuit Judges.

LOKEN, Chief Judge.

Zita Marie Valerie Somakoko is a thirty-one-year-old native
and citizen of the Central African Republic. She grew up in
the Emperor’s palace in Bangui, Central African Republic,
because her parents were related to Emperor Jean-Bedel
Bokassa and to Dada Dacko, who overthrew Bokassa in 1979.
The family scattered in 1984 when Dacko was removed from
power. Ms. Somakoko and three siblings settled with their
father in Guinea, where she lived without incident for
fourteen years, receiving a high school and college
education financed by the Catholic Church in Guinea. She
entered the United States on a Guinean passport in July
1998, remained beyond her January 1999 visa expiration
date, and filed an application for asylum, withholding of
removal, and relief under the Convention Against Torture in
October 1999.

The Immigration Judge (IJ) held a hearing on the
application on five separate days between June 2000 and
September 2002. After one lengthy continuance, and Page
883 before the completion of Ms. Somakoko’s testimony, the
government agreed that she was entitled to withholding of
removal to the Central African Republic. The hearing then
continued on the question whether Ms. Somakoko should be
denied asylum, either because her asylum application was
not filed within one year of her arrival in the United
States, as 8 U.S.C. § 1158(a)(2)(B) requires, or
because she firmly resettled in Guinea prior to coming to
this country, see 8 U.S.C. § 1158(b)(2)(A)(vi).
Following the hearing and the submission of post-hearing
briefs and argument, the IJ issued a written decision
denying asylum on both grounds. The Board of Immigration
Appeals affirmed without opinion. Ms. Somakoko now
petitions for review of the agency’s final action. We deny
her petition.

Ms. Somakoko concedes, as she must, that Congress has
expressly precluded judicial review of the Attorney
General’s determination that an asylum application is
untimely. See 8 U.S.C. § 1158(a)(3); Ismailov v.
Reno, 263 F.3d 851 (8th Cir. 2001). She argues, however,
that we have jurisdiction to consider substantial
constitutional questions, including whether she was denied
due process because of a fundamentally unfair removal
proceeding. Her hearing was fundamentally unfair, Ms.
Somakoko argues, because the IJ foreclosed testimony that
would have entitled her to a discretionary exception to the
one-year filing requirement for “extraordinary
circumstances relating to the delay in filing an
application within the period specified.” 8 U.S.C. §
1158(a)(2)(D).

An alien has a right to procedural due process in removal
proceedings. See generally Al Khouri v. Ashcroft, 362 F.3d
461, 464-66 (8th Cir. 2004). However, the government argues
with some force that procedural due process review of an
agency decision that we may not review on the merits “would
undermine the statutory bar on judicial review of
timeliness rulings by the Attorney General.”[fn1] On the
other hand, courts are understandably reluctant to conclude
that Congress intended to preclude all judicial review of
constitutional issues, including procedural due process
claims. Cf. I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct.
2271, 150 L.Ed.2d 347 (2001). Indeed, one of our sister
circuits recently remanded, on procedural due process
grounds, a BIA decision that upheld an untimeliness
determination without explaining the factual basis for the
determination. Gjyzi v. Ashcroft, 386 F.3d 710, 713-14 (6th
Cir. 2004).

In this case, we need not decide the troubling question
whether relief from an untimeliness ruling may ever be
granted on procedural due process grounds because Ms.
Somakoko has failed to demonstrate that her removal
proceedings were fundamentally unfair. At the hearing, Ms.
Somakoko submitted documents and testimony suggesting that
she attempted to file an asylum application in June 1999,
within the one-year period. This was relevant evidence,
because the governing regulations define the statutory term
“extraordinary circumstances” to include a timely
application that “was rejected by the Service as not
properly filed, was returned to the applicant for
corrections, and was refiled within a reasonable period
thereafter.” 8 C.F.R. § 208.4(a)(5)(v). In this
case, however, the agency had no record of a June 1999
filing by Ms. Somakoko, and she could produce no evidence
that the agency had returned a timely application for
corrections. Accordingly, the IJ found Page 884 that she
did not file her asylum application until October 1999,
some months beyond the one-year deadline.

In her post-hearing brief and argument, Ms. Somakoko
argued, as she now does on appeal, that the IJ had
foreclosed other evidence of extraordinary circumstances
relating to the delay in filing, namely, “that she was
pregnant when she arrived in this country, that she gave
birth to her son months later, and that she was forced to
fend for herself and her infant child after her sponsor
abandoned her.” But the hearing record reflects that such
evidence was never offered, despite the fact that Ms.
Somakoko and her counsel had ample time to prepare for each
session, and she testified extensively both before and
after the IJ announced that the application for asylum
appeared to be time-barred. Moreover, in the written
decision issued after submission of Ms. Somakoko’s
post-hearing brief and argument, the IJ found that “she has
not shown that she qualifies for an exception to the 1-year
deadline.” There is no indication that the IJ failed to
consider Ms. Somakoko’s post-hearing argument regarding
extraordinary circumstances, and we have no jurisdiction to
review the merits of the IJ’s determination.

On appeal, Ms. Somakoko also challenges the IJ’s decision
that she firmly resettled in Guinea before coming to the
United States. See generally Rife v. Ashcroft, 374 F.3d
606, 610-12 (8th Cir. 2004). However, counsel conceded at
oral argument that, given the facts and procedural history
of this case, the resettlement issue is relevant only to
Ms. Somakoko’s time-barred application for asylum, not her
application for withholding of removal or relief under the
Convention Against Torture. Accordingly, we need not
consider the resettlement issue. Finally, Ms. Somakoko
argues that the Attorney General exceeded his authority
when he adopted the affirmed-without-opinion regulation, 8
C.F.R. § 1003.1(e)(4), and that the BIA improperly
applied the regulation when it affirmed without opinion in
this case. We have repeatedly rejected these contentions as
beyond our judicial review authority. See Ngure v.
Ashcroft, 367 F.3d 975, 988 (8th Cir. 2004).

For the foregoing reasons, we deny the petition for review.

[fn1] “We have never held . . . that Congress may not, by
explicit language, preclude judicial review of
constitutional claims.” McNary v. Haitian Refugee Center,
Inc., 498 U.S. 479, 504, 111 S.Ct. 888, 112 L.Ed.2d 1005
(1991) (Rehnquist, C.J., dissenting).