Viktor Yaroslavovich Sagaydak Nataliya Bogdanivna Sagaydak v. Alberto Gonzales, Attorney General

405 F.3d 1035 Viktor Yaroslavovich SAGAYDAK; Nataliya Bogdanivna Sagaydak, Petitioners, v. Alberto GONZALES, * Attorney General, Respondent. No. 02-74299. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 6, 2004. Filed May 4, 2005. Tom Youngjohn, Federal Way, WA, for the petitioners. Leslie McKay, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. Avw-qkx-edk, Aye-mcu-ekx. Before: HUG, TASHIMA, and PAEZ, Circuit Judges. PAEZ, Circuit Judge. 1 To be eligible for asylum, an alien must, absent changed or extraordinary circumstances, file an asylum application within one year of arriving in the United States. 8 U.S.C. § 1158 (a)(2). In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress made clear that "no court shall have jurisdiction to review any determination of the Attorney General" with respect to whether the alien had met the one-year deadline or had failed to satisfy this time limit because of extraordinary circumstances. Pub.L. 104-208, § 604 , 110 Stat. 3009 -691 (1996) (codified at 8 U.S.C. § 1158 (a)(3)); see also Hakeem v. INS, 273…

To be eligible for asylum, an alien must, absent changed or extraordinary circumstances, file an asylum application within one year of arriving in the United States. 8 U.S.C. § 1158 (a)(2). In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress made clear that “no court shall have jurisdiction to review any determination of the Attorney General” with respect to whether the alien had met the one-year deadline or had failed to satisfy this time limit because of extraordinary circumstances. Pub.L. 104-208, § 604 , 110 Stat. 3009 -691 (1996) (codified at 8 U.S.C. § 1158 (a)(3)); see also Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001). However, in this case, we are confronted with an unusual situation: The lead petitioner argued that his untimely filing was due to extraordinary circumstances, but both the Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) failed to address the issue. We hold that when the Attorney General fails to make a “determination,” this court has jurisdiction to grant the petition and remand the case so that the agency charged with making this determination can properly do so.

Both petitioners also argued that…

concurring in part and dissenting in part:

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, § 604, provides that “no court shall have jurisdiction to review any determination of the Attorney General under paragraph (2)” that an alien’s application for asylum is untimely. 1 8 U.S.C. § 1158 (a)(3) (emphasis added). Because the majority’s reading of the statute impermissibly narrows the plain meaning of “any determination” to exclude some determinations, I respectfully dissent from its assuming jurisdiction and reviewing petitioner Viktor Sagaydak’s claim that his asylum application is not time-barred.

Here, the IJ found “that the male respondent is ineligible for asylum since he ... did not apply for asylum until ... more than one year after his arrival.” (Citing § 1158(a)(2)(B) and 8 C.F.R. § 208.4 (a)(2).) Because the IJ also mistakenly “believed that the one-year deadline was absolute and not subject to any exception,” Maj. op. at 1040, he did not go on expressly to rule on Viktor’s contention that the extraordinary circumstances exception of § 1158(a)(2)(D) applied to his case. On this basis, the majority holds “that the IJ failed to make ‘any…