Seesay

MEMORANDUM **

The government argues we have no jurisdiction to hear Seesay’s petition, because the Immigration Judge (“IJ”) found that Seesay had not carried his burden of showing his petition for asylum was timely. Courts generally do not have jurisdiction to review the denial of an untimely asylum petition, 8 U.S.C. § 1158 (a)(3), but we do have jurisdiction to review a timeliness determination for questions of law as applied to undisputed facts. 8 U.S.C. § 1252 (a)(2)(D). Here, the government alleged Seesay’s entry date in its Notice to Appear, and Seesay admitted the government’s allegation at his hearing before the Immigration Judge (“IJ”). “[T]he allegations are thus considered judicial admissions rendering the arrival date undisputed.” Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir.2009) (internal citations and quotations omitted). See also Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir.2008) (“Allegations in a complaint are considered judicial admissions. In immigration proceedings, the Notice to a Appear serves the same function as a civil complaint.”). *319 Therefore, Seesay’s entry date was undisputed, and he established as a matter of law that his asylum…

dissenting:

This court has no jurisdiction to review timeliness findings based on disputed facts. Cf. Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007). Unlike in Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir.2008) and Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir.2009), the alien here testified to dates contrary to that alleged in the government’s Notice to Appear. At his hearing, Seesay made a number of inconsistent statements regarding his date of arrival into the United States, casting the date into dispute. In light of this conflicting evidence, the arrival date cannot be considered judicially admitted, and the majority’s reliance on Hakopian and Cinapian is misplaced. Because this timeliness finding was based on disputed facts, we lack jurisdiction to consider this asylum claim. I would dismiss the asylum claim on this basis. I otherwise concur in the majority’s disposition of Seesay’s withholding and CAT claim.