Abdullahi Hersi v. Eric Holder, Jr., No. 09-1232 (4th Cir. 2010)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1232 ABDULLAHI SAID HERSI; ABDULKADIR A. SAID; MOHAMUD AB SAID; MOHAMED ABDULLAHI SAID, Petitioners, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: March 15, 2010 Decided: March 29, 2010 Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. Ivan Yacub, YACUB LAW OFFICES, Falls Church, Virginia, for Petitioners. Tony West, Assistant Attorney General, Stephen J. Flynn, Assistant Director, Annette M. Wietecha, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: The Petitioners, Abdullahi Said Hersi, and his adult children, Abdulkadir A. Said, Mohamud Ab Said, and Mohamed Abdullahi Said, natives and citizens of Somalia, petition for review of an order of the Board of Immigration Appeals ( Board ) dismissing their appeal from the immigration judge s decision, which denied their asylum applications as untimely and granted their requests for withholding of removal. Finding no error, we deny the petition for review. An asylum applicant must demonstrate by clear and convincing evidence that the application has been filed within 1 year after States. be the date of the alien s arrival 8 U.S.C. § 1158(a)(2)(B) (2006). considered demonstrates outside the of the existence one-year of the United An application may period changed in or where an alien extraordinary circumstances to excuse the untimely filing pursuant to 8 U.S.C. § 1158(a)(2)(D). Pursuant to 8 U.S.C. § 1158(a)(3), the court typically lacks jurisdiction to review a determination that an alien has failed to timely file his asylum application. See Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009), cert. denied, __ S. Ct. __, 78 U.S.L.W. 3091 (U.S. Jan. 11, 2010) (No. 09-194). Although 8 U.S.C. § 1252(a)(2)(D) (2006) provides that nothing in § 1252(a)(2)(B), (C), or in any other provision of this Act 2 . . . which construed limits as or eliminates precluding review judicial of review, be claims constitutional shall or questions of law, this court has found that the question of whether an alien discretionary Gomis, 571 timely filed determination F.3d at 358. his based asylum on application factual Accordingly, is a circumstances. absent a colorable constitutional claim or question of law, [the court s] review of the issue is not authorized by § 1252(a)(2)(D). In this case, however, the Id. Petitioners raise a reviewable question of law over which we retain jurisdiction pursuant to § 1252(a)(2)(D). * In their brief before this court, the Petitioners argue that the immigration judge and the Board impermissibly held them to a stricter legal standard than the clear and convincing evidence standard set forth in 8 U.S.C. § 1158(a)(2)(B). stringent standard They maintain that the Board imposed a more than what is required to convict beyond a reasonable doubt evidentiary standard. under a As found by several of our sister courts, [a] reviewable question of law may be raised where the agency used the wrong legal standard in coming to a determination on a discretionary determination. Lumataw v. Holder, 582 F.3d 78, 85 (1st Cir. 2009) (holding that * We previously denied the Attorney General s dismiss the petition for review on this ground. 3 motion to the question of whether the immigration judge and the Board applied the correct filing deadline in assessing the timeliness of petitioner s asylum application was a reviewable question of law); see Khan v. Filip, 554 F.3d 681, 689 (7th Cir. 2009) (recognizing that [s]ome discretionary determinations do present underlying, reviewable questions of law, such as those in which the agency is alleged to have applied the wrong legal standard ); Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007) (holding agency that where, applied an as here, a erroneous petitioner legal argues standard that in making the a discretionary determination, the petitioner raises a question of law, which we have jurisdiction to review ). Based on our review of the record, we find no indication that the Petitioners were held to an impermissibly high standard of review. correct standard submitted by of the We find that the Board articulated the review, thoroughly Petitioners, and analyzed the properly evidence upheld the immigration judge s finding that the evidence was insufficient to establish by clear and convincing evidence that the Petitioners filed their asylum application within one year of their arrival in the United States. Accordingly, dispense with oral we deny argument the petition because 4 the for facts review. and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
