Sagaydak v. Gonzales

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.