The opinion of the court was delivered by: DENISE COTE, District Judge
Petitioner Zulfu Sayan challenges his final order of removal
from the United States pursuant to 28 U.S.C. § 2241. The
Government opposes the petition on the basis of lack of subject
matter jurisdiction as well as on the merits. For the following
reasons, the petition is denied. BACKGROUND
Sayan is a thirty-four year-old Turkish national and ethnic
Kurd who entered the United States on a tourist visa on July 28,
1998. Although his visa expired on January 27, 1999, he remained
in the United States, and eventually had removal proceedings
initiated against him on October 10, 2001, for overstaying his
visa. See 8 U.S.C. § 1227(a)(1)(B). Sayan subsequently appeared
four times before an immigration judge between December 5, 2001
and June 19, 2003. On May 6, 2002, Sayan applied for asylum and
withholding of removal, and on June 19, 2003, the immigration
judge denied Sayan's asylum application without a hearing on the
subject. The immigration judge explained that the denial was
because Sayan did not file his asylum application within one year
of his arrival in the United States as required by
8 U.S.C. § 1158(a)(2)(B), and was unable to demonstrate changed
circumstances which materially affected his eligibility for
asylum or extraordinary circumstances relating to the delay in
filing a timely application, 8 U.S.C. § 1158 (a) (2) (D). The
immigration judge also denied Sayan's applications for
withholding of removal and for relief under the United Nations
Convention Against Torture ("CAT"), finding that Sayan's
testimony at the various hearings was not credible, and that in
any event, he had not established that it is more likely than not that he would be either persecuted or tortured if returned to
The immigration judge based his adverse credibility finding on
six factors: (1) Sayan's testimony that "all of his relatives"
had been harmed by the Turkish government because of their
Kurdish ethnicity meant that over one thousand individuals in his
family would have been harmed, and Sayan could not produce
letters or affidavits from a single one of them; (2) Sayan's
brother, who also had allegedly been harmed by the Turkish
government because of his Kurdish ethnicity, and who lives in the
United States, did not testify or otherwise submit a statement on
Sayan's behalf; (3) Sayan's written asylum application made no
mention of the arrest and detention he testified he suffered in
Turkey; (4) Sayan's testimony about his arrest and detention in
Turkey was vague, as he was unsure whether it had been in 1996 or
1997, and did not know approximately what time it had occurred;
(5) Sayan claimed he was "fleeing his country because of past
persecution and torture," but did not bother to file an asylum
application in the United States until after removal proceedings
against him had begun; and (6) Sayan was also vague about the
circumstances of a state assault conviction that did not form the
basis for his removal proceedings. The immigration judge also
held that even if Sayan had testified credibly, he had not
established that it was more likely than not that he would be
persecuted or tortured when he was returned to Turkey. Although the immigration judge found that Sayan had demonstrated that
Turkish officials "frequently" torture detainees, Sayan had
failed to demonstrate that he would be incarcerated again. This
was because according to Sayan's testimony, his only previous
incarceration had been due to an altercation, not his Kurdish
background, and he had demonstrated no other indications why he,
personally, or even members of his family, would be specifically
targeted for persecution or torture.
Sayan appealed the immigration judge's decision to the Board of
Immigration Appeals ("BIA"), which dismissed Sayan's appeal in a
short per curiam order on December 4, 2003. Without appealing
the BIA's decision to the United States Court of Appeals for the
Second Circuit, Sayan brought this pro se petition for habeas
relief on February 23, 2004. Sayan is currently in federal
custody at the Attica Correctional Facility in Attica, New York.
Sayan's petition can be read as raising three claims. First, he
challenges the Immigration Judge's determination that his asylum
application was untimely, asserting, without further explanation,
that "respondent demonstrated the existence of changed
circumstances which materially affected his eligibility for
asylum." Second, he challenges the Immigration Judge's factual
determinations that he was not eligible for withholding of
removal or relief based on CAT, arguing that he has a reasonable
fear of torture and persecution if he is returned to Turkey. He
claims that "the IJ failed to make clear findings about respondent [sic] specific claims and relied on conjecture
and surmise to reach a determination." Third, he challenges the
basis for the Immigration Judge's adverse credibility finding,
arguing that "INS regulations do not require that credible
testimony that which is consistent and specific be
corroborated by objective evidence."
Federal immigration statutes require aliens seeking asylum in
the United States to demonstrate "by clear and convincing
evidence that the application has been filed within 1 year after
the date of the alien's arrival in the United States."
8 U.S.C. § 1158 (a) (2) (B). In spite of this timeliness requirement,
however, an asylum application may nevertheless be considered "if
the alien demonstrates to the satisfaction of the Attorney
General either the existence of changed circumstances which
materially affect the applicant's eligibility for asylum or
extraordinary circumstances relating to the delay in filing an
application within the [one year] period."
8 U.S.C. § 1158(a)(2)(D). The same statute also forecloses judicial review
of decisions regarding timeliness or changed circumstances: "No
court shall have jurisdiction to review any determination of the
Attorney General under paragraph (2)." 8 U.S.C. § 1158 (a) (3). The Government argues that federal courts considering habeas
petitions do not have subject matter jurisdiction over asylum
application decisions by the BIA or immigration judges governing
timeliness or changed circumstances because of this statutory
provision foreclosing judicial review. Id. The argument is
misplaced. It is well settled that in order for a statute to
repeal habeas jurisdiction, it must "must overcome both the
strong presumption in favor of judicial review of administrative
action and the longstanding rule requiring a clear statement of
congressional intent to repeal habeas jurisdiction." I.N.S. v.
St. Cyr, 533 U.S. 289, 298 (2001). Indeed, "implications from
statutory text or legislative history are not sufficient to
repeal habeas jurisdiction; instead, Congress must articulate
specific and unambiguous statutory directives to effect a
repeal." Id. at 299. Statutes that bar "judicial review" or
"jurisdiction to review" do not bar habeas jurisdiction because
"`judicial review' and `habeas corpus' have historically distinct
meanings," id. at 311, and therefore such statutes do not
"clearly" repeal habeas jurisdiction. Id. at 314.
Section 1158(a)(3), while barring "jurisdiction to review,"
makes no mention of habeas jurisdiction. Absent a specific or
unambiguous statutory directive to repeal federal courts' habeas
corpus jurisdiction, the statute does not effect such a repeal.
Cf. Calcano-Martinez v. I.N.S., 232 F.3d 328, 337-38 (2d Cir.
2000). Although the precise scope of habeas jurisdiction is "unclear,"
federal courts retain jurisdiction to review "purely legal
statutory and constitutional claims." Sol v. I.N.S.,
274 F.3d 648, 651 (2d Cir. 2001) (citation omitted). Such jurisdiction
"does not extend to review of factual or discretionary
determinations." Id. Thus, federal courts do not retain
jurisdiction to hear habeas claims that a decision of an
immigration judge or the BIA "lacked adequate support in the
record," id., unless, perhaps, the claim is that the decision
was based on a total absence of evidence such that it was
"arbitrary" and constituted a "denial of due process." Bicaj v.
Ashcroft, 01 Civ. 11568 (RWS), 2003 WL 21355488, at *3 (S.D.N.Y.
June 11, 2003). By contrast, where a petitioner raises a
process-related claim that an order of removal was obtained in
violation of the law or the Constitution, such a claim "raises a
question of pure law" that is "cognizable on collateral review."
Liu v. I.N.S., 293 F.3d 36, 41 (2d Cir. 2002).*fn1 Sayan does not challenge his order of deportation on statutory
or constitutional grounds. Rather, he seeks review of the purely
factual determination of the immigration judge that he failed to
meet the one year requirement for filing an application for
asylum pursuant to 8 U.S.C. § 1158(a)(2)(B) and failed to
demonstrate changed circumstances pursuant to
8 U.S.C. § 1158(a)(2)(D). Such a claim is not cognizable under habeas
Any alien who overstays his visa is removable. See
8 U.S.C. § 1227(a)(1)(B). The Attorney General may not remove an alien to a
county, however, "if the Attorney General decides that the
alien's life or freedom would be threatened in that country
because of the alien's race, religion, nationality, membership in a particular social group, or political opinion."
8 U.S.C. § 1231(b)(3)(A). To demonstrate such a threat, an alien must show
that it is more likely than not that such persecution will take
place. 8 C.F.R. § 208.16(b)(2). "Judicial review" of all legal
and factual questions arising from a removal proceeding is
available only after a "final order" has been issued.
8 U.S.C. § 1252(b)(9).
For the same reasons outlined above in the context of the
Section 1158(a)(3) discussion, Section 1252(b)(9) limits the
occasions when an alien may seek direct review, but does not
repeal the federal habeas statute. Habeas jurisdiction, however,
applies to purely legal statutory and constitutional claims,
Sol, 274 F.3d at 651, and to the application of legal
principles to undisputed facts. Wang, 320 F.3d at 143.
In his petition, Sayan raises factual arguments to support his
claim that it is more likely than not that he will be persecuted
if he is returned to Turkey based on his Kurdish ethnicity,
arguments he raised in his initial immigration proceedings. This
does not constitute a statutory or constitutional argument that
would be cognizable under habeas jurisdiction. Moreover, simply
reiterating factual arguments does not constitute a challenge to
the "application of legal principles" to undisputed facts.
Therefore, this Court does not have jurisdiction to entertain
Sayan's withholding of removal claims.*fn3 To the extent that Sayan claims that "the IJ
failed to make clear ...