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United States District Court, S.D. New York

December 21, 2004.

ZULFU SAYAN, Petitioner,

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 Turkey.

  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."


  1. Asylum Application

  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 jurisdiction.*fn2

  2. Removal

  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 findings about respondent [sic] specific claims and relied on conjecture and surmise to reach a determination," this claim is belied by the record of Sayan's June 19, 2003 hearing.

  3. Convention Against Torture

  Article 3 of CAT provides that "no State Party shall expel, return . . . or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture." Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, art. 3, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. Congress executed this provision of the treaty with Section 2242 (a) of the Foreign Affairs Reform and Restructuring Act of 1988 ("FARRA"), 8 U.S.C. § 1231 (Note). Department of Justice regulations promulgated pursuant to FARRA require an alien seeking withholding of removal under CAT to prove that he "is more likely than not to be tortured in the country of removal." 8 C.F.R. § 208.16(c)(4).

  District courts have jurisdiction to consider claims arising under CAT, as executed by FARRA and its accompanying regulations, in habeas proceedings. Wang, 320 F.3d at 142. The scope of habeas jurisdiction in cases presenting claims under CAT is identical to that already described. Id. at 142-43.

  In contrast to habeas proceedings, adverse credibility determinations are reviewable on direct appeal, at least where they reflect a misapplication of law to facts. Ramsameachire v. Ashcroft, 357 F. 3d 169, 178 (2d Cir. 2004). In Ramsameachire, the court held that the Department of Homeland Security "may not deny an alien's CAT claim solely on the basis of its determination that the applicant's testimony is not credible." Id. at 184. This is because an evaluation of whether an applicant would be tortured in the proposed country of removal requires considering


all evidence relevant to the possibility of future torture . . . including, but not limited to:
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the country of removal. Id. (emphasis in original).
  Sayan's habeas petition attempts to relitigate the immigration judge's determination that his testimony was not credible. Sayan does not contend that the determination was made with such an absence of evidence as to constitute a denial of due process. The immigration judge's credibility determination constitutes a purely factual finding that this Court does not have jurisdiction to consider in a habeas proceeding.*fn4

  Sayan's habeas petition also attempts to relitigate the factual arguments he made in support of his CAT claim before the immigration judge. Here, too, reiterating factual arguments does not constitute a challenge to the "application of legal principles" to undisputed facts, and this Court does not, therefore, have jurisdiction to entertain Sayan's CAT claims.*fn5

  Moreover, to the extent that Sayan could make a legal claim that the immigration judge violated the principle announced in Ramsameachire that a CAT claim may not be denied solely on the basis of an adverse credibility determination, the immigration judge did not base his decision regarding Sayan's CAT claim solely on his credibility finding.

  4. Corroborating Evidence for Credibility Determinations

  Section 208.16(b) of the Code of Federal Regulations states that the "testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration." 8 C.F.R. § 208.16(b) (emphasis supplied). Insofar as Sayan implies that the immigration judge erroneously required him to provide corroborating evidence in order to receive a favorable credibility determination, he is wrong. Section 208.16(b) permits courts to find that an applicant has carried his burden of proof based solely on credible testimony. It does not prevent immigration judges from considering whether there is any evidence corroborating an applicant's testimony when evaluating the credibility of that testimony, and it does not prevent immigration judges from requiring corroborating evidence where they determine that an applicant's testimony is not credible.


  The petition for a writ of habeas corpus is denied. Because Sayan's petition has been considered pursuant to 28 U.S.C. § 2241, the certificate of appealability requirement does not apply. See Murphy v. United States, 199 F.3d 599, 601 n. 2 (2d Cir. 1999) (noting that certificate of appealability requirement is inapplicable to petitions filed pursuant to 28 U.S.C. § 2241). The Clerk of Court shall close the case.


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