11th Circuit Holds Real ID Act Does Not Alter Non-Reviewability of Immigration Judge's Untimeliness Ruling

The Eleventh Circuit, in Chacon Botero v. U.S. Atty. Gen., --- F.3d ----, 2005 WL 2456877 (11th Cir. Oct 06, 2005), has held that an Immigration Judge's determination that an asylum application was untimely (and the subsequent BIA adoption of that decision) was not reviewable notwithstanding Section 106(a)(1)(A)(iii) of the Real ID Act, which provides in pertinent part:

(D) JUDICIAL REVIEW OF CERTAIN LEGAL CLAIMS.--Nothing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

The court wrote: "The timeliness of an asylum application is not a constitutional claim or question of law covered by the Real ID Act's changes. Thus, we adhere to our existing precedent that 8 U.S.C. § 1158(a)(3) divests our Court of jurisdiction to review a decision regarding whether an alien complied with the one-year time limit or established extraordinary circumstances that would excuse his untimely filing."