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Immig Judicial Review Caselaw

Immig Judicial Review Caselaw

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1 JUDICIAL REVIEW – HABEAS CORPUS – EVEN AFTER REAL ID ACT, HABEAS CORPUSCAN BE USED TO CHALLENGE DETENTION The REAL ID Act of 2005 purported to eliminate habeas corpus jurisdiction over finalorders of removal, deportation, and exclusion and consolidate such review in thecourt of appeals. The REAL ID Act, however, did not affect the ongoing availability of habeas corpus to challenge the length or conditions of immigration detention. Sincethe REAL ID Act’s enactment on May 11, 2005, the courts of appeals have uniformlyupheld the right to file a habeas corpus petition to challenge the lawfulness of detention. Hernandez v. Gonzales, 424 F.3d 42, 42 (1st Cir. 2005); DeBarreto v. INS,427 F. Supp. 2d 51, 55 (D. Conn. 2006); Bonhometre v. Gonzales, 414 F.3d 442, 446n.4 (3d Cir. 2005); Ali v. Barlow, 446 F. Supp. 2d 604 (E.D. Va. 2006) (assumingwithout addressing jurisdiction); Baez v. BCE, No. 03-30890, 2005 U.S. App. LEXIS21503, *2 (5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App.LEXIS 31388, *9 (6th Cir. Dec. 21, 2006); Adebayo v. Gonzales, 2006 U.S. Dist.LEXIS 9343, *3 (N.D. Ill. Mar. 7, 2006) (unpublished); Moallin v. Cangemi, 427 F.Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah v. Gonzales, 443 F.3d 1069, 1075(9th Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006); Madu v.Atty. Gen., 2006 U.S. App. LEXIS 29501, *10-12 (11th Cir. Dec. 1, 2006). Thanks toAILF Legal Action Center, Litigation Clearinghouse Newsletter (Vol. 2, No. 1 Jan. 12,2007
JUDICIAL REVIEW – QUESTIONS OF LAWChen v. USDOJ, __ F.3d __ (2d Cir. Dec. 7, 2006) (definition “question of law” for purpose of  judicial review is not limited to questions of statutory construction), revising prior opinion, 434F.3d 144 (2d Cir. 2006).JUDICIAL REVIEW – AFTER DEPORTATIONSpina v. Department of Homeland Sec., __ F.3d __, 2006 WL 3431918 (2d Cir. Nov. 28, 2006)(court maintains jurisdiction to review order of removal even after petition has been physicallyremoved from the United States) following, Swaby v. Ashcroft, 357 F.3d 156, 161 (2d Cir.2004).http://caselaw.lp.findlaw.com/data2/circs/2nd/043177p.pdf JUDICIAL REVIEW – BIA JURISDICTION TO ORDER REMOVALLazo v. Gonzales, __ F.3d __, 2006 WL 2528553 (2d Cir. Sept. 1, 2006) (where IJ foundremovability, but granted relief, then BIA reverses grant of relief, BIA has jurisdiction to order noncitizen deported without remand to IJ), following Solano-Chicas v. Gonzales, 440 F.3d 1050,1053-54 (8th Cir.2006); Del Pilar v. U.S. Att'y Gen., 326 F.3d 1154, 1156 (11th Cir.2003);Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006). Disagrees with Molina-Camacho v. Ashcroft, 393 F.3d 937, 940-41 (9th Cir.2004).JUDICIAL REVIEW – ISSUE EXHAUSTIONZhong v. U.S. Dept. of Justice, __ F.3d __, 2006 WL 2260480 (2d Cir. Aug. 8, 2006) (“We are persuaded, both on the language of § 1252(d)(1) and on these authorities, that the exhaustion of 'all administrative remedies available to [an] alien as of right' under 8 U.S.C. § 1252(d)(1) doesnot require - as a statutory matter - that a petitioner for relief from removal raise to the BIA eachissue presented in his or her petition for judicial review. Therefore, in the context of 8 U.S.C. §
 
2
1252(d)(1), the failure to exhaust individual issues before the BIA does not deprive this court of subject matter jurisdiction to consider those issues.”).JUDICIAL REVIEW – EXTREME HARDSHIP QUESTION UNDER INA 212(i)Zhang v. Gonzales, ___ F.3d ___, 2006 WL 1901014 (2d Cir. Jul. 12, 2006) (judicial review of whether respondent showed extreme hardship for purposes of adjustment of status under INA §212(i) is barred as a discretionary determination under 8 U.S.C. § 1252(a)(2)(B)(i)).JUDICIAL REVIEW – JURISDICTION LIMITATION – DISCRETIONARY DECISIONS – DENIAL OF 212(C) WAIVER Avendano-Espejo v. Department of Homeland Sec., __ F.3d __ (2d Cir. May 11, 2006) (courtlacks jurisdiction to review discretionary denial of INA § 212(c) relief).http://caselaw.lp.findlaw.com/data2/circs/2nd/0340921p.pdf  JUDICIAL REVIEW – PETITION FOR REVIEW – DISCRETIONARY DETERMINATIONSSUCH AS DENIAL OF 212(H) RELIEF AND ADJUSTMENT OF STATUS ARE NOTREVIEWABLE WHERE NO COLORABLE CONSTITUTIONAL CLAIMS OR QUESTIONSOF LAW ARE RAISEDBugayong v. INS, ___ F.3d ___, 2006 WL 626713 (2d Cir. Mar. 15, 2006) (per curiam) (denialof adjustment of status and INA § 212(h) waiver on discretionary basis not subject to judicialreview; REAL ID Act of 2005, § 106(a)(1)(A)(iii), Pub.L. No. 109-13, 119 Stat. 231, 310(codified at 8 U.S.C. § 1252(a)(2)(D)), does not override the jurisdiction-denying provision of 8U.S.C. § 1252(a)(2)(B)(i)).http://caselaw.lp.findlaw.com/data2/circs/9th/0256751p.pdf  JUDICIAL REVIEW – RELIEF – 212(C) RELIEF – CANCELLATION OF REMOVAL – ABANDONMENT OF LAWFUL PERMANENT RESIDENT STATUSAlaka v. Attorney General, ___ F.3d ___, 2006 WL 1994500 (3d Cir. Jul. 18, 2006) (court didnot have jurisdiction to review determination that alien had abandoned her permanent residentalien status for purposes of § 212(c) and cancellation of removal eligibility).
 JUDICIAL REVIEW – JURISDICTION OF BIA TO ORDER REMOVAL James v. Gonzales, ___ F.3d ___, 2006 WL 2536614 (5th Cir. Sept. 5, 2006) (while theBIA has jurisdiction to order noncitizen removed when IJ found removability, butgranted relief, and the BIA then reverses the grant of relief, the BIA does not have jurisdiction to order removal where the IJ initially found noncitizen was notremovable, and the BIA reverses; in such case, BIA must remand to IJ),distinguishing Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006),following Noriega-Lopez v. Ashcroft, 335 F.3d 874, 880-881 (9th Cir. 2003). JUDICIAL REVIEW – RES JUDICATAAndrade v. Gonzales, __ F.3d __ (5th Cir. Aug. 1, 2006) (affirmative grant of adjustment of status before former INS in non-adjudicative hearing, wherenoncitizen disclosed all prior convictions, does not bar DHS from initiating removalproceeding based upon the same convictions).http://caselaw.lp.findlaw.com/data2/circs/5th/0430247cv0p.pdf NOTE: The courthere engaged in no analysis of Matter of Rafipour, 16 I. & N. Dec. 470 (BIA 1978), orMatter of Rainford, 20 I. & N. Dec. 598 (BIA 1992), which specifically prohibit theGovernment from starting removal proceedings based upon convictions occurring
 
3prior to adjustment when the Government was aware of those convictions at thetime of adjustment and either granted a waiver (Rafipour), or no waiver was neededsince the convictions triggered deportation, but not inadmissibility (Rainford). Thenoncitizen in this case had 21 total convictions, and had been involved in litigatingpro se for a number of years at all court levels.
 We have stated clearly and without equivocation that an individual who may be deportable for a given offense, butwhose status is adjusted is no longer deportable for that offense.
 Matter
of Rainford 
, 20 I&N
Dec
. 598 (BIA 1992);
 Matter
of 
 Rafipour
,
16
I&N
Dec
.
470
(BIA 1978);
cf.
 Matter
of V-
, 1I&N
Dec
. 273 (BIA 1942).
Medina v. United States, 993 F.2d 499, 503
Moosa v. INS, 171 F.3d994, 1003 (5th Cir. 1999). 
We have held, however, that Congressintended to repeal § 212(c) as of April 1, 1997, and thatrelief under that section is not available to aliens whoseremoval proceedings were brought after that date.
 Lara- Ruiz
, 241
F
.
3d
at 943-44. There are two limited exceptionsto this rule, but neither helps Montenegro. First, alienswho pleaded guilty to an aggravated felony before AEDPA’senactment may apply for § 212(c) relief if they wouldhave been eligible for that relief at the time of theirpleas.
 INS
 
v
. St. Cyr 
, 533 U.S. 289, 326 (2001);
 Jideonwo
v
.
 INS
, 224
F
.
3d
692, 700 (7th Cir. 2000). But this excep-tion does not apply to aliens like Montenegro who choseto go to trial; such aliens did not abandon any rightsor admit guilt in reliance on continued eligibility for§ 212(c) relief.
 Lara-Ruiz
, 241
F
.
3d
at 945;
 Rankine
v
. Reno
, 319
F
.
3d
93, 100-02 (2d Cir. 2003) (collecting cases).Second, aliens who conceded deportability before AEDPA’senactment, with the expectation that they could seek waivers under § 212(c), remain eligible to apply
Anselmo, ID#3105
(1) The United States Court of Appeals for the Ninth Circuit has held that the Equal Access to Justice Act ("EAJA") "coversdeportation proceedings before the administrative agency as well as court proceedings reviewing deportation decisions."Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir. 1988) (en banc).(2) Although the Board of Immigration Appeals disagrees with the court's holding, the decision of the Ninth Circuit that theEAJA applies to deportation proceedings must be followed in deportation proceedings arising within the jurisdiction of theNinth Circuit.(3) The Department of Justice regulations implementing the EAJA should be applied to EAJA attorney fee requests filed in

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