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Immig Judicial Review Caselaw Tooby

Immig Judicial Review Caselaw Tooby

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Published by: matt29nyc on Dec 08, 2008
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1JUDICIAL REVIEW – HABEAS CORPUS – EVEN AFTER REAL ID ACT, HABEAS CORPUS CAN BE USED TOCHALLENGE DETENTIONThe REAL ID Act of 2005 purported to eliminate habeas corpus jurisdiction over final orders of removal,deportation, and exclusion and consolidate such review in the court 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. Since the REAL ID Act’s enactment on May 11, 2005, the courts of appeals haveuniformly upheld 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, 446 n.4 (3d Cir. 2005); Ali v. Barlow, 446 F. Supp. 2d 604(E.D. Va. 2006) (assuming without addressing jurisdiction); Baez v. BCE, No. 03-30890, 2005 U.S. App.LEXIS 21503, *2 (5th Cir. Oct. 4, 2005) (unpublished); Kellici v. Gonales, 2006 U.S. App.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 Mar. 7, 2006)(unpublished); Moallin v. Cangemi, 427 F. Supp. 2d 908, 920 (D. Minn. 2006); Nadarajah v. Gonzales, 443F.3d 1069, 1075 (9th Cir. 2006); Ferry v. Gonzales, 457 F.3d 1117,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 to AILF 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 ordernoncitizen 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 arepersuaded, 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. §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) WAIVERAvendano-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 REMOVALJames v. Gonzales, ___ F.3d ___, 2006 WL 2536614 (5th Cir. Sept. 5, 2006) (while the BIA has jurisdictionto order noncitizen removed when IJ found removability, but granted relief, and the BIA then reversesthe grant of relief, the BIA does not have jurisdiction to order removal where the IJ initially foundnoncitizen was not removable, and the BIA reverses; in such case, BIA must remand to IJ), distinguishingDelgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006), following Noriega-Lopez v. Ashcroft, 335F.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 beforeformer INS in non-adjudicative hearing, where noncitizen disclosed all prior convictions, does not barDHS from initiating removal proceeding based upon the same convictions).http://caselaw.lp.findlaw.com/data2/circs/5th/0430247cv0p.pdf NOTE: The court here engaged in noanalysis of Matter of Rafipour, 16 I. & N. Dec. 470 (BIA 1978), or Matter of Rainford, 20 I. & N. Dec. 598(BIA 1992), which specifically prohibit the Government from starting removal proceedings based uponconvictions occurring prior to adjustment when the Government was aware of those convictions at thetime of adjustment and either granted a waiver (Rafipour), or no waiver was needed since theconvictions triggered deportation, but not inadmissibility (Rainford). The noncitizen in this case had 21total convictions, and had been involved in litigating pro 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.
of Rainford 
, 20 I&N
. 598 (BIA 1992);
(BIA 1978);
of V-
, 1I&N
. 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.
, 241
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.
. St. Cyr 
, 533 U.S. 289, 326 (2001);
, 224
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.
, 241
at 945;
, 319
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 inconjunction with deportation proceedings arising within the jurisdiction of the Ninth Circuit.
JUDICIAL REVIEW –HABEAS CORPUS EVEN AFTER REAL ID ACTOkeezie v. Chertoff, __ F.Supp.2d __, 2006 WL 1280962 (W.D. Tex. May 4, 2006) (noncitizen withaggravated felony convictions was denied CAT by BIA on 2/3/05; with passage of REAL ID Act, on5/11/05, the criminal alien bar to petition for review with the Fifth Circuit was removed, but the petitionwas automatically untimely; district court held that to apply REAL ID Act denial of habeas corpus jurisdiction in this case would be unconstitutional under INS v. St. Cyr, as noncitizen would have nomeans to obtain judicial review of removal order

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