JUDICIAL REVIEW - JURISDICTION LIMITATION -- WRONGFUL DEPORTATION DOES NOT DEPRIVE COURT OF APPEALS OF JURISDICTION
Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977) (when a noncitizen is wrongfully deported, or deportation was effectuated by procedurally defective means, 8 U.S.C. 1105(a) does not bar review of the order by the court of appeals even if the noncitizen has left the United States).
JUDICIAL REVIEW - PETITION FOR REVIEW - BIA HAS NO AUTHORITY TO ISSUE REMOVAL ORDER
Molina-Camacho v. Ashcroft, 393 F.3d 937, 941 (9th Cir. 2004) (BIA acted ultra vires in issuing a removal order instead of remanding to the immigration judge, and so there is no final order of removal providing court of appeals with jurisdiction); Salvatierra-Cermeno v. Gonzales, 404 F.3d 1119, (9th Cir. 2005).
JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS -- EVIDENCE FIRST SUBMITTED ON APPEAL CANNOT BE CONSIDERED BY BIA UNLESS AS PART OF MOTION TO REMAND
Evidence first submitted on appeal and not offered at the trial level is not considered by the BIA unless it is considered as part of a motion to remand. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Arias, 19 I&N Dec. 568 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988); Matter of Estime, 19 I&N Dec. 450 (BIA 1987).
JUDICIAL REVIEW -- MANDAMUS AND ALL WRITS ACT JURISDICTION.
The Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005),, in eliminating habeas jurisdiction in the district court, also eliminates mandamus and All Writs Act jurisdiction as well.
JUDICIAL REVIEW - PETITION FOR REVIEW -- STAY OF REMOVAL
It may be wise to ask for a new stay in the court of appeal, since the district court stay might not still be intact after enactment of the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005).
PETITION FOR REVIEW PENDING - NOW HAVE ADDITIONAL ARGUMENTS AVAILABLE - SUPPLEMENTAL BRIEFING - NEW CLAIMS
Noncitizens with pending petitions for review now have additional arguments available for which review on petition for review is now appropriate under the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005). These new claims can be raised by filing a Supplemental Brief of Petitioner.
JUDICIAL REVIEW - PETITION FOR REVIEW - JURISDICTION OVER LEGAL QUESTIONS -- MIXED QUESTIONS OF LAW AND FACT - COURT OF APPEALS HAS JURISDICTION OVER LEGAL QUESTION ONLY WHICH INCLUDES MIXED QUESTIONS
Under the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005),, the court of appeals retains jurisdiction to review the validity of removal orders where constitutional and legal claims are raised. This includes at least the legal portion of a mixed question of law and fact.
JUDICIAL REVIEW - JURISDICTION LIMITATIONS - CRIMINAL CASES
Certain cases raising questions regarding noncitizens' eligibility for relief in immigration court were formerly filed in the district court seeking review by means of habeas corpus of the denial of relief. The Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005), now requires, under INA 242(a)(2)(C), that these cases be raised before the court of appeals on petition for review.
JUDICIAL REVIEW - HABEAS - APPEALS PENDING ON EFFECTIVE DATE OF REAL ID ACT
The Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005), requires district courts to transfer habeas petitions reviewing final removal orders that were pending on May 11, 2005, the effective date of the REAL ID Act, to the court of appeals. This language specifies cases pending in the district courts, and is silent as to habeas cases that were already pending on appeal in the court of appeals on the effective date of the REAL ID Act. They might be treated as new petitions for review, or as appeals from habeas decisions.
JUDICIAL REVIEW - PETITION FOR REVIEW - HABEAS CASES TO BE TRANSFERRED TO COURT OF APPEALS
Under 106(c) of the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005),, the district court shall transfer habeas corpus cases (or those parts of such cases challenging final removal orders) to the court of appeals, which shall treat them as if they had been filed in the court of appeals, except that the 30-day statute of limitations to file the petition for review does not apply. The noncitizen has a right to receive notice and an opportunity to be heard on the questions of transfer and which issues should be transferred.
