JUDICIAL REVIEW - PETITION FOR REVIEW - CONSTITUTIONAL AND LEGAL ISSUES
The Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005), expands circuit court jurisdiction by providing that nothing in the Act, beyond 106 which deprives the district court of habeas jurisdiction to review final removal orders, shall be construed as precluding petition for review jurisdiction in the court of appeal of constitutional and legal issues. All of the petition for review procedural rules in INA 242, including the requirement of filing a petition for review within 30 days of the BIA decision, still apply.
JUDICIAL REVIEW - HABEAS CORPUS - DISTRICT COURT JURISDICTION CONTINUES OVER DETENTION ISSUES
The REAL ID Act eliminated habeas corpus review of final orders of removal and exclusion, but did not eliminate district court jurisdiction over detention issues. INA 242(a)(5), as amended by Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005), 106. The only available legislative history, the Conference Report, is explicit on this point.
JUDICIAL REVIEW - RELATION BETWEEN BIA AND CIRCUIT
Agency (executive) acquiescence is expected by a federal circuit court. A federal court gives Chevron deference to an agency interpretation when its in an area of agency expertise or when it relates to congressionally delegated "authority to the agency generally to make rules carrying the force of law." United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). The BIA has eschewed having an deference due it in cases of criminal statutes and in fact acquiesces to the circuit interpretation of the statute in such cases.
JUDICIAL REVIEW - ELIGIBILITY VERSUS DISCRETIONARY FINDINGS - 212(K) WAIVER
Limon v. Gonzales, __ F.3d __ (9th Cir. April 19, 2005) (court had jurisdiction to review denial of 212(k) waiver under INA 242(a)(2)(B)(ii), where BIA decision denying waiver was based on statutory ineligibility, rather than discretionary finding).
http://caselaw.lp.findlaw.com/data2/circs/9th/0371896p.pdf
JUDICIAL REVIEW - IMMIGRATION JUDGE DECISION CONFLICTED WITH DOCUMENTARY EVIDENCE
Zhang v. Gonzales, __ F.3d __ (3d Cir. April 21, 2005) (petition for review granted where Immigration Judge failed to reconcile his decision with the documentary evidence produced by noncitizen respondent).
http://caselaw.lp.findlaw.com/data2/circs/3rd/032111p.pdf
JUDICIAL REVIEW - PETITION FOR REVIEW - JURISDICTION PRECLUSION
Hor v. Gonzales, 400 F.3d 482 (7th Cir. March 2, 2005) (INA 242(f)(2), prohibiting courts from enjoining the removal of any alien unless the alien showed that the entry or execution of such order was prohibited as a matter of law, does not apply to requests for stays of removal).
JUDICIAL REVIEW - HABEAS CORPUS - NONCITIZEN IN DHS DETENTION IS "IN CUSTODY" FOR PURPOSES OF 28 U.S.C. 2241
Rosales v. BICE, __ F.3d __ (5th Cir. Aug. 16, 2005) (joining the Second, Sixth, Ninth, and Tenth Circuits to hold that a noncitizen subject to a final order of deportation is "in custody" under 2241).
BEGINNING OF DEPORTATION PROCEEDINGS
Arenas-Yepes v. Gonzales, __ F.3d __ (2d Cir. Aug. 25, 2005) (where OSC was served on noncitizen prior to IIRAIRA, but not filed with immigration court until after IIRAIRA, noncitizen is subject to law effective after IIRAIRAs date of enactment; proceedings commence with filing of OSC/NTA with immigration court, not upon service of OSC/NTA upon noncitizen).
http://caselaw.lp.findlaw.com/data2/circs/2nd/034200p.pdf
JUDICIAL REVIEW - PETITION FOR REVIEW - SCOPE OF REVIEW AFTER REAL ID ACT
Kamara v. Attorney General, ___ F.3d ___, 2005 WL 2063873 (3d Cir. August 29, 2005) (petition for review jurisdiction exists, after REAL ID Act, to review pure questions of law, and applications of law to fact where the facts are undisputed and not the subject of challenge). Thus, examining each of Kamara's present claims, we are limited to "pure questions of law," St. Cyr, 533 U.S.
JUDICIAL REVIEW - MOTION TO REOPEN - 90-DAY DEADLINE TO FILE MOTION TO REOPEN IN BIA NOT TOLLED BY ISSUANCE OF A STAY OF REMOVAL PENDING JUDICIAL REVIEW OF ASYLUM DENIAL
Chan v. Gonzales, ___ F.3d ___ (1st Cir. July 1, 2005) (issuance of a stay of removal pending judicial review of a denial of asylum does not toll the 90-day deadline established by statute for filing of a motion to the Board of Immigration Appeals to reopen its prior determination).
http://laws.lp.findlaw.com/1st/041937.html
