JUDICIAL REVIEW - PETITION FOR REVIEW - MOTION TO REOPEN
If a petition for review is pending in the federal circuit court of appeals, it is still possible to file a motion to reopen in the Board of Immigration Appeals. There is no theoretical bar, and this gives two chances to prevail. Thanks to Lisa Brodyaga.
JUDICIAL REVIEW - PETITION FOR REVIEW - ABUSE OF DISCRETION - BIA FAILURE TO FOLLOW ITS OWN REGULATIONS
Akhtar v. Gonzales, ___ F.3d ___ (6th Cir. April 29, 2005) (BIA abused its discretion in denying motion to reopen where it failed to apply properly its own regulations).
http://caselaw.lp.findlaw.com/data2/circs/6th/034436p.pdf
JUDICIAL REVIEW - APPEAL TO BIA - BIA HAS JURISDICTION TO ALLOW LATE FILING OF APPEAL
Oh v. Gonzales, ___ F.3d ___, 2005 WL 1006018 (9th Cir. May 2, 2005) (BIA has jurisdiction to allow late filing of appeal).
JUDICIAL REVIEW - PETITION FOR REVIEW - REAL ID ACT JURISDICTION TO REVIEW REMOVAL ORDER - NORMAL 30-DAY DEADLINE FOR PETITION FOR REVIEW INAPPLICABLE TO HABEAS TRANSFERRED TO COURT OF APPEALS UNDER REAL ID ACT
United States v. Medillin-Reyes, ___ F.3d ___, 2006 WL 162997 (7th Cir. Jan. 24, 2006) (Court of Appeals did not have jurisdiction to review case of alien who had not exhausted his administrative remedies by seeking review of immigration judge's removal order before Board of Immigration Appeals (BIA), and normal rule that time limit for seeking review of order of BIA is jurisdictional did not apply to case transferred under transitional provision of Real ID Act).
JUDICIAL REVIEW - PETITION FOR REVIEW - ABUSE OF DISCRETION FOR FAILURE TO GIVE REASONS FOR BIA DENIAL OF MOTION TO REOPEN
Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir. 2005) (the BIA abuses its discretion if it fails to give specific reasons for denying a motion to reopen).
JUDICIAL REVIEW - ISSUE NOT BRIEFED IS WAIVED
Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. Dec. 7, 2005) (issue not raised is waived); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (explaining that issue not raised and argued in partys opening brief is waived).
http://caselaw.lp.findlaw.com/data2/circs/9th/0373562p.pdf
JUDICIAL REVIEW - PETITION FOR REVIEW - REAL ID ACT REPEALED ALL JURISDICTIONAL BARS TO PETITION FOR REVIEW OF FINAL REMOVAL ORDERS EXCEPT THOSE REMAINING IN 8 U.S.C. 1252
Fernandez-Ruiz v. Gonzales, 410 F.3d 585 (9th Cir. June 1, 2005), vacated on grant of rehearing en banc, ___ F.3d ___ 2005 WL 3372624 (9th Cir. Dec.13, 2005) ("By this amendment, Congress restored judicial review of constitutional claims and questions of law presented in petitions for review of final removal orders. It did so by providing that nothing in 8 U.S.C. 1252(a)(2)(B), (C), or any other provision of the INA shall preclude judicial review of such orders, unless such review is barred by some other provision of 8 U.S.C. 1252.
JUDICIAL REVIEW - PETITION FOR REVIEW - IMMIGRATION JUDGE AND BIA ARE NOT FREE TO IGNORE ARGUMENTS RAISED BY THE PETITIONER
Sagaydak v. Gonzales, 405 F.3d 1035 (9th Cir. May 4, 2005) ("IJs and the BIA are not free to ignore arguments raised by the petitioner").
JUDICIAL REVIEW - BIA AND OIL INADEQUACY
Pasha v. Gonzales, ___ F.3d ___, 2005 WL 3549217 (7th Cir. Dec. 29, 2005) (Posner criticism of BIA and OIL: "The performance of these federal agencies is too often inadequate. This case presents another depressing example.")
JUDICIAL REVIEW - POLITICAL ASYLUM - NO JUDICIAL REVIEW SINCE ONE YEAR DEADLINE EXCEPTION IS QUESTION OF FACT
Ramadan v. Gonzalez, 427 F.3d 1218 (9th Cir. Nov. 2, 2005) (no jurisdiction under REAL ID Act to review whether noncitizen falls within exception to asylum one-year deadline, since this is predominately a factual issue).
