RELIEF - CANCELLATION OF REMOVAL FOR NON-LPRS - LACK OF JURISDICTION FOR PETITION FOR REVIEW OF DENIAL
Martinez-Maldonado v. Gonzales, ___ F.3d ___ (7th Cir. Feb. 10, 2006) (court of appeal lacked petition for review jurisdiction to review denial of an application for cancellation of removal for non-LPRs based on insufficient evidence of extreme hardship since it is a discretionary determination).
http://caselaw.lp.findlaw.com/data2/circs/7th/041448p.pdf
JUDICIAL REVIEW - PETITION FOR REVIEW - COURT OF APPEALS HAS PETITION FOR REVIEW JURISDICTION TO CONSIDER LEGAL QUESTION WHETHER CONVICTION CONSTITUTES AGGRAVATED FELONY FOR REMOVAL PURPOSES
Ng v. Attorney General, ___ F.3d ___ (3d Cir. Feb. 7, 2006) (court of appeals has petition for review jurisdiction, under REAL ID Act, 8 U.S.C. 1252(a)(2)(C), to consider legal question whether federal conviction of use of interstate commerce facilities in the commission of a murder-for-hire, in violation of 18 U.S.C. 1958, constitutes a crime of violence aggravated felony under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) for purposes of removal), citing Tran v. Gonzales, 414 F.3d 464, 467 (3d Cir. 2005).
JUDICIAL REVIEW - PETITION FOR REVIEW - DEFERENCE - QUESTION WHETHER COURT OF APPEALS OWES ANY DEFERENCE TO BIA STREAMLINING RUBBER STAMP APPROVAL OF IMMIGRATION JUDGE DECISION
Ng v. Attorney General, ___ F.3d ___, ___ n.4 (3d Cir. Feb. 7, 2006)(open question whether court of appeals owes Chevron deference to BIA streamlining decision merely rubber-stamping Immigration Judge's decision: "We have also previously questioned whether a BIA decision is entitled to deference when, as here, the BIA has affirmed without opinion the decision of the IJ pursuant to 8 C.F.R. 1003.1(e)(4). See Smriko v.
JUDICIAL REVIEW - BIA INTERPRETATION OF 18 U.S.C. 16 NOT ENTITLED TO DEFERENCE
Ng v. Attorney General, ___ F.3d ___ (3d Cir. Feb. 7, 2006)(BIA interpretation of crime of violence definition contained in 18 U.S.C. 16 is not entitled to deference, since it lies outside the Immigration and Nationality Act and thus outside the BIA's special area of expertise), citing Singh v. Gonzales, ___ F.3d ___ (3d Cir. Jan. 3, 2006).
http://caselaw.lp.findlaw.com/data2/circs/3rd/044672p.pdf
JUDICIAL REVIEW -- RES JUDICATA EXCEPTION
Duvall v. Attorney General, ___ F.3d ___, 2006 WL 278861 (3d Cir. Feb. 7, 2006) (order granting habeas relief from an order of removal is vacated where a litigation error by the INS, resulting in an adverse determination on the issue of alienage during deportation proceedings, did not preclude the government from thereafter seeking to remove the alien based on subsequent criminal acts).
http://caselaw.lp.findlaw.com/data2/circs/3rd/044412p.pdf
RELIEF - JUDICIAL REVIEW - NO PETITION FOR REVIEW JURISDICTION TO REVIEW DISCRETIONARY DENIAL THAT DOES NOT PRESENT QUESTIONS OF LAW
Elysee v. Gonzales, ___ F.3d ___, 2006 WL 390456 (1st Cir. Feb. 21, 2006) (court of appeals has no petition for review jurisdiction under REAL ID Act to review discretionary denial of cancellation of removal for LPRs, under 8 U.S.C. 1229b(a), where petition fails to present any constitutional or legal questions).
JUDICIAL REVIEW - GOOD MORAL CHARACTER
Jean v. Gonzales, __ F.3d __ (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has good moral character for purposes of cancellation of removal is a non-discretionary factor subject to judicial review).
JUDICIAL REVIEW - THREE JUDGE PANEL CANNOT OVERRULE CIRCUIT PRECEDENT
Kelava v. Gonzales, ___ F.3d ___ (9th Cir. Jan. 12, 2006) ("A three-judge panel cannot disregard prior circuit precedent unless it has been effectively overruled by an intervening Supreme Court decision. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.2003) (en banc). While the intervening decision need not involve an identical issue, its implications do need to be sufficiently discernable so that the two cases are "clearly irreconcilable." Id. at 900.")
JUDICIAL REVIEW
Kelava v. Gonzales, ___ F.3d ___ (9th Cir. Jan. 12, 2006) (Court had jurisdiction to review case since BIA chose not to address nonreviewable aggravated felony conviction finding of IJ in its decision, basing its decision solely on reviewable ground that the noncitizen had engaged in terrorist activity).
JUDICIAL REVIEW - PETITION FOR REVIEW - STANDARD OF REVIEW - NO DEFERENCE TO IMMIGRATION COURTS ON QUESTION WHETHER CONVICTION CONSTITUTED CRIME OF VIOLENCE UNDER CRIMINAL STATUTE
Singh v. Gonzales, ___ F.3d ___, 2005 WL 3579002 (3d Cir. Jan. 3, 2006) ("The BIA's interpretation of 18 U.S.C. 16 is not entitled to deference by this Court: as a federal criminal provision outside the INA, it lies beyond the BIA's area of special expertise. Tran v. Gonzales, 414 F.3d 464, 470 (3d Cir. 2005); Francis v. Reno, 269 F.3d 162, 168 (3d Cir. 2001). We exercise plenary review over the BIA's purely legal determination that Singh's convictions for simple assault and recklessly endangering another person were aggravated felonies. Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir.
