JUDICIAL REVIEW - RES JUDICATA
The concept of res judicata can be applied to dismiss an ICE appeal of an IJ's termination of proceedings. See Medina v. INS, 993 F.2d 499 (5th Cir. 1993).
JUDICIAL REVIEW - LAW OF THE CASE
De Novo Review of Prior Orders Not Permitted. The Chief IJ takes the view that the law of the case doctrine applies when a change of venue is granted and absent exceptional circumstances the receiving judge of a change of venue is "not free to hear the case de novo and ignore any orders prior to the venue change." Memo, Creppy, Chief IJ (Oct. 9, 2001), reprinted in 79 Interpreter Releases No.3 66, 84-88 (Jan. 14, 2002).
JUDICIAL REVIEW - REINSTATEMENT OF REMOVAL ORDER
Ramirez-Molina v. Ziglar, ___ F.3d ___, 2006 WL 62862 (5th Cir. Jan. 12, 2006) (to grant review of collateral attack of prior deportation order in reinstatement case, the prior deportation proceedings must have resulted in a "gross miscarriage of justice,").
JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION
Rodriguez v. Gonzales, 433 F.3d 163 (1st Cir. Dec. 29, 2005) (claim that the Immigration Judge behaved improperly is not a denial of due process claim that exempts the noncitizen from first appealing to the BIA in order to exhaust available remedies).
JUDICIAL REVIEW - LAW OF THE CIRCUIT WHERE THE CASE ARISES
Singh v. Ilchert, 63 F.3d 1501, 1508 (9th Cir. 1995) ("A federal agency is obligated to follow circuit precedent in cases originating within that circuit.") There does not appear to be any case applying this doctrine to a case involving a consular post, but inasmuch as the consular post is an office of a federal agency, the Dep't of State, and the case originated in this circuit, with an I-130 or I-485 filed there, then the Singh v. Ilchert rule should apply. Thanks to Rick Coshnear.
DETENTION - ARRIVING ALIEN - DOES REGULATION DEPRIVE IMMIGRATION JUDGE OF JURISDICTION TO DECIDE CONDITIONS OF CUSTODY FOR ARRIVING ALIENS IN REMOVAL PROCEEDINGS
The Department of Homeland Security argues that its regulation 8 C.F.R. 1003.19(h) denies to the Immigration Judge jurisdiction to redetermine conditions of custody with respect to [subparagraph (2)(B)] "[a]rriving aliens in removal proceedings, including persons paroled after arrival pursuant to section 212(d)(5) of the Act." The term "arriving alien" is not defined in the Immigration and Nationality Act [INA], but is defined by regulation at 8 C.F.R.
DETENTION - MANDATORY - HABEAS CHALLENGE TO OVERLONG DETENTION
If the government stayed the IJs bond order based on 8 CFR 1003.19(i)(2), the "automatic stay" regulation, and has not obtained an "emergency stay" from the BIA, under 8 CFR 1003.19(i)(1)), then counsel may be able to follow a successful habeas in the Ninth Circuit. See Zavala v. Ridge, 310 F.Supp.2d 1071 (N.D. Cal. March 1, 2004).
DETENTION - BOND HEARING FOR "ARRIVING ALIENS" RETURNING ON ADVANCE PAROLE
Shahwan v. Certoff, ___ F.Supp.2d ___, 2005 WL 3369991 (N.D. Cal. Dec. 12, 2005) (immigration authorities cannot deny bond hearing under 8 C.F.R. 1003.19(h)(2)(i)(B) [no bond hearing for "arriving aliens"], to noncitizen granted "advance parole" pending adjustment of status where the noncitizen was not properly notified that accepting advance parole would result in denial of bond without possibility of hearing).
DETENTION - MANDATORY DETENTION - EXPEDITED REMOVAL
Tijani v. Willis, 430 F.3d 1241 (9th Cir. Dec. 13, 2005) (two years and four months detention pursuant to 8 U.S.C. 1226(c) as applied to expedited removal is not expeditious, and is unconstitutional).
http://caselaw.lp.findlaw.com/data2/circs/9th/0455285p.pdf
DETENTION - MANDATORY DETENTION - INAPPLICABLE TO ARRIVING ALIENS
INA 236 applies only to those who have been "arrested on a warrant" issued by the AG (or DHS). See INA 236(a). Arriving aliens are only "detained" under INA 235. They are not "arrested on a warrant." Therefore, INA 236(c) does not apply to arriving aliens. Thanks to Lisa Brodyaga.
