Aggravated Felonies

 

(B)  Appellate Review.[237]

 

            (1)  Bar to Judicial Review of Removal Orders Based on Certain Criminal Grounds.   In 1996, Congress enacted restrictions against judicial review of final exclusion, deportation, or removal orders for noncitizens inadmissible or excludable for any criminal ground at all under INA § 212(a)(2), or deportable for any criminal ground under INA § 237(a)(2), except for domestic violence, conviction of a single CMT within five years of admission with a maximum possible punishment of at least one year, or conviction of two CMTs where one or both were punishable by a maximum term of less than one year imprisonment.[238]  To trigger this bar, the removal order must be based upon the criminal offense, but the particular ground does not matter.[239]  Therefore, if a noncitizen was found removable under the domestic violence ground for an offense that is also an aggravated felony, the jurisdictional bar applies.[240]  The preclusion of judicial review triggered by an aggravated felony conviction requires a conviction that meets the aggravated felony definition and which was entered on or after, but not before, the effective date of IIRAIRA.[241]

 

Until May 11, 2005, noncitizens subject to these restrictions were required to file habeas corpus petitions in district court in order to address most constitutional issues and questions of law.[242]  The appellate courts retained jurisdiction to determine their own jurisdiction, and thus could consider the merits inquiry of whether the noncitizen was removable for a criminal offense only because it boiled down to the same question whose decision was necessary to the jurisdictional inquiry.[243]  However, if a court found that jurisdiction was barred because the noncitizen was removable as charged, it could not go further to address statutory eligibility for relief or any other legal issue.[244] 

 

While the REAL ID Act of 2005 did not repeal the jurisdiction-stripping provision, it retroactively[245] added a provision that gives the courts of appeal jurisdiction over otherwise barred cases to review constitutional questions, and questions of law.[246]  All courts to have reviewed the issue thus far have therefore found that they are no longer barred by INA § 242(a)(2)(C) from deciding whether a noncitizen is subject to a particular criminal ground of removal.[247]  They are also no longer barred from reaching questions of statutory eligibility for relief, or other legal or constitutional questions, even if the court finds that the noncitizen is removable.[248]

 

However, the courts have also found that this exception to the jurisdictional bar does not extend any further than the jurisdiction the district courts previously had via habeas corpus.  The appellate courts still cannot review issues that, under prior law, were barred from habeas corpus review as factual determinations, or mixed questions of law and fact.

 

In Ramadan v. Gonzalez,[249] the court found that whether circumstances have changed to allow noncitizen to circumvent the one-year asylum application deadline is a “predominately factual determination,” which would have been barred from habeas review, and is therefore not open for consideration on a petition for review.  In defining “question of law” for purposes of INA § 242(a)(2)(D), the court stated:

 

Should there be any doubt about the meaning of the term “questions of law” in the REAL ID Act, the legislative history makes it abundantly clear this term refers to a narrow category of issues regarding statutory construction. For example, the Conference Committee Report states “[T]he purpose of [§ 106] is to permit judicial review over those issues that were historically reviewable on habeas-constitutional and statutory-construction questions, not discretionary or factual questions.” Conference Committee Statement, 151 Cong. Rec. H2813-01, H2873, 2005 WL 1025891 (May 3, 2005) (emphasis added).

 

Likewise, although the final bill deleted an amendment that would have qualified the term “questions of law” with the word “pure,” the Conference Report explains that “pure” was deleted from the final version of the legislation because it was viewed as superfluous. Id. According to the Committee, a “‘question of law’ is a question regarding the construction of a statute;” in contrast, factual questions would include decisions that would ordinarily be reviewed under the “substantial evidence” standard.  Ibid.

 

Prior caselaw on what issues could be reviewed on a habeas corpus petition should be consulted to determine what is now allowed under INA § 242(a)(2)(B).  For example, courts had found that habeas jurisdiction existed to review the BIA’s application of legal principles to undisputed facts.[250]

 

Noncitizens found deportable under the domestic violence ground or the other criminal grounds not barred by INA § 242(a)(2)(C), presumably can request review of (not otherwise barred) factual and mixed questions.  The limitation on judicial review does not preclude a criminal court from entertaining a collateral attack against the validity of a deportation order in the context of a prosecution for illegal re-entry.[251]

 

(2)  Discretionary Issues Bar.[252]  In 1996,[253] Congress also barred appellate review of any decision in the discretion of the Attorney General,[254] including discretionary denials of relief under INA § § 212(h), 212(i), 240A, 240B, or 245. [255]  Other discretionary decisions as to which review is barred are parole decisions[256] and other waivers, such as for alien smuggling,[257] document fraud[258] and unlawful presence.[259]  See § § 2.44-2.46, infra.  The courts are split on whether they are precluded from reviewing a determination of the existence of Good Moral Character.[260]  The only express exception to this bar is asylum.  The REAL ID Act makes unreviewable any discretionary decision of the Secretary of Homeland Security as well, regardless of whether the decision or action is made in removal proceedings.[261]

 

However, as of May 11, 2005, this jurisdictional bar does not preclude review of constitutional issues or pure questions of law.  Therefore, a claim could be brought arguing, for example, that an immigration judge’s discretionary finding violated due process.[262]  Noncitizens may also challenge any finding that they are not statutorily eligible for a form of discretionary relief.[263]  This bar also does not apply to mandatory forms of relief, such as relief under the Convention Against Torture.[264]  Finally, this bar does not preclude review of abuses of discretion.[265]

 

(3)  Level of Review (Deference).  A federal court gives Chevron deference to an agency interpretation when it is 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.”[266]  In determining whether a criminal offense triggers a ground of removal, the appellate courts will “uphold the BIA’s determination [of] what conduct [triggers the ground of removal] under the INA if it is reasonable.  However, a determination of the elements of a [state] crime . . . for purposes of [removal] pursuant to the INA is a question of law,” and is reviewed de novo.[267]  In other words, the courts review the BIA’s legal decisions de novo, but will afford Chevron deference to the BIA’s reasonable interpretations of statutes which it is charged with administering.[268] 

 

The BIA is generally given Chevron deference in defining the term “aggravated felony theft offense,” for example, but the courts are split as to whether the BIA’s determination that a violation of a particular statute constitutes a such an offense is entitled to the same deference. [269]

The BIA is not owed deference when interpreting federal statutes outside the Immigration and Nationality Act.  Therefore, the courts do not defer to the BIA’s interpretations of the “crime of violence” definition[270] applied to aggravated felony offenses[271] because that definition is a federal criminal statute.[272]  For example, no deference is due to a BIA decision regarding whether a conviction constitutes a crime of violence under 18 U.S.C. § 16, because it is a criminal statute outside the BIA’s area of expertise.[273]

 

At least one court has questioned whether deference should be shown to the BIA in making a streamlined affirmance without opinion.[274]

 

            (4)  Scope of Review (Issues and Summary Affirmances).  As part of a streamlining effort in the Board of Immigration Appeals, an increasing number of BIA decisions merely affirm, without opinion, the decision of the Immigration Judge.[275]  This practice has survived constitutional challenge.[276]  The courts are split on whether the BIA’s decision to streamline a specific case is itself subject to judicial review.[277]

 

Where there is no written opinion by the BIA, the appellate courts are forced to look to the original decision of the Immigration Judge.[278]  However, a decision to streamline “does not mean that the BIA has adopted, or entirely approves of, the IJ’s determinations; it only means that the BIA deemed any errors by the IJ to be harmless.”[279]  Thus, where there is no BIA opinion, it is often the case that the reviewing court has no way of knowing on which ground or grounds the Board affirmed, and in turn whether the reviewing court has jurisdiction to review the Board’s decision (i.e., whether the affirmance is based on statutory or discretionary grounds).  In this situation, the case may be remanded to the BIA for an opinion.[280]  Where the BIA does issue a decision, this decision will be reviewed independently from the opinion of the IJ.[281]

The Immigration Judges and the BIA are not free to ignore arguments raised by a noncitizen respondent.[282]  On the other hand, the circuit courts cannot reach issues that were not presented to the Board of Immigration Appeals,[283] and the BIA cannot reach issues not raised by the respondent before the Immigration Judge.[284]  Therefore, any possible issues should be brought before the Immigration Judge and BIA, even if those issues may not be addressed by those courts (i.e., constitutional issues).  Any issues brought before the courts of appeals must be brought in a timely manner.[285]  Deportation does not moot the appeal.[286]  If one panel of a circuit court has decided an issue, another panel of the same court cannot disagree absent exceptional circumstances[287] (although they may distinguish the case upon the facts).  To overrule a panel decision on an issue, that issue must be addressed en banc.

 

[237] For an interesting article on appellate review, see John R.B. Palmer, Stephen W. Yale-Loehr, and Elizabeth Cronin, “Why Are So Many People Challenging Board of Immigration Appeals Decisions in Federal Court? An Empirical Analysis of the Recent Surge in Petitions for Review” (Aug. 4, 2005). Cornell Law School. Cornell Law School Working Papers Series. Paper 18.
http://lsr.nellco.org/cornell/clsops/papers/18

[238] INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).

[239] Alvarez-Santos v. INS, 332 F.3d 1245, 1251 (9th Cir. 2003) (jurisdiction bar is not triggered by removability unless the immigration courts have upheld a removal order based on a crime; “a person is not ‘removable’ on a particular basis unless or until the IJ determines that he is.”).  But see Kelava v. Gonzales, 434 F.3d 1120 (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).

[240] United States v. Garcia-Echavarria, 374 F.3d 440 (6th Cir. July 1, 2004) (“Because the BIA also determined that Garcia-Echaverria was removable based upon his conviction of a controlled substance offense, the Fifth Circuit would have held that it lacked jurisdiction and dismissed the appeal, without determining whether Garcia-Echaverria’s Kentucky drug conviction constituted an ‘aggravated felony.’”); Flores-Garza v. INS, 328 F.3d 797, 802-03 (5th Cir. 2003); Bayudan v. Ashcroft, 287 F.3d 761, 763-764 (9th Cir. Apr. 15, 2002); Fernandez-Bernal v. Att’y Gen of United States, 257 F.3d 1304 (11th Cir. July 19, 2001); Briseno v. INS, 192 F.3d 1320, 1322 (9th Cir. 1999) (“Because the deportation order was necessarily based on [a crime which] qualifies as an aggravated felony, [the Ninth Circuit has] no appellate jurisdiction even though the deportation order did not characterize the crime as an aggravated felony or base deportation on that ground.”). But see Adefemi v. Ashcroft, 358 F.3d 828 (11th Cir. Jan. 29, 2004), vacating and withdrawing previous opinion, 335 F.3d 1269 (11th Cir. June 30, 2003), on reh. en banc, 386 F.3d 1022 (11th Cir. 2004) (en banc), cert. denied, 125 S.Ct. 2245 (2005); Xiong v. INS, 173 F.3d 601, 608 (7th Cir. 1999); Choeum v. INS, 129 F.3d 29, 38 (1st Cir. 1997).

[241] Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. Nov. 11, 2002) (conviction did not deprive the court of appeals of jurisdiction over a petition for review where it did not qualify as an aggravated felony under pre-IIRAIRA immigration law).

[242] See, e.g., Balogun v. United States Att’y Gen., 304 F.3d 1303 (11th Cir. Sept. 10, 2002) (“Because Balogun has committed two crimes that trigger the jurisdiction-stripping provisions of INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), we do not have statutory authority to review the final order of the BIA.”); Alvarez-Santos v. INS, 332 F.3d 1245 (9th Cir. June 20, 2003) (INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) strips the federal courts of jurisdiction to review orders of removal based on commission or admission of a crime enumerated in that section).

[243] See, e.g., INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001) (federal habeas corpus jurisdiction exists to review “a pure question of law,” such as the claim that IIRAIRA repeal of INA § 212(c), 8 U.S.C. § 1182(c) may not be applied retroactively); Bell v. Reno, 218 F.3d 86, 89-90 (2d Cir. 2000), cert. denied, 531 U.S. 1081, 121 S.Ct. 784 (2001); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997). This jurisdictional question was given de novo review.  Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757 (2001).

[244] Calcano-Martinez v. INS, 533 U.S. 348, 121 S.Ct. 2268 (2001).

[245] REAL ID Act  § 106(b), Pub.L. No. 109-13, 119 Stat. 231 (May 11, 2005).

[246] INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(C), added by § 106(a)(1) of the REAL ID Act, supra.

[247] See Rodriguez-Castro v. Gonzales, 427 F.3d 316 (5th Cir. 2005); Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005); accord Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir. 2005); Gattem v. Gonzales, 412 F.3d 758, 762 (7th Cir. 2005); Lopez v. Gonzales, 417 F.3d 934, 936 (8th Cir. 2005).

[248] Fernandez-Ruiz v. Gonzales, 410 F.3d 585 (9th Cir. June 1, 2005), vacated on grant of rehearing en banc, 431 F.3d 1212 (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. In short, Congress repealed all jurisdictional bars to our direct review of final removal orders other than those remaining in 8 U.S.C. §  1252 (in provisions other than (a)(2)(B) or (C)) following the amendment of that section by the REAL ID Act.”) (Footnote omitted).

[249] Ramadan v. Gonzalez, 427 F.3d 1218 (9th Cir. Nov. 2, 2005).  See also Kamara v. Att’y Gen. of the United States, 420 F.3d 202, 210-211 (3d Cir. Aug. 29, 2005) (“A review for ‘constitutional claims or questions of law,’ as described in [INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)] mirrors our previously enunciated standard of review over an alien’s habeas petition.”).

[250] Ogbudimka v. Ashcroft, 342 F.3d 207, 223 (3d Cir. 2003).  See also Wang v. Ashcroft, 320 F.3d 130, 143 (2d Cir. 2003) (“Wang’s argument on appeal challenging the BIA’s application of the particular factors in this case to the relevant law falls within the permissible scope of review.”); Saint Fort v, Ashcroft, 329 F.3d 191, 203 (1st Cir. 2003) (noting that the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001) “referred to the use of habeas to correct ‘errors of law, including the erroneous application . . . of statutes’” and suggesting that habeas review extends to “the erroneous application” of statutes).  Counsel must frame cases as presenting either a pure issue of law or as a case involving the erroneous application of law to undisputed facts to ensure petition for review jurisdiction after the REAL ID Act.

[251] United States v. Arce-Hernandez, 163 F.3d 559 (9th Cir. 1998), citing Chow v. INS, 113 F.3d 659 (7th Cir. 1997), distinguishing Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996).

[252] See AILF Practice Advisory: Federal Court Jurisdiction Over Discretionary Decisions After REAL ID: Mandamus, Other Affirmative Suits and Petitions for Review (Sept. 7, 2005).  http://www.ailf.org/lac/lac_pa_090705.pdf

[253] Noncitizens whose orders of deportation or exclusion became final before October 31, 1996, may seek judicial review as provided by former INA § 106.  If the deportation order became final on or after October 31, 1996, the transitional rules contained in IIRAIRA § 309(c)(4) apply.

[254] Arguably, this bar does not apply unless the INA expressly places the decision within the discretion of the Attorney General or Secretary of the Department of Homeland Security.

[255] INA § 242(a)(2)(B), 8 U.S.C. § 1252(A)(2)(B).

[256] INA § 212(d)(5), 8 U.S.C. § 1182(d)(5).

[257] INA § 237(a)(1)(E)(iii), 8 U.S.C. § 1227(a)(1)(E)(iii).

[258] INA § 237(a)(3)(C)(ii), 8 U.S.C. § 1227(a)(3)(C)(ii).

[259] INA § 212(a)(9)(B)(v), 8 U.S.C. § 1182(a)(9)(B)(v).

[260] Compare Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. Feb. 16, 2006) (court lacks jurisdiction to review IJ determination that respondent lacked good moral character required to be eligible for relief); Jean v. Gonzales, 435 F.3d 475 (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), with Cuellar Lopez v. Gonzales, 427 F.3d 492 (7th Cir. Oct. 26, 2005) (no judicial review since determination of good moral character is a discretionary factor).

[261] INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), as amended by the REAL ID Act, supra.

[262] See, e.g., Grass v. Gonzales, 418 F.3d 876 (8th Cir. Aug. 12, 2005) (no jurisdiction exists under INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D) to review Immigration Judge’s purely discretionary decision to deny continuance of a removal hearing, unless that ruling results in such procedural unfairness as to implicate due process).  Cf. Akhtar v. Gonzales, 406 F.3d 399 (6th Cir. Apr. 29, 2005) (BIA abused its discretion in denying motion to reopen where it failed properly to apply its own regulations).

[263] See, e.g., Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. May 4, 2005) (jurisdiction limitation, under INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), does not bar judicial review of nondiscretionary, or purely legal, decisions regarding eligibility for relief for cancellation of removal under INA § 240A, 8 U.S.C. § 1229b or for adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i)); Limon v. Gonzales, 404 F.3d 1143 (9th Cir. Apr. 19, 2005) (court had jurisdiction to review denial of INA § 212(k), 8 U.S.C. 1182(k) waiver under INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii), where BIA decision denying waiver was based on statutory ineligibility, rather than discretionary finding).

[264] See § 2.8, supra.

[265] 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).

[266] United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).  The Third Circuit has questioned whether a decision by an Immigration Judge, reviewed directly following a summary affirmance by the BIA, is due Chevron deference. Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 (3d Cir. 2004). 

[267] Sutherland v. Reno, 228 F.3d 171 (2d Cir. 2000), citing Michel v. INS, infra, quoting Hamdan v. INS, 98 F.3d 183, 185 (5th Cir. 1996); Michel v. INS, 206 F.3d 253, 262 (2d Cir. 2000) (opinion of Sotomayor, J.) (BIA finding that crimes involved “moral turpitude” warranted Chevron deference, since the BIA was interpreting a term contained in the Immigration and Nationality Act).  See generally Franklin v. INS, 72 F.3d 571, 577-78 (8th Cir. 1995) (Bennett, J, dissenting) (noting an apparent circuit split over the applicable standard of review for BIA findings of moral turpitude).  Compare Rodriguez-Herrera v. INS, 52 F.3d 238, 240 n.4 (9th Cir. 1995) (stating that whether a state criminal statute involves moral turpitude is a question of law to be reviewed de novo), with Cabral v. INS, 15 F.3d 193, 194-97 (1st Cir. 1994) (applying the Chevron approach to determine whether a state crime involved “moral turpitude” within the meaning of the INA).

[268] INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439 (1999);  Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778 (1984).

[269] Mei v. Ashcroft, 393 F.3d 737 (7th Cir. Dec. 29, 2004) (“The courts that have addressed the question (our court has not) agree that the Board’s interpretation of the meaning of “crime involving moral turpitude” is entitled to Chevron deference; see INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 143 L. Ed. 2d 590 (1999), where the Supreme Court gave Chevron deference to the Board’s interpretation of another term in the immigration statute, “serious nonpolitical crime.” But they are divided over whether the Board’s decision to classify a particular crime as one involving moral turpitude is entitled to such deference. Compare Knapik v. Ashcroft, 384 F.3d 84, 87 (3d Cir. 2004); Chanmouny v. Ashcroft, 376 F.3d 810, 811 (8th Cir. 2004), and Cabral v. INS, 15 F.3d 193, 195 (1st Cir. 1994), holding that it is, with Smalley v. Ashcroft, 354 F.3d 332, 336 (5th Cir. 2003), and Rodriguez-Herrera v. INS, 52 F.3d 238 n. 4 (9th Cir. 1995), holding the contrary.”).

[270] 18 U.S.C. § 16.

[271] INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F).

[272] See, e.g., Flores v. Ashcroft, 350 F.3d 666 (7th Cir. Nov. 26, 2003) (as no power to interpret 18 U.S.C. § 16, a criminal statute, has been delegated to the Attorney General, BIA cases interpreting that statute have only persuasive force).

[273] Ng v. Att’y Gen., 436 F.3d 392 (3d Cir. Feb. 7, 2006); Singh v. Gonzales, 432 F.3d 533 (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. 2002).”).

[274] Ng v. Att’y Gen., 436 F.3d 392, 395 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. Ashcroft, 387 F.3d 279, 289 n.6 [“[I]t would seem to be, at the very least, an open question as to whether an IJ’s decision affirmed through the streamlining process would be entitled to Chevron deference . . .  [D]eferring to the reasoning of an IJ from which the BIA would be free to depart in other cases would seem highly problematic.”); cf. Singh, 383 F.3d at 152 (“[T]he BIA, by affirming without opinion, gave no considered and authoritative agency-wide interpretation of the statute . . . .”)).

[275] 8 C.F.R. § 1003.1(e).

[276] See, e.g., Denko v. INS, 351 F.3d 717 (6th Cir. Dec. 8, 2003); Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir. 2003); Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir. 2003).

[277] Compare Smriko v. Ashcroft, 387 F.3d 279, 294 (3d Cir. 2004) (BIA streamlining decisions are reviewable where decision impacts or distorts judicial review), Chen v. Ashcroft, 378 F.3d 1081, 1088 (9th Cir. 2004), Haoud v. Ashcroft, 350 F.3d 201, 206 (1st Cir. 2003), and Falcon Carriche v. Ashcroft, 350 F.3d 845, 852-53 (9th Cir. 2003), with Tsegay v. Ashcroft, 386 F.3d 1347, 1356 (10th Cir. 2004) (holding that decisions under 8 C.F.R. § 1003.1(e)(4)(i) of the streamlining provisions are unreviewable), and Ngure v. Ashcroft, 367 F.3d 975, 983 (8th Cir. 2004).

[278] 8 C.F.R. § 1003.1(e)(4)(i).  See, e.g., Hamdan v. Gonzales, 425 F.3d 1051, 1057-1058 (7th Cir. Oct. 13, 2005); Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003).

[279] Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003); see 8 C.F.R. § 1003.1(e)(4)(ii).

[280] Cuellar v. Gonzales, 427 F.3d 492 (7th Cir. Oct. 26, 2005); Lanza v. Ashcroft, 389 F.3d 917, 932 (9th Cir. 2004) (BIA decision therefore vacated and remanded with instructions to clarify the grounds for its affirmance); Zhu v. Ashcroft, 382 F.3d 521, 527 (5th Cir. 2004); Haoud v. Ashcroft, 350 F.3d 201, 206-08 (1st Cir. 2003).  But see Ekasinta v. Gonzales, 415 F.3d 1188, 1193-94 (10th Cir. 2005) (looking directly to IJ decision).

[281] See, e.g., Schroeck v. Gonzales, 429 F.3d 947 (10th Cir. Nov. 16, 2005) (IJ denied INA § 212(h), 8 U.S.C. § 1182(h) waiver as a matter of discretion based upon testimony that respondent had committed rape against a 14-year-old, although no conviction resulted from this act; the BIA affirmed the decision based upon the testimony, as well as three criminal convictions; respondent argued court had jurisdiction to review under REAL ID Act because IJ had abused his discretion, thus making the issue a question of law; petition was denied because subsequent BIA decision was not a streamlined affirmance of the IJ decision without opinion, but was a de novo denial based upon the testimony as well as the convictions).

[282] Sagaydak v. Gonzales, 405 F.3d 1035 (9th Cir. May 4, 2005).

[283] See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. Dec. 7, 2005) (issue not raised is waived); Notash v. Gonzales, 427 F.3d 693 (9th Cir. Nov. 2, 2005) (court of appeals generally lacks jurisdiction over claims that the petitioner fails to present to the IJ or BIA); Pineda v. Gonzales, 427 F.3d 833 (10th Cir. Oct. 27, 2005); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (discussing the requirement of administrative exhaustion found in INA § 242(d), 8 U.S.C. § 1252(d)); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (explaining that issue not raised and argued in party’s opening brief is waived).

[284] 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).

[285] See De Araujo v. Ashcroft, 399 F.3d 84 (1st Cir. Feb. 23, 2005) (court of appeals lacked jurisdiction to review whether conviction constituted an aggravated felony because issue was not raised before court in a timely-filed petition for review; BIA decision became final when the BIA dismissed the appeal from the IJ’s removal order, under 8 C.F.R. § 241.1: “An order of removal made by the immigration judge at the conclusion of proceedings under section 240 of the Act shall become final ... [u]pon dismissal of an appeal by the Board of Immigration Appeals . . . .”); INA § 242(b)(1), 8 U.S.C. § 1252(b)(1) (petitions for review addressed to the court of appeals from BIA orders must be filed “not later than 30 days after the date of the final order of removal.”) ; Ven v. Ashcroft, 386 F.3d 357, 359 (1st Cir. 2004) (this time limit is “a strict jurisdictional requirement.”) (quoting Zhang v. INS, 348 F.3d 289, 292 (1st Cir. 2003)).

[286] Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. Oct. 18, 2004) (while deportation removes primary personal stake in case, collateral consequence that noncitizen would be permanently barred from re-entry sufficient to avoid mootness); 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, INA § 105(a), 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).

[287] Beardslee v. Brown, 393 F.3d 1032 (9th Cir. Dec. 29, 2004) (three-judge panel of federal court of appeals cannot, absent exceptional circumstances (not present here) overrule prior Ninth Circuit decision), citing Benny v. U.S. Parole Comm’ n, 295 F.3d 977, 983 (9th Cir. 2002) (“We are bound by decisions of prior panels unless an en banc decision, Supreme Court decision or subsequent legislation undermines those decisions.”); Kelava v. Gonzales, 434 F.3d 1120 (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.).