(A)  Habeas Corpus Review.  The REAL ID Act of 2005 imposed a retroactive jurisdictional bar to review of all exclusion, deportation and removal cases in the district courts through a habeas corpus petition.[1]  Any pending habeas cases falling within this bar were to be considered as petitions for review and transferred to the appropriate court of appeals.[2]

 

The REAL ID Act also bars habeas corpus review of all discretionary decisions of the Attorney General and the Secretary of Homeland Security (regardless of whether the decision or action is made in removal proceedings), except those pertaining to asylum.[3]  Habeas corpus remains available to noncitizens seeking review of immigration detention issues.  See § 15.21, supra.  At least one court has held that habeas corpus is available where the noncitizen is challenging removal on the basis that no order of removal existed.[4]  At least one court has found that habeas corpus is not available to a noncitizen who has already been deported because s/he is no longer “in custody.”[5]

 

At least two courts have found that the REAL ID Act does not violate the suspension clause of the United States Constitution.[6]

 

[1] See INA § 242, 8 U.S.C. § 1252, as amended by the REAL ID Act  § § 101, 106, Pub.L. No. 109-13, 119 Stat. 231 (May 11, 2005). 

[2] REAL ID Act § 106(c), supra.  See, e.g., Moreno-Bravo v. Gonzales, 463 F.3d 253 (2d Cir. Sept. 12, 2006) (REAL ID Act does not require, as a matter of jurisdiction, transferring the case to the circuit where noncitizen’s immigration proceedings were held; habeas filed in New York District Court properly transferred to Second Circuit).

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

[4] Kumarasamy v. Attorney General, 453 F.3d 169 (3d Cir. Jun. 23, 2006) (appeal from denial of writ of habeas corpus challenging deportation, on the basis that no deportation order existed, cannot be converted to a petition for direct review of a removal order under the REAL ID Act; REAL ID Act only applies only to cases where noncitizen seeks review of a final order of removal).

[5] Id.

[6] Mohamed v. Gonzales, 470 F.3d 771 (8th Cir. Nov. 27, 2006); Alexandre v. U.S. Attorney Gen., 452 F.3d 1204 (11th Cir. Apr. 12, 2006) (section 106 of the REAL ID Act does not violate the Suspension Clause of the U.S. Constitution in expressly foreclosing habeas review, because the statute provides for an alternative means for review through direct appeal).

JUDICIAL REVIEW " PETITION FOR REVIEW " COURT CANNOT AFFIRM THE BIA ON A GROUND ON WHICH IT DID NOT RELY
Barragan-Lopez v. Holder, 705 F.3d 1112 (9th Cir. Jan. 29, 2013) (court of appeal cannot affirm the BIA or IJ on a ground upon which it did not rely.); quoting Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir. 2011).

STATUTORY INTERPRETATION"RULE OF LENITY
Kawashima v. Holder, 132 S.Ct. 1166 (Feb. 21, 2012) (both the majority and the dissent believe that the rule of lenity would have been applicable to require interpretation of the deportation statute in favor of the noncitizen, if the Court had found the statute to be ambiguous).

STATUTORY INTERPRETATION - GIVING MEANING TO ENTIRE STATUTE - INTENT REQUIREMENT APPLIES TO ALL ELEMENTS THAT FOLLOW IT IN THE STATUTORY DEFINITION OF AN OFFENSE
Flores-Figueroa v. United States, 129 S.Ct. 1886 (May 4, 2009) ("We should not interpret a statute in a manner that makes some of its language superfluous."), citing TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001).

JUDICIAL REVIEW - ISSUE PRESERVATION - EXHAUSTION -- FAILURE TO OBJECT IN COURT BELOW - PLAIN ERROR TEST
Puckett v. United States, 129 S.Ct. 1423 (Mar. 25, 2009)(plain-error test of Fed. R. Crim. P. 52(b), which instructs parties how to preserve claims of error, applies in the usual fashion to a forfeited claim that the government failed to meet its obligations under a plea agreement).

JUDICIAL REVIEW - PETITION FOR REVIEW - DENIAL OF MOTION TO REOPEN
Kucana v. Holder, ___ U.S. ___, 130 S.Ct. 827 (2009) (individuals who seek to reopen their deportation orders have the right to appeal to the federal courts if the immigration court refuses to hear the appeal).

JUDICIAL REVIEW - "CLEARLY ERRONEOUS STANDARD"
Kabba v. Mukasey, 530 F.3d 1239 (10th Cir. Jul. 1, 2008) ("Common sense as well as the weight of authority requires that we determine whether the BIA applied the correct legal standard, not simply whether it stated the correct legal standard.").

STATUTORY INTERPRETATION - GIVING MEANING TO EVERY WORD
Begay v. United States, ___ U.S. ___, ___, 2008 WL 1733270 (Apr. 16, 2008) ("These considerations taken together convince us that, " to give effect ... to every clause and word " of this statute, we should read the examples as limiting the crimes that clause (ii) covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves. Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (quoting United States v. Menasche, 348 U.S. 528, 538-539, 75 S.Ct. 513, 99 L.Ed. 615 (1955); some internal quotation marks omitted); see also Leocal v. Ashcroft, 543 U.S. 1, 12, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (describing the need to interpret a statute in a way that gives meaning to each word).").

STATUTORY CONSTRUCTION - LABEL OR TITLE OF STATUTE CANNOT OVERRIDE TEXT
INS v. St. Cyr, 533 U.S. 289, 309, 121 S.Ct. 2271, 2284 (2001) ("The title of a statute ... cannot limit the plain meaning of the text. For interpretive purposes, it is of use only when it sheds light on some ambiguous word or phrase.")

JUDICIAL REVIEW - STATUTORY CONSTRUCTION - AVOIDANCE OF CONSTITUTIONAL INFIRMITY
Public Citizen v. United States Department of Justice, 491 U.S. 440, 466 (1989) (canon to construe statutes to avoid constitutional doubt dictates that a court should avoid interpretations that would create doubt about the constitutional validity of a statute).

JUDICIAL REVIEW - PETITION FOR REVIEW - DENIAL OF MOTION TO REOPEN
Kucana v. Holder, ___ U.S. ___, 130 S.Ct. 827 (2009) (INA 242(a)(2)(B)(ii) prevents judicial review of issues that the INA explicitly placed within the discretion of the Attorney General; the courts are not barred from review where the Attorney General has declared by regulation that the decision is discretionary). In a unanimous decision, the Supreme Court held that the courts of appeals have jurisdiction to review a BIA decision denying a motion to reopen. The case, Kucana v. Holder, No. 08-911, 558 U.S. ___ (Jan. 20, 2010), focuses on the scope of INA 242(a)(2)(B)(ii), the bar to judicial review of discretionary decisions. In the underlying decision, the Seventh Circuit had said that this provision applies to determinations declared discretionary by the Attorney General through regulation. Thus, according to the Seventh Circuit, motions to reopen, which are discretionary by regulation, are not reviewable. The Supreme Court reversed the Seventh Circuit, finding that 242(a)(2)(B)(ii) bars review only of determinations made discretionary by statute. The Courts decision emphasizes the importance of both motions to reopen and judicial review over government decision making. Although the Seventh Circuit had been the only circuit to bar review over motions to reopen, other courts had found that they lack jurisdiction to review an IJs decision to deny a continuance, which, by regulation, is within the discretion of the Attorney General. See Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007); Onyinkwa v. Ashcroft, 376 F.3d 797 (8th Cir. 2004); Yerkovich v. Ashcroft, 381 F. 3d 990 (10th Cir. 2004). Because these continuance cases rely on the same reasoning that the Supreme Court has now rejected, they too should be reversed under Kucana. Read more about the Courts decision at http://www.legalactioncenter.org/supreme-

BIA

JUDICAL REVIEW " RES JUDICATA
Matter of Jasso Arangure, 27 I&N Dec. 178 (BIA 2017) (res judicata does not apply to removal proceedings involving the same respondent in the same immigration status, the same conviction, and the same underlying facts, as long as ICE has charged the noncitizen under a different aggravated felony category than the aggravated felony category charged in the initial proceedings; because the legal theory is different, the operative facts are also different; Congresss intent to deport aggravated felons overcomes any reasoning behind the concept of res judicata), disagreeing with Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007).

JUDICIAL REVIEW " BOARD OF IMMIGRATION APPEALS " REVIEW OF IMMIGRATION JUDGES PREDICTIVE FINDINGS OF FUTURE FACT
Matter of Z-Z-O-, 26 I&N Dec. 586 (BIA 2015) (an Immigration Judges predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review); overruling Matter of V-K-, 24 I&N Dec. 500 (BIA 2008); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).

JUDICIAL REVIEW " IMMIGRATION JUDGE HAS DISCRETION TO CONTINUE REMOVAL PROCEEDINGS TO ALLOW PENDING DIRECT APPEAL TO BE CONCLUDED
Matter of Montiel, 26 I&N Dec. 555 (BIA Apr. 17, 2015) (immigration judge has discretion to delay removal proceedings, where warranted, pending the adjudication of a direct appeal of a criminal conviction); following Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). Cal Crim Def 21.24, 20.28 Note: There is no logical reason why the immigration court does not also have discretion to postpone removal proceedings when other requests for post-conviction relief are pending.

JUDICIAL REVIEW " CHEVRON DEFERENCE TO BIA INTERPRETATION
Matter of Islam, 25 I&N Dec. 637, 639 (BIA 2011) (because the term single scheme of criminal misconduct, in INA 237(a)(2)(A)(ii), 8 U.S.C. 1227(a)(2)(A)(ii), constitutes an ambiguous phrase, federal courts owe a Chevron duty of deference to the BIA interpretation of that phrase); discussing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and Natl Cable & Telecomms. Assn v. Brand X Internet Servs., 545 U.S. 967 (2005); disapproving Nason v. INS, 394 F.2d 223 (2d Cir. 1968) (adopting a more expansive interpretation of single scheme of criminal misconduct).

JUDICIAL REVIEW - BIA LACKS AUTHORITY TO REOPEN PROCEEDINGS WHERE RESPONDENT SEEKS RELIEF OVER WHICH EOIR HAS NO JURISDICTION
Matter of Yauri, 25 I. & N. Dec. 103 (BIA Oct. 28, 2009) (BIA generally lacks authority to reopen the proceedings of aliens under final orders of exclusion, deportation, or removal who seek to pursue relief over which the Board and the Immigration Judges have no jurisdiction, especially where reopening is sought simply as a mechanism to stay the final order while the collateral matter is resolved by the agency or court having jurisdiction to do so).

JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS - BIA LACKS JURISDICTION TO REVIEW IJ'S ORDER VACATING EXPEDITED REMOVAL ORDER
Matter of Lujan-Quintana, 25 I. & N. Dec. 53 (BIA Jul. 20, 2009) (BIA lacks jurisdiction over DHS appeal of IJs decision to vacate an expedited removal order after a claimed status review hearing pursuant to 8 C.F.R. 1235.3(b)(5)(iv) (2009), at which the Immigration Judge determined the respondent to be a United States citizen). http://www.usdoj.gov/eoir/vll/intdec/vol25/3650.pdf

JUDICIAL REVIEW - BIA - BIA FACTFINDING VIOLATES EOIR REGULATION
Brezilien v. Holder, 565 F.3d 1163 (9th Cir. May 12, 2009) (BIA violated its own regulation when it engaged in de novo factfinding to deny claim for immigration relief, improperly reversing IJs factual finding without applying the clearly erroneous standard of review).

JUDICIAL REVIEW - BIA MUST BE "REASONABLE"
Matter of Martinez-Espinoza, 25 I. & N. Dec. 118, 123 (BIA 2009) ("Because the scope of section 212(h) is uncertain as it relates to drug paraphernalia offenses, we must resolve the uncertainty in a reasonable manner."), citing Neguise v. Holder, 129 S.Ct. 1159, 1163-1164 (2009).

JUDICIAL REVIEW - DEFERENCE - BRAND-X
Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. Nov. 9, 2008) (applying Brand-X, all circuit courts are required to adopt the Attorney Generals definition of crime involving moral turpitude, as well as his fact-based analytical model for determining whether a conviction should be considered a CMT).

See http://www.bibdaily.com/pdfs/Silva%20Trevino%20Amicus%20Brief.pdf, for amici brief outlining many arguments in opposition to this terrible decision. This decision abruptly changes nearly 100 years of CMT law, and should be attacked.

STATUTORY INTERPRETATION - CONGRESS IS PRESUMED TO APPROVE OF THE PRE-EXISTING STATE OF THE RELEVANT LAW AT THE TIME IT LEGISLATES, IF THE LEGISLATION DOES NOT ALTER IT
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("Furthermore, when Congress enacted section 350(a) of the IIRIRA in 1996, different variations of the "categorical" approach had been applied in immigration proceedings for more than 80 years, and we must presume that Congress was familiar with that fact when it made deportability under section 237(a)(2)(E)(i) depend on a "conviction." Lorillard v. Pons, 434 U.S. 575, 580-81 (1978). Had Congress wished to predicate deportability on an alien's actual conduct, it would have been a simple enough matter to have done so. Accordingly, we conclude that the respondent's removability as an alien convicted of a "crime of child abuse" must be established categorically.").

STATUTORY INTERPRETATION - PRESUMPTION CONGRESS EMPLOYED UNIFORM NATIONAL DEFINITION
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503,(BIA, May 20, 2008) ("Our analysis is further influenced by the presumption that the Federal immigration laws are intended to have uniform nationwide application and to implement a unitary Federal policy. Kahn v. INS, 36 F.3d 1412, 1414 (9th Cir. 1994) (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43-44 (1989)). Therefore, absent clear congressional guidance to the contrary, the meaning of the term "crime of child abuse" will be determined by reference to a "flexible, uniform standard that reflects the federal policies underlying" section 237(a)(2)(E)(i) of the Act, and not by reference to legal classifications that vary from State to State. Kahn v. INS, supra, at 1414-15; see also Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 995 (BIA 1999).").

JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS - DUTY TO DEFER TO FACT FINDINGS OF IMMIGRATION JUDGE UNLESS CLEARLY ERRONEOUS
Matter of ASB, 24 I. & N, Dec. 493 (BIA 2008) (Board of Immigration Appeals should defer to the factual findings of an Immigration Judge, unless they are clearly erroneous; BIA retains independent judgment and discretion, subject to applicable governing standards, regarding pure questions of law and the application of a particular standard of law to those facts).

JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS - STANDARD OF REVIEW - DE NOVO REVIEW OF IMMIGRATION JUDGE PREDICTION OF LIKELIHOOD OF TORTURE
Matter of VK, 24 I. & N. Dec. 500 (BIA 2008) (the BIA reviews de novo an IJs finding regarding the likelihood that a noncitizen will be tortured, since that finding relates to whether the statutory requirement for establishing eligibility for relief from removal has been met and is therefore a mixed question of law and fact).

JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS - AUTHORITY TO MAKE INDEPENDENT JUDGMENT AND EXERCISE DISCRETION REGARDING QUESTIONS OF LAW AND APPLICATION OF FACTS TO PARTICULAR LEGAL STANDARD
Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008) (BIA retains independent judgment and discretion, subject to applicable governing standards, regarding pure questions of law and the application of a particular standard of law); 8 C.F.R l003.I(d)(3)(ii).

JUDICIAL REVIEW"PETITION FOR REVIEW"BIA DOES NOT ACCORD PRECEDENTIAL VALUE TO UNPUBLISHED BIA DECISIONS
8 C.F.R. 1003.1(g) (BIA accords no precedential value to its own unreported decisions); BIA Practice Manual, located on the internet at http://www.biahelp.com/BIA_Practice_Manual.html (discourages citation to unpublished decisions (emphasis added): (ii) Board decisions (non-precedent)."Citation to non-precedent Board cases by parties not bound by the decision is discouraged. When it is necessary to refer to an unpublished decision, the reference should include the aliens full name, alien registration number, the adjudicator, and the decision date. Because the Board uses Matter of as a signal for a published case, its use with unpublished cases is discouraged. Example: Jane Smith, A12 345 678 (BIA July 1, 1999). A copy of the decision should be provided whenever possible. See Chapter 1.4(d)(ii) (Unpublished decisions). (iii) Board decisions (indexed)."Indexed decisions are unpublished, non-precedent decisions that are compiled for the use of Executive Office for Immigration Review staff. Citation to non-precedent decisions, even when indexed, is discouraged. When it is necessary to refer to an indexed decision, the decision should be treated as a non-precedent case.). Thanks to Maris J. Liss.

JUDICIAL REVIEW - DEFERENCE - ARGUMENT THAT NO CHEVRON DEFERENCE IS DUE TO BIA WHEN IT INTERPRETS THE DEFINITION OF A CRIMINAL OFFENSE, SUCH AS SEXUAL ABUSE OF A MINOR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (court did not reach the question whether deference was owed to the BIA's interpretation of a criminal offense, such as "sexual abuse of a minor."), citing Garcia-Lopez v. Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003) (according no deference where the statute in question "is not a statute which the BIA administers or has any particular expertise in interpreting, no deference is accorded to the BIA's interpretation.").

JUDICIAL REVIEW - PETITION FOR REVIEW - MAGISTRATE JUDGE WHO HEARD EARLIER HABEAS PETITION DID NOT HAVE JURISDICTION TO HEAR LATER PETITION FOR REVIEW, WITHOUT PETITIONER'S CONSENT
Lopez v. Holder, ___ F.3d ___, 2009 WL 682991 (5th Cir. Mar. 17, 2009) (magistrate judge who heard earlier habeas petition did not have jurisdiction to hear later petition for review, without petitioner's consent, since it was a different case than the earlier proceeding).

JUDICIAL REVIEW - NO CHEVRON DEFERENCE IS DUE TO THE IJ'S DECISION, NOT RELYING ON A PRECEDENTIAL RULING
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) (the decision of a single IJ, not relying on a precedential ruling, does not command Chevron deference).

JUDICIAL REVIEW - BIA APPEAL - BIA IS NOT AUTHORIZED TO FIND FACTS IN COURSE OF DECIDING AN APPEAL
Al Mutarreb v. Holder, 561 F.3d 1023 (9th Cir. Apr. 6, 2009) (BIA is not authorized to find facts in the course of deciding appeals), citing 8 C.F.R. 1003.1(d)(3)(i), (iv); Matter of Adamiak, 23 I. & N. Dec. 878, 880 (BIA 2006).

JUDICIAL REVIEW - PETITION FOR REVIEW - STAY OF REMOVAL - TRADITIONAL STANDARD Nken v. Holder, 129 S.Ct. 1749 (Apr. 22, 2009) (reversing court of appeals' denial of motion to stay removal pending judicial review of a BIA ruling, where traditional stay factors, rather than the demanding standard of 8 U.S.C. 1252(f)(2), govern a Court of Appeals' authority to stay an alien's removal pending judicial review).

JUDICIAL REVIEW - STATUTORY INTERPRETATION -- CHEVRON DEFERENCE - LACK OF AMBIGUITY PREVENTS NEED TO REACH SECOND STEP OF CHEVRON ANALYSIS
Taing v. Napolitano, 567 F.3d 19 (1st Cir. May 20, 2009) (since the statute is unambiguous, the court need not reach the second step of the Chevron analysis).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION OF ADMINISTRATIVE REMEDIES REQUIRED BY PRESENTATION OF ISSUE TO BIA IN BRIEF
Lin v. Holder, 565 F.3d 971 (6th Cir. May 14, 2009) ("these claims have not been administratively exhausted because Lin did not present them in his brief for his BIA appeal. This Court does not have jurisdiction to consider claims that have not been administratively exhausted."), citing 8 U.S.C. 1252(d)(1); Ramani v. Ashcroft, 378 F.3d 554, 559-60 (6th Cir. 2004) (holding "only claims properly presented to the BIA and considered on their merits can be reviewed by this court in an immigration appeal").

JUDICIAL REVIEW - PETITION FOR REVIEW - DENIAL OF MOTION TO REOPEN
Kucana v. Holder, ___ U.S. ___, 130 S.Ct. 827 (2009) (individuals who seek to reopen their deportation orders have the right to appeal to the federal courts if the immigration court refuses to hear the appeal).

JUDICIAL REVIEW - HABEAS - NO JURISDICTION VIA HABEAS CORPUS TO CHALLENGE DENIAL OF ADJUSTMENT - REAL ID ACT
Morales-Izquierdo v. DHS, 600 F.3d 1076 (9th Cir. Apr. 2, 2010) (where a noncitizen is subject to reinstatement of a prior removal order, the REAL ID Act requires challenge of the denial of adjustment-of-status to be part of a petition for review of the reinstatement order, rather than being brought through habeas corpus).

JUDICIAL REVIEW - AUTHORITY NOT BINDING CONCERNING ARGUMENT NOT RAISED
A court is not considered to have ruled on an argument that was not presented. See, e.g., RAV v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ("It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).)

First Circuit

JUDICIAL REVIEW " STATUTORY CONSTRUCTION " AVOIDANCE OF CONSTITUTIONAL DOUBT
Castaneda v. Souza, ___ F.3d ___, ___, 2014 WL 4976140 (1st Cir. Oct. 30, 2014) (Avoidance of constitutional doubt is a cardinal principle of statutory interpretation. Zadvydas, 533U.S. at 689 (quoting Crowell v. Benson, 285 U.S. 22, 62, (1932) (internal quotation marks omitted)). As the Supreme Court has explained countless times, when an Act of Congress raises a serious doubt as to its constitutionality, this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. Id. (quoting Crowell, 285U.S. at 62 (internal quotation marks omitted)). This obligation requires us to attempt to find a constitutional purpose as well as a constitutional construction of the words of the statute. SKF USA, Inc. v. U.S. Customs and Border Protection, 556 F.3d 1337, 1353 (Fed. Cir. 2009). We follow that guidance here.).

JUDICIAL REVIEW " CONSTRUCTION OF DECISION AS LIMITED BY NECESSARY CONCURRENCE
Castaneda v. Souza, ___ F.3d ___, ___, 2014 WL 4976140 (1st Cir. Oct. 30, 2014) (Since Justice Kennedys vote was necessary to the majority, his limiting rationale is binding on us.4 fn4 See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 594-95 (1st Cir. 1980) (construing the Supreme Courts 5-4 decision in Branzburg v. Hayes, 408 U.S. 665 (1972), to be limited by the concurring opinion of Justice Powell); accord, e.g., United States v. Smith, 135 F.3d 963, 968-69 (5th Cir. 1998); see also United States v. District of Columbia, 654 F.2d 802, 806-07 (D.C. Cir. 1981) (giving similar treatment to National League of Cities v. Usery, 426 U.S. 833 (1976), in light of Justice Blackmuns necessary concurrence).

JUDICIAL REVIEW " PETITION FOR REVIEW " BIA INADEQUATE CONSIDERATION OF ISSUE PRESENTED
Mejia v. Holder, ___ F.3d ___, 2014 WL 2872220 (1st Cir. Jun. 25, 2014) (the BIA's one-sentence conclusion, that alien's Massachusetts shoplifting conviction qualified as a crime involving moral turpitude, followed by cite to earlier BIA opinion finding that a violation of Pennsylvania's retail theft statute was a crime involving moral turpitude for immigration law purposes, was wholly insufficient and necessitated grant of petition for review, since it did not undertake any analysis of Massachusetts law or a categorical approach, because the BIA did not adequately consider the statutory issue presented, in that it failed to provide a comprehensible analysis to support its conclusion.).

JUDICIAL REVIEW " JURISDICTION " DISCRETIONARY DENIAL OF RELIEF
Lopez v. Holder, ___ F.3d ___, 2014 WL 185541 (1st Cir. Jan. 17, 2014) (affirming BIAs order affirming removal order, because IJ exercised discretion in denying waivers based on extreme hardship, 8 U.S.C. 1186a(c)(4)(A), and good faith, id. 1886a(c)(4)(B), of the joint-filing requirement for removal of conditions on permanent residency, id. 1186a(c)(1)(A), so the noncitizen raised no colorable legal or constitutional claims and review is barred, so the petition is dismissed for want of jurisdiction under 8 U.S.C. 1252(a)(2)(B)).

JUDICIAL REVIEW " PETITION FOR REVIEW " REVIEW LIMITED TO THE REASONING ARTICULATED BELOW
Patel v. Holder, 707 F.3d 77, ___ n.1 (1st Cir. Feb. 1, 2013) (court declined to consider government argument not the basis of the BIA decision: In this case, however, the BIA treated the permanent-or-temporary-intent question as dispositive, and our review is limited to the reasoning articulated below. Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st Cir.2004); see Wala v. Mukasey, 511 F.3d 102, 106 (2d Cir.2007) (bypassing this issue where the BIA treated the [permanent intent] inquiry as determinative).).

JUDICIAL REVIEW " PETITION FOR REVIEW " REVIEW LIMITED TO THE REASONING ARTICULATED BELOW
Patel v. Holder, 707 F.3d 77, ___ n.1 (1st Cir. Feb. 1, 2013) (court declined to consider government argument not the basis of the BIA decision: In this case, however, the BIA treated the permanent-or-temporary-intent question as dispositive, and our review is limited to the reasoning articulated below. Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st Cir.2004); see Wala v. Mukasey, 511 F.3d 102, 106 (2d Cir.2007) (bypassing this issue where the BIA treated the [permanent intent] inquiry as determinative).).

JUDICIAL REVIEW " PETITION FOR REVIEW " REMAND WHERE NEITHER IJ NOR BIA PRESENTED A REASONED ANALYSIS OF THE EVIDENCE AS A WHOLE
Khattak v. Holder, 704 F.3d 197 (1st Cir. Jan. 17, 2013) (granting petition for review of Board of Immigration Appeals denial of petitioners application for asylum, where neither the IJ or the BIA has presented a reasoned analysis of the evidence as a whole).

JUDICIAL REVIEW " PETITION FOR REVIEW " JUDICIAL REVIEW RESTRICTED TO THE GROUND OF THE BIA HOLDING
Vivieros v. Holder, ___ F.3d ___ (1st Cir. Jun. 25, 2012) (court of appeals review of BIA decision is restricted to the ground of the agency's holding); following El Moraghy v. Ashcroft, 331 F.3d 195, 203 (1st Cir. 2003).

JUDICIAL REVIEW " PETITION FOR REVIEW " BIA MUST ADEQUATELY ADDRESS ALL ISSUES RAISED
Aponte v. Holder, 683 F.3d 6 (1st Cir. Jun. 21, 2012) (granting petition for review on ground BIA failed adequately to address certain issues raised by petitioner).

JUDICIAL REVIEW " BOARD OF IMMIGRATION APPEALS " UNLAWFUL REMOVAL DOES NOT DEPRIVE BIA OF JURISDICTION OVER APPEAL FROM REMOVAL ORDER
Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012) (unlawful removal of an alien during the pendency of a direct appeal from a deportation or removal order in violation of 8 C.F.R. 1003.6(a) does not deprive the Board of Immigration Appeals of jurisdiction to review the appeal).

JUDICIAL REVIEW " PETITION FOR REVIEW " SUA SPONTE MOTION TO REOPEN
Matos-Santana v. Holder, 660 F.3d 91, 2011 WL 5176795 (1st Cir. Nov. 2, 2011) (Court of Appeals lacked jurisdiction to review claim that BIA abused its discretion in not sua sponte entertaining his untimely motion to reopen).

JUDICIAL REVIEW - MOTION TO REOPEN
Peralta v. Holder, 567 F.3d 31 (1st Cir. May 28, 2009) (court of appeals lacks jurisdiction to review a denial of a sua sponte motion to reopen).

JUDICIAL REVIEW - STATUTORY INTERPRETATION -- CHEVRON DEFERENCE - LACK OF AMBIGUITY PREVENTS NEED TO REACH SECOND STEP OF CHEVRON ANALYSIS
Taing v. Napolitano, 567 F.3d 19 (1st Cir. May 20, 2009) (since the statute is unambiguous, the court need not reach the second step of the Chevron analysis).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION REQUIREMENT - ARGUMENT NOT PRESENTED TO THE AGENCY MAY NOT BE RAISED ON PETITION FOR REVIEW
Mejia-Rodriguez v. Holder, ___ F.3d ___,2009 WL 456386 (1st Cir. Feb. 25, 2009) ("This newfound claim is based on a factual assertion that was not presented to the agency. Mejia-Rodriguez has thus failed to exhaust his administrative remedies. See Silva v. Gonzales, 455 F.3d 26, 28-29 (1st Cir.2006). And had any discretionary decision been made on the facts of his case, this would not be subject to judicial review, given the restraints of 8 U.S.C. 1252(a)(2). See Conteh, 461 F.3d at 63-64.").

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION BEFORE BIA IN MOTION FOR RECONSIDERATION
Liu v. Mukasey, 553 F.3d 37 (1st Cir. Jan. 12, 2009) (BIA denial of motion for reconsideration proper where moving party failed to specify a particular error of law or fact in that earlier decision).

JUDICIAL REVIEW - FALSE CLAIM TO CITIZENSHIP - MOOTNESS
Valenzuela-Solari v. Mukasey, 551 F.3d 53 (1st Cir. Dec. 22, 2008) (issue of whether noncitizen had made false claim of citizenship was not rendered moot due to the fact that noncitizen had conceded removability on other grounds; the fact that a false claim of citizenship creates a permanent bar to future admission to the U.S. [unlike the conceded ground of removal], makes claim reviewable).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION REQUIREMENT - FAILURE SUFFICIENTLY TO RAISE ISSUE BEFORE BIA
Piedrahita v. Mukasey, 524 F.3d 142 (1st Cir. Apr. 28, 2008) (petition for review denied where petitioner failed to raise relevant issues in his opening brief, and addressed a dispositive issue in an incoherent and perfunctory manner).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION REQUIREMENT - FAILURE SUFFICIENTLY TO RAISE ISSUE BEFORE BIA
Piedrahita v. Mukasey, 524 F.3d 142 (1st Cir. Apr. 28, 2008) (petition for review denied where petitioner failed to raise relevant issues in his opening brief, and addressed a dispositive issue in an incoherent and perfunctory manner).

Second Circuit

JUDICIAL REVIEW " RETROACTIVE APPLICATION OF BIA DECISIONS
Lugo v. Holder, 783 F.3d 119 (2nd Cir. Apr. 9, 2015) (Whether an agency decision may permissibly be applied retroactively is determined by looking at five factors: (1) whether the case is one of first impression, (2) whether the new rule presents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order places on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard. N.L.R.B. v. Oakes Mach. Corp., 897 F.2d 84, 90 (2d Cir. 1990); accord, e.g., Velasquez"Garcia v. Holder, 760 F.3d 571, 581 (7th Cir. 2014); Miguel"Miguel v. Gonzales, 500 F.3d 941, 951 (9th Cir. 2007).)

JUDICIAL REVIEW " PETITION FOR REVIEW " EXHAUSTION
Prabhudial v. Holder, ___ F.3d ___, 2015 WL 1061798 (2d Cir. Mar. 12, 2015) (petition for review denied, where petitioner failed to argue before the IJ that his conviction did not qualify as an aggravated felony controlled substances offense applying the categorical approach before the IJ, and the BIA may apply the doctrine of waiver to matters not raised before an IJ). NOTE: It appears that the noncitizen completely failed to argue whether his conviction would trigger removal under the categorical analysis before the IJ, and instead sought time for a pending state case to be decided. The categorical argument was only raised on appeal to the BIA.

JUDICIAL REVIEW " DEFERENCE " BRAND X " BIA CAN OVERRULE SCOTUS
Florez v. Holder, 779 F.3d 207 (2d Cir. Mar. 4, 2015) (Ibarra also violates the rule that deference is owed to reasonable agency interpretations even if a court has previously construed that very statutory provision differently. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982"83, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). To illustrate: even if the U.S. Supreme Court had previously interpreted this very statutory provision to apply only to child abuse statutes for which harm was an element, that (hypothetical) precedent would not have foreclosed the BIA's interpretation here (unless, of course, the Court read the statute to be unambiguous). See id.).

JUDICIAL REVIEW " PETITION FOR REVIEW " MOTION TO CONTINUE
Flores v. Holder, ___ F.3d ___, 2015 WL 795212 (2d Cir. Feb. 26, 2015) (BIA abused discretion in denying motion to continue by failing to consider factors articulated in Matter of Hashmi: neither the IJ nor the BIA assessed whether Flores's wife's I"130 Petition was prima facie approvable, but instead considered the petition had actually been approved); citing Matter of Hashmi, 24 I. & N. Dec. 785, 790 (BIA 2009) (the following factors must be considered in determining whether good cause exists to continue proceedings to await CIS's adjudication of a pending family-based visa petition: (1) the [government's] response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the [movant]'s statutory eligibility for adjustment of status; (4) whether the ... application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.); see Rajah v. Mukasey, 544 F.3d 449, 453 (2d Cir.2008) (observing that agency abuses its discretion in denying motion to continue where its decision rests on an error of law (internal quotation marks omitted)).

JUDICIAL REVIEW " PETITION FOR REVIEW " FAILURE ADEQUATELY TO EXPLAIN REASONING OR TO CONSIDER RECORD EVIDENCE
Pan v. Holder, ___ F.3d ___, 2015 WL 304199 (2d Cir. Jan. 26, 2015) (granting petition for review of Immigration Judges denial of applications for asylum, withholding of removal, and relief pursuant to the Convention Against Torture, where the IJ and BIA failed to adequately explain why the significant violence petitioner suffered was insufficiently egregious to constitute persecution; and failed to consider record evidence, which tended to prove that the Kyrgyz police and unwilling or unable to protect petitioner from private persecutors).

JUDICIAL REVIEW " PETITION FOR REVIEW " MOOTNESS
Fuller v. BIA, ___ F.3d ___, ___, 2012 WL 4875696 (2d Cir. Oct. 16, 2012) (petition for review is moot because the court can provide no effective relief from a removal order that has been vacated and replaced by an order that relies on materially different reasoning).

JUDICIAL REVIEW " FUGITIVE DISENTITLEMENT DOCTRINE
Wu v. Holder, 646 F.3d 133 (2nd Cir. Jul. 19, 2011) (fugitive disentitlement doctrine applies to noncitizens who fail to reply to bag & baggage letters and fail to submit themselves for deportation; fugitive disentitlement does not apply where, as in this case, the noncitizen's location is well known and it is clear that the noncitizen is making no attempt to flee the government or the jurisdiction).

JUDICIAL REVIEW " JURISDICTIONAL BAR " BAR PRECLUDES MANDAMUS TO COMPEL ADJUDICATION OF WAIVER APPLICATION
Delgado v. Quarantillo, 643 F.3d 52, 2011 WL 2418741 (2d Cir. Jun. 17, 2011) (a district court lacks jurisdiction over an indirect challenge to an order of removal in the form of a mandamus action to compel USCIS to make a determination on the merits of respondent's I"212 application, because the indirect challenge to the reinstated order of removal is barred by 8 U.S.C. 1252(a)(5) which precludes challenges to final removal orders).

JUDICIAL REVIEW " PETITION FOR REVIEW " TIMELINESS
Lewis v. Holder, 625 F.3d 65 (2d Cir. Nov. 8, 2010) (BIA's reissuance of its decision triggers a new thirty-day period within which to file petition for review).

JUDICIAL REVIEW " PETITION FOR REVIEW " NO REVIEW OF INA 237(a)(1)(H) WAIVER DENIAL
Ahmed v. Holder, 624 F.3d 150 (2d Cir. Oct. 27, 2010) (court of appeals lacked jurisdiction to review the BIA's discretionary denial of a waiver of inadmissibity under INA 237(a)(1)(H), 8 U.S.C. 1227(a)(1)(H)).

JUDICIAL REVIEW " PETITION FOR REVIEW " TIMELINESS
Luna v. Holder, ___ F.3d ___, 2010 WL 3447886 (2d Cir. Sept. 3, 2010) (transferring petitions for review of final removal orders to district court for further proceedings where REAL ID Act did not divest district courts of habeas jurisdiction to consider petitioners' claims that they were prevented by circumstances beyond their control from filing timely petitions for review).

JUDICIAL REVIEW - PETITION FOR REVIEW - IMPERMISSIBLE BIA FACTFINDING
Padmore v. Holder, ___ F.3d ___, 2010 WL 2365863 (2d Cir. Jun. 15, 2010) (per curiam) (petition for review of removal order granted since BIA impermissibly engaged in factfinding, and impermissibly relied on unproven and disputed allegations as a basis for its decision).

JUDICIAL REVIEW - GOOD MORAL CHARACTER
Sumbundu v. Holder, 602 F.3d 47 (2d Cir. Apr. 7, 2010) (court has jurisdiction to review the DHS moral character determinations made pursuant to the catchall provision of 8 U.S.C. 1101(f), at least when the petitioners raise "constitutional claims or questions of law," 8 U.S.C. 1252(a)(2)(d)).

STATUTORY INTERPRETATION - DUE PROCESS - VAGUENESS - OUTSIDE FIRST AMENDMENT CONTEXT, VAGUENESS IS ASSESSED ONLY AS APPLIED
Ljutica v. Holder, 588 F.3d 119 (2d Cir. Dec. 3, 2009) ("Outside the First Amendment context, we assess statutes for vagueness only as applied. United States v. Rybicki, 354 F.3d 124, 129-30 (2d Cir. 2003) (en banc). Accordingly, we must determine whether an ordinary person would understand that a conviction for an attempt to execute a scheme to defraud a bank under 18 U.S.C. 1344 would qualify under Subsection (U) as an "attempt" and whether Subsection (U) could be applied consistently to such convictions by CIS.").

JUDICIAL REVIEW - RES JUDICATA
Ljutica v. Holder, 588 F.3d 119 (2d Cir. Dec. 3, 2009) (res judicata did not foreclose Government argument that noncitizen was ineligible for naturalization as an aggravated felon where the Government could not have brought the argument during immigration proceedings because the offense of conviction was not an aggravated felony at the time of the original removal proceedings).

JUDICIAL REVIEW - PETITION FOR REVIEW - COLLATERAL ATTACK OF CONVICTION IN IMMIGRATON PROCEEDINGS
Lanferman v. BIA, 576 F.3d 84 (2d Cir. Aug. 5, 2009) (court of appeals will not consider on petition for review of removal order whether guilty plea was obtained in violation of constitutional rights: "On appeal, Lanferman first argues that the agency erred in relying on his guilty plea, because that plea was obtained in violation of certain constitutional rights. This 'contention is nothing more than a collateral attack on his state conviction. Collateral attacks are not available in a ... petition challenging the BIA's removal decision.'"); citing Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004); see also Vargas v. Dep't of Homeland Sec., 451 F.3d 1105, 1107 (10th Cir. 2006); Taylor v. United States, 396 F.3d 1322, 1330 (11th Cir. 2005); Mendes-Alcaraz v. Gonzales, 464 F.3d 842, 844 n. 14 (9th Cir. 2006); Drakes v. INS, 330 F.3d 600, 606 (3d Cir.2003); Mansoori v. INS, 32 F.3d 1020, 1024 (7th Cir. 1994).

POST CONVICTION RELIEF- GROUNDS- RIGHT TO COUNSEL- DENIAL OF COUNSEL- JUDICIAL REVIEW - PETITION FOR REVIEW - COLLATERAL ATTACK OF CONVICTION IN IMMIGRATION PROCEEDINGS
Lanferman v. BIA, 576 F.3d 84, 88, n.1 (2d Cir. Aug. 5, 2009) ("Collateral attack [on conviction in immigration proceedings] may be permissible in rare circumstances such as where there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), see, e.g., Drakes, 330 F.3d at 605, but no such error is alleged here.").

JUDICIAL REVIEW - NON-LPR CANCELLATION
Mendez v. Holder, 566 F.3d 316 (2d Cir. May 8, 2009) ("Under our decision in Xiao Ji Chen v. U.S. Dept of Justice, 471 F.3d 315, 329 (2d Cir. 2006), that the REAL ID Act restores our jurisdiction to review "constitutional claims or questions of law," 8 U.S.C. 1252(a)(2)(D), and our decision in Barco-Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2008), that we can review the determination of whether "exceptional and extremely unusual hardship" is present in those rare cases where a BIA decision rests on fact-finding "which is flawed by an error of law," id. at 40")

JUDICIAL REVIEW - PETITION FOR REVIEW - BIA MUST GIVE SUFFICIENT EXPLANATION FOR ITS DECISION
Mendis v. Filip, 554 F.3d 335 (2d Cir. Jan. 30, 2009) (BIA decision did not sufficiently explain why it designated the U.K. as the a country of removal, where petitioner was in the U.K. for only a few hours during a stopover en route to the U.S. and had no legal right to live or travel there).

JUDICIAL REVIEW - EXHAUSTION - CONSTITUTIONAL CLAIMS
Severino v. Mukasey, 549 F.3d 79 (2d Cir. Dec. 3, 2008) ("Congress has limited this court's power to review a final order of removal to those removal orders for which the alien has exhausted all administrative remedies available to the alien as of right. Karaj v. Gonzales, 462 F.3d 113, 117 (2d Cir.2006) ( citing 8 U.S.C. 1252(d)(1)). Because the bar is jurisdictional, the Court may consider only those issues that the petitioner has presented in substance to the BIA. Id. And although an alien need not exhaust issues-including constitutional claims-over which the BIA lacks jurisdiction, an alien must raise procedural defects that the BIA has the power to correct. United States v. Gonzalez-Roque, 301 F.3d 39, 47-48 (2d Cir.2002) ("While constitutional claims lie outside the BIA's jurisdiction, it clearly can address procedural defects in deportation proceedings.").").

DEFERENCE - CHEVRON DEFERENCE ACCORDED TO REASONABLE BIA INTERPRETATION OF IMMIGRATION STATUTE, BUT DE NOVO REVIEW OF BIA INTERPRETATION OF STATE OR FEDERAL CRIMINAL LAW
Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. Sept. 25, 2008) ("When the BIA has adopted the IJ's reasoning and offered additional commentary, we review the decision of the IJ as supplemented by the BIA. Wala, 511 F.3d at 105. Additionally, when our jurisdiction depends on the definition of a phrase used in the INA, and "when the intent of Congress is unclear and the agency's interpretation is reasonable," we accord the BIA's determination the deference mandated by the Supreme Court's decision in Chevron. Mugalli, 258 F.3d at 55 (internal quotation marks omitted). But when, in the course of interpreting the INA, the BIA has interpreted state or federal criminal laws, we review its decision de novo. Id.").

JUDICIAL REVIEW - LIMITATION ON DISCRETIONARY BAR
Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. Jul. 9, 2008) ("when a statute authorizes the Attorney General to make a determination, but lacks additional language specifically rendering that determination to be within his discretion . . . the decision is not one that is specified . . . to be in the discretion of the Attorney General for purposes of [8 U.S.C. ] 1252(a)(2)(B)(ii).")

JUDICIAL REVIEW - PETITION FOR REVIEW - DUE PROCESS - RIGHT TO IMPARTIAL IMMIGRATION JUDGE
Ali v. Mukasey, 529 F.3d 478 (2d Cir. Jun.18, 2008) (IJ's seeming bias against the petitioner and reliance on unfounded assumptions about homosexuals deprived the petitioner of his right to a fair hearing).

JUDICIAL REVIEW - WAIVER OF APPEAL
Ali v. Mukasey, 529 F.3d 478 (2d Cir. June 18, 2008) (counsels acknowledgement on the record that IJs decision was "final" signified that counsel had waived appeal to the BIA).

JUDICIAL REVIEW - PETITION FOR REVIEW - RES JUDICATA DOES NOT BAR DHS FROM RELITIGATING NTA ALLEGING REMOVAL GROUNDS
Channer v. DHS Secretary, 527 F.3d 275 (2d Cir. May 30, 2008) (res judicata does not bar DHS from relitigating removal based on a claim which could have been raised in his previous removal proceeding where second removal proceeding did not involve the same claim or nucleus of operative fact as the first).

JUDICIAL REVIEW - PETITION FOR REVIEW - CANCELLATION OF REMOVAL - HARDSHIP QUESTION IS DISCRETIONARY, PRECLUDING PETITION FOR REVIEW
Mendez v. Mukasey, 525 F.3d 216 (2d Cir. May 12, 2008) (petition for review of a denial of cancellation of removal, presenting question whether petitioner demonstrated exceptional and extremely unusual hardship to his US citizen children, is dismissed where hardship determination is discretionary).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION - REQUIREMENT WAIVED WHERE BIA ADDRESSES CLAIM ON MERITS
Xian Tuan Ye v. Dept of Homeland Sec., 446 F.3d 289, 296-97 (2d Cir. 2006) ("Ye challenges the IJs denial of CAT relief, having failed to do so before the BIA. While ordinarily, under 8 U.S.C. 1252(d)(1), an alien may not raise before this Court an issue or category of relief not raised before the BIA, see Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005); Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004), the BIA addressed Yes CAT claim despite this oversight. Accordingly, Yes failure to raise the CAT claim himself is excused, and we have jurisdiction to address it now. See Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1994).").

CONTROLLED SUBSTANCES " FACILITATION
United States v. Liranzo, 944 F.2d 73 (2d Cir. 1991) (New York conviction of criminal facilitation does not constitute a controlled substance conviction, for criminal sentencing purposes, because it is different from aiding and abetting and too attenuated from the substantive offense).

STATUTORY INTERPRETATION - COMPLEXITY OF IMMIGRATION LAWS
Lok v. INS, 548 F.2d 37, 38 (2d Cir. 1977) ("We have had occasion to note the striking resemblance between some of the laws we are called upon to interpret and King Minos's labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress's ingenuity in passing statutes certain to accelerate the aging process of judges. In this instance, Congress, pursuant to its virtually unfettered power to exclude or deport natives of other countries, and apparently confident of the aphorism that human skill, properly applied, can resolve any enigma that human inventiveness can create, has enacted a baffling skein of provisions for the I.N.S. and courts to disentangle. The fate of the alien faced with imminent deportation often hinges upon narrow issues of statutory interpretation. The instant petition, which requires us to determine whether the petitioner is ineligible for the discretionary relief afforded by Section 212(c) of the Act, 8 U.S.C. s 1182(c), because he has not accumulated seven years of residence in this country since his admission to permanent resident alien status, is no exception. Emboldened by Thesean courage and fortified by a close examination of the statutory language, we believe that the Board of Immigration appeals erred in denying the petitioner relief on the ground that it did, and remand for consideration on a proper basis."); Baltazar-Alcazar, 386 F.3d 940, at 948 (9th Cir. 2004) (internal quotation marks and citation omitted) ("[W]e have warned that because "immigration laws have been termed second only to the Internal Revenue Code in complexity ... [a] lawyer is often the only person who could thread the labyrinth."); Hernandez-Gil v. Gonzales 476 F.3d 803, 809 (9th Cir 2007) ("The proceedings of the Immigration and Naturalization Service are notorious for delay, and the opinions rendered by its judicial officers, including the members of the Board of Immigration Appeals, often flunk minimum standards of adjudicative rationality. (citations omitted) The lodgment of this troubled Service in the Department of Justice of a nation that was built by immigrants and continues to be enriched by a flow of immigration is an irony that should not escape notice."); Salameda v.INS. 70 F.3d 447, 449 (7th Cir 1995); Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir. 2006) ("The only consistency that we can see in the government's treatment of the meaning of 'aggravated felony' is that the alien always loses.").

Third Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " CHEVRON DEFERENCE
Bautista v. Atty Gen. of the U.S., 744 F.3d 54, 59 (3d Cir. Feb. 28, 2014) (no deference due to BIA interpretation of the aggravated felony definition statute where the BIA interpretation was inconsistent with a clearly expressed congressional intent); citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984).

JUDICIAL REVIEW " PETITION FOR REVIEW " COURT CANNOT AFFIRM AGENCY DECISION ON BASED ON A POSITION THE AGENCY DID NOT TAKE
Orabi v. Attorney General of the U.S., 738 F.3d 535, 539 (3d Cir. Jan. 2, 2014) (Because the BIA did not reach its decision based on this ground, we may not affirm the judgment on this ground.); see Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) ([A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.); Li v. Att'y Gen., 400 F.3d 157, 163 (3d Cir.2005) (noting that a court cannot affirm an agency decision on a ground upon which the agency did not rely).

JUDICIAL REVIEW " APA " BIA SUA SPONTE REOPENING
Chehazeh v. Attorney General, 666 F.3d 118 (3d Cir. Jan. 11, 2012) (district courts have jurisdiction under the APA, 28 U.S.C. 1331, to review a BIA grant [but not denial] and a sua sponte decision to reopen a removal proceeding; "On general principles, then, the District Court had jurisdiction over Chehazeh's claims under 1331 and could have reviewed the BIA's decision to reopen Chehazeh's removal proceedings pursuant to the APA if (1) the BIA's action was not 'committed to agency discretion by law,' 5 U.S.C. 701(a)(2); (2) no statute precluded review, 5 U.S.C. 701(a)(1); (3) the BIA's action was a 'final agency action,' 5 U.S.C. 704; and (4) no 'special statutory review' provision required that Chehazeh's action be brought in some other form or forum, 5 U.S.C. 703.").

JUDICIAL REVIEW " PETITION FOR REVIEW " NO ERROR TRANSFERRING RESPONDENT TO ANOTHER CIRCUIT
Calla-Collado v. Attorney General of the U.S., 663 F.3d 680 (3d Cir. Dec. 1, 2011) (petition for review of removal order denied, where petitioner's rights were not violated when he was transferred, as a prisoner, to another state in another circuit).

JUDICIAL REVIEW " PETITION FOR REVIEW " NO INEFFECTIVE ASSISTANCE OF COUNSEL WHERE COUNSEL CONCEDED REMOVABILITY
Calla-Collado v. Attorney General of the U.S., 663 F.3d 680 (3d Cir. Dec. 1, 2011) (counsel's admission to removability did not constitute ineffective assistance of counsel where concession was made as tactical decision in moving to change venue, and the noncitizen was not prejudiced thereby).

JUDICIAL REVIEW " EXHAUSTION
Higgs v. Atty. Gen. of the United States, 655 F.3d 333 (3d Cir. Aug. 25, 2011) (a petitioner has satisfied his administrative remedies if he made some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal.); citing Lin v. Att'y Gen., 543 F.3d 114, 120 (3d Cir.2008); citing Joseph v. Att'y Gen., 465 F.3d 123, 126 (3d Cir. 2006).

PETITION FOR REVIEW " DENIAL OF CONTINUANCE
Simon v. Holder, 654 F.3d 440 (3d Cir. Aug. 17, 2011) (BIA abused its discretion by denying motion to reconsider in that it failed to apply the principles articulated Matter of Hashmi to petitioner's case); citing Matter of Hashimi, 24 I. & N. Dec. 785, 792 (BIA 2009) (setting forth criteria to be considered in evaluating whether to grant a motion to continue removal proceedings).

JUDICIAL REVIEW " MOTION TO REOPEN " DEPARTURE BAR
Espinal v. Attorney General, 653 F.3d 213 (3d Cir. Aug. 3, 2011) (8 C.F.R. 1003.2(d), otherwise known as the post-departure bar, is ultra vires to 8 U.S.C. 1229a(c)(6)(A), (7)(A), which specifically grants an alien the right to file one motion to reconsider and one motion to reopen without any geographic limitation on that right: the plain text of the statute provides each alien with the right to file one motion to reopen and one motion to reconsider, provides time periods during which an alien is entitled to do so, and makes no exception for aliens who are no longer in this country.).

JUDICIAL REVIEW " JURISDICTION BAR " CLASS ACTION CHALLENGING IMMIGRATION DETENTION WITHOUT BOND
Alli v. Decker, ___ F.3d ___, 2011 WL 2450967 (3d Cir. Jun. 21, 2011) (district court has subject matter jurisdiction to consider due process class action suit of persons detained under INA 236(c) without bond, despite 8 U.S.C. 1252(f)(1)).

JUDICIAL REVIEW " RES JUDICATA
Duhaney v. Attorney General, 621 F.3d 340 (3d Cir. Sept. 14, 2010), cert. denied (2011) (the government was not precluded, by res judicata, from charging respondent with removal in new proceedings based upon (1) convictions that existed at the time of the original proceedings, and that were known to the government, but that the government chose not to allege at the original proceedings, or (2) a conviction previously waived under INA 212(c) that became an aggravated felony after the termination of the original proceedings).

JUDICIAL REVIEW - PETITION FOR REVIEW - BIA MUST GIVE REASONED EXPLANATION OF ITS RULING
Gallimore v. Attorney General, 619 F.3d 216, 227 (3d Cir. Aug. 20, 2010) ("While we give deference to the decisions of the BIA ... we cannot give meaningful review to a decision in which the BIA does not explain how it came to its conclusion." Awolesi v. Ashcroft, 341 F.3d 227, 228-29 (3d Cir.2003). Here, the BIA's failure to explain its interpretation (if any) handicaps entirely our ability to review it for reasonableness." (footnote omitted)).

JUDICIAL REVIEW - DEFERENCE - BRAND-X
Jean-Louis v. Att'y Gen., 582 F.3d 462 (3d Cir. Oct. 6, 2009) (Brand-X deference is not due where the attorney generals reasoning is based on an impermissible reading of the statute).

JUDICIAL REVIEW - EXHAUSTION - BIA
Hoxha v. Holder , 559 F.3d 157 (3d Cir. Mar. 2, 2009) (rejecting argument that noncitizen failed to exhaust as he clearly identified issue in the notice of appeal and did not need to reiterate and address that same issue in an optional brief).

JUDICIAL REVIEW - PETITION FOR REVIEW - FULL JUDICIAL REVIEW IS AVAILABLE FOR REINSTATEMENT OF REMOVAL ORDERS
Ponta-Garcia v. Attorney General of U.S., ___ F.3d ___, 2009 WL 415560 (3d Cir. Feb. 20, 2009) (holding full judicial review is available to a non citizen adjudged removable following reinstatement of removal procedures, so they do not violate due process on this basis); see United States v. Charleswell, 456 F.3d 347, 353 (3d Cir. 2006); Ponta-Garc[i]a v. Ashcroft, 386 F.3d 341, 342 (1st Cir. 2004) ("An order reinstating an earlier order of deportation is subject to review...."); 8 U.S.C. 1252 (providing for judicial review of final orders of removal); Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 n. 3 (10th Cir. 2003) (finding that 8 U.S.C. 1252 covers review of reinstatement orders).

JUDICIAL REVIEW - PETITION FOR REVIEW - RESPONDENT MUST EXHAUST CLAIM BY RAISING IT BEFORE THE BIA BEFORE RESPONDENT CAN RAISE IT ON PETITION FOR REVIEW
Paredes v. Attorney General of U.S., 528 F.3d 196 (3d Cir. Jun. 9, 2008) (noncitizen must exhaust claim before BIA before raising it on petition for review), citing 8 U.S.C. 1252(d)(1) (exhaustion of administrative remedies mandatory and jurisdictional); see also Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005) ("To exhaust a claim before the agency, an applicant must first raise the issue before the BIA or IJ, so as to give it the opportunity to resolve a controversy or correct its own errors before judicial intervention." (internal quotations and citation omitted)).

Fourth Circuit

JUDICIAL REVIEW"EXHAUSTION"FAILURE TO RAISE ARGUMENT
Dung Phan v. Holder, 667 F.3d 448, 451 n.4 (4th Cir. Feb. 1, 2012) (argument that District of Columbia conviction of distribution of cocaine under the District of Columbia Youth Rehabilitation Act, D.C. Code 24"901, et seq., did not constitute a conviction under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), for immigration purposes, was waived since petitioner did not raise this argument in his brief on appeal); see United States v. Al"Hamdi, 356 F.3d 564, 571 n. 8 (4th Cir.2004) (It is a well settled rule that contentions not raised in the argument section of the opening brief are abandoned.); Yousefi v. I.N.S., 260 F.3d 318, 326 (4th Cir.2001) (finding that argument not raised in opening appellate brief was abandoned).

JUDICIAL REVIEW " BIA STANDARD OF REVIEW
Turkson v. Holder, 667 F.3d 523 (4th Cir. Jan. 26, 2012) (granting petition for review, and vacating removal order, where BIA erroneously reviewed the IJ's factual findings under the de novo standard of review instead of under the clearly erroneous standard required by its governing regulations, in considering a claim for deferral of removal under the Convention Against Torture); referring to 8 C.F.R. 1003.1(d)(i) (The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.); 8 C.F.R. 1003.1(d)(ii) (The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.).

JUDICIAL REVIEW " FINALITY OF BIA DISMISSAL AND REMAND
Li v. Holder, 666 F.3d 147 (4th Cir. Dec. 2, 2011) (BIA order finding noncitizen deportable, but remanding to IJ to consider voluntary departure, is a "final order" for purposes of a petition of review; while court had jurisdiction to consider appeal of BIA decision, court chose not to exercise jurisdiction for prudential reasons).

JUDICIAL REVIEW " HABEAS CORPUS " NO HABEAS JURISDICTION TO PREVENT REMOVAL ON GROUNDS OF CITIZENSHIP
Johnson v. Whitehead, ___ F.3d ___, 2011 WL 1998333 (4th Cir. May 24, 2011) (writ of habeas corpus could not be used to permanently immunize individual from removal on grounds he was a U.S. citizen; petition for review, not habeas corpus petition, was the proper means of seeking redress).

JUDICIAL REVIEW - JURISDICTION LIMITATION
Kporlor v. Holder, 597 F.3d 222 (4th Cir. Mar. 5, 2010) (federal courts of appeal lack jurisdiction under 8 U.S.C. 1252(a)(2)(C) to review BIA denials of withholding of removal in cases involving crime of moral turpitude)

JUDICIAL REVIEW - EXHAUSTION - FAILURE TO EXHAUST IS A JURISDICTIONAL BAR
Massis v. Mukasey, 549 F.3d 631 (4th Cir. Dec.9, 2008) ("an alien's failure to dispute an issue on appeal to the BIA constitutes a failure to exhaust administrative remedies that bars judicial review."), following Kurfees v. Immigration & Naturalization Service, 275 F.3d 332 (4th Cir.2001).

JUDICIAL REVIEW - IMMIGRATION LAW IN EFFECT AT TIME OF CONVICTION GOVERNS REMOVAL PROCEEDINGS
Massis v. Mukasey, 549 F.3d 631 (4th Cir. Dec.9, 2008) ("The state of the law as it existed at the time of Massis's removal hearing supports the BIA's determination. Accord Mbea v. Gonzales, 482 F .3d 276, 281 (4th Cir.2007) (noting that the law "then in effect" at the time of an alien's conviction would apply to the alien's removal proceedings (citing Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289 (2001))).").

Fifth Circuit

JUDICIAL REVIEW " WAIVER OF ISSUES
Lowe v. Sessions, 872 F.3d 713 (5th Cir. Oct. 5, 2017) (noncitizen waived claim of ineffective assistance of counsel by failing to brief the issue on appeal to the BIA).

JUDICIAL REVIEW " CHEVRON DEFERENCE " NO DEFERENCE DUE WITHOUT SPECIFIC EXPRESS HOLDING
Calix v. Lynch, 784 F.3d 1000, 1009 (5th Cir. Apr. 28, 2015) (Because we discover no holding to that effect, we find no grounds for deference under Chevron Step 2. An issue not discussed by an agency should not be seen as having implicitly been resolved in the way necessary to support the decision and the implication then be given deference.)

JUDICIAL REVIEW " PETITION FOR REVIEW " COURT MAY NOT AFFIRM BIA EXCEPT ON BASIS OF REASONS IT PROVIDED
Sarmientos v. Holder, 742 F.3d 624 (5th Cir. Feb. 12, 2014) (We may not affirm the BIA's decision except on the basis of the reasons it provided.); quoting Rodriguez"Barajas v. Holder, 624 F.3d 678, 679 (5th Cir. 2010).

JUDICIAL REVIEW " CHEVERON DEFERENCE
Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. Jan. 30, 2014) (court of appeals need not defer to Silva-Trevino method of analysis, because Congress spoke clearly on this issue); reversing Matter of Silva-Trevino, 24 I. & N. Dec. 687 (BIA Nov. 7, 2008).

JUDICIAL REVIEW " MOTION TO REOPEN " REGULATION BARRING POST-DEPARTURE MOTIONS TO REOPEN HELD INVALID
Garcia Carias v. Holder, 697 F.3d 257 (5th Cir. Sept. 27, 2012) (post-departure regulation held not to prevent noncitizen from pursuing motion to reopen removal proceedings after he had been removed from the United States).

JUDICIAL REVIEW " FUGITIVE DISENTITLEMENT DOCTRINE
Bright v. Holder, 649 F.3d 397 (5th Cir. Aug. 8, 2011) (court lacked jurisdiction to review under the fugitive disentitlement doctrine where noncitizen failed to appear at DHS office for removal as ordered by immigration court; doctrine applied even though noncitizen maintained same address, DHS was aware of the address, and DHS made no attempt to locate or arrest following failure to appear).

JUDICIAL REVIEW " PETITION FOR REVIEW " MOOTNESS " CASE IS NOT MOOT EVEN AFTER RESPONDENT HAS BEEN REMOVED FROM THE UNITED STATES
Espinal v. Holder, ___ F.3d ___, 2011 WL 1049508 (5th Cir. Mar. 24, 2011) (Although Espinal has already been removed from the United States, the case is not moot if (1) Espinal was not convicted of an aggravated felony and (2) he continues to satisfy the requirements of 8 U.S.C. 1229b(a).), citing Carachuri-Rosendo v. Holder, ___ U.S. ___, n. 8, 130 S.Ct. 2577, 2584 n. 8, 177 L.Ed.2d 68 (2010).

JUDICIAL REVIEW " PETITION FOR REVIEW " MOOTNESS " BIA RECONSIDERATION OF DECISION ON APPEAL
Espinal v. Holder, ___ F.3d ___, 2011 WL 1049508 (5th Cir. Mar. 24, 2011) (the court retains jurisdiction to review a decision by the BIA, despite a subsequent withdrawal of that decision and the issuance of a new decision by the BIA, when that new decision relies upon, does not vacate or does not materially alter the impact of the initial decision), agreeing with Stone v. I.N.S., 514 U.S. 386, 395 (1995); Thomas v. Attorney Gen., 625 F.3d 134, 139 (3d Cir.2010); Khouzam v. Ashcroft, 361 F.3d 161, 167 (2d Cir.2004) (finding jurisdiction where BIA denied motion for reconsideration, but clarified the reasoning of its initial order).

JUDICIAL REVIEW - AGGRAVATED FELONY BAR
Ogunfuye v. Holder, 610 F.3d 303 (5th Cir. Jun. 28, 2010) (because question of whether immigration judge erred in failing to grant continuance is not a constitutional issue or a question of law, court lacks jurisdiction to review the issue where the noncitizen is an aggravated felon).

JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS - EXHAUSTION JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION
Claudio v. Holder, ___ F.3d ___ (5th Cir. Mar. 17, 2010) (a petitioner cannot exhaust his claims by raising all of them in a notice of appeal to the BIA, but addressing only some in a supporting brief before the BIA).

JUDICIAL REVIEW " PETITION FOR REVIEW " BIAS IMPROPER STANDARD OF REVIEW IS A REVIEWABLE LEGAL ERROR
Esperanza Alvarado de Rodriguez v. Holder, 585 F.3d 227 (5th Cir. Oct. 9, 2009) (whether the BIA applied an improper standard of review is a question of law, which the court of appeal has jurisdiction to consider: here, the BIA improperly reviewed the IJ's factual findings de novo, when the BIA, while indicating that it did not find any clear error in the immigration judge's factual findings or in its credibility determinations, nonetheless all but ignored significant testimony and documentary evidence that the alien presented as proof of her good faith in entering into marriage).

JUDICIAL REVIEW - EXHAUSTION - WAIVER OF ISSUE BY FAILURE PROPERLY TO PRESENT IT
Singh v. Holder, 568 F.3d 525 (5th Cir. May 14, 2009) ("Singh, however, does not argue that any portion of the unlawful wounding statute under which he was convicted can be violated without using force sufficient to render the violation a crime of violence. [Footnote omitted.] He offers no hypothetical situations in which a person could commit an unlawful wounding that does not constitute a crime of violence, nor does he even attempt to parse the statute's language. Moreover, Singh has utterly failed to raise any argument that "the conduct encompassed by the elements of the offense, in the ordinary case, [does not] present[ ] a serious potential risk of injury to another." See James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); see also Perez-Munoz v. Keisler, 507 F.3d 357, 363 (5th Cir.2007) (quoting James, 550 U.S. at 208). Accordingly, he has waived any such argument. [Footnote omitted.] See United States v. Beaumont, 972 F.2d 553, 563 (5th Cir.1992) ("Failure of an appellant to properly argue or present issues in an appellate brief renders those issues abandoned.").").

JUDICIAL REVIEW - PETITION FOR REVIEW - MAGISTRATE JUDGE WHO HEARD EARLIER HABEAS PETITION DID NOT HAVE JURISDICTION TO HEAR LATER PETITION FOR REVIEW, WITHOUT PETITIONER'S CONSENT
Lopez v. Holder, ___ F.3d ___, 2009 WL 682991 (5th Cir. Mar. 17, 2009) (magistrate judge who heard earlier habeas petition did not have jurisdiction to hear later petition for review, without petitioner's consent, since it was a different case than the earlier proceeding).

JUDICIAL REVIEW - PETITION FOR REVIEW - MAGISTRATE JUDGE WHO HEARD EARLIER HABEAS PETITION DID NOT HAVE JURISDICTION TO HEAR LATER PETITION FOR REVIEW, WITHOUT PETITIONER'S CONSENT
Lopez v. Holder, ___ F.3d ___, 2009 WL 682991 (5th Cir. Mar. 17, 2009) (magistrate judge who heard earlier habeas petition did not have jurisdiction to hear later petition for review, without petitioner's consent, since it was a different case than the earlier proceeding).

JUDICIAL REVIEW - EXHAUSTION
Omari v. Holder, ___ F.3d ___ (5th Cir. Mar. 4, 2009) (Court of Appeals lacked jurisdiction under 8 U.S.C. 1252(d), where petitioner did not present any of the issues raised on petition for review before the BIA).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION OF ADMINISTRATIVE REMEDIES
Omari v. Holder, ___ F.3d ___, 2009 WL 531688 (5th Cir. Mar. 4, 2009) (noncitizen failed to exhaust administrative remedies on four issues, rejecting argument that he effectively -- if not explicitly -- raised the issues before the BIA, giving the BIA notice adequate to satisfy the exhaustion requirement, because allowance of "effective" exhaustion runs contrary to the purposes of 8 U.S.C. 1252(d).)

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION OF ADMINISTRATIVE REMEDIES - LACK OF JURISDICTION TO EXCUSE NONCOMPLIANCE WITH EXHAUSTION REQUIREMENT
Omari v. Holder, ___ F.3d ___, 2009 WL 531688 (5th Cir. Mar. 4, 2009) (court of appeal has no authority to excuse failure to comply with statutory jurisdictional requirement of exhaustion of administrative remedies), following Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 2364-66, 168 L.Ed.2d 96 (2007).

JUDICIAL REVIEW - CONTINUANCE
Masih v. Mukasey, ___ F.3d ___, 2008 WL 2747462 (5th Cir. Jul. 16, 2008) (IJ and BIA abused discretion by denying motion for continuance where noncitizen eligible for adjustment of status was unable to adjust only because visas had become unavailable after application; BIA and IJ failed to consider OI 245.4(a)(6) in their rulings despite the regulation's applicability; and the BIA ignored precedent set in Matter of Ho).

JUDICIAL REVIEW - ALTERNATIVE HOLDING IS BINDING PRECEDENT
United States v. Cepeda-Rios, 530 F.3d 333, 335 and n.9 (5th Cir. Jun.4, 2008) (an alternative holding is binding precedent), citing Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991) ("This circuit follows the rule that alternative holdings are binding precedent and not obiter dictum."), abrogated on other grounds by Floors Unlimited, Inc., v. Fieldcrest Cannon, Inc., 55 F.3d 181, 185-86 (5th Cir. 1995); McLellan v. Miss. Power & Light Co., 545 F.2d 919, 925 n.21 (5th Cir. 1977) ("It has long been settled that all alternative rationales for a given result have precedential value.").

JUDICIAL REVIEW - EXHAUSTION - ISSUE PRESERVATION - WAIVER FOR INADEQUATE BRIEFING - APPLICATION OF AUTHORITY FROM CRIMINAL CASE IN IMMIGRATION CONTEXT - DISCRETION TO CONSIDER ISSUE
Martinez v. Mukasey, 519 F.3d 532, 545 (5th Cir. March 11, 2008) (although the court may consider an issue waived because of inadequate briefing, or where it is raised for the first time at oral argument, this is a prudential rule, not a jurisdictional one, and the court also has discretion to consider the issue).

JUDICIAL REVIEW - EXHAUSTION - ISSUE PRESERVATION - WAIVER FOR INADEQUATE BRIEFING - APPLICATION OF AUTHORITY FROM CRIMINAL CASE IN IMMIGRATION CONTEXT
United States v. Le, 512 F.3d 128, 132 n.2 (5th Cir.2007) (a party may waive a contention because of inadequate briefing).

JUDICIAL REVIEW - COLLATERAL ESTOPPEL - WITHDRAWN CHARGES
Zamora-Morel v. INS, 905 F.2d 833 (5th Cir. 1990) (once allegation regarding marijuana possession charge was withdrawn by INS, that allegation no longer constituted valid charge against noncitizen or valid part of record, and allegation could not be used to conclude that noncitizen was deportable for having two controlled substance convictions).

Sixth Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " NO JURISDICTION TO REVIEW DISCRETIONARY DENIAL OF LPR CANCELLATION
Etienne v. Holder, 659 F.3d 513 (6th Cir. Oct. 5, 2011) (dismissing petition for review for lack of jurisdiction to review discretionary denial of cancellation of removal, under INA 240A, 8 U.S.C. 1229b).

RELIEF " WAIVERS " CANCELLATION OF REMOVAL " WEIGHT OF HARDSHIP FACTORS NONREVIEWABLE
Ettienne v. Holder, 659 F.3d 513, 518 (6th Cir. Oct. 5, 2011) (court lacks jurisdiction to review weight attached by Immigration Judge to hardship evidence relating to cancellation of removal; this court lacks jurisdiction over claims that can be evaluated only by engaging in head-to-head comparisons between the facts of the petitioner's case and those of precedential decisions).

JUDICIAL REVIEW " PETITION FOR REVIEW " PANEL UNANIMITY " ONE PANEL IS NOT BOUND BY DICTUM IN ANOTHER PANEL DECISION
United States v. McMurray, 653 F.3d 367 (6th Cir. Aug 4, 2011) (one panel is not bound by dictum in another panel decision); see United States v. Turner, 602 F.3d 778, 786 (6th Cir.2010) (internal quotation marks omitted); accord BDT Prods., Inc. v. Lexmark Int'l, Inc., 602 F.3d 742, 750 (6th Cir.2010) (One panel of the Sixth Circuit is not bound by dicta in a previously published panel opinion. (alterations omitted) (internal quotation marks omitted)); PDV Midwest Refining, L.L.C. v. Armada Oil & Gas Co., 305 F.3d 498, 510 (6th Cir.2002) (Strictly speaking an obiter dictum is a remark made or opinion expressed by a judge, in his decision upon a cause, by the way"that is, incidentally or collaterally, and not directly upon the question before the court .... (quoting Black's Law Dictionary 1100 (7th ed.1999) (alteration in original))), cert. denied, 537 U.S. 1111, 123 S.Ct. 901, 154 L.Ed.2d 784 (2003).

REINSTATEMENT OF REMOVAL " JUDICIAL REVIEW
De la Paz v. Holder, 640 F.3d 650 (6th Cir. Nov. 8, 2010) (circuit court has jurisdiction to review reinstatement order within 30 days of issuance, under 8 U.S.C. 1252(b)).

JUDICIAL REVIEW " COURT CANNOT LOSE JURISDICTION DUE TO GOVERNMENT MALPRACTICE
De la Paz v. Holder, 640 F.3d 650, 654 (6th Cir. Nov. 8, 2010) ("[T[he government agrees, the 30-day limitations period set forth in 1252(b)(1) applies to petitions for review of reinstatement orders just as it does to removal orders. The government then notes that DHS entered its reinstatement order on July 10, 2008, and that Villegas did not file her petition until March 5, 2009 " which was more than 30 days after the order was entered. Thus, the government argues, we lack jurisdiction to review the order. The government omits to note, anywhere in its brief, that DHS itself withheld the order from Villegas for more than seven months. The argument is remarkable. We are accustomed in immigration cases to being told by the government that we lack jurisdiction over one thing or another. For the most part, Congress can grant or withhold jurisdiction as it pleases; and if Congress has chosen to withhold jurisdiction in a particular circumstance, the government simply does its duty when it informs us of the fact. But it is another matter altogether to hear that the Executives own actions serve to strip us of jurisdiction to review the Executives decision in an immigration case. That sort of arrogation runs through the separation-of-powers tripwires in a way that simple application of a Congressional rule does not ... The same can be said for allowing the government to cut off judicial review of a reinstatement order by withholding it from the affected alien for seven months. Allowing that kind of ball-hiding to prevent review of the governments order would effect precisely the kind of perversion that we found repellent in Madrigal. If the government chooses to make these arguments, it can expect strong resistance on separation-of-powers grounds.").

JUDICIAL REVIEW"REINSTATEMENT OF REMOVAL"PETITION FOR REVIEW
Villegas de la Paz v. Holder, 640 F.3d 650 (6th Cir. Jul. 30, 2010) (court had jurisdiction to review the reinstatement of a prior removal order, and REAL ID Act granted circuit courts jurisdiction over constitutional claims or questions of law raised in the context of reinstatement proceedings; but evidence was sufficient to show prior order, and IJs failure in underlying deportation proceeding to inform alien that she could seek to withdraw her application for admission to United States did not violate alien's due process rights); Martinez-Merino v. Mukasey, 525 F.3d 801 (9th Cir. 2008) (respondent must establish "gross miscarriage of justice" to bar reinstatement of removal); see also Garcia de Rincon v. DHS, 539 F.3d 1133 (9th Cir. 2008).

JUDICIAL REVIEW - SUA SPONTE MOTION TO REOPEN
Gor v. Holder, 607 F.3d 180 (6th Cir. Jun. 4, 2010) (the court suggested en banc review of earlier circuit decisions finding no jurisdiction to review denials of sua sponte motions to reopen, in light of Kucana v. Holder, 130 S.Ct. 827 (2010)).

JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS - DEPORTATION DOES NOT WITHDRAW PENDING BIA APPEAL
Madrigal v. Holder, 572 F.3d 239 (6th Cir. Jul.9, 2009) (BIA appeal is not automatically withdrawn pursuant to 8 C.F.R. 1003.4 when DHS deports the noncitizen before the BIA decides the appeal); see Long v. Gonzales, 420 F.3d 516, 520 (5th Cir. 2005) (the principle that "waiver is an intentional relinquishment or abandonment of a known right or privilege" is applicable to the operation of the 8 C.F.R. 1003.4 withdrawal provision).

STATUTORY INTERPRETATION - INTERPRETATION OF CRIMINAL STATUTES - RULE OF LENITY REQUIRES GIVING ANY REASONABLE DOUBT TO THE RESPONDENT CONCERNING THE INTERPRETATION OF A CRIMINAL STATUTE, SUCH AS 18 U.S.C. 16(b) OR A CRIMINAL STATUTE OF CONVICTION
Nguyen v. Holder, 571 F.3d 524 (6th Cir. Jul. 2, 2009) (California conviction of auto theft, in violation of what is now codified at Penal Code 487(d)(i) and 18 U.S.C. 16(b), both criminal statutes, are ambiguous: "[A]ny doubt about [deportability] must be resolved in favor of the . . . petitioner who is subject to deportation pursuant to an ambiguous criminal statute. . . . Because we cannot find that auto theft is "unambiguously" a crime of violence under Section 16(b), we should follow the ancient rule and overrule the administrative agency in this case."; citing United States v. Santos, __U.S.__, 128 S.Ct. 2020, 2025 (2008) (plurality); United States v. Bass, 404 U.S. 336, 347-49 (1971); United States v. Ford, 560 F.3d 420, 425 (6th Cir. 2009) (applying the "rule of lenity" to a previous conviction for a "walkaway" escape because it is not unambiguously a "crime of violence" and therefore cannot serve as the basis for career offender status).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION OF ADMINISTRATIVE REMEDIES REQUIRED BY PRESENTATION OF ISSUE TO BIA IN BRIEF
Lin v. Holder, 565 F.3d 971 (6th Cir. May 14, 2009) ("these claims have not been administratively exhausted because Lin did not present them in his brief for his BIA appeal. This Court does not have jurisdiction to consider claims that have not been administratively exhausted."), citing 8 U.S.C. 1252(d)(1); Ramani v. Ashcroft, 378 F.3d 554, 559-60 (6th Cir. 2004) (holding "only claims properly presented to the BIA and considered on their merits can be reviewed by this court in an immigration appeal").

JUDICIAL REVIEW - HABEAS CORPUS - REAL ID ACT BARS HABEAS AS VEHICLE BY WHICH TO CHALLENGE REMOVAL ORDER
Muka v. Baker, 559 F.3d 480 (6th Cir. Mar. 17, 2009) (REAL ID Act deprived district court of subject-matter jurisdiction over habeas petitions challenging orders of removal; no Suspension Clause violation).

JUDICIAL REVIEW - BIA APPEAL - EXHAUSTION - NO ABUSE OF DISCRETION TO FAIL TO CONSIDER ARGUMENT NOT RAISED BEFORE IMMIGRATION JUDGE BUT RAISED FOR THE FIRST TIME IN MOTION FOR RECONSIDERATION
Thap v. Mukasey, 544 F.3d 674 (6th Cir. Oct. 15, 2008) (BIA did not abuse discretion to refuse to consider argument not raised before immigration judge, but raised for the first time on appeal in motion for reconsideration), citing Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.2008) ("While we have never articulated precisely what constitutes raising an issue with the district court, we have found issues to be waived when they are raised for the first time in motions requesting reconsideration or in replies to responses.").

JUDICIAL REVIEW - PETITION FOR REVIEW - CONTINUANCE DENIAL
Ukpabi v. Mukasey, ___ F.3d ___ (6th Cir. May 13, 2008) (court of appeal has jurisdiction to review IJ's denial of continuance of removal proceedings under abuse of discretion standard, and reaching claims of violation of international law and due process).

Seventh Circuit

RELIEF " WAIVERS " JUDICIAL REVIEW " DISCRETIONARY DECISIONS
Asentic v. Sessions, 873 F.3d 974 (7th Cir. Oct. 17, 2017) (court lacks jurisdiction to review discretionary denial of fraud waiver under INA 237(a)(1)(H)).

JUDICIAL REVIEW " IMMIGRATION JUDGES MAY EXERCISE ATTORNEY GENERALS POWERS OVER IMMIGRATION " U-VISA
Baez-Sanchez v. Sessions, 872 F.3d 854 (7th Cir. Oct. 6, 2017) (neither the INA nor the regulations explicitly limit powers of Immigration Judges to conduct only actions the Attorney General has specifically delegated; Immigration Judges may exercise all the Attorney Generals powers over immigration, including granting a temporary waiver of inadmissibility under INA 212(d)(3) to allow a noncitizen to pursue a U-Visa), reaffirming L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014), and overruling Matter of Khan, 26 I. & N. Dec. 797 (2016).

STATUTORY INTERPRETATION " RETROACTIVITY " MANIFEST INJUSTICE
Velasquez-Garcia v. Holder, ___ F.3d ___, 2014 WL 3611591 (7th Cir. Jul. 23, 2014) (retroactive application of ambiguous statutory definition in Child Status Protection Act, imposing a one-year deadline for filing application, would have worked manifest injustice as applied to noncitizen where noncitizens one-year period expired months before new requirement was announced).

JUDICIAL REVIEW " PETITION FOR REVIEW " COURT HAS NO JURISDICTION TO REVIEW DISCRETIONARY DENIAL OF MOTION FOR CONTINUANCE
Moral-Salazar v. Holder, 708 F.3d 957 (7th Cir. Feb. 28, 2013) (the jurisdictional bar of INA 242(a)(2)(C), 8 U.S.C. 1252(a)(2)(C) does not allow review of the denial of a discretionary motion for continuance).

JUDICIAL REVIEW " PETITION FOR REVIEW " COURT HAS NO JURISDICTION TO REVIEW DISCRETIONARY DENIAL OF MOTION FOR CONTINUANCE
Moral-Salazar v. Holder, ___ F.3d ___, 2013 WL 717060 (7th Cir. Feb. 28, 2013) (the jurisdictional bar of INA 242(a)(2)(C), 8 U.S.C. 1252(a)(2)(C) does not allow review of the denial of a discretionary motion for continuance).

JUDICIAL REVIEW " HABEAS CORPUS " DEPORTED NONCITIZEN CANNOT USE HABEAS CORPUS TO CHALLENGE EXECUTED REMOVAL ORDER
Rivas-Melendrez v. Napolitano, 689 F.3d 732 (7th Cir. Aug. 1, 2012) (deported noncitizen cannot use federal habeas corpus, under 28 U.S.C. 2241, to challenge executed removal order, since claim was barred by 8 U.S.C. 1252(a), (g), which prevent courts from hearing challenges to the execution of removal orders; additionally, Rivas was not in custody as required under 28 U.S.C. 2241(c)).

RELIEF"JUDICIAL REVIEW"CANCELLATION OF REMOVAL
Munoz-Pacheco v. Holder, 673 F.3d 741 (7th Cir. Mar. 14, 2012) (court lacks jurisdiction to review hardship discretionary issue).

JUDICIAL REVIEW " PETITION FOR REVIEW " INSUFFICIENT ANALYSIS BELOW
Siddiqui v. Holder, ___ F.3d ___ (7th Cir. Jan. 12, 2012) (reversing AAOs decision denying legalization for failure of proof of continuous residence in the United States, because the decision lacked individualized analysis and did not identify particular deficiencies in the substantial evidence submitted by Siddiqui; noncitizens counsel found 536 AAO decisions each using an identical paragraph of "analysis" of the evidence: An agency abuses its discretion when it fails to to issue opinions with rational explanations and adequate analysis of the record. Gebreeyesus v. Gonzales, 482 F.3d 952, 954 (7th Cir. 2007) (quoting Kay v. Ashcroft, 387 F.3d 664, 674 (7th Cir. 2004)); see also Rhoa-Zamora v. INS, 971 F.2d 26, 34, 36 (7th Cir. 1992) (requiring careful, individualized review of the evidence); see Escobar v. Holder, 657 F.3d 537, 544 (7th Cir. 2011) (noting that, despite deferential review, the BIA may not simply overlook evidence in the record that supports the applicants case (citation omitted)).

JUDICIAL REVIEW " PETITION FOR REVIEW " DENIAL OF MOTION TO CONTINUE
Calma v. Holder, 663 F.3d 868 (7th Cir. Dec. 5, 2011) (court has jurisdiction to review denial of motion for continuance not related to merits of case; IJ did not abuse discretion in denying continuance where noncitizen's hopes of eventual adjustment were speculative and the potential process lengthy).

STATUTORY INTERPRETATION " DEFERENCE " COURT OF APPEALS OWES NO DEFERENCE TO NON-PRECEDENTIAL DECISIONS OF THE BOARD OF IMMIGRATION APPEALS
Arobelidze v. Holder, 653 F.3d 513 (7th Cir. July 27, 2011 (... non-precedential Board decisions that do not rely on binding Board precedent are not afforded Chevron deference. Such a decision is entitled to respect ... only to the extent that [it has the] power to persuade.); citing Bailey v. Pregis Innovative Packaging, Inc., 600 F.3d 748, 751 (7th Cir.2010) (quotations omitted)).); see United States v. Mead Corp., 533 U.S. 218, 234"35, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (citing Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).

JUDICIAL REVIEW " THIRD PARTY STANDING
Marin-Garcia v. Holder, 647 F.3d 666, 2011 WL 3130273 (7th Cir. Jul. 22, 2011) (noncitizen applicant for non-LPR cancellation has third party standing to challenge BIA determination that denial of his cancellation of removal was unconstitutional as applied to his two USC daughters, who were required to show exceptional and extremely unusual hardship).

JUDICIAL REVIEW " PETITION FOR REVIEW " DISCRETIONARY BAR " HARDSHIP
Champion v. Holder, 626 F.3d 952 (7th Cir. Nov. 22, 2010) (court has jurisdiction to review whether the Immigration Judge and BIA took sufficient notice of facts relevant in determining hardship for purposes of non-LPR cancellation of removal).

JUDICIAL REVIEW " PETITION FOR REVIEW " EXHAUSTION
Muratoski v. Holder, 622 F.3d 824 (7th Cir. Sept. 20, 2010) (petitioner failed to exhaust administrative remedies on the sole issue he raised in the petition for review).

JUDICIAL REVIEW - PETITION FOR REVIEW - BIA MUST ADDRESS EACH ARGUMENT RAISED BEFORE IT
Kone v. Holder, 620 F.3d 760 (7th Cir. Aug. 31, 2010) (petition for review granted, as BIA effectively only addressed half of petitioner's arguments).

JUDICIAL REVIEW - SUFFICIENCY OF CLAIM - SINGLE PARAGRAPH - EXHAUSTION
United States v. Moreno-Padilla, __ F.3d __ (7th Cir. Apr. 8, 2010) (defendant's argument, raised only in a single paragraph in his pro se memorandum, was not sufficiently substantial to have warranted more overt consideration by the district court).

JUDICIAL REVIEW - VISA WAIVER PROGRAM
Bayo v. Napolitano, 593 F.3d 495 (7th Cir. Jan. 20, 2010) (en banc) (court has jurisdiction to review whether VWP waiver was valid and whether an exception to the wavier may be properly invoked (e.g. an asylum claim)).

DETENTION - HABEAS CORPUS
United States v. Hernandez-Arenado, 571 F.3d 662 (7th Cir. Jul. 6, 2009) (noncitizens held by ICE in a facility run by the Bureau of Prisons are not in the custody of the BOP for purposes of determining habeas corpus jurisdiction, even in light of the Adam Walsh Child Protection and Safety Act of 2006 (the "Act"), 18 U.S.C. 4248, et seq.).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION REQUIRED BY RAISING ISSUE BEFORE BIA
Ghani v. Holder, 557 F.3d 836 (7th Cir. Mar. 9, 2009) ("As a threshold matter, we note that Mr. Ghani did not raise this claim before the BIA; therefore, the issue is waived. See Hamdan v. Gonzales, 425 F.3d 1051, 1058 n. 14 (7th Cir.2005) (arguments not raised to the BIA are waived for failure to exhaust administrative remedies).").

JUDICIAL REVIEW - PETITION FOR REVIEW - NO JURISDICTION OVER VAWA CANCELATION EXTREME CRUELTY DETERMINATION
Stepanovic v. Filip, 554 F.3d 673 (7th Cir. Jan. 28, 2009) (VAWA cancellation "extreme cruelty" determination is within the discretion of the Attorney General; therefore the court lacks jurisdiction to review under 8 U.S.C. 1252(a)(2); over petition for review of BIA holding noncitizen ineligible for VAWA cancellation of removal, under INA 240A(b)(2), 8 U.S.C. 1229b(b)(2), for determining he was not subjected to extreme cruelty; BIA correctly applied the "extreme cruelty" legal standard in requiring petitioner show psychiatric or medical documents, or other evidence). See also Wilmore v. Gonzales, 455 F.3d 524, 528 (5th Cir. 2006); Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir. 2005). But see Hernandez v. Ashcroft, 345 F.3d 824, 833-35 (9th Cir. 2003).

JUDICIAL REVIEW - ISSUE PRESERVATION
Chavez-Vasquez v. Mukasey, 548 F.3d 1115 (7th Cir. Dec. 8, 2008) (a procedural due-process claim could not be heard because petitioner had failed to raise it before the BIA).

JUDICIAL REVIEW - PRESERVING ISSUES ON APPEAL
Bakarian v. Mukasey, 541 F.3d 775 (7th Cir. Sept. 4, 2008) (noncitizen not excused from preserving retroactivity issue for appeal by raising it before the BIA; it was not futile to bring issue before the BIA where U.S. Supreme Court case provided new means to argue against older BIA precedent decision).

JUDICIAL REVIEW - PETITION FOR REVIEW - RES JUDICATA
Alvear-Velez v. Mukasey, 540 F.3d 672 (7th Cir. Sept. 2, 2008) (res judicata does not prevent DHS from charging noncitizen with deportability based on aggravated felony conviction where IJ had held in prior proceeding that same conviction was not a CMT and charged aggravated felony ground had not yet been created by statute; "the rule against claim splitting, which is one component of res judicata, is inapplicable when a statutory change creates a course of action unavailable in the previous action. Cf. Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589, 593-94 (7th Cir.1986) ("[P]rior litigation acts as a bar not only to those issues which were raised and decided in the earlier litigation but also to those issues which could have been raised in that litigation." (emphasis in original)); see also Wedow v. City of Kansas City, Mo., 442 F.3d 661, 669 (8th Cir.2006) (noting that the rule against claim splitting "does not apply to claims that did not exist when the first suit was filed"). Indeed, courts consistently have refused to apply res judicata to preclude a second suit that is based on a claim that could not have been asserted in the first suit. See Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 38 (1st Cir.1998) ("Of course, res judicata will not attach if the claim asserted in the second suit could not have been asserted in the first.").").

JUDICIAL REVIEW - PETITION FOR REVIEW - CLAIM THAT BIA IGNORED EVIDENCE IS SUBJECT TO PETITION FOR REVIEW JURISDICTION
Iglesias v. Mukasey, 540 F.3d 528, 2008 WL 3877302 (7th Cir. Aug. 22, 2008) (petitioners allegation that BIA ignored evidence of marriage to U.S. citizen was an allegation of error subject to judicial review).

JUDICIAL REVIEW - PETITION FOR REVIEW -- DENIAL OF CONTINUANCE
Ceta v. Mukasey, ___ F.3d ___, 2008 WL 2854153 (7th Cir. Jul. 25, 2008) ("The immigration court's lack of jurisdiction to entertain adjustment applications was not a rational basis for denying Mr. Ceta's continuance request but merely a reiteration of the amended regulation.").

JUDICIAL REVIEW - PETITION FOR REVIEW - JURISDICTION BAR TO REVIEW OF MOTIONS TO REOPEN EXCEPT QUESTIONS OF LAW OR CONSTITUTIONAL QUESTIONS
Kucana v. Mukasey, 533 F.3d 534 (7th Cir. Jul. 7, 2008) (court of appeal lacked jurisdiction to review motions to reopen, except for "questions of law" or constitutional questions), distinguishing Singh v. Gonzales, 404 F.3d 1024, 1026-27 (7th Cir. 2005) (to apply INA 8 U.S.C. 242(a)(2)(B)(ii), 1252(a)(2)(B)(ii) to bar jurisdiction over orders denying motions to reopen would make the consolidation rule nonsensical), following Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007).

JUDICIAL REVIEW - GOVERNMENT MAY NOT DEFEND AGENCY RULING ON GROUNDS NOT ARTICULATED IN AGENCY DECISION - DUE PROCESS
Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. Apr. 30, 2008) ("under SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), the government may not defend the agency's ruling on a ground that is not articulated-or at least discernable-in the decision itself. See Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir.2007); Gebreeyesus v. Gonzales, 482 F.3d 952, 956 (7th Cir.2007); Mengistu v. Ashcroft, 355 F.3d 1044, 1046-47 (7th Cir.2004).").

Eighth Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " CRIMINAL BAR TO REVIEW " CONVENTION AGAINST TORTURE
Gallimore v. Holder, 715 F.3d 687 (8th Cir. May 22, 2013) (jurisdictional bar to review where noncitizen has committed an aggravated felony bars petition to review denial of relief under the convention against torture).

JUDICIAL REVIEW " PETITION FOR REVIEW " CONCESSION OF DEPORTABILITY
Escoto-Castillo v. Napolitano, 658 F.3d 864 (8th Cir. Oct. 13, 2011)(concession in expedited removal proceeding of deportability without relief precluded later petition for review of removal order, on grounds petitioner failed to exhaust administrative remedies); citing 8 U.S.C. 1252(d)(1); Gonzalez v. Chertoff, 454 F.3d 813, 816 (8th Cir.2006) (failure to timely respond to expedited removal Notice precludes merits review of the unexhausted issue); Wijono v. Gonzales, 439 F.3d 868, 871 (8th Cir.2006) (failure to raise due process issue to agency precludes merits review of the unexhausted issue); Fonseca"Sanchez v. Gonzales, 484 F.3d 439, 443"44 (7th Cir. 2007).

JUDICIAL REVIEW " PETITION FOR REVIEW " COURT OF APPEAL CANNOT CONSIDER STATE COURT ORDER ALTERING SENTENCE THAT WAS NOT PART OF THE ADMINISTRATIVE RECORD ON APPEAL
Escoto-Castillo v. Napolitano, 658 F.3d 864 (8th Cir. Oct. 13, 2011)(Escoto"Castillo's contention that his 2002 burglary conviction was not an aggravated felony is based entirely on a post-removal state court order, evidence that is not part of the administrative record on appeal. Congress has unambiguously provided that we may decide a petition for review only on the administrative record on which the order of removal is based.); citing INA 242(b)(4)(A); 8 U.S.C. 1252(b)(4)(A); Lukowski v. INS, 279 F.3d 644, 646 (8th Cir. 2002) (court refused to consider whether a post-removal state court sentence restructuring eliminated the aggravated-felony consequences of the conviction, because the order was not part of the administrative record on which the removal order was based).

JUDICIAL REVIEW - DISCRETION
Saleheen v. Holder, 618 F.3d 957 (8th Cir. Aug. 27, 2010) (no jurisdiction where BIA opinion plainly states relief was denied as a matter of discretion).

JUDICIAL REVIEW - PETITION FOR REVIEW - COURT COULD NOT REVIEW ELIGIBILITY FOR SPECIAL RULE CANCELLATION
Molina Jerez v. Holder, 625 F.3d 1058 (8th Cir. Aug. 25, 2010) (the court lacked jurisdiction to review underlying factual findings or discretionary judgments in denial of NACARA special rule cancellation of removal).

JUDICIAL REVIEW - RESTRICTIONS ON JUDICIAL REVIEW DID NOT PRECLUDE REVIEW OF DENIAL OF I-130 PETITION RELIEF - ADJUSTMENT OF STATUS
Ginters v. Frazier, 614 F.3d 822 (8th Cir. Aug. 5, 2010) (declaratory judgment granted holding jurisdictional bar of 8 U.S.C. 1252(a)(2)(B)(ii) did not preclude judicial review of the denial of an I-130 petition).

JUDICIAL REVIEW - PETITION FOR REVIEW - FINAL REMOVAL ORDER COULD BE CHALLENGED ONLY BY PETITION FOR REVIEW IN COURT OF APPEAL
Lang v. Napolitano, 596 F.3d 426 (8th Cir. Mar. 1, 2010) (affirming dismissal of complaint for injunction prohibiting DHS from removing plaintiff and a writ of mandamus ordering them "to issue a Notice to Appear before an immigration judge," where the DHS's letter to plaintiff was a final administrative order of removal reviewable only in a court of appeals, and the order was final absent a legal or constitutional defect that could not be remedied by a direct petition for review, and no court could prevent its execution).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION - COURT OF APPEALS COULD NOT REACH ISSUE OF DENIAL OF CONTINUANCE SINCE IT WAS NOT RAISED BEFORE BIA IN A TIMELY FILED BRIEF
Hanggi v. Holder, 563 F.3d 378 (8th Cir. Apr. 20, 2009) (petitioner failed to exhaust issue of denial of continuance where it was not raised in a timely filed brief before the BIA, and was thus not exhausted, precluding the court of appeals from reviewing the issue); citing Ming Ming Wijono v. Gonzales, 439 F.3d 868, 871 (8th Cir.2006); Etchu-Njang v. Gonzales, 403 F.3d 577, 582-83 (8th Cir.2005).

JUDICIAL REVIEW - JURISDICTIONAL BAR
Skurtu v. Mukasey, 552 F.3d 651(8th Cir. Dec. 24, 2008) (noncitizen barred from filing "complaint" alleging IJ committed errors and violated due process rights; appeal to the circuit court is the sole means of judicial review of removal proceedings; time limits for filing a petition for review are jurisdictional and mandatory; bars on judicial review do not violate suspension clause).

JUDICIAL REVIEW - DEFERENCE TO UNPUBLISHED DECISION
Godinez-Arroyo v. Mukasey, 540 F.3d 848, 2008 WL 3927229 (8th Cir. Aug. 28, 2008) ("Even if Chevron deference is inappropriate, however, the BIA opinion would nevertheless be eligible for a lesser form of deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). See Mead Corp., 533 U.S. at 234, 121 S.Ct. 2164 (noting that "Chevron did nothing to eliminate Skidmore's holding that an agency's interpretation may merit some deference whatever its form, given the specialized experience and broader investigations and information available to the agency ... and given the value of uniformity in its administrative and judicial understandings of what a national law requires" (internal citations and quotation omitted)). Under Skidmore deference, "the ruling is eligible to claim respect according to its persuasiveness," Mead Corp., 533 U.S. at 221, 121 S.Ct. 2164, but is "worth no more than its inherent persuasive value," Kai v. Ross, 336 F.3d 650, 655 (8th Cir.2003). The opinion is afforded weight "depend[ing] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade." Skidmore, 323 U.S. at 140, 65 S.Ct. 161; Kai, 336 F.3d at 655.").

JUDICIAL REVIEW - DISCRETIONARY BAR - ALTERNATIVE HOLDINGS DENYING RELIEF ON STATUTORY GROUNDS AND AS A MATTER OF DISCRETION
Kirong v. Mukasey, 529 F.3d 800 (8th Cir. Jun. 20, 2008) (although courts lacks jurisdiction to review discretionary denial of relief, court retained jurisdiction to review statutory ground of denial where the statutory basis for denial could result in the noncitizen being permanently inadmissible to the United States).

JUDICIAL REVIEW - DISCRETION AND CONSTITUTIONAL CLAIMS
Garcia-Aguillon v. Mukasey, 524 F.3d 848 (8th Cir. May 5, 2008) (noncitizens do not have constitutionally protected right to discretionary relief; noncitizen therefore failed to state colorable claim for voluntary departure).

JUDICIAL REVIEW - PETITION FOR REVIEW - COURT OF APPEAL HAS JURISDICTION TO REVIEW NONDISCRETIONARY DETERMINATIONS AFFECTING DENIAL OF RELIEF, INCLUDING MARRIAGE FRAUD AND VISA FRAUD ISSUES AS BARS TO CANCELLATION OF REMOVAL
Nguyen v. Mukasey, 522 F.3d 853 (8th Cir. Apr. 14, 2008) ( court of appeals has petition for review jurisdiction to consider validity of an order denying cancellation of removal where finding whether noncitizen committed marriage fraud or procured an immigration benefit by fraud or willful misrepresentation could result in permanent bar to entry).

Ninth Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " COURT OF APPEALS LACKS JURISDICTION TO REVIEW EXPEDITED REMOVAL ORDER
Pena v. Lynch, 804 F.3d 1258 (9th Cir. Sept. 28, 2015) (Court of Appeals lacked jurisdiction to consider alien's petition for review of expedited removal order under 8 U.S.C. 1225(b)(1), 1252(a)(2)(D), (e)).

JUDICIAL REVIEW " PETITION FOR REVIEW " BIA REVERSIBLE FOR LACK OF CLARITY
She v. Holder, 629 F.3d 958, 963-64 (9th Cir. 2010) ([W]e lack the clairvoyance necessary to confidently infer the reasoning behind the BIAs conclusion [ ] " reversing BIA for lack of clarity in reason for decision).

JUDICIAL REVIEW " DICTUM NOT ENTITLED TO DEFERENCE
Velazquez-Herrera v. Gonzales, 466 F.3d 781, 783 (9th Cir. 2006) (internal quotation marks omitted) (BIA dictum is not a statutory interpretation that carries the force of law, and thus is not entitled to deference); cf. United States v. Johnson, 256 F.3d 895, 914-15 (9th Cir. 2001) (a holding, as opposed to dicta, is reached after reasoned consideration, in which the court undeniably decided the issue, after argument from both parties).

JUDICIAL REVIEW " PETITION FOR REVIEW " REVIEW OF MOTION TO CONTINUE DECISION
Garcia v. Lynch, ___ F.3d ___, 2015 WL 4899018 (9th Cir. Aug. 18, 2015) (statutory criminal bar to judicial review at 8 U.S.C. 1252(a)(2)(C), does not strip the circuit court of jurisdiction to review the denial of a procedural motion that rests on a ground independent of the conviction that triggered the bar, such as an appeal based upon denial of a motion to continue).

JUDICIAL REVIEW " PETITION FOR REVIEW " MOOTNESS
Maldonado v. Lynch, ___ F.3d ___, 2015 WL 2343051 (9th Cir. May 18, 2015) (the petition for review was not moot notwithstanding petitioners removal after filing his petition for review, because there was solid evidence that the petitioner was currently present in the United States, seeking relief from removal to Mexico to avoid being killed, and thus continues to have a stake in the outcome of the petition for review). The court stated: When there are developments in a proceeding that suggest that it may be moot, we have an obligation to inquire whether a case or controversy under Article III of the Constitution continues to exist. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (per curiam). Of concern here is Maldonado's removal to Mexico after he filed his petition for review. After considering the government's response to our concern, we conclude that our review of Maldonado's petition has not been rendered moot by his removal. Mootness is a jurisdictional issue. Blandino"Medina v. Holder, 712 F.3d 1338, 1341 (9th Cir.2013). It can be described as the doctrine of standing set in a time frame. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)). For a dispute to remain live without being dismissed as moot, [t]he parties must continue to have a personal stake in the outcome of the lawsuit. Lewis v. Cont'l Bank Corp., 494 U.S. 472, 478, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (internal quotation marks omitted). (Id. at ___ [footnote omitted].)

JUDICIAL REVIEW " PETITION FOR REVIEW " FUGITIVE DISENTITLEMENT DOCTRINE
Maldonado v. Lynch, ___ F.3d ___, ___, 2015 WL 2343051 (9th Cir. May 18, 2015) (the petition for review did not warrant discretionary dismissal under the equitable fugitive disentitlement doctrine, which applies where a petitioner has fled custody and cannot be located when their appeals come before this court, since in this case, the petitioner is not a fugitive because he did not flee. He complied with his deportation order and was removed to Mexico.).

JUDICIAL REVIEW " LIMITATION TO ADMINISTRATIVE RECORD
Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (review is generally limited to the information in the administrative record: court is statutorily prevented from taking judicial notice of the Country Report that petitioner did not submit to the BIA). The court stated: We may review out-of-record evidence only where (1) the Board considers the evidence; or (2) the Board abuses its discretion by failing to consider such evidence upon the motion of an applicant. Id. at 964; see also Altawil v. INS, 179 F.3d 791, 792 (9th Cir. 1999) (order) (denying motion to reconsider order striking supplemental excerpts of record).

JUDICIAL REVIEW " JUDICIAL AND ADMINISTRATIVE NOTICE OF AGENCY RECORDS
Lising v. INS, 124 F.3d 996, 998-99 (9th Cir. 1997) (court is not precluded from taking judicial notice of an agencys own records; affirming taking judicial notice of application for naturalization); Gafoor v. INS, 231 F.3d 645, 655-57 (9th Cir. 2000) (court may take judicial notice of dramatic foreign developments that occur after the BIAs determination: taking judicial notice of Fijian coup which occurred after the BIAs decision), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2009); Singh v. Ashcroft, 393 F.3d 903, 905-07 (9th Cir. 2004) (court may also take judicial notice under Federal Rule of Evidence 201 of adjudicative facts not subject to reasonable dispute: taking judicial notice of existence and operations of Indian counter-terrorism agency and reversing negative credibility finding based on insufficient corroborative evidence). Note: When the agency takes administrative notice of events occurring after the merits hearing, it must provide notice to the parties, and in some cases, an opportunity to respond. See Circu v. Gonzales, 450 F.3d 990, 994-95 (9th Cir. 2006) (en banc) (IJ violated due process by taking judicial notice of a new country report without providing notice and an opportunity to respond). Notice of intent to take administrative notice is all that is required if extra-record facts and questions are legislative, indisputable, and general. See Getachew v. INS, 25 F.3d 841, 846 (9th Cir. 1994); Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992). However, more controversial or individualized facts require both notice to the alien that administrative notice will be taken and an opportunity to rebut the extra-record facts or to show cause why administrative notice should not be taken of those facts. Circu, 450 F.3d at 993 (emphasis in original, but internal quotation marks and alternation omitted). An example of an indisputable fact is a political partys victory in an election, whereas a controversial fact would be whether the election has vitiated any previously well-founded fear of persecution. Id. at 994 (internal quotation marks omitted).

JUDICIAL REVIEW " PETITION FOR REVIEW " DUE PROCESS " BIA VIOLATED DUE PROCESS BY FAILING TO ADDRESS PETITIONERS CLAIMS
Coronado v. Holder, ___ F.3d ___, 2014 WL 3537027 (9th Cir. Jul. 18, 2014) (superseding amended opinion) (granting petition for review, for violation of due process, where BIA failed to address petitioner's due process claims alleging ineffective assistance of counsel and bias by the immigration judge).

JUDICIAL REVIEW " PETITION FOR REVIEW " ABUSE OF DISCRETION
Tadevosyan v. Holder, 743 F.3d 1250 (9th Cir. Feb. 26, 2014) (BIA abused its discretion by according controlling weight to fact of DHS opposition to motion to reopen, without analyzing whether DHS was correct).

JUDICIAL REVIEW " PETITION FOR REVIEW " ABUSE OF DISCRETION
Tadevosyan v. Holder, 743 F.3d 1250 (9th Cir. Feb. 26, 2014) (granting petition for review because BIA failed to provide any reasoned explanation for its decision).

JUDICIAL REVIEW " PETITION FOR REVIEW " MOTION TO REOPEN " BIA PLACE-OF-FILING RULE
Hernandez v. Holder, 738 F.3d 1099 (9th Cir. Dec. 24, 2013) (place-of-filing rule for motions to reopen, which provides that a motion to reopen must be filed with the immigration judge when the BIA dismisses an appeal on jurisdictional grounds, is only a procedural claims-processing rule and not a jurisdictional bar to the BIA's authority to consider a motion to reopen).

JUDICIAL REVIEW " PETITION FOR REVIEW " GOVERNMENT WAIVER OF ARGUMENT BY FAILURE TO RESPOND
United States v. Caceres-Olla, 738 F.3d 1051 (9th Cir. Dec. 23, 2013) (by failing to respond to petitioners argument before the court of appeals that a conviction did not constitute a sexual abuse of a minor aggravated felony, the government waived reliance on that crime of violence theory); citing United States v. Castillo"Marin, 684 F.3d 914, 919 (9th Cir. 2012).

JUDICIAL REVIEW " DISTRICT COURT " VISA APPLICATION " CONSULAR NONREVIEWABILITY
Rivas v. Napolitano, 714 F.3d 1108 (9th Cir. Apr. 25, 2013) (court lacked jurisdiction to compel immigration authorities to act upon alien's visa application, but doctrine of consular nonreviewability did not bar federal court's jurisdiction over alien's action to require immigration authorities to act upon his request for reconsideration of the denial of the application).

JUDICIAL REVIEW " PETITION FOR REVIEW " GROUNDS " BIA MISAPPLICATION OF ITS OWN PRECEDENT
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. Feb. 13, 2013) (granting petition for review, since BIA misapplied its own precedent in holding that witnesses who testify against gang members may not constitute a particular social group due to a lack of social visibility for purposes of asylum eligibility).

JUDICIAL REVIEW " PETITION FOR REVIEW " GROUNDS " BIA MISAPPLICATION OF ITS OWN PRECEDENT
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. Feb. 13, 2013) (granting petition for review, since BIA misapplied its own precedent in holding that witnesses who testify against gang members may not constitute a particular social group due to a lack of social visibility for purposes of asylum eligibility).

JUDICIAL REVIEW " PETITION FOR REVIEW " BIA FAILURE ADEQUATELY TO EXPLAIN ITS REASONS
Alphonsus v. Holder, 705 F.3d 1031, 2013 WL 208930 (9th Cir. Jan. 18, 2013) (BIA did not adequately explain its reasons for designating noncitizens conviction for resisting arrest as a particularly serious crime rendering him ineligible for withholding from removal; In making a discretionary immigration decision, the agency must indicate how it weighed the factors involved and how it arrived at its conclusion.).

JUDICIAL REVIEW " PETITION FOR REVIEW " CONSTITUTIONAL CHALLENGE
Alphonsus v. Holder, 705 F.3d 1031, 1041-41 (9th Cir. Jan. 18, 2013) (holding void-for-vagueness constitutional doctrine applies to allow a facial constitutional vagueness challenge to 8 U.S.C. 1231(b)(3)(B)(ii), maintaining that the provision is unconstitutionally vague because the statute provides no definition of particularly serious crime, to be made, but rejecting it on the merits; [T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Although 1231(b)(3)(B)(ii) is not a criminal statute, we entertain Alphonsus's vagueness challenge because of the harsh consequences attached to a particularly serious crime determination and the attendant denial of withholding of removal. See Jordan v. De George, 341 U.S. 223, 230"31, 71 S.Ct. 703, 95 L.Ed. 886 (1951) (reviewing a vagueness challenge to the crime involving moral turpitude designation, in view of the grave nature of deportation).).

JUDICIAL REVIEW " PETITION FOR REVIEW " BIA CAN DEPART FROM ESTABLISHED PRECEDENT ONLY IN PUBLISHED DECISION THAT GIVES ADEQUATE REASONS FOR THE DEPARTURE
Alphonsus v. Holder, 705 F.3d 1031, 2013 WL 208930 (9th Cir. Jan. 18, 2013) (an agency changing course must do so in a format capable of modifying an earlier interpretation. Here, an unpublished, non-precedential opinion in this case could not modify earlier, published precedential opinions even if adequate reasons were given for the departure. See Hernandez v. Ashcroft, 345 F.3d 824, 846"47 (9th Cir.2003).).

JUDICIAL REVIEW " PETITION FOR REVIEW " INCORRECT LEGAL STANDARD
Ridore v. Holder, 696 F.3d 907 (9th Cir. Oct. 3, 2012) (BIA committed legal error by reviewing the IJ's findings under a de novo rather than clear error standard).

JUDICIAL REVIEW " BOARD OF IMMIGRATION APPEALS " DE NOVO REVIEW OF FACTUAL FINDINGS
Rodriguez v. Holder, 683 F.3d 1164, *1170 (9th Cir. Jun. 27, 2012) (BIA erred by making its own factual determination and engaging in de novo review of the IJ's factual findings; 8 C.F.R. 1003.1(d)(3)(i), (iv), allow it to review findings of fact only for clear error, and prohibit it from making its own factual determinations). The court described the correct standard of review as follows: The BIA may find an IJ's factual finding to be clearly erroneous if it is illogical or implausible, or without support in inferences that may be drawn from the facts in the record. Anderson v. Bessemer City, 470 U.S. 564, 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); see also United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) (en banc).(Footnote omitted.) The Supreme Court's opinion in Anderson is extremely helpful to our understanding of the limits on the BIA when it reviews the IJ's factual findings for clear error. In fact, the Department of Justice cited Anderson in the explanatory comments that it issued to accompany the new regulations adopting the clear error standard of review, and concluded that [a] factfinding may not be overturned simply because the Board would have weighed the evidence differently or decided the facts differently had it been the factfinder. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed.Reg. 54,878, 54,889 (Aug. 26, 2002) (citing Anderson, 470 U.S. at 573, 105 S.Ct. 1504). Anderson provides important guidance on the purpose and limits of the clear error standard: Th[e clear error] standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty ... if it undertakes to duplicate the role of the lower court.... If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. 470 U.S. at 573"74, 105 S.Ct. 1504 (emphasis added); see also Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 857"58, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (An appellate court cannot substitute its interpretation of the evidence for that of the trial court simply because the reviewing court might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent. (quoting United States v. Real Estate Boards, 339 U.S. 485, 495, 70 S.Ct. 711, 94 L.Ed. 1007 (1950))). In particular, where credibility determinations are at issue, Anderson counsels that even greater deference must be afforded to the IJ's factual findings, for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said. Id. at 575, 105 S.Ct. 1504 (citing Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). Similarly, the Fourth Circuit very recently noted that IJs hear witnesses and determine the credibility of evidence. The BIA reviews a paper record, devoid of the nuances of weighing evidence first hand. The IJ is thus in a better position to make factual determinations than the BIA acting in an appellate capacity. Turkson, 667 F.3d at 527. Of course, as the Anderson Court rightly pointed out, [t]his is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. 470 U.S. at 575, 105 S.Ct. 1504. In certain circumstances, Anderson explains, the weight of the record may overcome a positive credibility determination: Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. Id. (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 396, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). However, the Anderson court concluded by explaining that when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error. Id. (emphasis added). In the context of this case, it would be error for the BIA to hold that the IJ's findings of fact and credibility determinations were clearly erroneous if those findings and determinations were not illogical or implausible and had support in inferences that may be drawn from the record, and if Lopez"Rodriguez's testimony is uncontradicted by objective evidence and internally consistent. (Id. at ___.)

JUDICIAL REVIEW " PETITION FOR REVIEW " QUESTIONS OF LAW " STANDARD OF REVIEW
Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. Jun. 27, 2012) (whether BIA applied correct standard of review of an issue is a question of law reviewable by the court of appeals on a petition for review); Arteaga v. I.N.S., 836 F.2d 1227, 1228 (9th Cir.1988), abrogated on other grounds by I.N.S. v. Elias"Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir. 2006) (holding that the court can determine whether the BIA applied the correct legal standard in making its determination), overruled on other grounds by Estrada"Espinoza v. Mukasey, 546 F.3d 1147, 1160 n. 15 (9th Cir. 2008) (en banc).

JUDICIAL REVIEW " PETITION FOR REVIEW " QUESTIONS OF LAW "STANDARD OF REVIEW
Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. Jun. 27, 2012) (BIA fails to apply the correct legal standard where it states the correct standard, but actually engaged in prohibited de novo review or fact-finding); see (Alvarado de Rodriguez v. Holder), 585 F.3d 227, 235 (5th Cir.2009) (Quite simply, the BIA is not entitled to state the correct legal standard but actually apply an incorrect standard.); Kabba v. Mukasey, 530 F.3d 1239, 1246 (10th Cir. 2008) (Although the BIA's opinion set forth the correct standard of review and recited a conclusion that the IJ's credibility findings were clearly erroneous, the BIA did not apply this deferential standard in substance.); Chen, 470 F.3d at 515 (Although the BIA used the phrase clearly erroneous' in its opinion, the review it conducted in fact was to independently assess Chen's credibility without giving deference to the findings of the IJ. This is de novo review ....).

JUDICIAL REVIEW " CIRCUIT PANEL CONSISTENCY
United States v. Ramos-Medina, 682 F.3d 852, 857-858 (9th Cir. June 21, 2012) Where there has been no change in the relevant statues, regulations or governing authority, such as an intervening decision of the Supreme Court, only an en banc panel of our court may overrule or revise the binding precedent established by a published opinion. As we observed in Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc): 'A goal of our circuit's decisions, including panel and en banc decisions, must be to preserve the consistency of circuit law. The goal is codified in procedures governing en banc review. See 28 U.S.C. 46; Fed. R.App. P. 35.' This panel is not free to disregard the decision of another panel of our court simply because we think the arguments have been characterized differently or more persuasively by a new litigant.").

RELIEF " CONSULAR PROCESSING " CONSULAR NONREVIEWABILITY " JUDICIAL REVIEW
Rivas v. Napolitano, 677 F.3d 849 (9th Cir. Apr. 25, 2012) ("Federal courts are generally without power to review the actions of consular officials. Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986). However, at least two exceptions to this rule exist. First, a court has jurisdiction to review a consular official's actions 'when [the] suit challenges the authority of the consul to take or fail to take an action as opposed to a decision within the consul's discretion.' Patel v. Reno, 134 F.3d 929, 931"32 (9th Cir.1997). Second, the court has jurisdiction to review a consular official's acti5ons when the government denies a visa without a 'facially legitimate and bona fide reason.' Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.2008)."; the Mandamus Act, at 28 U.S.C. 1361 give the court jurisdiction to require Government take action to consider request to review denial of an I-601 waiver).

CRIMES OF MORAL TURPITUDE " STATUTORY INTERPRETATION " CHEVRON DEFERENCE IS NOT DUE WHERE BIA RELIES ON FLAWED RATIONALE
Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. Apr. 23, 2012) (court of appeals did not give Chevron deference to BIA holding that federal conviction of misprision of a felony, in violation of 18 U.S.C. 4, was categorically a crime involving moral turpitude, where BIA relied on flawed rationale that an offense which contravenes societal duties is enough to make it a crime involving moral turpitude, since under that rationale, every crime would involve moral turpitude); following Navarro"Lopez v. Gonzales, 503 F.3d 1063, 1070 (9th Cir. 2007) (en banc) (Reinhardt, J., concurring for the majority), overruled on other grounds by United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc).

JUDICIAL REVIEW " PETITION FOR REVIEW " COLLATERAL ESTOPPEL APPLIES IN IMMIGRATION PROCEEDINGS
Oyeniran v. Holder, 672 F.3d 800 (9th Cir. Mar. 6, 2012, amended May 3, 2012) (collateral estoppel applies in immigration proceedings; BIAs prior determination that alien had demonstrated he would be tortured upon his return to Nigeria was binding on the government in subsequent proceedings; BIA abused its discretion by denying motion to reopen on ground that alien knew of purported new evidence at time of the original ruling, where it was uncontroverted that alien lacked access to that evidence at that time, and the evidence was significant, dramatic, and compelling).

JUDICIAL REVIEW " PETITION FOR REVIEW " EXHAUSTION OF ADMINISTRATIVE REMEDIES
Kwong v. Holder, ___ F.3d ___, 2011 WL 6061513 (9th Cir. Dec. 7, 2011)(respondents action in making a motion to reopen and terminate removal proceedings, arguing that the DHS had not submitted sufficient evidence to establish that he had been convicted of first-degree burglary, was sufficient to exhaust that issue for purposes of a petition for review, where the IJ addressed and decided that issue on the merits, and the BIA adopted the IJ's reasoning and affirmed for for the reasons stated therein, so the IJ's discussion of the issue is sufficient, in and of itself, to overcome an exhaustion challenge); see Abebe, 432 F.3d at 1037, 1041 (9th Cir. Dec. 30, 2005) (When the BIA has ignored a procedural defect and elected to consider an issue on its substantive merits, we cannot then decline to consider the issue based upon this procedural defect.).

JUDICIAL REVIEW " PETITION FOR REVIEW " EXHAUSTION OF ADMINISTRATIVE REMEDIES
Kwong v. Holder, ___ F.3d ___, 2011 WL 6061513 (9th Cir. Dec. 7, 2011)(respondents action in making a motion to reopen and terminate removal generally challenging the sufficiency of the evidence to show he was convicted of first-degree burglary was sufficient to exhaust the issue of the sufficiency of the abstract of judgment to prove that fact: While Kwong is required to raise every issue in the administrative proceedings, this court retains jurisdiction where the issue in question [has] been argued in a slightly different manner [below].); quoting Cruz"Navarro v. INS, 232 F.3d 1024, 1030 n. 8 (9th Cir.2000).

JUDICIAL REVIEW " PETITION FOR REVIEW " ESTOPPEL " DEFINITION
Perez-Mejia v. Holder, ___ F.3d ___, ___, 2011 WL 5865888 (9th Cir. Nov. 23, 2011), amending 641 F.3d 1143 (9th Cir. Apr. 21, 2011). In Perez-Mejia v. Holder, the Ninth Circuit explained the elements of a successful claim of estoppel against the government: It is well settled ... that the government may not be estopped on the same terms as a private litigant. Watkins, 875 F.2d at 706. A party seeking to raise estoppel against the government must establish affirmative misconduct going beyond mere negligence; even then, estoppel will only apply where the government's wrongful act will cause a serious injustice, and the public's interest will not suffer undue damage by imposition of the liability. Morgan v. Gonzales, 495 F.3d 1084, 1092 (9th Cir.2007) (quoting Watkins, 875 F.2d at 707). Moreover, a party cannot obtain estoppel against the government if he did not lose any rights to which he was entitled. Id. There is no single test for detecting the presence of affirmative misconduct; each case must be decided on its own particular facts and circumstances. Affirmative misconduct does require an affirmative misrepresentation or affirmative concealment of a material fact by the government, although it does not require that the government intend to mislead a party. Watkins, 875 F.2d at 707 (citations omitted). If a litigant survives this initial inquiry, the court considers four elements to determine if the government is estopped: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former's conduct to his injury. Morgan, 495 F.3d at 1092 (quoting Watkins, 875 F.2d at 709). (Id. at ___.)

JUDICIAL REVIEW " PETITION FOR REVIEW " ESTOPPEL " GOVERNMENTS ERROR IN GRANTING LPR STATUS DESPITE CONVICTION DID NOT PREVENT IT FROM LATER CORRECTING ITS MISTAKE AND ORDERING REMOVAL
Perez-Mejia v. Holder, ___ F.3d ___, ___, 2011 WL 5865888 (9th Cir. Nov. 23, 2011), amending 641 F.3d 1143 (9th Cir. Apr. 21, 2011) (The government is not estopped by its error in granting Perez"Mejia LPR status from correcting its mistake and ordering his removal.).

JUDICIAL REVIEW " PETITION FOR REVIEW " EXHAUSTION
Arsdi v. Holder, 659 F.3d 925 (9th Cir. Oct. 24, 2011) (no jurisdiction to review a specific claim where the respondent only made a general allegation that immigration judge erred in denying relief without alleging specific issues); citing INA 242(d)(1), 8 U.S.C. 1252(d)(1) (court of appeal has jurisdiction to review final removal order only if the petitioner has exhausted all administrative remedies available to the alien as of right.).

JUDICIAL REVIEW " PETITION FOR REVIEW ARTICLE " THE EXHAUSTION DOCTRINE IN REVIEWING REMOVAL ORDERS BY PETITION FOR REVIEW IN THE NINTH CIRCUIT
In Arsdi v. Holder, 659 F.3d 925 (9th Cir. Oct. 24, 2011), the Ninth Circuit held it lacked jurisdiction to consider petition for review of claim that Immigration Judge used wrong standard to decide whether conviction was for particularly serious crime to bar relief, since the petitioner failed to exhaust the claim by presenting it to the BIA in a way that afforded the BIA notice and a chance to correct its own errors. He made only a general allegation that the IJ erred in denying him relief, and failed to specify which issues form the basis of the appeal. INA 242(d)(1), 8 U.S.C. 1252(d)(1) (court of appeal has jurisdiction to review final removal order only if the petitioner has exhausted all administrative remedies available to the alien as of right.). The court laid out the general rules governing decision of a claim that a petitioner has failed to exhaust an issue: Our jurisdiction to hear Arsdi's claim is subject to the strict limits placed by Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104"208, 110 Stat. 3009 (1996), and the REAL ID Act of 2005, Pub.L. No. 109"13, 119 Stat. 231 (2005). As such, we have jurisdiction to review only if he has exhausted all administrative remedies available to the alien as of right. 8 U.S.C. 1252(d)(1). If Arsdi did not exhaust his claim that the IJ applied the wrong standard to determine whether his crime was particularly serious, we simply may not review that decision here. As we have often reiterated, [i]t is a well-known axiom of administrative law that if a petitioner wishes to preserve an issue for appeal, he must first raise it in the proper administrative forum. Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004) (quoting Tejeda"Mata v. INS, 626 F.2d 721, 726 (9th Cir.1980)). In examining whether the petitioner has met this requirement, we give due regard for the particular administrative scheme at issue. Id. (quoting Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)). This rule prevent[s] premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors. Weinberger, 422 U.S. at 765, 95 S.Ct. 2457. In this administrative scheme, an alien must first appeal any purported errors by the IJ to the BIA, the body to which consistent application of immigration law is primarily entrusted. See 8 C.F.R. 1003.1(b). We have repeatedly held that failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and *929 deprives this court of jurisdiction to hear the matter. Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.2004) (quoting Vargas v. U.S. Dep't of Immigration & Naturalization, 831 F.2d 906, 907"08 (9th Cir.1987)). (Arsdi v. Holder, 659 F.3d 925, 930 (9th Cir. Oct. 24, 2011).) The court also stated: As the government points out, an alien may also move for reconsideration or reopening of the IJs decision. See 8 U.S.C. 1229a(c)(6)-(7). Because these motions are not remedies available to the alien, as of right, an alien need not use them in order to exhaust his claim. 8 U.S.C. 1252(d)(1). However, these multifarious methods of review highlight the import Congress placed on allowing the agency to correct its own mistakes prior to interference by the federal courts. (Id. at n.4.)

JUDICIAL REVIEW " EXHAUSTION
Arsdi v. Holder, 659 F.3d 925, 930 (9th Cir. Oct. 24, 2011) (As the government points out, an alien may also move for reconsideration or reopening of the IJs decision. See 8 U.S.C. 1229a(c)(6)-(7). Because these motions are not remedies available to the alien, as of right, an alien need not use them in order to exhaust his claim. 8 U.S.C. 1252(d)(1). However, these multifarious methods of review highlight the import Congress placed on allowing the agency to correct its own mistakes prior to interference by the federal courts.).

JUDICIAL REVIEW " EXHAUSTION " MOTION TO REOPEN NOT REQUIRED
Arsdi v. Holder, 659 F.3d 925, 930 (9th Cir. Oct. 24, 2011) (As the government points out, an alien may also move for reconsideration or reopening of the IJs decision. See 8 U.S.C. 1229a(c)(6)-(7). Because these motions are not remedies available to the alien, as of right, an alien need not use them in order to exhaust his claim. 8 U.S.C. 1252(d)(1). However, these multifarious methods of review highlight the import Congress placed on allowing the agency to correct its own mistakes prior to interference by the federal courts.).

JUDICIAL REVIEW " ABUSE OF DISCRETION " ERROR OF LAW IS AN ABUSE OF DISCRETION
James v. Schriro, 659 F.3d 855 (9th Cir. Oct. 12, 2011) (an error of law is an abuse of discretion); Strauss v. Comm'r, 635 F.3d 1135, 1137 (9th Cir.2011) (An error of law is an abuse of discretion.).

JUDICIAL REVIEW " PETITION FOR REVIEW " DENIAL OF CONTINUANCE " ABUSE OF DISCRETION
Jiang v. Holder, 658 F.3d 1118 (9th Cir. Sept. 26, 2011) (We weigh four factors to determine whether the BIA has abused its discretion in denying a continuance: 1) the importance of the evidence, 2) the unreasonableness of the immigrant's conduct, 3) the inconvenience to the court, and 4) the number of continuances previously granted.); citing Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir.2008); citing Baires v. INS, 856 F.2d 89, 92"93 (9th Cir.1988).

JUDICIAL REVIEW " PETITION FOR REVIEW " BIA MUST ADDRESS ALL OF PETITIONERS CLAIMS
Cole v. Holder, 659 F.3d 762 (9th Cir. Sept. 22, 2011) (petition for review is granted where BIA failed to give reasoned consideration to potentially dispositive expert testimony).

STATUTORY INTERPRETATION " A DECISION INTERPRETING A STATUTE APPLIES RETROACTIVELY
United States v. Reina-Rodriguez, 655 F.3d 1182 (9th Cir. Sept. 13, 2011) (the Grisel rule applies retroactively to this case, and the Supreme Courts decision in Teague does not preclude this, since (1) Teague applies only to new constitutional rules of criminal procedure.; (2) Teague by its terms applies only to procedural rules); see United States v. Grisel, 488 F.3d 844, 851 n.5 (9th Cir. 2007) (en banc) (state statutes do not categorically constitute burglary when they define it to include non-buildings adapted for overnight accommodation, courts must utilize the modified categorical approach to determine whether a dwelling in Utah meets the Guidelines' definition of dwelling.; A non-building adapted for accommodation"e.g., a vehicle or boat"may still qualify as a dwelling under the Guidelines, but it does not do so categorically.).

JUDICIAL REVIEW " PETITION FOR REVIEW " PARTICULARLY SERIOUS CRIME RELIEF " POLITICAL ASYLUM " PARTICULARLY SERIOUS CRIME
Delgado v. Holder, 648 F.3d 1095 (9th Cir. Aug. 19, 2011)(No. 03-74442) (court of appeals has jurisdiction to review BIA decision that noncitizen was convicted of a particularly serious crime).

JUDICIAL REVIEW " ISSUES NOT RAISED
Hernandez-Cruz v. Holder, ___ F.3d ___, ___n.19 (9th Cir. Jul. 7, 2011) (Because the BIA did not rely on Silva-Trevino in this case, we cannot consider whether Silva-Trevino can be reconciled with our precedent. See Marmolejo-Campos, 558 F.3d at 907 n.6 (As th[e] question is not squarely before us, we reserve judgment as to the validity of that portion of our prior case law which suggests review should be more confined [than that permitted by Silva-Trevino].); see also Guardado-Garcia v. Holder, 615 F.3d 900, 902 (8th Cir. 2010) ([T]o the extent Silva-Trevino is inconsistent, we adhere to circuit law.); Jean-Louis v. Atty Gen., 582 F.3d 462, 470 (3d Cir. 2009) (rejecting Silva-Trevinos novel approach in favor of the modified categorical approach that we have historically applied). Although it mentions Silva-Trevino, the Government neither briefed whether we should follow Silva-Trevino, despite its conflict with our prior case law, nor argued that we should remand for the BIA to consider Hernandez-Cruzs convictions under Silva-Trevino in the first instance. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (holding that an argument not addressed in an answering brief is waived). For all these reasons, we decide the case on the basis of the categorical and modified categorical approaches, which the BIA used in this case.).

JUDICIAL REVIEW " HABEAS " BIA DENIAL OF STAY OF REMOVAL
Shaboyan v. Holder, ___ F.3d ___ (9th Cir. Jun. 29, 2011) (BIA denial of stay of removal can only be challenged by federal habeas corpus under 28 U.S.C. 2241 in the United States District Court).

DETENTION " JUDICIAL REVIEW " EXHAUSTION
Leonardo v. Crawford, ___ F.3d ___, 2011 WL 1814706 (9th Cir. May 13, 2011) (noncitizen was required to exhaust his administrative remedies by appealing to the Board of Immigration Appeals before seeking habeas review of immigration judge's adverse bond determination).

RELIEF " WAIVERS " 212(c) WAIVER OF INADMISSIBILITY " RES JUDICATA
Paulo v. Holder, ___ F.3d ___, 2011 WL 1663572 (9th Cir. May 4, 2011) (res judicata binds BIA to the final decision of the district court, which held that petitioner, a native and citizen of the Philippines, is eligible for discretionary relief under INA 212(c); issue preclusion bars re-litigation where one party could have raised an issue but failed to do so during the original hearing; even if issue preclusion allows re-litigation in light of a subsequent change in the law, Matter of Blake did not constitute a change in the law).

JUDICIAL REVIEW " PETITION FOR REVIEW " JURISDICTION OVER CHALLENGE TO VISA WAIVER PROGRAM AGREEMENT AS NOT KNOWING OR VOLUNTARY
Bingham v. Holder, ___ F.3d ___ (9th Cir. Mar. 23, 2011) (circuit court has jurisdiction to review removal order where noncitizen challenged validity of waiver agreement under Visa Waiver Program based on claim that the VWP waiver was not knowing and voluntary; allegedly unknowing waiver did not result in prejudice where noncitizen did not show he would have been able to contest his removal on any other ground or that he would have declined to sign the waiver if he had been fully informed).

JUDICIAL REVIEW " DEFERENCE
Saavedra-Figueroa v. Holder, 625 F.3d 621 (9th Cir. Nov. 5, 2010) (If the BIA issues or relies on a precedential determination to conclude that a particular crime is a CIMT, we accord it Chevron deference; otherwise, we defer to the BIA's determination only to the extent that it has power to persuade (Skidmore deference).), discussing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 910-11, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)).

JUDICIAL REVIEW " PETITION FOR REVIEW " MOTION TO REOPEN
Saavedra-Figueroa v. Holder, 625 F.3d 621 (9th Cir. Nov. 5, 2010) (We lack jurisdiction over a petition for review when the BIA reopens an alien's removal proceedings. See Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir.2002) (the BIA's reopening of the case divested us of jurisdiction); Timbreza v. Gonzales, 410 F.3d 1082, 1083 (9th Cir.2005) (same); accord Yuan Gao v. Gonzales, 464 F.3d 728, 730 (7th Cir.2006) (where the BIA reconsiders a final order of removal, there is nothing [for the appellate court] to retain jurisdiction of). As we explained in Cordes v. Mukasey, The remand for further proceedings is what caused us to lose jurisdiction. Otherwise, this court and the IJ would both have been considering the same thing at the same time: [petitioner's] removal. 517 F.3d 1094, 1095 (9th Cir.2008).).

JUDICIAL REVIEW " PETITION FOR REVIEW " CIRCUIT COURT CANNOT AFFIRM BIA ON GROUND UPON WHICH IT DID NOT RELY
Arredondo v. Holder, 623 F.3d 1317 (9th Cir. Nov. 2, 2010) (remanding case to the BIA where: (1) the BIAs own decision did not provide legal basis sufficient for review; and (2) the BIAs decision failed to address the reasoning of the immigration judge, and thus the Circuit court also cannot address the reasoning of the immigration judge, and the Circuit court cannot affirm the BIA on a ground upon which the BIA did not rely).

JUDICIAL REVIEW " PETITION FOR REVIEW " COURT CANNOT AFFIRM BIA ON A GROUND ON WHICH IT DID NOT RELY
Arredondo v. Holder, 623 F.3d 1317 (9th Cir. Nov. 2, 2010) (the court of appeals cannot affirm the BIA on a ground on which it did not rely); following Naas v. INS, 217 F.3d 646, 658 n. 16 (9th Cir. 2000).

JUDICIAL REVIEW " DEFERENCE " CRIME OF MORAL TURPITUDE
Mendoza v. Holder, 623 F.3d 1299, 1303 (9th Cir., Oct. 27, 2010) (because Congress's intent is not clear regarding the definition of moral turpitude, we apply Chevron deference to the BIA's precedential case-by-case adjudications determining which crimes involve moral turpitude. Id. at 908-09. The BIA's interpretation is entitled to deference so long as it is a permissible construction of the statute. Id. at 909 (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).).

JUDICIAL REVIEW " PETITION FOR REVIEW " FINAL REMOVAL ORDER REQUIRED
Galindo-Romero v. Holder, 621 F.3d 924 (9th Cir. Sept. 2, 2010), amended, 640 F.3d 873 (9th Cir. May 09, 2011) (court of appeals lacks jurisdiction to decide merits of petition for review where decisions of the BIA and IJ did not result in final order of removal).

JUDICIAL REVIEW " PETITION FOR REVIEW " BIA FAILURE TO EXERCISE DISCRETION
Garcia v. Holder, 621 F.3d 906 (9th Cir. Sept. 1, 2010) (petition for review granted where BIA failed to exercise its discretion to consider or decline to consider supplemental brief).

JUDICIAL REVIEW - FEDERAL - HABEAS - EXHAUSTION OF AVAILABLE ADMINISTRATIVE REMEDIES REQUIRED AS "A PRUDENTIAL MATTER"
Singh v. Napolitano, 619 F.3d 1101 (9th Cir. Aug. 23, 2010) (per curiam) ("In order to seek habeas relief under [28 U.S.C. 2241], as Singh does, a petitioner must first, "as a prudential matter," exhaust his or her available administrative remedies."), citing Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001).

JUDICIAL REVIEW - RES JUDICATA
Mendoza v. Holder, 606 F.3d 1137 (9th Cir. Jun. 2, 2010) (no res judicata bar when previously known conviction was paired with a new conviction to trigger removal for multiple crimes of moral turpitude).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION - COURT OF APPEALS HAS NO JURISDICTION TO REVIEW CLAIM NOT RAISED IN ADMINISTRATIVE PROCEEDING
Segura v. Holder, ___ F.3d ___, 2010 WL 2089396 (9th Cir. May 26, 2010) ("We can exercise jurisdiction over a claim only if the alien has exhausted all administrative remedies available to the alien as of right. 8 U.S.C. 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).").

JUDICIAL REVIEW - PETITION FOR REVIEW - BIA MUST PROVIDE REASONED EXPLANATION FOR ITS DECISION THAT CAN BE REVIEWED
Eneh v. Holder, 601 F.3d 943, 947 (9th Cir. Apr. 15, 2010) ("It is unclear whether the BIA adopted the IJ's reasoning in its entirety, affirmed on alternate grounds, added an additional ground for denying Eneh's claim, or simply misconstrued the IJ decision. Such ambiguity in the midst of the BIA's already limited analysis makes us unable to review the decision below in an adequate manner. See, e.g., Garcia Gomez v. Gonzales, 498 F.3d 1050, 1051 (9th Cir.2007) ("[T]he BIA's sparse reasoning was inadequate to enable [the Court of Appeals] to perform any meaningful review." (internal quotation marks omitted) (alteration in original)); Franco-Rosendo v. Gonzales, 454 F.3d 965, 966 (9th Cir.2006) ("In order for the court to exercise our limited authority, there must be a reasoned explanation by the BIA of the basis for its decision.").").

JUDICIAL REVIEW - HABEAS - NO JURISDICTION VIA HABEAS CORPUS TO CHALLENGE DENIAL OF ADJUSTMENT - REAL ID ACT
Morales-Izquierdo v. DHS, 600 F.3d 1076 (9th Cir. Apr. 2, 2010) (where a noncitizen is subject to reinstatement of a prior removal order, the REAL ID Act requires challenge of the denial of adjustment-of-status to be part of a petition for review of the reinstatement order, rather than being brought through habeas corpus).

JUDICIAL REVIEW - RETROACTIVE APPLICATION OF COURTS INTERPRETATION OF A STATUTE - ONE-AND-ONLY MEANING
Morales-Izquierdo v. DHS, 600 F.3d 1076, 1090 (9th Cir. Apr. 2, 2010) ("when a court interprets a statute, even an ambiguous one, and even when that interpretation conflicts with the court's own prior interpretation, the new interpretation is treated as the statute's one-and-only meaning. See Griffith v. Kentucky, 479 U.S. 314, 323, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ("[The] assertion of power to disregard current law in adjudicating cases ... that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation." (quoting Mackey v. United States, 401 U.S. 667, 679, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in the judgment))). As the Supreme Court has said when interpreting our national charter, "[t]he source of a new rule is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule." Danforth v. Minnesota, 552 U.S. 264, 271, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008).")

STATUTORY INTERPRETATION - PRESUMPTION AGAINST REPEAL BY IMPLICATION
Ledezma-Garcia v. Holder, 599 F.3d 1055, 1059 (9th Cir. Mar. 22, 2010) ("Applying the heavy presumption against repeals by implication, see Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662-64, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007); Radzanower v. Touche Ross & Co., 426 U.S. 148, 153-54, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976), we agree with Ledezma-Galicia that the ADAA's temporal limitation remains in effect as an exception to other temporal provisions enacted later, and precludes his deportation.").

STATUTORY INTERPRETATION - PRESUMPTIONS - PRESUMPTION AGAINST RETROACTIVITY OF STATUTES
Ledezma-Garcia v. Holder, 599 F.3d 1055 (9th Cir. Mar. 22, 2010) (there is a general rule of statutory interpretation, i.e., a presumption against retroactively applied statutes); see Landgraf v. U.S.I. Film Prods., 511 U.S. 244 (1994).

STATUTORY INTERPRETATION - DEFERENCE TO AGENCY INTERPRETATIONS - NO DEFERENCE IS DUE IF THE STATUTE IS NOT AMBIGUOUS
Ledezma-Garcia v. Holder, 599 F.3d 1055, 1062 (9th Cir. Mar. 22, 2010) ("the BIA's interpretation of IMMAct 602(c) merits no deference because, when read in light of the applicable principles of statutory interpretation, [because] that provision is not ambiguous in the respect the BIA supposed that it was."); overruling Matter of Lettman, 22 I. & N. Dec. 365 (BIA 1998) (en banc).

JUDICIAL REVIEW - CRIMINAL BARS
Ledezma-Garcia v. Holder, 599 F.3d 1055 (9th Cir. Mar. 22, 2010) (although the "aggravated felony" definition applies regardless of the date of conviction, an aggravated felony conviction occurring prior to November 18, 1988 does not trigger deportability under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)), overruling Matter of Lettman, 22 I. & N. Dec. 365 (BIA 1998) (en banc). In 1996, Congress enacted restrictions against judicial review of final removal orders for noncitizens "removable" for criminal grounds under INA 237(a)(2), including aggravated felony convictions. To trigger this bar, the removal order must be based upon the criminal offense, but the particular ground does not matter. 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 regardless of the date of conviction. Because this limitation depends upon being "removable," under Ledezma it should not bar judicial review based on an aggravated felony conviction occuring prior to November 18, 1988.

JUDICIAL REVIEW - MOTION TO REOPEN REMAINS PENDING DESPITE PHYSICAL REMOVAL OF PETITIONER BY UNITED STATES
Coyt v. Holder, 593 F.3d 902 (9th Cir. Jan. 20, 2010) (involuntary physical removal of petitioner by the United States did result in automatic withdrawal of motion to reopen; 8 C.F.R. 1003.2(d) is ultra vires to the INA as applied to noncitizens removed from the U.S. by the DHS). The court reasoned that the regulation "would completely eviscerate the statutory right to reopen provided by Congress if the agency deems a motion to reopen constructively withdrawn whenever the government physically removes the petitioner while his motion is pending." The court declined to decide whether the regulation would be valid if the person departed voluntarily or was not "physically removed." (It is not clear what the court meant by "physically removed" and what constitutes an "involuntary removal," but in this case, the petitioner had filed a motion to stay removal with the BIA, but he was removed before the BIA had ruled on it.) Further, the courts reasoning should apply to permit the adjudication of a motion to reopen filed after a person is deported. The Ninth Circuit is the third court to address the validity of the regulation vis--vis the motion to reopen statute. See also William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (striking down regulation); Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009) (upholding regulation). The BIA also has weighed in, affirming the application of the departure bar in Matter of Armendarez, 24 I&N Dec. 646 (BIA 2008). The American Immigration Council and the National Immigration Project have been working with petitioners to challenge the validity of the regulation. We recently filed a brief in the Ninth Circuit in a case which may address some of the unresolved issues in Martinez Coyt and also are litigating this issue in the Sixth Circuit. Please contact clearinghouse@immcouncil.org if you have a case raising this issue.

JUDICIAL REVIEW - PETITION FOR REVIEW - REMAND TO ALLOW THE BIA TO DECIDE QUESTION IN THE FIRST INSTANCE IS INAPPROPRIATE WHERE THE AGENCY IN FACT ALREADY RULED ON THE ISSUE
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) ("The BIA did take a position on the issue and it is one with which, as explained above, we do not agree. Remand is not appropriate when the BIA addressed an issue and its opinion is reversed."), citing Li v. Ashcroft, 356 F.3d 1153, 1161 n. 7 (9th Cir. 2004).

DEFERENCE - CHEVRON DEFERENCE
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) ("This court must give deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to the "agency's construction of the statute [that] it administers." Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 678 (9th Cir.2005). However, in order to be entitled to Chevron deference, the agency's construction must have been issued in "binding agency precedent on-point (either in the form of a regulation or a published BIA case)." Kyung Park v. Holder, 572 F.3d 619, 623-24 (9th Cir.2009) (internal quotations and citations omitted).").

DEFERENCE - CHEVRON DEFERENCE - BINDING PRECEDENT MUST BE ON POINT TO BE ENTITLED TO CHEVRON DEFERENCE
Retuta v. Holder, 591 F.3d 1181 (9th Cir. Jan. 7, 2010) (to warrant Chevron deference, as a "binding agency precedent on-point," a BIA precedent must be on point: "Second, Ozkok did not address the particular situation present here-namely, whether a suspended fine is sufficient punishment to satisfy the definition of conviction. Ozkok addressed the imposition of probation and the actual enforcement of non-incarceratory penalties, but not the "imposition" of suspended non-incarceratory penalties.").

JUICIAL REVIEW - DEFERENCE - BRAND-X
Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. Sept. 8, 2009) (rejecting Matter of Ramirez-Vargas, 24 I. & N. Dec. 599 (BIA 2008) [overruling Cuevas-Gaspar under the reasoning of Brand-X]).

The Court states:

The BIA's reliance on Brand X and Duran Gonzales in Matter of Ramirez-Vargas is misplaced. Most notably, in Brand X itself, in reaching the prior decision at issue, AT&T Corp. v. Portland, 216 F.3d 871 (9th Cir.2000), our court had not even considered an agency interpretation of the Communications Act, nor had we applied Chevron deference when we interpreted the statute. See id. at 876 ("We note at the outset that the FCC has declined, both in its regulatory capacity and as amicus curiae, to address the issue before us. Thus, we are not presented with a case involving potential deference to an administrative agency's statutory construction pursuant to the Chevron doctrine."). Indeed, the FCC was not even a party in Portland. See Brand X, 545 U.S. at 980, 125 S.Ct. 2688. Accordingly, when we authored the decision that the Supreme Court reversed in Brand X, we did not employ a deferential review of an agency interpretation at Chevron's second step. See Brand X Internet Servs. v. FCC, 345 F.3d 1120, 1130-32(9th Cir.2003), rev'd, 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). Rather, as the Supreme Court observed, we "declined to apply Chevron because [we] thought the Commission's interpretation of the Communications Act [was] foreclosed by the conflicting construction of the Act [we] had adopted in Portland." Brand X, 545 U.S. at 982, 125 S.Ct. 2688.

Similarly, in Duran Gonzales, we observed that our previous decision in Perez-Gonzalez had "clearly relied on the agency regulations to reconcile the inadmissibility provision with the special adjustment provision." 508 F.3d at 1238. Thus, Perez-Gonzalez "did not foreclose[ ] the agency's interpretation of the statutory scheme, but rather relied on the regulations to both reject an informal agency interpretation of the inadmissibility provision and reach [its] holding." Id. (quoting Brand X, 545 U.S. at 983, 125 S.Ct. 2688). Accordingly, our conclusion in Duran Gonzales that the BIA's new interpretation of these regulations was "clearly reasonable" did not directly contravene the Perez-Gonzalez analysis, which was premised on a different interpretation of the same underlying regulations. See id. at 1242; see also Perez-Gonzalez, 379 F.3d at 794 ("In the absence of a more complete agency elaboration of how its interpretation of 212(a)(9) can be reconciled with its own regulations, we must defer to the regulations rather than to the informal guidance memorandum.").

In sum, neither Brand X nor Duran Gonzales suggests that an agency may resurrect a statutory interpretation that a circuit court has foreclosed by rejecting it as unreasonable at Chevron's second step. As both Brand X and Duran Gonzales acknowledged, under Chevron, an agency's interpretation of a statute it is charged with administering must be reasonable. See Brand X, 545 U.S. at 997-1000, 125 S.Ct. 2688; Duran Gonzales, 508 F.3d at 1241-42. In contrast to the prior decisions at issue in Brand X and Duran Gonzales, the Cuevas-Gaspar panel considered and rejected the precise interpretation of section 240A(a) that the BIA precedentially resurrected in In re Escobar and extended in Matter of Ramirez-Vargas. Our review of the BIA's published decision in In re Escobar, as well as its unpublished decision in In re Mercado-Zazueta, remains bound by the ongoing validity of our holding in Cuevas-Gaspar.

CRIMES OF MORAL TURPITUDE - DEFERENCE
Uppal v. Holder, 576 F.3d 1014 (9th Cir. Aug. 11, 2009) (BIA's determination a conviction qualifies as a crime of moral turpitude is entitled to Skidmore deference: "The measure of deference due to the BIA's decision under Skidmore varies 'depending upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it the power to persuade, if lacking power to control.' Skidmore, 323 U.S. at 140."); citing Marmolejo-Campos, 558 F.3d at 911.

JUDICIAL REVIEW - CONSULAR PROCESSING
Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. July 9, 2009) (noncitizen must allege State Department visa denial was not facially legitimate, not for a bona fide reason, and entered in bad faith to obtain judicial review of the denial of a visa via consular processing).

JUDICIAL REVIEW - STATUTORY INTERPRETATION -- DEFERENCE - BRAND-X
Escobar v. Holder, 567 F.3d 466 (9th Cir. May 27, 2009) (rejecting arguments that the BIA was allowed to ignore or overrule Cuevas-Gaspar, as it did in Matter of Escobar, 24 I. & N. Dec. 231 (BIA 2007) and Matter of Ramirez-Vargas, 24 I. & N. Dec. 599 (BIA 2008), in light of Brand-X: "neither Brand-X nor Duran Gonzales suggests that an agency may resurrect a statutory interpretation that a circuit court has already foreclosed by rejecting it as unreasonable at Chevrons second step.")

JUDICIAL REVIEW - PETITION FOR REVIEW - JURISDICTIONAL LIMITATIONS - NO PETITION FOR REVIEW JURISDICTION TO REVIEW DISCRETIONARY DETERMINATIONS
Castro de Mercado v. Mukasey, 566 F.3d 810 (9th Cir. May 19, 2009) (no petition for review jurisdiction to challenge BIA's evidentiary determinations or matters within the BIA's discretion).

JUDICIAL REVIEW - HABEAS CORPUS - JURISDICTIONAL LIMITATION - DISCRETIONARY CLAIMS - NO JURISDICTION TO CONSIDER DISCRETIONARY CLAIM REPACKAGED AS A CONSTITUTIONAL CLAIM
Negrete v. Holder, 567 F.3d 419 (9th Cir. May 12, 2009) ("Although we have jurisdiction over colorable constitutional claims relating to discretionary denials of motions to reopen, we lack jurisdiction if the due process claim is merely an abuse of discretion claim re-packaged as a constitutional claim."); citing Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005); Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)("petitioner may not create the jurisdiction that Congress chose to remove simply by cloaking an abuse of discretion argument in constitutional garb."); accord Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009).

JUDICIAL REVIEW - REINSTATEMENT
Alcala v. Holder, 563 F.3d 1009 (9th Cir. Apr. 28, 2009) (Court of Appeals lacks jurisdiction to review decision of IJ to grant DHS motion to dismiss proceedings to allow DHS to reinstate prior expedited order of removal).

JUDICIAL REVIEW - PETITION FOR REVIEW - COURT OF APPEAL LACKS JURISDICTION TO REVIEW PARTICULARLY SERIOUS CRIME DETERMINATION FOR PURPOSES OF WITHHOLDING OF REMOVAL
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) (court of appeal lacks jurisdiction to review the merits of a "particularly serious crime" determination for purposes of withholding of removal).

JUDICIAL REVIEW - PETITION FOR REVIEW - COURT OF APPEAL LACKS JURISDICTION TO REVIEW PARTICULARLY SERIOUS CRIME DETERMINATION FOR PURPOSES OFASYLUM
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) (court of appeal has jurisdiction to review the merits of a "particularly serious crime" determination for purposes of asylum, because this question is specifically exempted from the jurisdiction-stripping provisions of 8 U.S.C. 1252(a)(2)(B)(ii)), following Morales v. Gonzales, 478 F .3d 972, 980 (9th Cir. 2007).

JUDICIAL REVIEW - PETITION FOR REVIEW - REMOVAL ORDER MUST BE SUPPORTED BY SUBSTANTIAL EVIDENCE
Al Mutarreb v. Holder, 561 F.3d 1023 (9th Cir. Apr. 6, 2009) (reversing removal order where the record contained no evidence relevant to the charge of removability, and thus the order was not supported by substantial evidence).

JUDICIAL REVIEW - BIA APPEAL - DUE PROCESS
Al Mutarreb v. Holder, 561 F.3d 1023 (9th Cir. Apr. 6, 2009) (due process might be offended by affirming on appeal a removal order on a ground that was first raised on appeal, and which was not raised or litigated in the court below), citing Alvarez-Santos v. INS, 332 F.3d 1245, 1252 (9th Cir.2003),

JUDICIAL REVIEW - DEFERENCE - CRIMINAL STATUTES
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. Mar. 4, 2009) (en banc) (no deference owed to BIA interpretations of criminal statutes or BIA examination of the record of conviction), citing Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005). NOTE: Arguably, this may be interpreted to mean that the Ninth Circuit does not owe deference the method of analysis applied in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008). Therefore, prior Ninth Circuit case law applying categorical, divisible statute, minimum conduct, Duenas-Alvarez analysis should still hold in the CMT context despite Silva-Trevino. The Court did not apply the Silva-Trevino analytical method in Marmalejo-Campos, but this was not an issue before the court.

JUDICIAL REVIEW - DEFERENCE - MORAL TURPITUDE DEFINITION
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. Mar. 4, 2009) (en banc) (no deference owed to the BIAs definition of "crime of moral turpitude.") NOTE: Here the Ninth Circuit declines to give deference to the Matter of Silva-Trevino, 24 I. & N. Dec. 687, 688 (A.G. 2008) ("[a] reprehensible act with some form of scienter."). Instead the Ninth Circuit continues to consider CMT to be of two types: "those involving fraud and those involving grave acts of baseness or depravity.");Carty v. Ashcroft, 395 F.3d 1081, 1083 (9th Cir. 2005); Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1074 (9th Cir. 2007) (en banc) (Reinhardt, J., concurring for the majority). The court stated: "we have noted that our understanding does not differ materially from the Boards." Marmalejo-Campos v. Holder, 558 F.3d 903 (9th Cir. Mar. 4, 2009), citing Galeana-Mendoza v. Gonzalez, 465 F.3d 1054, 1058 n. 9 (9th Cir. 2006). Arguably, if the BIAs "understanding" of what is a CMT begins to diverge from that of the Ninth Circuit, counsel may argue that the BIA is owed no deference where the two CMT definitions differ.

JUDICIAL REVIEW - DEFERENCE - MORAL TURPITUDE DETERMINATIONS
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. Mar. 4, 2009) (en banc) (Chevron deference applies to the ultimate determination of whether an offense, once established, meets the CMT definition; deference is due to the BIAs assessment of "the character, gravity and moral significance of the conduct" as the BIA "draw[s] upon all its expertise as the single body charged with adjudicating all federal immigration cases."), overruling Plasencia-Ayala v. Mukasey, 516 F.3d 738, 744-745 (9th Cir. 2008); Nicanor-Romero v. Mukasey, 523 F.3d 922, 997 (9th Cir. 2008), and other decisions to the contrary.

As long as the BIAs "understanding" of the term "moral turpitude" does differ from that applied in the Ninth Circuit, then, the Ninth Circuit owes Chevron deference to the BIAs determination of whether a given crime is a CMT.

If the BIAs "understanding" of the term "moral turpitude" can be shown to differ from that of the Ninth Circuit, counsel can argue that no deference is owed. On the other hand, in light of Brand-X, the BIA now has the power to overrule the Ninth Circuit on the ultimate determination of whether a particular offense is a CMT.

JUDICIAL REVIEW - DEFERENCE - UNPUBLISHED DECISIONS
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. Mar. 4, 2009) (en banc) (unpublished BIA decisions are generally given Skidmore v. Swift & Co., 323 U.S. 134 (1944) deference BIA, which depends upon the persuasive value of the decision, unless the decision relies upon a published decision, in which case full Chevron deference is accorded).

JUDICIAL REVIEW - PETITION FOR REVIEW - FUGITIVE DISENTITLEMENT DOCTRINE NOT APPLICABLE WHERE PETITIONERS WHEREABOUTS KNOWN DURING PETITION FOR REVIEW
Wenqin Sun v. Mukasey, 555 F.3d 802 (9th Cir. Feb. 9, 2009) (fugitive disentitlement doctrine, which developed in the criminal context to limit a persons ability to appeal as long as s/he remained a "fugitive," has also been applied in the immigration context, but could not preclude the court's consideration of a petition for review on the grounds that the petitioner did not report for removal, as ordered by the government, several years prior to filing a petition for review: "the critical question" is "whether the appellant is a fugitive at the time the appeal is pending." Because the petitioners whereabouts were known to her counsel, DHS, and the court while the petition for review was pending, it would be inappropriate to dismiss the case). See generally AILFs practice advisory at http://www.ailf.org/lac/pa/lac_pa_fugdis.pdf; AILF Legal Action Center Litigation Clearinghouse Newsletter, Vol. 4, No. 3 (Feb. 24, 2009).

JUDICIAL REVIEW - PARTICULARLY SERIOUS CRIME - DUI
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) (court lacks jurisdiction to review BIA determination that a conviction for DUI causing injury was a particularly serious crime).

JUDICIAL REVIEW - PARTICULARLY SERIOUS CRIME - EVIDENCE
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) ("Whether the BIA and IJ relied on improper evidence in making the "particularly serious crime" determination is one such question of law that we have jurisdiction to review. See Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir.2007).").

JUDICIAL REVIEW - ADMINISTRATIVE CLOSURE
Diaz-Covarrubias v. Mukasey, 551 F.3d 1114 (9th Cir. Jan. 2009) ("Administrative closure is a procedure by which an IJ or the BIA removes a case from its docket as a matter of administrative convenience. In re Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (BIA 1996) (quoting In re Amico, 19 I. & N. Dec. 652, 654 n. 1 (BIA 1988)). This procedure is not described in the INA or federal regulations, but the BIA has stated that it will not administratively close a case if closure is opposed by either of the parties. Id."; court lacks jurisdiction to review IJs decision to review denial of request for administrative closure to allow respondents visa petition to become current).

STATUTORY INTERPRETATION - BIA UNEXPLAINED INCONSISTENCY IN INTERPRETATIONS MAY BE IMPERMISSIBLE CONSTRUCTION OF THE STATUTE
Marmolejo-Campos v. Holder, 558 F.3d 903, 920 n.2 (9th Cir. 2009) (en banc) (dissenting opinion) (decision in conflict with other BIA precedents may not be based on a permissible construction of the INA, because "[u]nexplained inconsistency" in an agency's interpretation of its governing statute can be "a reason for holding an interpretation to be an arbitrary and capricious change from agency practice" when an agency provides no explanation at all for a change in policy, or when its explanation is so unclear or contradictory that we are left in doubt as to the reason for the change in direction), citing Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005); Morales-Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th Cir.2007) (en banc); see also Lands Council v. Martin, 529 F.3d 1219, 1225 (9th Cir.2008) (applying Morales-Izquierdo to hold that the Forest Service provided a "rational explanation" for its change in policy that did not leave the court "in doubt as to the reason for the change in direction" (internal quotation marks and citation omitted).

JUDICIAL REVIEW - DEFERENCE - AGGRAVATED FELONY GENERIC DEFINITION
Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. Dec. 12, 2008), withdrawing previous opinion, 532 F.3d 949 (9th Cir. July 10, 2008) ("Because 1101(a)(43) is part of the INA, we must defer to the BIA's articulation of the generic federal definition "if the statute is silent or ambiguous with respect to the specific issue before the agency and the BIA's interpretation is based on a permissible construction of the statute. " Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir.2005) (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)). . . . We do not defer to the BIA's interpretations of state law or provisions of the federal criminal code. Parrilla, 414 F.3d at 1041. Rather, we review de novo whether the specific crime of conviction meets the INA's definition of an aggravated felony. Li, 389 F.3d at 895; Randhawa v. Ashcroft, 298 F.3d 1148, 1151 (9th Cir.2002).").

JUDICIAL REVIEW - REMAND REQUIRED TO ALLOW APPLICATION OF NEW STANDARD
Kalilu v. Mukasey, 548 F.3d 1215 (9th Cir. Nov. 20, 2008) (remanding case to allow IJ/BIA to consider application of new standards for determining whether an asylum application was frivolous).

JUDICIAL REVIEW - LIMITATIONS ON JURISDICTION - DETENTION - HABEAS
Flores-Torres v. Mukasey, 548 F.3d 708 (9th Cir. Nov. 10, 2008) (INA 1252 does not preclude a district court from considering habeas petition claiming immigration detention is improper because petitioner is a United States citizen).

JUDICIAL REVIEW - PETITION FOR REVIEW - DUE PROCESS - INEFFECTIVE COUNSEL DOES NOT VIOLATE DUE PROCESS UNLESS IT RENDERS THE REMOVAL HEARING ITSELF FUNDAMENTALLY UNFAIR
Balam-Chuc v. Mukasey, 547 F.3d 1044 (9th Cir. Oct. 24, 2008) (counsels ineffective assistance in preparing and filing visa petition was not a violation of due process where petitioner could not show a deficiency relating to fundamental fairness of removal hearing itself).

JUDICIAL REVIEW - PETITION FOR REVIEW - DUE PROCESS - INEFFECTIVE COUNSEL DOES NOT VIOLATE DUE PROCESS UNLESS IT RENDERS THE REMOVAL HEARING ITSELF FUNDAMENTALLY UNFAIR
Balam-Chuc v. Mukasey, 547 F.3d 1044 (9th Cir. Oct. 24, 2008) (counsels ineffective assistance in preparing and filing visa petition was not a violation of due process where petitioner could not show a deficiency relating to fundamental fairness of removal hearing itself).

JUDICIAL REVIEW - DEFERENCE - NO CHEVRON DEFERENCE IS DUE TO ONE-JUDGE, NON-PRECEDENTIAL, UNPUBLISHED BIA ORDER
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (court of appeals owes no Chevron deference to one-judge, non-precedential, unpublished BIA order), citing United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).

JUDICIAL REVIEW - DEFERENCE - NO CHEVRON DEFERENCE IS DUE WHERE BIA DID NOT INTERPRET A STATUTE BUT MERELY PROVIDED A "GUIDE" TO LATER INTERPRETATION
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (court of appeals owes no Chevron deference to BIA decision where it did not interpret a statute, but merely provided a "guide" to later interpretation).

JUDICIAL REVIEW - DEFERENCE - NO CHEVRON DEFERENCE IS DUE WHERE STATUTE IS CLEAR
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (court need not defer to BIA, under Chevron, where statute is clear: "When Congress has spoken directly to the issue, as it has here, our inquiry is over and Chevron deference does not apply.").

JUDICIAL REVIEW - EXPEDITED REMOVAL ORDER
De Rincon v. Dep't of Homeland Sec., 539 F.3d 1133, 2008 WL 3863863 (9th Cir. Aug. 21, 2008) (circuit court lacked jurisdiction to hear collateral attack on reinstated expedited removal order; district court lacked jurisdiction to consider habeas petition challenging expedited removal order).

JUDICIAL REVIEW - PETITION FOR REVIEW - JURISDICTION LIMITATIONS
Garcia De Rincon v. DHS, 539 F.3d 1133 (9th Cir. Aug. 21, 2008) (circuit and district courts lack jurisdiction to review reinstatement of removal; rejecting suspension clause argument regarding habeas petition).

JUDICIAL REVIEW - PETITION FOR REVIEW - CONTINUANCE - ABUSE OF DISCRETION TO DENY CONTINUANCE
Cui v. Mukasey, 538 F.3d 1289 (9th Cir. Aug. 19, 2008) (IJ abused discretion in refusing to grant continuance to allow respondent to resubmit fingerprints for background security check).

JUDICIAL REVIEW - DEFERENCE TO UNPUBLISHED DECISION
Choin v. Mukasey, 537 F.3d 1116 (9th Cir. Aug. 12, 2008) ("When the BIA advances its interpretation of an ambiguous statute in an unpublished decision, that interpretation is not entitled to Chevron deference. See Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012 (9th Cir.2006). Unpublished BIA decisions are instead given Skidmore deference, entitling the interpretation to a respect proportional to its power to persuade. Garcia-Quintero, 455 F.3d at 1014; (applying the deference scheme laid out in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). Under Skidmore, our deference to the agency position is proportionate to "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Skidmore, 323 U.S. at 140, 65 S.Ct. 161. The BIA decision here does not evidence significant consideration or thoroughness. The relevant analysis consists of two paragraphs that offer little explanation for why the BIA reached its conclusion. Our deference to the BIA here is therefore based only on the inherent strength of the agency's interpretation.").

JUDICIAL REVIEW - REAL ID ACT - TIME FOR FILING
Singh v. Mukasey, ___ F.3d ___, 2008 WL 2813039 (9th Cir. Jul. 23 2008) (the REAL ID Act gives noncitizens whose removal orders became final before the REAL ID Act a reasonable opportunity to obtain judicial review, but those whose petitions were rendered untimely by the Act had a grace period of no more than 30 days from the effective date of the Act in which to seek such review).

JUDICIAL REVIEW - PETITION FOR REVIEW - CHEVRON DEFERENCE - NO DEFERENCE TO BIA INTERPRETATION OF STATE CRIMINAL STATUTE
Mandujano-Real v. Mukasey, 526 F.3d 585 (9th Cir. May 22, 2008) ("The only question before us is, therefore, whether as a matter of law Mandujano-Real's identity theft conviction constitutes an aggravated felony theft offense. The answer to this question lies in the interpretation of an Oregon criminal statute: this is a matter that is not committed to the BIA's expertise. Accordingly, we owe no deference to the BIA's resolution of this question on appeal."), citing Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1133 (9th Cir. 2006) (en banc); Garcia-Lopez, 334 F.3d at 843 (explaining that because the BIA does not "administer[ ] or ha[ve] any particular expertise in interpreting [state criminal statutes], no deference is accorded to the BIA's interpretation").

JUDICIAL REVIEW - PETITION FOR REVIEW - COURT OF APPEALS MAY CONSIDER CLAIM OF ERROR IN DENIAL OF CONTINUANCE EVEN ABSENT CONSTITUTIONAL CLAIM
Sandoval-Luna v. Mukasey, 526 F.3d 1243 (9th Cir. May 22, 2008) (circuit court has jurisdiction to review an IJ's decision to deny petitioner's motion for a continuance for abuse of discretion, due process and equal protection violations).

JUDICIAL REVIEW - STARE DECISIS LIMITATIONS
Penuliar v. Mukasey, 523 F.3d 963 (9th Cir. Apr. 22, 2008) ("The panel in Penuliar therefore stated: "Arteaga is therefore not precedent with regard to application of the Taylor modified categorical approach to any particular kind of documents or any specific language appearing in those documents. Legal rulings in a prior opinion are applicable to future cases only to the degree one can ascertain from the opinion itself the reach of the ruling. Where the underlying facts do not appear, later courts are bound by any rule of law explicitly announced, but not by the application of that law to unstated factual circumstances. Cf. Hart v. Massanari, 266 F.3d 1155, 1172 (2001) (stating that to determine whether an opinion represents "controlling authority [courts] must parse precedent in light of the facts presented and the rule announced"); In re Osborne, 76 F.3d 306, 309 (9th Cir.1996) ("Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.").")

STATUTORY INTERPRETATION - PRESUMPTION LEGISLATURE ACTS RATIONALLY - DUTY TO READ STATUTE TO AVOID CONVERTING STATUTORY LANGUAGE INTO SURPUSAGE
United States v. Vidal, 504 F.3d 1072, 1081-1082 (9th Cir. Oct. 10, 2007) (en banc) ("This assertion flies in the face of our presumption that a legislative body acts rationally when it enacts statutes, see Crandal v. Ball, Ball & Brosamer, Inc., 99 F.3d 907, 910 (9th Cir.1996) ("A statute should be read in a manner which attribute[s] a rational purpose to the legislature."), as well as the canon against converting statutory language into surplusage, see Am. Vantage Cos., 292 F.3d at 1098."(footnote omitted).").

JUDICIAL REVIEW - RETROACTIVE APPLICATION OF NEW REGULATIONS
Miguel-Miguel v. Gonzales, 500 F.3d 941 (9th Cir. August 29, 2007) (Matter of Y-L-, 23 I. & N. Dec. 270 (Op. Att'y Gen.2002), disapproved of on other grounds by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir.2003), creating a presumption that a drug trafficking offense is a particularly serious crime was impermissibly retroactive as applied to noncitizen with conviction pre-dating that decision).

The test is this:

In SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), the Supreme Court held that an agency may give retroactive force to a new rule created through adjudicatory action, but "[the] retroactivity must be balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles." See also Heckler v. Cmty. Health Servs. of Crawford County, Inc., 467 U.S. 51, 60 n. 12, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984) (recognizing the principle that "an administrative agency may not apply a new rule retroactively when to do so would unduly intrude upon reasonable reliance interests"). The D.C. Circuit in Retail, Wholesale and Department Store Union, AFL-CIO v. NLRB, 466 F.2d 380 (D.C.Cir.1972), fleshed out this balancing test by identifying five non-exhaustive factors for determining when an agency's retroactive application of an adjudicatory decision is invalid:

(1) whether the particular case is one of first impression,

(2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law,

(3) the extent to which the party against whom the new rule is applied relied on the former rule,

(4) the degree of the burden which a retroactive order imposes on a party, and

(5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.

Id. at 390. We adopted the Retail, Wholesale factors in Montgomery Ward, 691 F.2d at 1333. These factors are meant to "balance [ ] a regulated party's interest in being able to rely on the terms of a rule as it is written against an agency's interest in retroactive application of an adjudicatory decision." Chang v. United States, 327 F.3d 911, 928 (9th Cir.2003).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION
Marshall v. Burlington Northern, Inc., 595 F.2d 511, 513 (9th Cir. 1979) (the underlying purpose of the doctrine of exhaustion of administrative remedies is as follows: "[The exhaustion requirement] "makes sense in terms of both judicial economy and agency efficiency", State of California ex rel. Christensen v. FTC, 549 F.2d at 1324, because it permits "an administrative agency to perform functions within its special competence to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies". Parisi v. United States, 405 U.S. 34, 37, 92 S. Ct. 815, 818, 31 L. Ed. 2d 17 (1972)."); see also Sagermark v. INS, 767 F.2d 645, 648 (9th Cir. 1985) ("[T]he relevant policy concerns underlying the exhaustion requirement -- that an administrative agency should have a full opportunity to resolve a controversy or correct its own errors before judicial intervention -- have been satisfied here.").

     To exhaust, it is not necessary to use any specific language, so long as the issue is "referenced" in terms sufficient for the BIA to be aware of and review the claim. The Ninth Circuit drew the line clearly by rejecting one aspect, and accepting another, of a similar argument in Ladha v. INS, 215 F.3d 889, 901 (9th Cir. 2000):

     Although the INS argues that the Ladhas' political persecution claim was not exhausted, because the BIA held it to have been waived by not being raised on appeal, we disagree. Although before the BIA the parties do not specifically use the phrase "persecution on account of political opinion," the IJ had specifically considered and rejected the political asylum claim, in part apparently because he found not credible what he described as Mr. Ladha's claim of torture based on his membership in the MQM, and the Ladhas' brief before the BIA challenges this very aspect of the IJ's opinion. The BIA thus had sufficient reason to be aware of, and opportunity to review, this claim, cf. Sagermark, 767 F.2d at 648 (9th Cir. 1984), and we find that the Ladhas have administratively exhausted it. In contrast, the Ladhas have failed to exhaust their claim to persecution on account of social group, by failing to make reference to the relevant claim before the BIA, leaving us without jurisdiction to consider the claim on judicial review. See Vargas, 831 F.2d 906, 908.

Similarly, in Socop-Gonzalez v. INS, 272 F.3d 1176, 1183-84 (9th Cir. 2001), the Ninth Circuit found as follows: "We hold that even though Socop never specifically invoked the phrase "equitable tolling" in his briefs to the BIA, he sufficiently raised the issue before the BIA to permit us to review the issue on appeal."

Thanks to Lisa Brodyaga.

JUDICIAL REVIEW - AUTHORITY NOT BINDING CONCERNING ARGUMENT NOT RAISED
A court is not considered to have ruled on an argument that was not presented. See, e.g., RAV v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ("It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).)

Tenth Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " DEFERENCE
De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. Oct. 20, 2015) (a ruling from the BIA which interprets an ambiguous statute, and which overrules prior circuit court precedent under Brand X, should be presumed to act prospectively only).

JUDICIAL REVIEW " JURISDICTION
Lee v. Lynch, __ F.3d __ (10th Cir. Jul. 1, 2015) (section 242B(2) of the INA is not a jurisdictional statute; where noncitizen was detained in Tenth Circuit, but appeared telephonically in the Fifth Circuit, then appeared in the Fifth Circuit final hearing, the Fifth Circuit was the proper venue for appeal from BIA decision).

JUDICIAL REVIEW " CHOICE OF LAW WHERE IMMIGRATION JUDGE IS LOCATED IN DIFFERENT CIRCUIT THAN THE IMMIGRANT
Medina-Rosales v. Holder, ___ F.3d ___, ___, 2015 WL 756345 (10th Cir. Feb. 24, 2015) (where the immigrant and counsel are located in a circuit different from that in which the immigration judge conducts the hearing, the governing law is that of the circuit in which the immigration judge is located: The charging document establishes the hearing location, regardless of the location of the IJ and the holding of a video conference hearing.).

JUDICIAL REVIEW " AGENCY CREDIBILITY DETERMINATIONS REVIEWED FOR ABUSE OF DISCRETION
Mena-Flores v. Holder, ___ F.3d ___, 2015 WL 294629 (10th Cir. Jan. 23, 2015) (the reviewing court evaluates immigration agency credibility determinations under the abuse of discretion standard); citing Elzour v. Ashcroft, 378 F.3d 1143, 1150 n. 9 (10th Cir. 2004); see United States v. Aguayo"Delgado, 220 F.3d 926, 934"35 (8th Cir. 2000) (holding that the evidence was sufficient to convict beyond a reasonable doubt when the evidence consisted mainly of testimony by other participants in drug transactions, even though there were questions about the reliability and consistency of the accounts).

JUDICIAL REVIEW " ABUSE OF DISCRETION STANDARD
Mena-Flores v. Holder, ___ F.3d ___, ___, 2015 WL 294629 (10th Cir. Jan. 23, 2015) (The agency abused its discretion if it failed to give a rational explanation, inexplicably deviated from past policies, failed to supply any reasoning, or rested on summary or conclusory statements. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir.2004).).

JUDICIAL REVIEW " PETITION FOR REVIEW " REVIEW OF CONTINUANCE DENIAL
Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (court of appeals has jurisdiction to review Immigration Judges denial of continuance for abuse of discretion); overruling Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir. 2004); following Kucana v. Holder, 130 S.Ct. 827, 831, 175 L.Ed.2d 694 (2010) (decisions made discretionary by regulation do not come within the statutory jurisdiction bar of 8 U.S.C. 1252(a)(2)(B)(ii) and are reviewable); Vahora v. Holder, 626 F.3d 907, 915 (7th Cir.2010); see also Kwak v. Holder, 607 F.3d 1140, 1143 (6th Cir.2010) (stating that the denial of a motion for a continuance is subject to judicial review because the IJ's discretion derives from a regulation, not a statute); Thimran v. Holder, 599 F.3d 841, 844"45 (8th Cir.2010) (holding that Kucana compelled the conclusion that appellate courts have jurisdiction to review denials of motions for a continuance); Juarez v. Holder, 599 F.3d 560, 562 (7th Cir.2010) (finding that Kucana foreclosed the government's argument that 1252(a)(2)(B)(i) precludes review of motions for a continuance by a federal appellate court).

JUDICIAL REVIEW " STANDARD OF REVIEW OF DENIAL OF CONTINUANCE " ABUSE OF DISCRETION
Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (court of appeals will reverse Immigration Judge denial of continuance only if the decision (a) was made without a rational explanation, (b) inexplicably departed from established policies, or (c) rested on an impermissible basis); see Bauge v. INS, 7 F.3d 1540, 1543 (10th Cir. 1993); Nunez"Pena v. INS, 956 F.2d 223, 226 (10th Cir.1992) (court of appeals will reverse for abuse of discretion only if the decision was made without a rational [ ] explanation, inexplicably departed from established policies, or rested on an impermissible basis); Kwak v. Holder, 607 F.3d 1140, 1143, 1143-1144 (6th Cir. 2010).

JUDICIAL REVIEW " PETITION FOR REVIEW " DENIAL OF CONTINUANCE
Jimenez-Guzman v. Holder, 642 F.3d 1294, 2011 WL 2547562 (10th Cir. Jun. 28, 2011) (Pending post-conviction motions or other collateral attacks do not negate the finality of a conviction for immigration purposes unless and until the conviction is overturned.); see also Paredes v. Att'y Gen., 528 F.3d 196, 198"99 (3d Cir. 2008); United States v. Adame"Orozco, 607 F.3d 647, 655 (10th Cir. 2010); United States v. Saenz"Gomez, 472 F.3d 791, 794 (10th Cir. 2007).

JUDICIAL REVIEW " DEFERENCE " A BIA DECISION IS OWED CHEVRON DEFERENCE ONLY IF IT REPRESENTS A REASONABLE POLICY CHOICE
Efagene v. Holder, ___ F.3d ___, ___, 2011 WL 1614299 (10th Cir. Apr. 29, 2011) (the BIA's interpretation of moral turpitude to reach so far as to encompass the Colorado misdemeanor offense of failure to register is not a reasonable policy choice for the agency to make.); citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845 (1984) (a court gives deference to an agency's interpretation of a statute Congress charged it with administering if the statute is silent or ambiguous on the question at hand and the agency makes a reasonable policy choice).

JUDICIAL REVIEW " PETITION FOR REVIEW " EXHAUSTION
Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. Nov. 5, 2010) (petitioner did not exhaust his administrative remedies before the BIA by presenting his arguments there: But presenting a conclusion or request for relief to the BIA isn't enough to exhaust every potential argument for reaching that conclusion or winning that relief.).

JUDICIAL REVIEW " PETITION FOR REVIEW " FAILURE TO EXHAUST CLAIM EXCUSED WHERE BIA DECIDES IT ON THE MERITS
Garcia-Carbajal v. Holder, 625 F.3d 1233, 1238 (10th Cir. Nov. 5, 2010) (if the BIA deems an issue sufficiently presented to consider it on the merits, such action by the BIA exhausts the issue as far as the agency is concerned ... and that is all 1252(d)(1) requires.); quoting Sidabutar v. Gonzales, 503 F.3d 1116 (10th Cir. Sept. 21, 2007).

JUDICIAL REVIEW " 1983 CIVIL RIGHTS ACTION LIES FOR UNLAWFUL IMMIGRATION CONFINEMENT BY DHS WHERE HABEAS IS BARRED THROUGH NO FAULT OF NONCITIZEN
Cohen v. Longshore, 621 F.3d 1311 (10th Cir. Oct. 19, 2010) (immigration detainee brought civil rights action which was improperly dismissed: petitioner who has no available habeas remedy, through no lack of diligence on his part, is not barred by Heck from pursuing 1983 claim for unlawful confinement).

JUDICIAL REVIEW - CHEVRON DEFERENCE - BRAND-X
Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. Nov. 12, 2008) ("This case requires us to determine whether an agency interpretation ordinarily owed deference under the framework established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is foreclosed by a prior Supreme Court construction of the statute applying the canon of constitutional avoidance. We conclude that under the principles outlined in National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 982-83 (2005), a subsequent, reasonable agency interpretation of an ambiguous statute, which avoids raising serious constitutional doubts, is due deference notwithstanding the Supreme Court's earlier contrary interpretation of the statute.").

JUDICIAL REVIEW - PETITION FOR REVIEW - DEFERENCE TO BIA DICTUM
Ochieng v. Mukasey, 520 F.3d 1110, 1114-15 (10th Cir. 2008) (the definition of "child abuse" under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), set forth in dictum in a precedent BIA decision, was entitled to deference because it was based on a permissible construction of the statute), applying Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984); accord Loeza-Dominguez v. Gonzales, 428 F.3d 1156 (8th Cir. 2005); but cf. Velasquez-Herrera v. Gonzales, 466 F.3d 781, 783 (9th Cir. 2006) (BIA never formally defined the concept of "child abuse" in a precedent decision, except in dictum, and the Immigration Judge's opinion, which equated the concept of "child abuse" with any assault committed against a child, embodied a broader understanding of the concept than the BIA had articulated).

Lower Courts of Tenth Circuit

JUDICIAL REVIEW - RES JUDICATA - ADJUDICATIONS BY OFFICERS DO NOT CREATE COLLATERAL ESTOPPEL
Cospito v. Atty Gen. U.S., 539 F.3d 166 (9th Cir. Aug. 13, 2008) (decisions made by adjudicative officers at border or in making decision on adjustment of status to not collaterally stop DHS from raising same issues before IJ).

Eleventh Circuit

JUDICIAL REVIEW " APPEAL TO BIA " FACTUAL FINDINGS
Zhu v. U.S. Attys Gen, 703 F.3d 1303 (11th Cir. Jan 4, 2013) (BIA improperly engaged in de novo review of IJs factual findings; 8 C.F.R. 1003.1(d)(3) allows BIA to review IJs factual finding for clear error only).

JUDICIAL REVIEW " PETITION FOR REVIEW " RES JUDICATA
Dormescar v. U.S. Attorney General, 690 F.3d 1258, 1269-70 (11th Cir. Aug. 15, 2012) (DHS was not barred by res judicata from seeking to remove noncitizen based on his aggravated felony conviction where noncitizen had first been charged, and found not removable under INA 212, 8 U.S.C. 1182, because the DHS could not have successfully brought the aggravated felony charge under 1227(a) until after Dormescar was deemed admitted).

JUDICIAL REVIEW"COLLATERAL ESTOPPEL"FEDERAL RULE
United States v. Valdiviez-Garza, 669 F.3d 1199 (11th Cir. Feb. 6, 2012). The Court states: Under the collateral estoppel doctrine, when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). We have characterized the doctrine as a narrow exception to the Government's right to prosecute a defendant in separate trials for related conduct, which applies only where a fact or issue necessarily determined in the defendant's favor in the former trial is an essential element of conviction at the second trial. United States v. Brown, 983 F.2d 201, 202 (11th Cir. 1993). To determine whether collateral estoppel applies in a criminal proceeding, courts engage in a two-part inquiry. See United States v. Ohayon, 483 F.3d 1281, 1286 (11th Cir.2007). First, the court must ascertain what facts were necessarily determined during the acquittal at the first trial. See id. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, the reviewing court must examine the record of [the] prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter. Ashe, 397 U.S. at 444. In making this determination, a court must decide whether the jury's verdict of acquittal was based upon reasonable doubt about a single element of the crime which the court can identify. Brown, 983 F.2d at 202. In making this assessment, we apply the well-recognized presumption that a jury follows its instructions.Id. Second, the court must decide whether the facts determined as part of the prior acquittal are an essential element of the offense charged in the subsequent proceeding. See Ohayon, 483 F.3d at 1286.

REMOVAL PROCEEDINGS " RES JUDICATA
Maldonado v. U.S. Atty General, 664 F.3d 1369, 2011 WL 6439350 (11th Cir. Dec. 22, 2011) (res judicata did not bar the new removal proceedings charging conviction as sexual abuse of a minor aggravated felony where that aggravated felony ground did not exist when the prior proceedings were terminated).

JUDICIAL REVIEW " STATUTORY INTERPRETATION " CONGRESS IS PRESUMED TO KNOW AND APPROVE OF JUDICIAL INTERPRETATIONS OF A STATUTE WHEN IT DOES NOT ALTER THEM IN AMENDING A STATUTE
Sanchez Fajardo v. Atty Gen., 659 F.3d 1303, 1309 (11th Cir. Oct. 12, 2011) ([W]hen Congress incorporated the language premising inadmissibility on whether a person was convicted of a crime involving moral turpitude into the INA, it was presumably aware that this language had been interpreted to require the application of a categorical and modified categorical approach. . . . [If Congress had wanted to change that interpretation,] it could easily have amended the statute to allow adjudicators to consider the actual conduct underlying a conviction.).

JUDICIAL REVIEW - DENIAL OF TPS IS REVIEWABLE IN DISTRICT COURT UNDER ADMINISTRATIVE PROCEDURE ACT
Mejia Rodriguez v. U.S. DHS, ___ F.3d ___, 2009 WL 649731 (11th Cir. Mar. 16, 2009) (per curiam) (district court jurisdiction existed to review USCIS decision denying Temporary Protected Status, since its statutory eligibility determinations are not discretionary; Administrative Appeals Office dismissal of noncitizen's appeal of TPS denial was a "final" agency decision which the district court could review under the Administrative Procedure Act).

JUDICIAL REVIEW - PETITION FOR REVIEW - EXHAUSTION OF ADMINISTRATIVE REMEDIES -SUFFICIENCY OF ARGUMENT TO WARRANT CONSIDERATION OF ISSUE
Singh v. U.S. Atty. Gen., ___ F.3d ___,2009 WL 604370 (11th Cir. Mar. 10, 2009) (per curiam) ("an appellant's brief must include an argument containing 'appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.' Fed.R.App.P. 28(a)(9)(A). Thus, an appellant's simply stating that an issue exists, without further argument or discussion, constitutes abandonment of that issue and precludes our considering the issue on appeal. Rowe v. Schreiber, 139 F.3d 1381, 1382 n. 1 (11th Cir.1998). Singh's simple statement that our treating his conviction as a conviction for immigration purposes would violate his right to equal protection, without further explanation or discussion, did not sufficiently raise the issue on appeal, and thus it is abandoned. Id.").

JUDICIAL REVIEW - RES JUDICATA
Singh v. U.S. Atty. Gen., ___ F.3d ___, ___, 2009 WL 604370 (11th Cir. Mar. 10, 2009) (per curiam) ("Res judicata bars the filing of a claim when the following elements are present: (1) there is a final judgment on the merits; (2) the decision was rendered by a court of competent jurisdiction; (3) the parties, or those in privity with them, are identical in both suits; and (4) the same cause of action is involved in both cases. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir.1999). Generally, if a case arises out of the same "nucleus of operative fact" as a former case, the two cases are the same for res judicata purposes. Id. at 1239. However, "res judicata does not bar a claim that was not in existence at the time of the original action unless the facts underlying the claim were actually raised in that action." In re Piper Aircraft Corp., 244 F.3d 1289, 1299 (11th Cir.2001).").

JUDICIAL REVIEW - RES JUDICATA - NEW NTA NOT BARRED WHERE PROBATION VIOLATION SENTENCE MADE PRIOR CONVICTION AN AGGRAVATED FELONY
Singh v. U.S. Atty. Gen., ___ F.3d ___, ___, 2009 WL 604370 (11th Cir. Mar. 10, 2009) (per curiam) (noncitizen's violation of his community control and new sentence to a term of more than one year's imprisonment for his theft or burglary conviction gave rise to a new cause of action that was not previously available, and therefore the government is not barred by res judicata from filing a new NTA based on the new aggravated felony ground of deportation).

JUDICIAL REVIEW - REINSTATEMENT OF REMOVAL ORDER IS SUBJECT TO JUDICIAL REVIEW
Avila v. U.S. Attorney General, 560 F.3d 1281 (11th Cir. Mar. 5, 2009) (order reinstating prior removal order is subject to judicial review; court lacks jurisdiction to review underlying removal order).

JUDICIAL REVIEW - PETITION FOR REVIEW - DENIAL OF SUA SPONTE MOTION TO REOPEN BY BIA
Lenis v. US Atty. Gen., 525 F.3d 1291 (11th Cir. May 5, 2008) (court lacks jurisdiction to review BIA denial of sua sponte reopening).

JUDICIAL REVIEW - PETITION FOR REVIEW - DISCRETIONARY DENIAL OF CONTINUANCE DOES NOT PRESENT CONSTITUTIONAL CLAIM OR QUESTION OF LAW ENTITLED TO REVIEW
Acosta v. U.S. Att'y Gen., 524 F.3d 1191 (11th Cir. Apr. 16, 2008) (court lacked subject matter jurisdiction to hear petition for review of order denying continuance of removal proceedings, which presented only a "garden variety" abuse of discretion claim, rather than a constitutional claim or question of law sufficient to confer jurisdiction under 8 U.S.C. 1252(a)(2)(C) and (D)).

JUDICIAL REVIEW
Acosta v. U.S. Att'y Gen., 524 F.3d 1191 (11th Cir. Apr. 16, 2008) (court of appeal lacked subject matter jurisdiction to hear petition for review because petitioner's conviction was a crime "related to a controlled substance" under 8 U.S.C. 1182(a)(2)(A)(i)(II); and (2)).

DC Circuit

STATUTORY INTERPRETATION - STATE LABELS DO NOT CONTROL CONVICTION - NATURE OF CONVICTION - CATEGORICAL ANALYSIS - STATE LABELS DO NOT CONTROL
United States v. Ventura, 565 F.3d 870 (D.C. Cir. May 15, 2009) (in considering whether state conviction falls within federal statutory category for criminal sentencing purposes, under the categorical analysis, the state label or name for the offense does not control), citing Taylor v. United States, 495 U.S. 575, 599 (1990).

Other

JUDICIAL REVIEW -- BOARD OF IMMIGRATION APPEALS " BIA PANEL CAN OVERRULE PRIOR BIA DECISION
Unlike circuit courts, where only an en banc decision can overrule a three-judge panel, a three-member panel of the Board can overrule any prior precedential decision. See, e.g., Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011). Presumably, this is because a decision can only be designated as precedential following a vote in which it receives the support of a majority of permanent Board members. 8 CFR 1003.1(g). Thus, even when a decision only contains the names of three members, it has the support of a majority of the Board's permanent members. Thanks to Ben Winograd.

RETROACTIVITY " ADMINISTRATIVE CHANGE IN THE LAW " RETROACTIVE UNLESS BURDEN ON APPLICANT
Whether an administrative (as opposed to statutory or judicial) change in the law is subject to different rules regarding retroactive application. In general an administrative change in law is retroactive unless there is a burden on the applicant. Retail, Wholesale and Department Store Union, AFL"CIO v. NLRB, 466 F.2d 380 (D.C.Cir.1972), Miguel-Miguel v. Gonzales, 500 F.3d 941, 950 (9th Cir. 2007); Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir.1982). Thanks to Stacy Tolchin.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OF IMMIGRATION CONSEQUENCES " RETROACTIVITY " THE FEDERAL CONSTITUTION DOES NOT REQUIRE THE STATES TO FOLLOW TEAGUE IN STATE REVIEW OF STATE CONVICTIONS " PRACTICE ADVISORY
Teague is a test that governs petitions brought 28 USC 2254 or 28 USC 2255. Padilla's case was decided on an appeal from the Kentucky Supreme Court, which is not governed by these statutes. Graham v. Collins, 506 U.S. 461, 505 (1993). Therefore, Teague should not govern state review of state convictions at all. See Danforth v. Minnesota, 552 U.S. 264, 273, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008). The states, however, are free to adopt the Teague rule if they wish. Maryland, for example, has already adopted such a broader rule, which means that people in Maryland can continue to bring Padilla claims for cases that were final on March 31, 2010. Denisyuk v. State, 422 Md. 462 (2011). RETROACTIVITY " ADMINISTRATIVE CHANGE IN THE LAW " RETROACTIVE UNLESS BURDEN ON APPLICANT Whether an administrative (as opposed to statutory or judicial) change in the law is subject to different rules regarding retroactive application. In general an administrative change in law is retroactive unless there is a burden on the applicant. Retail, Wholesale and Department Store Union, AFL"CIO v. NLRB, 466 F.2d 380 (D.C.Cir.1972), Miguel-Miguel v. Gonzales, 500 F.3d 941, 950 (9th Cir. 2007); Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir.1982). Thanks to Stacy Tolchin.

ARTICLE: RES JUDICATA PREVENTS DHS FROM INITIATING SECOND DEPORTATION CASE ON THE BASIS OF A CHARGE THAT COULD HAVE BEEN BROUGHT IN THE FIRST CASE
The doctrine of res judicata precludes a second suit on the same issue between the same parties when there has been a valid and final judgment on the issue. Semptek Intl , Inc. v. Lockheed Martin Corp., 531 U.S. 497, 502 (2001). The Supreme Court has stated that when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, "the doctrine of res judicata may apply." United States v. Utah Constr. & Min. Co., 384 U.S. 394, 422 (1966). The lower federal courts consider it well settled that res judicata is applicable in an administrative proceeding, and have held that res judicata applies in immigration hearings. Hibbert v. I.N.S., 554 F. 2d 17, 20 (2d. Cir. 1977); see also, Amato v. Bowen, 739 F. Supp. 108 (E.D.N.Y. 1990)(giving res judicata effect to a Social Security Administration determination).

The Second Circuit Court of Appeals considered the applicability of res judicata in a case where a respondent successfully obtained a vacatur pursuant to NYCPL 440, and the government sought to reopen removal proceedings to file an I-261 and charge him with new criminal grounds of removal. Johnson v. Ashcroft, 378 F. 3d 164 (2d 2004). The Court of Appeals first concludes that the government had been aware or could have been aware of all of the respondents criminal convictions, and then held that the government cannot prevail on a motion to reopen if it does not present new and previously unavailable evidence. In a lengthy footnote, the Court recognizes that res judicata may apply if new immigration proceedings were commenced against the respondent. Id. at fn. 10. The Court cites Interoceanic Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir 1977), and states that, "in a civil suit a litigant must advance all available evidence and legal arguments relating to a claim or controversy in the context of a single proceeding" because res judicata bars future litigation of all claims that could have been advanced in support of a previously adjudicated cause of action. (Thanks to listserve member kind enough to share this memo whose name we did not preserve.)

PRACTICE ADVISORY " JUDICIAL REVIEW " PETITION FOR REVIEW " BIA CANNOT BY REGULATION LIMIT ITS OWN JURISDICTION
In Union Pacific R.R. v. Brotherhood of Loco. Engineers, 130 S.Ct. 584 (2009), the Supreme Court held that an agency cannot by regulation circumscribe its own jurisdiction. This doctrine could be used to try to prevent the BIA from declining to consider a motion to reopen after the client is outside the country. The court of appeal need not defer, under Chevron, to the BIAs illegal action in refusing to exercise jurisdiction under 8 CFR 1003.3(e)s departure bar.

STATUTORY INTERPRETATION"RULE AGAINST SUPERFLUITY"
Corley v. United States, 556 U.S. 303, 314 (2009) (statutes should be interpreted to avoid superfluity) (quoting Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004) ([O]ne of the most basic interpretive canons is that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant....)).

BIBLIO " STATUTORY INTERPRETATION
Yule Kim, Statutory Interpretation: General Principles and Recent Trends, Congressional Research Service Report for Congress (Aug. 31, 2008); http://www.fas.org/sgp/crs/misc/97-589.pdf

JUDICIAL REVIEW - FINALITY OF REMOVAL ORDERS
New AILF practice advisory: Trina Realmuto, "Finality" of Removal Orders for Judicial Review Purposes (June 23, 2008). Addressing whether a BIA remand, for example, affects the "finality" of a removal order. http://www.ailf.org/lac/pa/lac_pa_finrem.pdf

JUDICIAL REVIEW - DEFERENCE - BRAND X
AILF Article on Brand X in Immigration Cases: Http://www.ailf.org/lac/clearinghouse_brandx.shtml

CAL POST CON - FELONY - REDUCTION OF FELONY TO MISDEMEANOR In California, if a felony conviction is punishable, under the statute defining the offense, by state prison or a county jail sentence, or by state prison or a fine, it is an alternative felony-misdemeanor, or "wobbler," that can be reduced by the court from a felony to a misdemeanor under various circumstances pursuant to Penal Code 17(b). (People v. Statum (2002) 28 Cal.4th 682, 685; see People v. Superior Court (Feinstein) (2002) 1994) 29 Cal.App.4th 323, 329 [trial court "may only reduce an offense to a misdemeanor if it is a felony-misdemeanor ('wobbler), which may be prosecuted as either a felony or a misdemeanor."]) On the other hand, if the statute defining the offense states it is punishable by "state prison" period, or by a lower term in prison, a midterm, or an upper term, but without an alternative county jail sentence or fine, it is a non-alternative felony that cannot be reduced to a misdemeanor under that provision. (People v. Mauch (2008) ___ Cal.App.5th ___ (California Health & Safety Code 11358, which is punishable by state prison without an alternative county jail sentence or fine, may not be reduced from felony to misdemeanor under Penal Code 17(b); People v. Superior Court (Feinstein), supra, at 330; People v. Mendez (1991) 234 Cal.App.3d 1773, 1779, n.5.) The trial court may not accept a plea agreement conditioned upon a reduction of an offense that is not legally reducible. (People v. Beebe (1989) 216 Cal.App.3d 927, 931 ["Since the offense was not alternately punishable by a fine or imprisonment in the county jail, the trial court had no power to authorize the future reduction of this felony to a misdemeanor under section 17"].) Penal Code 18, as well, does not authorize reduction unless the statute provides an alternative punishment of county jail or a fine. (People v. Mauch, supra; People v. Isaia (1989) 206 Cal.App.3d 1558, 1564.) Crimes with no alternative county jail sentence, but with an alternative fine, do exist. E.g., Penal Code 107 [escape from a reformatory or state hospital]; 148.3(b) [false report of an emergency]; 337b [point shaving in an athletic contest].)

JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS - ATTORNEY GENERAL HAS AUTHORITY TO RECONSIDER ANY BIA OR AG DECISION
8 C.F.R. 1003.1(h)(1)(i) (Attorney General has the authority both to direct that the BIA refer cases to him for decision and to vacate and reconsider any previous Attorney General decision); Matter of RA, 24 I. & N. Dec. 629 (A.G. 2008) (vacating stay order issued by previous Attorney General); see also 8 U.S.C. 103(g) (Attorney General shall review administrative determinations in immigration proceedings as necessary for carrying out his duties).

STATUTORY CONSTRUCTION - AVOIDANCE DOCTRINE
Jean v. Nelson, 472 U.S. 846, 854 (1985) (constitutional questions should be reached only as a last resort).

JUDICIAL REVIEW - ALTERATIONS IN LONG-STANDING REGULATION
INS v. Cardoza-Fonseca 480 U.S. 421, 446 n.30 (1987) (courts look very skeptically at and will not defer to sudden, material alterations to a 20-year old administrative scheme); Batanic v. INS, 12 F.3d 662 (7th Cir. 1993).

JUDICIAL REVIEW - DICTA
Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006) ("It is well-established that we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.), citing Cohens v. Virginia, 19 U.S. 264, 399-400 (1821).

JUDICIAL REVIEW - PETITION FOR REVIEW - CONTINUANCE
All of the circuit courts have considered whether they have jurisdiction to review an IJs denial of a continuance. The courts are divided about whether INA 242(a)(2)(B)(ii), the discretionary decision bar to judicial review, precludes review of this question:

First Circuit (Court of appeal has jurisdiction): Alsamhouri v. Gonzales, 484 F.3d 117 (1st Cir. 2007).

Cases Upholding Denial of Continuance: Alsamhouri v. Gonzales, 484 F.3d 117 (1st Cir. 2007) (sought continuance to file asylum application after disregarding deadline).

Second Circuit (court of appeal has jurisdiction): Sanusi v. Gonzales, 445 F.3d 193 (2d Cir. 2006).

Cases Overturning Denial of Continuance: Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008) (labor cert. pending).

Cases Upholding Denial of Continuance: Pedreros v. Keisler, 503 F.3d 162 (2d Cir. 2007) (I-130 denial on appeal).

Note: The Second Circuit has requested guidance from the BIA on the issue of continuances. In Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008), the court stated that it could not adequately assess whether the agency abused its discretion in denying a continuance due to the "absence of standards that reflect the various situations of those seeking continuances."

Third Circuit (Court of Appeal has jurisdiction): Khan v. Atty Gen., 448 F.3d 226 (3d Cir. 2006).

Cases Overturning Denial of Continuance: Hashmi v. U.S. Atty Gen., 531 F.3d 256 (3d Cir. 2008) (I-130 pending).

Cases Upholding Denial of Continuance: Khan v. U.S. Atty Gen., 448 F.3d 226 (3d Cir. 2006) (labor cert. pending).

Fourth Circuit (Court of Appeal has jurisdiction): Lendo v. Gonzales, 493 F.3d 439 (4th Cir. 2007).

Cases Overturning Denial of Continuance:

Cases Upholding Denial of Continuance: Lendo v. Gonzales, 493 F.3d 439 (4th Cir. 2007) (labor cert. pending).

Fifth Circuit (Court of Appeal has jurisdiction): Ahmed v. Gonzales, 447 F.3d 433 (5th Cir. 2006).

Cases Overturning Denial of Continuance: Masih v. Mukasey, 536 F.3d 370 (5th Cir. 2008) (labor cert. and I-140 approved and visa priority date current when I-485 filed)

Cases Upholding Denial of Continuance:

Sixth Circuit (Court of Appeal has jurisdiction): Abu-Khaliel v. Gonzales, 436 F.3d 627 (6th Cir. 2006).

Cases Overturning Denial of Continuance: Badwan v. Gonzales, 494 F.3d 566 (6th Cir. 2007) (IJ failed to explain denial of continuance for petitioner to supplement adjustment application); Ahmed v. Mukasey, 519 F.3d 579 (6th Cir. 2008) (I-130 pending)

Cases Upholding Denial of Continuance: Ukpabi v. Mukasey, 525 F.3d 403 (6th Cir. 2008) (Notice of Intent to Deny issued); Abu-Khaliel v. Gonzales, 436 F.3d 627 (6th Cir. 2006) (I-130 pending).

Seventh Circuit (Court of Appeal has jurisdiction): Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004).

Cases Overturning Denial of Continuance: Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004) (labor cert. pending)

Cases Upholding Denial of Continuance: Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007) (sons application for naturalization, upon which an I-130 would be based, had been denied).

Seventh Circuit (Court of Appeal lacks jurisdiction): Malik v. Mukasey, 546 F.3d 890 (7th Cir. 2008).

NOTE: The Seventh Circuit generally has said that it lacks jurisdiction over continuance denials, but it will review the denial where it results in the denial of a benefit. This is the only circuit to reach different results depending upon the context.

Eighth Circuit (Court of Appeal lacks jurisdiction): Onyinkwa v. Ashcroft, 376 F.3d 797 (8th Cir. 2004).

Ninth Circuit (Court of Appeal has jurisdiction): Sandoval-Luna v. Mukasey, 526 F.3d 1243 (9th Cir. 2008).

Cases Overturning Denial of Continuance: Vasquez v. Mukasey, No. 05-70618, 2008 U.S. App. LEXIS 16360 (9th Cir. July 30, 2008) (sought continuance to file an expedited FOIA request).

Cases Upholding Denial of Continuance: Sandoval-Luna v. Mukasey, 526F.3d 1243 (9th Cir. 2008) (labor cert. pending)

Tenth Circuit (Court of Appeal lacks jurisdiction): Yerkovich v. Ashcroft, 381 F. 3d 990 (10th Cir. 2004).

Eleventh Circuit (Court of Appeal has jurisdiction): Zafar v. Atty Gen., 461 F.3d 1357 (11th Cir. 2006).

Cases Overturning Denial of Continuance: Merchant v. Atty Gen., 461 F.3d 1375 (11th Cir. 2006) (approved labor cert., I-140 pending).

Cases Upholding Denial of Continuance: Zafar v. Attorney General, 461 F.3d 1357 (11th Cir. 2006) (labor cert. pending).

JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS - CIRCUIT AUTHORITY IS BINDING ON IMMIGRATION COURTS EVEN BEFORE MANDATE ISSUES
Wedbush, Noble, Cooke, Inc. v. SEC, 714 F.2d 923 (9th Cir 1983) (a decision of the circuit court of appeals is binding on administrative agencies, for purposes of stare decisis, even before the mandate issues).

JUDICIAL REVIEW - RES JUDICATA
When the government seeks to reopen a case or initiate a second removal case against the same person, the respondent may have arguments that res judicata applies. Although 8 C.F.R. 1003.30 says the government may lodge additional charges "[a]t any time during proceedings," some courts have found that after removal proceedings are complete, res judicata operates to bar the government from relitigating an issue already decided or one that could have been raised in proceedings. Unfortunately, not all courts agree about res judicatas application in immigration proceedings. The following cases provide some guidance on how the courts view this issue: Favorable Cases: Al Mutarreb v. Holder, 561 F.3d 1023 (9th Cir. 2009); Bravo-Pedroza v. Gonzales, 475 F.3d 1358 (9th Cir. 2007); Guevara v. Gonzales, 450 F.3d 173 (5th Cir. 2006). Adverse Cases: Channer v. DHS, 527 F.3d 275 (2d Cir. 2008); Alvear-Velez v. Mukasey, 450 F.3d 672 (7th Cir. 2008); Valencia-Alvarez v. Gonzales, 469 F.3d 1319 (9th Cir. 2006); Magasouba v. Mukasey, 543 F.3d 13 (1st Cir. 2008). Thanks to the American Immigration Law Foundation Legal Action Center.

BIBLIOGRAPHY " JUDICIAL REVIEW " FEDERAL PREEMPTION OF STATE IMMIGRATION LEGISLATION
Gerald Neuman, The Lost Century of American Immigration Law (1776-1876), 93 Colum. L. Rev. 1833, 1833-84 (1993); Pratheepan Gulasekaram and Rose Cuison Villazor, Sanctuary Policies & Immigration Federalism, 55 Wayne Law Review 1683 (2009).

PRACTICE ADVISORY " JUDICIAL REVIEW " PETITION FOR REVIEW " COURT CANNOT AFFIRM AGENCY DECISION ON NEW GROUND ON WHICH THE AGENCY DID NOT RELY
Securities & Exchange Commn v. Chenery Corp., 318 U.S. 80, 87, 94 (1943) (reviewing courts only review the reasons invoked by the agency below and may not entertain post hoc rationalizations by government counsel in appellate litigation: The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based. . . . . [C]ourts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review.); Securities & Exchange Commn v. Chenery Corp., 332 U.S. 194 (1947); Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998) (holding that the INS may not seek to have the BIA opinion upheld on the grounds that there was no reasonable fear of persecution because the letters were not authentic; the agency simply has not ruled on the authenticity issue, either implicitly or explicitly.); De Rivera v. Ashcroft, 394 F.3d 37, 40 (1st Cir. 2005) (Since the agency action, under Succar, cannot be sustained on the stated grounds, the appropriate remedy is to remand to the BIA for further proceedings consistent with the holding in Succar.); Song Jin Wu v. INS, 436 F.3d. 157, 164 (2d Cir. 2006) (It is not the function of a reviewing court in an immigration case to scour the record to find reasons why a BIA decision should be affirmed. Rather, we take the Board's decision as we find it, and if the reasoning it advances for denying a petitioners claim cannot support the result, we will vacate the decision.); Singh v. United States DOJ, 461 F.3d 290, 294 (2d Cir. 2006) (And we cannot, on appeal, substitute an argument " even one the BIA made in another context " for those that the BIA actually gave to support the conclusion [petitioner] disputes on appeal.); Garcia v. AG of the United States, 665 F.3d 496, 502 (3d Cir. 2011) ([W]e may affirm the BIAs decision only if we find that its stated reasons are correct, as it was the BIA"not the IJ"th.at provided the final and authoritative grounds invoked by the agency, citing Chenery); Qun Wang v. AG of the United States, 423 F.3d 260, 271 (3d Cir. 2005) (. . . we will not supply the basis for [the agencys] decision where appropriate reasons are not set forth by the administrative agency itself) (internal citations omitted); Berishaj v. Ashcroft, 378 F.3d 314, 330 (3d Cir. 2004) (. . . we are unable to square this practice [of taking judicial notice of post-final order country reports] with the clear command from SEC v. Chenery Corp. that courts reviewing the determination of an administrative agency must approve or reject the agencys action purely on the basis of the reasons offered by, and the record compiled before, the agency itself.)(internal citation omitted); Li Fang Lin v. Mukasey, 517 F.3d 685, 693-94 (4th Cir. 2008) (Here, we cannot review the BIAs decision because the BIA has given us nothing to review. We would run the risk of violating fundamental separation-of-powers principles if we attempted to divine the BIAs thoughts on this matter and tried to build a legal conclusion in a veritable vacuum where BIA interpretation should always first exist.); Island Creek Coal Co. v. Henline, 456 F.3d 421, 426-27 (4th Cir. 2006) (We cannot accept the invitation to affirm the Boards rejection of Island Creeks statute of limitations defense on a ground not actually relied upon by the Board.); Garcia Carias v. Holder, No. 11-60550, -- F.3d --, 2012 U.S. App. LEXIS 20284, *7-8 n.1 (5th Cir. Sept. 27. 2012) (stating [b]ecause the timeliness of Garcias motion was not addressed by the Board, we will refrain from reaching this issue, citing Chenery); Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010) ([S]ince the BIA is a division of the Executive Office for Immigration Review (EOIR), and a judicial judgment cannot be made to do service for an administrative judgment, . . ., we may usually only affirm the BIA on the basis of its stated rationale for ordering an alien removed from the United States.) (internal citations and quotations omitted); Pruidze v. Holder, 632 F.3d 234, 240 (6th Cir. 2011) (These are all things the Board may do, but because we review what the Board did do . . . they are questions for another day, citing Chenery) (emphasis in the original); NLRB v. USPS, 833 F.2d 1195, 1201 (6th Cir. 1987) (This Court will not affirm the Board's actions based on reasons not relied upon by the Board itself.); Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007) (The Supreme Court of the United States has admonished, in Chenery I, that we may not sanction an agency decision based upon the posthoc rationalizations of appellate counsel for the agency's decision.) (citation omitted); Comollari v. Ashcroft, 378 F.3d 694, 696 (7th Cir. 2004) (As we tirelessly remind the lawyers from the Justice Department's Office of Immigration Litigation, , the Chenery rule bars a reviewing court from upholding an agency's decision on a ground different from the agencys) (citations to case examples omitted); Mengistu v. Ashcroft, 355 F.3d 1044, 1046 (7th Cir. 2004) ([The Chenery doctrine] forbids the lawyers for an administrative agency to defend the agencys decision on a ground different from that stated or at least discernible in the decision itself.) (citations omitted); Ngure v. Ashcroft, 367 F.3d 975, 984 (8th Cir. 2004) (It is, of course, a basic principle of administrative law that where agency action is subject to judicial review, the agency must provide an adequate reasoned explanation of its decision, referencing Chenery I and II); Mayo v. Schiltgen, 921 F.2d 177, 179 (8th Cir. 1990) ([A] reviewing court cannot search the record to find other grounds to support the [agencys] decision . . . [but] must consider the agencys rationale for its decision, and if that rationale is inadequate or improper the court must reverse and remand for the agency to consider whether to pursue a new rationale for its decision or perhaps to change its decision.) (footnote omitted); Altamirano v. Gonzales, 427 F.3d 586, 595 (9th Cir. 2005) (Chenery requires that an agencys discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself); Recinos de Leon v. Gonzales, 400 F.3d 1185, 1189 (9th Cir. 2005) (We may affirm the IJ only on grounds set forth in the opinion under review, citing Chenery); Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000) (rejecting government counsels post hoc rationalization, stating [t]his court cannot affirm the BIA on a ground upon which it did not rely.); Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007) ([T]his court may not create or adopt post-hoc rationalizations to support [an agencys] decision that are not apparent from the [] decision itself.); Contreras-Bocanegra v. Holder, 678 F.3d 811, 819 (10th Cir. 2012) (en banc) (While agencies have the power under certain circumstances to promulgate categorical rules that supplant individualized adjudication, . . . , we cannot uphold the Boards action on grounds not provided by the agency itself. ) (internal citation omitted); N.L.R.B. v. Episcopal Cmty. of St. Petersburg, 726 F.2d 1537, 1540 (11th Cir. 1984) ([A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.) (citation omitted); Druid Hills Civic Assn, Inc. v. Fed. Highway Admin., 772 F.2d 700, 714 (11th Cir. 1985) (If the record fails to show a sufficient basis for the administrative decision, the . . . determination must be overturned.). Thanks to the National Immigration Project of the National Lawyers Guild for its practice advisory, entitled Immigration Litigation & the Chenery Doctrine. http://nationalimmigrationproject.org/legalresources/practice_advisories/pa_Chenery_practice_advisory_Oct2012.pdf