Keungne v. U.S. Attorney General, ___ F.3d ___ (11th Cir. Mar. 10, 2009) (Georgia conviction of criminal reckless conduct, under Ga. Code Ann.

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).

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).

Argument: An expungement or other rehabilitative relief should be effective to eliminate any conviction for purposes of eligibility for asylum or withholding of removal, because these statutes use the term "judgment of conviction" rather than "conviction." Since INA 101(a)(48)(A) merely defines "conviction," and discusses when a disposition that is not a judgment of conviction will constitute a "conviction" for immigration law, it arguably do not define what constitutes a "judgment of conviction" and 101(a)(48)(A) does not control in asylum and withholding context.

Argument: An expungement or other rehabilitative relief should be effective to eliminate any conviction for purposes of eligibility for asylum or withholding of removal, because these statutes use the term "judgment of conviction" rather than "conviction." Since INA 101(a)(48)(A) merely defines "conviction," and discusses when a disposition that is not a judgment of conviction will constitute a "conviction" for immigration law, it arguably do not define what constitutes a "judgment of conviction" and 101(a)(48)(A) does not control in asylum and withholding context.

Federal authorities are increasingly deporting illegal immigrants through a fast-track program that bypasses court hearings, an effort by the federal government to save money, reduce backlogs and clear detention beds. (Anna Gorman, Concerns Arise Over Fast-Track Deportation Program, Los Angeles Times (Mar. 2, 2009), http://www.latimes.com/news/local/la-me-deport2-2009mar02,0,5186477.story.) "The number of detainees in California and across the nation who agreed to be deported without first seeing a judge jumped fivefold between 2004 and 2007, from 5,481 to nearly 31,554.

Mejia Rodriguez v. DHS, __ F.3d __ (11th Cir. Mar. 16, 2009) (district court has jurisdiction to hear appeal of CIS denial of TPS; "Decisions regarding statutory eligibility for TPS are not ones designated to be within the discretion of the Attorney General or Secretary and hence are not precluded from review by 8 U.S.C. 1252(a)(2)(B) (ii). Furthermore, the denial of TPS is not a final order of removal and thus not subject to the various other provisions within 1252 pertaining to judicial review of such removal orders.

Ferguson v. U.S. Attorney General, ___ F.3d ___, 2009 WL 824434 (11th Cir. Mar. 31, 2009) ("Joining the majority of circuits, we decline to extend St. Cyr to aliens who were convicted after a trial because such aliens' decisions to go to trial do not satisfy St. Cyr ' s reliance requirement. Therefore, 212(c) relief is not available to such aliens. . . . And aside from her decision to go to trial, she points to no other "transactions" or "considerations already past" on which she relied. ").

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).

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).