Counsel can argue, and the Ninth Circuit holds, that in certain circumstances the bar to judicial review over discretionary decisions does not apply to motions to reopen. INA 242(a)(2)(B)(i) [8 U.S.C. 1252(a)(2)(B)(i)] specifically delineates certain forms of discretionary relief over which "no court shall have jurisdiction to review any judgment regarding the granting of relief under section 212(h) [8 U.S.C. 1182(h)], 212(i) [8 U.S.C. 1182(i)], 240A [8 U.S.C. 1229b], 240B [8 U.S.C. 1212c], or 245 [8 U.S.C.

Counsel can argue that use of a false social security card does not evidence a lack of good moral character. See Matter of K, 3 I. & N. Dec.

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).").

United States v. Orlando, 553 F.3d 1235 (9th Cir. 2009) ("Where a discrepancy arises between the terms of an oral pronouncement of a sentence and the subsequent written judgment, the terms of the oral pronouncement control. United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir. 1988).").

United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir. 1988) (oral pronouncement at sentencing hearing constituted legal sentence, not words reduced to writing in judgment and commitment order, and remand was necessary for evidentiary hearing to determine whether sentencing transcript was in error in stating that defendant's sentences were concurrent rather than consecutive), citing 28 U.S.C. 753(b) ("The transcript in any case certified by the reporter ... shall be deemed prima facie a correct statement of the testimony taken and proceedings had.").

United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974) ("The only sentence that is legally cognizable is the actual oral pronouncement in the presence of the defendant."); See United States v. Villano, 816 F.2d 1448, 1451-52 & n.5 (10th Cir. 1987) (en banc) (the words pronounced by the judge at sentencing, not the words reduced to writing in the judge's Judgment/Commitment Order, constitutes the legal sentence).

United States v Evans, 92 F. 3d 540, 544 (7th Cir. 1996) (the term "sentencing" refers "to the pronouncing of sentence by the judge in open court, rather than to the subsequent recording of the sentence on a docket sheet" under statute requiring application of U.S. Sentencing Guidelines in effect "on the date the defendant is sentenced."), citing 18 U.S.C. 3553(a)(4)(A); accord, United States v Navarro-Espinosa, 30 F3d 1169, 1170 (9th Cir. 1994) ("imposition of sentence" is "a term of art that generally refers to the time at which a sentence is orally pronounced.").

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.

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).

Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) (deferring to Matter of N-A-M-, 24 I. & N. Dec. 336 (BIA Oct. 24, 2007), analysis of evidence in particularly serious crime determination; court will no longer apply contrary rule announced in Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir. 2007)).

NOTE: In Morales the Ninth Circuit was applying prior BIA case law that was later overruled by Matter of N-A-M.