District Court Jurisdiction over Non-Removal Cases | Review of Mixed Questions of Law and Fact
Review of Sua Sponte Motions to Reopen | Resources
District Court Jurisdiction over Non-Removal Cases
The Legal Action Center (LAC) urges a narrow interpretation of the statutory bars to review of discretionary issues in district court cases where discretionary relief may have been sought, but the cases themselves present legal or constitutional issues. This situation arises when, for example, a noncitizen seeks district court review of USCIS’s denial of an application for adjustment of status on non-discretionary grounds. This issue has become increasingly important as more noncitizens seek review of erroneous USCIS denials of applications for immigration benefits.
The LAC maintains that district courts do have jurisdiction over these cases and can review them under the Administrative Procedures Act [1]. We argue that the bar to review of discretionary judgments found in INA § 242(a)(2)(B)(i) is inapplicable to a court’s review of non-discretionary statutory eligibility for an immigration benefit. We also argue that INA § 242(a)(2)(D) does not limit the jurisdiction of a district court to review constitutional and legal issues in a non-removal case.
CASES
Alla Barenboy v. Secretary of DHS et al., No. 10-1802 (3d Cir. amicus brief filed June 7, 2010) (court denied the petition on other grounds in a non-precedential decision).
Vaso v. Homeland Sec. Agcy Dir., et al., No. 09-1988 (3d Cir. amicus brief filed Dec. 18, 2009) (court denied the petition on other grounds in an unpublished decision [2], but did adopt the jurisdictional arguments raised in the amicus brief).
Review of Mixed Questions of Law and Fact
Under INA § 242(a)(2)(D), a court of appeals has jurisdiction to review constitutional and legal issues in a removal case, even if review of other issues in the case would be barred by other sections of the INA. The LAC takes the position that “mixed questions of law and fact” — those issues that involve the application of law to undisputed facts — are legal issues that a court can review under INA § 242(a)(2)(D).
CASES
Ramadan v. Keisler, No. 03-74351 (9th Cir. amicus brief filed Jan. 24, 2006). We joined the ACLU Immigrants’ Rights Project on this amicus brief supporting a petition for rehearing. In a published decision [3], the court agreed with our arguments, holding that its jurisdiction over "questions of law" included application of law to undisputed facts. Ramadan v. Keisler, 479 F.3d 646 (9th Cir. 2007).
Chen v. U.S., No. 02-4631 (3d Cir. amicus brief filed Feb. 21, 2006). We joined the ACLU Immigrants’ Rights Project on this amicus brief supporting a petition for rehearing. In a published decision [4], the court agreed with our arguments, holding that its jurisdiction over "questions of law" was not limited solely to questions of statutory interpretation but included fact-finding flawed by an error of law and discretionary decisions based upon an erroneous legal standard. Chen v. U.S., 471 F.3d 315 (2d Cir. 2006).
Singh v. Gonzales, No. 05-72875 (9th Cir. amicus brief filed Nov. 9, 2005) (government’s motion to remand case was granted before court issued a decision).
Review of Sua Sponte Motions to Reopen
Over the past decade, federal courts of appeals consistently have held that they have no jurisdiction to review the BIA’s exercise of its authority to reopen cases sua sponte (or on its own motion). These decisions conclude that the BIA has unfettered discretion to reopen sua sponte and that, consequently, there are no standards by which a court can review such a decision. The 2010 Supreme Court decision Kucana v. Holder calls into question this limit on judicial review. In Kucana, the Court ruled that only Congress can limit judicial review by giving an agency unfettered discretion; an agency cannot do so itself simply by adopting a rule or regulation. Here, the BIA’s authority to reopen a case sua sponte is granted by agency regulation, not by Congress. Relying upon Kucana, we have filed amicus briefs in several cases attempting to reverse prior precedent on this issue and establish that courts of appeals do have jurisdiction over the BIA’s denial of a motion to reopen sua sponte.
CASES
Mejia-Hernandez v. Holder, No. 07-74277 (9th Cir. amicus brief filed Oct. 1, 2010). In a published decision [5], the three judge panel hearing the case agreed that Kucana called into question its earlier decision but found that only the en banc court could overturn this precedent. Because the case was favorably decided on another ground, no request for en banc review was filed. Mejia-Hernandez v. Holder, 633 F.3d 818 (9th Cir. 2011).
Kelmer Da Silva Neves v. Eric H. Holder, Jr., No. 07-1091 (1st Cir. amicus brief filed Sept. 21, 2010) (court denied the petition for rehearing en banc, thus leaving in place its decision that it could not review the BIA’s decision not to reopen the case sua sponte).
Tushar Gor v. Eric Holder, No. 08-3859 (6th Cir. amicus brief filed Aug. 2, 2010) (court denied the petition for rehearing en banc, thus leaving in place its decision that it could not review the BIA’s decision not to reopen the case sua sponte).
RESOURCES
The LAC has issued several Practice Advisories addressing jurisdictional bars under the INA.