Criminal Defense of Immigrants

 

(B)  Appellate Review.[387]  An immigration judge must apply the law of the circuit in which s/he sits, and it is to that circuit that any appeal of the BIA must be addressed in the case.  Noncitizens do not have the right to have removal proceedings commenced in any particular jurisdiction (and thus to choose the law applicable to them).[388]  For example, a noncitizen convicted of an offense that is not considered an aggravated felony in the circuit in which they reside, may be arrested by the DHS in another circuit or transferred to another circuit where the conviction is considered an aggravated felony.  The noncitizen may move to change venue to another immigration court (usually based upon residence),[389] but whether to grant a change of venue is a discretionary issue for the immigration judge, and is not subject to judicial review.[390]

                (1)  Bar to Judicial Review of Removal Orders Based on Certain Criminal Grounds.   In 1996, Congress enacted restrictions against judicial review of final exclusion, deportation, or removal orders for noncitizens inadmissible or excludable for any criminal ground at all under INA § 212(a)(2), or deportable for any criminal ground under INA § 237(a)(2),[391] except for domestic violence, conviction of a single CMT within five years of admission with a maximum possible punishment of at least one year, or conviction of two CMTs where one or both were punishable by a maximum term of less than one year imprisonment.[392]  To trigger this bar, the removal order must be based upon the criminal offense,[393] but the particular ground does not matter.[394]  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.[395]  The preclusion of judicial review triggered by an aggravated felony conviction requires a conviction that meets the aggravated felony definition and which was entered on or after, but not before, September 30, 1996, the effective date of IIRAIRA.[396]  This bar does not extend to the national security related grounds of removal.[397]

 

Until May 11, 2005, noncitizens subject to these restrictions were required to file habeas corpus petitions in district court in order to address most constitutional issues and questions of law.[398]  The appellate courts retained jurisdiction to determine their own jurisdiction, and thus could consider the merits inquiry of whether the noncitizen was removable for a criminal offense only because it boiled down to the same question whose decision was necessary to the jurisdictional inquiry.[399]  However, if a court found that jurisdiction was barred because the noncitizen was removable as charged, it could not go further to address statutory eligibility for relief or any other legal issue.[400] 

 

While the REAL ID Act of 2005 did not repeal the jurisdiction-stripping provision, it retroactively[401] added a provision that gives the courts of appeal jurisdiction over otherwise barred cases to review constitutional questions and questions of law.[402]  All courts to have reviewed the issue thus far have therefore found that they are no longer barred by INA § 242(a)(2)(C) from deciding whether a noncitizen is subject to a particular criminal ground of removal.[403]  They are also no longer barred from reaching questions of statutory eligibility for relief, or other legal or constitutional questions, even if the court finds that the noncitizen is removable.[404]

 

However, the courts have also found that this exception to the jurisdictional bar does not extend any further than the jurisdiction the district courts previously had via habeas corpus.[405]  The appellate courts still cannot review issues that, under prior law, were barred from habeas corpus review as factual determinations. The courts to have addressed the issue tend to agree that this scope of review includes mixed questions of law and fact.

 

The Ninth Circuit, in Ramadan v. Gonzales,[406] recently reconsidered an earlier decision, and found that the question of whether circumstances have changed to allow noncitizens to circumvent the one-year asylum application deadline was not barred from review, since the issue involves a mixed question of law and fact, rather than a purely factual determination, which would be barred under INA § 242(a)(2)(D).  The court defined “mixed question of fact and law” as those “in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.”[407]  The court thereby joined the Second Circuit in defining “questions of law” more broadly that merely questions of statutory interpretation.[408]

 

Prior caselaw on what issues could be reviewed on a habeas corpus petition should be consulted to determine what is now allowed under INA § 242(a)(2)(B).  For example, courts had found that habeas jurisdiction existed to review the BIA’s application of legal principles to undisputed facts.[409]

 

Noncitizens found deportable under the domestic violence ground, or the other criminal grounds not barred by INA § 242(a)(2)(C), presumably can request review of (not otherwise barred) factual and mixed questions.  The limitation on judicial review does not preclude a criminal court from entertaining a collateral attack against the validity of a deportation order in the context of a prosecution for illegal re-entry.[410]

 

(2)  Discretionary Issues Bar.[411]  In 1996,[412] Congress also barred appellate review of any decision in the discretion of the Attorney General,[413] including discretionary denials of relief under INA § § 212(c), 212(h), 212(i), 240A, 240B, or 245. [414]  Other discretionary decisions as to which review is barred are parole decisions,[415] and other waivers, such as for alien smuggling,[416] document fraud[417] and unlawful presence.[418]  The courts are split on whether they are precluded from reviewing a determination of the existence of Good Moral Character.[419]  The courts are also split as to whether the decision that an offense is  a “particularly serious crime” for asylum and withholding purposes is a discretionary decision, and thus barred.[420]  One court has found the determination of whether a battered spouse has been subject to “extreme cruelty” for VAWA adjustment purposes to be a discretionary decision.[421]

 

The only express exception to this bar is asylum.[422]  The REAL ID Act makes unreviewable any discretionary decision of the Secretary of Homeland Security as well, regardless of whether the decision or action is made in removal proceedings.[423]

 

However, as of May 11, 2005, this jurisdictional bar does not preclude review of constitutional issues or pure questions of law.[424]  Therefore, a claim could be brought arguing, for example, that an immigration judge’s discretionary finding violated due process.[425]  Some courts are viewing some legal issues to be only thinly disguised attempts to obtain review of a discretionary decision.[426] The Fifth Circuit has found that it cannot review the question of whether the BIA followed its own precedent in making a discretionary decision.[427]  Noncitizens may, however, also challenge any finding that they are not statutorily eligible for a form of discretionary relief.[428]  This bar also does not apply to mandatory forms of relief, such as relief under the Convention Against Torture.[429]  Finally, this bar does not preclude review of abuses of discretion.[430]

 

                (3)  Fugitive Disentitlement Doctrine.  The courts have denied petitions for review on the basis that the petitioner is a fugitive, but this result is not automatic.[431]  Counsel can consider recommending that the client surrender to the DHS so as no longer to be a fugitive, thus mooting the fugitive disentitlement doctrine.[432]  Counsel can also argue equitable, compelling reasons why the court should hear the case anyway. 

 

(4)  Level of Review (Deference).  A federal court gives Chevron deference to an agency interpretation when it is in an area of agency expertise or when it relates to congressionally delegated “authority to the agency generally to make rules carrying the force of law.”[433]  In determining whether a criminal offense triggers a ground of removal, the appellate courts will “uphold the BIA’s determination [of] what conduct [triggers the ground of removal] under the INA if it is reasonable.  However, a determination of the elements of a [state] crime . . . for purposes of [removal] pursuant to the INA is a question of law,” and is reviewed de novo.[434]  In other words, the courts review the BIA’s legal decisions de novo, but will afford Chevron deference only to the BIA’s reasonable interpretations of statutes which it is charged with administering.[435] 

 

The BIA is generally given Chevron deference in defining the term “aggravated felony theft offense,” for example, but the courts are split as to whether the BIA’s determination that a violation of a particular statute constitutes such an offense is entitled to the same deference. [436]

 

The BIA is not owed deference when interpreting federal statutes outside the Immigration and Nationality Act.  Therefore, the courts do not defer to the BIA’s interpretations of the “crime of violence” definition[437] applied to aggravated felony offenses[438] because that definition is contained within a federal criminal statute.[439]  The same is true for interpreting the “drug trafficking” definition of 18 U.S.C. § 924(c)(2) that is referred to in the aggravated felony drug trafficking definition.[440]

 

At least one court has held that deference should not be shown to a nonprecedential decision issued by a single member of the BIA.[441]  Another court has questioned whether deference should be shown to the BIA in making a streamlined affirmance without opinion.[442]

 

                (5)  Scope of Review (Issues and Summary Affirmances).  As part of a streamlining effort in the Board of Immigration Appeals, an increasing number of BIA decisions merely affirm, without opinion, the decision of the Immigration Judge.[443]  This practice has survived constitutional challenge.[444]  The courts are split on whether the BIA’s decision to streamline a specific case is itself subject to judicial review.[445]

Where there is no written opinion by the BIA, the appellate courts are forced to look to the original decision of the Immigration Judge.[446]  However, a decision to streamline “does not mean that the BIA has adopted, or entirely approves of, the IJ’s determinations; it only means that the BIA deemed any errors by the IJ to be harmless.”[447]  Thus, where there is no BIA opinion, it is often the case that the reviewing court has no way of knowing on which ground or grounds the Board affirmed, and in turn whether the reviewing court has jurisdiction to review the Board’s decision (i.e., whether the affirmance is based on statutory or discretionary grounds).  In this situation, the case may be remanded to the BIA for an opinion.[448]  Where the BIA does issue a decision, this decision will be reviewed independently from the opinion of the IJ.[449]  The courts are split as to how to treat a very short BIA decision (i.e., 1-2 paragraphs).[450]

The Immigration Judges and the BIA are not free to ignore arguments raised by a noncitizen respondent.[451]  On the other hand, the circuit courts cannot reach issues that were not specifically[452] presented to the Board of Immigration Appeals,[453] and the BIA cannot reach issues not raised by the respondent before the Immigration Judge.[454]  This is true for all parties, including the government.[455]  The only exception is for claims of U.S. citizens who are not required to exhaust because the INA does not apply to them.[456]  Therefore, any possible issues should be brought before the Immigration Judge and BIA, even if those issues may not be addressed by those courts (i.e., constitutional issues).[457]  Any issues brought before the courts of appeals must be brought in a timely manner.[458]  Deportation does not moot the appeal.[459]  

 

The circuit courts reviewing a decision of the BIA do not have jurisdiction to review the validity of the criminal conviction underlying the order of removal.[460]

 

(6)  Stare Decisis.  Generally “when [a] court has once laid down a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to all future cases, where facts are substantially the same . . . .”[461]  On the other hand a decision not directly addressing a certain issue is not considered to be binding precedent as to that issue.[462] 

 

A three-judge circuit panel is generally not allowed to overrule a prior decision of the same court.[463]  To overrule a prior decision within a circuit, the case challenging that decision will normally need to be heard en banc.  One exception is “where the reasoning or theory of [the] prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority,”[464] such as new legislation, a decision by the United States Supreme Court,[465] or an en banc decision issued by the same circuit.[466]  At least one circuit has held that stare decisis applies to modes of analysis as well as to the holdings themselves.[467]

 

Where certiorari has been granted, the underlying circuit court decision retains precedential value, although there is some authority to the contrary.[468]  Where a certain issue is pending in the United States Supreme Court, a circuit court with the same issue may choose to address the issue before the Supreme Court decision comes down, or may reserve decision until the Supreme Court has spoken on the issue.

 

                (7)  Res Judicata.  Despite some old BIA decisions to the contrary,[469] the federal courts appear generally inclined to apply the concept of res judicata (“a matter already judged”) to immigration proceedings.  The doctrine of res judicata embraces two distinct preclusion concepts: issue preclusion and claim preclusion.[470]  In either case, the issues may rest on a factual determination, a pure legal issue or a combination of fact and law,[471] even if the determination was incorrect.[472]

 

Issue preclusion (or “collateral estoppel”) treats specific issues of fact or law that have been validly and necessarily determined between two parties as final and conclusive, and prohibits a party from seeking another determination of the litigated issue in the subsequent action.[473]  This rule has been applied, for example, to prevent the immigration authorities from starting proceedings a second time, based upon the same evidence, after a finding by the immigration judge that the respondent in the case was a U.S. Citizen, and therefore could not be deported.[474] 

 

Claim preclusion (or “pure res judicata”) applies when: (1) the parties in a later action are identical to or in privity with the parties in a prior action; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action concluded with a final judgment on the merits; and (4) the same claim or cause of action is involved in both suits. The doctrine has been applied to prevent the immigration authorities, after a finding the respondent was not inadmissible and was in fact a U.S. Citizen, from instituting deportation proceedings on the basis that the respondent was a noncitizen inadmissible at the time of admission.[475]

Included in the doctrine of claim preclusion is the idea of waiver.  “If a party does not raise a claim or a defense in the prior action, that party thereby waives its right to raise that claim or defense in the subsequent action .... [T]he effect of a judgement extends to the litigation of all issues relevant to the same claim between the same parties, whether or not raised at trial.”[476] Claim preclusion therefore applies to claims that “were or could have been” raised in the prior action.[477] 

 

In Murray v. Ashcroft,[478] the INS initiated removal proceedings against Murray by charging him as an aggravated felon on the basis of two marijuana convictions.  After termination, following a finding that the convictions were not aggravated felonies, the INS filed a second NTA on the ground that Murray was deportable as a noncitizen convicted of controlled substance offenses based on the same convictions plus a third prior conviction uncharged in the initial NTA.  On petition for habeas corpus, the district court held that the immigration authorities were precluded from filing a new NTA charging a different ground of removal, but based upon convictions that were part of the record in the initial proceedings.  Even though the INS had not originally charged the respondent under the controlled substances ground, the IJ, BIA and District Court all agreed that the INS had been given the opportunity to raise the claim, but waived it by failing to bring the charges when the opportunity first arose.

 

While useful, the doctrine of res judicata is somewhat limited.  The DHS is allowed to bring new charges at any time over the course of proceedings,[479] prior to their termination, including after remand following appeal.[480]  The DHS may also file a new NTA charging grounds of deportability (including being inadmissible at the time of admission) upon a final order finding a respondent is not inadmissible based upon the same conduct charged in the NTA.[481]  The Third Circuit, while agreeing that collateral estoppel could be applied to immigration proceedings, found that it did not apply where the new proceedings were based, in part, on new criminal activity.[482]  The Sixth Circuit has found that non-essential findings made by an IJ during the “removal” portion of immigration proceedings can be re-litigated during the “relief” portion of proceedings.[483]  The DHS can still use a previously charged conviction in combination with a new conviction to charge a respondent in a subsequent NTA with deportability as a noncitizen convicted of multiple crimes of moral turpitude.[484] 

 

                In a disturbing case, the Fifth Circuit held that an affirmative grant of adjustment of status before the DHS in a non-adjudicative hearing, where the noncitizen disclosed all prior convictions, does not bar the DHS from initiating a removal proceeding based upon those same convictions.[485]  The court failed to engage in any analysis of Matter of Rafipour,[486] or Matter of Rainford,[487] which specifically prohibit the government from starting removal proceedings based upon convictions occurring prior to adjustment when the government was aware of those convictions at the time of adjustment and either granted a waiver (Rafipour), or granted adjustment because no waiver was needed since the convictions triggered deportation, but not inadmissibility (Rainford).

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

[388] Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006). See also Latu v. Ashcroft, 375 F.3d 1012 (10th Cir. 2004); Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993).

[389] 8 C.F.R. § 1003.20.

[390] Ballesteros v. Ashcroft, 452 F.3d 1153 (10th Cir. Jun. 14, 2006) (whether to grant a change of venue is in the discretion of the immigration judge, even where good cause to change venue is shown, and is not subject to judicial review).

[391] See, e.g., Petrov v. Gonzales, 464 F.3d 800 (7th Cir. Oct. 6, 2006) (aggravated felony conviction bars court of appeals, under 8 U.S.C. § 1252(a)(2)(C) [“no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed” an aggravated felony], from reviewing noncitizen’s claims under the Convention Against Torture), following Hamid v. Gonzales, 417 F.3d 642 (7th Cir. 2005).

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

[393] McAllister v. United States Att’y Gen., 444 F.3d 178 (3d Cir. Apr. 10, 2006) (for purposes of jurisdictional bar at 8 U.S.C. § 1252(a)(2)(C), a noncitizen is not “removable for reason of having committed [an enumerated] criminal offense” unless the final order of removal is grounded, at least in part, on one of those enumerated offenses).

[394] Alvarez-Santos v. INS, 332 F.3d 1245, 1251 (9th Cir. 2003) (jurisdiction bar is not triggered by removability unless the immigration courts have upheld a removal order based on a crime; “a person is not ‘removable’ on a particular basis unless or until the IJ determines that he is.”).  But see Kelava v. Gonzales, 434 F.3d 1120 (9th Cir. Jan. 12, 2006) (court had jurisdiction to review case since BIA chose not to address nonreviewable aggravated felony conviction finding of IJ in its decision, basing its decision solely on reviewable ground that the noncitizen had engaged in terrorist activity).

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

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

[397] McAllister v. United States Att’y Gen., 444 F.3d 178 (3d Cir. Apr. 10, 2006) (INA § 237(a)(4)(B) ground of removal based upon terrorism is not listed in INA § 242(a)(2)(C), and therefore does not bar court from judicial review).

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

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

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

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

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

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

[404] Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. Nov. 15, 2006) (Congress restored judicial review of constitutional claims and questions of law presented in petitions for review of final removal orders by providing that nothing in INA § § 242(a)(2)(B), (C), 8 U.S.C. § §  1252(a)(2)(B), (C), or any other provision of the INA shall preclude judicial review of such orders, unless such review is barred by some other provision of INA § 242, 8 U.S.C. § 1252).

[405] See, e.g., Chen v. Gonzales, 471 F.3d 315, 326-27 (2d Cir. 2006) (“We construe the intent of Congress’s restoration under the Real ID Act rubric of ‘constitutional claims or questions of law’ to encompass the same types of issues that courts traditionally exercised in habeas review over Executive detentions.”);  Kamara v. Att’y Gen. of the United States, 420 F.3d 202, 210-211 (3d Cir. Aug. 29, 2005) (“A review for ‘constitutional claims or questions of law,’ as described in [INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)] mirrors our previously enunciated standard of review over an alien’s habeas petition.”).

[406] Ramadan v. Gonzalez, 479 F.3d 646, (9th Cir. Feb. 22, 2007) (per curiam), vacating 427 F.3d 1218 (9th Cir. Nov. 2, 2005).  In making this decision the court reviewed the history of judicial review of immigration decisions, and examined the legislative history of the REAL ID Act.

[407] Id. at 648, quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19 (1982).

[408] See Chen v. Gonzalez, 471 F.3d at 326-327.  See also Kamara v. Att’y Gen. of the United States, 420 F.3d 202, 211 (3d Cir. Aug. 29, 2005) (“Thus, examining each of Kamara’s present claims, we are limited to ‘pure questions of law,’ St. Cyr, 533 U.S. at 305, 121 S.Ct. 2271, and to “issues of application of law to fact, where the facts are undisputed and not the subject of challenge.” Bakhtriger, 360 F.3d at 420 (citing Ogbudimkpa, 342 F.3d at 222.”). 

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

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

[411] See AILF practice advisory: Federal Court Jurisdiction Over Discretionary Decisions After REAL ID: Mandamus, Other Affirmative Suits and Petitions for Review (Apr. 5, 2006).  http://www.ailf.org/lac/realid_update_040506.pdf

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

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

[414] INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B).  See, e.g., Jarad v. Gonzales, 461 F.3d 867 (7th Cir. Aug. 24, 2006) (Immigration Judge did not commit legal error in making discretionary decision to deny INA § 245(i) adjustment to noncitizen who failed to depart following deportation proceedings 13 years earlier; court lacks jurisdiction to review discretionary denial of INA § 245(i) adjustment); Zhang v. Gonzales, 457 F.3d 172 (2d Cir. Jul. 12, 2006) (judicial review of whether respondent showed extreme hardship for purposes of adjustment of status under INA § 212(i) is barred as a discretionary determination under 8 U.S.C. § 1252(a)(2)(B)(i)); Alaka v. Att’y Gen., 456 F.3d 88 (3d Cir. Jul. 18, 2006) (court did not have jurisdiction to review determination that noncitizen had abandoned her permanent resident alien status for purposes of § 212(c) and cancellation of removal eligibility); Avendano-Espejo v. DHS, 448 F.3d 503 (2d Cir. May 11, 2006) (court lacks jurisdiction to review discretionary denial of INA § 212(c) relief); Martinez v. U.S. Att’y Gen., 446 F.3d 1219 (11th Cir. Apr. 21, 2006); Hadwani v. Gonzales, 445 F.3d 798 (5th Cir. Apr. 4, 2006); Grass v. Gonzales, 418 F.3d 876 (8th Cir. Aug. 12, 2005).

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

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

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

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

[419] Compare Jean v. Gonzales, 435 F.3d 475 (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has Good Moral Character for purposes of cancellation of removal is a non-discretionary factor subject to judicial review); Moran v. Ashcroft, 395 F.3d 1089, 1091 (9th Cir. 2005) (a Good Moral Character determination is subject to judicial review only when it is based upon one of the statutory exclusions in INA § 101(f)), with Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. Feb. 16, 2006) (court lacks jurisdiction to review IJ determination that respondent lacked Good Moral Character required to be eligible for relief); Cuellar Lopez v. Gonzales, 427 F.3d 492 (7th Cir. Oct. 26, 2005) (no judicial review since determination of Good Moral Character is a discretionary factor).

[420] Compare Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007); Alaka v. Attorney Gen., 456 F.3d 88 (3d Cir. Jul. 18, 2006) (decision that criminal offense was a “particularly serious crime” not barred from judicial review, since the question is a matter of law, not in the discretion of the Attorney General); Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. Apr. 4, 2006) (court of appeals has jurisdiction under REAL ID Act to review question of law whether BIA applied proper legal standard to determine whether conviction constituted a “particularly serious crime” for purposes of withholding of removal), with Petrov v. Gonzales, 464 F.3d 800 (7th Cir. Oct. 6, 2006) (question whether conviction constitutes a particularly serious crime, under INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), precluding political asylum or withholding of deportation, is held to be a discretionary decision not subject to petition for review jurisdiction in the court of appeals).

[421] Wilmore v. Gonzales, 455 F.3d 524 (5th Cir. Jul. 5, 2006) (court of appeals lacks jurisdiction to review whether Petitioner was subjected to “extreme cruelty” for purposes of the battered spouse provision in INA § 240A(b)(2), 8 U.S.C. § 1229b(b)(2)).

[422] Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (Washington conviction of communication with a minor for immoral purposes of a sexual nature, in violation of Wash. Rev. Code § 9.68A.090, although it constituted crime of moral turpitude, did not deprive court of appeals of petition for review jurisdiction over political asylum claim because jurisdiction-stripping statute, INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii), specifically exempts asylum cases).

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

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

[425] See, e.g., Reyez-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003) (bias of immigration judge prevented her from acting as a neutral fact-finder and prevented her from considering and evaluating evidence relevant to establishing extreme hardship); Akhtar v. Gonzales, 406 F.3d 399 (6th Cir. Apr. 29, 2005) (BIA abused its discretion in denying motion to reopen where it failed properly to apply its own regulations).

[426] See, e.g., Delgado-Reynua v. Gonzales, 450 F.3d 596 (5th Cir. May 23, 2006) (noncitizen’s claim that BIA incorrectly applied de novo review in reversing IJ’s discretionary grant of relief under INA § 212(c) was not a legal question subject to review; finding noncitizen’s claim was merely a disguised attempt to obtain circuit court review of discretionary issue).

[427] Falek v. Gonzales, 475 F.3d 285 (5th Cir. Jan. 8, 2007) (court of appeals lacked jurisdiction to consider claim that BIA failed to follow its own precedent).

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

[429] See § 24.7, supra.

[430] Khan v. Attorney General, 448 F.3d 226 (3d Cir. May 22, 2006) (court of appeals has jurisdiction to consider arguments that BIA erred in affirming denial of request for continuance of removal hearing as abuse of discretion and as a violation of due process); Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir. 2005) (the BIA abuses its discretion if it fails to give specific reasons for denying a motion to reopen); cf. Koon v. United States, 518 U.S. 81, 100 (1996) (“A district court by definition abuses its discretion when it makes an error of law.”).

[431] See e.g., United States v. Guerrier, 428 F.3d 76 (1st Cir. Nov. 8, 2005) (denial of jurisdiction based on fugitive entitlement doctrine is discretionary); Bhasin v. Gonzales, 423 F.3d 977 (9th Cir. Sept. 1, 2005) (BIA abused discretion in denying motion to reopen on basis of fugitive disentitlement doctrine).  See also, Annot., Application of “Fugitive Disentitlement Doctrine” in Federal Civil Actions, 176 A.L.R. Fed. 333 (2002).

[432] See e.g., Gutierrez-Almazan v. Gonzales, 453 F.3d 956 (7th Cir. Jul. 17, 2006) (denying government motion to dismiss under the fugitive disentitlement doctrine where petitioner surrendered to authorities, thus regaining his access to the courts).

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

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

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

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

[437] 18 U.S.C. § 16.

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

[439] Flores v. Ashcroft, 350 F.3d 666 (7th Cir. Nov. 26, 2003) (no power to interpret 18 U.S.C. § 16, a criminal statute, has been delegated to the Attorney General, BIA cases interpreting that statute have only persuasive force); Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. Jun. 15, 2006) (“We do not defer to BIA interpretations of state law or of provisions of the federal criminal code referenced within, but not part of, the Immigration and Nationality Act.”); Ng v. Att’y Gen., 436 F.3d 392 (3d Cir. Feb. 7, 2006); Singh v. Gonzales, 432 F.3d 533 (3d Cir. Jan. 3, 2006) (“The BIA’s interpretation of 18 U.S.C. § 16 is not entitled to deference by this Court: as a federal criminal provision outside the INA, it lies beyond the BIA’s area of special expertise.”); Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir. 2005); Tran v. Gonzales, 414 F.3d 464, 470 (3d Cir. 2005); Francis v. Reno, 269 F.3d 162, 168 (3d Cir. 2001).  See also Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002).

[440] See Lopez v. Gonzalez, 549 U.S. __, 127 S.Ct. 625 (2006).

[441] Rotimi v. Gonzales, 473 F.3d 55 (2d Cir. Jan. 3, 2007) (“[N]onprecedential decision by a single member of the BIA should not be accorded Chevron deference, see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), we remand petitioner’s case to provide the BIA with the opportunity to construe the “lawfully resided continuously” provisions of § 212(h) in a precedential opinion”).

[442] Ng v. Att’y Gen., 436 F.3d 392, 395 n.4 (3d Cir. Feb. 7, 2006) (open question whether court of appeals owes Chevron deference to BIA streamlining decision merely rubber-stamping Immigration Judge’s decision: “We have also previously questioned whether a BIA decision is entitled to deference when, as here, the BIA has affirmed without opinion the decision of the IJ pursuant to 8 C.F.R. § 1003.1(e)(4).  See Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 (“[I]t would seem to be, at the very least, an open question as to whether an IJ’s decision affirmed through the streamlining process would be entitled to Chevron deference . . . .  [D]eferring to the reasoning of an IJ from which the BIA would be free to depart in other cases would seem highly problematic.”); cf. Singh 383 F.3d at 152 (“[T]he BIA, by affirming without opinion, gave no considered and authoritative agency-wide interpretation of the statute . . . .”).  But see Gutnik v. Gonzales, 469 F.3d 683 (7th Cir. Nov. 29, 2006) (where BIA issues any language supporting decision of IJ beyond mere summary affirmance without opinion, Chevron deference must be given).

[443] 8 C.F.R. § 1003.1(e).

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

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

[446] 8 C.F.R. § 1003.1(e)(4)(i).  See, e.g., Hamdan v. Gonzales, 425 F.3d 1051, 1057-1058 (7th Cir. Oct. 13, 2005); Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003).

[447] Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003); see 8 C.F.R. § 1003.1(e)(4)(ii).  But see Padilla-Padilla v. Gonzales, 463 F.3d 972 (9th Cir. Sept. 13, 2006) (because BIA issued a streamlined order, it was required to affirm the entirety of the IJ’s decision, including the length of the voluntary departure period granted).

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

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

[450] Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (“When the BIA issues a short opinion adopting an IJ’s decision, we review the two decisions together, including the portions [of the IJ’s decision] not explicitly discussed by the BIA.”).

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

[452] Morales-Alegria v. Gonzales, 449 F.3d 1051 (9th Cir. Jun. 6, 2006) (no appellate jurisdiction to review issue not raised below; noncitizen “cannot satisfy the exhaustion requirement by making a general challenge to the IJ’s decision, but, rather, must specify which issues form the basis of the appeal.”), quoting Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004).

[453] INA § 242(d)(1), 8 U.S.C. § 1252(d)(1) (court may review a final order of removal only if the noncitizen has exhausted all administrative remedies).  See Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. Dec. 7, 2005) (issue not raised is waived); Notash v. Gonzales, 427 F.3d 693 (9th Cir. Nov. 2, 2005) (court of appeals generally lacks jurisdiction over claims that the petitioner fails to present to the IJ or BIA); Pineda v. Gonzales, 427 F.3d 833 (10th Cir. Oct. 27, 2005); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (discussing the requirement of administrative exhaustion found in INA § 242(d), 8 U.S.C. § 1252(d)); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (explaining that issue not raised and argued in party’s opening brief is waived).  But see Zhong v. U.S. Dept. of Justice, 461 F.3d 101 (2d Cir. Aug. 8, 2006) (“We are persuaded, both on the language of § 1252(d)(1) and on these authorities, that the exhaustion of ‘all administrative remedies available to [an] alien as of right’ under 8 U.S.C. § 1252(d)(1) does not require -- as a statutory matter -- that a petitioner for relief from removal raise to the BIA each issue presented in his or her petition for judicial review. Therefore, in the context of 8 U.S.C. § 1252(d)(1), the failure to exhaust individual issues before the BIA does not deprive this court of subject matter jurisdiction to consider those issues.”).

[454] Evidence first submitted on appeal and not offered at the trial level is not considered by the BIA unless it is considered as part of a motion to remand. See Matter of Soriano, 19 I. & N. Dec. 764 (BIA 1988); Matter of Arias, 19 I. & N. Dec. 568 (BIA 1988); Matter of Obaigbena, 19 I. & N. Dec. 533 (BIA 1988); Matter of Estime, 19 I. & N. Dec. 450 (BIA 1987).  See also DaCosta v. Gonzales, 449 F.3d 45 (1st Cir. May 24, 2006) (court lacks jurisdiction to review claims where BIA was not presented with opportunity to address legal questions raised for the first time on appeal to the circuit court); Korsunskiy v. Gonzales, 461 F.3d 847 (7th Cir. Aug. 23, 2006) (even pro-se petitioners must have raised issues in petition for review in immigration court); Gonzales v. Chertoff, 454 F.3d 813 (8th Cir. Jul. 20, 2006).

[455] See, e.g., United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. August 1, 2006).  A reviewing court cannot, for example, find removability upon a ground that was not charged or was waived by the government. Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. Mar. 6, 2006) (charge was dismissed by the Immigration Judge, and the government did not appeal the dismissal).

[456] Theagene v. Gonzales, 411 F.3d 1107 (9th Cir. June 15, 2005) (“Because only an “alien” may be required to exhaust administrative remedies under § 1252(d)(1), the plain language of § 1252(b)(5) requires that upon a petition for review of the BIA’s final order of removal, we must evaluate a petitioner’s claim to United States nationality regardless of whether the claim was raised below.”).

[457] See, e.g., Sanchez-Cruz v. INS, 255 F.3d 775, 779-80 (9th Cir. 2001) (although petitioner’s allegation of IJ bias presented a colorable due process claim, the claim was precluded by failure to present it to the BIA).

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

[459] Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. Oct. 18, 2004) (while deportation removes primary personal stake in case, collateral consequence that noncitizen would be permanently barred from re-entry sufficient to avoid mootness); Mendez v. INS, 563 F.2d 956, 958 (9th Cir. 1977) (when a noncitizen is wrongfully deported, or deportation was effectuated by procedurally defective means, INA § 105(a), 8 U.S.C. § 1105(a) does not bar review of the order by the court of appeals even if the noncitizen has left the United States).

[460] Vargas v. Dep’t of Homeland Sec., 451 F.3d 1105 (10th Cir. Jun. 21, 2006).

[461] Black’s Law Dictionary, 1406 (6th Ed. 1990).

[462] See, e.g., Petrov v. Gonzales, 464 F.3d 800 (7th Cir. Oct. 6, 2006) (“Because Tunis did not mention that subject, it does not contain a holding on the issue.”).  See also Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952).

[463] See, e.g., Beardslee v. Brown, 393 F.3d 1032 (9th Cir. Dec. 29, 2004) (three-judge panel of federal court of appeals cannot, absent exceptional circumstances (not present here) overrule prior Ninth Circuit decision), citing Benny v. U.S. Parole Comm’ n, 295 F.3d 977, 983 (9th Cir. 2002) (“We are bound by decisions of prior panels unless an en banc decision, Supreme Court decision or subsequent legislation undermines those decisions.”); Kelava v. Gonzales, 434 F.3d 1120 (9th Cir. Jan. 12, 2006) (“A three-judge panel cannot disregard prior circuit precedent unless it has been effectively overruled by an intervening Supreme Court decision.  See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc).  While the intervening decision need not involve an identical issue, its implications do need to be sufficiently discernable so that the two cases are “clearly irreconcilable.” Id. at 900.”).

[464] Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003).  See also Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. Jun. 15, 2006).

[465] See, e.g., Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. May 23, 2005) (“To the extent that our decision in Park v. INS, 252 F.3d 1018 (9th Cir. 2001), and cases there cited support a contrary result, we conclude that they are no longer good law in light of [Leocal v. Ashcroft, 543 U.S. 1 (2005)].”).

[466] Overstreet v. United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1205 n. 8 (9th Cir. 2005).

[467] Gill v. Stern (In re Stern), 345 F.3d 1036, 1043 (9th Cir. 2003), quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003).

[468] United States v. Tholl, 895 F.2d 1178, 1181 n.7 (7th Cir. 1990) (“Because this issue is currently pending before the Supreme Court, United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1988), cert. granted, 493 U.S. 808 (1989) (granting certiorari and requesting that the parties brief the political question doctrine in addressing the justiciability issues in the case), we believe that a respectful silence on this issue is the most appropriate course; an alternate avenue of decision grounded in the precedent of the Supreme Court is available to us. Cf. Nebeker, 167 U.S. at 203, 17 S.Ct. at 763 (declining to address the justiciability issue because the statute can be construed as a non-revenue measure).”).

[469] Matter of Caydam, 12 I. & N. Dec. 528 (BIA 1967) (res judicata inapplicable to administrative proceedings); Matter of Bark, 14 I. & N. Dec. 237 (BIA 1972) (same).  But see United States v. Constr. & Mining Co., 384 U.S. 394 (1966) (“When an administrative agency is acting in  a judicial capacity .  .  .  the courts have not hesitated to apply res judicata to enforce repose.”).

[470] See United States v. Shanbaum, 10 F.3d 305 (5th Cir. 1994).  See also Robi v. Five Platters, Inc., 838 F.2d 318 (9th Cir. 1988).

[471] See Medina v. INS, 993 F.2d 499 (5th Cir. 1993).

[472] Medina stated that “it makes no difference that the final, valid judgment may be been based on an erroneous factual finding or an erroneous understanding of the law or both.  The only consideration for purposes of res judicata is whether the judgment was final, valid, and there was an opportunity to reach the merits.”  993 F.2d at 504.  Therefore, even if the decision of the immigration judge was based upon some sort of error, res judicata still bars relitigation of the issues presented, or the issues that could have been presented.  But see Savoury v. U.S. Att’y Gen., 449 F.3d 1307 (11th Cir. May 25, 2006) (doctrine of laches is inapplicable against government who admitted respondent as LPR despite knowledge of a controlled substances conviction, and later sought to exclude him when he arrived from a trip abroad).

[473] See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326‑32 (1979).

[474] Ramon-Sepulveda v. INS, 824 F.2d 749 (9th Cir. Feb. 24, 1987).  See also Guevara v. Gonzales, 450 F.3d 173 (5th Cir. May 19, 2006) (motions to reopen or reconsider are considered collateral attacks of prior immigration decisions, rather than part of the direct review process, therefore the DHS was barred by res judicata from making an untimely motion to reconsider before the BIA); Medina v. INS, 993 F.2d 499 (5th Cir. 1993) (precluding INS from bringing a second challenge to finding of United States citizenship); cf Hamdan v. Gonzales, 425 F3d 1051 (7th Cir. 2004); Palciauskas v. INS, 939 F.2d 963 (7th Cir. 1991).

[475] Medina v. INS, 993 F.2d 499 (5th Cir. 1993).  The court noted that the same result would have been reached has the issue preclusion test been applied.  Id. at 503 n. 15.

[476] United States v. Shanbaum, 10 F.3d 305, 311 (5th Cir. 1994) (internal quotation marks and citation omitted).

[477] Allen v. McCurry, 449 U.S. 90, 94 (1980).

[478] Murray v. Ashcroft,  321 F. Supp. 2d 385 (D. Conn. June 9, 2004).

[479] 8 C.F.R. § 1003.30.

[480] Valencia-Alvarez v. Gonzales, 469 F.3d 1319 (9th Cir. Dec. 6, 2006).  But see Johnson v. Ashcroft, 378 F.3d 164 (2d Cir. Aug. 5, 2004) (after motion to reopen filed with BIA granted on the basis of successful post-conviction relief, BIA was barred from remanding case to IJ to allow DHS to file additional charges based upon evidence available during the initial proceedings).

[481] Pearson v. Williams, 202 U.S. 281, 284 (1906); Zavala v. Ridge, 310 F.Supp.2d 1071 (N.D. Cal. 2004) (proceedings terminated after petty offense exception found by IJ to apply to returning LPR convicted of CMT; INS then filed new NTA charging deportability as aggravated felon).

[482] Duvall v. Att’y Gen., 436 F.3d 382 (3d Cir. Feb. 7, 2006).

[483] Santana-Albarran v. Ashcroft, 393 F.3d 699 (6th Cir. Jan. 10, 2005) (IJ finding regarding entry date during “removal” portion of proceedings did not bar DHS from challenging entry date during “relief” portion of proceedings for purposes of proving cancellation of removal under the doctrine of collateral estoppel).

[484] Cf. Matter of Gordon, 20 I. & N. Dec. 52, 56 (BIA 1989) (CMT conviction previously waived by 212(c) can be used in charging respondent with deportability for multiple CMTs in combination with subsequent conviction).  See § § 20.28-20.41, infra.

[485] Andrade v. Gonzales, 459 F.3d 538 (5th Cir. Aug. 1, 2006), cert. denied, 127 S.Ct. 973 (Jan 8, 2007).

[486] Matter of Rafipour, 16 I. & N. Dec. 470 (BIA 1978).

[487] Matter of Rainford, 20 I. & N. Dec. 598 (BIA 1992).