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11.k. Post­BIA Briefing Issues--Exhaustion is not required where "legal issues based on events that occur after briefing to the BIA has been completed." Alcaraz v. INS, 384 F.3d 1150, 1158­59 (9th Cir. 2004) [where memos supporting respondent's claim regarding administrative closure and repapering arose after BIA briefs were filed, no exhaustion requirement]. Nor is it required where the issue had been raised and rejected by the BIA in the first appeal but not raised in subsequent appeals in the same case. Miguel-Miguel v. Gonzales, 500 F.3d 941, 944­45 (9th Cir. 2007) [no requirement that petitioners exhaust an argument before the BIA more than once]. 11.l. Pure Questions of Law--Exhaustion may not be required where the issue raised is a pure question of law, including a challenge to the legality of a regulation. Momin v. Gonzales, 447 F.3d 447 (5th Cir. 2006), vacated on other grounds, 462 F.3d 497 (5th Cir. 2006); HuertaGuevara v. Ashcroft, 321 F.3d 883 (9th Cir. 2003) [pro se concession as to conviction did not prevent court from addressing legal issue of whether conviction was an aggravated felony, where there was no prejudice to the government]. A challenge to the agency's regulations that are binding on its officers and employees. Momin, supra [challenge to the legality of arriving alien AOS regulation which was not considered by the BIA was not waived as it was a pure issue of law and BIA followed the regulations in unpublished decisions]; Espinoza-Gutierrez v. Smith, 94 F.3d 1270, 1273 (9th Cir. 1996) ["[e]xhaustion doctrine does not bar review of a question concerning the validity of an INS regulation because of conflict with a statute"]. 11.m. Ultra Vires Agency Actions--Exhaustion is not required "where an agency's exercise of authority is clearly at odds with the specific language of the statute." McClendon v. Jackson Television Inc., 603 F.2d 1174, 1177 (5th Cir. 1979). 11.n. Constitutional Challenges--A constitutional challenge to administrative action also does not require exhaustion. Mathews, 424 U.S. at 328­30; Bosede v. Mukasey, 512 F.3d 946, 950­51 (7th Cir. 2008) [where IJ violated due process in not considering evidence, stated that petitioner might not have problems because he could bribe his way out of jail, and "applied whatever rationale he could muster to justify a predetermined outcome," exhaustion not required];Morgan v. Gonzales, 495 F.3d 1084, 1089­90 (9th Cir. 2007) [substantive due process and equitable estoppel claims need not be exhausted where challenge was to unlawful removal because of government promise or reliance that he would not be deported]; Colaianni v. INS, 490 F.3d 185, 187 (2d Cir. 2007) [exhaustion not required for equal protection challenge regarding derivative citizenship because BIA lacked authority to address it]; Padilla-Padilla v. Gonzales, 463 F.3d 972, 976­77 (9th Cir. 2006) [constitutional and international law challenges to 10-year and stop-time limitations on cancellation did not require exhaustion]; Hadayat v. Gonzales, 458 F.3d 659, 664­65 (7th Cir. 2006) [where respondent argued that NSEERS violated equal protection, the court noted this was the type of fundamental constitutional claim the BIA does not address]; Geach v. Chertoff, 444 F.3d 940, 945­46 (8th Cir. 2006) [equal protection challenge to denial of suspension to person granted advance parole is not subject to exhaustion because BIA has no jurisdiction to adjudicate constitutional challenges unrelated to procedural errors]; Bangura v. Hansen, 434 F.3d 487, 493­94 (6th Cir. 2006) [substantive and procedural due process challenges to INA §204(c) barring the approval of a subsequent I-130 when the beneficiary previously engaged in marriage fraud]; Singh v. Reno, 182 F.3d 504, 511 (7th Cir. 1999) [due process challenge based on INS's failure to promptly put person in deportation proceedings thus subjecting him to removal]; Anwar v. INS, 116 F.3d 140, 144 n.4 (5th Cir. 1997) [due process challenge to regulations regarding submission of briefs]; Wang v. Reno, 81 F.3d 808, 813­16 (9th Cir. 1996) [exhaustion not required to enjoin exclusion proceeding where due process claim does not implicate INA]; Garberding v. INS, 30 F.3d 1187, 1188 n.1 (9th Cir. 1994) [although a party may be required to exhaust a procedural due process claim that could be remedied by the IJ, an equal protection claim that the IJ/BIA cannot decide does not require exhaustion]; Rafeedie v. INS, 880 F.2d 506 (D.C. Cir. 1989) [constitutional challenge to INA §235(c)]; Mandarino v. Ashcroft, 318 F.Supp.2d 13, 16 (D. Conn. 2003) [retroactivity argument did not require exhaustion by appeal to BIA]; Milosevic v. Ridge, 301 F.Supp.2d 337 (M.D. Pa. 2003) [constitutional challenge to BIA policy of refusing to toll VD while motion to reopen is pending did not have to be presented to BIA]; Ashley v. Ridge, 288 F.Supp.2d 662, 666­67 (D.N.J. 2003) [no exhaustion where constitutionality of automatic-stay under 8 C.F.R. §1003.19(i)(2) cannot be addressed administratively before BIA]; Hodel v. Aguirre, 260 F.Supp.2d 695, 698­99 (N.D. Ill. 2003) [due process challenge to detention after deportation does

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not require exhaustion]; Kelly v. Farquharson, 256 F.Supp.2d 93, 99­100 (D. Mass. 2003) [access to court claim in habeas did not have to be raised with IJ/BIA]; Jankowski v. INS, 138 F.Supp.2d 269, 273­76 (D. Conn. 2001), rev'd on other grounds, 291 F.3d 172 (2d Cir. 2002) [equal protection challenge does not require exhaustion]; Saba v. INS, 52 F.Supp.2d 1117, 1124­25 (N.D. Cal. 1999) [exhaustion not required where pervasive ineffective assistance of counsel that cannot be corrected through agency constitutes a due process violation]; Ali v. INS, 661 F.Supp. 1234 (D. Mass. 1986) [challenging constitutionality of marriage interview procedures]. 11.o. Futile Challenges--Administrative remedies also need not be exhausted where they would be futile. Arce-Vences v. Mukasey, 512 F.3d 167, 172­72 (5th Cir. 2007) [where 5th Cir. law was clearly binding on BIA, no purpose would be served in raising the issue before the BIA]; Gonzalez v. O'Connell, 355 F.3d 1010, 1015­18 (7th Cir. 2004) [no need to exhaust constitutional challenge to mandatory detention where issue of statutory interpretation controlled by Matter of Roldan and therefore would be futile]; Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002) [BIA had predetermined statutory issue]; Sengkeo v. Horgan, 670 F.Supp.2d 116, 121­ 23 (D. Mass. 2009) [prudential exhaustion inapplicable where challenging mandatory detention to the BIA would be futile]; Garcia v. Shanahan, 615 F.Supp.2d 175, 179­80 (S.D.N.Y. 2009) [BIA had previously decided issue regarding the definition of "when released" for purposes of mandatory detention]; Duy Tho Hy v. Gillen, 588 F.Supp.2d 122, 125­26 (D. Mass. 2008) [same]; Pastor-Camarena v. Smith, 977 F.Supp. 1415 (W.D. Wash. 1997) [no exhaustion necessary where BIA decided bond issue en banc]; Selgeka v. Carroll, 184 F.3d 337, 345 (4th Cir. 1999) [where BIA position was clearly against right of stowaway to seek asylum before IJ, petitioner need not exhaust]; American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1058 (9th Cir. 1995), rev'd on other grounds, 525 U.S. 471 (1999) [futile where agency does not have authority and where its position is fixed]; Castillo-Villagra v. INS, 972 F.2d 1017, 1024 (9th Cir. 1992) [where BIA unlikely to change its position, prudential exhaustion not required]; Flores-Powell v. Chadbourne, 677 F.Supp.2d 455, 462­64 (D. Mass. 2010) [failure to appeal denial of bond after Matter of Joseph hearing does not bar habeas where exhaustion not mandatory, a constitutional issue is raised, and exhaustion would be futile]; Fuller v. INS, 144 F.Supp.2d 72, 80­83 (D. Conn. 2000) [deported person under transition rules not required to exhaust because BIA's position on retroactivity of §212(c) bar was clear]; Grant v. Zemski, 54 F.Supp.2d 437 (E.D. Pa. 1999) [exhaustion was futile where BIA had "predetermined" the issue]; American Baptist Churches v. Meese, 712 F.Supp. 756 (N.D. Cal. 1989) [allegations of low approval rates for Salvadorans and persecution that awaits plaintiffs were sufficient on futility grounds to withstand a motion to dismiss for failure to exhaust]; Full Gospel Portland Church v. Thornburgh, 730 F.Supp. 441, 444­45 (D.D.C. 1988) [unreasonable delay on adjudication of 3d/6th preference]; Beltre v. Kiley, 470 F.Supp. 87 (S.D.N.Y. 1979); Deldago v. INS, 473 F.Supp. 1343 (S.D.N.Y. 1979); Rhodes v. U.S., 574 F.2d 1179, 1181 (5th Cir. 1978). But see Bowles v. Russell, 127 S.Ct. 2360, 2366 (2007) [futility is not an exception to statutorily mandated exhaustion]; Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) [where Congress provided for statutory exhaustion, "we will not read futility or other exceptions into statutory exhaustion requirements"]; Bah v. Mukasey, 521 F.3d 857, 859­60 (8th Cir. 2008) [citing Bowles and holding that petitioner's failure to exhaust appeal to AAO, even if futile, barred court's jurisdiction]; Grullon v. Mukasey, 509 F.3d 107, 112­ 14 (2d Cir. 2007) [reading Booth to require exhaustion before the BIA notwithstanding BIA's on-point precedent decision because BIA has authority to change its opinion in an en banc decision]; Popal v. Gonzales, 416 F.3d 249, 252 (3d Cir. 2005) [agreeing in dicta with Theodoropoulas that futility is not a exception to statutory exhaustion]; Theodoropoulas v. INS, 358 F.3d 162, 167­74 (2d Cir. 2004) [statutory exhaustion under §1252(d)(1) bars habeas even where petitioner claims futility in §212(c) challenge after Matter of Soriano on the ground that "futility­is simply not available when the exhaustion requirement is statutory"]; Beharry v. Ashcroft, 329 F.3d 51, 57­58 (2d Cir. 2003) [following Booth, respondent was required to exhaust as a judicial matter (rather than as a statutory matter) before the IJ/BIA on the application of §212(h) under international law to an aggravated felon LPR even if his chances of prevailing were remote and the IJ/BIA were not empowered to interpret 212(h) in light of international law]; Sundar v. INS, 328 F.3d 1320 (11th Cir. 2003) [§242(d)(1) applies to §2241 habeas proceedings and dismissing petition for failure to seek BIA review even if

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there was perceived futility pre­St. Cyr for aggravated felon seeking §212(c)]; RamirezOsorio v. INS, 745 F.2d 937 (5th Cir. 1984). 11.p. Estoppel Claims--Morgan v. Gonzales, 495 F.3d 1084, 1089­90 (9th Cir. 2007) [substantive due process and equitable estoppel claims need not be exhausted where challenge is to unlawful removal because of government promise or reliance that he would not be deported]; Chang v. U.S., 327 F.3d 911, 919­20, 922­24 (9th Cir. 2003) [where IJ could not address APA, estoppel and constitutional claims and where statutes limit the scope of removal proceedings, plaintiffs did not have to exhaust to seek review of the retroactive application of administrative decisions to the investor's application]. 11.q. Where Clear Showing of Irreparable Harm--Mathews v. Eldridge, 424 U.S. 319, 330 (1975) [exhaustion not required where plaintiff raised colorable claim that because of physical condition and dependency on disability benefits, erroneous termination of disability benefits would damage plaintiff in a way not recompensable through retroactive payments]; Kelly v. U.S. Postal Service, 492 F.Supp. 121, 127 (S.D. Ohio 1980). 11.r. Where Agency Failed to Inform Applicant of Right to Relief Despite Obligation to Do So-- U.S. v. Sosa, 387 F.3d 131, 136­37 (2d Cir. 2004) [where pro se respondent was not informed of §212(c), failure to exhaust "must be excused" where it arises from a waiver of appeal that was not knowing and intelligent]; Asani v. INS, 154 F.3d 719, 727­29 (7th Cir. 1998) [IJ failed to inform applicant of right to suspension]; Kossov v. INS, 132 F.3d 405 (7th Cir. 1998) [IJ failed to advise applicant of right to apply for withholding]; Duran v. INS, 756 F.2d 1338 (9th Cir. 1985) [IJ failed to inform applicant of suspension]. 11.s. Where No Time Frame for Agency Action--The law does not bind the agency to any definite time frame for administrative action. Iddir v. INS, 301 F.3d 492, 498­99 (7th Cir. 2002) [where INS acknowledged that it had no idea when, if ever, it would institute removal proceedings so that appellants could obtain review of their denied DV applications, exhaustion in proceedings not required]; Schaeuble v. Reno, 87 F.Supp.2d 383, 389 (D.N.J. 2000) [plaintiff not required to exhaust Privacy Act claim to amend records where law does not require agency to make a final response within any period of time]. 11.t. Where Issue Fairly Raised--Exhaustion may not be required where the issue was fairly raised, even if not precisely articulated in manner now argued before the federal court. Restrepo v. McElroy, 369 F.3d 627, 633 n.10 (2d Cir. 2004) [where retroactivity argument was based on alternative theory, issue was fairly raised]; Walcott v. Chertoff, 517 F.3d 149, 153 (2d Cir. 2008) [following Restrepo claiming that general challenge was sufficient]; Moussa v. INS, 302 F.3d 823, 825­26 (8th Cir. 2002) [where IJ ruled in favor of respondent on derivative naturalization and BIA reversed, respondent's argument in circuit court that his parents were not remarried under the INA definition of spouse and therefore were legally separated was not barred]. 11.u. Where Issue Raised Through Motion to Reopen--Where the issue was fairly raised not on appeal but through a motion to reopen, and the administrative agency (BIA) had the opportunity to review the issue. U.S. v. Copeland, 376 F.3d 61, 67 (2d Cir. 2004) [where respondent filed motion to reopen his deportation hearing instead of filing direct appeal, but then appealed the denial of the motion to reopen he exhausted his administrative remedies]. 11.v. "Intimately Intertwined" Issues--Where certain claims are "intimately intertwined" with other claims that need not be exhausted so "as to make the application of the exhaustion requirement improvident." Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 468 (S.D. Fla. 1980), aff'd sub nom. Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982). 11.w. Where Waiver of Appeal Was Not Knowingly, Intelligently, and Voluntarily Made--Biwot v. Gonzales, 403 F.3d 1094, 1097­98 (9th Cir. 2005) [where respondent denied counsel and because of it he labored under the impression that he had no choice but to waive BIA appeal, court retained jurisdiction on denial of counsel claim]; U.S. v. Sosa, 387 F.3d 131, 136­37 (2d Cir. 2004) [where pro se respondent was not informed of §212(c) relief, failure to exhaust "must be excused" where it arises from a waiver of the right to appeal that was not knowing and intelligent]; Selgeka v. Carroll, 184 F.3d 337, 345 (4th Cir. 1999) [applicant was represented by accredited representative who was law graduate but not lawyer and there is nothing in record indicating his knowledge of due process or failure to raise constitutional claim before agency].

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12. Pro Se Applicants--Court will apply a more lenient standard in determining whether pro se applicants have exhausted administrative remedies. Such claims are construed liberally. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Agyeman v. INS, 296 F.3d 871, 877­78 (9th Cir. 2002). 13. Non­Final Orders--Courts distinguish between exhaustion and nonfinal orders. Even where a party does not have to exhaust administrative remedies, the decision to do so prevents a federal court from reviewing the action until the agency makes a final decision. M.A. v. Reno, 114 F.3d 128 (9th Cir. 1997) [dismissing case because decision by agency is not final]. But see Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005) [claim that has been fully and fairly litigated by the parties, before the IJ and the BIA, has been exhausted for finality purposes]. 14. Government Waiver--The government may waive an exhaustion argument by arguing the issue on the merits and waiting until oral argument to raise the claim. Abdelqadar v. Gonzales, 413 F.3d 668, 670­71 (7th Cir. 2005). C. Other Article III Questions In addition to exhaustion and statutory preclusion, efforts to seek federal court review may be barred by constitutional and prudential Article III concerns, such as lack of subject-matter jurisdiction, lack of standing, ripeness, mootness, and the political question doctrine. These and other bars to judicial review must be addressed prior to addressing the merits of a party's claims. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 93­95 (1998) [court cannot hypothesize jurisdiction to reach the merits of the case but must first determine its jurisdiction]. 1. Subject-Matter Jurisdiction 1.a. Consular Non-Reviewability--The Homeland Security Act of 2002 §428(f) states that it does not create a private right of action to challenge the decision of a consular officer or other U.S. official or employee to grant or deny a visa. In addition, some courts have found that there is no subject-matter jurisdiction to review consular decisions. Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) [distinguishing Abourezk and finding no review of decision to grant or to revoke a visa; noting that traditionally these were matters for diplomatic protest]; Chiang v. Skeirik, 582 F.3d 238 (1st Cir. 2009) [jurisdiction to review constitutional claim but no jurisdiction over nonconstitutional claims]; Centeno v. Shultz, 817 F.2d 1212 (5th Cir. 1987) [no power to review consular denial of B visa]; Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970 (9th Cir. 1986); Ventura-Escamilla v. INS, 647 F.2d 28 (9th Cir. 1981) [no power to substitute judgment where regulation valid and consul exercising discretion]; Rivera de Gomez v. Kissinger, 534 F.2d 518 (2d Cir. 1976); Burrafato v. DOS, 523 F.2d 554 (2d Cir. 1975) [no review even where DOS fails to follow its own regulations]; Ramsey v. Reilly, 613 F.Supp.2d 6 (D.D.C. 2009) [no jurisdiction to review denial of B-1 and waiver in reason to believe drug trafficking case]; Pedrozo v. Clinton, 610 F.Supp.2d 730, 734­35 (S.D. Tex. 2009) [consular nonreviewability prevents APA/mandamus claim to compel consulate to complete processing H-1B visa]; Castillo v. Rice, 581 F.Supp.2d 468 (S.D.N.Y. 2008) [dismissing mandamus and APA petition seeking expedited adjudication of K-3 visa in the Dominican Republic]; El-Hadad v. U.S., 377 F.Supp.2d 42 (D.D.C. 2005) [no habeas or other jurisdiction to review denial of B-1/B-2 visa or advance parole to return to pursue litigation]; Chun v. Powell, 223 F.Supp.2d 204, 206­07 (D.D.C. 2002) [no jurisdiction to review by declaratory judgment whether consular officer weighed all factors in denying on §214(b) grounds a B-2 visa to plaintiff's sister]; Mansur v. Albright, 130 F.Supp.2d 59 (D.D.C. 2001) [when the Deputy Assistant Secy. of State for Visa Services revokes a visa under 8 U.S.C. §1201(i), it is committed to agency discretion and is not reviewable]; Ruston v. DOS, 29 F.Supp.2d 518, 523 (E.D. Ark. 1998) [no review of revocation of visa by consular officer because notice of intent to revoke is not mandatory]; Reznik v. INS, 901 F.Supp. 188, 191 (E.D. Pa. 1995) [no jurisdiction to review denial of waiver under §1157 for refugees]; Encuentro Del Canto Popular v. Christopher, 944 F.Supp. 805 (N.D. Cal. 1996); Romero v. Consulate of the U.S. in Barranquilla, Colombia, 860 F.Supp. 319 (E.D. Va. 1994) [no jurisdiction in denial of NIV on "reason to believe" ground]; Shen v. U.S. Consulate General at Shanghai, China, 866 F.Supp. 779 (S.D.N.Y. 1994) [no jurisdiction to force consulate to issue visas to persons subpoenaed]; Garcia v. Baker, 765 F.Supp. 426 (N.D. Ill. 1990); Hermina-Sague v. U.S., 416 F.Supp. 217 (D.P.R. 1976); Pena v. Kissinger, 409 F.Supp. 1182 (S.D.N.Y. 1976) [where LPR spouse sought review of consular's denial of IV for husband, court affirmed on

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ground there is no jurisdiction]. This has also been characterized as a lack of standing. Saavedra Bruno v. Albright, supra; Adams v. Baker, 909 F.2d 643, 647 n.3 (1st Cir. 1990). 1.b. There is jurisdiction, however, to review claims by USCs challenging visa denials. Kleindienst v. Mandel, 408 U.S. 753 (1972); American Academy of Religion v. Napolitano, 573 F.3d 115, 123­25 (2d Cir. 2009) [district court had jurisdiction to consider organizations' First Amendment claim in denial of B visa to an Islamic scholar; court applied Mandel to the consular officer's threshold decision based upon the applicant's alleged inadmissibility for providing material support to a terrorist organization]; Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008) [exception to consular nonreviewability when a USC's constitutional rights are alleged to have been violated by the denial of a visa to a foreign national; review is under the facially legitimate and bona fide standard]; U.S. v. Kumpf, 438 F.3d 785, 788 (7th Cir. 2006) [rejecting claim that consular nonreviewability precluded review of visa issuance in denaturalization case, where government claimed visa was issued unlawfully under Refugee Relief Act]; Patel v. Reno, 134 F.3d 929, n.1 (9th Cir. 1997) [mandamus action compelling consular officer to decide IV case]; Adams v. Baker, 909 F.2d 643, 647 n.3 (1st Cir. 1990); City of New York v. Baker, 878 F.2d 507 (D.C. Cir. 1989); Abourezk v. Reagan, 785 F.2d 1043, 1051 n.6 (D.C. Cir. 1986), aff'd per curiam by an equally divided court, 484 U.S. 1 (1987) [jurisdiction to review denial of visa]; American Sociological Association v. Chertoff, 588 F.Supp.2d 166 (D. Mass. 2008) [organizations that extended invitation to professor to speak had a First Amendment claim under Mandel but neither the professor, nor Chertoff were proper parties]. See also Abu Ali v. Ashcroft, 350 F.Supp.2d 28, 39­57 (D.D.C. 2004) [denying motion to dismiss habeas brought by USC held in Saudi Arabia at the direction of the U.S.]. There is also jurisdiction to review revocation of visas, Wong v. DOS, 789 F.2d 1380, 1382 (9th Cir. 1986), whether or not the person challenging the revocation was in the U.S. Shimizu v. DOS, No. CV 89-2741-WMB [unpublished] (C.D. Cal. May 31, 1990). There is also mandamus jurisdiction to compel a consular officer to make a decision on a visa application. Patel v. Reno, 134 F.3d 929 (9th Cir. 1997); Legal Assistance for Vietnamese Asylum Seekers v. DOS, 45 F.3d 469 (D.C. Cir. 1995), remanded on other grounds, 117 S.Ct. 378 (1996) [standing and jurisdiction to challenge DOS change of policy]; American Academy of Religion v. Chertoff, 463 F.Supp.2d 400, 420­22 (S.D.N.Y. 2006) [mandamus available to obtain decision on B visa for Islamic scholar in light of APA, 5 U.S.C. §555(b), and 22 C.F.R. §§41.106, 41.121 requiring prompt adjudication of visas]; Raduga USA Corp. v. DOS, 440 F.Supp.2d 1140, 1149­52 (S.D. Cal. 2005) [allowing plaintiff to amend mandamus to encompass review of consulate's bad faith denial of employee's IV after court ordered mandamus]. But see Pedrozo v. Clinton, 610 F.Supp.2d 730, 734­35 (S.D. Tex. 2009) [consular nonreviewability prevents APA/mandamus claim to compel consulate to process H-1B visa]. However, the Secretary of State or consular officer's decision to revoke an IV or NIV under INA §221(i) is not reviewable in habeas, mandamus, or All Writs Act, except in the context of a removal proceeding and only then if the revocation provides the sole ground for removal under INA §237(a)(1)(B). Bolante v. Achim, 457 F.Supp.2d 896 (E.D. Wis. 2006) [no habeas jurisdiction to review claim that revocation was improper under 22 C.F.R. §41.122(a)]. Moreover, even if a court has jurisdiction to review a denial, it cannot order the consulate to issue the visa, but only to apply the appropriate standard in determining issuance. Extending the doctrine of consular nonreviewability, the Eleventh Circuit found that there is no subject-matter jurisdiction to review the use of improper procedures to screen Haitian refugees under the interdiction program when acts occur outside the physical territory of the U.S. Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498 (11th Cir. 1992). It has also determined that neither the constitution nor the INA extend to refugees on Guantanamo. Cuban American Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995). The Supreme Court has found that former INA §243(h) and the U.N. Convention Relating to the Status of Refugees do not apply outside the physical territory of the U.S. in regard to the U.S. interdiction program. Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993). Consular nonreviewability has been extended to decisions by INS officers abroad to deny a refugee waiver. Doan v. INS, 160 F.3d 508 (8th Cir. 1998). See also Legal Opinion, Virtue, G.C. to Meissner, Comm. (HQCOU 90/15) (Sept. 1, 1998), reprinted in 76 No. 13 Interpreter Releases 529, 536­45 (Apr. 2, 1999) [finding INS had no authority to operate Guantanamo because it was outside U.S.].

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1.d.

The Supreme Court's decision in Rasul v. Bush, 542 U.S. 466 (2004), may have dramatically altered these doctrines. In Rasul, the Court found habeas jurisdiction to review the physical custody of aliens held at the military base in Guantanamo. The Court distinguished Johnson v. Eisentrager, found that habeas applies extraterritorially to aliens, that aliens like USCs can invoke federal court authority, and that the presence of the detainee in the territorial jurisdiction of a federal court is not a jurisdictional requirement for habeas as long as there is jurisdiction over the custodian. The Court also found that jurisdiction existed under 28 U.S.C. §1331 (federal question) and §1350 (Alien Tort Claims Act) for aliens outside the U.S. and noted that: "[t]he courts of the United States have traditionally been open to nonresident aliens." Rasul, 124 S.Ct. at 2698­99. See also Abu Ali v. Ashcroft, 350 F.Supp.2d 28, 39­57 (D.D.C. 2004) [denying motion to dismiss habeas brought by a USC held in Saudi Arabia at the direction of the U.S.]. Federal courts, however, have jurisdiction to review the validity of INS or DOS regulations or Operations Instructions (OIs). McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 491­94 (1991) [jurisdiction to review action alleging pattern or practice of procedural violations in the administration of SAW program]; Mulligan v. Schultz, 848 F.2d 655 (5th Cir. 1988) [review of DOS decision to designate certain dates to accept NP-5 applications]; International Union of Bricklayers & Allied Craftsman v. Meese, 761 F.2d 798 (D.C. Cir. 1985) [court has subject-matter jurisdiction over INS OI that provides for issuance of B-1]; North American Industries Inc. v. Feldman, 722 F.2d 893 (1st Cir. 1983) [federal court may review INS OI to determine whether it is consistent with Act]; Rahim v. McNary, 827 F.Supp. 224, 228­29 (S.D.N.Y. 1993), aff'd, 24 F.3d 440 (2d Cir. 1994) [court had subject-matter jurisdiction to review validity of SAW regulations]; Friedberger v. Schultz, 616 F.Supp. 1315 (D.C. Pa. 1985) [fiancé(e) had right to challenge regulation of Secy. of State resulting in denial of K visa because of INA §212(e)]. The same courts, however, may have no authority to enforce OIs. Romeiro De Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985) [O.I. §103.1(a)(1)(ii), regarding deferred action, does not give rise to action, because it does not confer substantive benefit]. Compare Pasquini v. Morris, 700 F.2d 658 (11th Cir. 1983) [confers no substantive right, but a procedural right to be considered]; Zhang v. Slattery, 840 F.Supp. 292 (S.D.N.Y. 1994). There is also no subject-matter jurisdiction to enforce an INS discretionary policy. Maldonado-Coronel v. McElroy, 943 F.Supp. 376 (S.D.N.Y. 1996) [INS decision not to expedite child's case when he became 21]. To obtain standing a party must show: (1) that it has actual injury or will suffer actual injury as a result of defendant's actions; (2) that the injury "fairly can be traced to the challenged actions; and (3) "is likely to be redressed by a favorable decision." Massachusetts v. EPA, 127 S.Ct. 1438 (2007); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982); Presbyterian Church (USA) v. U.S., 870 F.2d 518, 521 (9th Cir. 1989); see also Clarke v. Securities Industry Assoc., 479 U.S. 388, 396 (1987); Sicar v. Chertoff, 541 F.3d 1055, 1060 (11th Cir. 2008) [class of Haitians who filed for HRIFA had standing to challenge their misclassification as released-on-recognizance rather than paroled]; Coleman v. U.S., 454 F.Supp.2d 757, 762­65 (N.D. Ill. 2006) [USC son who brought action enjoining mom's removal had an injury-in-fact because he is forced to self-deport or remain without his mother]. But see Hui Yu v. DHS, 568 F.Supp.2d 231 (D. Conn. 2008) [husband did not have standing to assert claim for DHS loss of wife's green card but did have standing to assert his own financial losses]. In addition to these constitutional criteria, there are prudential considerations governing standing. Etuk v. Slattery, 936 F.2d 1433, 1440­41 (2d Cir. 1991) [LPRs denied temporary proof of employment authorization had standing]. These include the need for plaintiff to assert his own rights and that generalized grievances affecting a large population may not warrant standing. Id. Prudential standing also requires that the interest sought to be protected must be "arguably within the zone of interests to be protected or regulated by the statute ... in question." National Credit Union Administration v. First National Bank and Trust Co., 118 S.Ct. 927, 933 (1998) [quoting Data Processing]. This requirement cannot be interpreted to require the would-be plaintiff to prove the statute was passed for his benefit. Id. at 935.

1.e.

2.

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2.b.

Where the party initiating litigation has no injury in fact or fails to meet the traceability or redressability criteria, it has no standing. Valley Forge Christian College, supra; Lujan v. National Wildlife Federation, 497 U.S. 871, 890 (1990) [no standing to challenge government "policy" rather than seek review of specific agency action]; Garcia-Echaverria v. U.S., 376 F.3d 507, 514­15 (6th Cir. 2004) [no standing to raise equal protection challenge regarding §212(h) waiver where respondent would have been ineligible for §212(h) because he possessed more than 30 grams of marijuana]; Hosein v. Gonzales, 452 F.3d 401 (5th Cir. 2006) [parent who sought injunction to obtain nunc pro tunc order for an earlier naturalization date to benefit her son through derivative naturalization had no injury and therefore no standing]; NAACP v. U.S. Sugar Corp., 84 F.3d 1432, 1438 (D.C. Cir. 1996) [no standing where DOL cannot get growers to redress past foreign workers certification errors]; Ching Yee Wong v. Napolitano, 654 F.Supp.2d 1184 (D. Or. 2009) [APA action challenging denial of H-1B dismissed for lack of standing because employer had no injury-in-fact as beneficiary had other employment and employer's claim that it could be fined or prosecuted for employing beneficiary after the denial was too speculative]; People of Colorado ex rel. Suthers v. Gonzales, 558 F.Supp.2d 1158, 1162­65 (D. Colo. 2007) [dismissing CO's claim that federal government's failure to enforce immigration laws violated the Invasion Clause]; RCM Technologies v. DHS, 614 F.Supp.2d 39, 43­45 (D.D.C. 009) [rejecting challenge to policy requiring occupational and physical therapists to have master's degrees in order to obtain H-1B because petitioners were required to challenge it on a case-by-case basis]; Robinson v. Bowen, 567 F.Supp.2d 1144, 1146­47 (N.D. Cal. 2008) [no standing for elector for minor third-party candidate to challenge whether John McCain qualified to run for President because of his birth in the Panama Canal Zone]; Lozano v. City of Hazleton, 496 F.Supp.2d 477, 490­92 (M.D. Pa. 2007) [although plaintiff business owner was injured by illegal ordinances, the closure of the business defeats standing because the injury can no longer be redressed]; Arden Wood, Inc. v. USCIS, 480 F.Supp.2d 141, 148 (D.D.C. 2007) [neither petitioner nor beneficiary had standing once I-360 was approved]; Movimiento Democracia, Inc. v. Chertoff, 417 F.Supp.2d 1350 (S.D. Fla. 2006) [neither relatives of repatriated Cubans nor associations had standing to represent repatriated Cubans challenging government "wet-foot/dry-foot" policy]; Hanif v. Gantner, 369 F.Supp.2d 502, 505­07 (S.D.N.Y. 2005) [no standing to bring §1331 action for injunction to adjudicate AOS before executing 12 year-old deportation order because respondent failed to demonstrate action within zone-of-interest of INA]; Sadowski v. Bush, 293 F.Supp.2d 15, 18­19 (D.D.C. 2003) [relative of persons who died in 9/11 attack had no standing to sue Bush and others for failing to properly enforce immigration laws]; Panas v. Reno, 114 F.Supp.2d 283, 286­88 (S.D.N.Y. 2000) [no standing for Polish citizens to bring due process challenge to regulation favoring Guatemalans and Salvadorans in special cancellation presumption because the alleged injury before having a removal hearing is not concrete, actual or imminent]; Garcia v. Yeutter, 756 F.Supp. 581 (D.D.C. 1990) [farmworkers and AFL/CIO lack standing to challenge RAW regulations and determinations because they had no injury]; Lopez v. Garriga, 917 F.2d 63 (1st Cir. 1990) [where plaintiff lost on damages claim before a jury, he had no standing to seek injunctive relief]; FAIR v. Reno, 93 F.3d 897 (D.C. Cir. 1996) [FAIR members' claimed injuries of school overcrowding and other associated problems are not traceable to U.S.-Cuba migratory agreement]; U.S. v. Richard Dattner Architects, 972 F.Supp. 738, 742­47 (S.D.N.Y. 1997) [USC has no standing to assert claim that employer made false LC and deprived him of position]; Garrison v. OCK Construction Ltd., 864 F.Supp. 134 (D. Guam 1993) [where prospective employee sued, case dismissed because H-2 had not yet been granted to third party]; Association of Immigration Attorneys v. INS, 675 F.Supp. 781 (S.D.N.Y. 1987) [attorneys' group lacks standing to challenge change in I-130 form]; FAIR v. Meese, 643 F.Supp. 983 (S.D. Fla. 1986) [FAIR lacked injury and not within zone of interest to challenge Cuban-Refugee Adjustment Act]. Similarly, where a person or organization does not fall within the zone of interest the statute was designed to protect s/he or it lacks standing. INS v. Legalization Project of Los Angeles, 114 S.Ct. 422 (1993) (O'Connor, J.) [granting stay application]; Ayuda, Inc. v. Reno, 7 F.3d 246, 250 (D.C. Cir. 1993); Giddings v. Chandler, 979 F.2d 1104 (5th Cir. 1992). See generally Clarke v. Securities Industry Assoc., 479 U.S. 388, 396 (1987). But see F.L. v. Thompson, 293 F.Supp.2d 86, 92 (D.D.C. 2003) [plaintiff trying to obtain decision that federal government will grant him court dependency rights had standing to sue].

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2.c.

Third-Party Standing--The doctrine of jus tertii (third-party standing) may be invoked to permit any party to represent the interests of others. Third party standing typically includes organizations that are representing the interests of its members, such as unions or associations, but may also include individuals representing (e.g., doctor) the interests of others (patients). (1) General Criteria for Third-Party Standing--In Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977) the Court determined that an organization had standing to sue for its members where: (1) its members had standing in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit]; Craig v. Boren, 429 U.S. 190 (1976) [holder of liquor license asserts rights of males ages 18­20 to drink beer]; Singleton v. Wulff, 428 U.S. 106 (1976) [doctor sought injunction on behalf of pregnant women of MO statute denying Medicaid benefits to persons seeking abortion]. See also Powers v. Ohio, 499 U.S. 400, 410­11 (1990) [requiring potential injury in fact, a close relationship, and "some hindrance to the third party's ability to protect his or her own interest"]. In order to assert third party standing, the plaintiff must also have an injury, Craig, supra, or the third party must be incapable of asserting a claim because of mootness or fear of protecting interest. Singleton, supra. An organization must demonstrate standing of the persons it seeks to represent or at least that there are obstacles that prevent those persons from asserting their own rights. Young Apartments Inc. v. Town of Jupiter, 529 F.3d 1027, 1038­46 (11th Cir. 2008) [apartment owners had standing to represent Hispanic tenants because they and their tenants were being injured by city policy to force Hispanics out of city]; Committee for Immigrant Rights v. County of Sonoma, 644 F.Supp.2d 1177, 1194­95 (N.D. Cal. 2009) [in Bivens and section 1983 action for discriminatory stops/arrests/detention, Committee had organizational standing and representational standing except as to damage claim]; Equal Access Education v. Merten, 305 F.Supp.2d 585, 599­600 (E.D. Va. 2004) [following Warth and Hunt standards educational organization had standing to represent undocumented students seeking admission into postsecondary schools where VA's policy was to bar undocumented persons]; Capital Area Immigrants' Rights Coalition v. DOJ, 264 F.Supp.2d 14, 20­22 (D.D.C. 2003) [applying Hunt standard to file APA challenge to BIA streamlining regulations]; AILA v. Reno, 199 F.3d 1352, 1357­64 (D.C. Cir. 2000) [no organizational standing on prudential grounds where individuals did not have obstacles preventing them from challenging summary removal]. A parent has the right to assert constitutional and international law claims that his removal will affect a USC child. Payne-Barahona v. Gonzales, 474 F.3d 1 (1st Cir. 2006) [parent had jus tertii standing but denied claims on the merits]. Similarly, children denied citizenship had standing to assert equal protection claim of their mothers who were denied the right to transmit citizenship under pre-1934 statute. Breyer v. Meissner, 214 F.3d 416, 423­26 (3d Cir. 2000) [beneficiary of derivative citizenship claim had standing to assert mother's claim of discriminatory transmission of citizenship solely by fathers]; Wauchope v. DOS, 985 F.2d 1407, 1410­11 (9th Cir. 1993). Where lawyers association had no injury of its own and its clients were not deterred from complaining about revised I-130, third party standing could not be invoked. Association of Immigration Attorneys v. INS, 675 F.Supp. 781 (S.D.N.Y. 1987). And where injury to association members was too speculative, there was no associational standing. AILA v. Reno, 199 F.3d 1352, 1356­57 (D.C. Cir. 2000) [upholding determination that injury to association's members whose clients might be injured by summary removal was too speculative]; Movimiento Democracia, Inc. v. Chertoff, 417 F.Supp.2d 1350 (S.D. Fla. 2006) [neither relatives of repatriated Cubans nor associations had third party standing to represent repatriated Cubans challenging government "wetfoot/dry-foot" policy]. Similarly, where associational standing is sought to initiate a broad policy attack on an agency, the claim is not justiciable. Arden Wood, Inc. v. USCIS, 480 F.Supp.2d 141, 147­50 (D.D.C. 2007) [no standing where Christian Science nursing association sought to challenge USCIS policies and procedures regarding I-360 petitions]. Where the participation of individual members of an association is required in the litigation (e.g., to prove damages) the association's jus tertii claim must be dismissed. American Baptist Churches v. Meese, 712 F.Supp. 756 (N.D. Cal. 1989) [individual members needed to prove claims of persecution].

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(2) Unions--Unions have standing to assert claims of its members when challenging an INS OI that affects its members, International Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798 (D.C. Cir. 1985), or challenging INS practice, Hotel & Restaurant Emp. Union v. Att'y Gen. of the U.S., 804 F.2d 1256 (D.C. Cir. 1986), vacated, 808 F.2d 847 (D.C. Cir. 1987), or challenging INS policy. American Federation of Labor v. Chertoff, Case No. C 0704472 CRB (N.D. Cal. Oct. 10, 2007) [unions and employer organizations had standing to challenge publication of DHS "no-match" regulations]; ILWU v. Meese, 891 F.2d 1374 (9th Cir. 1989); Comite De Apoyo Para Los Trabajadores Agricolas (CATA) v. Dole, 731 F.Supp. 541, 543­44 (D.D.C. 1990). Similarly, churches have standing to contest INS actions violating their First Amendment rights, Presbyterian Church (USA) v. U.S., 870 F.2d 518 (9th Cir. 1989) [injunction to stop INS undercover investigation concerning sanctuary movement] (3) Other Organizational Standing--Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) [organization that gave counseling to low and moderate income home seekers had standing to challenge discriminatory housing policies]; Chamber of Commerce of the U.S. v. Edmondson, 594 F.3d 742, 756­64 (10th Cir. 2010) [Chamber had associational standing to represent its members in challenging Oklahoma's employer sanctions laws]; American Academy of Religion v. Napolitano, 573 F.3d 115, 123­25 (2d Cir. 2009) [district court had jurisdiction to consider organizations' First Amendment claim despite consular nonreviewability in the denial of a B visa to an Islamic scholar; court applied Mandel to the consular officer's threshold decision based on the applicant's alleged inadmissibility for providing material support to a terrorist organization]; League of United Latin American Citizens (LULAC) v. Bredesen, 500 F.3d 523, 527­30 (6th Cir. 2007) [LULAC had standing to represent its members in challenge to Tennessee law regarding vehicular licenses]; California Rural Legal Asst. v. Legal Services, 917 F.2d 1171, 1174­75 (9th Cir. 1990) [challenge to legal services regulation]; Lozano v. City of Hazleton, 496 F.Supp.2d 477, 491­96 (M.D. Pa. 2007) [business owners and Hispanic business organization had standing to challenge local ordinance regarding employment and tenancy of undocumented]. See generally National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479, 988­98 (1998); International Union UAW v. Brock, 477 U.S. 274, 288­90 (1986). But see Air Transport Ass'n of America v. Reno, 80 F.3d 477, 483­84 (D.C. Cir. 1996) [air transport association had standing to bring injunctive relief but not damages for its members]; Arizona Contractors Ass'n Inc. v. Napolitano, 526 F.Supp.2d 968 (D. Ariz. 2007) [organizations had no standing to challenge the Legal Arizona Workers Act, Ariz. Rev. Stat. §§23-211 to 214, that ties licensing of business to authorized employment because no plaintiff is employing unauthorized persons, there is no imminent threat of enforcement, and the wrong defendants were sued because only county attorneys can enforce the law]; Parinejad v. ICE, 501 F.Supp.2d 280 (D. Mass. 2007) [Political Asylum/Immigration Representation Project and Catholic Legal Immigration Network, Inc. did not have standing in habeas where individual petitioners' cases were moot and no showing that third party representation was required]; INS v. Legalization Assistance Project of Los Angeles, supra; AILA v. Reno, 18 F.Supp.2d 38, 47­52 (D.D.C. 1998) [organizational plaintiffs alleging loss of clients and diversion of resources lacked standing to challenge expedited removal regulations because such claims were speculative]. (4) Habeas Third Party Standing--In habeas petitions third-party standing may exist where party acts as "next friend." Lenhard v. Wolff, 443 U.S. 1306 (1979) [stay of execution granted where petition brought by public defenders, not defendant]. But see Coalition of Clergy, Lawyers & Professors v. Bush, 310 F.3d 1153 (9th Cir. 2002) [persons bringing the action as a coalition did not have the right as "next friends" to invoke habeas on behalf of Taliban incarcerated at Guantanamo]; Parinejad v. ICE, 501 F.Supp.2d 280 (D. Mass. 2007) [Political Asylum/Immigration Representation Project and Catholic Legal Immigration Network, Inc. did not have standing in habeas where individual petitioners' cases were moot and no showing that third party representation was required]. 2.d. Standing exists where there is a threatened injury--Loa-Herrera v. Trominski, 231 F.3d 984, 987­88 (5th Cir. 2000) [policy of seizing green cards and providing temporary documents results in sufficient injury because "green cards play a significant role in the day-to-day lives of LPRs"]; Equal Access Education v. Merten, 305 F.Supp.2d 585, 594­600 (E.D. Va. 2004) [stu-

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dents challenging VA's policy of denying admission to undocumented aliens seeking to enroll in post-secondary institutions had standing because they have applied to the institutions]. 2.e. Statutory Standing--Where Congress enacts statutes creating legal rights, the invasion of those rights creates standing even though no injury would exist without the statute. Massachusetts v. EPA, 549 U.S. 497 (2007); Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973); Warth v. Seldin, 422 U.S. 490, 514 (1975); Zivotofsky ex rel. Ari Z v. Secretary of State, 444 F.3d 614, 617­19 (D.C. Cir. 2006) [three-year-old child born in Jerusalem who is seeking to enforce section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, PL 107-228, 116 Stat. 1350, 1365­66 (2002), which mandates that, upon request, the Secretary of State "shall" register the child's birth as Israel if born in Jerusalem had "statutory" standing because his individual right was violated when the Secretary refused to designate Israel on his U.S. passport]. Lyons Injunctions--In injunction cases, plaintiffs have the additional burden of showing they will be subject to recurring violations of statutory or constitutional rights to have standing to obtain prospective injunctive relief. City of Los Angeles v. Lyons, 461 U.S. 95 (1983). But see HodgersDurgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc) [finding Article III standing for Hispanic motorists challenging police practices but denying equitable relief on grounds there was no showing of immediate irreparable harm]; Hernandez v. Cremer, 913 F.2d 230, 233­35 (5th Cir. 1990) [distinguishing City of Los Angeles v. Lyons, 461 U.S. 95 (1983)]; Presbyterian Church, 870 F.2d 518, 523 (9th Cir. 1989); LaDuke v. Nelson, 762 F.2d 1318, 1323 (9th Cir. 1985); Nicacio v. INS, 797 F.2d 700 (9th Cir. 1985) [Lyons distinguished]; Committee for Immigrant Rights v. County of Sonoma, 644 F.Supp.2d 1177, 1195­96 (N.D. Cal. 2009) [Lyons distinguished in case alleging pattern or practice of racial profiling]; American Federation of Labor v. Chertoff, Case No. C 07-04472 CRB (N.D. Cal. Oct. 10, 2007) [employer organization had standing to enjoin effect of DHS no-match regulations because under Lyons it is clear that the harm will be recurring]. In addition, "injunctions against the INS have focused ... upon the important role of the federal courts in constraining misconduct by federal agents" and the prudential limitations circumscribing federal court intervention in state law enforcement matters involved in Lyons is inapplicable to oversight of federal actions. Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 558 (9th Cir. 1990). Courts may also vacate or modify injunctive relief when appropriate. Orantes-Hernandez v. Gonzales, 504 F.Supp.2d 825 (C.D. Cal. 2007) [modifying original injunction in Orantes-Hernandez by eliminating paragraphs 10 (administrative segregation) and 12 (legal presentations)]. Petitioners seeking IVs or NIVs for beneficiaries outside the U.S. have standing--American Academy of Religion v. Napolitano, 573 F.3d 115, 123­25 (2d Cir. 2009) [district court had jurisdiction to consider organizations' First Amendment claim despite consular nonreviewability in the denial of a B visa to an Islamic scholar; court applied Mandel to the consular officer's threshold decision based on the applicant's alleged inadmissibility for providing material support to a terrorist organization]; Patel v. Reno, 134 F.3d 929, 932 n.1 (9th Cir. 1997) [mandamus petition granted to compel decision on I-130]; Legal Assistance for Vietnamese Asylum Seekers v. DOS, 45 F.3d 469, 475 (D.C. Cir. 1995), remanded on other grounds, 117 S.Ct. 318 (1996) [standing where DOS conduct prolongs the separation of petitioners from their immediate family members outside the U.S.]; Raduga USA Corp. v. DOS, 440 F.Supp.2d 1140, 1143­48 (S.D. Cal. 2005) [employer had standing to bring mandamus action due to its own injury to compel consular officer to make a decision on employee's IV over government objection that once the I-140 was approved the employer had no further interest]; Chau v. DOS, 891 F.Supp. 650 (D.D.C. 1995) [same]. But see Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) [U.S. company that submitted approved L-1 petition has no standing in regard to denial of visa by consular officer]. Person claiming derivative citizenship has standing--Miller v. Albright, 523 U.S. 420 (1998) [standing found in some opinions of the Justices even where transmitting parent did not petition]; Breyer v. Meissner, 214 F.3d 416, 423­26 (3d Cir. 2000) [beneficiary of derivative citizenship claim had standing to assert mother's claim of discriminatory transmission of citizenship solely by fathers]; U.S. v. Ahumada-Aguilar, 189 F.3d 1121, 1126 (9th Cir. 1999) judgment vacated on other grounds 533 U.S. 913 (2001) [third party standing by beneficiary son where father deceased]. Persons subject to denaturalization having standing to make facial challenge to AG's authority without awaiting procedures.

2.f.

2.g.

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2.i.

Beneficiaries of Immigration Benefits (1) Beneficiaries of IV petitions may also have standing. Construction and Design v. USCIS, 563 F.3d 593, 597­98 (7th Cir. 2009) [prospective employee on denied I-140 is an aggrieved party under the APA and has standing]; Abboud v. INS, 140 F.3d 843, 847 (9th Cir. 1998); Ghaly v. INS, 58 F.3d 1425, 1434 n.6 (9th Cir. 1995) [beneficiary had standing to contest revocation of visa petition]; Lockhart v. Chertoff, Case No. 1:07CV823 (N.D. Ohio Jan. 7, 2008) [spouse of deceased husband seeking validity of I-130 although not married for 2 years had standing]; Oddo v. Reno, 17 F.Supp.2d 529, 531 (E.D. Va. 1998) [same]; Sanchez-Trujillo v. INS, 620 F.Supp. 1361 (W.D.N.C. 1985) [beneficiary of 2d preference petition had standing to sue for approval of deceased father's petition]; Taneja v. Smith, 795 F.2d 355 (4th Cir. 1986) [beneficiary of 6th preference petition has standing]. But see 8 C.F.R. §§103.2(a)(3), 103.3(a)(1)(iii)(B) [a beneficiary of a petition is not a recognized party in such a proceeding and does not have standing]; George v. Napolitano, No. 09-1519 (RMC), 2010 WL 931319 (D.D.C. Mar. 16, 2010) [beneficiary of I-140 petition lacked standing to challenge denial]; Yan Won Liao v. Holder, No. 09 Civ. 3776 (BMC) et al., 2010 WL 753237 (E.D.N.Y. Mar. 3, 2010) [beneficiary children of second preference petitions filed by their parents who were urging a favorable interpretation of INA §203(h)(3) had no standing]; Blacher v. Ridge, 436 F.Supp.2d 602, 606 n.3 (S.D.N.Y. 2006) [beneficiary of H-1B petition did not have standing to challenge denial]; Chun v. Powell, 223 F.Supp.2d 204, 207­08 (D.D.C. 2002) [person denied B-2 visa and brother of person denied do not have standing]. (2) Beneficiaries of labor certifications also have standing. De Jesus Ramirez v. Reich, 156 F.3d 1273, 1276 (D.C. Cir. 1998) [beneficiaries of LCs had standing to sue DOL but case was dismissed because employer never pursued BALCA or federal court and was an indispensable party to LC process].

2.j. 3.

Congressional and state standing in immigration context--Chiles v. Thornburgh, 865 F.2d 1197, 1205­11 (11th Cir. 1988).

Ripeness A claim may also be dismissed where the court determines it is not yet ripe for review. A case may be unripe because there is no jurisdiction under the Constitution unless there is a case or controversy; or it may be declared unripe as a matter of judicial prudence. 3.a. Cases Not Ripe (No Jurisdiction)--Reno v. Catholic Social Services, 509 U.S. 43, 57 n.18 (1993) [where amnesty regulations that are challenged impose no penalty but rather limit access to a benefit, challenge was not ripe because there were several grounds other than the regulation which the applicants had to prove in the review process before obtaining the benefit]; Davis v. U.S., 499 F.3d 590 (6th Cir. 2007) [dismissing declaratory judgment action by legally separated U.S. husband to determine amount owed to wife and step-sons under I-864 because it was not ripe as to step-sons, there was no standing as to USCIS, and no subject-matter jurisdiction]; Hoxha v. Levi, 465 F.3d 554, 563­65 (3d Cir. 2006) [whether party subject to extradition may not be returned to his country if he would be tortured was not ripe for review; Secy. of State must make decision under CAT independent of the extradition proceeding]; Simmonds v. INS, 326 F.3d 351, 356­61 (2d Cir. 2003) [person with final order who is serving indefinite state sentence does not have ripe claim as a matter of judicial prudence; must wait until he is closer in time to release to immigration authorities]; Aparicio v. Blakeway, 302 F.3d 437 (5th Cir. 2002) [challenge to INS reliance on SAW confidential information in denying naturalization was not ripe]; Naranjo-Aguilera v. INS, 30 F.3d 1106 (9th Cir. 1994) [same]; Ayuda, Inc. v. Reno, 7 F.3d 246 (D.C. Cir. 1993) [same]; Air Espana v. Brien, 165 F.3d 148, 151­53 (2d Cir. 1999) [claims by airlines regarding regulation requiring fine even where INS gave waiver is not ripe because airlines did not obtain "final agency action" by the BIA]; American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1057, 1060­62 (9th Cir. 1995), rev'd on other grounds, 525 U.S. 471 (1999) [where agency proceeding insufficient to address selective enforcement prudential ripeness exists and question not at issue]; Perales v. Reno, 48 F.3d 1305, 1312­13 (2d Cir. 1995) [challenge to INS dissemination of unlawful regulations not ripe because it is pre-enforcement challenge]; American-Arab Anti Discrimination Comm. v. Nelson, 940 F.2d 445, 453­54 (9th Cir. 1991) [challenge to INS statute that may be applied to PFLP supporters is not ripe]; Randall

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v. Meese, 854 F.2d 472 (D.C. Cir. 1988) [review of DD decision to deny AOS not ripe where IJ denied AOS and case can be reviewed in circuit court after BIA decision]; Ching Yee Wong v. Napolitano, 654 F.Supp.2d 1184, 1192­93 (D. Or. 2009) [employer's claim that it has been thwarted in seeking new graphic designers for H-1B petition after USCIS denial was not ripe and did not justify review of prior denial]; People of Colorado ex rel. Suthers v. Gonzales, 558 F.Supp.2d 1158, 1166 (D. Colo. 2007) [CO's mandamus claim seeking to address hiring decisions of federal government is not ripe]; Ali v. Barlow, 446 F.Supp.2d 604, 609­10 (E.D. Va. 2006) [where respondent has not been in custody for 6 months subsequent to final order, Zadvydas claim for release is not ripe]; Lemeshko v. Wrona, 325 F.Supp.2d 778, 786 (E.D Mich. 2004) [claim that legacy INS will detain person with final order indefinitely is not ripe while person is still in state custody]; Panas v. Reno, 114 F.Supp.2d 283, 286­88 (S.D.N.Y. 2000) [Polish citizens due process challenge to regulation favoring Guatemalans and Salvadorans in special cancellation presumption was not ripe because plaintiffs had not yet had removal hearings]; Transport Robert (1973) Ltée v. INS, 940 F.Supp. 338 (D.D.C. 1996) [letter from Assoc. Comm. is not final action]; National Ass'n of Mfrs. v. DOL, 1996 WL 420868 (D.D.C. July 22, 1996) [finding certain pre-enforcement challenges to DOL H-1B attestation regulations not ripe]; Wang v. Reno, 862 F.Supp. 801, 810­11 (E.D.N.Y. 1994) [following Catholic Social Services and finding limiting access to a benefit (asylum) is not sufficient harm to establish ripeness]; Roshan v. Smith, 615 F.Supp. 901 (D.D.C. 1985) [no imminent injury where no showing that government has yet affirmatively interfered in the attorney-client relationship when it built the Oakdale facility]; Louis v. Meissner, 532 F.Supp. 881 (S.D. Fla. 1982) [denial of counsel was not ripe]. 3.b. Ripe Cases (Jurisdiction Found)--Rodriguez v. Hayes, 591 F.3d 1105, 1118 (9th Cir. 2010) [the inclusion of future class members in the definition of a class does not make the class unripe]; Sharkey v. Quarantillo, 541 F.3d 75, 89­90 (2d Cir. 2008) [action to restore residency where USCIS cancelled plaintiff's I-551 stamp claiming she was never granted residency]; QuezadaLuna v. Gonzales, 439 F.3d 403 (7th Cir. 2006) [where petitioner conceded removability for a firearms offense but disputed that the offense was a COV, case was ripe because resolution would determine the length of petitioner's future inadmissibility]; Chang v. U.S., 327 F.3d 911, 921­22 (9th Cir. 2003) [relying on Justice O'Connor's "firm prediction rule" in her concurring opinion in CSS, 509 U.S. 43, 69 (1993), the court found that an investor's claim that his I-829 conditional residence petition would be denied was ripe and there was no need to wait for INS's denial]; Immigrant Assistance Project of the Los Angeles County Federation of Labor (AFL-CIO) v. INS, 306 F.3d 842, 859­62 (9th Cir. 2002) [applicant for legalization who had not yet been rejected presented a ripe controversy because one could "firmly predict" that the application would be denied]; Academy of Religion v. Chertoff, 463 F.Supp.2d 400, 416­19 (S.D.N.Y. 2006) [challenge by academic organizations to refusal/revocation of visa to Islamic scholar was ripe because the First Amendment rights of the organizations were continually violated by a refusal to decide on the visa]; Olajide v. ICE, 402 F.Supp.2d 688, 691­93 (E.D. Va. 2005) [habeas seeking release from detention post-removal order was ripe because petitioner had been in detention for more than 6 months at the time the court adjudicated the matter even though the petition had been filed prior to 6 months]; F.L. v. Thompson, 293 F.Supp.2d 86, 93 (D.D.C. 2003) [where agencies had not decided which would be responsible for allowing unaccompanied minors to court, case was ripe because right to receive a decision is thwarted]; United Farmworkers of America, AFL-CIO v. Chao, 227 F.Supp.2d 102, 107 (D.D.C. 2002) [where DOL changed its position in regard to the publication date each year for the AEWR for H-2A workers plaintiffs APA notice and comment challenge was ripe]; Perales, supra [challenge to dissemination of inaccurate eligibility requirements in amnesty program that contravened INS practices was ripe because it does not require a decision as to whether the substance of the policies accord with the statute]; Rahim v. McNary, 827 F.Supp. 224, 228­29 (S.D.N.Y. 1993), aff'd, 24 F.3d 440 (2d Cir. 1994) [subsequent to Catholic Social Services, court found challenge to SAW regulation denying motions to reopen was ripe]; Barmo v. Reno, 899 F.Supp. 1375, 1378­80 (E.D. Pa. 1995) [constitutional challenge to INA §204(c) was ripe even where petition was not yet denied]; Gurbisz v. INS, 675 F.Supp. 436 (N.D. Ill. 1987) [APA §704 does not bar claim against AG for denial of EVD on ripeness grounds because matter became ripe when final order was issued]; Ali v. INS, 661 F.Supp. 1234 (D. Mass. 1986) [challenge to marriage interview procedures was ripe even where I-130 had not been decided]; Saywack v. INS, 1993 WL 205121 (S.D.N.Y. June 8, 1993), re-

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ported in 7 Immigration Policy and Law No. 10 at 3­4 (June 29, 1993) [BIA 5-year delay in adjusting appeal constitutes final agency action under the APA]. 4. Mootness 4.a. Generally--Courts will also decline to review a claim if they determine it is moot and no longer at issue. Abdala v. INS, 488 F.3d 1061 (9th Cir. 2007) [although physical removal from the U.S. does not, by itself, result in mootness, the case was moot because the basis of habeas was to challenge the length of petitioner's detention]; Qureshi v. Gonzales, 442 F.3d 985, 988­90 (7th Cir. 2006) [where USCIS denied I-130 after circuit court review was sought, respondent's claim that IJ erred in denying continuance until I-130 was decided was moot]; Ali v. Cangemi, 419 F.3d 722 (8th Cir. 2005) [habeas challenging custody was moot on prudential grounds where respondent was released even where the release was allegedly in error]; Khotesouvan v. Morones, 384 F.3d 1046, 1047­48 (9th Cir. 2004) [habeas challenging right to hold person in custody is moot upon release]; Nyaga v. Ashcroft, 323 F.3d 906 (11th Cir. 2003) [mandamus to compel DV dismissed as moot where claim was filed after the end of the fiscal year because court cannot compel issuance of visas after fiscal year]; Iddir v. INS, 301 F.3d 492, 501­02 (7th Cir. 2002) (Flaum, J. concurring) [because INS lacks capability to issue DV before year deadline, claim is moot]; Soliman v. U.S., 296 F.3d 1237 (11th Cir. 2002) [challenges to prolonged detention after final order and forced feeding were moot when respondent was deported]; Perez v. Greiner, 296 F.3d 123 (2d Cir. 2002) [claim was moot when the petitioner was deported after habeas denial was appealed notwithstanding "collateral consequences" doctrine because there was an independent conviction for drug trafficking which would have barred petitioner's return even if he was successful in habeas]; Liu v. INS, 274 F.3d 533 (D.C. Cir. 2001) [challenge to denial of EB-2 is moot where INS approved EB-1 petition while appeal was pending]; Al Najjar v. Ashcroft, 273 F.3d 1330 (11th Cir. 2001) [claim for bond is moot where federal court upheld final order of removal and detention may now occur pursuant to a different provision]; Humphries v. Various Federal U.S. INS Employees, 164 F.3d 936, 941­42 (5th Cir. 1999) [claims seeking injunctive relief regarding detention and retaliatory exclusion are moot when plaintiff departed]; NAACP v. U.S. Sugar Corp., 84 F.3d 1432 (D.C. Cir. 1996) [likelihood that DOL's improper application of foreign worker regulations is too remote]; Chou v. INS, 774 F.2d 1318 (5th Cir. 1985) [appeal of denial of VD grant in excess of 60 days is moot where appeal process resulted in stay in excess of 2 years]; Ching Yee Wong v. Napolitano, 654 F.Supp.2d 1184, 1192 (D. Or. 2009) [employer's APA claim to review denial of H-1B for graphic designer was moot where beneficiary had filed AOS with other employer]; Denis v. DHS/ICE of Buffalo, New York, 634 F.Supp.2d 338, 340­41 (W.D.N.Y. 2009) [habeas filed by detainee who was placed on supervised release and deported was moot]: Catholic Charities CYO v. Chertoff, 622 F.Supp.2d 865, 879 (N.D. Cal. 2008) [class action challenging DHS failure to timely promulgate U visa regulations was moot when interim final regulations and memoranda were issued]; Pedrozo v. Clinton, 610 F.Supp.2d 730, 734­35 (S.D. Tex. 2009) [APA/mandamus to compel consulate in Philippines to return H-1B approved I129 petition to USCIS 11 months after decision to do so was moot where USCIS was apprised of it because they issued NOIR]; Etape v. Chertoff, 446 F.Supp.2d 408 (D. Md. 2006) [if USCIS rules on naturalization, lawsuit under §1447(b) becomes moot and respondent must seek review separately under §1421(c)]; Basova v. Ashcroft, 383 F.Supp.2d 390 (E.D.N.Y. 2005) [where government provided statistics demonstrating that all visa numbers had been used for DV lottery, court reversed former opinion and dismissed case as moot against applicants who brought their claims prior to the end of the fiscal year]; Excellent v. Ashcroft, 359 F.Supp.2d 333, 335 (S.D.N.Y. 2005) [where BIA reopened case, habeas challenge to deportation order was moot]; Ticheva v. Ashcroft, 241 F.Supp.2d 1115 (D. Nev. 2002) [as INS is without power to grant DV beyond the fiscal year, injunctive action dismissed as moot]; Sadowski v. INS, 107 F.Supp.2d 451, 454 (S.D.N.Y. 2000) [aged-out child's mandamus for AOS is moot]; Zapata v. INS, 93 F.Supp.2d 355 (S.D.N.Y. 2000) [declining to issue order preserving right to obtain visa where lottery had ended for the year]. Courts are generally reluctant to find mootness. Clark v. Martinez, 543 U.S. 371, 376 n.3 (2005) [release on parole did not moot claim regarding indefinite detention because it was subject to DHS's discretionary authority to terminate]; Turkmen v. Ashcroft, 589 F.3d 542, 545 (2d Cir. 2009) [where plaintiffs moved to dismiss appeals as moot due to settlement of certain plaintiffs conditions of confinement claims, court denied motion because plaintiffs' counsel intended

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to file an amended class claim with new plaintiffs raising some of the same issues]; Rodriguez v. Hayes, 591 F.3d 1105, 117­18 (9th Cir. 2010) [release from custody pursuant to 8 C.F.R. §241.4 did not moot due process claim against prolonged detention because release may be revoked by DHS in its discretion under 8 C.F.R. §241.4(l)(2) and because DHS placed conditions, e.g., ankle bracelet, on release]; Granados-Osequera v. Mukasey, 546 F.3d 1011, 1014­15 (9th Cir. 2008) [USCIS determination that I-140 had been abandoned by employer was insufficient to moot motion to reopen to seek AOS]; Mingkid v. Att'y Gen. of the U.S., 468 F.3d 763, 768­ 69 (11th Cir. 2006) [IJ determination that untimely asylum claim was frivolous is not moot even if denied as untimely because of permanent consequences of frivolous finding]; Alwan v. Ashcroft, 388 F.3d 507, 510­11 (5th Cir. 2004) [deportation does not moot appeal because of collateral consequence of permanent inadmissibility]; Dailide v. Att'y Gen. of the U.S., 387 F.3d 1335, 1336 n.1 (11th Cir. 2004) [where court denied stay and respondent fled the country so that removal was never executed, petition was nevertheless not moot because 1252(b)(2) does not "expressly preclude" review under the circumstances, the government "acknowledges that the petition may be reviewed" and the denial of Social Security benefits is "clearly a collateral consequence of the order of removal"]; Kamagate v. Ashcroft, 385 F.3d 144, 149­51 (2d Cir. 2004) [removal while case is on appeal from denial of habeas is not moot because aggravated felony finding resulting in a lifetime bar is a collateral consequence]; Marrero Pichardo v. Ashcroft, 374 F.3d 46, 51­52 (2d Cir. 2004) [habeas not moot where there were convictions, other than the one on appeal, that would have resulted in removal, but the government failed to furnish tangible evidence they existed]; Swaby v. Ashcroft, 357 F.3d 156, 159­60 (2d Cir. 2004) [where habeas petitioner was deported during appeal, case not moot because of permanent bar due to aggravated felony conviction]; Chang v. U.S., 327 F.3d 911, 918­19 (9th Cir. 2003) [legislation allowing EB-5 investors to re-open denials and reapply under new criteria did not moot case challenging retroactive application of the new criteria to the existing investments]; RosalesGarcia v. Holland, 322 F.3d 386, 394­97 (6th Cir. 2003) [release of Cuban parolee from detention does not moot appeal]; Zegarra-Gomez v. INS, 314 F.3d 1124 (9th Cir. 2003) [where person is deported, habeas petition filed before removal is not moot where there are collateral consequences arising from deportation such as the inability to return]; U.S. v. Gonzalez-Roque, 301 F.3d 39, 44­45 (2d Cir. 2002) [dismissal of indictment for reentry after deportation and defendant's removal did not moot appeal of dismissal because defendant would be subject to arrest and imprisonment if he sought reentry in the future]; Chong v. District Director, INS, 264 F.3d 378, 384­86 (3d Cir. 2001) [removal does not moot claim of withholding because of collateral consequence of 10-year bar]; Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001) [removal does not moot claims where person put in proceedings post­Apr. 1, 1997 under IIRIRA permanent rules because of consequences to future admissibility]; Tapia-Garcia v. INS, 237 F.3d 1216, 1217­18 (10th Cir. 2001) [removal does not moot case of aggravated felon who would be subject to permanent bar]; Steele v. Blackman, 236 F.3d 130, 134 n.4 (3d Cir. 2001) [same]; Hovhannisyan v. DHS, 624 F.Supp.2d 1135, 1146­47(C.D. Cal. 2008) [challenge to denial of extension of stay is not moot where the time for the extension has passed because petitioner still is out-of-status]; Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000) vacated on other grounds 533 U.S. 945 (2001) [same], Legal Assistance for Vietnamese Asylum Seekers v. DOS, 74 F.3d 1308, 1311­12 (D.C. Cir. 1996) [DOS cannot escape litigation in visa denial case by giving in to plaintiff's individual claim without renouncing challenged policy]; Etuk v. Slattery, 936 F.2d 1433, 1441­42 (2d Cir. 1991) [grant of employment authorization to some class members and issuance of ambiguous INS memo for prospective cases does not moot case]; Ukrainian-American Bar Ass'n, Inc. v. Baker, 893 F.2d 1374, 1377­78 (D.C. Cir. 1990) [where plaintiff attacks government policy, case is not moot even if individual subject to policy deported]; Fano v. O'Neill, 806 F.2d 1262, 1266 n.2 (5th Cir. 1987) [case not moot even if INS promises not to deport alien pending visa because alien's status restricts his ability to live and work in U.S.]; Umanzor v. Lambert, 782 F.2d 1299 (5th Cir. 1986) [case not moot where alien physically deported because of future collateral consequences under INA §212(a)(17)]; Hamdan v. Chertoff, 626 F.Supp.2d 1119 (D.N.M. 2007) [court retains concurrent jurisdiction to review denial of naturalization under §1447(b) and case was not moot when BIA rendered a negative decision on naturalization]; Elaasar v. Mueller, 522 F.Supp.2d 932 (N.D. Ohio 2007) [denying mootness claim on grounds that USCIS denied petition because §1447(b) jurisdiction vests district court with authority to decide naturalization and USCIS's decision is irrelevant]; Santillan

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v. Gonzales, 388 F.Supp.2d 1065, 1075 (N.D. Cal. 2005) [new regulations regarding security clearances for persons in proceedings being relief by an IJ did not "completely and irrevocably eradicate[] the effects of the alleged violation"]; Castracani v. Chertoff, 377 F.Supp.2d 71 (D.D.C. 2005) [where USCIS did not adjudicate naturalization within 120 days of interview, it lost jurisdiction over the case once a petition was filed in federal court and the subsequent grant of naturalization did not moot the case]; Catholic Social Services v. Ashcroft, 268 F.Supp.2d 1172, 1184­88 (E.D. Cal. 2002) [LIFE Act did not moot claims under IRCA's legalization program because "the avenue of relief provided by section 1104 of LIFE Act is clearly not intended to supersede that available under IRCA"]; Reyes-Sanchez v. Ashcroft, 261 F.Supp.2d 276, 282­ 84 (S.D.N.Y. 2003) [where person was deported while case pending in court of appeals and that court determined jurisdiction was in district court in habeas, district court jurisdiction was not moot by virtue of petitioner's removal prior to transfer of case]; So v. Reno, 251 F.Supp.2d 1112, 1120­24 (E.D.N.Y. 2003) [finding a "wealth and severity" of collateral consequences to deportation, habeas petitioner's claims after deportation were not moot]; Longwood Village Restaurant, Ltd. v. Ashcroft, 157 F.Supp.2d 61, 66­67 (D.D.C. 2001) [where I-140 petitioner challenged refusal of INS to provide earlier priority date, case was not moot even though later priority date became current]; Singh v. Ilchert, 784 F.Supp. 759, 762 (N.D. Cal. 1992) [although INS approved all employment applications it is likely that the same plaintiffs will seek extensions of work authorization]; American Bictech, Inc. v. INS, No. CIV-2-88-262 (E.D. Tenn. Mar. 27, 1989), reported in 66 No. 23 Interpreter Releases 653­55 (June 19, 1989) [approval of H-1 petition for another position with the same company does not moot out erroneous denial of original petition]. Moreover, the moving party bears a "heavy burden" to establish mootness. Etuk v. Slattery, supra. Compliance with enforcement of a subpoena does not moot appeal challenging subpoena. Church of Scientology v. U.S., 113 S.Ct. 447, 449 (1992); U.S. v. Florida Azalea Specialists, 19 F.3d 620 (11th Cir. 1994). 4.b. Exceptions--There are generally 4 exceptions to the mootness doctrine, even where a case might otherwise be moot: (1) a class action is not moot simply because plaintiff's claims are moot. Sosna v. Iowa, 419 U.S. 393, 399 (1975); (2) the wrongful act is likely to reoccur notwithstanding voluntary cessation, U.S. v. W.T. Grant Co., 345 U.S. 629 (1958); (3) defendant's conduct is capable of repetition yet evading review. Sosna v. Iowa, supra; Martinez v. Reich, 934 F.Supp. 232, 235­36 (S.D. Tex. 1996) [challenge to H-2A program]; (4) defendant's conduct has left plaintiff with a collateral injury even if the primary injury cannot be remedied. Peralta-Cabrera v. Gonzales, 501 F.3d 837, 841­43 (7th Cir. 2007) [respondent's unlawful removal pre-IIRIRA did not render his case moot because he would still be subject to a bar to return to the U.S. which is a collateral consequence]; Dulal-Whiteway v. DHS, 501 F.3d 116, 120­21 (2d Cir. 2007) [where respondent subject to removal based upon firearms charge, the court nevertheless analyzed whether a second conviction was an aggravated felony, because it would affect respondent's ability to reenter the U.S. in the future making the issue a live case or controversy]; Alwan v. Ashcroft, 388 F.3d 507, 510­11 (5th Cir. 2004) [deportation does not moot appeal because of the collateral consequence of permanent inadmissibility]; So v. Reno, 251 F.Supp.2d 1112, 1120­24 (E.D.N.Y. 2003) [finding a "wealth and severity" of collateral consequences to deportation, habeas petitioner's claims after deportation were not moot]. But see Zapata v. INS, 93 F.Supp.2d 355, 359 (S.D.N.Y. 2000) [no collateral injury and upholding claim as moot where time had expired for DV lottery]. Effect of Mootness--When the court finds an appeal is moot, it may vacate the district court's order as well because this practice "clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance." Soliman v. U.S., 296 F.3d 1237, 1243­44 (11th Cir. 2002) [following U.S. v. Munsingwear, 340 U.S. 36, 40 (1950) appellate court vacated district court order when dismissing appeal as moot]. See also Shokeh v. Thompson, 375 F.3d 351 (5th Cir. 2004) [in bond case respondent was released, court vacated its order, vacated district court's order and dismissed the action]; Motta v. District Director, 61 F.3d 117 (1st Cir. 1995) [where parties settled on appeal, controversy was moot and court vacated lower court decision]. But see U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) [prohibition against vacatur where through settlement party relinquished its right to it].

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Attenuation--A court may refuse to entertain a suit which is not moot but which has become so attenuated that considerations of prudence and comity "counsel nonintervention." UkrainianAmerican Bar Ass'n, Inc. v. Baker, 893 F.2d 1374, 1378 (D.C. Cir. 1990) [case not considered attenuated where plaintiff challenges government policy]. Laches--To assert laches a party must demonstrate that there was inexcusable delay in asserting a known right and that the delay caused the moving party prejudice. Elia v. Gonzales, 431 F.3d 268 (6th Cir. 2005) [rejecting claim that laches prevented the government from benefiting from the purported delay in scheduling petitioner's deportation hearing]; Thom v. Ashcroft, 369 F.3d 158, 165­67 (2d Cir. 2004) [no lack of diligence or inexcusable delay where respondent was convicted in 1982 and legacy INS did not institute proceedings until 3 years before his 20-year minimum sentence thus depriving him of §212(c) rights]; Wauchope v. DOS, 985 F.2d 1407, 1411­12 (9th Cir. 1993) [no inexcusable delay and no prejudice in asserting that a pre-1934 statute was unconstitutional]. Political Question--Simply because a claim implicates important government policy does not mean the judiciary is barred from hearing it. Ukrainian-American Bar Ass'n, Inc. v. Baker, 893 F.2d 1374 (D.C. Cir. 1990) [political question doctrine does not bar first amend. challenge to INS policy of refusing to notify potential asylees of organization's services]. The political question doctrine does not preclude district court review of INS's failure to notify Salvadorans about their right to seek asylum or about political conditions in another country. Orantes-Hernandez v. Meese, 685 F.Supp. 1488, 1503 (C.D. Cal. 1988), aff'd, 919 F.2d 549 (9th Cir. 1990) [evidence of political conditions important in determining the interest affected by any deprivation of rights and to demonstrate availability of evidence]; Haitian Refugee Center v. Smith, 676 F.2d 1023, 1042 [same]. Courts are not precluded under the political question doctrine from determining the validity of INS's detention and parole policies under applicable statutes, regulations and the U.S. Constitution, Sharkey v. Quarantillo, 541 F.3d 75, 91­92 (2d Cir. 2008) [court is not precluded by separation of powers claim to determination whether USCIS improperly revoked residency without a hearing]; Chiles v. Thornburgh, 865 F.2d 1197, 1215­16 (11th Cir. 1988), or enjoining the return of a witness who fears persecution and alleges the U.S. violated his substantive due process rights. Xiao v. Reno, 837 F.Supp. 1506, 1546­47 (N.D. Cal. 1993), aff'd sub nom. Wang v. Reno, 81 F.3d 808 (9th Cir. 1996). Nor does the doctrine bar a challenge to an immigration agreement between the U.S. and Cuba where the agreement may be in violation of U.S. immigration law. FAIR v. Reno, 897 F.Supp. 595, 601­03 (D.D.C.), aff'd on other grounds, 93 F.3d 897 (D.C. Cir. 1996). The doctrine also does not bar review of the constitutionality of the Secretary of State's authority to request deportation because of the foreign policy interests of the U.S. Massieu v. Reno, 915 F.Supp. 681 (D.N.J. 1996), rev'd on other grounds, 91 F.3d 416 (3d Cir. 1996) [district court lacked jurisdiction because petitioner failed to exhaust administrative remedies and seek review of constitutional claim in court of appeals]. And it does not bar a regulatory, statutory and constitutional challenge to DHS's revocation of CAT under 1208.18(c). Khouzam v. Att'y Gen. of the U.S., 549 F.3d 235, 249­53 (3d Cir. 2008) [relying on 6-part test in Baker v. Carr, 369 U.S. 186 (1992), and denying DHS claim that it lacked jurisdiction where petitioner challenged DHS revocation of deferral of removal under CAT]. However, the doctrine may bar actions by states and state groups to require the federal government to provide Medicaid and AFDC to illegal aliens and to require the federal government to control illegal aliens in the state. State of California v. U.S., 104 F.3d 1086, 1090­91 (9th Cir. 1997); Padavan v. U.S., 82 F.3d 23 (2d Cir. 1996); State of Texas v. U.S., 106 F.3d 661 (5th Cir. 1997); Chiles v. U.S., 69 F.3d 1094 (11th Cir. 1995); People of Colorado ex rel. Suthers v. Gonzales, 558 F.Supp.2d 1158, 1160­62 (D. Colo. 2007) [dismissing CO's claim that federal government's failure to enforce immigration laws violated the Invasion Clause]. Similarly, at least one court has concluded that general policy challenges to the manner in which immigration law are enforced are nonjusticiable political questions. Sadowski v. Bush, 293 F.Supp.2d 15, 19­20 (D.D.C. 2003). It may also bar issues of nationality where the Executive Branch must determine de jure sovereignty Lin v. U.S., 561 F.3d 502 (D.C. Cir. 2009) [declining to decide on political question grounds whether residents of Taiwan are U.S. nationals]. Accord Zivotofsky v. Secretary of State, 571 F.3d 1227, 1228­33 (D.C. Cir. 2009) [whether DOS could lawfully refuse to record USCs place of birth as "Israel" because of birth in Jerusalem is a political question left to the Executive Branch].

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8.

Doctrine of Non-Inquiry--A federal court cannot pass upon the fairness and humaneness of another country's criminal justice system and must decline to rule on a matter that involves that system in deference to the Executive Branch. The rule of noninquiry traditionally applies in extradition proceedings. See e.g., Mironescu v. Costner, 480 F.3d 664, 668­70 (4th Cir. 2007). The doctrine, however, is not applicable to asylum, withholding or CAT and indeed our courts in those contexts reach such judgments routinely. Khouzam v. Att'y Gen. of the U.S., 549 F.3d 235, 253­54 (3d Cir. 2008) [rule of noninquiry has no role in determining whether the government improperly revoked CAT deferral of removal]. But see Munaf v. Green, 553 U.S. 674 (2008) [refusing to determine whether turning over detainees to Iraqi authorities would result in their torture]. Proper Party Defendant--Where a plaintiff sues the United States, various U.S. agencies related to immigration cannot conclude they are not parties to the action for purposes of relief. Paunescu v. INS, 76 F.Supp.2d 896, 903 n.2 (N.D. Ill. 1999). Fugitive Disentitlement Doctrine A fugitive during the appellate process may forfeit his right to appeal. Martin v. Mukasey, 517 F.3d 1201 (10th Cir. 2008) [applying fugitive disentitlement doctrine to dismiss appeal where petitioner failed to appear]; Giri v. Keisler, 507 F.3d 833 (5th Cir. 2007) [dismissing appeal and holding that fugitive disentitlement doctrine applies when the petitioner fails to report to ICE after a stay of removal is denied]; Gao v. Gonzales, 481 F.3d 173 (2d Cir. 2007) [applying fugitive disentitlement doctrine to bar review of motion to reopen asylum claim where applicant refused to report for custody throughout appeal]; Garcia-Flores v. Gonzales, 477 F.3d 439 (6th Cir. 2007) [dismissing appeal where petitioner refused to report for removal]; Sapoundjiev v. Ashcroft, 376 F.3d 727 (7th Cir. 2004) [fugitive disentitlement doctrine applies to petitions for review; vacating stay of deportation and dismissing appeal where appellants refused to appear to be taken into custody]; Armentero v. INS, 412 F.3d 1088 (9th Cir. 2005) [fugitive disentitlement doctrine applicable to habeas appeals]; Antonio-Martinez v. INS, 317 F.3d 1089 (9th Cir. 2003) and cases cited therein [dismissing appeal under fugitive disentitlement doctrine where appellant could not be located]; Bar-Levy v. INS, 990 F.2d 33, 35 (2d Cir. 1993) [dismissing appeal of alien who refused to surrender]. But see Hassan v. Gonzales, 484 F.3d 513, 515 (8th Cir. 2007) [fugitive disentitlement doctrine does not apply to person denied asylum who voluntarily departs to Canada under VD order]; Dailide v. Att'y Gen. of the U.S., 387 F.3d 1335, 1336 n.1 (11th Cir. 2004) [where court denied stay and respondent fled the country so that removal order was never executed, petition was not moot because 1252(b)(2) does not "expressly preclude" review under the circumstances, the government "acknowledges that the petition may be reviewed" and the denial of Social Security benefits is "clearly a collateral consequence of the order of removal"]; Degen v. U.S., 116 S.Ct. 1777 (1996) [fugitive disentitlement doctrine inapplicable in forfeiture]; Ali v. Gonzales, 486 F.Supp.2d 1197, 1204 (W.D. Wash. 2007) [fugitive disentitlement doctrine inapplicable to prevailing party status for purpose of EAJA fees]. However, where a fugitive is returned to custody before appellate jurisdiction is invoked he may pursue appeal. Ortega-Rodriguez v. U.S., 507 U.S. 234 (1993). Judicial review of a criminal conviction, though, may not be waived simply because appellant was deported. See e.g., Swaby v. Ashcroft, 357 F.3d 156, 159­60 (2d Cir. 2004) [where habeas petitioner was deported during appeal, case was not moot because of permanent bar due to aggravated felony conviction]. See also in this chapter Section VI.D (p.1337), infra. Escape from federal custody is inconsistent with pursuing judicial remedies and constitutes a voluntary waiver. Hussein v. INS, 817 F.2d 63 (9th Cir. 1986). Courts have also declined to review an order of deportation where the person concealed his whereabouts from immigration authorities and failed to comply with a bench warrant. Arana v. INS, 673 F.2d 75, 76­77 (3d Cir. 1982). Courts have also declined to grant a stay unless the person was in custody. Ofosu v. McElroy, 98 F.3d 694 (2d Cir. 1996). However, where the respondent did not escape custody, did not conceal his whereabouts and the INS never requested a bench warrant, the appeal proceeded even where respondent failed to surrender for 4 years after receiving a bag and baggage letter. Esposito v. INS, 987 F.2d 108, 110 (2d Cir. 1993).

9.

D. Waiver of Review 1.

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Issues Not Raised in Appellate Brief--Irigoyen-Briones v. Holder, 582 F.3d 1062, 1065 n. 1 (9th Cir. 2009) [mentioning due process argument in introduction in brief and nowhere else waived argument]; Usman v. Holder, 566 F.3d 262, 268 (1st Cir. 2009) [petitioner waived withholding argument by not raising it in opening brief]; Dawoud v. Holder, 561 F.3d 31, 37 (1st Cir. 2009) [failing to address denial of motion to remand in brief] and issues raised for first time at oral argument, are waived]. Patel v. Gonzales, 470 F.3d 216, 218­19 (6th Cir. 2006) [respondent waived any argument that the denial of asylum on discretionary grounds was in error by failing to raise it]; Galvez Pineda v. Gonzales, 427 F.3d 833, 837 (10th Cir. 2005) [argument that the BIA improperly imposed a briefing requirement, raised for the first time at oral argument, was waived]; Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir. 2005) [petitioner waived CAT claim when she failed to raise issue in her opening brief]; Szczesny v. Ashcroft, 358 F.3d 464 (7th Cir. 2004) [failure to raise prejudice from DD's lack of notice of rescission was waived]. Where respondent failed to object to evidentiary ruling below, the issue is waived on appeal. Ocasio v. Ashcroft, 375 F.3d 105 (1st Cir. 2004) [where IJ admitted affidavit of spouse regarding sham marriage, respondent waived issue because she did not raised the claim that DHS failed to make reasonable efforts to secure spouse's appearance]. Waiver also occurs if a petitioner raises an issue but does not actually argue or present any analysis on the issue. Singh v. Att'y Gen. of the U.S., 561 F.3d 1275, 1278­79 (11th Cir. 2009) [appellant stating that issue exists without further argument or discussion abandons argument]; Wang v. Mukasey, 508 F.3d 80, 85 (1st Cir. 2007) [petitioner's request to remand to the BIA based on Second Circuit cases regarding changed circumstances was waived where petitioner did not file a motion to reopen with the BIA and failed to explain the circuit court's authority to remand]; Berrio-Barrera v. Gonzales, 460 F.3d 163, 168 & n.2 (1st Cir. 2006) [CAT claim waived where petitioner asserted that IJ erred but never argued issue]. However, appellant does not waive review where an incorrect standard of review is cited. Ndom v. Ashcroft, 384 F.3d 743, 750 (9th Cir. 2004); Mejia v. Ashcroft, 298 F.3d 873, 876­77 (9th Cir. 2002). Incorporation by Reference--Incorporation by cross-reference issues raised in a habeas or other district court proceeding without specifically briefing the issues on appeal may be waived. Lawrence v. Gonzales, 446 F.3d 221, 226 (1st Cir. 2006) [efforts to cross-reference claims made in a district court proceeding rather than presenting them in an appellate brief may result in their being summarily disregarded]. Waiving a Waiver--The government can waive the issue of the respondent's waiver by failing to assert it. Tokatly v. Ashcroft, 371 F.3d 613, 618 (9th Cir. 2004) [where the government argued that respondent waived his argument that testimony may not be used to establish the record of conviction, the court held that the government had waived this waiver argument by not raising the issue of waiver before the BIA but rather addressing it on the merits when respondent argued to the BIA that the testimony was impermissible]. Manifest Injustice / Exceptional Circumstance--Courts will decide an issue not raised in appellant's opening brief where manifest injustice or exceptional circumstance will otherwise result. Haxhiu v. Mukasey, 519 F.3d 685, 691­92 (7th Cir. 2008) [failure to adequately address government involvement in persecution or its unwillingness or inability to stop it does not constitute waiver, because it would be manifest injustice to do so in light of IJ's statement that petitioner would be killed upon return to Albania]; Bona v. Gonzales, 425 F.3d 663, 667 n.4 (9th Cir. 2005) [court considered legal argument raised for the first time in a 28(j) letter where the parties argued the issue, were given a subsequent opportunity to brief it, and the opposing party will not be prejudiced]; Bagot v. Ashcroft, 398 F.3d 252, 256 (2d Cir. 2005) [exceptional circumstances permitted review where pure legal question concerning derivative citizenship was close to legal issues raised in district court]; Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004) [hearing repapering issue despite appellant's failure to raise it in his opening brief because the government is not prejudiced and manifest injustice would result].

3.

4.

5.

E. Prior Adjudication--Under INA §242(d)(2), 8 U.S.C. §1252(d)(2), an issue will not be considered by the court if it was previously determined in civil or criminal proceedings unless the petition presents grounds which could not have been presented in prior proceedings or the proceedings were inadequate or ineffective to test the validity of the order. Gutierrez-Morales v. Homan, 461 F.3d 605, 608­09 (5th Cir. 2006) [third petition for review did not bar claim of ineffective assistance where on first petition he was represented by ineffective counsel and on second he failed to timely file so there was no deci-

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sion on the merits]; Filsaime v. Ashcroft, 393 F.3d 315 (2d Cir. 2004) [remanding to district court to determine whether habeas proceeding in W.D. La. was inadequate or ineffective in disposing of CAT claim]; Variamparambil v. INS, 831 F.2d 1362 (7th Cir. 1987) [previous appeal on finding of deportability not a bar to review of denial of motion to reopen where issue concerning tolling of the 7-year period for §212(c) raised for the first time]. But see Santos v. Reno, 228 F.3d 591, 597 (5th Cir. 2000) [under transitional rules issue in habeas could have been (and was) raised in prior appeal]. F. Departure from U.S. 1. Generally--Prior to IIRIRA, under 8 U.S.C. §1105a(c), "an order of deportation or exclusion shall not be reviewed if the alien ... has departed from the United States after the issuance of the order." Kon v. Gonzales, 400 F.3d 1225 (9th Cir. 2005) [court deprived of review under transitional rules where person departed U.S. after BIA summarily affirmed denial of asylum]; Robledo-Gonzales v. Ashcroft, 342 F.3d 667, 674­76 n.4 (7th Cir. 2003) [habeas petitioner lacked jurisdiction to seek reopening to obtain §212(c) relief where petition was filed subsequent to his illegal reentry after deportation]; Baez v. INS, 41 F.3d 19 (1st Cir. 1994) [rejecting analysis in Mendez and finding no jurisdiction where person deported without proper notice to counsel]. This provision was removed pursuant to IIRIRA §306. INA §242(a). Therefore, post-IIRIRA the departure of a person ordered removed no longer moots an appeal. Coyt v. Holder, 593 F.3d 902, 905 (9th Cir. 2010) [court had jurisdiction to determine the validity of 8 C.F.R. §1003.2(d) barring continuing review of motions to reopen where person removed after filing motion]; Spina v. DHS, 470 F.3d 116, 124­25 (2d Cir. 2006) [court retained jurisdiction over appeal of statutory ineligibility to apply for §212(c) relief despite applicant's removal to Italy]; Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) [court had jurisdiction to review denial of motion to reconsider filed 14 months after respondent's removal]; Handa v. Clark, 401 F.3d 1129, 1132 (9th Cir. 2005) [in visa waiver removal case, habeas jurisdiction was not lost where petitioner was removed after petition was filed because of collateral consequences]; Alwan v. Ashcroft, 388 F.3d 507, 510­11 (5th Cir. 2004) [deportation does not moot appeal because of collateral consequence of permanent inadmissibility]; Dailide v. Att'y Gen. of the U.S., 387 F.3d 1335, 1336 n.1 (11th Cir. 2004) [where court denied stay and petitioner fled so that order of removal was never executed, petition was nevertheless not moot because 1252(b)(2) does not "expressly preclude" review under the circumstances, the government "acknowledges that the petition may be reviewed" and the denial of Social Security benefits is "clearly a collateral consequence of the order of removal"]; Kamagate v. Ashcroft, 385 F.3d 144, 149­51 (2d Cir. 2004) [removal from U.S. does not moot habeas appeal because aggravated felony finding resulting in a lifetime bar is a collateral consequence]; Ghounem v. Ashcroft, 378 F.3d 740 (8th Cir. 2004) [ordering reopening of in absentia removal order because of lack of notice where petitioner's stay had been denied and he had been deported to Egypt]; Johnson v. Ashcroft, 378 F.3d 164, 168 (2d Cir. 2004) [petitioner deported after habeas filed and habeas subsequently denied, but circuit court reversed]; Zalawadia v. Ashcroft, 371 F.3d 292, 296­98 (5th Cir. 2004) [person deported after habeas filed is still "in custody" and habeas is still viable because the "in custody" determination is made at the time the petition is filed]; Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 281­82 (3d Cir. 2004) [appellant free to depart and pursue appeal]; Swaby v. Ashcroft, 357 F.3d 156, 159­61 (2d Cir. 2004) [where habeas petitioner was deported during appeal, case not moot because of permanent bar due to aggravated felony conviction]; NoriegaLopez v. Ashcroft, 335 F.3d 874, 878 (9th Cir. 2003) [court had jurisdiction to review habeas denial when person deported after habeas denied]; Zegarra-Gomez v. INS, 314 F.3d 1124 (9th Cir. 2003) [where habeas petitioner is deported after filing petition, petition is not moot where there are collateral consequences arising from the deportation such as the inability to return]; Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001) [proceeding commenced post­Apr. 1, 1997 is governed by IIRIRA permanent rules that do not contain a statutory bar to review and claim is not moot because there are consequences to future admissibility by removal]; Chong v. District Director, INS, 264 F.3d 378, 385 (3d Cir. 2001) [same]; Tapia-Garcia v. INS, 237 F.3d 1216, 1217 (10th Cir. 2001) [same]; Steele v. Blackman, 236 F.3d 130, 134 n.4 (3d Cir. 2001) [same]; MaxGeorge v. Reno, 205 F.3d 194, 196 (5th Cir. 2000) vacated on other grounds 533 U.S. 945 (2001) [same]; Smith v. Ashcroft, 295 F.3d 425, 428 (4th Cir. 2002) [if person was in custody at time habeas was filed jurisdiction remains even if person is removed]; Ying Fong v. Ashcroft, 317 F.Supp.2d 398, 404­05 (S.D.N.Y. 2004) [ordering government to return respondent to the U.S. after government illegally deported him]; Reyes-Sanchez v. Ashcroft, 261 F.Supp.2d 276, 282­84

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(S.D.N.Y. 2003) [where person was deported while case was pending in court of appeals and court determined jurisdiction was in the district court in habeas, district court jurisdiction was not moot by virtue of petitioner's removal prior to transfer of case]; So v. Reno, 251 F.Supp.2d 1112, 1120­ 24 (E.D.N.Y. 2003) [case not moot by petitioner's removal where habeas filed before removal]. But see Abdala v. INS, 488 F.3d 1061 (9th Cir. 2007) [although physical removal pursuant to an order does not, by itself, result in mootness, the case was moot because the basis of habeas was to challenge the length of petitioner's detention]; Perez v. Greiner, 296 F.3d 123 (2d Cir. 2002) [claim was moot when petitioner was deported after habeas denial was appealed notwithstanding "collateral consequences" doctrine because there was an independent conviction for drug trafficking which would have barred petitioner's return even if he was successful in habeas]; Sadhyani v. Chertoff, 460 F.Supp.2d 114 (D.D.C. 2006) [person who was deported was not in custody for habeas purposes and REAL ID Act and INA §242(g) divest the court of jurisdiction]. 2. Equitable Tolling--Equitable tolling may permit jurisdiction even if habeas is filed after person is deported. Gutierrez v. Ashcroft, 289 F.Supp.2d 555 (D.N.J. 2003) [where counsel affirmatively misrepresented that he had filed habeas challenging the denial of the right to seek §212(c) before respondent was physically removed but had not, his actions violated due process and permitted the court to accept the habeas nunc pro tunc to the time before petitioner was physically removed]. Wrongful Deportation--In addition, prior to IIRIRA, courts of appeal could review deportation orders where departure was due to wrongful deportation. Peralta-Cabrera v. Gonzales, 501 F.3d 837, 841­43 (7th Cir. 2007) [pre-IIRIRA respondent was deported despite petition for review that gave him automatic stay]; Singh v. Waters, 87 F.3d 346 (9th Cir. 1996); Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990) [where conviction vacated after petitioner deported, former INA §106 is not a bar]; Zepeda-Melendez v. INS, 741 F.2d 285, 287 (9th Cir. 1984) [deportation of LPR without notice to counsel]; Juarez v. INS, 732 F.2d 58, 59­60 (6th Cir. 1984); Martinez-Cabrera v. Thornburgh, No. B-19-126 (S.D. Tex. Oct. 5, 1986), reprinted in 66 No. 42 Interpreter Releases 1202­03 (Oct. 30, 1989); Mendez v. INS, 563 F.2d 956 (9th Cir. 1977) [deportation of LPR without notice to counsel]. But see Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009) [upholding under second step of Chevron 8 C.F.R. §§1003.2(d), 1003.23(b)(1), barring motions to reopen of persons outside the U.S.]; Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009) [8 C.F.R. 1003.2(d) bars a motion to reopen even if the legal basis for removal is later determined to be erroneous and BIA did not have sua sponte authority to reopen following Armendarez]. Some circuits also found jurisdiction to review the order of a person already deported where "the record reveals a colorable due process claim." Camacho-Bordes v. INS, 33 F.3d 26 (8th Cir. 1993); Marrero v. INS, 990 F.2d 772, 773 (3d Cir. 1993) [same]; Fuller v. INS, 144 F.Supp.2d 72, 80­83 (D. Conn. 2000) [Section 1105a(c) is not a bar to review under transitional rules where person deported but court would have granted stay but for mishaps in the clerk's office]. Similarly, if a person departed the U.S. before he was aware that the circuit court reconsidered his case sua sponte en banc, the court retained jurisdiction. Contreras-Aragon v. INS, 852 F.2d 1088 (9th Cir. 1988) (en banc). Also, departure from the U.S. in compliance with an order of deportation does not constitute an abandonment of a claim against the DD for improper denial of a J-1 hardship waiver. Chang v. Reno, 986 F.Supp. 19, 25­26 (D.D.C. 1997). A person deported in violation of a stay may also obtain review if the failure to adhere to the order was deliberate. Patel v. Ashcroft, 378 F.3d 610, 613 (7th Cir. 2004) [under transition rule, IIRIRA §309(c)(4) the court lost jurisdiction after person deported unless stay was deliberately violated]. Post-Removal Motions to Reopen--Motions to reopen filed after removal, however, may be treated differently. Matter of Armendarez, 24 I&N Dec. 646 (BIA 2008) [BIA lacked jurisdiction to consider sua sponte motion to reopen to seek §212(c) relief due to INS v. St. Cyr, 67 months after respondent was removed]; Ovalles v. Holder, 577 F.3d 288 (5th Cir. 2009) [8 C.F.R. 1003.2(d) bars a motion to reopen even where the legal basis for removal is later determined to be erroneous and BIA did not have sua sponte authority to reopen following Armendarez]; Pena-Muriel v. Gonzales, 489 F.3d 438 (1st Cir. 2007) [due process not violated where BIA refused to allow respondent, who was outside the U.S., to reopen proceedings because his conviction was vacated]; Patel v. Att'y Gen. of the U.S., 334 F.3d 1259, 1261­63 (11th Cir. 2003) [no jurisdiction because of the criminal bar under INA §242(a)(2)(C) to review the denial of motion to reopen under 8 C.F.R. §1003.2(d) where the person was out of the country and the district court lacked habeas jurisdiction because the person was no longer in custody]. But see Matter of Bulnes, 25 I&N Dec. 57

3.

4.

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1305

(BIA 2009) [agreeing with Contreras-Rodriguez and finding that an in absentia order may be reopened even if the person departed the U.S and executed the order under INA §101(g)]; William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) [8 C.F.R. §1003.2(d) prohibiting motions to reopen where the person is outside the U.S. is contrary to INA §240(c)(7)(A) permitting one motion to reopen without limitation and the regulation is therefore invalid]; Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007) [resolving ambiguities in favor of the respondent, the "abandonment" regulation does not including persons who return illegally after a final order]; Reynoso-Cisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007) [person in exclusion proceedings who was deported and then re-entered is not barred by 8 C.F.R. §1003.2(d) from filing a motion to reopen before BIA]; Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006) [jurisdiction to review denial of motion to reconsider filed 14 months after removal from the U.S.]; Contreras-Rodriguez v. Att'y Gen. of the U.S., 462 F.3d 1314 (11th Cir. 2006) [respondent physically removed after in absentia order, is not barred from filing a motion to reopen for lack of notice because §1003.23(b)(4)(ii) allows such a motion to be filed at "any time." Patel distinguished]; Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) [where respondent's conviction is vacated after physical removal, court reversed BIA for denying motion to reopen because conviction was a "key part" of removal proceeding]. G. Venue--Venue for federal proceedings is addressed at 28 U.S.C. §§1391(b), (e). A federal prisoner's residence for purpose of venue is not necessarily where he or she is incarcerated but rather, his or her residence prior to involvement in the criminal justice system. Abreu v. U.S., 796 F.Supp. 50, 52 (D.R.I. 1992). Venue for circuit courts under INA §242 is in "the judicial circuit in which the immigration judge completes the proceedings." INA §242(b)(2). See in this chapter Section VI.F (p.1339), infra. Nwaokolo v. INS, 314 F.3d 303, 305­06 (7th Cir. 2002) [pre­Oct. 30, 1996 rules applied for venue purposes where the IJ's order was finalized before that date even though review was sought of a motion to reopen filed after that date]. Venue in habeas is often more complex. See in this chapter ¶ III.C.9 (p.1234), supra. Venue regarding review of the denial of immigrant or nonimmigrant petitions arises under 28 U.S.C. §1391(e). Aftab v. Gonzalez, 597 F.Supp.2d 76 (D.D.C. 2009) [action alleging unreasonable delay in AOS was transferred from DC to N.D. Tex. because plaintiff and defendant resided there and some actions regarding the case were taken there]; Blacher v. Ridge, 436 F.Supp.2d 602 (S.D.N.Y. 2006) [in action by employer to review denial of H-1B petition, the court found that venue was not proper in the S.D.N.Y. because neither defendants nor plaintiffs resided in the S.D. and the decision was made in VT].

V. SCOPE OF REVIEW

A. Plenary Review When federal jurisdiction exists, courts must determine the scope of review to be applied. When actions are subject to review, they may be subject to different levels of scrutiny and different standards of review. In determining the applicable standard, the court must first determine the scope of its review power. Agency decisions or interpretations that are based upon errors of law are subject to plenary review. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) [reversing agency application of incorrect standard of proof in asylum determinations]; Rosenberg v. Fleuti, 374 U.S. 449 (1963); Jordan v. De George, 341 U.S. 223 (1951); Vaca-Tellez v. Mukasey, 540 F.3d 665, 669 (7th Cir. 2008) [whether respondent committed an aggravated felony is subject to de novo review]; Fernandez v. Keisler, 502 F.3d 337, 342­48 (4th Cir. 2007) [de novo review of all legal questions regarding naturalization does not preclude Chevron deference]; Larin-Ulloa v. Gonzales, 462 F.3d 456, 461 & n.7 (5th Cir. 2006) [notwithstanding Chevron deference, court reviews de novo whether a state criminal statute constitutes an aggravated felony under the INA]; Le v. Att'y Gen. of the U.S., 196 F.3d 1352 (11th Cir. 1999) [de novo review but will defer to BIA's determination if it is reasonable]; Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) [Chevron deference inappropriate in determining whether a crime is a deportable offense]; Albillo-Figueroa v. INS, 221 F.3d 1070, 1072 (9th Cir. 2000) [same]; PadillaCaldera v. Gonzales, 453 F.3d 1237, 1241 (10th Cir. 2006) [reversing IJ/BIA under de novo review where IJ barred §245(i) AOS to a person inadmissibile under INA §212(a)(9)(C)(i)(I) where statute and legislative history was to the contrary]; Innab v. Reno, 204 F.3d 1318, 1320 (11th Cir. 2000) [issues involving subject-matter jurisdiction are reviewed de novo]; Mikhael v. INS, 115 F.3d 299 (5th Cir. 1997) [BIA reversed where it applied improper standard to asylum]; Hamdan v. INS, 98 F.3d 183,

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185 (5th Cir. 1996) [whether crime is CIMT]; Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993) [reversing de novo determination that money laundering is CIMT]. This includes procedural errors arising from violation of regulations, statutes, treaties or the constitution. Accardi v. Shaughnessy, 347 U.S. 260 (1954); ILWU v. Meese, 891 F.2d 1374 (9th Cir. 1989); Rios-Berrios v. INS, 776 F.2d 859 (9th Cir. 1985) [denial of counsel]; Kaho v. Ilchert, 765 F.2d 877, 881 (9th Cir. 1985) [INS interpretation of foreign law]. De novo review may also extend to mixed questions of law and fact. Blancada v. Turnage, 891 F.2d 688 (9th Cir. 1989) [review of order denying stay]; Colindres-Aguilar v. INS, 819 F.2d 259 (9th Cir. 1987) [deprivation of counsel]; Bodeux v. INS, 668 F.Supp. 1452 (D. Kan. 1987) [failure to follow H-1 extension regulations]. De novo review is also appropriate where a court of appeals reviews the decision of a district court reviewing the BIA's decision. Sotelo-Aquije v. Slattery, 17 F.3d 33, 35 (2d Cir. 1994). B. Committed to Agency Discretion Some matters are not reviewable in federal court because they are "committed to agency discretion." 5 U.S.C. §701(a)(2). This is a narrow exception to the general principle that agency action is reviewable. Heckler v. Chaney, 470 U.S. 821 (1985) [5 U.S.C. §701(a)(2) "is applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply"; it applies in situations where there is "no meaningful standard against which to judge the agency's exercise of discretion" and thus "it is impossible to evaluate agency action for abuse of discretion"]; SocopGonzalez v. INS, 208 F.3d 838, 844 (9th Cir. 2000) [regulations or agency practice can provide a standard to judge the exercise of discretion]. Several courts found that the denial of a J-1 waiver under INA §212(e) by the former USIA is an action committed to agency discretion. Korvah v. Brown, 66 F.3d 809 (6th Cir. 1995); Singh v. Moyer, 867 F.2d 1035 (7th Cir. 1989); Slyper v. Att'y Gen. of the U.S., 827 F.2d 821 (D.C. Cir. 1987) [same]; Dina v. Att'y Gen. of the U.S., 793 F.2d 473 (2d Cir. 1986); Abdelhamid v. Ilchert, 774 F.2d 1447 (9th Cir. 1985); Mansur v. Albright, 130 F.Supp.2d 59 (D.D.C. 2001) [revocation of a visa under 8 U.S.C. §1201(i), is committed to agency discretion and is not reviewable]. But see Chong v. Director, USIA, 821 F.2d 171 (3d Cir. 1987). Similarly, the AG's decision not to deport someone to the country they designate "is essentially unreviewable." Doherty v. Meese, 808 F.2d 938, 943­44 (2d Cir. 1986). Other areas have been found to be committed to agency discretion or not justiciable. Lenis v. Att'y Gen. of the U.S., 525 F.3d 1291 (11th Cir. 2008) [BIA decision to reopen sua sponte is committed to agency discretion]; Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) (en banc) [citing cases finding no jurisdiction to review BIA decision to deny sua sponte reopening because it is committed to agency discretion]; Harchenko v. INS, 379 F.3d 405, 410­11 (6th Cir. 2004) [decision of BIA to reopen sua sponte is committed to unfettered BIA discretion]; Ngure v. Ashcroft, 367 F.3d 975, 980­88 (8th Cir. 2004) [whether BIA properly applied streamlining regulations is not reviewable because it is not possible to devise a meaningful and adequate standard of review]; but see Camposeco-Montejo v. Ashcroft, 384 F.3d 814, 821­22 (9th Cir. 2004). See also Zhang v. Gonzales, 469 F.3d 51 (1st Cir. 2006) [no jurisdiction to review denial of untimely sua sponte motion to reopen]; Belay-Gebru v. INS, 327 F.3d 998, 1000­01 (10th Cir. 2003) [BIA's decision to reopen sua sponte under "exceptional circumstances" provides no meaningful standard for review]; CalleVujiles v. Ashcroft, 320 F.3d 472 (3d Cir. 2003) (and cases cited therein) [same]; State of California v. U.S., 104 F.3d 1086, 1093 (9th Cir. 1996) [AG decision regarding allocation of money to state is committed to agency discretion]; Chiles v. U.S., 69 F.3d 1094, 1096 (11th Cir. 1995) [whether AG is adequately guarding the border is committed to agency discretion]; Ngassam v. Chertoff, 590 F.Supp.2d 461 (S.D.N.Y. 2008) [USCIS denial of I-730 for derivative asylee is committed to agency discretion]; Castillo v. Rice, 581 F.Supp.2d 468, 474­76 (S.D.N.Y. 2008) [dismissing petition seeking expedited adjudication of K-3 in the Dominican Republic because scheduling is committed to agency discretion]; People of Colorado ex rel. Suthers v. Gonzales, 558 F.Supp.2d 1158, 1167­69 (D. Colo. 2007) [CO's claim that the federal government failed to hire sufficient immigration enforcement agents pursuant to federal law is committed to agency discretion]; Shen v. Chertoff, 494 F.Supp.2d 592 (E.D. Mich. 2007) [no mandamus/APA action for 50 months delay in AOS because of security checks because there is no nondiscretionary duty under mandamus and it is committed to agency discretion under the APA]; Keane v. Chertoff, 419 F.Supp.2d 597 (S.D.N.Y. 2006) [request to reopen AOS that was erroneously denied for abandonment was committed to agency discretion under the APA and not subject to mandamus]; Saccoh v. INS, 24 F.Supp.2d 406, 409­10 (E.D. Pa. 1998) [DD's denial of VD extension is not reviewable because there are no standards to apply]. The doctrine has also been applied to bar review of the denial of EAD and prehearing VD for the beneficiaries of approved visa petitions. Perales v. Casillas, 903 F.2d 1043 (5th Cir. 1990) [no statutory or regulatory

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standard to apply]; Lalani v. Perryman, 105 F.3d 334, 337­38 (7th Cir. 1997) [DD decision denying administrative VD is unreviewable]; Uzuegbu v. Caplinger, 745 F.Supp. 1200, 1216 (E.D. La. 1990) [extending principle to denial of EAD for person in proceedings]; Gomez-Arauz v. McNary, 779 F.Supp. 1308 (W.D. Okla. 1991) [same]. And on certain consular decisions. Legal Assistance for Vietnamese Asylum Seekers v. DOS, 104 F.3d 1349, 1352­53 (D.C. Cir. 1997) [consular venue policy of Secy. of State is unreviewable]. The doctrine may also apply to preclude review of decisions concerning the remission or mitigation of fines. McCoy v. U.S., 758 F.Supp. 299, 302 (E.D. Pa. 1991). One court has also applied the doctrine to bar review of the propriety of screening decisions made by INS officers of interdicted Haitians outside the territorial U.S. Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498, 1508 (11th Cir. 1992). Courts have rejected the "committed to agency discretion" doctrine in other immigration contexts. Quinteros-Mendoza v. Holder, 556 F.3d 159, 161­64 (4th Cir. 2009) [review of BIA streamlining decisions is not committed to agency discretion and is subject to review]; Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004) [despite IIRIRA §309(c)(3) broad discretion by AG to grant repapering, the discretion has been legally circumscribed and therefore justiciable by various memos through which INS implemented its repapering policy]; Haoud v. Ashcroft, 350 F.3d 201, 206 (1st Cir. 2003) [BIA decision to streamline is not committed to agency discretion as 8 C.F.R. §1003.1(e)(4) sets out substantial law to apply]; Denko v. INS, 351 F.3d 717, 731­32 (6th Cir. 2003) [streamlining/AWO decisions are subject to judicial review and not committed to agency discretion]; Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 868­69 (9th Cir. 2003) [IJ/BIA decision not to reinstate a withdrawn asylum application is not committed to agency discretion because criteria governing motions to reopen may be applied]; Evangelical Lutheran Church in America v. INS, 288 F.Supp.2d 32, 43­45 (D.D.C. 2003) [doctrine does not apply to review of the denial of an untimely H-1B extension because review of whether "extraordinary circumstances" warrant a waiver of the filing deadline is not committed to agency discretion]; Capital Area Immigrants' Rights Coalition v. DOJ, 264 F.Supp.2d 14, 22­24 (D.D.C. 2003) [regulatory changes involving BIA streamlining, reduction in Board members, and time deadlines were not committed to agency discretion]; M.B. v. Quarantillo, 301 F.3d 109, 111­14 (3d Cir. 2002) [regulations and memorandum supply "some law to apply" and therefore, whether INS abused its discretion in denying transfer of case to state court to permit determination of eligibility for special juvenile status was not committed to agency discretion]; Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1013­14 (9th Cir. 2000) [Secy. of State's decisions regarding extradition of fugitive who claims he will be tortured if returned are not committed to agency discretion]; Gurbisz v. INS, 675 F.Supp. 436, 443­44 (N.D. Ill. 1987) [rejecting applicability of Heckler v. Chaney, 470 U.S. 821 (1985) to AG denial of extended VD because initiation of proceedings involves affirmative government action]; Carrillo v. Mohrman, 832 F.Supp. 1412, 1416­19 (D. Idaho 1989) [DD denial of request to extend VD is not committed to agency action]. C. De Novo Review Questions of law, including issues of statutory interpretation and constitutional issues, are reviewed de novo. McNary v. Haitian Refugee Center, 498 U.S. 479, 493 (1991); Vaca-Tellez v. Mukasey, 540 F.3d 665, 669 (7th Cir. 2008) [whether respondent committed an aggravated felony is subject to de novo review]; Larin-Ulloa v. Gonzales, 462 F.3d 456, 461 & n.7 (5th Cir. 2006) [notwithstanding Chevron deference, court reviews de novo whether a state criminal statute constitutes an aggravated felony under the INA]. In reviewing an agency's findings of fact, courts are generally limited to a review of the record and may not decide factual questions de novo. Under INA §242(b)(4)(A), the court of appeals reviewing a final order of removal "shall decide the petition only on the administrative record on which the order is based." Lukowski v. INS, 279 F.3d 644, 646 (8th Cir. 2002) [where conviction was vacated and respondent now convicted of misdemeanor, court of appeals could not consider it because it was not in the administrative record]; Pollgreen v. Morris, 770 F.2d 1536 (11th Cir. 1985) ["[f]actual questions may not be decided de novo by the district court unless (1) the agency's fact finding procedures are inadequate; or (2) when issues not before the agency are raised to enforce certain agency actions]; Camp v. Pitts, 411 U.S. 138, 141­42 (1973); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)."] U.S. v. Von Harten, 825 F.2d 1493 (11th Cir. 1987) [following Pollgreen and rejecting de novo review in final proceedings absent inadequacy in procedure or failure of agency to review issue]. Crespo-Gomez v. Richard, 780 F.2d 932 (11th Cir. 1986) [nothing in the statute or regulations require detailed findings in a BIA decision on discretionary issues if the administrative record sets out clearly the ground which forms the basis for denial so that the court can review it for abuse of discretion]. But see Rafaelano v. Wilson, 471 F.3d 1091 (9th Cir. 2006) [where ICE's record was nonexistent on issue whether respondent voluntarily departed and was not subject to reinstatement, the court remanded the case to the BIA for a factual record]. Federal courts may receive testimony for a preliminary injunction, but cannot use it for the merits determination. See Pollgreen, supra.

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D. Post Hoc Review Prohibited An agency is also limited to the record it established at the time of its action, INA §242(b)(4)(A), and may not utilize post hoc rationalizations for its prior action; nor may the courts supply such reasons. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). See also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212­13 (1988) [no deference to agency's counsel's litigation position]; Florida Power and Light Co. v. Lorion, 470 U.S. 729, 744 (1985); Federal Power Comm. v. Texaco, Inc., 417 U.S. 380, 397 (1974); SEC v. Chenery Corp., 318 U.S. 80, 87 (1943); Carpio v. Holder, 592 F.3d 1091, 1103 (10th Cir. 2010) [following Chenery, court would not accept post hoc rationale never provided by IJ or BIA when denying AOS to K-2 that aged-out]; Nken v. Holder, 585 F.3d 818, 822­23 (4th Cir. 2009) [following Chenery court remanded to BIA when it failed to provide explanation why new evidence did not demonstrate a change in country conditions warranting reopening]; Al Mutarreb v. Holder, 561 F.3d 1023, 1029 (9th Cir. 2009) [citing Chenery, the court rejected DHS harmless error argument that if deportability cannot be sustained on the record, the court should nevertheless affirm it because petitioner could have been removed on other grounds]; Wala v. Mukasey, 511 F.3d 102, 106 n.3 (2d Cir. 2007) [government precluded from arguing that all convictions for burglary with intent to deprive a person of her property, whether the deprivation was temporary or permanent, was a CIMT because the BIA order expressly reference permanent taking]; Badwan v. Gonzales, 494 F.3d 566, 570­71 (6th Cir. 2007) [rejecting government attempt to supply new reasons for IJ's improper denial of a continuance]; Galvez-Vergara v. Gonzales, 484 F.3d 798, 803 n.6 (5th Cir. 2007) [reversing BIA for failure to follow Matter of Grijalva and declining DHS invitation to affirm the decision on a ground not provided by the agency]; Chukwu v. Att'y Gen. of the U.S., 484 F.3d 185, 193 (3d Cir. 2007) [where BIA did not rely on IJ's theory that beating of asylum applicant did not rise to persecution, court could not rely on that rationale]; Gebreeyesus v. Gonzales, 482 F.3d 952, 955­56 (7th Cir. 2007) [reversing BIA denial of motion to reopen based on changed country conditions where BIA did not supply reasoned decision and government sought to do so in violation of Chenery]; Mouawad v. Gonzales, 485 F.3d 405, 413­14 (8th Cir. 2007) [under Chenery the IJ's failure to address acquiescence of Lebanese government to violence of Hezbollah did not permit review; CAT decision reversed]; Singh v. DOJ, 461 F.3d 290, 294 and n.3 (2d Cir. 2006) [BIA could not offer INA §204(c) as a reason for refusing to reopen the denial of I-751 hardship waiver when the BIA failed to refer to it in denying the motion to reopen]; Banks v. Gonzales, 453 F.3d 449, 451 (7th Cir. 2006) [federal judges following Chenery cannot resolve litigation on grounds that the agency ignored and a remand was appropriate where neither the IJ nor the BIA denied asylum to a Liberian of the Krahn tribe because Charles Taylor's repressive government was no longer in power]; Lin v. Gonzales, 445 F.3d 127, 136 (2d Cir. 2006) [court will not rely on purported inconsistencies in asylum testimony suggested by the government that the IJ did not consider]; Wu v. INS, 436 F.3d 157 (2d Cir. 2006) ["[i]t 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 petitioner's claim cannot support the result, we will vacate the decision"]; Altamirano v. Gonzales, 427 F.3d 586, 595 (9th Cir. 2005) ["Chenery requires that an agency's discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself"]; Zheng v. Gonzales, 422 F.3d 98, 121­22 (3d Cir. 2005) [where BIA explicitly rejected AOS because applicant was an arriving alien, the government could not argue other reasons for denying applicant a second opportunity to adjust]; Lin v. DOJ, 416 F.3d 184 (2d Cir. 2005) [rejecting government suggestion that court may simply supply its own rationale for the BIA's decision in Matter of C-Y-Z-]; Li v. Att'y Gen. of the U.S., 400 F.3d 157, 163­64 (3d Cir. 2005) [under Chenery, court could not affirm or review BIA's decision on lack of credibility when the BIA did not rely on that ground in its decision]; Uriostegui v. Gonzales, 415 F.3d 660, 664­65 (7th Cir. 2005) [where BIA issued AWO on in absentia order but never addressed motion to remand, court reversed noting that where there was no evidence of what the agency really intended, government counsel could not supply the reasons]; Comollari v. Ashcroft, 378 F.3d 694, 696­70 (7th Cir. 2004) [under Chenery doctrine rejecting OIL's reasons for denying CAT claim not offered by IJ/BIA]; Berishaj v. Ashcroft, 378 F.3d 314, 328­32 (3d Cir. 2004) [following Chenery and refusing to take judicial notice of changed country conditions through DOS reports or otherwise as does the Seventh Circuit (Pelinkovic) because it violates the principle of resting the decision on the administrative record]. Miljkovic v. Ashcroft, 376 F.3d 754, 757 (7th Cir. 2004) [criticizing government lawyers for violating Chenery doctrine for arguing that asylum should be denied for reasons not considered by the IJ/BIA]; Mengistu v. Ashcroft, 355 F.3d 1044, 1046­47 (7th Cir. 2004) [government lawyer offering reasons for denial of motion to reopen not provided by BIA vio-

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lates Chenery]; Rodriguez-Barajas v. INS, 992 F.2d 94, 97­98 (7th Cir. 1993) ["[i]n reversing administrative orders we review the agency's stated reasons, not counsel's rationalizations"]; Osaghae v. INS, 942 F.2d 1160 (7th Cir. 1991) [cannot supply new grounds for BIA decision in court of appeals]; Vargas v. INS, 938 F.2d 358, 363 (2d Cir. 1991) [finding abuse of discretion]; Mayo v. Schiltgen, 921 F.2d 177 (8th Cir. 1990) [reversing exclusion finding where habeas judge relied on theory/facts not relied on by agency]; Shahandeh-Pey v. INS, 831 F.2d 1384 (7th Cir. 1987) [cannot review denial of asylum where BIA did not articulate reasons]; Choi v. INS, 798 F.2d 1189, 1192 (8th Cir. 1986) [remanding where E visa applicant not given opportunity to respond to reasons on appeal given for denial]; Bull v. INS, 790 F.2d 869, 873 n.3 (11th Cir. 1986) [claim that alien not entitled to §212(h) waiver will not be considered where BIA/IJ did not articulate this as reason for their decision]; Moret v. Karn, 746 F.2d 989, 992 (3d Cir. 1984) [DD decision to revoke parole may not be explained by post hoc rationalizations outside of the record]; Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984) [court can only judge agency actions solely on grounds invoked by agency]; Evangelical Lutheran Church in America v. INS, 288 F.Supp.2d 32, 48 n.9 (D.D.C. 2003) [post hoc rationalization of government counsel for the denial of an untimely H-1B extension cannot substitute for former INS's own lack of clarity in denying the application]; Guirola-Beeche v. DOJ, 662 F.Supp. 1414 (S.D. Fla. 1987) [in bond breach case, court cannot supply reasoned basis for decision that agency did not articulate]; Matter of Pradieu, 19 I&N Dec. 419 (BIA 1986) [in DD's decision denying a relative visa petition the record should contain all evidence submitted by petitioner as well as INS]. The same is true of the nongovernmental party. The Sweet Life v. Dole, 876 F.2d 402 (5th Cir. 1989) [court cannot consider decision not part of original record simply because it is appended to petitioner's brief]; K.C.P. Food Co. v. Sava, 623 F.Supp. 1080 (S.D.N.Y. 1985) [petitioner precluded from offering additional nonrecord evidence in district court]. cf. Flores-Garza v. Reno, 369 F.Supp.2d 894, 896­98 (S.D. Tex. 2005) [Chenery doctrine does not preclude court from stating its own legal preference in reaching a result that does not reject the result reached by the agency]. E. Agency Record The agency also has a clear definition of its administrative record. 8 C.F.R. §1240.9. Okoroha v. INS, 715 F.2d 380, 383­84 (8th Cir. 1983); Choi v. INS, 798 F.2d 1189 (8th Cir. 1986) [remanding where decision not based on consideration of the full record]. Where the record is inadequate, the case will be remanded. Recinos De Leon v. Gonzales, 400 F.3d 1185 (9th Cir. 2005) [where IJ wrote incoherent opinion and BIA entered a streamlined order, the court held: "[w]hen the agency's only explanation of its final action is incoherent, we may not substantively review it without violating basic principles of judicial review"]; Yang v. McElroy, 277 F.3d 158 (2d Cir. 2002) [where there was a 4-year delay between the BIA decision and the IJ decision which relied on a 5-year-old DOS country report, court remanded to the BIA for more current reports]; Osaghae v. INS, 942 F.2d 1160 (7th Cir. 1991) [remanding where asylum applicant claimed there was new evidence]. The IJ has the obligation to mark documents for identification so the court may review them. Ladha v. INS, 215 F.3d 889, 903­05 (9th Cir. 2000). 1. The agency has the duty to keep "a complete record ... of all testimony and evidence produced at the proceeding." 8 U.S.C. §1229a(b)(4)(C); 8 C.F.R. §1240.9. A record that is deficient may be supplemented in accordance with 8 C.F.R. §1003.1(d)(3)(iv) and BIA Practice Manual, ch. 4.2(f)(iii). Failure to have a complete or even an accurate record may not alone be a violation of due process. Sihomberg v. Holder, 581 F.3d 41, 46­47 (1st Cir. 2009) [multiple "indiscernibles" not a due process violation in absence of showing of prejudice]; Witjaksono v. Holder, 573 F.3d 968 (10th Cir. 2009) [inaccurate and incomplete transcript that contained at least 200 errors is not a violation of due process absent prejudice, and petitioner failed to correct the record of his testimony]; Garza-Moreno v. Gonzales, 489 F.3d 239, 241­42 (6th Cir. 2007) [although "due process demands a reasonable accurate and complete transcript to allow for meaningful appellate review" the BIA's decision was not reversed despite 67 "indiscernible" notations in the transcript because there was no showing of prejudice]; Oroh v. Holder, 561 F.3d 62, 64­66 (1st Cir. 2009) [137 "indiscernible" notations in a 40-page transcript was not a violation of due process where petitioner did not show prejudice and some omissions of petitioner's testimony could have been supplemented by affidavit]; Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 9 (1st Cir. 2008) [missing transcript was not a violation of due process absent prejudice]; Kheireddine v. Gonzales, 427 F.3d 80 (1st Cir. 2005) [IJ/BIA have duty to provide accurate transcript but where respondent failed to show prejudice to perfect appeal, court will not remand or reverse the decision]; Ortiz-Salas v. INS, 992 F.2d 105, 106 (7th Cir. 1993) [where testimony that was not transcribed was not shown to be material or affect outcome BIA affirmed]. See also Khan v. Mukasey, 517 F.3d 513, 518­19 (7th Cir.

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2008) [IJ's off-the-record discussion regarding wife's testimony did not result in unfair hearing, despite Chief IJ's memorandum requiring discussion to be on the record, where IJ stated he would have denied waiver anyway]; Teng v. Mukasey, 516 F.3d 12, 18 (1st Cir. 2008) [no due process violation because to succeed on a claim for inadequate or inaccurate translation, must show prejudice that hindered the ability to appeal]; Chickwendu v. Gonzales, 415 F.3d 142 (1st Cir. 2005) [IJ reconstruction of 2 witnesses testimony after forgetting to tape record them was not a due process violation where counsel participated and did not object to the reconstruction, there were affidavits from the witnesses in evidence and there was no prejudice]; Mathews v. INS, 170 F.Supp.2d 99 (D. Mass. 2001) [respondent not provided transcript of IJ's oral decision did not suffer prejudice because he is only entitled to IJ's order and was not prevented from making all arguments to BIA]. The IJ also has a duty to assist in the development of a full record. Lacsina Pangilinan v. Holder, 568 F.3d 708 (9th Cir. 2009) [due process violated where IJ failed to assist pro se asylum applicant to develop the case on the record]. 2. 3. Argument of counsel in brief to BIA is not evidence for court of appeals to consider. Tang v. INS, 223 F.3d 713, 720 (8th Cir. 2000). The court of appeals is generally limited by statute to the administrative record (unless appeal involves a citizenship claim). Under INA §242(b)(4)(A), 8 U.S.C. §1252(b)(4)(A), the court of appeals reviewing a final order of removal "shall decide the petition only on the administrative record on which the order is based." Lin v. Holder, 565 F.3d 971, 978­79 (6th Cir. 2009) [court cannot take judicial notice of 2008 DOS report on China]; Ocha-Carillo v. Gonzales, 2006 U.S. App. LEXIS 3513 (8th Cir. 2006) [review of reinstatement order is "limited to the agency's certified administrative record," citing INA §242(b)(4)(A) and Grass v. Gonzales, 418 F.3d 876, 879 (8th Cir. 2005)]; Castro-Cortez v. INS, 239 F.3d 1037, 1040 n.2 (9th Cir. 2001) ["[w]e may decide [these direct appeals] only on the administrative record on which the INS based its decision"]; Al-Fara v. Gonzales, 404 F.3d 733, 743­44 (3d Cir. 2005) [court would not consider new evidence outside the record as respondent should file motion to reopen with BIA regarding new country conditions]; Lukowski v. INS, 279 F.3d 644, 646 (8th Cir. 2002) [where conviction was vacated and respondent now convicted of misdemeanor, court of appeals could not consider it because it was not in the administrative record]. See also Infanzon v. Ashcroft, 386 F.3d 1359, 1363 (10th Cir. 2004) [rejecting respondent's attempt to add information to asylum claim before circuit court or to bolster Lozada claim by providing proof that bar charge was filed]; Berishaj v. Ashcroft, 378 F.3d 314, 317 (3d Cir. 2004) [noting that administrative records in asylum cases are "grossly out-of-date" and calling upon Congress and the Executive Branch to restructure the process]. Citizenship claims are not necessarily bound by the record. 8 U.S.C. §1252(b)(5); Batista v. Ashcroft, 270 F.3d 8, 12­15 (1st Cir. 2001) [permitting consideration of documents outside the administrative record as in summary judgment under Fed. R. Civ. P. 56 where citizenship claim is raised]. A petitioner may also present evidence on appeal that is outside the record of proceedings in immigration court "in order to show that he was prejudiced by the lack of a full and fair hearing." Colmenar v. INS, 210 F.3d 967, 972 n.5 (9th Cir. 2000). The record may be supplemented and discovery permitted in district court where there is a strong showing of bad faith or improper behavior. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). But see Balaton, Inc. v. Reno, 93 F.Supp.2d 61 (D.D.C. 2000) [claim that AAU always affirms denials of small company L-1s is not a basis for discovery to supplement record]. Where the record is inadequate, remand is appropriate. Rafaelano v. Wilson, 471 F.3d 1091 (9th Cir. 2006) [where ICE's record was nonexistent on issue whether respondent voluntarily departed and was not subject to reinstatement, court remanded the case to the BIA for a factual record]. The agency opinion must also be specific and must state with sufficient particularity and clarity the reasons for denial. Boilerplate opinions are insufficient. Paramasamy v. Ashcroft, 295 F.3d 1047, 1048­52 (9th Cir. 2002) [BIA reversed for relying on credibility finding in asylum case based on boilerplate demeanor observations by the IJ]; De La Llana-Castellon v. INS, 16 F.3d 1093, 1098 (10th Cir. 1994); Rhoa-Zamora v. INS, 971 F.2d 26, 36­37 (7th Cir. 1992) [where opinion entirely boilerplate it must be reversed]; Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir. 1991). Bare conclusions for refusing to exercise discretion are also insufficient absent a frivolous argument. Bastanipour v. INS, 980 F.2d 1129, 1131 (7th Cir. 1992). Under a writ of habeas corpus other evidence may be permitted. Townsend v. Sain, 372 U.S. 293 (1963); Amanullah v. Nelson, 811 F.2d 1, 16 (1st Cir. 1987); Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1202­04 (9th Cir. 1975); Ahmad v. Russell, No. 88-2-984 (D. Colo. Mar. 6, 1989). But see Haghi v. Russell, 744 F.Supp. 249 (D. Colo. 1990) [court in habeas will not consider vacation of conviction because it was not part of admin. record].

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F. Standards of Review There are many matters that were reviewable prior to IIRIRA that are now precluded from judicial review. See in this chapter Section IV.A (p.1246), supra. Where judicial review is not precluded, and where matters are not subject to de novo or plenary review, different standards will be applied that relate to the nature of the matter being reviewed: 1. Facially Legitimate and Bona Fide--Kleindienst v. Mandel, 408 U.S. 753 (1972); Fiallo v. Bell, 430 U.S. 787 (1977) [regarding questions of admission]; American Academy of Religion v. Napolitano, 573 F.3d 115, 125­27 (2d Cir. 2009) [in the denial of a visa, the facially legitimate standard is satisfied if the consular officer: (1) identifies a properly construed statute that provides for exclusion; and (2) knows or has reason to know that the applicant has done something fitting within the proscribed category; the bona fide standard is satisfied in the absence of an allegation of bad faith]; Noh v. INS, 248 F.3d 938 (9th Cir. 2001) [applying standard to the decision to revoke a visa]; Miller v. Christopher, 96 F.3d 1467, 1470­71 (D.C. Cir. 1996) [applying standard to citizenship claim]; Ablang v. Reno, 52 F.3d 801 (9th Cir. 1995) [same]; Price v. INS, 962 F.2d 836 (9th Cir. 1992) [applying standard to validate questions on naturalization application]; Garcia-Mir v. Smith, 766 F.2d 1478 (11th Cir. 1985) [applying standard in reviewing parole determinations]. But see Jean v. Nelson, 472 U.S. 846 (1985) [adopting less deferential standard in matters concerning parole based on race or national origin]; Marczak v. Greene, 971 F.2d 510, 515­17 (10th Cir. 1992) [arguing that there is no practical difference between facially legitimate and abuse of discretion standards]. The "facially legitimate and bona fide" standard has also been used in the context of an Equal Protection challenge. Fiallo v. Bell, supra. In this context, some courts have equated the "facially legitimate and bona fide standard" with rational basis review. Ablang v. Reno, 52 F.3d 801, 804 (9th Cir. 1995); Wauchope v. DOS, 985 F.2d 1407, 1414 n.3 (9th Cir. 1993). Manifestly Contrary to Law--INA §242(b)(4) now applies a "manifestly contrary to law" standard in reviewing a decision as to a person's eligibility for admission and the AG's discretionary decision whether to grant asylum. A decision regarding eligibility for admission is conclusive unless manifestly contrary to law. INA §242(b)(4)(C). The discretionary judgment of the AG in asylum cases is conclusive unless manifestly contrary to law and an abuse of discretion. INA §242(b)(4)(D). Huang v. INS, 436 F.3d 89, 96­102 (2d Cir. 2006) [IJ acted manifestly contrary to law in denying asylum as a matter of discretion where he failed to examine the totality of the circumstances and focused solely on the embellishment of peripheral testimony and the applicant's payment to a smuggler]. Abuse of Discretion Test 3.a. Wong Wing Hang v. INS, 360 F.2d 715, 718­19 (2d Cir. 1966) states classic test ["[i]f it was made without a rational explanation, inexplicably departed from established procedures, or rested on an impermissible basis such as an invidious discrimination against a particular race or group or other considerations that Congress could not have intended to make relevant"]. When determining whether the agency's action was arbitrary, irrational or not in accordance with law, the courts "engage in a substantial inquiry ... a thorough probing, in-depth review of [the] discretionary agency action." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); Diaz-Resendez v. INS, 960 F.2d 493, 495 (5th Cir. 1992) [same]. Abuse of discretion can occur by courts "neglecting to consider a significant factor that appropriately bears on the discretionary decision, by attaching weight to a factor that does not appropriately bear on the decision, or by assaying all the proper factors and no improper ones, but nonetheless making a clear judgmental error in weighing them." Henry v. INS, 74 F.3d 1, 4 (1st Cir. 1996) [rejecting abuse of discretion argument in AOS]. See also Twum v. INS, 411 F.3d 54 (2d Cir. 2005) [where IJ misconstrued in absentia motion to reopen as an ineffective assistance of counsel claim under Lozada rather than a claim that security guards barred his entry to the court, reversed and remanded]. The agency abuses its discretion if it does not make a careful and individualized determination, Stankovic v. INS, 94 F.3d 1117 (7th Cir. 1996) [reversing BIA where legal reasoning has no applicability to facts of the case]; Babai v. INS, 985 F.2d 252, 255 (6th Cir. 1993), or fails to articulate reasons for its decision. RodriguezMatamoros v. INS, 86 F.3d 158, 161 (9th Cir. 1996) [asylum claim]; Tukhowinich v. INS, 64 F.3d 460 (9th Cir. 1995).

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Arbitrary and Capricious--An agency abuses its discretion when it acts "arbitrary and capricious." The Court has determined that an agency action is arbitrary and capricious when "the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Departure from Prior Precedent--The agency also abuses its discretion when it inexplicably departs from prior precedent, departs from its own regulations, fails to consider all relevant factors, or considers irrelevant factors. Ahmed v. Mukasey, 548 F.3d 768, 771­72 (9th Cir. 2008) [DHS opposition to motion to reopen alone is insufficient basis to deny motion notwithstanding the fifth criteria under Verlarde because the BIA failed to provide a rationale for the fifth criteria]; Melnitsenko v. Mukasey, 517 F.3d 42, 48­52 (2d Cir. 2008) [BIA cannot deny a motion under VelardePacheco where petitioner meets all 5 criteria solely on the basis of DHS opposition]; Shardar v. Att'y Gen. of the U.S., 503 F.3d 308, 314­16 (3d Cir. 2007) [BIA's claim it did not have to follow unpublished decision missed the mark because "by reaching an exactly contrary decision on a materially indistinguishable set of facts, the Board acted arbitrarily"]; Galvez-Vergara v. Gonzales, 484 F.3d 798 (5th Cir. 2007) [reversing BIA in in absentia proceeding for failure to give any explanation for not following Matter of Grijalva where respondent argued exceptional circumstances due to ineffective assistance of counsel]; Singh v. DOJ, 461 F.3d 290, 295­97 (2d Cir. 2006) [failure of BIA to follow its regulation regarding acceptance of evidence concerning hardship that occurred after conditional residency is terminated was an abuse of discretion]; Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) [ICE abused its discretion in denying parole under INA §212(d)(5)(A) in part by ignoring evidence of detention's deleterious effect on petitioner's health]; Osei v. INS, 305 F.3d 1205 (10th Cir. 2002) [BIA reversed where it departed from its consistent interpretation of former 8 C.F.R. §3.2(c)(1), that a motion to reopen based on ineffective assistance of counsel was not required to show new evidence]; Virk v. INS, 295 F.3d 1055 (9th Cir. 2002) [reversing BIA denial of motion to reopen for §241(f) relief where it departed from former precedent and failed to consider all relevant factors and improperly considered an irrelevant factor]; Johnson v. Ashcroft, 286 F.3d 696 (3d Cir. 2002) [finding that the BIA inexplicably departed from Matter of Patel, 16 I&N Dec. 600, 601 (BIA 1978) regarding what an IJ may consider on remand; reversing BIA's decision that IJ did not have discretion to consider asylum after BIA reopened for CAT]. Lal v. INS, 255 F.3d 998, 1006­07 (9th Cir. 2001), amended on reh'g, 268 F.3d 1148 (9th Cir. 2001) [BIA interpretation adding new criteria to obtain asylum through past persecution flatly contradicts previous BIA decisions without a reasoned explanation for the departure]; Arrozal v. INS, 159 F.3d 429, 433­34 (9th Cir. 1998) [failure to consider all factors when it superficially mentions them in denial of motion to reopen for suspension]; Urbina-Osejo v. INS, 124 F.3d 1314, 1318­19 (9th Cir. 1997) [BIA failed to consider all relevant factors in denying suspension]; Urban v. INS, 123 F.3d 644 (7th Cir. 1997) [same]; Watkins v. INS, 63 F.3d 844, 850 (9th Cir. 1995) [reversing denial of motion to reopen for suspension for failing to consider all relevant factors and the cumulative effect of the factors and recognizing that INS abuses its discretion "no less by arriving at plausible decisions in an arbitrary fashion than by reaching unreasonable results"]; Rodriguez-Gutierrez v. INS, 59 F.3d 504 (5th Cir. 1995) [BIA failed to consider positive factors and mischaracterized negative ones]; Delmundo v. INS, 43 F.3d 436 (9th Cir. 1994) [reversing denial of §212(i) waiver for considering impermissible factors and failing to consider other factors]; Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir. 1994) [BIA abused discretion by changing its position without explanation as to the tolling period for §212(c)]; Yepes-Prado v. INS, 10 F.3d 1363, 1372 (9th Cir. 1993) [inexplicably departing from Edwards]; Braun v. INS, 992 F.2d 1016 (9th Cir. 1993) [considering irrelevant factor in denying §241(f)]; Espinoza v. INS, 991 F.2d 1294 (7th Cir. 1993) [denial of former §212(c) based on speculation unsupported by the record vacated]; Akinyemi v. INS, 969 F.2d 285 (7th Cir. 1992) [denial of §212(c) where BIA inexplicably departed from precedent and failed to consider positive equities]; Vargas v. INS, 938 F.2d 358 (2d Cir. 1991) [abuse of discretion by BIA to deny §212(c) applicants the right to file motions to reopen where agency's sole support is an inapplicable case, other BIA decisions are inconsistent, a regulation conflicts with the decision, and the decision has no logical foundation]; Lauvik v. INS, 910 F.2d 658 (9th Cir. 1990) [where denial of E-2 extension is based on "evidence so slight and so thoroughly outweighed by contrary evi-

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dence" it is an abuse of discretion]; Hall v. McLaughlin, 864 F.2d 868, 872 (D.C. Cir. 1989) [quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970), abuse where agency "glosses over or swerves from prior precedent"]; Kabongo v. INS, 837 F.2d 753, 756 (6th Cir. 1988) [abuse of discretion where court "has definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon the weighing of the relevant factors"]; Gonzalez-Batoon v. INS, 791 F.2d 681, 685 (9th Cir. 1986) (en banc) [BIA abused its discretion when it gave no reason for deviating from past practice]; Achacoso-Sanchez v. INS, 779 F.2d 1260 (7th Cir. 1985) [applying Wong Wing standard]; Salehpour v. INS, 761 F.2d 1442 (9th Cir. 1985) [abuse of discretion where the agency's interpretation is inconsistent with its own regulations and is not reasonable or where it adds additional requirements not specified in regulations]; Fred 26 Importers, Inc. v. DHS, 445 F.Supp.2d 1174, 1178­79 (C.D. Cal. 2006) [reversing AAO denial of H-1B petition where it failed to address expert and other evidence that a human resource manager position in a small export/import company required duties which were specialized and complex and instead, asserted that a small company did not require specialized and complex duties]; The Button Depot, Inc. v. DHS, 386 F.Supp.2d 1140 (C.D. Cal. 2005) [reversing H-1B denial for accountant where DHS abused its discretion by failing to apply the relevant standards regarding an equivalent foreign degree, failing to consider evidence, and relying on unrelated factors]; Peppercorn, Inc. v. Ridge, No. 04-20667-Civ-Highsmith (S.D. Fla. May 10, 2005) [denying DHS motion for summary judgment where DHS denied H-1B petition for a management analyst after approving one with the same evaluation for another company]; Camarena v. Meissner, 78 F.Supp.2d 1044 (N.D. Cal. 1999) [INS abused its discretion in denying extension of family unity benefits by relying on information that was rebutted and shown to be false]; Bodeux v. INS, 668 F.Supp. 1452 (D. Kan. 1987) [same in H-1 context]; Israel v. INS, 785 F.2d 738 (9th Cir. 1986) [BIA reversed for abuse of discretion where it failed to follow its own precedent in marriage cases]; Babai v. INS, 985 F.2d 252 (6th Cir. 1993) [agency must consider all relevant factors]; Cerrillo-Perez v. INS, 809 F.2d 1419 (9th Cir. 1987) [same]; Unical Aviation, Inc. v. INS, 248 F.Supp.2d 931 (C.D. Cal. 2002) [reversing AAO denial of H-1B extension where company submitted sufficient evidence to show that position of senior market analyst required person with specialized study]; Louisiana Philharmonic Orchestra v. INS, 44 F.Supp.2d 800 (E.D. La. 1999) [where H-1B denied on unexplained change by AAO after approving other applications]; Singh v. Swan, 908 F.Supp. 634 (E.D. Wis. 1995) [BIA abused discretion in summarily dismissing appeal]; Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich. 1994) [incorrect application of regulations for priority worker of exceptional ability]; Grijalva v. Ilchert, 815 F.Supp. 328 (N.D. Cal. 1993) [application of frivolous standard inconsistent with INS policies]; Masonry Masters, Inc. v. Thornburgh, 742 F.Supp. 682 (D.D.C. 1990) [inconsistent adjudications on I-140 petitions for same position for 2 employees not entitled to deference]; Omni Packaging, Inc. v. INS, 733 F.Supp. 500 (D.P.R. 1990) [INS abused discretion where it failed to apply standards consistently in approving L-1 petitions and denying 3d preference petition]; National Collegiate Recreation Services v. Powell, Case No. 9:02cv02676 (D.S.C. Nov. 26, 2002), reported in 80 No. 7 Interpreter Releases 244­46 (Feb. 19, 2003) [revocation of J-1 program designation was arbitrary and capricious because DOS imposed the harshest penalty without basis and its fact finding was deficient]. But see Rust v. Sullivan, 111 S.Ct. 1759, 1768­69 (1991) [revised interpretation deserves deference where there is a reasoned analysis]; River Street Donuts, LLC v. Napolitano, 558 F.3d 111, 117­18 (1st Cir. 2009) [AAO did not abuse its discretion in declining to add depreciation to net income despite its change in position where the agency offered a reasonable explanation for the change]; Ajdin v. USCIS, 437 F.3d 261, 264­65 (2d Cir. 2006) [BIA did not abuse its discretion by failing to adhere to an unpublished decision]; AFL-CIO v. Dole, 923 F.2d 182, 186 (D.C. Cir. 1991) [no abuse of discretion where agency substantially changed its policy but provided a detailed and reasonable explanation]; Karapetian v. INS, 162 F.3d 933 (7th Cir. 1998) [different treatment of family members regarding asylum did not compel grant to family member denied asylum]; Q Data Consulting Inc. v. INS, 293 F.Supp.2d 25, 29­30 (D.D.C. 2003) [no abuse of discretion in denial of EB-1 managerial position when it approved an L-1A subsequent to the denial for the same managerial position]; Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La. Mar. 15, 2000) [service center's prior decisions are not binding on the AAO]; Matter of Burbano, 20 I&N Dec. 872, 873 (BIA 1994) ["[d]iffering decisions may be reached based on essentially identical facts"].

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3.d.

Failure to Exercise Discretion--It is an abuse of discretion to fail to exercise discretion. Accardi v. Shaughnessy, 347 U.S. 260 (1954). The abuse of discretion test, however, does not permit the Court to encroach upon INS's decisions in weighing various factors. London Typographers Inc. v. Sava, 628 F.Supp. 570, 577 (S.D.N.Y. 1986) [agency may prefer another interpretation of the statute]; INS v. Wang, 450 U.S. 139, 144 (1981); INS v. Rios-Pineda, 471 U.S. 444 (1985); INS v. Bagamasbad, 429 U.S. 24 (1976). See also Jay v. Boyd, 351 U.S. 345 (1956). Unfettered Discretion--Even where the agency's discretion is unfettered at the outset it may abuse its discretion. In INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996), the Court recognized: "[t]hough the agency's discretion is unfettered at the outset, if it announces and follows--by rule or by settled course of adjudication--a general policy by which its exercise of discretion will be governed, an irrational departure from the policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as `arbitrary, capricious, [or] an abuse of discretion' within the meaning of the Administrative Procedure Act, 5 U.S.C. §706(1)(A)." Extreme Hardship--Review of "extreme hardship" decisions (including both suspension of deportation and cancellation of removal cases) is restricted by §309(c)(4)(E) of AEDPA, which was enacted in April 1996 and INA §242(a)(2)(B)(i), which was enacted as part of IIRIRA in September 1996. See in this chapter ¶ IV.A.3 (p.1250), supra. Prior to AEDPA and IIRIRA, review of "extreme hardship" decisions in suspension cases, although narrow, was subject to scrutiny. Ordonez v. INS, 137 F.3d 1120 (9th Cir. 1998) [failure to properly evaluate fear of persecution in suspension]; Salameda v. INS, 70 F.3d 447 (7th Cir. 1995) [failure to consider community services]; Blanco v. INS, 68 F.3d 642 (2d Cir. 1995) [reversing BIA denial of motion to reopen for failure to consider violence in El Salvador]; Tukhowinich v. INS, 64 F.3d 460 (9th Cir. 1995) [BIA opinion did not articulate reasons for denial]; Biggs v. INS, 55 F.3d 1398, 1401­02 (9th Cir. 1995) [abuse of discretion to prevent applicant from fully developing record of medical hardship]; Turri v. INS, 997 F.2d 1306 (10th Cir. 1993) [effect of community service on extreme hardship]; Babai v. INS, 985 F.2d 252 (6th Cir. 1993) [reversing BIA where it failed to consider hardship to USC child if he remained in U.S.]; Hernandez-Patino v. INS, 831 F.2d 750, 752 (7th Cir. 1987). But see HernandezCordero v. INS, 819 F.2d 558, 563 (5th Cir. 1987) (en banc) ["[w]e are entitled to find that the BIA abused its discretion only in a case where the hardship is uniquely extreme, at or closely approaching the outer limits of the most severe hardship the alien could suffer and so severe that any reasonable person would necessarily conclude that the hardship is extreme"]. Motions to Reopen--Courts give great deference to the agency when making determinations on motions to reopen. INS v. Rios-Pineda, 471 U.S. 444 (1985) [agency can consider factors outside the statutes in determining motions to reopen without being arbitrary and capricious, such as the "flagrancy and nature" of immigration violations so long as they are legitimate concerns about the administration of immigration laws]. However, absent a clear statutory statement, regulations created by the Executive branch cannot bar judicial review. In Kucana v. Holder, 558 U.S. ___, 130 S.Ct. 827 (2010) the court held that denials of motions to reopen are subject to judicial review and that INA §242(a)(2)(B)'s proscription on judicial review does not extend to regulations created by the Executive Branch. (1) In INS v. Abudu, 485 U.S. 94 (1988), the Court articulated 3 grounds for denying a motion to reopen: (1) failure to make a prima facie case for the underlying substantive relief; (2) failure to explain under 8 C.F.R. §1003.2, 8 C.F.R. §103.5, 8 C.F.R. §1003.23, or in asylum, 8 C.F.R. §§208.17, 1208.17 why the movant did not file originally; (3) in the case of discretionary relief such as asylum and suspension, as distinguished from withholding, the agency exercises its discretion under Rios-Pineda irrespective of eligibility on the first 2 grounds. The latter 2 criteria are reviewed under an abuse of discretion test. INS v. Wang, 450 U.S. 139 (1981); Fesseha v. Ashcroft, 333 F.3d 13, 20­21 (1st Cir. 2003) [applying Abudu standards and finding no abuse of discretion for failure to establish a prima facie case of asylum]. The abuse of discretion standard has not been lessened by the codification of motions to reopen in IIRIRA. Fessehaye v. Gonzales, 414 F.3d 746, 752 and n.5 (7th Cir. 2005) [statutory recognition of motions to reopen under IIRIRA does not lessen the degree of deference owed the BIA].

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(2) Cases Finding Abuse of Discretion--Habchy v. Filip, 552 F.3d 911 (8th Cir. 2009) [BIA abused its discretion by failing to consider effect of Israeli-Lebanese conflict on applicant's claim that he is at risk because Hezbollah considers him an Israeli collaborator]; Ahmed v. Mukasey, 548 F.3d 768, 771­72 (9th Cir. 2008) [DHS opposition is insufficient basis to deny motion notwithstanding the fifth criteria under Verlarde]; Melnitsenko v. Mukasey, 517 F.3d 42, 48­52 (2d Cir. 2008) [BIA cannot deny a motion under VelardePacheco where petitioner meets all 5 criteria solely on the basis of DHS's opposition]; Mai v. Gonzales, 473 F.3d 162, 165­67 (5th Cir. 2007) [reversing BIA denial of motion for ineffective assistance despite BIA's claim that the lawyer made a strategic decision when he admitted 2 grounds of removal where one required a §212(c) waiver and the second a waiver under §240A because once §212(c) granted for the first ground §240A was unavailable for the second]; Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. 2006) [BIA abused its discretion where it denied motion based on an error of law in its interpretation that KS aggravated battery was an aggravated felony]; Norani v. Gonzales, 451 F.3d 292 (2d Cir. 2006) [BIA abused its discretion when it failed to consider motion by Iranian Jews for asylum/withholding/CAT based on changed circumstances and instead issued a 3 sentence order devoid of reasoning and denied the motion because applicants had not filed previously]; Bhasin v. Gonzales, 423 F.3d 977, 986 (9th Cir. 2005) [BIA improperly discounted affidavit of Indian mother in support of social group claim as selfserving]; Fessehaye v. Gonzales, 414 F.3d 746, 754­56 (7th Cir. 2005) [where applicant relied on her own affidavit to reopen for asylum, the BIA abused its discretion in not articulating why the evidence was insufficient in light of law permitting asylum to person who does not present corroborating evidence]; Zhao v. Gonzales, 404 F.3d 295, 304­06 (5th Cir. 2005) [BIA abused its discretion in refusing to reopen to admit the DOS International Religious Freedom Report and Country Report on China where both reports supported contention that Falun Gong are persecuted]; Movsisian v. Ashcroft, 395 F.3d 1095, 1097­98 (9th Cir. 2005) [BIA abused its discretion where it gave a one sentence decision (The motion to reopen is denied) that failed to articulate any reasoned basis for the denial]; Zhao v. DOJ, 265 F.3d 83, 95­97 (2d Cir. 2001) [BIA relied on cursory and speculative statements that simultaneously appeared to acknowledge that IJ determined that forced sterilization had occurred but refused to allow reopening to present proof regarding it]; Mickeviciute v. INS, 327 F.3d 1159 (10th Cir. 2003) [BIA failed to articulate which of the 3 Abudu grounds it relied on in denying motion]; Arrozal v. INS, 159 F.3d 429, 433­34 (9th Cir. 1998) [BIA superficially mentioned factors but failed to address them in suspension context]; Watkins v. INS, 63 F.3d 844 (9th Cir. 1995) [BIA failed to consider all factors and their cumulative effect in suspension]; Rodriguez-Gutierrez v. INS, 59 F.3d 504, 508­09 (5th Cir. 1995) [failure to consider positive factors and mischaracterized negative ones in AOS]; Dulane v. INS, 46 F.3d 988, 994­96 (10th Cir. 1995) [failure to consider all relevant factors in suspension]; Shin v. INS, 750 F.2d 122 (D.C. Cir. 1984); Osuchukwu v. INS, 744 F.2d 1136 (5th Cir. 1984); Yahkpua v. INS, 770 F.2d 1317 (5th Cir. 1985) [Rios extended to AOS]; Hernandez-Ortiz v. INS, 777 F.2d 509 (9th Cir. 1985) [there are limits to Rios-Pineda where the agency must grant relief such as INA §243(h) or where disqualifying equities written into regulations and statutes such as INA §208]; Mattis v. INS, 774 F.2d 965 (9th Cir. 1985) [Rios-Pineda may not be extended to include impermissible factors such as last minute marriages]. The question of whether a party has established a prima facie case is also subject to an abuse of discretion standard in the view of some circuits. Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991); M.A. v. INS, 899 F.2d 304, 307­10 (4th Cir. 1990) (en banc). (3) Procedural Problems on Review--For purposes of judicial review, all decisions on motions to reopen or reconsider must be consolidated with that order in the federal appeal. INA §242(b)(6), 8 U.S.C. §1252(b)(6). In Stone v. INS, 514 U.S. 386, 398­401, 405­06 (1995), the Supreme Court interpreted this section (under former INA §106) as not requiring tolling of the underlying time period for an appeal so that the finality of the removal order is not affected by the filing of a motion to reopen. Accord Kane v. Holder, 581 F.3d 231, 236­38 (5th Cir. 2009) [no jurisdiction to review IJ's failure to inform petitioner of eligibility for asylum when deficit was only raised in motion to reopen that was not appealed]; Tchuinga v. Gonzales, 454 F.3d 54, 60­61 (1st Cir. 2006) [no jurisdiction to review IJ's determination

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that asylum application was frivolous where finding was not appealed and respondent sought to raise it on appeal of denial of motion to reopen]; Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005) [grant of a motion to reopen because of changed circumstances in asylum addresses issues concerning future persecution and applicant's failure to appeal original order regarding past persecution could not be included in new appeal of denial of future persecution]; Membreno v. Gonzales, 425 F.3d 1227 (9th Cir. 2005) (en banc) [where petition for review was filed within 30 days of denial of motion to reopen but almost one year after the underlying removal order, no jurisdiction to review underlying order]; De Araujo v. Ashcroft, 399 F.3d 84, 88­89 (1st Cir. 2005) [review of designation as aggravated felon is barred because respondent did not appeal BIA's final decision and appeal of a denial of motion to reopen for §212(c) is also barred because INA §242(a)(2)(C) bars review of all claims of an aggravated felon]; Ahmed v. Ashcroft, 388 F.3d 247 (7th Cir. 2004) [motion to reconsider does not toll time on original BIA order; the court could only review the propriety of the denial of the request to reopen]; Boudaguian v. Ashcroft, 376 F.3d 825, 827 (8th Cir. 2004) [no jurisdiction to review BIA's original order because appeal was filed within 30 days of the motion to reopen, not the original order]; Dakane v. Att'y Gen. of the U.S., 399 F.3d 1269, 1272­73 n.3 (11th Cir. 2005) [30-day filing deadline for appeal is not tolled by filing a motion to reopen]; Zhang v. INS, 348 F.3d 289 (1st Cir. 2003) [appeal of credibility issues and IJ/BIA application of well-founded fear standard were untimely because the appeal notice was filed beyond 30 days and the filing of the motion to reopen did not stop time for appeal]; Raffington v. INS, 340 F.3d 720, 724 (8th Cir. 2003) [where respondent in motion to reopen never raised the impropriety of the stop-time rule and never appealed the underlying removal order, she could not now raise the issue in her appeal of the denial of her motion to reopen]; Nascimento v. INS, 274 F.3d 26, 27 (1st Cir. 2001) [court will not review underlying BIA decision where appellant only timely appealed denial of motion to reconsider]. But see Afanwi v. Mukasey, 526 F.3d 788, 792­93 (4th Cir. 2008) [Stone did not bar appeal because it does not require petitions for review of every order in all cases]. If respondent files a petition for review of the underlying order but does not file for review of a denied motion to reopen addressing the same issue, res judicata does not bar pursuing the same issue on appeal. Desta v. Ashcroft, 329 F.3d 1179, 1183­84 (10th Cir. 2003). (4) Motion to Reopen While Judicial Proceedings Are Pending--To file a motion to reopen while judicial proceedings are pending, the applicant must comply with 8 C.F.R. §1003.2(e), which requires a description of the pending civil proceeding. If the BIA reopens proceedings, the parties must notify the court as reopening usurps the court's jurisdiction by eliminating the final order which was the subject of the petition for review. Timbreza v. Gonzales, 410 F.3d 1082 (9th Cir. 2005).. The filing of a petition for review does not toll the time for filing a motion to reopen or reconsider. Dela Cruz v. Mukasey, 532 F.3d 946 (7th Cir. 2008) [petition for review did not toll the 90 days for a motion to reopen; subsequent motion to reconsider was also untimely]; Zhao Quan Chen v. Gonzales, 492 F.3d 153, 155 (2d Cir. 2007) [time for filing a motion to reopen was not tolled by filing a petition for review, nor can it be considered equitably tolled]; Randhawa v. Gonzales, 474 F.3d 918 (6th Cir. 2007) [motion to reconsider was untimely because petition for review of the BIA's original decision did not toll the time for filing the motion to reconsider]. (5) Failure to Grant Equitable Tolling Claim May Be Abuse of Discretion--In SocopGonzalez v. INS, 272 F.3d 1176, 1187­97 (9th Cir. 2001) (en banc) the BIA abused its discretion in failing to reopen and recognize equitable tolling as a result of misinformation provided to an AOS applicant that he should withdraw his asylum appeal and file AOS with INS. See also e.g., Pervaiz v. Gonzales, 405 F.3d 488 (7th Cir. 2005) [180-day deadline for in absentia motions to reopen, INA §240(b)(5)(C)(ii), is "merely a statute of limitations and is therefore subject to equitable tolling" based on a claim of ineffective assistance]; Albillo-De Leon v. Gonzales, 410 F.3d 1090 (9th Cir. 2005) [where respondent was defrauded by person who posed as a lawyer, the time for filing a motion to reopen under NACARA §203(c) and 8 C.F.R. §1003.43(e)(1) was tolled until date that new attorney discovered motion was not filed].

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(6) Judicial Review--In Kucana v. Holder, 558 U.S. ___, 130 S.Ct. 827 (2010) the court held that denials of motions to reopen are subject to judicial review and that INA §242(a)(2)(B)'s proscription on judicial review does not extend to regulations created by the Executive Branch absent a clear statutory statement. 3.h. Motions to Reconsider--Appeal of a motion to reconsider is not barred by failure to appeal the underlying order. Narine v. Holder, 559 F.3d 246 (4th Cir. 2009) [BIA abused its discretion in denying motion to reconsider regarding petitioner's waiver of appeal rights after receiving VD]; Esenwah v. Ashcroft, 378 F.3d 763, 764­66 (8th Cir. 2004) [rejecting DHS argument that failure to appeal initial decision forecloses review of a motion to reconsider because the motion to reconsider raises the same issues as the underlying appeal]. Motions to Remand--Ahmed v. Mukasey, 519 F.3d 579 (6th Cir. 2008) [BIA failure to consider or address documentation indicating AOS was filed before his 21st birthday was abuse of discretion]; Ubau-Marenco v. INS, 67 F.3d 750 (9th Cir. 1995) [BIA abused its discretion where it refused to remand in light of new asylum facts] overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc); Thomas v. INS, 976 F.2d 786, 789 (1st Cir. 1992) [same abuse of discretion standard as applied to motions to reopen]. Review of Other Agency Actions (1) Voluntary Departure--Judicial review of discretionary decisions concerning VD is restricted by INA §240B(f) and may also be restricted by INA §242(a)(2)(B)(i) and (ii), although INA §242(a)(2)(D) provides for continuing review for questions of law and constitutional questions. Prior to INA §240B(f), discretionary decisions on VD were reviewed for abuse of discretion. Campos-Granillo v. INS, 12 F.3d 849 (9th Cir. 1993) [abuse of discretion where IJ failed to weigh positive factors]; Parcham v. INS, 769 F.2d 1001, 1003 (4th Cir. 1985); Carnejo-Molina v. INS, 649 F.2d 1145, 1151 (5th Cir. 1981); Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir. 1979); Fernandez-Gonzalez v. INS, 347 F.2d 737, 740 (7th Cir. 1965); Sibanda v. District Director, INS, 881 F.Supp. 1494 (D. Col. 1995) [reversing DD refusal to grant extension of VD]. (2) Review of Denial of Stay by DHS or BIA--Judicial review of a DHS official's discretionary denial of a stay of removal is prohibited by INA §242(g), although questions of law and constitutional questions may still be reviewed by virtue of INA §242(a)(2)(D). Prior to INA §242(g), decisions regarding a stay of deportation were reviewed for abuse of discretion. Anderson v. McElroy, 953 F.2d 803 (2d Cir. 1992) [BIA abused its discretion when it refused to stay proceedings pending consideration of motion to reopen for §212(c)]; Blancada v. Turnage, 891 F.2d 688 (9th Cir. 1989) [abuse of discretion to deny stay where applicant establishes nonfrivolous legal issue not yet decided by circuit court or the Supreme Court]; Castro-Carvache v. INS, 911 F.Supp. 843 (E.D. Pa. 1995) [in habeas, reversing DD denial of stay where motion to reopen filed with BIA based on ineffective assistance]; Villegas-Ulloa v. Radcliffe, 902 F.Supp. 1196 (D. Hawaii 1995) [reversing DD for failing to grant a stay pending motion to reopen where he did not consider ineffective assistance, hardship to children, or that she did not consent to a telephonic hearing deciding the merits of her deportation case]; Suarez-Rodriguez v. Epperson, 878 F.Supp. 61 (E.D. La. 1994) [reversing DD denial of motion to stay that he perfunctorily addressed even though it would take 2 years to decide motion to reopen]; Butros v. INS, 804 F.Supp. 1336 (D. Or. 1991) [reversing denial of stay by BIA pending motion to reopen where its decision was conclusory, but affirming DD denial where person asserted right to stay pending decision on legal malpractice and disciplinary proceedings]; Anyanwu v. INS, 645 F.Supp. 266 (D.N.J. 1986) [abuse of discretion to deny stay to person who sought to reopen for asylum even where alien waited until last minute to file asylum]. But see Garay v. Slattery, 23 F.3d 744 (2d Cir. 1994) [no district court jurisdiction to review IJ denial of stay; only DD denial]; Bal v. Moyer, 883 F.2d 45 (7th Cir. 1989) [applying Achacoso-Sanchez in upholding denial of stay]; Khalaj v. Cole, 46 F.3d 828 (8th Cir. 1995) [DD and BIA did not abuse discretion]; Moore v. District Director, 956 F.Supp. 878, 882 (D. Neb. 1997) [DD did not abuse discretion in denying stay where applicant barred from relief of AOS].

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(3) Asylum (Discretion to Grant/Deny)--The AG's discretionary decision to grant or deny relief under INA §208(a) "shall be conclusive unless manifestly contrary to law and an abuse of discretion." INA §242(b)(4)(D). Huang v. INS, 436 F.3d 89, 96­102 (2d Cir. 2006) [IJ acted manifestly contrary to law in denying asylum as a matter of discretion where he failed to examine the totality of the circumstances and focused solely on the embellishment of peripheral testimony and the applicant's payment to a smuggler]. (4) Review of IV / NIV Denials (a) IV Petition Denials--Q Data Consulting Inc. v. INS, 293 F.Supp.2d 25 (D.D.C. 2003) [where former position as Senior Software Consultant was only 60 to 65% managerial and where prospective position as Team Manager of 5 to 14 employees was not primarily managerial, INS did not abuse its discretion in denying EB-1 even if it had previously granted L-1A petitions]; Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich. 1994) [reversing denial of first preference petition]; Gipson v. INS, 284 F.3d 913 (8th Cir. 2002) [upholding denial of I-130 where husband submitted many different identities and INS claimed fraud]. (b) NIV Petition Denials--Lauvik v. INS, 910 F.2d 658 (9th Cir. 1990); Fred 26 Importers, Inc. v. DHS, 445 F.Supp.2d 1174, 1178­79 (C.D. Cal. 2006)[jurisdiction under APA, 5 U.S.C. §706(2)(A), to review AAO denial of H-1B]; The Button Depot, Inc. v. DHS, 386 F.Supp.2d 1140 (C.D. Cal. 2005) [reversing H-1B denial for accountant where DHS abused its discretion by failing to apply the relevant standards regarding an equivalent foreign degree, by failing to consider evidence, and by relying on unrelated factors]; Louisiana Philharmonic Orchestra v. INS, 44 F.Supp.2d 800 (E.D. La. 1999); [H-1B for musician]; Hird/Blaker v. Sava, 712 F.Supp. 1095 (S.D.N.Y. 1989), final judgment, 764 F.Supp. 872 (S.D.N.Y. 1991); London Typographers, Inc. v. Sava, 628 F.Supp. 570 (S.D.N.Y. 1986). (c) NIV Revocations--Calexico Warehouse, Inc. v. Neufeld, 259 F.Supp.2d 1067, 1075­80 (S.D. Cal. 2002) [failure to provide Service with company's stock ledger, organizational chart, and evidence of managerial/executive duties was sufficient under the abuse of discretion standard to affirm revocation]. But see Chung Hak Hong v. USCIS, 662 F.Supp.2d 1195 (C.D. Cal. 2009) [not an abuse of discretion to revoke I-140 petition based upon prior lawyer's conviction for fraud in other cases where employer's new counsel failed to respond to NOID and provide proof of validity of LC and company]. (5) Review of Discretionary Waivers (a) Under IIRIRA, judicial review of the denial of a discretionary waiver may be precluded. INA §212(h) ["[n]o court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection"]; INA §212(i)(2) ["[n]o court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under paragraph (i)"]; INA §212(a)(9)(B)(v) ["[n]o court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under this clause"]; INA §212(a)(2)(B)(i) and (ii) ["no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245, or ... any other decision or action of the Attorney General the authority for which is specified under this title to be in the discretion of the Attorney General]. See also in this chapter, generally, Part I (p.1207), supra. However, the nondiscretionary aspects of the decision may be reviewed. Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003); Medina-Morales v. Ashcroft, 371 F.3d 520, 531­32 (9th Cir. 2004). (b) Prior to IIRIRA, courts reviewed denials of discretionary waivers for abuse of discretion. Virk v. INS, 295 F.3d 1055 (9th Cir. 2002) [reversing BIA denial of motion to reopen for §241(f) relief where it departed from former precedent and failed to consider all relevant factors and improperly considered an irrelevant factor]; Arrozal v. INS, 159 F.3d 429, 433­34 (9th Cir. 1998) [reversing denial of motion to reopen for suspension where BIA only superficially mentioned equities]; Urban v. INS, 123

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F.3d 644 (7th Cir. 1997) [reversing denial of suspension]; Salameda v. INS, 70 F.3d 447 (7th Cir. 1995) [same]; Blanco v. INS, 68 F.3d 642 (2d Cir. 1995) [reversing denial of motion to reopen for suspension]; Tukhowinich v. INS, 64 F.3d 460 (9th Cir. 1995) [reversing denial of suspension]; Watkins v. INS, 63 F.3d 844 (9th Cir. 1995) [reversing denial of motion to reopen for suspension]; Rodriguez-Gutierrez v. INS, 59 F.3d 504, 508­09 [reversing denial of motion to reopen for AOS]; Delmundo v. INS, 43 F.3d 436 (9th Cir. 1994) [reversing §212(i) denial]; Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir. 1993) [reversing §212(c) denial]; Cortes-Castillo v. INS, 997 F.2d 1199 (7th Cir. 1993) [reversing §212(c) denial where BIA "fails to weigh important factors or neglects to state its reasons for denying relief"]; Braun v. INS, 992 F.2d 1016 (9th Cir. 1993) [reversing denial of §241(f)]; Espinoza v. INS, 991 F.2d 1294 (7th Cir. 1993) [vacating denial of §212(c) based on speculation unsupported by the record]; Babai v. INS, 985 F.2d 252 (6th Cir. 1993) [reversing denial of suspension]; Akinyemi v. INS, 969 F.2d 285 (7th Cir. 1992) [reversing §212(c) denial for failure to consider all factors]; Diaz-Resendez v. INS, 960 F.2d 493 (5th Cir. 1992) [same]; Vergara-Molina v. INS, 956 F.2d 682 (7th Cir. 1992) [denial of §212(c) reviewed under arbitrary, capricious and abuse of discretion]; Hazzard v. INS, 951 F.2d 435, 438 (1st Cir. 1991) [same]; McLean v. INS, 901 F.2d 204 (1st Cir. 1990) [same]. (6) Review of Denial of Employment Authorization--Grijalva v. Ilchert, 815 F.Supp. 328 (N.D. Cal. 1993); Gomez-Arauz v. McNary, 746 F.Supp. 1071, 1073 (W.D. Okla. 1990). (7) Review of Bond (a) Under IIRIRA, judicial review of discretionary judgments regarding bond under INA §236 are not subject to judicial review. INA §236(e). However, review of constitutional and statutory claims is not precluded. Demore v. Kim, 538 U.S. 510 (2003). But if the habeas action requires review of the removal order when deciding to grant bond, at least one court has determined that such review is precluded by REAL ID. Deljevic v. Baker, 463 F.Supp.2d 699 (E.D. Mich. 2006) [no habeas jurisdiction to review detention where there is final order of removal and detention is challenged on ground that final order was improper]. (b) Prior to IIRIRA, bond determinations were reviewed for abuse of discretion. Shirkhani v. Greene, 790 F.Supp. 1065 (D. Colo. 1992) [ordering petitioner's release notwithstanding final order]. (8) Review of Adjustment of Status (a) Judicial review of the denial of AOS is restricted under INA §242(a)(2)(B)(i). Nondiscretionary aspects of the exercise of discretion are subject to review, and the denial will be reversed if the decision is "contrary to law." Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003); Medina-Morales v. Ashcroft, 371 F.3d 520, 531­32 (9th Cir. 2004). See in this chapter ¶ IV.A.3.g (p.1260), supra. (b) Prior to IIRIRA, denial of AOS was reviewed for abuse of discretion. Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) [reversing where INS denied validity of JRAD in AOS and failed to consider other equities]. (9) Review of Family Unity Benefits--Camarena v. Meissner, 78 F.Supp.2d 1044 (N.D. Cal. 1999) [INS abused its discretion in denying extension of family unity benefits by relying on information that was rebutted and shown to be demonstrably false]. (10) Review of License Revocation--National Collegiate Recreation Services v. Powell, Case No. 9:02cv02676 (D.S.C. Nov. 26, 2002), reported in 80 No. 7 Interpreter Releases 244­ 46 (Feb. 19, 2003) [revocation of American Hospitality Academy's J-1 program designation was arbitrary and capricious because DOS imposed the harshest penalty without basis and its fact finding was deficient].

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4.

Substantial-Evidence Test 4.a. Statutory Review of Removal Order--The substantial-evidence test is applicable by statute to review removal decisions. INA §242(b)(4)(B), 8 U.S.C. §1252(b)(4)(B). King v. Holder, 570 F.3d 785, 787­88 (6th Cir. 2009) [upholding marriage fraud finding under substantial evidence]; Kadia v. Holder, 557 F.3d 464 (7th Cir. 2009) [BIA's decision lacked reasoned basis where its statement that it would not address IJ's adverse credibility determination could not be squared with its finding that there was no persecution]; Santana-Albarran v. Ashcroft, 393 F.3d 699, 705­ 06 (6th Cir. 2005) [upholding denial of cancellation for failure to establish 10-years physical presence where respondent submitted no contemporaneously filed tax returns as proof]; Dia v. Ashcroft, 353 F.3d 228, 248­61 (3d Cir. 2003) (en banc) [§242(b)(4)(B) codified Elias-Zacarias maintaining the substantial evidence standard; reversing IJ credibility finding]; Fahim v. Att'y Gen. of the U.S., 278 F.3d 1216, 1218 (11th Cir. 2002) [affirming BIA denial of withholding and CAT following Elias-Zacarias and INA §§242(b)(4)(A)­(B)]; Dashto v. INS, 59 F.3d 697, 701­ 02 (7th Cir. 1995) [reversing deportation order based on clerk of court's certified statement]; Murphy v. INS, 54 F.3d 605 (9th Cir. 1995) [reversing deportation order]; Pinto-Vidal v. Att'y Gen. of the U.S., 680 F.Supp. 861 (S.D. Tex. 1987). The "substantial-evidence test" requires substantial evidence on the record as a whole to support the particular finding. The scope of substantial evidence when reviewing whether the government has established clear and convincing evidence under Woodby is at issue. Compare Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004) (en banc) [relying on highly deferential view of substantial evidence test, the court affirmed the use of a City Court of Atlanta document containing several ambiguities to establish deportability for a firearms offense by clear and convincing evidence because the court under the substantial-evidence test "must affirm the agency's decision unless there is no reasonable basis for that decision"] with Francis v. Gonzales, 442 F.3d 131, 138­39 (2d Cir. 2006) [joining the Sixth and Ninth Circuits, the substantial evidence test requires reversal where the government did not establish deportability by clear and convincing evidence (i.e., "any rational trier of fact would be compelled to conclude that the proof did not rise to the level of clear and convincing evidence") and not as the 11th Cir. found that reversible occurs only where there is no reasonable basis for the decision] and Castaneda-Castillo v. Gonzales, 488 F.3d 17, 22­26 (1st Cir. 2007) (en banc) [reversing adverse credibility determination and noting that 8 U.S.C. §1252(b)(4)(B) requiring reversal only if evidence "compels" it reflects a "gloss by the Supreme Court" and does not "eliminate[] the conventional requirement that an administrative agency's explanation be rational"]. But see also Bigler v. Att'y Gen. of the U.S., 451 F.3d 728, 732­33 (11th Cir. 2006) [substantial evidence test used to establish that the government presented clear and convincing evidence of abandonment of LPR status]. Criteria--The substantial-evidence test traditionally required that the agency rely on more than a "scintilla" of evidence and that it must be "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). See also Richardson v. Perales, 402 U.S. 389, 401 (1971); IbarraFlores v. Gonzales, 439 F.3d 614, 618 (9th Cir. 2006) [reviewing for substantial evidence IJ's factual determination that respondent was ineligible for cancellation because during 10-year period he was given VD]; Ding v. Ashcroft, 387 F.3d 1131, 1136 (9th Cir. 2004) [IJ's credibility finding not supported by substantial evidence, as it was based on speculation, conjecture, and an inappropriate legal standard]; Alvarado-Carillo v. INS, 251 F.3d 44, 49 (2d Cir. 2001) [reversing BIA denial of asylum, noting that more than a mere scintilla of evidence was necessary]. In Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1961), the court defined the test further to mean that the evidence must be substantial after taking into account "whatever in the record detracts from its weight." In Palavra v. INS, 287 F.3d 690 (8th Cir. 2002) the court relied on the standard in Universal Camera and SEC v. Chenery Corp., 318 U.S. 80 (1943) and reversed the finding of removal for failure to consider evidence in the record regarding citizenship in a third country. The substantial-evidence standard in asylum, withholding, and CAT allows reversal only where the reviewing court finds that the evidence not only supports a contrary conclusion, "but compels it." INS v. Elias-Zacarias, 112 S.Ct. 812, 815 n.1 (1992). The Elias-Zacarias standard was written into the INA by IIRIRA §306(a), INA §242(b)(4)(B) ["[t]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to

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conclude to the contrary"]. For case citations, see Chapter 4, ¶¶ XII.C.4.h (p.658), 4.i (p.661), and 4.j (p.666), supra. See also Kazarian v. USCIS, 580 F.3d 1030, 1033 (9th Cir. 2009) [applying the "compel" standard in upholding denial of EB-1 petition]. 4.c. Review of Factual Determinations and Nondiscretionary Grants--This less deferential substantial-evidence test applies to review of factual evidence considered by an IJ. Kadia v. Holder, 557 F.3d 464 (7th Cir. 2009) [BIA decision lacked reasoned basis where its statement that it would not address IJ's adverse credibility finding could not be squared with its finding of no persecution]; Hassen v. Mukasey, 534 F.3d 927 (8th Cir. 2008) [IJ denial of removal of CR status was supported by substantial evidence where, despite a 10-year marriage, the majority of the couple's time was spent apart]; Fang Huang v. Mukasey, 523 F.3d 640, 648­50 (6th Cir. 2008) [upholding IJ determination under substantial evidence standard that marriage had been entered into for purpose of procuring immigration benefit under 8 U.S.C. §1186a(b)(1)(A)(I)]; Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir. 2006) [reviewing for substantial evidence IJ's factual determination that respondent was ineligible for cancellation because during 10-year period he was given VD]; Cheema v. Ashcroft, 383 F.3d 848, 856­59 (9th Cir. 2004) [substantial evidence did not support BIA's conclusion that wife engaged in terrorist activities with Sikh militants, but did support conclusion against husband]; Uwase v. Ashcroft, 349 F.3d 1039 (7th Cir. 2003) [reversing IJ determination that was not based on substantial evidence and where undue weight was given to lack of corroborating testimony]; Qui v. Ashcroft, 329 F.3d 140 (2d Cir. 2003) [denial of asylum reversed where BIA confused vague testimony with testimony that lacked detail, failed to support its findings by substantial evidence and failed to consider key elements in the record]; Lukwago v. Ashcroft, 329 F.3d 157, 180 (3d Cir. 2003) [reversing BIA determination of no factual basis for future persecution claim of child soldier who escaped guerrillas in Uganda because he is in no greater danger than general population]; Georgis v. Ashcroft, 328 F.3d 962, 967­70 (7th Cir. 2003) [denial of asylum reversed under Elias-Zacarias where minor inconsistencies are easily resolved by other facts in evidence and explained by improperly excluded evidence]; He v. Ashcroft, 328 F.3d 593 (9th Cir. 2003) [reversing BIA adverse credibility determination under substantial evidence]; Palavra v. INS, 287 F.3d 690 (8th Cir. 2002) [reversing BIA denial of Bosnian asylum claim where BIA determined respondents were Croatian without considering all evidence]; Begzatowski v. INS, 278 F.3d 665, 668­69 (7th Cir. 2002) [reversing BIA denial of asylum without reference to Elias-Zacarias and by reciting more lenient substantial evidence standard]; Senathirajah v. INS, 157 F.3d 210, 216­21 (3d Cir. 1998) [reversing denial of asylum where lack of credibility finding was not supported by the record]; Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998) [IJ failed to address corroborative documentary evidence that supported claim for asylum]; Stoyanov v. INS, 149 F.3d 1226 (9th Cir. 1998) [BIA reversed where it relied in part on a factual error in denying asylum]; Ardestani v. DOJ, 904 F.2d 1505 (11th Cir.), aff'd on other grounds, 112 S.Ct. 515 (1991). The less deferential substantial-evidence test also applies to former INA §243(h) claims, Melendez v. DOJ, 926 F.2d 211, 216­19 (2d Cir. 1991); Vilorio-Lopez v. INS, 852 F.2d 1137 (9th Cir. 1988) [substantialevidence test to review IJ credibility determination in asylum and §243(h)]; Chavarria v. DOJ, 722 F.2d 666 (11th Cir. 1984); Del Valle v. INS, 776 F.2d 1407 (9th Cir. 1985), to factual determinations concerning asylum under INA §208, Lorisme v. INS, 129 F.3d 1441 (11th Cir. 1997); Kapcia v. INS, 944 F.2d 702, 707 (10th Cir. 1991); Melendez, supra; ZamoraMorel v. INS, 905 F.2d 833, 837­38 (5th Cir. 1990); Zalega v. INS, 916 F.2d 1257, 1259 (7th Cir. 1990); Novoa-Umania v. INS, 896 F.2d 1 (1st Cir. 1990); Perlera-Escobar v. EOIR, 894 F.2d 1292, 1296 (11th Cir. 1990); Carvajal-Munoz v. INS, 743 F.2d 562 (7th Cir. 1984); Bolanos-Hernandez v. INS, 749 F.2d 1316 (9th Cir. 1984); Rasool v. INS, 758 F.Supp. 188 (S.D.N.Y. 1991); Sarkis v. Nelson, 585 F.Supp. 235 (E.D.N.Y. 1984), and the determination of statutory eligibility. Dulane v. INS, 46 F.3d 988, 996­99 (10th Cir. 1995) [reversing asylum denial based on erroneous view that applicant needed to establish nationality]; CorderoTrejo v. INS, 40 F.3d 482 (1st Cir. 1994) [reversing denial of asylum based on negative credibility finding unsupported by the record]; Shirazi-Parsa v. INS, 14 F.3d 1424 (9th Cir. 1994) [reversing denial of eligibility for asylum because no substantial evidence] overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc); Gebremichael v. INS, 10 F.3d 28, 34 n.17 (1st Cir. 1993) [reversing BIA finding of ineligibility for asylum in denial of motion to reopen].

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It is also used to review factual determinations upon which the agency exercises its discretion in other contexts. Khodagholian v. Ashcroft, 335 F.3d 1003 (9th Cir. 2003) [IJ reversed under substantial evidence where LPR, who made 3 trips out of U.S. and the last trip exceeded one year, did not abandon his residency]; Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003) [upholding IJ decision that LPR abandoned residency on substantial evidence]; Vera-Villegas v. INS, 330 F.3d 1222, 1225 (9th Cir. 2003) [in suspension context, IJ's finding that applicant failed to establish 7 years continuous physical presence was supported by speculation and conjecture, not substantial evidence]; Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000) [affirming exclusion on reason to believe charge]. Rodriguez-Barajas v. INS, 992 F.2d 94, 97 (7th Cir. 1993) [registry]; Martinez v. INS, 970 F.2d 973 (1st Cir. 1992) [§212(c)]; Diaz-Resendez v. INS, 960 F.2d 493, 495 (5th Cir. 1992) [§212(c)]; Jarecha v. INS, 417 F.2d 220 (5th Cir. 1969). It is also applied to review the factual basis to determine statutory eligibility for a benefit. Braun v. INS, 992 F.2d 1016 (9th Cir. 1993) [reversing BIA determination of ineligibility for §241(f) relief because respondent committed bigamy]; RiveraZurita v. INS, 946 F.2d 118, 120 (10th Cir. 1991). 4.d. Review of Decisions Regarding Corroboration--The AG's decision to require corroboration in asylum or other relief may only be reversed if "a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable." INA §242(b)(4), 8 U.S.C. §1252(b)(4) (REAL ID Act §101(e)). Although the IJ's corroboration standards set forth in REAL ID are effective only for cases filed on or after May 11, 2005, the federal review provision under INA §242(b)(4) is effective for all final orders concerning asylum, withholding, and others form of relief issued before, on or after May 11, 2005. REAL ID Act §101(h)(3), 119 Stat. at 305­06; Hor v. Gonzales, 421 F.3d 497, 500­01 (7th Cir. 2005) [reversing IJ's corroboration findings because "All that this (new provision) means is that an immigration judge's determination ... is entitled to reasonable deference (but that) the precondition to deference is that the immigration judge explain (unless it is obvious) why he thinks corroborating evidence, if it existed, would have been available to the alien"]. Accord, Zhang v. Gonzales, 434 F.3d 993, 998­99 (7th Cir. 2006) [quoting Hor and reversing IJ's demand for corroboration]. But see Chen v. Gonzales, 434 F.3d 212, 217­20 (3d Cir. 2005) [post­REAL ID, upholding denial of asylum even where the IJ did not make a valid credibility assessment because even a credible applicant may be required to produce corroborative evidence and respondent failed to do so]; Zheng v. Gonzales, 417 F.3d 379, 383 n.2 (3d Cir. 2005) [IJ's requirement to corroborate what may be speculative records is subject to the "compelling" review standard which is "effective immediately" including pre­May 11, 2005 cases]. However, the standard may not apply to motions to reopen before the BIA because it applies only to review of a decision by the "trier of fact" (the IJ, not the BIA) and does not, by its terms, apply to the provision on motions to reopen at INA §240(c)(7), 8 U.S.C. §1229a(c)(7). Fessehaye v. Gonzales, 414 F.3d 746, 752­53 (7th Cir. 2005). Review of Factual Finding in Suspension/Cancellation--Although the grant of suspension in the exercise of discretion is subject to abuse of discretion standard, Saldana v. INS, 762 F.2d 824 (9th Cir. 1985); Sanchez v. INS, 755 F.2d 1158 (5th Cir. 1985), review of the BIA's findings of fact as to statutory eligibility is conducted under substantial-evidence. Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir. 2006) [reviewing for substantial evidence, IJ's factual determination that respondent was ineligible for cancellation because during 10-year period he was given VD]; Vera-Villegas v. INS, 330 F.3d 1222, 1225 (9th Cir. 2003) [in suspension context, IJ's finding that applicant failed to establish 7 years of continuous physical presence was supported by speculation and conjecture, not substantial evidence]; Hernandez-Luis v. INS, 869 F.2d 496 (9th Cir. 1989) [factual determinations concerning eligibility for suspension reviewed under substantial-evidence]. Revocation of Visas and Visa Denials--Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984) [revocation]; Konishi v. INS, 661 F.2d 818 (9th Cir. 1981) [denial]; Omni Packaging, Inc. v. INS, 733 F.Supp. 500 (D.P.R. 1990) [applying substantialevidence to facts and abuse of discretion to judgment in denial of EB-3]; Full Gospel Portland Church v. Thornburgh, 730 F.Supp. 441, 445 (D.D.C. 1988) [revocation]. But see Knoetze v. DOS, 634 F.2d 207 (5th Cir. 1981) [applying abuse of discretion to decision to revoke visa].

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4.g.

Employer Sanctions Cases--Findings are subject to substantial evidence review. Maka v. INS, 904 F.2d 1351, 1355 (9th Cir. 1990), amended, 932 F.2d 1352 (9th Cir. 1991) [discussing test where ALJ and CAHO decisions differ]; Mester Mfg. Co. v. INS, 879 F.2d 561 (9th Cir. 1989); Garcia v. Secy. of Labor, 10 F.3d 276 (5th Cir. 1993) [pre­employer sanctions case where Sec. was reversed for fining farm contractor for employment of illegal workers under MSAWPA]. Rescission--Findings are subject to substantial evidence standard. Baria v. Reno, 94 F.3d 1335, 1340 (9th Cir. 1996), aff'd on other grounds, 180 F.3d 1111 (9th Cir. 1999). Registry--Manzo-Fontes v. INS, 53 F.3d 280, 282 (9th Cir. 1995). Good Moral Character--Review of factual determinations is subject to substantial-evidence test. Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002) [upholding BIA determination that conviction for conspiracy to possess illegal immigration documents with intent to defraud government demonstrates a lack of good moral character]. Terrorist Determination Under INA §212(a)(3)(B)--McAllister v. Att'y Gen. of the U.S., 444 F.3d 178 (3d Cir. 2006) [IJ/BIA finding that petitioner was removable for having engaged in terrorist activity under INA §237(a)(4)(B) reviewed for substantial evidence]; Cheema v. Ashcroft, 383 F.3d 848, 856­59 (9th Cir. 2004) [2 donations by wife to unspecified widows and orphans in India with no evidence linking it to specific group is not a terrorist activity and BIA reversed under substantial evidence standard. However, husband's fundraising did reach terrorist organizations and unfavorable inferences can be drawn from telephone calls to Sikh militants supporting BIA's findings]. AWO / Streamlined Opinions--Generally, courts of appeal will not review the BIA's decision to streamline, but rather the IJ's decision on the merits. Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003) [upholding IJ decision after AWO on substantial evidence review regarding decision finding LPR abandoned her residency]; Georgis v. Ashcroft, 328 F.3d 962 (7th Cir. 2003). However, courts have reviewed streamlining decisions or remanded cases when due process or other issues are implicated. Purveegiin v. Gonzales, 448 F.3d 684 (3d Cir. 2006) [court has jurisdiction to review decision by single Board member to AWO instead of referring it to a 3-member panel; where single Board member, contrary to 8 C.F.R. §1003.1(e)(5) reverses the IJ, instead of "affirming, modifying, or remanding" the case, he erred in not referring the matter to a 3-member panel]; Lanza v. Ashcroft, 389 F.3d 917, 924­32 (9th Cir. 2004 [where IJ denied asylum based on failure to file within one year and on the merits and the BIA AWO'ed, due process requires remand for clarification because the merits are reviewable but the one-year deadline is not]; Smriko v. Ashcroft, 387 F.3d 279, 288­97 (3d Cir. 2004) [where respondent raised question whether a refugee may be deported without first revoking refugee status, it was arbitrary and capricious for the BIA to AWO; the decision to streamline is subject to review and is not committed to agency discretion]; Zhu v. Ashcroft, 382 F.3d 521, 526­27 (5th Cir. 2004) [where IJ suggested multiple grounds for denying relief including an untimely filing of asylum which is not reviewable, BIA's use of AWO created a jurisdictional problem]; Haoud v. Ashcroft, 350 F.3d 201 (1st Cir. 2003) [BIA decision remanded where substantially similar nonprecedent BIA decision granted asylum in contrast to AWO for respondent. Also the decision gave no guidance as to whether it affirmed on nonreviewable one-year filing requirement or on reviewable merits determination]. But see Ekasinta v. Gonzales, 415 F.3d 1188, 1191­95 (10th Cir. 2005) [disagreeing with 9th Cir. in Lanza and finding no statutory or due process violation where AWO fails to state that it affirmed on discretionary or nondiscretionary grounds]; Kasnecovic v. Gonzales, 400 F.3d 812, 814­15 (9th Cir. 2005) [distinguishing Lanza and reviewing asylum rather than remanding because the posture of the case required the court to review the IJ's adverse credibility determination on other issues and it would have decided the asylum claim anyway].

4.h. 4.i. 4.j.

4.k.

4.l.

5.

Harmless Error Doctrine--Federal courts view the harmless error doctrine differently depending upon the circuit and the issue at stake. Compare Waldron v. INS, 17 F.3d 511 (2d Cir. 1994) [failure to follow regulations where fundamental right is not at issue is not reversible error per se]; Montilla v. INS, 926 F.2d 162 (2d Cir. 1991) [failure to follow regulation regarding counsel is reversible per se]; and Rios-Berrios v. INS, 776 F.2d 859 (9th Cir. 1985) [rejecting BIA decision in Santos applying harmless error doctrine to right to counsel issues] with Mullen-Cofee v. INS, 976 F.2d 1375, 1380 n.12 (11th Cir. 1992), amended on denial of reh'g, 986 F.2d 1364 (11th Cir.

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1993) [where IJ failed to follow regulations in not advising respondent of right to counsel, no redress absent substantial prejudice]; Avila-Murrieta v. INS, 762 F.2d 733 (9th Cir. 1985) [adopting harmless error rule where there was no showing that exclusion of parts of the record resulted in prejudice]; Li Wang v. INS, 872 F.2d 685 (5th Cir. 1989) [where agency erred in considering the original fraud as a basis to deny former §241(f) relief, court did not reverse because there was sufficient evidence to deny relief]. G. Law of the Case Doctrine--The law of the case doctrine provides that once a court has ruled on an issue, that decision should not be revisited and should generally be adhered to unless there is some cogent or compelling reason that militates otherwise. Johnson v. Holder, 564 F.3d 95 (2d Cir. 2009) [applying decision in the first appeal prohibiting petitioner from raising a claim that Wilson v. Gonzales, 471 F.3d 111 (2d Cir. 2006) did not bar §212(c) relief for a conviction after trial that occurred preAEDPA]. But see Aldana v. Del Monte Fresh Produce, 578 F.3d 1283, 1288­90 (11th Cir. 2009) [recognizing significant exceptions to law of the case doctrine in upholding dismissal on forum non conveniens of TVPA/ATCA claims by Guatemalan union members]. H. Doctrine of Agency Deference 1. Generally Where Congress has explicitly or implicitly left a gap in the statute to be filled by the agency, courts should defer to the agency determination unless it is irrational or clearly in error. Chevron USA v. Natural Resources Defense Council, 467 U.S. 837, 843­44 (1984); INS v. AguirreAguirre, 526 U.S. 415, 425 [the "BIA should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication." Deference appropriate on whether the statutory conditions for withholding of deportation have been met under former §243(h)(1)(2)]. The Chevron analysis is in 2 parts: First, the court must determine "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842. If the statute or the intent of Congress is clear, "that is the end of the matter, for the court, as well as the agency must give effect to the unambiguously expressed intent of Congress." Id. at 842­43. If the statute, however, is ambiguous or the matter is not directly addressed, the second step requires the court to inquire "whether the agency's [position/regulation] is based on a permissible construction of the statute." Id. at 843. If it is based upon a permissible construction, even if it is one that the court may not agree with, the court is generally obligated with the exceptions noted below, to defer to the agency's construction. The same rules of deference generally apply to an agency's interpretation of its own ambiguous regulations. Auer v. Robbins, 519 U.S. 452 (1997); Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S. ___, 129 S.Ct. 2458, 2468­70 (2009); Perriello v. Napolitano, 579 F.3d 135 (2d Cir. 2009) [upheld Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007) under Auer deference regarding limitation of IJ's jurisdiction in removal when person is prima facie eligible for naturalization]; Ghazali v. Holder, 583 F.3d 289, 293­94 (6th Cir. 2009) [citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) and holding that the BIA's nonprecedent decision that an untimely asylum application can be found to be frivolous should be upheld]. It also applies even if the court has a contrary prior judicial precedent where the prior judicial decision rested upon resolving an ambiguity in the statute and the agency's subsequent resolution of the ambiguity resulted in a different decision. National Cable & Telecomm. Ass'n v. Brand X Internet Services, 545 U.S. 967, 982­83 (2005) [a court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion]. In light of Brand X courts may be called upon to determine whether their decisions are automatically retroactive. .Morales-Izquierdo v. DHS, 600 F.3d 1076, 1086­90 (9th Cir. 2010) [discussing whether Brand X upsets the traditional rule that a court is merely interpreting what the law always was, but rejecting a retroactivity argument based upon a changed circuit court decision following a new administrative decision]. However, expansive deference may be, the Supreme Court, nevertheless, has also noted that "Chevron deference ... is not accorded merely because the statute is ambiguous and an administrative official is involved." Gonzales v. Oregon, 546 U.S. 243, 258 (2005) [AG rule interpreting the Controlled Substances Act in regard to physician assisted suicide not entitled to Chevron or Skidmore deference].

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2.

Chevron Step 1: Clarity of Statutory Language The principle of deference is not applicable where the language of the statute is clear on its face or congressional intent is clearly discernible. INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987); INS v. St. Cyr, 533 U.S. 289, 320­21 n.45 (2001) ["[w]e only defer ... to agency interpretations of statutes that, applying the normal `tools of statutory construction,' are ambiguous"]; National Cable & Telecomm. Ass'n v. Brand X Internet Services, 545 U.S. 967, 982­83 (2005); Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997); Saysana v. Gillen, 590 F.3d 7 (1st Cir. 2009) [rejecting Matter of Saysana, and finding Chevron deference not applicable because statute is clear, and alternatively DHS's interpretation, that a person released from criminal custody can be subject to mandatory detention even if it is for a nonspecified offense, is unreasonable]; Taing v. Napolitano, 567 F.3d 19 (1st Cir. 2009) [BIA in Matter of Varela, 13 I&N Dec. 453, 454 (BIA 1970), stating that a marriage had to be in effect for 2 years for widow to obtain approved petition could not be given Chevron deference because it was contrary to the clear statutory language]; Lin-Zheng v. Att'y Gen. of the U.S., 557 F.3d 147, 155­57 (3d Cir. 2009) (en banc) [rejecting BIA's broad interpretation permitting spouses of persons subject to force sterilization to be granted asylum where statutory language clearly permitted asylum only to persons who made an independent showing of persecution]; Lockhart v. Napolitano, 573 F.3d 251, 262 (6th Cir. 2009) [in the "widow penalty" case, rejecting Chevron deference because the statutory language was unambiguous]; Martinez v. Mukasey, 519 F.3d 532, 542­45 (5th Cir. 2008) [under Step 1 of Chevron and longstanding principles construing statutes in favor of persons facing removal, the term "admitted" as used in INA §212(h) does not bar LPRs convicted of aggravated felonies who were adjusted from applying for relief]; Shi Liang Lin v. DOJ, 494 F.3d 296 (2d Cir. 2007) (en banc) [BIA not accorded Chevron deference, rejecting Matter of C-Y-Z-, and finding that the unambiguous language of IIRIRA §601(a) does not extend automatic refugee status to spouses or unmarried partners of persons protected under the statute]; Waggoner v. Gonzales, 488 F.3d 632, 634­38 (5th Cir. 2007) [deference not accorded to BIA interpretation of extreme hardship waiver for a CR under INA §216(c)(4)(A) because the statute plainly provides for the waiver even if the marriage was not in good faith]; Knutsen v. Gonzales, 429 F.3d 733, 740 (7th Cir. 2005) [DHS contention that relevant conduct for sentencing should be considered in determining whether person was convicted of fraud in excess of $10,000 for purposes of the aggravated felony statute is not entitled to deference because the statute is clear that only a conviction counts]; Succar v. Ashcroft, 394 F.3d 8, 20­34 (1st Cir. 2005) [invoking first prong of Chevron to invalidate DHS regulation prohibiting parolees from AOS]; Akhtar v. Burzynski, 384 F.3d 1193 (9th Cir. 2004) [striking down 8 C.F.R. §214.15(g) that prevented extension of V-2/V-3 status beyond child's 20th birthday finding that Chevron deference did not apply because regulation was contrary to congressional intent and frustrated congressional policy]; Firstland International, Inc. v. INS, 377 F.3d 127, 131­32 (2d Cir. 2004) [where 8 U.S.C. §1155 regarding revocation of petition is not ambiguous Chevron deference inapplicable]; Valansi v. Ashcroft, 278 F.3d 203, 208­14 (3d Cir. 2002) [following Cardoza-Fonseca and St. Cyr and finding embezzlement was not an aggravated felony for fraud or deceit after referring to language of criminal statute 18 U.S.C. §656, the specific context the language was used, and the broader context of the statute as a whole]; Bejjani v. INS, 271 F.3d 670, 676­80 (6th Cir. 2001) [Chevron deference not applicable to retroactivity analysis]; Lujan-Armendariz v. INS, 222 F.3d 728, 748­49 (9th Cir. 2000) [when rules of statutory construction resolve the matter (regarding the definition of a conviction) there is no ambiguity and no deference is required]; Dillingham v. INS, 267 F.3d 996, 1011 (9th Cir. 2001) [same]; Chowdhury v. INS, 249 F.3d 970, 972­74 (9th Cir. 2001) [definition of aggravated felony statute was clear on its face]; Gorbach v. Reno, 219 F.3d 1087, 1093 (9th Cir. 2000) (en banc) [Chevron deference not accorded in striking down INS authority to revoke naturalization by regulation because Congress has not "explicitly left a gap for the agency to fill" or made an "implicit" delegation to it]; Innab v. Reno, 204 F.3d 1318, 1321 n.6. (11th Cir. 2000); Robison Fruit Ranch, Inc. v. U.S., 147 F.3d 798, 802 (9th Cir. 1998) [discriminatory intent required for document abuse charge under Unfair Immigration Employment Practices]; Coronado-Durazo v. INS, 123 F.3d 1322, 1324­26 (9th Cir. 1997); Goncalves v. Reno, 144 F.3d 110, 127 (1st Cir. 1998) [congressional intent to not apply section 440(d) of AEDPA retroactively was clear]; Pak v. Reno, 196 F.3d 666, 675 & n.10 (6th Cir. 1999) [same]; Shah v. Reno, 184 F.3d 719, 724 (8th Cir. 1999); Chang v. INS, 119 F.3d 1055, 1062 (3d Cir. 1997) [BIA interpretation of asylum, withholding law as inapplicable to the enforcement of a law of general applicability (e.g., exit visa/state security law) is not a permissible construction of the statute]; Hernandez v. Reno, 91

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F.3d 776, 780­81 (5th Cir. 1996) [where statute requires only that qualifying relationship exist on May 5, 1988 for Family Unity, regulation preventing continuing benefits due to subsequent marriage is contrary to the statute and not deserving Chevron deference]; Legal Assistance for Vietnamese Asylum Seekers v. DOS, 45 F.3d 469, 473 (D.C. Cir. 1995), remanded, 117 S.Ct. 378 (1996), remanded, 104 F.3d 1349 (1997), based upon IIRIRA §633 amending INA §202(a)(1)(B) [where statutory language unambiguously requires no discrimination in the issuance of visa, Chevron deference inapplicable]. Castellon-Contreras v. INS, 45 F.3d 149, 152­53 (7th Cir. 1995) [equating lawful domicile with LPR status is incorrect statutory interpretation given plain meaning of "domicile"]; Kahn v. INS, 36 F.3d 1412 (9th Cir. 1994) [relying on state law as conclusive measure of family ties was erroneous]; Almero v. INS, 18 F.3d 757, 763 (9th Cir. 1994) [deference is no abdication and court must first try to determine congressional intent using tools of statutory construction]; Robledo v. Chertoff, 658 F.Supp.2d 688, 696­700 (D. Md. 2009) [in widow penalty case, the definition of spouse is clear, as is the right to file if a widow and therefore Chevron deference was inapplicable]; Ali v. Smith, 39 F.Supp.2d 1254 (W.D. Wash. 1999) [where regulation is clearly inconsistent with statutory language regarding naturalization, Chevron deference is inappropriate]; Gee v. INS, 875 F.Supp. 666 (N.D. Cal. 1994). 2.a. Auer Deference Also Requires Ambiguity--If a regulation is clear on its face, a contrary interpretation cannot be sustained by the agency relying on Auer deference. Joseph v. Holder, 579 F.3d 827, 831­34 (7th Cir. 2009) [rejected application of Auer deference where regulation governing motions to reopen under changed circumstances did not require a "dramatic" change in country conditions].

3.

Chevron Step 2 Cases Granting Deference Ascencio-Rodriguez v. Holder, 595 F.3d 105 (2d Cir. 2010) [adopting Romalez-Alcaide and Avilez-Nava under step-two of Chevron and holding that person convicted for illegal entry under 8 U.S.C. §1325(a)(1) coupled with return to Mexico terminates continuous physical presence]; Irigoyen-Briones v. Holder, 582 F.3d 1062, 1067­68 (9th Cir. 2009) [under step-two Auer deference, BIA's position that it lacks authority to extend the 30-day deadline for filing an appeal upheld]; Rosillo-Puga v. Holder, 580 F.3d 1147, 1152­58 (10th Cir. 2009) [deferring to BIA's construction under step 2 of Chevron that 8 C.F.R. §§1003.2(d), 1003.23(b)(1) bar a motion to reopen filed by a person outside the U.S.]; Rotimi v. Holder, 577 F.3d 133 (2d Cir. 2009) [upholding the BIA's narrow interpretation of "lawfully residing continuously" for INA §212(h) purposes in Rotimi]; Ramos-Lopez v. Holder, 563 F.3d 855, 858­62 (9th Cir. 2009) [deference accorded BIA's determinations of "particular social group" and "political opinion" because they are ambiguous terms; court will not overturn BIA decision that "young Honduran men who have been recruited by, but who refuse to join, MS-13" are not a social group and that resistance to gang recruitment alone is not a political opinion]; Ponta-Garcia v. Att'y Gen. of the U.S., 587 F.3d 158, 161­64 (3d Cir. 2009) [regulation permitting DHS officer to render decision instead of IJ in reinstatement is a reasonable construction of the statute under Chevron]; Marmolejo-Campos v. Holder, 558 F.3d 903, 907­12 (9th Cir. 2009) (en banc) [Chevron deference accorded BIA's determination on a case-by-case basis of the meaning of CIMT and cases cited therein]; HernandezCarrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008) [upholding 8 C.F.R. §241.14(f) as a reasonable interpretation of INA§241(a)(6) under Brand X and determining that the Supreme Court's construction in Zadvydas and Clark are not definitive and are also subject to Brand X]; Linares Huarcaya v. Mukasey, 550 F.3d 224 (2d Cir. 2008) [under Auer deference the court followed Matter of Riero and upheld USCIS interpretation of grandfathering under INA §245(i) to require a showing that a prior marriage was bona fide and not just nonfrivolous]; Garcia-Villeda v. Mukasey, 531 F.3d 141, 145­49 (2d Cir. 2008) [regulation permitting reinstatement without IJ under §241.8 is a permissible interpretation of INA §241(a)(5) under the step 2 of Chevron]; Perez Pimentel v. Mukasey, 530 F.3d 321, 324­26 (5th Cir. 2008) [upholding 8 C.F.R. §212.7(d) regarding heightened exception to INA §212(h) waiver under Chevron step 2]; Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008) [following Matter of Babaisakov and reinterpreting its own precedent post­Brand X, the BIA may rely on the presentence investigation report to establish whether crime is a CIMT]; Kosak v. Aguirre, 519 F.3d 210 (3d Cir. 2008) [upholding Matter of Li, 20 I&N Dec. 700 (BIA 1993) that an adopted child cannot petition for biological siblings]; Yusupov v. Att'y Gen. of the U.S., 518 F.3d 185 (3d Cir. 2008) [affirming on Chevron grounds, AG's interpretation of INA §241(b)(3)(B)(iv) in Matter of A-H-, except the part stating that the government need only show

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that the respondent "may" be a danger rather than "is" a danger to U.S. security]; Saintha v. Mukasey, 516 F.3d 243, 251­53 (4th Cir. 2008) [upholding BIA view under Chevron that refugee could not readjust as a refugee/asylee in proceedings because of BIA's interpretation of INA §209(a)(1)(C)]; Scheerer v. Att'y Gen. of the U.S., 513 F.3d 1244 (11th Cir. 2008) [8 C.F.R. §1245.2(a)(1), limiting arriving aliens' AOS to USCIS was valid under Chevron because it did not eliminate AOS but merely limited the forum]; L.A. Closeout, Inc. v. DHS, 513 F.3d 940 (9th Cir. 2007) [USCIS memo interpreting 8 C.F.R. §248.1 to allow change of status from B-2 to H-1B only if the applicant maintains B-2 status until H-1B status is operative upheld under Auer deference]; Gonzales v. DHS, 508 F.3d 1227, 1235­42 (9th Cir. 2007) [following Brand X and reversing Perez-Gonzalez v. Ashcroft, 379 F.3d 783 because the BIA decision in Matter of TorresGarcia that barred a retroactive I-212 waiver for a person inadmissible under INA §212(a)(9)(C)(i)(II), was entitled to Chevron deference]; Fernandez v. Keisler, 502 F.3d 337, 342­48 (4th Cir. 2007) [Chevron/Brand X deference applies to naturalization interpretations notwithstanding INA §242(b)(5) and circuit's previous opinion under U.S. v. Morin]; Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007) [under Chevron deference following Matter of ColladoMunoz, IIRIRA's passage of INA §101(a)(13)(C) abrogated the Fleuti doctrine]; Mejia v. Gonzales, 499 F.3d 991, 995­97 (9th Cir. 2007) [deferring to agency under step 2 of Chevron regarding AG's regulation tightening restrictions for §212(h) in 8 C.F.R. §212.7(d)]; Sun Wen Chen v. Att'y Gen. of the U.S., 491 F.3d 100, 105­09 (3d Cir. 2007) [upholding BIA analysis that spouse under forced abortion/sterilization statute qualifies for asylum under step 2 of Chevron]; De La Rosa v. DHS, 489 F.3d 551 (2d Cir. 2007) [affirming BIA analysis in Koloamatangi under Chevron step 2 as to §212(c) where the applicant, who obtained residency by fraud, was found ineligible for relief where relief was based on the fraudulent residency]; Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489­94 (9th Cir. 2007) (en banc) [upholding AG regulation allowing reinstatement of removal before DHS officer instead of IJ under step 2 of Chevron and finding change of long standing policy not invalid]; Briseno-Flores v. Att'y Gen. of the U.S., 492 F.3d 226, 229­31 (3d Cir. 2007) [deference granted to BIA interpretation of stop-time rule in Matter of Mendoza-Sandino that precluded restarting continuous physical presence after a stop-time event]; Perez-Enriquez v. Gonzales, 463 F.3d 1007, 1012­14 (9th Cir. 2006) (en banc) [Chevron deference was appropriate where BIA previously determined that SAW applicant could not be denied LPR status for acts committed after obtaining temporary residence]; Rumierz v. Gonzales, 456 F.3d 31 (1st Cir. 2006) [deference given to BIA determination that the respondent has the burden on a motion to reopen to demonstrate compliance with Pickering when the conviction is vacated or modified after a final order has been entered]; Romanishyn v. Att'y Gen. of the U.S., 455 F.3d 175, 180­85 (3d Cir. 2006) [deference given to BIA in Matter of Smriko permitting removal proceedings without first terminating refugee status]; Damko v. INS, 430 F.3d 626 (2d Cir. 2005) [following Acosta's standard for economic deprivation under Chevron deference and determining that Albanian's economic deprivation did not threaten his life or freedom under substantial evidence review]; Balogun v. Att'y Gen. of the U.S., 425 F.3d 1356, 1360­61 (11th Cir. 2005) [Chevron deference given to interpretation of aggravated felony section regarding fraud crimes where the IJ/BIA interpreted "victim" under the statute to include the government]; Lopez v. Henley, 416 F.3d 455, 457­58 (5th Cir. 2005) [DHS regulation that person seeking citizenship through military service must establish good moral character is entitled to Chevron deference]; Mortera-Cruz v. Gonzales, 409 F.3d 246 (5th Cir. 2005) [Chevron deference granted to BIA determination that a person inadmissible under INA §212(a)(9)(C)(i) may not adjust under INA §245(i)]; Medina v. Gonzales, 404 F.3d 628, 633­37 (2d Cir. 2005) [permissible construction under Chevron to hold that false statements under oath to an asylum officer is testimony for purposes of determining lack of good moral character under INA §101(f)(6)]; U.S. v. Jean-Baptiste, 395 F.3d 1190, 1194 (11th Cir. 2005) [in denaturalization case, granting Chevron deference to 8 C.F.R. §316.10(b)(3)(iii) broadly construing lack of good moral character to include the commission, rather than the conviction or admission, of unlawful acts]; Ali v. Ashcroft, 395 F.3d 722, 728­29 (7th Cir. 2005) [upholding under Chevron, Matter of Pickering that allows a vacated conviction to be treated as a conviction for immigration purposes]; Auguste v. Ridge, 395 F.3d 123, 144­45 (3d Cir. 2005) [giving Chevron deference to Matter of J-E- that "specific intent" to torture is required to establish CAT claim; quoting Tineo for the proposition that "there is no longer any question that the BIA should be accorded Chevron deference for its interpretations of the immigration laws"]; HernandezGuadarrama v. Ashcroft, 394 F.3d 674, 678­79 (9th Cir. 2005) [Chevron deference accorded BIA

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interpretation of alien smuggling statute to encompass more than direct participation in smuggling at the border]; Knapik v. Ashcroft, 384 F.3d 84, 88­90 (3d Cir. 2004) [under Chevron deference, BIA's longstanding position is that crimes involving recklessness may be CIMTs]; Lattab v. Ashcroft, 384 F.3d 8, 17­20 (1st Cir. 2004) [under Chevron deference, regulations permitting reinstatement of removal without an IJ hearing are not inconsistent with 241(a)(5)]; Chen v. Ashcroft, 381 F.3d 221 (3d Cir. 2004) [under Chevron, deferring to agency interpretation in Matter of C-Y-Z-, limiting forced abortion/sterilization to person subject to practice and his/her spouse and denying asylum and withholding to fiancée]; Asika v. Ashcroft, 362 F.3d 264 (4th Cir. 2004) [under Chevron deference, 5-year statutory limit on rescission does not prohibit removal proceedings where LPR status was obtained in error]; Tineo v. Ashcroft, 350 F.3d 382, 396­97 (3d Cir. 2003) [Congress intended to alter Fleuti when it enacted INA §101(a)(13)(C) but even if it was questionable, Chevron requires we accept the agency interpretation pursuant to Matter of Collado]; Acosta v. Ashcroft, 341 F.3d 218 (3d Cir. 2003) [BIA decision to treat what would be state convictions under the Federal First Offender Act as convictions is entitled to Chevron deference]; Nolan v. Holmes, 334 F.3d 189 (2d Cir. 2003) [where INA §329, regarding naturalization through military service, is ambiguous as to whether good moral character is required, the BIA's interpretation that it is required is reasonable under Chevron]; Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001) [deferring to BIA interpretation that MA "on file" procedure is a conviction and meets finality requirements post-IIRIRA]; Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000) [upholding rejection by INS of unadmitted 6-year-old's application for asylum notwithstanding the right to apply for asylum under INA §208 on theory that the agency had the right to fill in the gap of what the word "apply" for asylum meant and gap-filling was not "totally unreasonable"]; Lettman v. Reno, 207 F.3d 1368 (11th Cir. 2000) [upholding BIA interpretation of IMMACT90 to permit deportability for aggravated felony prior to the definition of aggravated felony as reasonable]; Michel v. INS, 206 F.3d 253, 262­66 (2d Cir. 2000) [Chevron deference accorded to INS interpretation of moral turpitude under INA but not to construction of state penal code]; Young v. Reno, 114 F.3d 879 (9th Cir. 1997) [upholding Matter of Li regarding denial of benefits to natural siblings of adopted sister]; Yang v. INS, 79 F.3d 932 (9th Cir. 1996) [upholding regulatory bar to asylum for firm resettlement]; Hamama v. INS, 78 F.3d 233 (6th Cir. 1996) [upholding INS interpretation barring withholding]; Ahmetovic v. INS, 62 F.3d 48 (2d Cir. 1995) [regulation barring asylum]; Jaramillo v. INS, 1 F.3d 1149 (11th Cir. 1993) (en banc); Akindemowo v. INS, 61 F.3d 282 (4th Cir. 1995); Committee for Immigrant Rights v. County of Sonoma, 644 F.Supp.2d 1177, 1197­99 (N.D. Cal. 2009) [8 U.S.C. §1357 is ambiguous and under step two of Chevron, agency's decision to expand the detainer to additional crimes is not unreasonable]. 4. Brand X Deference Chevron deference now applies even if the court has a contrary prior judicial precedent where the prior judicial decision rested upon resolving an ambiguity in the statute and the agency's subsequent resolution of the ambiguity resulted in a different, but reasonable, decision. National Cable & Telecomm. Ass'n v. Brand X Internet Services, 545 U.S. 967, 982­83 (2005) [a court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion]. See Anaya-Ortiz v. Mukasey, 594 F.3d 673 (9th Cir. 2010) [regarding evidence that may be considered in determining whether a person has committed a "particularly serious crime," the court held that following Brand X the BIA's determination in Matter of N-A-M- has overridden the court's own decision in Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir. 2007) because that decision relied on a prior BIA precedent Matter of L-S-]; Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008) [deferring to the BIA's decision in Matter of Babaisakov to determine which documents may be considered in establishing a CIMT]; Gonzales v. DHS, 508 F.3d 1227, 1236­43 (9th Cir. 2007) [finding that Matter of Torres-Garcia is a reasonable interpretation of an ambiguous statutory provision regarding the denial of AOS to persons subject to INA §212(a)(9)(C)(i)(II) and therefore deferring to that decision despite its prior contrary decision in Perez-Gonzales]; Fernandez v. Keisler, 502 F.3d 337, 347­49 (4th Cir. 2007) [deferring to BIA's decision in Matter of Navas-Acosta that one acquires U.S. nationality only by birth or naturalization notwithstanding its own prior decision in Morin]. One court has determined that the reasoning in Brand X even extends to Supreme Court decisions and is not undermined by the doctrine of constitutional avoidance. Hernandez-Carrera v. Carlson, 547 F.3d

CHAPTER 10 · FEDERAL JUDICIAL REVIEW

1329

1237 (10th Cir. 2008) [upholding 8 C.F.R. §241.14(f) as a reasonable interpretation of INA§241(a)(6) under Brand X, determining that the Supreme Court's construction in Zadvydas and Clark are subject to Brand X, and concluding that even after the Court has construed a statute to avoid constitutional doubts, an agency remains free to interpret the same statute in a different manner as long as it is reasonable and avoids constitutional doubts]. But Brand X has its limits and should not be construed to allow an agency to maintain an unreasonable/impermissible interpretation of a statute under step-two of Chevron. Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009) [father's LPR status could be imputed to child to meet the 5-year requirement under §240A(a)(1) and Brand-X did not compel a different result because the BIA's interpretation in Matter of Escobar under Chevron step-two analysis was unreasonable]. 4.a. AG/BIA under Brand X--The AG has recognized that in light of Brand X, the BIA is not obligated to following circuit precedent where the law is ambiguous because the BIA may fashion its own construction. Matter of R-A-, 24 I&N Dec. 629, 631 n. 4 (AG 2008). For a discussion of the BIA's response to Brand X, see "Acquiescence to Circuit Court Decisions," Chapter 9, Section I.E (p.1152), supra.

5.

Inapplicability of Chevron Chevron deference is also not applicable where Congress did not delegate authority to the agency generally to make rules carrying the force of law or the agency interpretation claiming deference was not promulgated in the exercise of that authority. U.S. v. Mead Corp., 121 S.Ct. 2164, 2171­74 (2001); Christensen v. Harris County, 529 U.S. 576, 587 (2000). Thus, where the agency did not promulgate its rules under the APA, the "rules" were merely interpretive, or there was no delegation by Congress of the specific issue, courts have found that Chevron deference does not apply. U.S. v. Mead Corp., supra [where Custom's classification ruling letters are issued by 46 different offices and in excess of 10,000 per year, Chevron deference inapplicable]; Christensen v. Harris County, supra [interpretations do not warrant Chevron deference]; Gonzales v. Oregon, 546 U.S. 243 (2005) [AG's interpretative rule indicating that physicians who assisted suicide of terminally ill patients pursuant to OR statute would violate the Controlled Substances Act was not entitled to Chevron or Skidmore deference]; Carpio v. Holder, 592 F.3d 1091, 1096­98 (10th Cir. 2010) [single IJ decision not relying on existing BIA precedent is not given Chevron deference]; Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1156­58 (9th Cir. 2008) (en banc) [citing Christensen, Chevron deference was inappropriate where the BIA in Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999) did not construe the sexual abuse of minor statute and provide a uniform interpretation but rather developed advisory guidelines for the future adjudication of cases]; Quinchia v. Att'y Gen. of the U.S., 552 F.3d 1255, 1258­59 (11th Cir. 2008) [single member BIA decision not accorded Chevron deference where there was no existing precedent]; Rotimi v. Gonzales, 473 F.3d 55, 57­58 (2d Cir. 2007) [nonprecedent decision by single member of BIA not entitled to Chevron deference because there is no indication it was promulgated to make rules carrying the force of law]; Ucelo-Gomez v. Gonzales, 464 F.3d 163, 168­69 (2d Cir. 2006) [Chevron deference not accorded to IJ's decision on social group that was summarily affirmed by BIA in Guatemalan asylum case]; Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011­15 (9th Cir. 2006) [unpublished disposition issued by a single Board member which does not bind third parties does not carry the force of law]; Miranda Alvarado v. Gonzales, 449 F.3d 915, 920­24 (9th Cir. 2006) [Chevron deference is not appropriate for IJ's statutory interpretation because it cannot be an agency's interpretation]; Ng v. Att'y Gen. of the U.S., 436 F.3d 392, 395 n.4 (3d Cir. 2006) [where BIA AWOs, there is a question as to whether the IJ's decision is entitled to Chevron deference when the BIA is free to depart from it]; Padilla-Caldera v. Gonzales, 453 F.3d 1237, 1244 (10th Cir. 2006) [Chevron deference not accorded to Crocetti memo of May 1, 1997 barring §245(i) AOS to a person inadmissible under INA §212(a)(9)(C)(i)(I) where statute, legislative history and other memo are to the contrary]; Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 792­95 (9th Cir. 2004) [USCIS memo barring §245(i) AOS for persons previously removed under §212(a)(9)(A)­(C) not entitled to Chevron deference and was contradicted by 8 C.F.R. §212.2, which provides for a waiver; opinion disregarded by Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007)]; Hernandez v. Ashcroft, 345 F.3d 824, 839 n.13 (9th Cir. 2003) [nonprecedent BIA decision not entitled to Chevron deference]; Scales v. INS, 232 F.3d 1159, 1166 (9th Cir. 2000) [interpretation which lacks the force of law does not warrant Chevron deference]; Bussian v. RJR Nabisco, Inc., 223 F.3d 286, 296­97 (5th Cir. 2000) [Chevron deference inapplicable notwithstanding notice in Federal

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[Chapter 10, section V.H]

KURZBAN'S IMMIGRATION LAW SOURCEBOOK

Register, where regulations not promulgated in final form]; Southern Utah Wilderness Alliance v. Dabney, 222 F.3d 819, 828­30 (10th Cir. 2000) [Chevron deference inapplicable even where agency published draft policies in the Federal Register and gave the public an opportunity to comment but no final rules]; Orr v. Hawk, 156 F.3d 651, 655 (6th Cir. 1998) [Chevron deference inapplicable to interim rule because "it is not the product of a notice and comment rulemaking process"]; Accord Ngwanyia v. Ashcroft, 302 F.Supp.2d 1076, 1081­83 (D. Minn. 2004) [Chevron deference inapplicable to DHS interpretation and refusal to recapture numbers for AOS of asylees that are not used by end of fiscal year because it is neither a regulation nor an interpretation of an ambiguous regulation but rather a "sort of sub-regulatory policy"]; F.L. v. Thompson, 293 F.Supp.2d 86, 93­98 (D.D.C. 2003) [where DHS and ORR have correspondence regarding which agency would decide case, Chevron deference is unwarranted]; Perez v. Ashcroft, 236 F.Supp.2d 899 (N.D. Ill. 2002) [refusing to give effect to "formal training" requirement for religious occupations because it represents a substantive change not accompanied by notice and comment rule making and not entitled to deference under Mead]. HealthAmerica, 06-PER-1 (BALCA July 16, 2006) (en banc) [ETA publication of FAQs and the agency's response are not entitled to Chevron deference and FAQ #5 relating to harsh penalties for typographical errors in PERM processing on Form 9089 does not withstand Skidmore deference]. But see Gutnik v. Gonzales, 469 F.3d 683, 690 (7th Cir. 2006) [a single member decision of the BIA may receive Chevron deference if it provides some reasoning to which the court can defer]. However, deference may apply where agency interpretation is arrived at through formal adjudication. Mazariegos v. INS, 241 F.3d 1320, 1327 n.4 (11th Cir. 2001). See also Augustin v. Att'y Gen. of U.S., 520 F.3d 264 (3d Cir. 2008) [affirming under the Step 2 of Chevron the view adopted in an unpublished BIA decision that a parent's residence may not be imputed to a minor child for purposes of the 7-year residence provision of cancellation]. 6. Skidmore Deference--Moreover, the fact that Chevron deference is inapplicable does not mean that the agency is not given any deference. U.S. v. Mead, supra. Under Skidmore v. Swift & Co. 323 U.S. 134 (1944) an agency decision may merit some deference given its specialized experience and the value of uniformity. Skidmore factors include "the thoroughness evident in [the agency's] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade." 323 U.S. at 140. See e.g., Dada v. Mukasey, 128 S.Ct. 2307, 2319 (2008) [proposed regulations concerning withdrawal of VD and filing of motions to reopen is given "respectful consideration" citing Mead]; Uppal v. Holder, 576 F.3d 1014, 1018 (9th Cir. 2009) [one-panel-member unpublished decision of BIA regarding determination that Canadian conviction was a CIMT entitled to Skidmore deference]; Soriano v. Holder, 569 F.3d 1162, 1165­67 (9th Cir. 2009) [under Skidmore deference, a criminal government informant is not a member of a social group]; Godinez-Arroyo v. Mukasey, 540 F.3d 848, 850­51 (8th Cir. 2008) [Skidmore deference granted to nonprecedent BIA decisions]. But see Benyamin v. Holder, 579 F.3d 970, 976­77 (9th Cir. 2009) [where one member panel of BIA misread Kasinga, deference not granted]; Choin v. Mukasey, 537 F.3d 1116, 1120 (9th Cir. 2008) [Skidmore deference not accorded DHS/AG in unpublished 2 paragraph decision interpreting INA §245(d) to disallow AOS of a K-1 who divorced her spouse before AOS as a CR because the statute provides for AOS after "marriage" only]; Miranda Alvarado v. Gonzales, 449 F.3d 915, 924 n.6 (9th Cir. 2006) [Skidmore deference not accorded where IJ gave a brief and conclusory decision which referred to no relevant BIA or federal case law]. IJ Decision with AWO by BIA--See Dulal-Whiteway v. DHS, 501 F.3d 116, 120 (2d Cir. 2007) ["[w]e do not extend Chevron deference to any statutory construction of the INA set forth in a summarily affirmed IJ opinion"]; Ucelo-Gomez v. Gonzales, 464 F.3d 163, 168­69 (2d Cir. 2006) [following Lin and finding Chevron deference is not accorded IJ's decision on social group summarily affirmed by BIA in Guatemalan asylum case]; Miranda Alvarado v. Gonzales, 449 F.3d 915, 924 (9th Cir. 2006) [declining to extend Chevron deference to summary affirmance by BIA]; Zhang v. Gonzales, 426 F.3d 540, 543­44 (2d Cir. 2005) [following Lin and finding Chevron deference inapplicable to AWO]; Lin v. DOJ, 416 F.3d 184, 189­91 (2d Cir. 2005) [IJ's summarily affirmed decision is not entitled to Chevron deference but may be entitled to lesser deference under Skidmore and Mead]; Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 (3d Cir. 2004) [although Aquirre-Aguirre determined that the BIA's case-by-case decision-making should be accorded Chevron deference, the AWO procedure only affirms the result]

7.

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Kurzban's Immigration Law Sourcebook, 12th Edition