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Immigration — judicial review

United States Court of Appeals


Immigration — judicial review

Decisions like rulings on continuances, which do not implicate the merits of a final unreviewable order but instead merely defer the resolution of the merits so that the process as a whole can be completed with integrity, may in the right circumstances, fall within the court’s jurisdiction.

“We are persuaded that there are identifiable circumstances under which a critical procedural step in a removal proceeding, such as the denial of a continuance that is sought for purposes of allowing another agency to complete its review, the denial of a motion to reconsider, a refusal to remand, or a refusal to reopen a case, lies within our jurisdiction even though we are barred from evaluating the BIA’s ultimate decision in the circumstances spelled out in § 1252(a)(2)(B)(i). [Because this opinion reconciles several competing lines of authority within the circuit, it has been circulated to all active judges pursuant to Circuit Rule 40(e). No judge in active service voted to hear these cases en banc.] Sometimes review will be possible because, as in Subhan, the challenged action effectively nullifies the statutory scheme and thus for all practical purposes raises a question of law. Sometimes review will be possible because, as in Juarez, the request for the unreviewable relief will be coupled with a request for relief like asylum that is reviewable. If, however, it is impossible to distinguish the challenged action from the determination on the merits, then jurisdiction is lacking and the petition must be dismissed.”

Petitions Denied.

10-2795 & 10-3973 Yonzon-Calma v. Holder

Petitions for Review of an Order of the Board of Immigration Appeals, Wood, J.

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