Immigration – judicial review

U.S. Court of Appeals for the 7th Circuit

Civil

Immigration – judicial review

The jurisdiction to review questions of law referred to in 8 U.S.C. 1252(a)(2)(D) does not extend to mixed questions of fact and law.

“This court’s position has been a strict one. We have adhered for years to the rule that § 1252(a)(2)(B) excludes from our jurisdiction challenges to an IJ’s application of the law to the facts of a case when the grounds for relief sought are discretionary, and that in such a case the subpart (B) exclusion is unaffected by § 1252(a)(2)(D). Cevilla, 446 F.3d at 661. We have understood the review of the application of law to facts as something different from review of so-called ‘pure’ questions of law. Even though Cevilla relied heavily on the Second Circuit’s now-vacated initial opinion in Chen for its reasoning, we have reconsidered and reaffirmed our position on this point. See Viracacha v. Mukasey, 518 F.3d 511, 515–16 (7th Cir. 2008). We thus limit our review to constitutional claims and questions of statutory construction. See id.; Cuellar Lopez v. Gonzales, 427 F.3d 492, 493 (7th Cir. 2005) (explaining that interpretation of term ‘continuous physical presence’ can be reviewed because it presents a legal question of statutory construction). Under this court’s understanding of the statutory scheme, Adame’s challenge to the IJ’s demand for additional evidence falls outside of our authority. The conflict in the circuits on this point is a serious one, but it has stood for some time. Indeed, the government candidly informed us at oral argument that it would not press the same jurisdictional defense in other circuits.”

Dismissed.

13-2405 Adame v. Holder

On Petition for Review of a Final Order of the Board of Immigration Appeals, Wood, J.