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: Objective Justice

REAL ID Act Gives Judicial Review

By Sean Sirrine

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This isn't an area of law that I pay particular attention to, but as I worked on an immigration case recently I find it quite interesting. Actually, I'm a bit surprised the political wonks aren't talking about this issue as regards the immigration debate.

Today, the Ninth Circuit issued its opinion in Husyev v. Mukasey:

A threshold question is whether we have jurisdiction to
review this determination. There are two potential obstacles to
our jurisdiction. The first is 8 U.S.C. § 1158(a)(3), which provides
that ?[n]o court shall have jurisdiction to review any
determination of the Attorney General? regarding
the oneyear bar or its exceptions for changed or extraordinary
circumstances. Standing alone, that provision clearly would preclude
our jurisdiction. In 2005, however, Congress enacted
the REAL ID Act, which dramatically altered the effect of
statutes stripping us of jurisdiction to review BIA decisions.
Pub. L. No. 109-13, Div. B, § 106(a)(1)(A)(iii), 119 Stat. 231,
310 (May 11, 2005) (codified at 8 U.S.C. § 1252(a)(2)(D)).
Under the REAL ID Act, ?[n]othing in . . . any . . .
provision of this chapter . . . which limits or eliminates juridical
review, shall be construed as precluding review of constitutional
claims or questions of law.? 8 U.S.C. § 1252(a)(2)(D). The
jurisdictional prohibition of § 1158(a)(3) is accordingly overridden
by the REAL ID Act for questions of law and constitutional
claims. We so held in Ramadan v. Gonzales, 479 F.3d
646, 650 (9th Cir. 2007) (per curiam).

. . . . .

The second potential obstacle to our jurisdiction is
treated in divergent ways in our precedents, but is equally surmountable.
It is the restriction on jurisdiction to review discretionary
determinations, which provides, with certain
exceptions, that

no court shall have jurisdiction to review . . . any . . .
decision or action of the Attorney General or the
Secretary of Homeland Security the authority for
which is specified under this subchapter to be in the
discretion of the Attorney General or the Secretary
of Homeland Security . . . .

8 U.S.C. § 1252(a)(2)(B). One of the express exceptions to
this prohibition, however, is the provision of the REAL ID
Act preserving our jurisdiction to review constitutional claims
or questions of law, § 1252(a)(2)(D). Even in the absence of
such an exception in subsection (B), the terms of
§ 1252(a)(2)(D) would preserve our jurisdiction over questions
of law because it provides that ?[n]othing in subparagraph
(B) [denying jurisdiction over discretionary decisions]
. . . , or in any other provision of this chapter . . . which limits
or eliminates judicial review, shall be construed as precluding
review of constitutional claims or questions of law raised
upon a petition for review. . . .? Id. Thus, we held in Afridi
v. Gonzales, that ?[t]he plain language of the REAL ID Act
grants jurisdiction to appellate courts to review questions of
law presented in petitions for review of final orders of
removal, even those pertaining to otherwise discretionary
determinations.?). 442 F.3d 1212, 1218 (9th Cir. 2006).

The clear text of § 1252(a)(2)(D) and our precedent in
Afridi accordingly suggest that it makes no difference whether
a determination of ?extraordinary circumstances? is within the
discretion of the Attorney General, because we have concluded
that it presents a question of law. The REAL ID Act
restores our jurisdiction to address such a question of law
despite any statutory restrictions on our jurisdiction over discretionary
decisions.

Now, this last part is really dicta as the court goes on to say that they don't expressly have to make a determination if Afridi or the languange from Ramadan stating that ?Section 106 [of the REAL ID Act] does not restore jurisdiction over discretionary determinations? is correct.

Strangely, the court points out a split within itself, sides with the Afridi, but doesn't resolve the question. In fact in a footnote the court notes the potential circuit split:

We are aware of decisions from other circuits holding that discretionary
decisions in general were not intended by Congress to be made
reviewable under the REAL ID Act. See, e.g., Chen v. U.S. Dept. of Justice,
434 F.3d 144, 151-55 (2d Cir. 2006); Grass v. Gonzales, 418 F.3d
876, 878-79 (8th Cir. 2005). These decisions support the view of Ramadan,
but are in conflict with Afridi and seem to accord no effect to that part
of the REAL ID Act that provides for jurisdiction over questions of law
notwithstanding the prohibition on review of discretionary determinations.

Full post as published by Objective Justice on June 16, 2008 (boomark / email).