Can I get review of my denied
case under the REAL ID Act?
Question: I have had my case
denied in
Answer: The REAL ID Act did not
change the language of either subpart (i) or (ii) of the statute giving/denying
review. Rather, the Act made two changes to the paragraph preceding these
subparts. First, it specified that the phrase “notwithstanding any other
provision of law” applied to “statutory and nonstatutory” law and included the
habeas corpus statute, the mandamus statute, and the All Writs Act. Second, the
REAL ID Act also expanded the scope of § 242(a)(2)(B) so that it now applies
“regardless of whether the [discretionary] judgment, decision, or action is
made in removal proceedings.” Prior to the REAL ID Act, some – though not all –
courts had held that § 242(a)(2)(B) was applicable only in removal cases.
Presumably, this amendment was intended to reverse these earlier court decisions.
Question: Do these amendments
eliminate all mandamus and other types of affirmative suits?
Answer: No, these changes do not
eliminate all jurisdiction over mandamus and other affirmative lawsuits in
non-removal cases. To determine whether jurisdiction remains available in a
particular case, it is necessary to carry out a several step analysis. This
analysis is essentially the same as the analysis to determine whether
jurisdiction exists in a removal case involving agency discretion. Consequently,
court decisions interpreting § 242(a)(2)(B) in the removal context will be
helpful in determining whether the provision applies in a non-removal case.
Question: What steps are involved
in determining whether a court has jurisdiction under § 242(a)(2)(B) in a
removal or non-removal case?
Answer: There are several items
that one must look at to determine if this section applies. 1. Does the
issue/case fall completely outside the scope of INA § 242(a)(2)(B)? A. INA §
242(a)(2)(B) only limits jurisdiction over certain discretionary actions and
decisions. B. INA § 242(a)(2)(B) does not apply to asylum decisions.
C. INA § 242(a)(2)(B) also does
not apply to naturalization decisions and D. INA § 242(a)(2) should not apply
to S, T and U visas.
Question: What if the case is one
that appears to have fallen under the provision not permitting discretionary
review?
Answer: Again, it is necessary to
do an analysis. First, has there been an actual exercise of discretion? Even
where there has been an actual exercise of discretion, is this exercise of
discretion the issue in the case? Is the challenged action or decision
discretionary? Is the decision or action specified by statute to be
discretionary? Is the grant of discretion one of pure discretion unguided by
legal principles? (9th Circuit cases.)
Thus, while the REAL ID Act may
seem to completely limit judicial review of cases, if you fight the matter and
analyze the case, there are different ways to still get judicial review of your
case.
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