A very good case against AUSA interpretation of 8 usc 1252(2)(B)(ii)
Cho v. Gonzales, 404 F.3d 96, 100 (1st Cir. 2005).
http://www.ca1.uscourts.gov/pdf.opinions/04-1437-01A.pdf
The parties agree that the Attorney General's rejection of an application for a hardship waiver under 8 U.S.C. § 1186a(c)(4)(B) is a decision made pursuant to the relevant statutory "subchapter" mentioned in subparagraph 1252(2)(B)(ii). They also agree that the Attorney General's general authority to grant a hardship waiver under § 1186a(c)(4)(B) is specified to be within the Attorney General's discretion. But they disagree over whether these two facts resolve the jurisdictional issue.
The Attorney General says that they do. He primarily argues that the "decision or action" referred to in 8 U.S.C. § 1252(a)(2)(B)(ii) is his final order, which he says is his denial of the hardship waiver, and not the threshold eligibility ruling -- that Cho failed to prove that she married in good faith -- on which that order was based. And because this "decision or action" involves the withholding of discretionary relief, the argument goes, we have no power of review. Cf. Pilch v. Ashcroft, 353 F.3d 585, 587 (7th Cir. 2003) (interpreting a similar jurisdiction-stripping provision of the IIRIRA's transitional rules, IIRIRA § 309(c)(4)(E), and explaining that, absent an all-or-nothing approach, "there would be no jurisdiction if the agency is right but jurisdiction when it errs; [and] that would be a back door assertion of jurisdiction to review every decision, and an effective nullification of the statute"). Cho counters that the "decision or action" referred to in the statute is not the Attorney General's discretionary decision to withhold a hardship waiver, but the specific and non-discretionary (or so she argues, see infra) ruling upon which that decision depended and which she challenges in her petition -- i.e., that Cho is not within the class of aliens entitled to apply to discretionary relief under 8 U.S.C. § 1186a(c)(4)(B) because she failed to establish that she married in good faith.
We think that Cho has the better of this argument. We start with the fact that the Attorney General's position proves too much. Even if we were to accept for the sake of argument that the final agency order at which the petition is directed, and not the eligibility ruling leading to the order, is the "decision or action" to which 8 U.S.C. § 1252(a)(2)(B)(ii) refers, the final agency order in this case would not be the Attorney General's rejection of Cho's application for a hardship waiver. Rather, it would be the removal order itself, which is the final decision of the Attorney General that we have jurisdiction to review under 8 U.S.C. § 1252(a)(1). See Subhan v. Ashcroft, 383 F.3d 591, 594 (7th Cir. 2004). And the removal order is not a decision or action the authority for which is specified by the relevant statute to be in the discretion of the Attorney General. See id.
Accordingly, and contrary to the position he takes in his brief, the Attorney General needs us to look to the rationale underlying his order, and not simply the nature of the order itself, if 8 U.S.C. § 1252(a)(2)(B)(ii) is ever to preclude court review of a final removal order. And in this case, the rationale for the final removal order was not that the Attorney General, in an exercise of the discretion conferred upon him by 8 U.S.C. § 1186a(c)(4)(B), saw fit to reject Cho's application for a hardship waiver; it was that Cho is ineligible as a matter of law for a discretionary hardship waiver under § 1186a(c)(4)(B) because she failed to establish that she married in good faith. So even if we assume arguendo that the "decision or action" to which § 1252(a)(2)(B)(ii) refers in the context of this case is not the removal order, but is the specific decision leading to the removal order, we would not accept the Attorney General's characterization of that decision as involving a discretionary denial of a hardship waiver to an eligible alien under § 1186a(c)(4)(B).
Treating the Attorney General's ineligibility ruling as the relevant "decision or action" (again, assuming for the sake of argument that the relevant "decision or action" is not the removal order itself) is consistent with the approach we have taken in other cases interpreting similar jurisdiction-stripping provisions of the IIRIRA. In those cases, we have consistently emphasized that, in deciding whether a jurisdiction-stripping statute applies, we should engage in a precise reading of both the agency decision and the petition. See Succar v. Ashcroft, 394 F.3d 8, 20 (1st Cir. 2005) (interpreting 8 U.S.C. § 1252(a)(2)(B)(i)); Prado v. Reno, 198 F.3d 286, 288 (1st Cir. 1999) (also interpreting § 1252(a)(2)(B)(i)); Bernal-Vallejo v. INS, 195 F.3d 56, 61-62 (1st Cir. 1999) (interpreting IIRIRA § 309(c)(4)(E)).
The reasons for reading precisely provided in those cases pertain here as well. First, if Congress had intended to preclude all court review of agency decisions involving hardship waiver applications, it is hard to see why it would not have said so more clearly and categorically, using language such as that in, for example, IIRIRA § 309(c)(4)(G) ("[T]here shall be no appeal permitted in the case of an alien who is inadmissable or deportable by reason of having committed [certain criminal offenses]") -- a transitional rule which we have read to preclude all court review in the case of an alien who was deemed by the agency to be inadmissible or deportable by reason of having committed one of the specified criminal offenses. See Bernal-Vallejo, 195 F.3d at 62; see also Ruckbi v. INS, 159 F.3d 18, 21 (1st Cir. 1998). And short of using language of this sort, Congress certainly could have added 8 U.S.C. § 1186a(c)(4)(B) to the list of statutes described in 8 U.S.C. § 1252(a)(2)(B)(i) as involving "judgment
" that "no court shall have jurisdiction to review." See Prado, 198 F.3d at 290 (suggesting in dicta that the jurisdiction-stripping language of § 1252(a)(2)(B)(i) prohibits review of a "broader" range of agency decisions than does IIRIRA § 309(c)(4)(E), which, like § 1252(a)(2)(B)(ii), prohibits review of only certain discretionary "decisions"); but see Montero Martinez v. Ashcroft, 277 F.3d 1137, 1141-44 (9th Cir. 2002) (holding that the term "judgment" in § 1252(a)(2)(B)(i) encompasses only discretionary decisions by the Attorney General).
Second, the IIRIRA's jurisdiction-stripping provisions have been interpreted not to preclude judicial review "of the legal question of interpretation of the statute as to whether an alien is eligible for consideration of relief." Succar, 394 F.3d at 19 (emphasis added); see also Goncalves v. Reno, 144 F.3d 110, 125 (1st Cir. 1998) ("Analytically, the decision whether an alien is eligible to be considered for a particular discretionary form of relief is a statutory question separate from the discretionary component of the administrative decision whether to grant relief.").
Third, and relatedly, the eligibility ruling challenged here is not one that historically has been regarded as entirely discretionary. See Bernal-Vallejo, 195 F.3d at 63 (looking at pre-IIRIRA caselaw to determine whether a particular ruling should be regarded as purely discretionary or as having a reviewable legal component). Rather, it is a question the resolution of which has been regarded as circumscribed by a legal standard. See Rodriguez v. INS, 204 F.3d 25, 27 (1st Cir. 2000) (adopting and applying a legal standard -- "whether, at the time of the marriage, there was an intent to establish a life together" -- in reviewing the Attorney General's determination that the petitioner failed to establish that he had married in good faith) (citation and quotation marks omitted); see also, e.g., Damon v. Ashcroft, 360 F.3d 1084, 1088-89 (9th Cir. 2004) (concluding, in light of governing legal principles and without discussion of any jurisdictional issues, that there was no substantial evidence to support the Attorney General's determination that an alien was ineligible for § 1186a(c)(4)(B) relief because she failed to prove that she had married in good faith). It also is a question whose resolution is informed by objective regulatory criteria set forth at 8 C.F.R. § 216.5(e)(2) (listing factors to be considered in assessing whether a marriage was entered into in good faith). Cf. Bernal-Vallejo, 195 F.3d at 62 (observing that inquiries guided by objective statutory criteria are not discretionary).
You are right, the gentleman can file a motion to reconsider/alter judgment within 10 days (see FRCP 59(e)) after the judgment is entered (this is important, because the judgment usually entered the next day after an order is issued so there is an extra day). I've seen that order which basically does not give any explanations and only refers to the mentioned case.