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Tenth Circuit Deems Lower Court’s Removal Decision Unreviewable

673264_hammer_to_fall.jpgIn the case of Peter Munis v. Eric Holder, an immigration judge ordered the removal of Munis, a Tanzanian citizen for failure to maintain non-immigrant status. Munis appealed to the Board of Immigration Appeals, which dismissed his appeal. When Munis petitioned the Tenth Circuit Court of Appeals to review the BIA decision, the Tenth Circuit refused for lack of jurisdiction.

The judicial system is predicated on a number of legal concepts, cases and procedures that have accreted into a vast and complex legal system. In order to win a legal case, intimate knowledge of this system is required. As an immigration attorney in Texas, I am always eager to learn how judges use precedents and case law to make a determination, in order to provide greater expertise to my clients.

In Munis v. Holder, the judges of the Tenth Circuit found they lacked jurisdiction to review the BIA’s dismissal of appeal. This was grounded in the fact that the appeal was not predicated upon a legal or constitutional question, but rather in a discretionary decision.

Munis entered the U.S. as a nonimmigrant student in 1999. He left school and acquired a job without authorization. Removal proceedings were initiated in 2006 due to his failure to maintain non-immigrant status. Munis conceded to the charge of removability, but requested discretionary relief due to his marriage to a citizen of the United States.
Munis was denied relief due to his prior commission of a crime involving moral turpitude. He requested a waiver of inadmissibility due to extreme hardship upon his wife, but this was denied by the IJ. Munis requested voluntary departure which was also denied. Upon appeal, the BIA also denied the petition.

The Tenth Circuit found that the denial of the waiver of inadmissibility, the hardship determination and denial of voluntary departure were all discretionary decisions, which may not be appealed in general. The court stated that only questions of law or constitutionality could be reviewed. Citing Schroek v. Gonzales, the court argued that a denial of a waiver of inadmissibility is unreviewable.

Federal statutes cited by the court explicitly state that decisions regarding waivers of inadmissibility made by the Attorney General are not reviewable by the judiciary. In matters of immigration and national security, the office of the Attorney General is granted great latitude to operate by the legislative branch. The courts may only consider appeals if they question the constitutionality of such powers.

In reviewing Munis v. Holder, I recognize that the federal government retains certain broad powers that make appeals in some cases unwise or impossible to appeal. As an immigration attorney, I understand that some powers are expressly granted to the Department of Justice which cannot be normally contested. The majority of cases where an appeal may be filed and successfully pursued include a question of law, rather than about discretionary decisions.

Lyttle Law Firm, PLLC, has provided legal services to many clients appealing a decision by an immigration judge or the Board of Immigration Appeals. Our office is always available at (512) 215-5225 to discuss your case.