JURISDICTION OVER IMMIGRATION PETITIONS
AND STANDARDS OF REVIEW

 

Table of Contents

I.            OVERVIEW.. 1

II.          APPLICABLE STATUTORY PROVISIONS. 1

III.        GENERAL JURISDICTIONAL PROVISIONS. 1

A.          Commencement of Proceedings. 1

B.          Petition for Review Exclusive Means for Judicial Review over Final Orders of Deportation and Removal 1

C.          Final Order of Deportation or Removal 1

1.           Definition. 1

2.           Scope of “Final Order” of Deportation or Removal 1

D.          Timeliness. 1

1.           Petitions for Review.. 1

2.           Habeas Appeals. 1

E.          Venue. 1

F.           Stay Issues 1

1.           No Automatic Stay of Removal Pending Review.. 1

2.           Voluntary Departure Stays 1

3.           Stay of the Court’s Mandate. 1

G.          Exhaustion. 1

1.           Exceptions to Exhaustion. 1

a.         Constitutional Challenges 1

b.         Futility and Remedies “Available … As of Right”. 1

c.          Nationality Claims. 1

d.         Events Occurring after Briefing before the Board. 1

e.          Habeas Review.. 1

H.          Departure from the United States. 1

1.           Review of Removal Orders. 1

2.           Review of Motions to Reopen. 1

I.            Fugitive Disentitlement Doctrine. 1

J.            Proper Respondent 1

K.          Reorganization of the Immigration and Naturalization Service. 1

L.           Reorganization of Administrative Regulations. 1

M.         Exclusion Orders 1

IV.        LIMITATIONS ON JUDICIAL REVIEW OF DISCRETIONARY DECISIONS  1

A.          Definition of Discretionary Decision. 1

B.          Enumerated Discretionary Decisions. 1

1.           Subsection (i) – Permanent Rules. 1

2.           Transitional Rules. 1

3.           Cases Addressing Jurisdiction over Certain Enumerated Discretionary Decisions. 1

a.         Cancellation of Removal/Suspension of Deportation. 1

b.         Adjustment of Status. 1

c.          Voluntary Departure. 1

C.          Judicial Review Remains Over Non-Discretionary Determinations 1

D.          Jurisdictional Bar Limited to Statutory Discretionary Eligibility Requirements 1

E.          Jurisdiction Over Constitutional Issues and Questions of Law.. 1

F.           Authorized and Specified Discretionary Decisions–Subsection (ii) 1

1.           Particularly Serious Crime Determinations 1

G.          Asylum Relief 1

1.           Eligibility Restrictions Generally Not Subject to Review.. 1

a.         One-Year Bar 1

b.         Previous-Denial Bar 1

c.          Safe Third Country Bar 1

d.         Terrorist Activity Bar 1

2.           Standard of Review.. 1

V.          LIMITATIONS ON JUDICIAL REVIEW BASED ON CRIMINAL OFFENSES  1

A.          Judicial Review Framework Before Enactment of the REAL ID Act of 2005  1

B.          The Current Judicial Review Scheme under the REAL ID Act of 2005. 1

1.           Expanded Jurisdiction on Direct Review.. 1

2.           Applicability to Former Transitional Rules Cases. 1

3.           Contraction of Habeas Jurisdiction. 1

VI.        EXCLUSIVE JURISDICTION PROVISION – 8 U.S.C. § 1252(g) 1

VII.      JURISDICTION OVER CERTAIN MOTIONS. 1

A.          Jurisdiction Over Motions to Reopen. 1

B.          Motions for Continuance. 1

VIII.    JURISDICTION OVER OTHER PROCEEDINGS. 1

A.          Expedited Removal Proceedings. 1

B.          Legalization Denials. 1

C.          Registry. 1

D.          In Absentia Removal Orders 1

E.          Reinstated Removal Proceedings. 1

F.           Discretionary Waivers 1

1.           Three and Ten-Year Unlawful Presence Bars 1

2.           Document Fraud Waiver 1

3.           Criminal Inadmissibility Waivers 1

4.           Fraud Waivers 1

G.          Inadmissibility on Medical Grounds 1

H.          Administrative Closure. 1

I.            BIA Rejection of Untimely Brief 1

J.            Denial of Registry. 1

K.          Appeal by Certification. 1

L.           Administrative Removal 1

IX.        SCOPE AND STANDARD OF REVIEW... 1

A.          Scope of Review.. 1

1.           Where BIA Conducts De Novo Review.. 1

2.           Where BIA Conducts Abuse of Discretion Review.. 1

3.           Where BIA Incorporates IJ’s Decision. 1

4.           Burbano Adoption and Affirmance. 1

5.           Where BIA’s Standard of Review is Unclear 1

6.           Single Board Member Review.. 1

7.           Streamlined Cases 1

a.         Jurisdiction Over Regulatory or “As-Applied” Challenges to Streamlining. 1

b.         Streamlining and Multiple Grounds 1

c.          Novel Legal Issues. 1

d.         Streamlining and Motions to Reopen. 1

8.           Review Limited to BIA’s Reasoning. 1

9.           Review Generally Limited to Administrative Record. 1

10.        Judicial and Administrative Notice. 1

11.        No Additional Evidence. 1

12.        Waiver 1

a.         Exceptions to Waiver 1

(i)          No Prejudice to Opposing Party. 1

(ii)         Manifest Injustice. 1

13.        Agency Bound by Scope of 9th Circuit’s Remand. 1

a.         Scope of BIA’s Remand. 1

14.        Where Agency Ignores a Procedural Defect 1

15.        Collateral Estoppel 1

B.          Standards of Review.. 1

1.           De Novo Review.. 1

a.         Chevron Deference. 1

2.           Substantial Evidence Review.. 1

3.           Abuse of Discretion Review.. 1

a.         Failure to Provide Reasoned Explanation. 1

b.         Failure to Consider Arguments or Evidence. 1

C.          Boilerplate Decisions 1

 


JURISDICTION OVER IMMIGRATION PETITIONS AND STANDARDS OF REVIEW

I.       OVERVIEW

          Congress has amended the judicial review provisions of the Immigration and Nationality Act (“INA”) several times since 1996.

          Before 1996, judicial review of most administrative action under the INA was governed by 8 U.S.C. § 1105a, which gave exclusive jurisdiction for judicial review over final orders of deportation to the courts of appeals.  See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 476 (1999).

          In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104–208, 110 Stat. 3009, as amended by Pub. L. No. 104–302, 110 Stat. 3656 (Oct. 11, 1996) and by NACARA, Pub. L. No. 105–100, § 203(a)(2), 111 Stat. 2160 (1997), and the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104–132, 110 Stat. 1214.  “IIRIRA … repealed the old judicial-review scheme set forth in § 1105a and instituted a new (and significantly more restrictive) one in U.S.C. § 1252.”  Reno, 525 U.S. at 475.  For example, IIRIRA placed significant limits on judicial review over certain discretionary determinations and petitions for review brought by individuals convicted of certain enumerated offenses.  Cases that were pending when IIRIRA took effect on April 1, 1997, were to be governed by § 1105a, as modified by the IIRIRA transitional rules.  See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997), superseded by statute as stated in Trejo-Mejia v. Holder, 593 F.3d 913, 915 (9th Cir. 2010) (order).

          In May 2005, Congress enacted the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), which made several more significant changes to the judicial review provisions of the INA.  Although the REAL ID Act did not repeal any of the existing statutory limits on the scope of judicial review implemented by IIRIRA, it eliminated statutory and non-statutory habeas jurisdiction over final orders of removal, deportation and exclusion, and made a petition for review filed with an appropriate court of appeals the sole and exclusive means for judicial review of such orders.  Thus, the REAL ID Act restored the pre-IIRIRA scheme of limiting judicial review over final orders of removal and deportation to the courts of appeal, while maintaining IIRIRA’s limits on review over certain discretionary determinations and cases involving enumerated offenses.  See REAL ID Act § 106(a) (amending 8 U.S.C. § 1252).  Simultaneously, the REAL ID Act expanded the scope of direct judicial review of final orders of removal and deportation by providing explicitly for review of all constitutional claims and questions of law related to such final orders.  See REAL ID Act § 106(a)(1)(A); 8 U.S.C. § 1252(a)(2)(D) (as amended).

          The REAL ID Act made this new judicial review scheme applicable to both cases governed by the permanent rules and those governed by IIRIRA’s transitional rules by providing that a petition for review filed under the transitional rules shall be treated as being filed under the permanent provisions of 8 U.S.C. § 1252.  See REAL ID Act § 106(d) (uncodified); Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir. 2005) (explaining that jurisdiction over transitional rules cases is now governed by 8 U.S.C. § 1252 rather than 8 U.S.C. § 1105a).

The REAL ID Act’s amendments to the judicial review provisions of the INA and IIRIRA are effective as to all final administrative orders of removal, deportation, or exclusion issued before, on, or after May 11, 2005, the date of enactment, and thus govern all pending petitions for review.  See REAL ID Act § 106(b) (uncodified).

II.      APPLICABLE STATUTORY PROVISIONS

          Petitions for review have been divided into three categories for purposes of judicial review:

A.      Permanent Rules:  The rules in 8 U.S.C. § 1252 apply to “removal” proceedings initiated on or after April 1, 1997.  See, e.g., Tawadrus v. Ashcroft, 364 F.3d 1099, 1102 (9th Cir. 2004).  Removal proceedings commence with the filing of a charging document, called a Notice to Appear, with the immigration court.  See infra Commencement of Proceedings.

B.      Old Rules:  The judicial review provisions in 8 U.S.C. § 1105a, as amended by AEDPA, apply if the final order of deportation or exclusion was entered before October 31, 1996.  See Velarde v. INS, 140 F.3d 1305, 1309 n.3 (9th Cir. 1998) (superseded by statute on other grounds) (holding that the old rules applied where the BIA decided case on September 30, 1996).

C.      Transitional Rules:  Where deportation proceedings were initiated before April 1, 1997, and the final agency order was entered on or after October 31, 1996, the IIRIRA transitional rules apply.  See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997).  The transitional rules are not codified, and are located in Pub. L. No. 104–208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Pub. L. No. 104–302, 110 Stat. 3656 (Oct. 11, 1996). Transitional rule cases were previously governed by 8 U.S.C. § 1105a, as modified by the “Transitional Changes in Judicial Review,” found in IIRIRA § 309(c)(4).  However, the REAL ID Act directs that jurisdiction in transitional rules cases is governed by 8 U.S.C. § 1252.  See REAL ID Act of 2005, Pub. L. No. 109-13, § 106(d), 119 Stat. 231, 311 (2005); Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir. 2005).

III.    GENERAL JURISDICTIONAL PROVISIONS

A.      Commencement of Proceedings

          The relevant regulation, entitled “Jurisdiction and commencement of proceedings,” dictates that “[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court.”  8 C.F.R. § 1003.14(a).  A charging document is “the written instrument which initiates a proceeding before an Immigration Judge,” and one of the enumerated examples is a notice to appear. 8 C.F.R. § 1003.13.

Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019).  See also Samayoa-Martinez v. Holder, 558 F.3d 897, 901 (9th Cir. 2009) (stating that formal removal proceedings commence when the INS has filed a Notice to Appear (“NTA”) in immigration court and concluding that the INS’s obligation to notify the alien of his rights did not attach until he was arrested and placed in formal proceedings); Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 597–98 (9th Cir. 2002) (removal proceedings commence when the NTA is filed with the immigration court).

          Information that the notice to appear must contain is specified in the regulation. See Karingithi, 913 F.3d 1158 (citing 8 C.F.R. § 1003.15(b), and recognizing that the time and date of removal proceedings are not specified in the regulation).

According to the regulation, a notice to appear must include specified information, such as “[t]he nature of the proceedings,” “[t]he acts or conduct alleged to be in violation of law,” and “[n]otice that the alien may be represented, at no cost to the government, by counsel or other representative.” 8 C.F.R. § 1003.15(b).  Importantly, the regulation does not require that the time and date of proceedings appear in the initial notice.  See id.  Rather, the regulation compels inclusion of such information “where practicable.”  8 C.F.R. § 1003.18(b) (emphasis added).  When “that information is not contained in the Notice to Appear,” the regulation requires the IJ to “schedul[e] the initial removal hearing and provid[e] notice to the government and the alien of the time, place, and date of hearing.”  Id.

Karingithi, 913 F.3d 1158.  The BIA recently interpreted the regulations in its precedential opinion Matter of Bermudez-Cota, 27 I. & N. Dec. 441, 441 (BIA 2018).  In Bermudez-Cota, the BIA explained that jurisdiction will vest in the immigration court, even if a notice to appear does not specify the time and place of the initial removal hearing, as long as a notice of hearing specifying that information is later sent to the alien.  Id. at 447.  The BIA stated that 8 C.F.R. § 1003.14(a) “does not specify what information must be contained in a ‘charging document’ at the time it is filed with an Immigration Court, nor does it mandate that the document specify the time and date of the initial hearing before jurisdiction will vest.”  Bermudez-Cota, 27 I. & N. Dec. at 445.  The BIA further stressed that  8 C.F.R. § 1003.15(b) (2018), which lists the information that must be contained in a notice to appear, does not mandate that the time and date of the initial hearing must be included in that document.”  Bermudez-Cota, 27 I. & N. Dec. at 445.

          Deferring to the BIA’s decision in Bermudez-Cota, the court held in Karingithi that where the notice specified the location of the removal hearing and indicated that the date and time were “To Be Set,” jurisdiction vested with the Immigration Court.  Because the petitioner received hearing notices specifying the time and date of her removal proceedings the same day as the notice to appear, the court did not address whether jurisdiction would have vested if she had not received the information in a timely manner.  Karingithi, 913 F.3d 1158.

          Apart from a certificate showing service, there are no other jurisdictional requirements for jurisdiction to vest when a notice to appear is filed in immigration court.  See Kholi v. Gonzales, 473 F.3d 1061, 1066–70 (9th Cir. 2007) (where name and title of issuing officer were not legible on NTA, alleged defect did not divest immigration court of jurisdiction); see also Karingithi, 913 F.3d 1158 (discussing requirements of notice, and concluding that where time and date of hearing were not including in notice to appear, jurisdiction nevertheless vested with the immigration court).  For example, the failure of the notice to appear to fully specify the aggravated felony statutory subsections alleged to be violated does not deprive the immigration court of jurisdiction.  See Lazaro v. Mukasey, 527 F.3d 977, 979–80 (9th Cir. 2008) (holding that the failure of the notice to appear to designate which subsection of the statute defining aggravated felony was applicable did not deprive immigration court of jurisdiction).

          The relevant date is the filing of the charging document, not the service of the document on the applicant.  See Cortez-Felipe v. INS, 245 F.3d 1054, 1056–57 (9th Cir. 2001) (proceedings did not commence until the INS filed the NTA even though the INS served petitioner with an OSC before April 1, 1997).

          Merely presenting oneself to the immigration service does not commence proceedings.  See Lopez-Urenda v. Ashcroft, 345 F.3d 788, 792–94 (9th Cir. 2003) (filing asylum application before the passage of IIRIRA did not commence proceedings or lead to a settled expectation of placement in deportation, rather than removal, proceedings); see also Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1108 (9th Cir. 2003) (filing of an asylum application before IIRIRA’s effective date did not lead to a settled expectation of placement in deportation, rather than removal, proceedings); Jimenez-Angeles, 291 F.3d at 600 (proceedings did not commence when applicant surrendered to INS).

B.      Petition for Review Exclusive Means for Judicial Review over Final Orders of Deportation and Removal

“The exclusive means to challenge an order of removal is the petition for review process.”  Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 2012) (holding that the district court lacked jurisdiction to review an Administrative Procedure Act claim that indirectly challenged an order of removal).  The REAL ID Act, Pub. L. No. 109-13, Div. B., 119 Stat. 231 (2005), eliminated district court habeas corpus jurisdiction over final orders of deportation or removal, and vested jurisdiction to review such orders exclusively in the courts of appeals.  See Martinez-Rosas v. Gonzales, 424 F.3d 926, 928–29 (9th Cir. 2005); see also Mamigonian v. Biggs, 710 F.3d 936, 941 (9th Cir. 2013) (“Habeas relief for final orders of removal is only available through a petition to the court of appeals.”); Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1085 (9th Cir. 2010) (concluding that district court lacked habeas jurisdiction to hear petitioner’s challenge to the denial of his adjustment of status application), overruled in part on other grounds by Garfias Rodriguez v. Holder, 702 F.3d 504, 516 (9th Cir. 2012). As amended by § 106(a) of the REAL ID Act, § 1252(a)(5) of the INA now provides:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e) of this section.

In addition to eliminating habeas corpus jurisdiction over final administrative orders, the REAL ID Act directed that all such petitions pending in the district court upon enactment, i.e., May 11, 2005, be transferred to the appropriate court of appeals and treated as if filed as a petition for review under INA § 242, 8 U.S.C. § 1252.

          Although the REAL ID Act did not address how to treat appeals of the denial of habeas corpus relief already pending in the court of appeals upon enactment, such appeals will in most cases be treated as timely petitions for review. See Morales-Izquierdo, 600 F.3d at 1085–86; Rafaelano v. Wilson, 471 F.3d 1091, 1095–96 (9th Cir. 2006); Almaghzar v. Gonzales, 457 F.3d 915, 918 n.1 (9th Cir. 2006); Martinez-Rosas, 424 F.3d at 929; see also Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1053 n.3 (9th Cir. 2005) (“[W]e make no comment on what should be done in the more unusual case where the pending habeas petition requires further factual development.  In such a case, construing a pending habeas petition as a petition for review might bar this court from remanding the petition for further fact-finding.”).

          “[I]n cases that do not involve a final order of removal, federal habeas corpus jurisdiction remains in the district court, and on appeal to this Court, pursuant to 28 U.S.C. § 2241.”  Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006); see also Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th Cir. 2012) (en banc) (per curiam) (“The REAL ID Act can be construed as being confined to addressing final orders of removal, without affecting federal habeas jurisdiction.”); Ali v. Gonzales, 421 F.3d 795, 797 n.1 (9th Cir. 2005) (order) (noting that the transfer provisions of the REAL ID Act do not apply where alien does not challenge a final order of removal) (as amended); cf. Morales-Izquierdo, 600 F.3d at 1082 (concluding that Reinstatement Order to which petitioner was subject qualified as an order of removal that could only be challenged in a petition for review, contrary to petitioner’s contentions).

          The elimination of habeas corpus review over final orders of removal and deportation does not violate the Suspension Clause.  See Puri v. Gonzales, 464 F.3d 1038, 1042 (9th Cir. 2006); see also Garcia de Rincon v. Dep’t of Homeland Security, 539 F.3d 1133, 1141 (9th Cir. 2008) (jurisdictional limitations on review of habeas petition challenging reinstatement of expedited removal order did not violate the Suspension Clause).

C.      Final Order of Deportation or Removal

1.       Definition

          “‘The carefully crafted congressional scheme governing review of decisions of the BIA limits this court’s jurisdiction to the review of final orders of removal.’” Galindo-Romero v. Holder, 640 F.3d 873, 877 (9th Cir. 2011) (quoting Alcala v. Holder, 563 F.3d 1009, 1013 (9th Cir. 2009)); see also Nicusor-Remus v. Sessions, 902 F.3d 895, 897 (9th Cir. 2018); Viloria v. Lynch, 808 F.3d 764, 767 (9th Cir. 2015) (concluding that court lacked jurisdiction to review BIA’s decision where final order of removal had not been entered); Aguilar-Turcios v. Holder, 740 F.3d 1294, 1299 (9th Cir. 2014) (jurisdiction to review final orders of removal under 8 U.S.C. § 1252); Ortiz-Alfaro v. Holder, 694 F.3d 955, 957 (9th Cir. 2012).  “A removal order is an order by an administrative officer ‘determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation.’”  Nicusor-Remus, 902 F.3d at 897 (quoting 8 U.S.C § 1101(a)(47)(A)); see also  Galindo-Romero, 640 F.3d at 877. “[W]here there is no final order of removal, this court lacks jurisdiction even where a constitutional claim or question of law is raised.”  Alcala v. Holder, 563 F.3d 1009, 1016 (9th Cir. 2009).

          The BIA is restricted to affirming orders of deportation or removal, and may not issue them in the first instance.  See Noriega-Lopez v. Ashcroft, 335 F.3d 874, 883–85 (9th Cir. 2003) (BIA acted beyond its authority when it vacated IJ’s termination of removal proceedings and issued removal order in the first instance).  However, where the BIA reverses an IJ’s grant of relief that, by definition, follows an initial determination by the IJ that the alien is in fact removable, an order of deportation or removal has already been properly entered by the IJ.  See Lolong v. Gonzales, 484 F.3d 1173, 1177 (9th Cir. 2007) (en banc) (overruling Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir. 2004), and holding that this court has jurisdiction to review a BIA’s order of removal following an initial determination of removability by the IJ); see also Muradin v. Gonzales, 494 F.3d 1208, 1209 (9th Cir. 2007) (concluding that the BIA’s order of removal followed an initial determination of removability where the petitioner conceded removability and the IJ’s grant of relief necessarily required the IJ to determine that the petitioner was removable).  In such cases, the BIA does not enter an order of deportation in the first instance when it orders the alien removed, but simply reinstates the order of removal that has already been entered by the IJ.  Lolong, 484 F.3d at 1177.

          An order of deportation “shall become final upon the earlier of – (i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.”  8 U.S.C. § 1101(a)(47)(B); see also Martinez v. Sessions, 873 F.3d 655, 658 (9th Cir. 2017) (as amended) (holding that the BIA’s dismissal of appeal of negative reasonable fear determination for lack of jurisdiction was final administrative order); Go v. Holder, 640 F.3d 1047, 1051–52 (9th Cir. 2011) (removal order did not become final and 30-day period for filing petition for review of that order did not run until the BIA rejected all claims, including the CAT claim it had previously remanded for further proceedings); Ocampo v. Holder, 629 F.3d 923, 928 (9th Cir. 2010) (removal order became final upon BIA’s affirmance of order, rather than upon alien’s overstay of voluntary departure period); Noriega-Lopez, 335 F.3d at 882–83; Kalaw v. INS, 133 F.3d 1147, 1150 n.4 (9th Cir. 1997) (“final order of deportation” includes BIA denial of a motion to reopen), superseded by statute on other grounds as stated in Trejo-Mejia v. Holder, 593 F.3d 913, 915 (9th Cir. 2010) (order); cf. Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1323–24 (9th Cir. 2006) (holding that res judicata does not bar INS from bringing additional charges where there is no final judgment and no separate action).

          Jurisdiction over the petition for review ends if the BIA grants an applicant’s motion to reopen because “there is no longer a final decision to review.”  Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002) (order) (dismissing, without prejudice, for lack of jurisdiction); see also Keshishyan v. Holder, 658 F.3d 888 (9th Cir. 2011) (order) (dismissing petition for lack of jurisdiction where the BIA reopened and terminated proceedings); Saavedra-Figueroa v. Holder, 625 F.3d 621, 624 (9th Cir. 2010) (The court “lack[s] jurisdiction over a petition for review when the BIA reopens an alien’s removal proceedings.”); Cordes v. Mukasey, 517 F.3d 1094, 1095 (9th Cir. 2008) (order) (vacating prior opinion and denying as moot pending petition for rehearing en banc where BIA had previously sua sponte reopened and remanded to IJ for further proceedings); Timbreza v. Gonzales, 410 F.3d 1082, 1083 (9th Cir. 2005) (order) (dismissing petition and advising parties to notify court when BIA reopens administrative proceedings while a petition for review is pending); cf. Plasencia-Ayala v. Mukasey, 516 F.3d 738, 746 (9th Cir. 2008) (the BIA’s grant of petitioner’s motion to reconsider did not divest the court of appeals of jurisdiction over alien’s petition for review where BIA affirmed its prior decision and BIA emphasized that it was granting motion for limited purpose), overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc).

          An order dismissing removal proceedings is not a final order of removal. See Alcala, 563 F.3d at 1013 (concluding court lacked jurisdiction where petitioner petitioned for review of proceedings that resulted in no order of removal whatsoever, and petitioner did not petition for review of a removal order, or an order denying a motion to reopen expedited proceedings that resulted in a removal order).

          The court generally has “jurisdiction over petitions for review from negative reasonable fear determinations in the context of the reinstatement of an expedited removal order under 8 U.S.C. § 1252.” Ayala v. Sessions, 855 F.3d 1012, 1015 (9th Cir. 2017).  In Ayala, the court determined that the “final” order in the case was the BIA’s dismissal of Ayala’s appeal, in part because the IJ’s decision had effectively (and misleadingly) instructed her to appeal to the BIA.  Id.  See also Padilla-Ramirez v. Bible, 882 F.3d 826, 834 (9th Cir. 2017) (as amended), cert. denied, 139 S. Ct. 411 (2018) (discussing Ayala).  Likewise in Martinez v. Sessions, 873 F.3d 655, 660 (9th Cir. 2017), the court concluded that the BIA’s dismissal of the petitioner’s appeal of a negative reasonable fear determination for lack of jurisdiction was a final administrative order.  Id.

          This court has exercised jurisdiction over an administrate removal order issued under 8 U.S.C. § 1228(b). See Gomez-Velazco v. Sessions, 879 F.3d 989, 992 (9th Cir. 2018) (discussing administrative removal process under 8 U.S.C. § 1228(b), and exercising jurisdiction over constitutional right to counsel claim raised by petitioner).

          The Department of Homeland Security’s (“DHS”) determination of a Visa Waiver Program entrant’s removability under 8 C.F.R. § 217.4(b) is an order of removal.  See Nicusor-Remus, 902 F.3d at 898.  In Nicusor-Remus, the court explained that if the DHS’s removal order had not been executed, the court would have jurisdiction; however, because the order was executed when Nicusor left the United States, there was no final order of removal over which the court had jurisdiction.  Id. at 898–99.

          An interim order of the BIA denying a stay of removal pending the disposition of petitioner’s motion to reopen is not a final order of removal which this court may review.  See Shaboyan v. Holder, 652 F.3d 988, 989–90 (9th Cir. 2011) (per curiam).  However, the order may be subject to review as part of a petition for review stemming from the final order of removal.  See id.

          In Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) (en banc), this court held that a BIA decision which denies some claims but remands other claims for relief to the IJ for further proceedings is not a final order of removal with regard to any claims, overruling Li v. Holder, 656 F.3d 898 (9th Cir. 2011) and Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013).  See Abdisalan, 774 F.3d at 526 (“when the BIA issues a mixed decision, no aspect of the BIA’s decision is ‘final’ for the purpose of judicial review”).  However, Abdisalan did not “revisit [the] rule that the BIA’s decision is a final order of removal when it remands for consideration of voluntary departure but denies all other forms of relief.”  See id. at 526 n.8.  Prior to Abdisalan, in Pinto v. Holder, 648 F.3d 976, 980 (9th Cir. 2011), the court held that “the BIA’s decision denying asylum, withholding of removal, and CAT protection but remanding to the IJ for voluntary departure proceedings is a final order of removal ... and, effectively, the only order that we can review.”  The court in Abdisalan did not overrule Pinto. Abdisalan, 774 F.3d at 526 n.8.  Thus under Pinto, a BIA’s order affirming the IJ’s denial of asylum, withholding of removal, and CAT relief, and remanding solely for voluntary departure is a final order of removal.  See Singh v. Lynch, 835 F.3d 880, 883 (9th Cir. 2016) (per curiam) (holding BIA’s order remanding solely for voluntary departure was a final order of removal and the petition to review that order was untimely).

          The court in Anderson v. Holder, 673 F.3d 1089, 1096 (9th Cir. 2012) held that “a removal order that has been executed against a U.S. citizen is ‘a final order of removal’ within the meaning of § 1252(a)” over which the court has jurisdiction.  Cf. Viloria v. Lynch, 808 F.3d 764, 769–70 (9th Cir. 2015) (distinguishing the case from Anderson and concluding that court lacked jurisdiction to review citizenship claim).

          “[A]n alien crew member’s petition for asylum and other relief in ‘asylum-only’ proceedings is the ‘functional equivalent’ of a final order of removal … within the meaning of 8 U.S.C. § 1252(a)(1).”  Nian v. Holder, 683 F.3d 1227, 1230 (9th Cir. 2012).

2.       Scope of “Final Order” of Deportation or Removal

          “[T]he term final orders in § 106(a) [8 U.S.C. § 1105a(a)] includes all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing.”  INS v. Chadha, 462 U.S. 919, 938 (1983) (internal quotation marks omitted); see also Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014) (holding that the court had jurisdiction to review the prior BIA decisions in the case because the final deportation order was contingent upon them); Montes v. Thornburgh, 919 F.2d 531, 535 (9th Cir. 1990); Mohammadi-Motlagh v. INS, 727 F.2d 1450, 1452 (9th Cir. 1984).

          Under the permanent rules, “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.”  8 U.S.C. § 1252(b)(9).  This statutory provision “speaks to . . . the need to consolidate (or ‘zip’) petitions for review into one action in the court of appeals.”  Flores-Miramontes v. INS, 212 F.3d 1133, 1139 (9th Cir. 2000); see also Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482–83 (1999) (describing § 1252(b)(9) as a “general jurisdictional limitation” which “channels judicial review” of immigration actions and decisions, and acts as a “‘zipper’ clause”); Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1082 (9th Cir. 2010) (“Under the zipper clause, any ‘questions of law and fact’ arising from an order of removal must be raised in a petition for review of that order. … It is known as the ‘zipper’ clause because it ‘consolidates or ‘zips’ judicial review of immigration proceedings into one action in the court of appeals.”), overruled in part on other grounds by Garfias Rodriguez v. Holder, 702 F.3d 504, 516 (9th Cir. 2012); Singh v. Gonzales, 499 F.3d 969, 976 (9th Cir. 2007) (discussing “zipper clause”).  “In the REAL ID Act, Congress amended the zipper clause explicitly to strip district courts of habeas corpus jurisdiction to hear challenges to final orders of removal, rendering courts of appeals with exclusive jurisdiction to hear challenges to removal orders.”  Morales-Izquierdo, 600 F.3d at 1082 n.6.  See also Martinez v. Napolitano, 704 F.3d 620, 621–22 (9th Cir. 2012) (“holding that 8 U.S.C. § 1252(a)(5) prohibits Administrative Procedure Act claims that indirectly challenge a removal order”).

D.      Timeliness

1.       Petitions for Review

          “The petition for review must be filed not later than 30 days after the date of the final order of removal.”  8 U.S.C. § 1252(b)(1); see also Martinez v. Sessions, 873 F.3d 655, 658 (9th Cir. 2017) (as amended); Singh v. Lynch, 835 F.3d 880, 882 (9th Cir. 2016) (per curiam) (holding BIA’s decision affirming denial of relief, but remanding to IJ for voluntary departure proceedings was final order of removal, and concluding court lacked jurisdiction to review petition filed more than 30 days after BIA’s initial decision); Abdisalan v. Holder, 774 F.3d 517, 521 (9th Cir. 2014) (en banc) (discussing finality of removal order when BIA issues a mixed decision); Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir. 2009) (where there was no appeal to the BIA, the petitioner had 30 days to petition the court for review after the IJ’s decision became final); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir. 2003); IIRIRA § 309(c)(4)(C) (transitional rules).  “This provision applies to all final orders of exclusion or deportation entered after October 30, 1996.”  Singh v. INS, 315 F.3d at 1188.  The time limit is “mandatory and jurisdictional” and “not subject to equitable tolling.”  Stone v. INS, 514 U.S. 386, 405 (1995); see also Martinez, 873 F.3d at 658; Ayala v. Sessions, 855 F.3d 1012, 1018 (9th Cir. 2017); Abdisalan, 774 F.3d at 521; Anderson v. Holder, 673 F.3d 1089, 1094 (9th Cir. 2012) (dismissing petition filed more than six years after statutory deadline); Yepremyan v. Holder, 614 F.3d 1042, 1043 (9th Cir. 2010) (per curiam) (“[A] petition for review must be filed no later than thirty days following the date of the final order of removal.  This time limit is mandatory and jurisdictional and not subject to equitable tolling.” (internal quotation marks and citation omitted)); Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir. 1996).

          The filing of a motion to reopen or reconsider does not toll the statutory time in which to appeal the underlying final order.  See Stone, 514 U.S. at 405–06; see also Martinez-Serrano, 94 F.3d at 1258.

          The time limit for filing a petition for review begins to run when the BIA mails its decision, which is presumed to be the date indicated on the cover letter to the decision.  See Yepremyan, 614 F.3d at 1043; Haroutunian v. INS, 87 F.3d 374, 375 (9th Cir. 1996).  The three-day grace period of Fed. R. App. P. 26(c) does not apply.  See Haroutunian, 87 F.3d at 377.  The time limit does not begin to run until the BIA mails its decision to the correct address.  See Martinez-Serrano, 94 F.3d at 1258–59; cf. Singh, 315 F.3d at 1188–90 (time limit began to run when BIA mailed decision to the applicant’s last known address where attorney never filed a notice of appearance).

          “In the absence of an appeal to the BIA, the IJ’s removal order [will become final], thirty days after the IJ’s decision.”  Minasyan, 553 F.3d at 1229.

          A petition for review is “filed” when it is received by the court.  See Sheviakov v. INS, 237 F.3d 1144, 1147–48 (9th Cir. 2001).  For instance, where a petition is sent via express mail and received at the court’s post office on the 30th day, the petition is timely even though it was not stamped by the Clerk’s office until the following day.  See id. at 1148.

          Fed. R. App. P. 26(a) governs appeals from administrative decisions. See Yepremyan, 614 F.3d at 1043–44 (concluding that the day after Thanksgiving is a legal holiday for purposes of calculating time under Fed. R. App. P. 26(a) and that the petition for review was timely); Haroutunian, 87 F.3d at 375 n.3 & 377 (recognizing that Fed. R. App. P. 26(a) governs administrative proceedings, but concluding that the three-day grace period of Fed. R. App. P. 26(c) does not apply because time for filing the petition for review begins to run from the date of the final deportation order was issued, and not from the date of the “service of paper”).

2.       Habeas Appeals

          A pending appeal of the district court’s denial of habeas relief converted by this court into a petition for review will be deemed timely.  See, e.g., Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1085 (9th Cir. 2010), overruled in part on other grounds by Garfias Rodriguez v. Holder, 702 F.3d 504, 516 (9th Cir. 2012); Almaghzar v. Gonzales, 457 F.3d 915, 917 (9th Cir. 2006); Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1053 (9th Cir. 2005); Martinez-Rosas v. Gonzales, 424 F.3d 926, 928–29 (9th Cir. 2005); cf. Puri v. Gonzales, 464 F.3d 1038, 1041 (9th Cir. 2006) (district court properly dismissed for lack of jurisdiction a habeas petition filed after the effective date of the REAL ID Act and attempting to challenge a final order of removal).

          An appeal from the district court’s denial of a 28 U.S.C. § 2241 habeas corpus petition must be filed within 60 days.  Fed. R. App. P. 4(a)(1)(B).

E.      Venue

          “The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.” 8 U.S.C. § 1252(b)(2); see also IIRIRA § 309(c)(4)(D); Trejo-Mejia v. Holder, 593 F.3d 913, 914–15 (9th Cir. 2010) (order) (transferring petition for review to Fifth Circuit).  Before IIRIRA, an applicant could file a petition for review in the judicial circuit where she resided, or in “the judicial circuit in which the administrative proceedings before a special inquiry officer were conducted in whole or in part.”  See 8 U.S.C. § 1105a(a)(2) (repealed 1996).

F.      Stay Issues

1.       No Automatic Stay of Removal Pending Review

          “Service of the petition [for review] does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” 8 U.S.C. § 1252(b)(3)(B); see also IIRIRA § 309(c)(4)(F).  Contra 8 U.S.C. § 1105a(a)(3) (repealed 1996) (providing for automatic stay of deportation in most cases upon service of the petition for review).  See also Leiva-Perez v. Holder, 640 F.3d 962, 964 (9th Cir. 2011) (per curiam) (non-dispositive opinion) (clarifying standard for stays of removal in light of Nken v. Holder, 556 U.S. 418 (2009)).  Under De Leon v. INS, 115 F.3d 643, 644 (9th Cir. 1997) (order), “[t]he filing of a motion for stay or a request for a stay contained in a petition for review will stay a petitioner’s deportation temporarily until the court rules on the stay motion.”  See also Rivera v. Mukasey, 508 F.3d 1271, 1277–78 (9th Cir. 2007); Ninth Circuit General Order 6.4(c) (setting forth procedures for stays of deportation or removal).

          A stay is not a matter of right, but rather an exercise of judicial discretion. See Nken, 556 U.S. at 433.  “[S]tays of removal are governed by ‘the traditional test for stays,’ rather than 8 U.S.C. § 1252(f)’s higher standard for enjoining an alien’s removal … .”  Leiva-Perez, 640 F.3d at 964 (quoting Nken, 556 U.S. at 433).  Factors governing whether a stay should issue include: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”  Nken, 556 U.S. at 426 (noting that there is substantial overlap between the traditional factors that govern the issuance of a stay and the factors governing preliminary injunctions).  Note that Nken raised the irreparable harm threshold.  See Leiva-Perez, 640 F.3d at 965.

          The stay of removal remains in place until this court issues its mandate.  See Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 856 (9th Cir. 2004).  Note the court may stay the mandate in certain instances.  See Myers v. Holder, 661 F.3d 1178, 1178–79 (9th Cir. 2011) (order) (staying mandate until BIA ruled on motion to reopen, and ordering that the mandate would be stayed pending disposition of the case if the BIA granted the motion to reopen, and in the alternative, the mandate would issue immediately if the BIA denied the motion to reopen).

2.       Voluntary Departure Stays

          The court lacks jurisdiction to review a discretionary denial of voluntary departure. 8 U.S.C. § 1229c(f) (“No court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure . . . nor shall any court order a stay of an alien’s removal pending consideration of any claim with respect to voluntary departure.”); Kalilu v. Mukasey, 548 F.3d 1215, 1217 n.1 (9th Cir. 2008) (per curiam) (stating the court lacked jurisdiction to review claim that BIA erred in denying his request for voluntary departure); Gomez-Lopez v. Ashcroft, 393 F.3d 882, 883–84 (9th Cir. 2005); Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003); Antonio-Cruz v. INS, 147 F.3d 1129, 1130 (9th Cir. 1998); cf. Padilla-Padilla v. Gonzales, 463 F.3d 972, 980–82 (9th Cir. 2006) (reviewing contention that BIA lacks authority in a streamlined summary affirmance to reduce the IJ’s period of voluntary departure). The court retains jurisdiction to review questions of law regarding voluntary departure.  See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 (9th Cir. 2013) (confirming that “the Real ID Act . . . restores appellate jurisdiction over constitutional claims or questions of law in challenges to denials of voluntary departure under § 1229c” and reviewing de novo the interpretation of “physically present” under § 1229c(b)); Gil v. Holder, 651 F.3d 1000, 1006 (9th Cir. 2011) (where no legal question was raised, and IJ denied voluntary departure as a matter of discretion, the court lacked jurisdiction, pursuant to 8 U.S.C. § 1252(a)(2)(B)(i)), overruled on other grounds by Moncrieffe v. Holder, 569 U.S. 184 (2013).

          The court previously held that it had equitable jurisdiction to grant a timely request for a stay of the voluntary departure period.  See El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003) (order), abrogation recognized by Garfias-Rodriguez v. Holder, 702 F.3d 504, 525 (9th Cir. 2012) (en banc).  The same preliminary injunction standard for obtaining a stay of removal applied to a request for a stay of voluntary departure.  Id.; see also Rivera v. Mukasey, 508 F.3d 1271, 1277–78 (9th Cir. 2007).  As a procedural matter, the court temporarily stayed “the voluntary departure period pending determination of a motion for stay of voluntary departure, according to the same procedures … in place for motions for stay of removal.”  El Himri, 344 F.3d at 1263 n.1 (citing De Leon v. INS, 115 F.3d 643 (9th Cir. 1997) (order) and Ninth Circuit General Order 6.4(c)).  However, El Himri was decided before 8 C.F.R. § 1240.26(i), which specifies that the filing of a petition for review shall terminate any grant of voluntary departure. See Garfias-Rodriguez, 702 F.3d at 525.

          Under the transitional rules, the voluntary departure period does not begin to run until this court issues its mandate; a request to stay the voluntary departure period is not necessary.  See Elian v. Ashcroft, 370 F.3d 897, 901 (9th Cir. 2004) (order) (denying as moot motion to stay voluntary departure period).

          Under the permanent rules, the voluntary departure period begins to run when the BIA renders its decision.  See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1172–74 (9th Cir. 2003) (announcing that Contreras-Aragon v. INS, 852 F.2d 1088 (9th Cir. 1988) (en banc), which held that the voluntary departure period was automatically stayed during the pendency of the petition for review, is no longer the law of the circuit after IIRIRA).

A motion for a stay of removal filed before expiration of the voluntary departure period is construed as including a timely motion to stay voluntary departure.  See Desta v. Ashcroft, 365 F.3d 741, 749–50 (9th Cir. 2004) (denying as unnecessary subsequent untimely motion to stay voluntary departure period).  Where the expiration of the voluntary departure period falls on a weekend or holiday it is deemed to fall on the next non-weekend and/or non-holiday day. See Barroso v. Gonzales, 429 F.3d 1195, 1204 (9th Cir. 2005); Salvador-Calleros v. Ashcroft, 389 F.3d 959, 964–65 (9th Cir. 2004).

          This court lacks jurisdiction to grant a voluntary departure stay where the request is filed after expiration of the voluntary departure period.  See Garcia v. Ashcroft, 368 F.3d 1157, 1159–60 (9th Cir. 2004) (order) (declining to reach the question of whether petitioners properly relied on Contreras-Aragon because the issue was not yet ripe for consideration); cf. Padilla-Padilla v. Gonzales, 463 F.3d 972, 982 (9th Cir. 2006) (remanding for the Board to consider whether Contreras-Aragon applies where the voluntary departure period expired before this court decided Zazueta-Carrillo).  Where the voluntary departure period expires on a weekend, and the petitioner files a timely petition for review and motion to stay removal on the next court day, the motion to stay voluntary departure is timely under Fed. R. App. P. 26(a).  See Salvador-Calleros, 389 F.3d at 965.  See also Meza-Vallejos v. Holder, 669 F.3d 920, 924–27 (9th Cir. 2012) (discussing voluntary departure and holding that where the last day of a voluntary departure period falls on a day on which the immigrant cannot file a motion for affirmative relief, that day does not count in the voluntary departure period if “the immigrant files on the first available day a motion that would either have tolled, automatically withdrawn, or otherwise affected his request for voluntary departure.”).

On  January 20, 2009, the Attorney General promulgated 8 C.F.R. § 1240.26(i), which specifies the filing of a motion to reopen or reconsider, or the filing of a petition for review before the court of appeals will terminate voluntary departure.  See 8 C.F.R. § 1240.26(c)(4), (e),(i); Garfias-Rodriguez v. Holder, 702 F.3d 504, 525 (9th Cir. 2012) (en banc) (joining the Sixth Circuit in finding the regulation to be a valid exercise of delegated power).  “[B]ecause the filing of a petition now automatically terminates a petitioner’s grant of voluntary departure, [the court has] no authority to issue an equitable stay of a petitioner’s voluntary departure period.”  Garfias-Rodriguez, 702 F.3d at 525.  Note the BIA has held that the regulation does not apply retroactively, but rather applies only to voluntary departure granted on or after January 20, 2009.  See Matter of Velasco, 25 I. & N. Dec. 143 (BIA 2009).

3.       Stay of the Court’s Mandate

          This court may, upon denial of a petition for review, stay its mandate to allow the applicant to seek additional relief.  See, e.g., Myers v. Holder, 661 F.3d 1178, 1178–79 (9th Cir. 2011) (order) (staying mandate until BIA ruled on motion to reopen, and ordering that the mandate would be stayed pending disposition of the case if the BIA granted the motion to reopen, and in the alternative, the mandate would issue immediately if the BIA denied the motion to reopen); Belishta v. Ashcroft, 378 F.3d 1078, 1081 (9th Cir. 2004) (order) (staying mandate to permit BIA to reopen and consider in the first instance eligibility for asylum based on fear of “other serious harm upon removal”); Flores-Miramontes v. INS, 212 F.3d 1133, 1143 (9th Cir. 2000) (staying mandate to permit filing of habeas corpus petition in district court); Khourassany v. INS, 208 F.3d 1096, 1101 (9th Cir. 2000) (staying mandate to permit applicant to seek reopening under Convention Against Torture); Ortiz v. INS, 179 F.3d 1148, 1152 (9th Cir. 1999) (staying mandate to permit applicants to seek reopening for relief under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”)); Ardon-Matute v. INS, 157 F.3d 696, 697 (9th Cir. 1998) (staying proceedings pending BIA’s adjudication of motion to reopen seeking NACARA relief); Aguilar-Escobar v. INS, 136 F.3d 1240, 1241 (9th Cir. 1998) (staying mandate to provide opportunity to reopen for NACARA relief); Echeverria-Hernandez v. INS, 946 F.2d 1481, 1482 (9th Cir. 1991) (en banc) (staying mandate pending resolution of administrative proceedings commenced pursuant to the American Baptist Churches settlement agreement); Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir. 1985) (60-day stay to permit applicant to seek reopening to present ineffective assistance of counsel claim); cf. Valderrama v. INS, 260 F.3d 1083, 1086 (9th Cir. 2001) (per curiam) (declining to stay the mandate).

G.      Exhaustion

This court may review a final order of removal only if “the alien has exhausted all administrative remedies available to the alien as of right.”  8 U.S.C. § 1252(d)(1); see also 8 U.S.C. § 1105a(c) (repealed 1996); Brown v. Holder, 763 F.3d 1141, 1153 (9th Cir. 2014) (denying challenge to removal order on the grounds the court lacked jurisdiction, but transferring the matter to the district court to makes findings of fact and draw conclusions of law as to his claim that he is entitled to United States citizenship).  An applicant’s failure to raise an issue to the BIA generally constitutes a failure to exhaust, thus depriving this court of jurisdiction to consider the issue.  See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (no subject-matter jurisdiction over legal claims not presented in administrative proceedings below); see also Garcia v. Lynch, 786 F.3d 789, 792–93 (9th Cir. 2015);  Alvarado v. Holder, 759 F.3d 1121, 1127 n.5 (9th Cir. 2014) (issue exhaustion is a jurisdictional requirement); Sola v. Holder, 720 F.3d 1134, 1135–36 (9th Cir. 2013) (declining to address a due process argument that was not raised below, which could have been addressed by the agency); Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (no jurisdiction to review legal claims not presented in the petitioner’s administrative proceedings before the BIA); Segura v. Holder, 605 F.3d 1063, 1065–66 (9th Cir. 2010) (no jurisdiction to review challenge to IJ’s authority to determine an alien’s residency status, where not raised before BIA); Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir. 2009) (no jurisdiction to review due process claim regarding waiver of right to counsel where petitioner failed to exhaust the claim).

          Exhaustion “‘prevent[s] premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors.’”  Arsdi v. Holder, 659 F.3d 925, 928 (9th Cir. 2011) (quoting Weinberger v. Salfi, 422 U.S. 749, 765 (1975)); see also Sola, 2720 F.3d at 1135–36.  A general challenge is insufficient.  See Alvarado, 759 F.3d at 1228; Arsdi, 659 F.3d at 929.  Although an alien need not use precise legal terminology to exhaust his claim, or provide a well-developed argument, the issue must be put before the agency to meet the exhaustion requirements.  Arsdi, 659 F.3d at 929 (concluding petitioner failed to meet even the minimum requirements for exhaustion); Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004) (“A petitioner cannot satisfy the exhaustion requirement by making a general challenge to the IJ’s decision, but, rather, must specify which issues form the basis of the appeal.”).  See also Garcia, 786 F.3d at 793 (exhaustion doctrine not employed in a formalistic manner); Agyeman v. INS, 296 F.3d 871, 877–78 (9th Cir. 2002) (“inartfully” raised due process claim and absence of “exact legalese”); Socop-Gonzalez v. INS, 272 F.3d 1176, 1183–84 (9th Cir. 2001) (en banc) (applicant that “never specifically invoked the phrase ‘equitable tolling’ in his briefs to the BIA … sufficiently raised the issue before the BIA to permit us to review the issue on appeal”); Cruz-Navarro v. INS, 232 F.3d 1024, 1030 n.8 (9th Cir. 2000) (addressing imputed political opinion argument even though issue was argued in “slightly different manner” below).

          “A pro se petitioner is not required to use the precise legal terminology … to make clear the basis of the challenge.”  Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011) (concluding petitioner’s pro se notice of appeal, while inartful, was sufficient to make clear the basis of his challenge, and thus satisfied the exhaustion requirement).  Even if a pro se petitioner’s brief is “inartful” it may be sufficient to put the BIA on notice of a claim.  See Coronado v. Holder, 759 F.3d 977, 986 (9th Cir. 2014) (concluding pro se brief to BIA sufficiently raised ineffective assistance of counsel claim, even though the brief was inartful).

          See, e.g., Miller v. Sessions, 889 F.3d 998, 1001 (9th Cir. 2018) (where petitioner put the BIA on notice of jurisdiction basis for motion, and BIA had an opportunity to pass on the issue, the issue was exhausted); Rizo v. Lynch, 810 F.3d 688, 693 (9th Cir. 2016) (failed to meaningfully challenge the IJ’s denial of asylum before the BIA); Garcia, 786 F.3d at 793 (petitioner sufficiently exhausted the issue where argument was made in brief motion to reconsider and accompanying declaration, and reiterated before the IJ and in the notice of appeal); Alvarado, 759 F.3d at 1128 (even construing the pro se petitioner’s claims liberally, he failed to raise even a general argument sufficient to exhaust the issue he was raising before the court); Segura, 605 F.3d at 1066 (broad statements in the notice of appeal and brief were insufficient to put the BIA on notice of petitioner’s claim); Velasco-Cervantes v. Holder, 593 F.3d 975, 978 n.3 (9th Cir. 2010) (petitioner’s mere citation to a case that discussed imputed political opinion on the last page of her brief to the BIA was insufficient to put the BIA on notice of the argument where she did not explicitly raise the issue in her asylum application, the written materials in support of her application, her notice of appeal to the BIA, or her appeal to the BIA), overruled on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc); Rendon v. Mukasey, 520 F.3d 967, 972 (9th Cir. 2008) (no jurisdiction over claim challenging certain conviction where brief submitted to BIA made no mention of conviction and rather made only a general challenge to IJ’s decision concerning removability); Tall v. Mukasey, 517 F.3d 1115, 1120 (9th Cir. 2008) (although petitioner “raised his due process rights in his brief to the BIA,” he failed to raise the particular procedural errors that he presented for the first time to the court of appeals, and thereby failed to exhaust his administrative remedies); Camposeco-Montejo v. Ashcroft, 384 F.3d 814, 821 (9th Cir. 2004) (no jurisdiction to review withholding of removal claim not raised in brief to BIA); Barron, 358 F.3d at 676–78 (no jurisdiction where BIA appeal failed to mention newly-raised procedural due process challenge).

          The exhaustion doctrine is not employed in a formalistic manner.  See Diaz-Jimenez v. Sessions, 902 F.3d 955, 959 (9th Cir. 2018); Garcia, 786 F.3d at 793; Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008).  Rather, the court must look to “whether the issue was before the BIA such that it had the opportunity to correct its error.”  Figueroa, 543 F.3d at 492; see also Diaz-Jimenez, 902 F.3d at 959 (to satisfy the exhaustion requirement, petitioner needs to “put the BIA on notice” in his appeal); Arsdi, 659 F.3d at 929.

When a petitioner files no brief and relies entirely on the notice of appeal to make an immigration argument, as he may do before the BIA, see 8 C.F.R. § 1003.38(f), then the notice of appeal serves in lieu of a brief, and he will be deemed to have exhausted all issues raised therein.  But when a petitioner does file a brief, the BIA is entitled to look to the brief for an explication of the issues that petitioner is presenting to have reviewed. Petitioner will therefore be deemed to have exhausted only those issues he raised and argued in his brief before the BIA.

Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam), overruling Ladha v. INS, 215 F.3d 889, 903 (9th Cir. 2000).  Note that prior to Abebe, this court had held that an “issue need not even be raised at all in the brief, if [] raised in the notice of appeal.”  Figueroa, 543 F.3d at 492; Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir. 2006); Ladha, 215 F.3d at 903.

          The policy concerns underlying exhaustion are satisfied where the BIA expressly adopts the IJ’s decision which explicitly discusses an issue.  See Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011) (explaining that discussion of issues by IJ was sufficient to overcome exhaustion where BIA adopted IJ’s reasoning and affirmed for reasons stated in IJ’s decision).  Where an issue was presented to the IJ, and the BIA affirms the IJ decision citing Burbano, the issue will be deemed exhausted.  See Mutuku v. Holder, 600 F.3d 1210, 1213 (9th Cir. 2010); Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th Cir. 2008) (“[W]hen the BIA cites Burbano … all issues presented before the IJ are deemed to have been presented to the BIA.”); see also Arsdi, 659 F.3d at 929–30; Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir. 2009) (where BIA adopted and affirmed IJ decision and cited Burbano, the court had jurisdiction to review asylum claim regardless of the clarity which aliens raised the timeliness issue before the BIA). Additionally, the court has found exhaustion where the IJ addressed an issue and petitioner raised it in his motion for reconsideration before the BIA, even though the BIA did not explicitly consider the argument in its denial.  See Singh v. Whitaker, 914 F.3d 654 (9th Cir. 2019).

          Where the BIA has addressed an issue, the issue has been exhausted.  See Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018) (court may review any issue addressed on the merits by the BIA, regardless of whether petitioner raised it before the agency); Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013) (same); Kin v. Holder, 595 F.3d 1050, 1055 (9th Cir. 2010) (although petitioners failed to state they were appealing the issue of adverse credibility to the BIA, because the BIA reviewed the issue, the court could properly exercise jurisdiction); Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009); Abebe v. Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (en banc); Socop-Gonzalez, 272 F.3d at 1186; Sagermark v. INS, 767 F.2d 645, 648 (9th Cir. 1985).

          The court does “not require an alien to exhaust administrative remedies on legal issues based on events that occur after briefing to the BIA has been completed.” Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004) (applicants exhausted administrative remedies regarding repapering argument because agency’s repapering policies were issued after briefing before the BIA); see also Olivas-Motta v. Whitaker, 910 F.3d 1271, 1279–80 (9th Cir. 2018) (explaining court retains jurisdiction over petitions where challenged agency action committed by Board after briefing was completed); Padilla-Padilla v. Gonzales, 463 F.3d 972, 977 (9th Cir. 2006) (concluding petitioner not required to exhaust claim that BIA acted improperly by reducing the voluntary departure period in a streamlined order, because reduction of voluntary departure period occurred after briefing before the BIA).

          The BIA’s use of the streamlined summary affirmance procedure does not eliminate the exhaustion requirement.  See Zara, 383 F.3d at 931.

1.       Exceptions to Exhaustion

a.       Constitutional Challenges

          “An exception to the exhaustion requirement has been carved for constitutional challenges to the Immigration and Naturalization Act and INS procedures,” Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir. 1994), because “[t]he BIA does not have jurisdiction to determine the constitutionality of the statutes it administers,” Padilla-Padilla v. Gonzales, 463 F.3d 972, 977 (9th Cir. 2006).  The BIA also lacks jurisdiction over, and an applicant thus need not exhaust, claims arising under international law.  See Padilla-Padilla, 463 F.3d at 977.

          See also Chettiar v. Holder, 665 F.3d 1375, 1379 n.2 (9th Cir. 2012) (noting that there is no administrative exhaustion requirement for constitutional due process challenges that involve more than mere procedural error that could be remedied by the agency, and concluding that the exception was inapplicable in the present case); Coyt v. Holder, 593 F.3d 902, 905 (9th Cir. 2010) (considering challenge to validity of 8 C.F.R. § 1003.2(d) because exhaustion doctrine does not bar review of a question concerning the validity of an INS regulation); Espinoza-Gutierrez v. Smith, 94 F.3d 1270, 1273–74 (9th Cir. 1996) (“[T]he exhaustion doctrine does not bar review of a question concerning the validity of an INS regulation because of conflict with a statute.”); Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir. 1985) (considering two due process claims not raised before the BIA); but see Lee v. Holder, 599 F.3d 973, 976 (9th Cir. 2010) (per curiam) (stating that petitioner’s apparent challenge to the validity of the regulations was not at issue, and that the court lacked jurisdiction because it was not exhausted).

          “Retroactivity challenges to immigration laws implicate legitimate due process considerations that need not be exhausted in administrative proceedings because the BIA cannot give relief on such claims.”  Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir. 2005) (per curiam); see also Saravia-Paguada v. Gonzales, 488 F.3d 1122, 1130 (9th Cir. 2007), implied overruling on other grounds as recognized by Cardenas-Delgado v. Holder, 720 F.3d 1111, 1118 (9th Cir. 2013).

          Nevertheless, “a petitioner cannot obtain review of procedural errors in the administrative process that were not raised before the agency merely by alleging that every such error violates due process.”  Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987) (“‘Due process’ is not a talismanic term which guarantees review in this court of procedural errors correctable by the administrative tribunal.” (quoting Reid v. Engen, 765 F.2d 1457, 1461 (9th Cir. 1985)).  “The key is to distinguish the procedural errors, constitutional or otherwise, that are correctable by the administrative tribunal from those that lie outside the BIA’s ken.”  Liu v. Waters, 55 F.3d 421, 426 (9th Cir. 1995); see also Sola v. Holder, 720 F.3d 1134, 1135–36 (9th Cir. 2013) (per curiam) (no jurisdiction over due process claim that agency could have addressed); Barron v. Ashcroft, 358 F.3d 674, 676–78 (9th Cir. 2004) (requiring exhaustion of due process claims concerning the denial of opportunity to present case and deprivation of right to counsel); Sanchez-Cruz v. INS, 255 F.3d 775, 780 (9th Cir. 2001) (due process claim alleging IJ bias must be exhausted).

b.      Futility and Remedies “Available … As of Right”

          “[T]here are a number of exceptions to the general rule requiring exhaustion, covering situations such as where administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void.”  Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (internal quotation marks omitted).

          However, an alien must exhaust “all administrative remedies available to the alien as of right.”  8 U.S.C. § 1252(d)(1) (emphasis added).  “Some issues may be so entirely foreclosed by prior BIA case law that no remedies are ‘available … as of right’ with regard to them before IJs and the BIA. The realm of such issues, however, cannot be broader than that encompassed by the futility exception to prudential exhaustion requirements.”  Sun v. Ashcroft, 370 F.3d 932, 942-43 (9th Cir. 2004) (“us[ing] the futility cases as a guide to the interpretation of the ‘available … as of right’ requirement”); see also Alvarado v. Holder, 759 F.3d 1121, 1128 (9th Cir. 2014) (“[I]f an issue is entirely foreclosed, such that the agency cannot give it unencumbered consideration, it is not available as of right and the statute does not require it to be exhausted, although prudential exhaustion requirements still apply.”  (internal quotation marks and citation omitted)); El Rescate Legal Servs., Inc. v. EOIR, 959 F.2d 742, 747 (9th Cir. 1991) (as amended) (“where the agency’s position on the question at issue ‘appears already set,’ and it is ‘very likely’ what the result of recourse to administrative remedies would be, such recourse would be futile and is not required”).

          “[M]otions to reconsider, like motions to reopen, are not ‘remedies available … as of right’ within the meaning of 8 U.S.C. § 1252(d)(1).”  Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003) (rejecting the INS’s contention that habeas petitioner was obliged to file a motion to reopen or reconsider before seeking review of the BIA’s order of removal).

c.       Nationality Claims

          The exhaustion requirement of 8 U.S.C. § 1252(d)(1) does not apply to nationality claims brought under 8 U.S.C. § 1252(b)(5).  See Theagene v. Gonzales, 411 F.3d 1107, 1111 (9th Cir. 2005); see also Ayala-Villanueva v. Holder, 572 F.3d 736, 738 (9th Cir. 2009) (non-dispositive opinion) (petition held in abeyance and matter transferred to District Court of Nevada pursuant to 8 U.S.C. § 1252(b)(5)(B)).

d.      Events Occurring after Briefing before the Board

“We do not require an alien to exhaust administrative remedies on legal issues based on events that occur after briefing to the BIA has been completed.”  Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004); see also Olivas-Motta v. Whitaker, 910 F.3d 1271, 1279–80 (9th Cir. 2018) (explaining court retains jurisdiction over petitions where challenged agency action committed by Board after briefing was completed); Padilla-Padilla v. Gonzales, 463 F.3d 972, 977–78 (9th Cir. 2006) (applicant need not have exhausted a challenge to the BIA’s reduction of the IJ’s voluntary departure period because it occurred after briefing).

e.       Habeas Review

          “On habeas review under § 2241, exhaustion is a prudential rather than jurisdictional requirement.”  Singh v. Holder, 638 F.3d 1196, 1203 n.3 (9th Cir. 2011).  Accordingly, the court may exercise its discretion to reach an issue not raised before the BIA.  See id.

H.      Departure from the United States

1.       Review of Removal Orders

          For cases governed by the permanent rules, departure from the United States does not terminate jurisdiction.  See 8 U.S.C. § 1252(a); Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir. 2006); see also Rivera v. Mukasey, 508 F.3d 1271, 1277 (9th Cir. 2007).  However, there needs to be “some remaining ‘collateral consequence’ that may be redressed by success on the petition.”  Del Cid Marroquin v. Lynch, 823 F.3d 933, 935–36 (9th Cir. 2016) (per curiam) (quoting Abdala v. INS, 488 F.3d 1061, 1064 (9th Cir. 2007)) (explaining that although granting Del Cid Marroquin’s petition will not guarantee his return to the United States, it will at least increase his chances of being allowed to do so. As such, the court could provide effective relief and his removal to El Salvador did not render the petition moot.). See also Blandino–Medina v. Holder, 712 F.3d 1338, 1342 (9th Cir. 2013) (holding that the petitioner’s removal did not moot his petition because a favorable ruling would have made it possible—at least hypothetically—for him to obtain a waiver of the ban on reentry).

In Chavez-Garcia v. Sessions,871 F.3d 991 (9th Cir. 2017), the court held that petitioner’s “departure from the United States, without more, [did] not provide clear and convincing evidence of a ‘considered’ and ‘intelligent’ waiver of the right to appeal.  Id. at 997.  The court explained that “[t]he IJ’s failure to inform [petitioner] that his departure would constitute a waiver of his previously reserved right to appeal to the BIA render[ed petitioner’s] purported waiver invalid.”  Id. at 997–98.

          For cases governed by the transitional rules, former 8 U.S.C. § 1105a(c), the court generally lacks jurisdiction to review a deportation order once the applicant departs from the United States. See 8 U.S.C. § 1105a(c) (“An order of deportation or of exclusion shall not be reviewed by any court if the alien … has departed from the United States after the issuance of the order.”); see also Stone v. INS, 514 U.S. 386, 399 (1995) (“Once an alien has been deported, the courts lack jurisdiction to review the deportation order’s validity.”); Kon v. Gonzales, 400 F.3d 1225, 1226 (9th Cir. 2005) (per curiam); Hajnal v. INS, 980 F.2d 1247, 1247 (9th Cir. 1992) (per curiam).  However, “[u]nder the Mendez exception, an alien outside the United States may petition for review of his deportation order when his departure was not ‘legally executed.’”  Zepeda-Melendez v. INS, 741 F.2d 285, 288, 290 (9th Cir. 1984) (“deportation of an alien without notice to his counsel is not a legally executed departure within the meaning of 8 U.S.C. § 1105a(c), and does not strip the court of jurisdiction to review the deportation order whether or not the alien was in custody at the time of deportation”); see also Wiedersperg v. INS, 896 F.2d 1179, 1181–82 (9th Cir. 1990) (deportation based on a vacated conviction was not legally executed).

          Cases governed by the transitional rules face a potentially anomalous situation because the court loses jurisdiction once the petitioner departs, see 8 U.S.C. § 1105a(c), and the filing of a petition for review no longer results in an automatic stay of deportation, see IIRIRA § 309(c)(4)(F).

          Note that the Ninth Circuit has not addressed the interplay between former 8 U.S.C. § 1105a(c), which eliminated jurisdiction in transitional rules cases once a petitioner departs the United States, and § 106(d) of the REAL ID Act, which directs that all petitions for review filed under the transitional rules shall be treated as if filed under the permanent rules of 8 U.S.C. § 1252.

2.       Review of Motions to Reopen

“[T]he text of IIRIRA makes clear that the statutory right to file a motion to reopen and a motion to reconsider is not limited by whether the individual has departed the United States.”  Toor v. Lynch, 789 F.3d 1055, 1060 (9th Cir. 2015).  In Toor, the court held that IIRIRA invalidated the regulatory departure bar set forth in 8 C.F.R. §§ 1003.2(d) and 1003.23(b)(1).  Furthermore, the regulatory departure bar is invalid, irrespective of the manner in which the movant departed the United States (voluntarily or involuntarily).  See Toor, 789 F.3d at 1064.

Where a petitioner has filed a motion to reopen, and then is involuntarily removed before the BIA has ruled on the motion, the BIA cannot deem the motion to reopen withdrawn.  See Coyt v. Holder, 593 F.3d 902, 906–07 (9th Cir. 2010) (holding that 8 C.F.R. § 1003.2 was invalid as applied to a forcibly removed petitioner).  Additionally, physical removal of a petitioner by the United States does not preclude the petitioner from pursuing a motion to reopen.  See Reyes-Torres v. Holder, 645 F.3d 1073, 1076–77 (9th Cir. 2011).  See also Toor, 789 F.3d at 1063 (explaining that in both Coyt and Reyes-Torres, the court held that IIRIRA invalidated the regulatory departure bar as applied to involuntary departures).

The court’s decision in Toor is not inconsistent with its prior decisions in Singh v. Gonzales, 412 F.3d 1117, 1120 (9th Cir. 2005) (holding the regulatory departure bar did not apply to noncitizens who departed before removal proceedings commenced) and Lin v. Gonzales, 473 F.3d 979, 982 (9th Cir. 2007) (concluding regulatory departure bard could not be applied where departure and motion to reopen followed conclusion of proceedings). See Toor, 789 F.3d at 1060 n.3.

I.       Fugitive Disentitlement Doctrine

          An applicant who fails to report for deportation or who fails to keep the courts apprised of his or her current address may have a petition for review dismissed under the fugitive disentitlement doctrine. “Although an alien who fails to surrender to the INS despite a lawful order of deportation is not, strictly speaking, a fugitive in a criminal matter, we think that he is nonetheless a fugitive from justice.  Like the fugitive in a criminal matter, the alien who is a fugitive from a deportation order should ordinarily be barred by his fugitive status from calling upon the resources of the court to determine his claims.”  Zapon v. Dep’t of Justice, 53 F.3d 283, 285 (9th Cir. 1995) (quoting Bar-Levy v. United States Dep’t of Justice, 990 F.2d 33, 35 (2d Cir. 1993) (citations omitted)); see also Antonio-Martinez v. INS, 317 F.3d 1089, 1091–93 (9th Cir. 2003) (applying the fugitive disentitlement doctrine where applicant had lost contact with his attorney and the agency and all efforts to contact him failed for over two years); cf. Maldonado v. Lynch, 786 F.3d 1155, 1161  (9th Cir. 2015) (en banc) (declining to apply the fugitive disentitlement doctrine because the petitioner did not flee); Bhasin v. Gonzales, 423 F.3d 977, 988–89 (9th Cir. 2005) (declining to uphold the BIA’s reliance on the fugitive disentitlement doctrine in denying motion to reopen because applicant failed to receive critical agency documents pertaining to his order of removal).

          The fugitive disentitlement doctrine is a “severe sanction that [the court does] not lightly impose.”  Bhasin, 423 F.3d at 987–88 (internal quotation marks omitted).  “[T]he critical question the court must ask when deciding whether to apply the fugitive disentitlement doctrine is whether the appellant is a fugitive at the time the appeal is pending.”  Sun v. Mukasey, 555 F.3d 802, 805 (9th Cir. 2009) (concluding that petitioner’s failure to report for removal where her whereabouts were known did not make her a fugitive, and thus it would be inappropriate to apply the fugitive disentitlement doctrine).  For disentitlement to be appropriate, there must be some connection between a defendant’s fugitive status and the appellate process.  See id.

          “Two justifications frequently advanced in support of dismissal on a fugitive disentitlement theory are: (1) the pragmatic concern with ensuring that the court’s judgment will be enforceable against the appellant; and (2) the equitable notion that a person who flouts the authority of the court waives his entitlement to have his appeal considered.”  Id. at 804.

J.       Proper Respondent

          The proper respondent in a petition for review is the Attorney General.  8 U.S.C. § 1252(b)(3)(A).  This court has not addressed whether the proper respondent in an immigration habeas petition under 28 U.S.C. § 2241 is the Attorney General, the Secretary of the Department of Homeland Security, or the immediate custodian.  See Armentero v. INS, 340 F.3d 1058, 1071–73 (9th Cir. 2003) (Secretary of the Department of Homeland Security and the Attorney General were the proper respondents), withdrawn, 382 F.3d 1153 (9th Cir. 2004) (order); see also Rumsfeld v. Padilla, 542 U.S. 426, 435 n.8 (2004) (declining to resolve whether the Attorney General is a proper respondent in an immigration habeas petition).

K.      Reorganization of the Immigration and Naturalization Service

          The INS was abolished on March 1, 2003 pursuant to the Homeland Security Act of 2002. See Hernandez v. Ashcroft, 345 F.3d 824, 828 n.2 (9th Cir. 2003).  Immigration functions were transferred to the following agencies within the newly-created Department of Homeland Security (“DHS”):

1.                 U.S. Immigration and Customs Enforcement (“ICE”), responsible for alien removal and detention.

2.                 U.S. Citizenship and Immigration Services (“USCIS”), responsible for immigration services such as naturalization, asylum, refugee processing, and adjustment of status.

3.                 U.S. Customs and Border Protection (“CBP”), responsible for border patrol and processing people through ports of entry.

L.      Reorganization of Administrative Regulations

          The administrative regulations governing immigration proceedings have been recodified at 8 C.F.R. § 1003 et seq., to reflect the transfer of INS functions to the DHS.  See 68 Fed. Reg. 9824 (Feb. 28, 2003) (Add 1000 to the old regulation cite to find the current regulatory cite).  The Executive Office for Immigration Review (“EOIR”), including the Board of Immigration Appeals and the Immigration Judges, remain under the Department of Justice. Id.

M.     Exclusion Orders

          Before IIRIRA, aliens who had not made an “entry” into the United States were placed in exclusion proceedings.  See Hose v. INS, 180 F.3d 992, 994 (9th Cir. 1999) (en banc).  “Under pre-IIRIRA law, the appropriate avenue for judicial review of a final order of exclusion was for the alien to file a petition for a writ of habeas corpus in the district court.”  Id.; see also 8 U.S.C. § 1105a(b) (repealed) (“any alien against whom a final order of exclusion has been made … may obtain judicial review of such order by habeas corpus proceedings and not otherwise”).

          IIRIRA’s permanent rules established a unified “removal” proceeding and eliminated the different jurisdictional tracks for deportation and exclusion proceedings. See Hose, 180 F.3d at 994 & n.1.  IIRIRA’s transitional rules redirected review of exclusion orders from the district courts to the courts of appeal.  See id. (citing IIRIRA § 309(c)(4)(A)).

IV.    LIMITATIONS ON JUDICIAL REVIEW OF DISCRETIONARY DECISIONS

          The IIRIRA permanent rules, applicable to removal proceedings initiated on or after April 1, 1997, bar review of certain discretionary decisions.  8 U.S.C. § 1252(a)(2)(B) states:

          Denials of discretionary relief

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review–

(i)      any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or

(ii)     any other 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, other than the granting of relief under section 1158(a) of this title.

          The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005) amended the INA by adding 8 U.S.C. § 1252(a)(2)(D), which states:

Judicial review of certain legal claims –

Nothing in subparagraph (B) … or in any other provision of this chapter (other than this section) 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 filed with an appropriate court of appeals in accordance with this section.

          Thus, notwithstanding any limitations on judicial review set forth in 8 U.S.C. § 1252(a)(2)(B), the court has jurisdiction to consider questions of law and constitutional questions raised in a petition for review challenging the agency’s discretionary denial of relief.  “In short, Congress repealed all jurisdictional bars to our direct review of final removal orders other than those remaining in 8 U.S.C. § 1252 (in provisions other than (a)(2)(B) … ) following the amendment of that section by the REAL ID Act.”  Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir. 2005), as adopted by 466 F.3d 1121, 1124 (9th Cir. 2006) (en banc).

A.      Definition of Discretionary Decision

          The Immigration and Nationality Act does not define what constitutes a discretionary decision.  See Hernandez v. Ashcroft, 345 F.3d 824, 833 (9th Cir. 2003).  This court has held that “determinations that require application of law to factual determinations are nondiscretionary.”  Id. at 833–34 (internal quotation marks and alteration omitted). On the other hand, “an inquiry is discretionary where it is a subjective question that depends on the value judgment of the person or entity examining the issue.”  Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir. 2003) (internal quotation marks omitted) (holding that court lacks jurisdiction to review the BIA’s exceptional and extremely unusual hardship determination).  A fact-intensive determination in which the equities must be weighed in reaching a conclusion is a prototypical example of a discretionary decision.”  Torres-Valdivias v. Holder, 786 F.3d 1147, 1153 (9th Cir. 2015) (as amended).

          “When the BIA acts where it has no legal authority to do so, it does not make a discretionary decision, and such a determination is not protected from judicial review.”  Hernandez, 345 F.3d at 847 (internal citations omitted) (BIA’s decision to deny adjustment based on non-viability of the marriage was contrary to law and therefore not discretionary); see also Spencer Enters., Inc. v. United States, 345 F.3d 683, 689 (9th Cir. 2003) (“Even if a statute gives the Attorney General discretion, … the courts retain jurisdiction to review whether a particular decision is ultra vires the statute in question.”).

          See also Idrees v. Whitaker, 910 F.3d 1103, 1105 (9th Cir. 2018) (explaining an administrative action is committed to agency discretion when the law is drawn so that a court would have no meaningful standard against which to review the agency’s exercise of discretion, and holding that BIA’s decision not to certify petitioner’s ineffective assistance of counsel claim was committed to agency discretion and not subject to judicial review).

B.      Enumerated Discretionary Decisions

1.       Subsection (i) – Permanent Rules

          Subsection (i) of § 1252(a)(2)(B) lists the following forms of discretionary relief:

8 U.S.C. § 1182(h)         Section 212(h), Criminal Inadmissibility Waiver

8 U.S.C. § 1182(i)          Section 212(i), Fraud or Misrepresentation Waiver

8 U.S.C. § 1229b            Cancellation of Removal

8 U.S.C. § 1229c            Voluntary Departure

8 U.S.C. § 1255              Adjustment of Status

2.       Transitional Rules

          Section 309(c)(4)(E) of IIRIRA contains a similar limitation on direct judicial review of discretionary decisions, stating that “there shall be no appeal of any discretionary decision under § 212(c), 212(h), 212(i), 244, or 245 of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act).”

          Section 309(c)(4)(E) refers to the following forms of discretionary relief:

Section 212(c)       Discretionary Waiver for Long-Time Permanent Residents

Section 212(h)      Criminal Inadmissibility Waiver

Section 212(i)       Fraud or Misrepresentation Waiver

Section 244           Suspension of Deportation

Section 245           Adjustment of Status

          Note that the REAL ID Act directs that a petition for review filed under IIRIRA’s transitional rules shall be treated as though filed under the permanent provisions of 8 U.S.C. § 1252.  See REAL ID Act § 106(d) (uncodified).

3.       Cases Addressing Jurisdiction over Certain Enumerated Discretionary Decisions

a.       Cancellation of Removal/Suspension of Deportation

          The court lacks jurisdiction to review the denial of an application for cancellation of removal in the exercise of discretion.  See Szonyi v. Whitaker, No. 15-73514, 2019 WL 573748, at *8 (9th Cir. Feb. 13, 2019) (The “court lacks jurisdiction to review the merits of a discretionary decision to deny cancellation of removal, but it does have jurisdiction to review whether the IJ considered relevant evidence in making this decision.”); Vilchez v. Holder, 682 F.3d 1195, 1200–01 (9th Cir. 2012); Bermudez v. Holder, 586 F.3d 1167, 1169 (9th Cir. 2009) (per curiam), implied overruling on other grounds recognized by Madrigal-Barcenas v. Lynch, 797 F.3d 643 (9th Cir. 2015).  The court also lacks jurisdiction to review the BIA’s determination of eligibility for special rule cancellation of removal under NACARA § 203.  See Monroy v. Lynch, 821 F.3d 1175, 1177 (9th Cir. 2016) (order) (“We lack jurisdiction to review the BIA’s discretionary denial of special rule cancellation of removal. … [A]s with non-NACARA cancellation of removal, § 1252(a)(2)(B)(i) bars us from reviewing the BIA’s discretionary denial of NACARA cancellation of removal.”); Lanuza v. Holder, 597 F.3d 970, 972 (9th Cir. 2010) (per curiam); cf. Barrios v. Holder, 581 F.3d 849, 857 (9th Cir. 2009) (reviewing BIA’s ruling that petitioner failed to establish threshold requirement for relief under NACARA, concluding that it was a mixed question of law and fact).

          The court lacks jurisdiction to review the agency’s discretionary determination that an applicant failed to establish the requisite hardship for cancellation of removal or suspension of deportation.  See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005); Romero-Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir. 2003) (permanent rules case); Kalaw v. INS, 133 F.3d 1147, 1152 (9th Cir. 1997) (transitional rules case), superseded by statute on other grounds as stated in Trejo-Mejia v. Holder, 593 F.3d 913, 915 (9th Cir. 2010) (order); see also Mendez-Castro v. Mukasey, 552 F.3d 975, 980–81 (9th Cir. 2009) (no jurisdiction to address claim that IJ’s decision was factually inconsistent with prior agency hardship determinations); Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir. 2008) (no jurisdiction to review denial of petitioner’s application for cancellation of removal where agency determined petitioner failed to establish hardship, but otherwise exercising jurisdiction over petition for review of removal order).  However, the court retains jurisdiction to review colorable constitutional claims or questions of law pertaining to the agency’s discretionary hardship determination.  8 U.S.C. § 1252(a)(2)(D); Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir. 2005) (court has jurisdiction to consider questions of statutory interpretation including whether the hardship standard is consistent with international law); Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004–06 (9th Cir. 2003) (challenge to agency’s interpretation of the hardship standard constitutes a colorable due process claim).

          The court lacks jurisdiction to review an abuse of discretion argument merely recharacterized as a due process argument.  See Torres-Aguilar v. INS, 246 F.3d 1267, 1270–71 (9th Cir. 2001) (contention that the agency violated due process by misapplying the facts of the case to the applicable law did not state a colorable constitutional claim); see also Martinez-Rosas, 424 F.3d at 930 (addressing jurisdiction under the REAL ID Act and concluding that petitioner failed to raise a colorable due process claim).

          The court also lacks jurisdiction to review the agency’s discretionary good moral character determination.  See Lopez-Castellanos v. Gonzales, 437 F.3d 848, 854 (9th Cir. 2006).  However, the court retains jurisdiction to review the agency’s determination that an applicant is statutorily precluded from establishing good moral character.  See Moran v. Ashcroft, 395 F.3d 1089, 1091 (9th Cir. 2005) (explaining that court has jurisdiction to “to determine whether a petitioner’s conduct falls within a per se exclusion category”), overruled on other grounds by Sanchez v. Holder, 560 F.3d 1028 (9th Cir. 2009) (en banc).

          The court retains jurisdiction to review the agency’s determination as to whether a petitioner met the continuous physical requirement for cancellation of removal or suspension of deportation.  Kalaw, 133 F.3d at 1150–51.

  The court lacks jurisdiction to review the denial of an application for cancellation of removal in the exercise of discretion.  See Ridore v. Holder, 696 F.3d 907, 911 (9th Cir. 2012).  However, “jurisdiction stripping provisions [of 8 U.S.C. § 1252(a)(2)(B)(i) do not apply where, … , the petitioner raises a question of law—[such as] whether the BIA acted within its regulatory authority.”  Id.  See also Szonyi, 2019 WL 573748, at *8 (The “court lacks jurisdiction to review the merits of a discretionary decision to deny cancellation of removal, but it does have jurisdiction to review whether the IJ considered relevant evidence in making this decision.”).

          The court has “jurisdiction over a constitutional challenge to a BIA decision denying cancellation of removal only if the constitutional claim is colorable, i.e., if it has some possible validity.”  Arteaga-De Alvarez v. Holder, 704 F.3d 730, 736 (9th Cir. 2012) (internal quotation marks and citation omitted) (concluding that petitioner did not present a colorable due process claim where she alleged that the “BIA’s hardship determination in a cancellation of removal case [was] factually inconsistent with similar prior agency hardship determinations.”).  The court also has jurisdiction to review a legal challenge to the denial of cancellation of removal.  Arteaga-De Alvarez, 704 F.3d at 737 (concluding that petitioner raised a colorable question of law subject to review where she alleged the BIA’s hardship determination was made on an erroneous legal standard).

          See also Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order) (concluding that denial of motion to reconsider was outside of court’s jurisdiction because the court could not reconsider the discretionary, fact-based determination that petitioners failed to demonstrate the requisite hardship and also that the court lacked jurisdiction over the motion to reopen to seek prosecutorial discretion based on the order of President Obama, citing 8 U.S.C. § 1252(g)).

b.      Adjustment of Status

          The court lacks jurisdiction to review a discretionary denial of adjustment of status.  See Torres-Valdivias v. Lynch, 786 F.3d 1147, 1151 (9th Cir. 2015) (“The BIA’s ultimate discretionary decision to deny Torres-Valdivias adjustment of status under 8 U.S.C. § 1255(i) is … unreviewable.”); Hosseini v. Gonzales, 471 F.3d 953, 956–57 (9th Cir. 2006) (where petitioner did not contend denial was unconstitutional or unlawful).  The court lacks jurisdiction to review an abuse of discretion argument recast as a due process argument.  See Bazua-Cota v. Gonzales, 466 F.3d 747, 748–49 (9th Cir. 2006) (per curiam) (order) (contention that the agency violated due process by failing to properly weigh the equities did not constitute a colorable constitutional claim).  However, “when addressing adjustment-of-status issues contained in final orders of removal,” the court has jurisdiction to review questions of law under 8 U.S.C. § 1252(a)(2)(D).  Torres-Valdivias, 786 F.3d at 1151 (“Pursuant to 8 U.S.C. § 1252(a)(2)(D), however, this court retains jurisdiction over constitutional questions and questions of law.”); Carrillo de Palacios v. Holder, 708 F.3d 1066, 1069 (9th Cir. 2013).

c.       Voluntary Departure

          “Voluntary departure is a discretionary form of relief that allows certain favored aliens – either before the conclusion of removal proceedings or after being found deportable – to leave the country willingly.”  Dada v. Mukasey, 554 U.S. 1, 8 (2008).  The court lacks jurisdiction to review the agency’s decision to grant or deny voluntary departure, as well as its discretionary decision to reduce a period of voluntary departure.  8 U.S.C. § 1229c(f); Esquival-Garcia v. Holder, 593 F.3d 1025, 1030 (9th Cir. 2010); Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1056 n.5 (9th Cir. 2006); cf. Padilla-Padilla v. Gonzales, 463 F.3d 972, 976 (9th Cir. 2006) (reviewing contention that BIA exceeded its authority by reducing in a streamlined summary affirmance the IJ’s period of voluntary departure).

          The court retains jurisdiction to review questions of law regarding voluntary departure.  See Corro-Barragan v. Holder, 718 F.3d 1174, 1176 (9th Cir. 2013) (jurisdiction over petition that raised question of statutory interpretation regarding the meaning of “physically present” in § 1229c(b)); Gil v. Holder, 651 F.3d 1000 (9th Cir. 2011) (where no legal question was raised, and IJ denied voluntary departure as a matter of discretion, the court lacked jurisdiction, pursuant to 8 U.S.C. § 1252(a)(2)(B)(i)), overruled on other grounds by Moncrieffe v. Holder, 569 U.S. 184 (2013).

          See also Meza-Vallejos v. Holder, 669 F.3d 920, 924 (9th Cir. 2012) (discussing voluntary departure generally).

C.      Judicial Review Remains Over Non-Discretionary Determinations

The limitation on judicial review of discretionary decisions applies only to those decisions involving the exercise of discretion.  See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002) (concluding that § 1252(a)(2)(B)(i) “eliminates jurisdiction only over decisions by the BIA that involve the exercise of discretion”).  Accordingly, the court retains jurisdiction over non-discretionary questions, such as whether the applicant satisfied the continuous physical presence requirement, and whether an adult daughter qualifies as a child.  See id. at 1144–45 (court retained jurisdiction to review the purely legal question of whether the applicant’s adult daughter qualified as a “child” for purposes of cancellation of removal).

See also Mancilla-Delafuente v. Lynch, 804 F.3d 1262, 1264 (9th Cir. 2015) (“Whether an offense is a CIMT is a purely legal question.”); Olivas-Motta v. Holder, 746 F.3d 907, 908 (9th Cir. 2013) (whether a conviction is for a crime of moral turpitude is a question of law, which the court has jurisdiction to review); Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir. 2010) (whether a crime involves moral turpitude is a question of law over which the court has jurisdiction, however, the court lacks jurisdiction to review the IJ’s exercise of discretion in denying the 212(h) waiver); Kohli v. Gonzales, 473 F.3d 1061, 1065–70 (9th Cir. 2007) (exercising jurisdiction to review the legal question of the sufficiency of the NTA); Freeman v. Gonzales, 444 F.3d 1031, 1037 (9th Cir. 2006) (court retained jurisdiction to review purely legal claim of whether applicant qualified as a spouse for purposes of adjustment of status); Gomez-Lopez v. Ashcroft, 393 F.3d 882, 884 (9th Cir. 2005) (court retained jurisdiction over IJ’s non-discretionary determination that cancellation applicant fell into one of the “per se exclusion categories” and lacked good moral character based on incarceration in county jail); Hernandez v. Ashcroft, 345 F.3d 824, 833–35 (9th Cir. 2003) (court retained jurisdiction over non-discretionary determination that VAWA applicant suffered “extreme cruelty”); Murillo-Salmeron v. INS, 327 F.3d 898, 901 (9th Cir. 2003) (court retained jurisdiction to review legal question of whether applicant’s DUI conviction rendered him inadmissible, thus requiring a § 212(h) waiver of inadmissibility); Molina-Estrada v. INS, 293 F.3d 1089, 1093–94 (9th Cir. 2002) (court retained jurisdiction to review whether applicant’s mother was a lawful permanent resident); cf. Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (abuse of discretion argument characterized as due process violation did not confer jurisdiction); Torres-Aguilar v. INS, 246 F.3d 1267, 1270–71 (9th Cir. 2001) (contention that BIA committed legal error by misapplying BIA precedent to her evidence of extreme hardship did not make the determination non-discretionary).

The court also retains “jurisdiction to review whether the BIA applied the correct discretionary waiver standard in the first instance.”  Murillo-Salmeron, 327 F.3d at 901 (holding that IIRIRA § 309(c)(4)(E) did not divest the court of jurisdiction where the BIA purported to affirm a discretionary decision that the IJ did not make) (internal quotation marks omitted); see also Cervantes-Gonzales v. INS, 244 F.3d 1001, 1005 (9th Cir. 2001) (court retained jurisdiction to review whether BIA applied the correct standard for determining eligibility for a § 212(i) waiver of inadmissibility).

D.      Jurisdictional Bar Limited to Statutory Discretionary Eligibility Requirements

This court has “interpreted section 309(c)(4)(E) to pertain to the statutory eligibility requirements found in INA § 244(a)(1) and to the ultimate discretionary decision whether to grant the suspension based on the merits of the case.”  Castillo-Perez v. INS, 212 F.3d 518, 524 (9th Cir. 2000).  An IJ’s decision to deem an application for suspension to be abandoned, and the BIA’s decision to dismiss a claim of ineffective assistance of counsel are not discretionary decisions under § 244 of the INA, and the court retains jurisdiction over these claims.  See id. (remanding for application of the law as it existed at the time of applicant’s original hearing).

E.      Jurisdiction Over Constitutional Issues and Questions of Law

          The court retains jurisdiction to consider both constitutional questions and questions of law raised in a petition for review of a discretionary decision.  8 U.S.C. § 1252(a)(2)(D); see also Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir. 2005), as adopted by 466 F.3d 1121, 1124 (9th Cir. 2006) (en banc); Rivera v. Lynch, 816 F.3d 1064, 1070 (9th Cir. 2015) (although no jurisdiction to review a final order removing an alien on account of a conviction for a CIMT, the court had jurisdiction to review the agency’s determination that the conviction was a CIMT); Fuentes v. Lynch, 788 F.3d 1177, 1180 (9th Cir. 2015) (per curiam) (jurisdiction to determine whether a particular offense constitutes an aggravated felony); Olivas-Motta v. Holder, 746 F.3d 907, 908 (9th Cir. 2013) (whether a conviction is for a crime of moral turpitude is a question of law, which the court has jurisdiction to review); Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012) (because due process requires IJ to consider relevant evidence, court has jurisdiction to review whether IJ considered evidence in deciding whether to grant cancellation of removal); Latter-Singh v. Holder, 668 F.3d 1156, 1159 (9th Cir. 2012) (considering whether a crime involved moral turpitude); Mendoza v. Holder, 623 F.3d 1299, 1301–02 (9th Cir. 2010) (although 8 U.S.C. § 1252(a)(2)(C) generally precludes review of orders against aliens removable on the grounds enumerated in 8 U.S.C. § 1182(a)(2), the court has jurisdiction to review constitutional claims and questions of law); Padilla-Padilla v. Gonzales, 463 F.3d 972, 978–80 (9th Cir. 2006) (reviewing post-REAL ID Act due process and international law challenge to the ten-year physical presence requirement and applicability of the stop-time rule); Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004–06 (9th Cir. 2003) (BIA’s interpretation of the exceptional and extremely unusual hardship standard did not violate due process); Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1166–67 (9th Cir. 2004) (due process and equal protection challenges to voluntary departure regime); Falcon Carriche v. Ashcroft, 350 F.3d 845, 850 (9th Cir. 2003) (due process challenge to streamlining procedure); Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir. 2003) (due process challenge based on IJ bias); Munoz v. Ashcroft, 339 F.3d 950, 954–57 (9th Cir. 2003) (due process, ineffective assistance of counsel, and equitable tolling contentions).

          “[J]urisdiction over ‘questions of law’ as defined in REAL ID Act includes not only ‘pure’ issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions of law and fact.”  Ramadan v. Gonzales, 479 F.3d 646, 648, 650 (9th Cir. 2007) (per curiam) (holding that court had jurisdiction to review IJ’s determination that petitioner failed to show changed circumstances to excuse the untimely filing of her asylum application).

F.      Authorized and Specified Discretionary Decisions–Subsection (ii)

          Under subsection (ii) of 8 U.S.C. § 1252(a)(2)(B),

no court shall have jurisdiction to review … any other decision or action of the Attorney General the authority for which is specified under [8 U.S.C. §§ 1151–1378] to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title [relating to asylum].

Spencer Enters., Inc. v. United States, 345 F.3d 683, 688–92 (9th Cir. 2003) (alterations in original) (quoting 8 U.S.C. § 1252(a)(2)(B)(ii), and holding that section did not preclude jurisdiction over a challenge to the denial of an immigrant investor visa pursuant to 8 U.S.C. § 1153(b)(5)).

          The Spencer court held that § 1252(a)(2)(B)(ii) does not bar review over all discretionary decisions, rather it applies only where the Attorney General’s discretionary authority is “specified” in the statute in question.  See Spencer, 345 F.3d at 689.  More specifically, for subsection (ii) to apply, “the language of the statute in question must provide the discretionary authority.”  Id.  Cf. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246–47 (9th Cir. 2008) (per curiam) (court retains jurisdiction to review IJ’s discretionary denial of a continuance because “[a]n immigration judge’s authority to continue a case is not ‘specified under’ the subchapter to be in the discretion of the Attorney General” (quoting Alsamhouri v. Gonzales, 484 F.3d 117, 122 (1st Cir. 2007)).

          Moreover, the “authority” to act must be in the discretion of the Attorney General, meaning that “the right or power to act is entirely within his or her judgment or conscience.”  Spencer, 345 F.3d at 690.  In order to bar review, the statute must give the Attorney General “pure discretion, rather than discretion guided by legal standards.”  Id.  But see Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010) (stating the court has “jurisdiction to review whether the BIA and IJ failed to consider the appropriate factors, … , or relied on improper evidence, … , in making the “particularly serious crime” determination.” (citations omitted)); Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir. 2007) (court retained jurisdiction to review IJ’s denial of withholding of removal based upon IJ’s finding that petitioner’s crime was a “particularly serious crime” because appeal raised legal question regarding what an IJ could consider in making the determination), abrogated on other grounds as stated by Anaya-Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir. 2010).

          “In general terms, if a legal standard from an appropriate source governs the determination in question, that determination is reviewable for a clarification of that legal standard.”  ANA Int’l, Inc. v. Way, 393 F.3d 886, 891 (9th Cir. 2004).  More specifically, “if the statutory provision granting the Attorney General power to make a given decision also sets out specific standards governing that decision, the decision is not in the discretion of the Attorney General.”  Id. at 892 (internal quotation marks omitted). Although the court may not look to agency practice as a source for the relevant legal standards, the court may use judicial precedent in order to interpret the relevant statutory standards. See id. at 893.

          See also Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (court retained jurisdiction to consider legal question regarding extent of Attorney General’s authority under post-removal-period detention statute); Mejia-Hernandez v. Holder, 633 F.3d 818, 823 (9th Cir. 2011) (discussing Kucana v. Holder, 558 U.S. 233 (2010)); Singh v. Holder, 591 F.3d 1190, 1193–94 (9th Cir. 2010) (Section 242(a)(2)(B)(ii) “precludes judicial review of a decision made under a particular statute only when the language of the statute in question ... provide[s] the discretionary authority for the Attorney General’s action (internal quotation marks and citation omitted)); Sandoval-Luna, 526 F.3d at 1246–47 (§ 1252(a)(2)(B)(ii) does not bar jurisdiction to review IJ’s discretionary denial of a continuance); Nath v. Gonzales, 467 F.3d 1185, 1188 (9th Cir. 2006) (§ 1252(a)(2)(B)(ii) does not bar jurisdiction over denial of motion to reopen) (citing Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir. 2004)); Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1142–43 (9th Cir. 2005) (court retained jurisdiction to consider statutory waiver under 8 U.S.C. § 1186a(c)(4) to remove conditional basis of permanent resident status because determination not purely discretionary); Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir. 2005) (as amended) (stating that § 1252(a)(2)(B)(ii) would preclude judicial review over agency’s discretionary determination that offense qualifies as “particularly serious”); San Pedro v. Ashcroft, 395 F.3d 1156, 1157–59 (9th Cir. 2005) (stating that court would have jurisdiction to review IJ’s statutory denial of § 237(a)(1)(H) waiver of removal but not discretionary denial of waiver); ANA Int’l, Inc. v. Way, 393 F.3d 886, 889–95 (9th Cir. 2004) (Attorney General’s decision to revoke visa under 8 U.S.C. § 1155 not barred by subsection (ii) as specified discretionary decision); Medina-Morales v. Ashcroft, 371 F.3d 520, 528–29 (9th Cir. 2004) (court retained jurisdiction over denial of motion to reopen to adjust status); Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 819 (9th Cir. 2004) (§ 1252(a)(2)(B)(ii) barred review of applicant’s claim that IJ should have permitted her to withdraw application for admission under 8 U.S.C. § 1225(a)(4) because decision committed by statute to discretion of Attorney General); Nakamoto v. Ashcroft, 363 F.3d 874, 878 (9th Cir. 2004) (court retained jurisdiction over IJ’s marriage fraud determination under 8 U.S.C. § 1227(a)(1)(G)(ii) because “the determination of whether a petitioner committed marriage fraud is not a decision the authority for which is specified under the INA to be entirely discretionary”); Hernandez v. Ashcroft, 345 F.3d 824, 833–35 (9th Cir. 2003) (determination of whether applicant suffered “extreme cruelty” a reviewable legal and factual determination).

          The REAL ID Act clarified that § 1252(a)(2)(B)(ii) applies regardless of whether the “judgment, decision, or action is made in removal proceedings.”  8 U.S.C. § 1252(a)(2)(B) (as amended by the REAL ID Act).  See generally ANA Int’l, Inc. v. Way, 393 F.3d 886, 891 (9th Cir. 2004) (assuming, but not deciding, applicability of subsection (ii) to a visa revocation decision under 8 U.S.C. § 1155); Spencer Enters., Inc. v. United States, 345 F.3d 683, 692 (9th Cir. 2003) (noting circuit split over whether subsection (ii) applies outside the context of removal proceedings).

1.       Particularly Serious Crime Determinations

Note that § 1252(a)(2)(B)(ii) does not bar review of the agency’s particularly serious crime determinations. See Kucana v. Holder, 558 U.S. 233 (2010) (Section 1252 (a)(2)(B)(ii) precludes judicial review only to Attorney General determinations made discretionary by statute, not to determinations declared discretionary by the Attorney General himself through regulation); Delgado v. Holder, 648 F.3d 1095, 1099–1100 (9th Cir. 2011) (en banc) (holding the court had jurisdiction to review the BIA’s particularly serious crime determination); Arbid v. Holder, 700 F.3d 379, 383 (9th Cir. 2012) (per curiam) (“[D]etermining whether a crime is particularly serious is an inherently discretionary decision, and we will review such decisions for abuse of discretion.”).  While the court cannot reweigh the evidence to determine if the crime was particularly serious, it does have jurisdiction to determine whether the agency applied the correct legal standard.  See Gomez-Sanchez v. Sessions, 892 F.3d 985, 990 (9th Cir. 2018); Blandino-Medina v. Holder, 712 F.3d 1338, 1343 (9th Cir. 2013); see also Pechenkov v. Holder, 705 F.3d 444, 448–49 (9th Cir. 2012) (the court lacked jurisdiction to review particularly serious crime determination where the petitioner asked only for a “re-weighing of the factors involved in that discretionary determination”).  As such, the court has jurisdiction to review “whether the BIA and IJ failed to consider the appropriate factors, … , or relied on improper evidence, , in making the ‘particularly serious crime’ determination.” Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010) (citations omitted).

The BIA’s determination that an alien was convicted of a particularly serious crime is a discretionary decision, reviewed for abuse of discretion.  See Alphonsus v. Holder, 705 F.3d 1031, 1043 (9th Cir. 2013), abrogated on other grounds by Guerrero v. Whitaker, 908 F.3d 541 (9th Cir. 2018).

Cross-reference: Criminal Issues in Immigration Law, Categories of Criminal Offenses, Particularly Serious Crimes.

          G.      Asylum Relief

Although asylum is a discretionary form of relief, 8 U.S.C. § 1252(a)(2)(B)(ii) explicitly exempts asylum determinations from the jurisdictional bar over discretionary decisions.  Morales v. Gonzales, 478 F.3d 972, 979 (9th Cir. 2007) (jurisdiction to review denial of petitioner’s asylum application because decisions whether to grant asylum are exempt from § 1252(a)(2)(B)(ii)’s jurisdiction-stripping mandate), abrogated on other grounds as stated by Anaya-Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir. 2010); Hosseini v. Gonzales, 471 F.3d 953, 956 (9th Cir. 2006) (jurisdiction to review the BIA’s discretionary denial of asylum application).

1.       Eligibility Restrictions Generally Not Subject to Review

          Several restrictions on eligibility for asylum, however, are generally not subject to judicial review:

a.       One-Year Bar

Under IIRIRA, effective April 1, 1997, an applicant must demonstrate by clear and convincing evidence that his or her asylum application was filed within one year after arrival in the United States.  8 U.S.C. § 1158(a)(2)(B); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir. 2001), superseded by statute as stated in Ramadan v. Gonzalez, 479 F.3d 646 (9th Cir. 2007).  The first day of the one-year period for filing an asylum application is the day after the alien arrived in the United States.  See Minasyan v. Mukasey, 553 F.3d 1224, 1227 (9th Cir. 2009).

          Pursuant to 8 U.S.C. § 1158(a)(3), the court lacks jurisdiction to review the agency’s determination that an asylum application is not timely.  See Hakeem, 273 F.3d at 815; Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002). However, § 106 of REAL ID Act restored jurisdiction over constitutional claims and questions of law.  Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir. 2005), as adopted by 466 F.3d 1121, 1124 (9th Cir. 2006) (en banc); see also Sumolang v. Holder, 723 F.3d 1080, 1082 (9th Cir. 2013) (court lacked jurisdiction to review extraordinary circumstances exception where agency’s ruling rested on resolution of disputed facts, but had jurisdiction to review changed circumstances determination that turned on undisputed facts); Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir. 2013)  (holding that the court lacked jurisdiction to review extraordinary circumstances determination where it was based on disputed facts, but finding jurisdiction to review question of law whether BIA applied proper legal standard in making the determination); Singh v. Holder, 649 F.3d 1161 (9th Cir. 2011) (en banc) (one-year bar determination not reviewable absent a legal or constitutional question).  “[Q]uestions of law, as it is used in section 106, extends to questions involving the application of statutes or regulations to undisputed facts, sometimes referred to as mixed questions of fact and law. Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam) (exercising jurisdiction over “changed circumstances” question because it was a question of the application of a statutory standard to undisputed facts); see also Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011) (the court has jurisdiction to review the agency’s application of the changed or extraordinary circumstances exception to undisputed facts); Chen v. Mukasey, 524 F.3d 1028, 1031 (9th Cir. 2008) (“Under the Real ID Act … this court may review the BIA’s interpretation of the ‘changed circumstances’ exception to the asylum statute.”).

If the applicant can show a material change in circumstances or that extraordinary circumstances caused the delay in filing, the limitations period will be tolled. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4) & (5); see also Sumolang v. Holder, 723 F.3d 1080, 1082 (9th Cir. 2013); Viridiana v. Holder, 646 F.3d 1230, 1234, 38 (9th Cir. 2011) (exercising jurisdiction over whether extraordinary circumstances warranted equitable tolling of filing period for asylum application and concluding that immigration consultant fraud may constitute an extraordinary circumstance for the purpose of excusing an untimely asylum application); Vahora v. Holder, 641 F.3d 1038, 1047 (9th Cir. 2011) (religious rioting that began after petitioner left India, the subsequent disappearance of petitioner’s brothers, and the destruction of his home constituted changed circumstances to excuse late filing of asylum application); Taslimi v. Holder, 590 F.3d 981, 987–88 (9th Cir. 2010) (application was filed within a reasonable time of change in circumstances based on conversion to Christianity, where application was filed just under seven months after she converted).  The court held in Ramadan, 479 F.3d at 650, a case where the facts were undisputed, that it had jurisdiction over the “changed circumstances” question because it was a mixed question of fact and law.  The court has similarly exercised jurisdiction over the “extraordinary circumstances” issue in cases where the facts were undisputed.  See Mutuku v. Holder, 600 F.3d 1210, 1212 (9th Cir. 2010) (petitioner’s hope that conditions would improve in Kenya did not constitute an extraordinary circumstance); Toj-Culpatan v. Holder, 612 F.3d 1088, 1090–92 (9th Cir. 2010) (per curiam) (inability to speak English, being detained for two months, and the transfer of petitioner’s case from Arizona to California, did not constitute extraordinary circumstances to excuse the untimely filing of asylum application); Dhital v. Mukasey, 532 F.3d 1044, 1049–50 (9th Cir. 2008) (per curiam) (holding that BIA properly concluded alien lost nonimmigrant status when he failed to enroll in a semester of college classes and that alien then failed to file application within a “reasonable period” when he waited 22 months without further explanation for delay); Husyev v. Mukasey, 528 F.3d 1172, 1178–81 (9th Cir. 2008) (holding that 364-day delay after alien’s nonimmigrant status expired was not a “reasonable period” in the absence of any explanation); see also Tamang v. Holder, 598 F.3d 1083, 1089 (9th Cir. 2010) (discussing which underlying facts cannot be disputed for purposes of the determination of whether a question is a mixed one of law and fact in an ineffective assistance of counsel case). Contrast Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002) (pre-REAL ID Act, declining to exercise jurisdiction over extraordinary circumstances question citing 8 U.S.C. § 1158(a)(3)).  In Al Ramahi v. Holder, 725 F.3d 1133, 1137–38 & n.2 (9th Cir. 2013), the court noted that the Ninth Circuit is alone in allowing for review the BIA’s application of the changed or extraordinary circumstances exception, but that in the absence of intervening higher authority the court is bound by Ramadan.

          The court has jurisdiction to review a claim that an IJ failed to address the argument that an asylum application was untimely due to extraordinary circumstances. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (remanding).

b.      Previous-Denial Bar

          An applicant who previously applied for and was denied asylum is barred from receiving a grant of asylum.  See 8 U.S.C. § 1158(a)(2)(C).  The court generally lacks jurisdiction to review this determination.  8 U.S.C. §1158(a)(3).

c.       Safe Third Country Bar

          An applicant has no right to apply for asylum if he or she “may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality … ) in which the alien’s life or freedom would not be threatened on account of” the statutory grounds.  8 U.S.C. § 1158(a)(2)(A); see, e.g., 8 C.F.R. § 208.30(e)(6) (implementing bilateral agreement between Canada and the United States).  The court generally lacks jurisdiction to review the IJ’s determination under this section.  8 U.S.C. § 1158(a)(3).

d.      Terrorist Activity Bar

          The court generally lacks jurisdiction to review the Attorney General’s determination that an applicant is ineligible for asylum based on terrorist activity under 8 U.S.C. § 1158(b)(2)(A)(v).  8 U.S.C. § 1158(b)(2)(D); Bellout v. Ashcroft, 363 F.3d 975, 977 (9th Cir. 2004), superseded by statute as stated in Khan v. Holder, 584 F.3d 773, 777 (9th Cir. 2009).  Section 1158(b)(2)(A)(v) eliminates eligibility for asylum if:

the alien is described in subclause (I), (II), (III), (IV), or (VI) of section 1182(a)(3)(B)(i) of this title or removable under section 1227(a)(4)(B) of this title (relating to terrorist activity), unless, in the case only of an alien described in subclause (IV) of section 1182(a)(3)(B)(i) of this title, the Attorney General determines, in the Attorney General’s discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States.

However, the court has “jurisdiction to determine the scope and meaning of the statutory terrorism bar, including the definition of ‘terrorist organization’ and ‘terrorist activity,’ as these present purely legal questions.”  Khan v. Holder, 584 F.3d 773, 780 (9th Cir. 2009) (also concluding that the court had “jurisdiction to determine whether the [Jammu Kashmir Liberation Front met] this standard” because it was a mixed question of law and fact.).

          Note that as to all removal proceedings instituted before, on, or after May 11, 2005, the REAL ID Act expanded the definitions of terrorist organizations and terrorist related activities.  See  Pub. L. No. 109-13, §§ 103-105, 119 Stat. 231 (2005), 8 U.S.C. § 1182(a)(3)(B) and 1227(a)(4)(B) (as amended).

2.       Standard of Review

          Under the permanent rules, the Attorney General’s discretionary judgment whether to grant asylum relief “shall be conclusive unless manifestly contrary to the law and an abuse of discretion.”  8 U.S.C. § 1252(b)(4)(D).  “Thus, when refugee status has been established, we review the Attorney General’s grant or denial of asylum for abuse of discretion.”  Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004).

V.      LIMITATIONS ON JUDICIAL REVIEW BASED ON CRIMINAL OFFENSES

          Generally, the Courts of Appeals have jurisdiction to review final removal orders of the BIA.  8 U.S.C. § 1252(a).  However, Congress has restricted judicial review where an alien is removable based on a conviction for certain crimes.  8 U.S.C. § 1252(a)(2)(C).  See also Agonafer v. Sessions, 859 F.3d 1198, 1202 (9th Cir. 2017) (stating the court lacks “jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a crime involving moral turpitude” (internal quotation marks omitted)); Guerrero-Silva v. Holder, 599 F.3d 1090, 1093 (9th Cir. 2010) (petitioner’s removability stripped the court of jurisdiction under 8 U.S.C. § 1252(a)(2)(C)).  For example, the court is without jurisdiction to review a removal order against an alien removable for having committed an aggravated felony.  See Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010).  However, because the court retains jurisdiction to determine its jurisdiction, the court has jurisdiction to determine whether an offense is an aggravated felony under the INA.  See id; see also Aguilar-Turcios v. Holder, 740 F.3d 1294, 1299 (9th Cir. 2014) (court lacks jurisdiction to review final order of removal against alien convicted of aggravated felony, but retains jurisdiction to review whether conviction qualifies as an aggravated felony under federal law); Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013) (“Although [the court lacks] ‘jurisdiction to review any final order of removal against an alien who is removable by reason of having committed’ an aggravated felony (among other offenses), 8 U.S.C. § 1252(a)(2)(C), [the court] retains jurisdiction over ‘constitutional claims or questions of law,’ 8 U.S.C. § 1252(d), which includes the question whether a state crime of conviction is an aggravated felony.”); Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011) (recognizing that IIRIRA stripped federal courts of jurisdiction to review any final order of removal where an alien is removable for having committed an aggravated felony, but further explaining that because the REAL ID Act restored jurisdiction over questions of law, there was jurisdiction to determine whether an offense is an aggravated felony for purposes of removal).

A.      Judicial Review Framework Before Enactment of the REAL ID Act of 2005

          Before enactment of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), this court had limited jurisdiction over final administrative orders against petitioners found removable, deportable or excludable based on enumerated criminal offenses.

          Section 440(a) of AEDPA, enacted on April 24, 1996, amended 8 U.S.C. § 1105a(a)(10) by repealing judicial review over final orders of deportation against most criminal aliens.  As amended, § 1105a(a)(10) provided that “[a]ny final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(i), shall not be subject to review by any court.”  AEDPA, Pub. L. No. 104–132, § 440(a) (as amended by IIRIRA § 306(d)). This court held that § 440(a) is constitutional, and that it applies retroactively to pending cases.  See Duldulao v. INS, 90 F.3d 396, 399–400 (9th Cir. 1996).

          “Section 1105a(a)(10) and many other provisions of the Immigration Act were superseded by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 … .”  Elramly v. INS, 131 F.3d 1284, 1285 n.1 (9th Cir. 1997) (per curiam) (as amended on denial of rehearing).  Section 321 of IIRIRA amended the aggravated felony definition in 8 U.S.C. §§ 1101(a)(43)(F) and 1101(a)(43)(S) by increasing the number of crimes qualifying as aggravated felonies.  The aggravated felony amendments apply to “actions taken” on or after the September 30, 1996 enactment of IIRIRA.  See Valderrama-Fonseca v. INS, 116 F.3d 853, 856–57 (9th Cir. 1997) (“actions taken” refers to administrative orders and decisions issued against an applicant, and may include steps taken by the applicant, but do not include acts of the courts); cf. Park v. INS, 252 F.3d 1018, 1025 (9th Cir. 2001) (aggravated felony amendments applied to actions taken on or after enactment of IIRIRA), overruled on other grounds by Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc).

          IIRIRA’s transitional rules, applicable to cases in which deportation proceedings were initiated before April 1, 1997, and the final agency order was entered on or after October 31, 1996, limited petition-for-review jurisdiction for individuals found deportable based on enumerated offenses.

          IIRIRA § 309(c)(4)(G) provides:

[T]here shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act), or any offense covered by section 241(a)(2)(A)(ii) of such Act (as in effect on such date) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a)(2)(A)(i) of such Act (as so in effect).

          The listed criminal offenses are:

Section 212(a)(2):                              the criminal grounds of inadmissibility

Section 241(a)(2)(A)(i) & (ii):             two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, for which both crimes carry possible sentences of one year or longer

Section 241(a)(2)(A)(iii):                   conviction of an aggravated felony at any time after admission

Section 241(a)(2)(B):                         controlled substance convictions and drug abuse

Section 241(a)(2)(C):                         certain firearm offenses

Section 241(a)(2)(D):                         miscellaneous crimes

          Likewise, IIRIRA’s permanent rules, applicable to removal proceedings initiated on or after April 1, 1997, limited petition for review jurisdiction for individuals found removable based on enumerated offenses.

          8 U.S.C. § 1252(a)(2)(C) provides:

Notwithstanding any other provision of law … no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.

          The listed criminal offenses are:

8 U.S.C. § 1182(a)(2):                       the criminal grounds of inadmissibility

8 U.S.C. § 1227(a)(2)(A)(i) & (ii):      two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, for which both crimes carry possible sentences of one year or longer

8 U.S.C. § 1227(a)(2)(A)(iii):             conviction of an aggravated felony at any time after admission

8 U.S.C. § 1227(a)(2)(B):                   controlled substance convictions and drug abuse

8 U.S.C. § 1227(a)(2)(C):                   certain firearm offenses

8 U.S.C. § 1227(a)(2)(D):                  miscellaneous crimes

          For § 1252(a)(2)(C)’s jurisdiction-stripping provision to apply, its language requires that the agency determine that a petitioner is actually removable on a basis specified in that section.  See Alvarez-Santos v. INS, 332 F.3d 1245, 1249–53 (9th Cir. 2003).  See also Bolanos v. Holder, 734 F.3d 875, 876 (9th Cir. 2013) (“Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to consider a challenge to the removal order that rests on a firearm conviction. But we retain jurisdiction to decide our own jurisdiction and to resolve questions of law.”); Malilia v. Holder, 632 F.3d 598, 601–02 (9th Cir. 2011) (“When a petitioner’s conviction is a deportable firearms offense under 8 U.S.C. § 1227(a)(2)(C), this court does not have jurisdiction to consider challenges to removal orders based on that conviction.”); Eneh v. Holder, 601 F.3d 943, 946 (9th Cir. 2010) (explaining that for the jurisdiction stripping provision in § 1252(a)(2)(C) to apply, removal must be expressly premised upon a criminal conviction); Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir. 2008) (“Because Blanco was not ordered removed as a criminal alien under § 1182(a)(2), the jurisdictional bar of § 1252(a)(2)(C) does not apply.”); Kelava v. Gonzales, 434 F.3d 1120, 1122–23 (9th Cir. 2006) (8 U.S.C. § 1252(a)(2)(C) did not preclude judicial review where BIA failed to address IJ’s findings on aggravated felony charge and instead based decision solely on terrorist activity charge); Unuakhaulu v. Gonzales, 416 F.3d 931, 936–37 (9th Cir. 2005) (as amended) (exercising jurisdiction because while agency found applicant removable based on aggravated felony conviction, removal was not ordered on that basis and alternate grounds of removal were charged).

          Under the IIRIRA provisions, if the court determined that the petitioner was ordered removed or ineligible for relief from removal based on a conviction for an enumerated crime, it lacked direct judicial review over the petition for review.  Cf. Unuakhaulu, 416 F.3d at 937; Alvarez-Santos, 332 F.3d at 1253.  However, the court retained jurisdiction to determine its own jurisdiction, Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000), and to decide “three threshold issues: whether the petitioner was [1] an alien, [2] removable, and [3] removable because of a conviction for a qualifying crime,” see Zavaleta-Gallegos v. INS, 261 F.3d 951, 954 (9th Cir. 2001) (internal quotation marks, alteration, and emphasis omitted).

          Where direct judicial review was unavailable over a final order of deportation or removal, a petitioner could file a petition for writ of habeas corpus in district court under 28 U.S.C. § 2241.  See INS v. St. Cyr, 533 U.S. 289, 314 (2001) (AEDPA and IIRIRA did not repeal habeas corpus jurisdiction to challenge the legal validity of a final order of deportation or removal); Arreola-Arreola v. Ashcroft, 383 F.3d 956, 964 (9th Cir. 2004) (same), overruled on other grounds by Morales-Izquierdo v. Gonzales, 486 F.3d 484, 497 (9th Cir. 2007) (en banc).

B.      The Current Judicial Review Scheme under the REAL ID Act of 2005

1.       Expanded Jurisdiction on Direct Review

In May 2005, Congress amended the INA to expand the scope of direct judicial review over petitions for review brought by individuals removable based on enumerated crimes, and to limit the availability of habeas corpus relief over challenges to final orders of removal, deportation, or exclusion.  Congress explicitly made the REAL ID Act’s judicial review amendments retroactive and directed that they shall apply to all cases in which the final administrative order was issued before, on, or after May 11, 2005, the date of enactment of the Act.  See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005).

          The REAL ID Act added the following new judicial review provision to 8 U.S.C. § 1252:

          Judicial Review of Certain Legal Claims –

Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) 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 filed with an appropriate court of appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D); REAL ID Act, Pub. L. No. 109-13, § 106, 119 Stat. 231, 310 (2005).  Pursuant to this new provision, the court now has jurisdiction to review constitutional claims and questions of law presented in all petitions for review, including those brought by individuals found removable based on certain enumerated crimes.  See Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir. 2005), as adopted by 466 F.3d 1121, 1124 (9th Cir. 2006) (en banc); see also, e.g., Delgado v. Holder, 648 F.3d 1095, 1099–1100 (9th Cir. 2011) (en banc ) (the court has jurisdiction to review the agency’s particularly serious crime determination); Garcia-Jimenez v. Gonzales, 488 F.3d 1082, 1085 (9th Cir. 2007); Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir. 2006); Perez-Enriquez v. Gonzales, 463 F.3d 1007, 1009–10 (9th Cir. 2006) (en banc); Lisbey v. Gonzales, 420 F.3d 930, 932 (9th Cir. 2005); Parrilla v. Gonzales, 414 F.3d 1038, 1040 (9th Cir. 2005).

          See also Gomez-Sanchez v. Sessions, 892 F.3d 985, 996 (9th Cir. 2018) (reviewing whether BIA applied the proper legal standard, concluding BIA’s underlying rationale for its decision was unreasonable, and remanding for BIA to consider all reliable, relevant information, when making its particularly serious crime determination); Konou v. Holder, 750 F.3d 1120 (9th Cir. 2014) (BIA did not abuse discretion in determining petitioner’s assault and battery convictions were particularly serious crimes); Blandino-Medina v. Holder, 712 F.3d 1338, 1343 (9th Cir. 2013) (explaining that while the court cannot reweigh the evidence to determine if the crime was particularly serious, it does have jurisdiction to determine whether the agency applied the correct legal standard); Pechenkov v. Holder, 705 F.3d 444, 448–49 (9th Cir. 2012) (the court lacked jurisdiction to review particularly serious crime determination where the petitioner asked only for a “re-weighing of the factors involved in that discretionary determination”); Arbid v. Holder, 700 F.3d 379, 382 (9th Cir. 2012) (per curiam) (as amended) (jurisdiction to review BIA’s determination that alien was convicted of a particularly serious crime); Rivera-Peraza v. Holder, 684 F.3d 906, 909 (9th Cir. 2012) (court had jurisdiction to review whether BIA used erroneous legal standard in its analysis of petitioner’s application for waiver of inadmissibility); Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010) (court retains jurisdiction to determine its jurisdiction, and thus has jurisdiction to determine whether an offense is an aggravated felony); Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1217 (9th Cir. 2010) (court has jurisdiction to determine whether a particular offense constitutes an offense governed by the jurisdiction-stripping provisions); Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010) (stating the court has “jurisdiction to review whether the BIA and IJ failed to consider the appropriate factors, … , or relied on improper evidence, …, in making the ‘particularly serious crime’ determination.” (citations omitted)).

          “[T]he jurisdictional bar set forth in § 1252(a)(2)(C) is subject to two exceptions. The first exception permits [] review of questions of law or constitutional claims.  The second exception permits [] review when the IJ denies relief on the merits of the claim rather than in reliance on the conviction, i.e., when the IJ concludes that the petitioner failed to establish the requisite grounds for relief.”  Perez-Palafox v. Holder, 744 F.3d 1138, 1144 (9th Cir. 2014) (internal quotation marks and citations omitted) (reviewing legal question whether the BIA engaged in impermissible fact finding).  See also Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013) (“Although [the court lacks] ‘jurisdiction to review any final order of removal against an alien who is removable by reason of having committed’ an aggravated felony (among other offenses), 8 U.S.C. § 1252(a)(2)(C), [the court] retains jurisdiction over ‘constitutional claims or questions of law,’ 8 U.S.C. § 1252(d), which includes the question whether a state crime of conviction is an aggravated felony.”); Alphonsus v. Holder, 705 F.3d 1031, 1036–37 (9th Cir. 2013) (regardless of whether 8 U.S.C. § 1252(a)(2)(C)’s bar to review for criminal aliens applied to petitioner’s case, an issue the court did not decide, the court had jurisdiction where the petitioner’s challenges were premised on constitutional and legal considerations and were not fact-based), abrogated on other grounds by Guerrero v. Whitaker, 908 F.3d 541 (9th Cir. 2018); Planes v. Holder, 652 F.3d 991, 997–98 (9th Cir. 2011) (where BIA made no legal error regarding criminal grounds for removability, court lacked jurisdiction to review final order of removal under 8 U.S.C. § 1252(a)(2)(C)).

“[J]urisdiction over ‘questions of law’ as defined in the Real ID Act includes not only ‘pure’ issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions of law and fact.”  Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (per curiam); see also Chen v. Mukasey, 524 F.3d 1028, 1031 (9th Cir. 2008); Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007) (applying Ramadan to conclude that in assessing equitable tolling, “the due diligence question necessarily falls within Ramadan’s ambit as a mixed question of law and fact, requiring merely that we apply the legal standard for equitable tolling to established facts”).

          With respect to asylum, withholding of removal, and CAT claims of a petitioner who was convicted of an offense covered by § 1252(a)(2)(C), the court has jurisdiction to review the denial of an asylum application and to review the denial of withholding of removal and CAT relief to the extent that a petitioner raises questions of law, including mixed questions of law and fact, or constitutional claims.  See Agonafer v. Sessions, 859 F.3d 1198, 1202 (9th Cir. 2017) (explaining the court has jurisdiction to review the denial of CAT relief when a petitioner raises questions of law, including mixed questions of law and fact, or constitutional claims); Bolanos v. Holder, 734 F.3d 875, 876 (9th Cir. 2013) (Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to consider a challenge to the removal order that rests on a firearm conviction. But we retain jurisdiction to decide our own jurisdiction and to resolve questions of law.”); Pechenkov v. Holder, 705 F.3d 444, 448–49 (9th Cir. 2012) (the court lacked jurisdiction to review particularly serious crime determination where the petitioner asked only for a “re-weighing of the factors involved in that discretionary determination,” but holding court had jurisdiction over constitutional claims and questions of law raised regarding petitioner’s application to adjust status and the revocation of asylee status).  Moreover, as to “factual issues, when an IJ does not rely on an alien’s conviction in denying CAT relief and instead denies relief on the merits, none of the jurisdiction-stripping provisions … apply to divest this court of jurisdiction.”  Pechenkov, 705 F.3d at 978 (internal quotation marks and citation omitted); see also Haile v. Holder, 658 F.3d 1122, 1130–31 (9th Cir. 2011); Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1083 (9th Cir. 2008) (“The jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(C) does not deprive [the court] of jurisdiction over denials of deferral of removal under the CAT, which are always decisions on the merits.” (emphasis added)), overruled on other grounds by Maldonado v. Lynch, 786 F.3d 1155, 1162–64 (9th Cir. 2015) (en banc); Villegas v. Mukasey, 523 F.3d 984, 987–88 (9th Cir. 2008); Arteaga v. Mukasey, 511 F.3d 940, 942 n.1 (9th Cir. 2007).

          Thus, whereas the court previously had jurisdiction to evaluate only whether a criminal conviction was a qualifying offense for the purpose of IIRIRA’s jurisdictional bars, the court now has jurisdiction to review the petition for review on the merits, assuming no other provision in the INA limits judicial review. See Fernandez-Ruiz, 410 F.3d at 586–87, as adopted by 466 F.3d at 1124; see also, e.g., Garcia-Jimenez, 488 F.3d at 1085 (stating that court has jurisdiction over questions of law despite petitioner’s crime involving moral turpitude and controlled substance offense); Lisbey, 420 F.3d at 932 (concluding that petitioner was convicted of an aggravated felony and denying the petition on the merits); Parrilla, 414 F.3d at 1040 (same).

2.       Applicability to Former Transitional Rules Cases

          In addition to restoring direct judicial review and eliminating habeas jurisdiction over final orders of removal in cases involving enumerated criminal offenses, § 106(d) of the REAL ID Act directs that a petition for review filed in a transitional rules case “shall be treated as if it had been filed as a petition for review under section 242 of the Immigration and Nationality Act (8 U.S.C. § 1252) [IIRIRA’s permanent rules].”  REAL ID Act, Pub. L. No. 109-13, § 106(d), 119 Stat. 231, 311 (2005); see also Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir. 2005) (explaining that jurisdiction over transitional rules cases is now governed by 8 U.S.C. § 1252 rather than 8 U.S.C. § 1105(a)).  Accordingly, the restoration of direct judicial review over cases involving enumerated offenses applies to both transitional rules and permanent rules cases.

3.       Contraction of Habeas Jurisdiction

          In addition to expanding the scope of judicial review for aliens convicted of certain enumerated crimes, the REAL ID Act also “makes the circuit courts the ‘sole’ judicial body able to review challenges to final orders of deportation, exclusion, or removal.”  Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005); see also 8 U.S.C. § 1252(a)(5); Mamigonian v. Biggs, 710 F.3d 936, 941 (9th Cir. 2013) (“the REAL ID Act precludes aliens . . . from seeking habeas relief over final orders of removal in district courts.”); Momeni v. Chertoff, 521 F.3d 1094, 1095–96 (9th Cir. 2008) (district court lacked habeas jurisdiction over petition filed after effective date of REAL ID Act).  “To accomplish this streamlined judicial review, the Act eliminated habeas jurisdiction, including jurisdiction under 28 U.S.C. § 2241, over final orders of deportation, exclusion, or removal.”  Alvarez-Barajas, 418 F.3d at 1052.

          The REAL ID Act required the district courts to transfer to the appropriate court of appeals all habeas petitions challenging final orders of removal, deportation or exclusion that were pending before the district court on the effective date of the REAL ID Act (May 11, 2005).  See REAL ID Act, Pub. L. No. 109-13, § 106(b), 119 Stat. 231, 310–11 (2005); see also Alvarez-Barajas, 418 F.3d at 1052.  Although the REAL ID Act did not address appeals of the denial of habeas relief already pending in the court of appeals on the effective date of the Act, this court has held that such petitions shall be treated as timely filed petitions for review.  See Martinez-Rosas v. Gonzales, 424 F.3d 926, 928–29 (9th Cir. 2005); Alvarez-Barajas, 418 F.3d at 1052–53; see also Singh v. Gonzales, 491 F.3d 1090, 1095 (9th Cir. 2007) (holding that “a habeas petition is ‘pending’ in the district court within the meaning of [REAL ID Act]’s transfer provision when the notice of appeal was not filed at the time [REAL ID Act] was enacted, but was filed within the sixty day limitations period for filing a timely appeal of a habeas petition under Federal Rules of Appellate Procedure 4(a)(1)(B)”); cf. Singh v. Mukasey, 533 F.3d 1103, 1109 (9th Cir. 2008) (holding that aliens who lacked opportunity to file petitions for review prior to the enactment of the REAL ID Act had a grace period of 30 days from the Act’s effective date in which to seek review).

          Exceptions for continuing habeas jurisdiction survive, however, for claims like challenges to indefinite detention:  “[I]n cases that do not involve a final order of removal, federal habeas corpus jurisdiction remains in the district court, and on appeal to this Court, pursuant to 28 U.S.C. § 2241.”  Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006).  See also Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th Cir. 2012) (en banc) (“The REAL ID Act can be construed as being confined to addressing final orders of removal, without affecting federal habeas jurisdiction.”).

VI.    EXCLUSIVE JURISDICTION PROVISION – 8 U.S.C. § 1252(g)

          Section 242(g) of IIRIRA, 8 U.S.C. § 1252(g), provides:

Exclusive jurisdiction

Except as provided in this section and notwithstanding any other provision of law … no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act.

“Section 1252(g) is not subject to IIRIRA’s transitional rules; it applies without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under the Act.”  Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 599 (9th Cir. 2002) (citing IIRIRA § 306(c)(1)) (internal quotation marks omitted).

          In Reno v. American-Arab Anti-Discrimination Comm., the Supreme Court construed Section 1252(g) narrowly, holding that “[t]he provision applies only to three discrete actions that the Attorney General may take: her decision or action to commence proceedings, adjudicate cases, or execute removal orders.”  525 U.S. 471, 482 (1999) (internal quotation marks omitted); see also Shin v. Mukasey, 547 F.3d 1019, 1023 (9th Cir. 2008) (no jurisdiction to review Attorney General’s decision to commence proceedings).  The Court held that it lacked jurisdiction over the aliens’ selective enforcement claims because these claims fell squarely within the prohibition on review of the Attorney’s General’s decision to “commence proceedings.”  Reno, 525 U.S. at 486–87.

          See also Regents of the Univ. of California v. United States Dep’t of Homeland Sec., 908 F.3d 476, 503 (9th Cir. 2018) (holding that § 1252(g) does not deprive courts of jurisdiction to review order rescinding the Deferred Action for Childhood Arrivals program); Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order) (concluding that the court lacked “jurisdiction to review petitioners’ contention that the agency abused its discretion in denying the motion to reopen to seek prosecutorial discretion based on the recent order of President Obama,” citing 8 U.S.C. § 1252(g)); Shin, 547 F.3d at 1023–24 (§ 1252(g) did not bar jurisdiction over petitioner’s equitable estoppel claim that arose from actions taken by a government employee prior to any decision to commence proceedings against petitioner); Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004) (§ 1252(g) did not bar jurisdiction over repapering claim); Wong v. United States, 373 F.3d 952, 965 (9th Cir. 2004) (§ 1252(g) did not bar review of actions occurring prior to decision to commence proceedings or execute removal order); United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en banc) (§ 1252(g) barred review over claim that agency should have commenced deportation proceedings immediately upon becoming aware of applicant’s illegal presence but did not bar review of retroactivity challenge to application of IIRIRA’s permanent rules); Barahona-Gomez v. Reno, 236 F.3d 1115, 1120–21 (9th Cir. 2001) (§ 1252(g) barred review of discretionary, quasi-prosecutorial decisions by asylum officers and INS district directors to adjudicate cases or refer them to IJs for hearing but did not bar review of challenge to agency decision to halt consideration of suspension of deportation applications indefinitely); Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1150 (9th Cir. 2000) (en banc) (§ 1252(g) did not deprive district court of jurisdiction to enter preliminary injunction); Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1044 (9th Cir. 2000) (§ 1252(g) did not deprive district court of habeas jurisdiction); Barapind v. Reno, 225 F.3d 1100, 1109–10 (9th Cir. 2000) (§ 1252(g) did not affect the availability and scope of habeas review); Sulit v. Schiltgen, 213 F.3d 449, 453 (9th Cir. 2000) (§ 1252(g) did not bar review of due process claim that green cards were seized improperly without a hearing); Magana-Pizano v. INS, 200 F.3d 603, 609 (9th Cir. 1999) (§ 1252(g) did not strip district court of habeas jurisdiction); Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998) (§ 1252(g) did not prohibit district court from enjoining deportation of aliens who raised general collateral challenges to unconstitutional agency practices).

VII.   JURISDICTION OVER CERTAIN MOTIONS

A.      Jurisdiction Over Motions to Reopen

          The denial of a motion to reopen is a final administrative decision generally subject to judicial review in the court of appeals.  See Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015) (“[C]ircuit courts have jurisdiction when an alien appeals from the Board’s denial of a motion to reopen a removal proceeding.”); Agonafer v. Sessions, 859 F.3d 1198, 1202 (9th Cir. 2017) (“We … ‘have jurisdiction when an alien appeals from the [BIA]’s denial of a motion to reopen a removal proceeding.’” (quoting Mata, 135 S. Ct. at 2154)); Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016) (reviewing denial of motion to reopen for adjustment of status); Hernandez v. Holder, 738 F.3d 1099 (9th Cir. 2013) (reviewing BIA’s dismissal of a motion to reopen for lack of jurisdiction and granting the petition for review); Meza-Vallejos v. Holder, 669 F.3d 920, 923 (9th Cir. 2012) (court has jurisdiction to review denial of motion to reopen pursuant to 8 U.S.C. § 1252(a)); Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir. 1997) (“other recent changes to the INA did not alter our traditional understanding that the denial of a motion to reconsider or to reopen generally does fall within our jurisdiction over final orders of deportation”); Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir. 2004) (permanent rules); see also 8 U.S.C. § 1252(b)(6) (“When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order.”); Kucana v. Holder, 558 U.S. 233, 242 (2010) (discussing long history of federal-court review of administrative decisions denying motions to reopen removal proceedings).  “Under the INA, as under our century-old practice, the reason for the BIA’s denial makes no difference to the jurisdictional issue.  Whether the BIA rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision.”  Mata, 135 S. Ct. at 2154–55.

          Jurisdiction over motions to reopen may be limited where the underlying request for relief is discretionary.  “Section 1252(a)(2)(B)(i) permits the exercise of jurisdiction in cases in which the BIA rules that a motion to reopen fails to satisfy procedural standards such as the evidentiary requirements specified in 8 C.F.R. § 1003.2(c)(1), but bars jurisdiction where the question presented is essentially the same discretionary issue originally decided.” Fernandez v. Gonzales, 439 F.3d 592, 600 (9th Cir. 2006) (footnote omitted).  Thus, “[i]f … the BIA determines that a motion to reopen proceedings in which there has already been an unreviewable discretionary determination concerning a statutory prerequisite to relief does not make out a prima facie case for that relief, § 1252(a)(2)(B)(i) precludes our visiting the merits, just as it would if the BIA had affirmed the IJ on direct appeal.”  Id. at 601.

          However, “[w]here the relief sought is formally the same as was previously denied but the evidence submitted with a motion to reopen is directed at a different basis for providing the same relief, the circumstances can take the matter out of the realm of § 1252(a)(2)(B)(i).”  Id.  For example, the court would have jurisdiction to review the denial of a motion to reopen seeking consideration of non-cumulative evidence, such as a newly-discovered life threatening