Do You Hear Me Now?

One of the little known ‘checks and balances’ in the American system of government is a court’s jurisdiction.  Jurisdiction is the power of a court to hear and decide a controversy.  Article III section I of the Constitution establishes the federal judiciary and place the power to create inferior or lower courts in the hands of Congress.  “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Article I section 8 clause 9 of the Constitution confirms Congress’ power to constitute tribunals inferior to the Supreme court.   Since Congress has the power to constitute courts, it has the power to limit a court’s jurisdiction.  In other word, since Congress has the power to create courts, it has the power to tell the court what cases it can and can’t hear and what statutes it can review and what statutes it can’t. 

Since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress has attempted to strip the federal courts of jurisdiction or the power to review the decisions of the immigration bureaucracy made under the Immigration and Nationality Act [INA].  INA section 242 [8 USC §1252] is a prime example of Congress’ attempt to limit the judicial review of immigration decisions.  This statute purports to strip the court of the power to review removal orders. 

In an attempt to slam the courthouse door in the alien’s face, the Attorney General frequently argues that the court does not have the power to review the immigration service’s decision because Congress has stripped the court of jurisdiction.  Faced with a challenge to their power, federal judges sometimes go to great length to find that they have the power to review a decision, even when Congress says that they don’t.  The effect of Congress’ jurisdiction stripping legislation is that most immigration related judicial opinions have a sometimes-lengthy discussion on jurisdiction.  This includes the Tenth Circuit’s recent decision in Jimenez-Guzman v. Holder.

Jimenez-Guzman is a native and citizen of Mexico and lawful permanent resident in the United States.  In 2009, the Department of Homeland Security [DHS] commenced removal proceedings against Jimenez-Guzman.  DHS alleged that Jimenez-Guzman was removable from the United States due to conviction of a drug crime in Colorado.  Jimenez-Guzman asked for and received several continuances from the Immigration Judge [IJ] so that he could attempt to set aside his state court conviction. Relieved of the conviction, Jimenez-Guzman would no longer be removable.

On April 7, 2010, at a hearing in Immigration Court, Jimenez-Guzman informed the IJ that his attempts to set aside his drug conviction were unsuccessful.  He asked the court for another continuance so he may pursue an appeal of the state trial court’s decision to deny relief from his drug conviction.  Citing the length of time Jimenez-Guzman’s case had sat on the court's docket, the IJ refused to grant another continuance.  The IJ found Jimenez-Guzman removable and ordered him removed to Mexico. The Board of Immigration Appeals summarily dismissed Jimenez-Guzman’s appeal, and Jimenez-Guzman sought review of the IJ’s and BIA’s decision in the US Court of Appeals for the Tenth Circuit. 

The Attorney General argued that the Immigration and Nationality Act stripped the court of the power to review the IJ’s decision.  The court disagreed.  The IJ’s power to grant continuances comes from the court’s regulation and not the INA.  Citing Kucana v. Holder, __ U.S. ___, 130 S. Ct. 827 (2010), the court held it has the power to review IJ decisions that originate from regulations. “The Supreme Court … recently held that decisions made discretionary by regulation do not come within [the INA’s] statutory bar and are reviewable.”  Since the power to grant continuances of hearings is granted to the IJ by regulation and not by the INA, the INA’s jurisdiction stripping statutes do not apply.

The court then applied the rational basis test to the IJ’s decision to deny the continuance.  Under the rational basis standard, the court will overturn an IJ decision only if there is no rational explanation behind the IJ’s decision.  Since courts have held that an individual in removal proceedings does not have the right to stay removal proceedings while the respondent commences a collateral attack on the underlying criminal conviction, the IJ’s decision to deny the continuance based on the age of the removal case is rational.  The court denied the petition for review and allowed the IJ’s order to stand.

The tension between two co-equal branches of government finds it way into the world of immigration. Congress’ goals of make the immigration system as efficient and as streamlined as possible collide with the judiciary’s responsibility to review the decisions of the immigration system.  Nobody likes to be told “no”, especially life tenured, Senate confirmed federal judges. Congress attempts to strip the judiciary of the power to review immigration decisions gives the government and immigrants one more thing to argue about in court.

Copyright 2011, Richard M. Green All Rights Reserved