Friday, May 26, 2006

Khan: Judicial Review Of Continuance Requests Exists

Khan v. Gonzales
No. 04-4336
May 22, 2006

In this case, the Third Circuit continues its analysis of what types of cases fall outside its jurisdiction based on how Congress for whatever unimaginable reason chose to block any judicial review of decisions by IJs or the BIA that according to a particular subchapter of the laws are put in the Attorney General's discretion.

A motion asking for a continuance falls in a grey area because a regulation (but no statute) dictates that the action is in the AG's discretion. The Third Circuit joined the Second, Fifth, Ninth, and Eleventh Circuits in ruling that judicial review is only blocked if a statute grants discretion to the AG. Because a motion for a continuance is discretionary only according to a mere regulation, judicial review is still possible. This view conflicts with the Eighth and Tenth Circuits. (The standard of review is abuse of discretion, for which the Third Circuit requires proof that the respondent was prejudiced by the ruling.)

Related Third Circuit rulings about when judicial review is barred include Soltane v.
U.S. Dep’t of Justice, 381 F.3d 143 (3d Cir. 2004) (allowing judicial review of preference visa denial for certain special immigrants); Urena-Tavarez v. Ashcroft 367 F.3d 154 (3d Cir. 2004) (denying judicial review of ruling on conditional permanent residence status based on marriage to a citizen); Jilin Pharmaceutical USA, Inc. v. Chertoff, No. 05-2788, __ F.3d __ (3d Cir. May 10, 2006) (denying judicial review of visa revocation).


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