Jarbough: Can't Review Even Post-REAL ID Pure Fact Determinations

In Jarbough v. Gonzales, No. 06-1081 (3d Cir. April 11, 2007), the Third Circuit held that it had no power or jurisdiction to review any decision by the BIA that is a factual determination or an exercise of its discretion. Before REAL ID, Congress stripped jurisdiction over those types of BIA rulings. In REAL ID, Congress allowed circuit courts to review constitutional claims and questions of law. But the Third Circuit clarified that the expansion did not change how circuit courts cannot review factual determinations or exercises of the BIA's discretion.

The big issue is whether an issue is a question of law or a factual issue. Someone seeking review will frame it as a legal issue and the government will complain it is a factual issue. How is the Third Circuit going to figure out which one it really is? The answer -- well, it is not very clear from the decision in Jarbough. Here's what we do know -- the Third Circuit will review it carefully and make its own decision, not just blindly follow what the person seeking review suggests it is.

Why is it unclear? Because the description of the facts in the case are not very detailed, so we can't deduce how the Third Circuit goes about its analysis. The facts described are that someone argued that an initial lawyer telling him that he had no asylum claim and not mentioning the one-year deadline to file asylum claims was an extraordinary circumstance excusing how he did not file his asylum claim within one year of coming to the US. The BIA said no. The immigrant argued that decision violated due process. The Third Circuit did not really describe how he portrayed it as a due process violation, but explained they disagreed because it was simply a factual challenge clothed in the garb of a due process argument.

Seems like the Third Circuit is not nearly as illuminating as they hope to be. It's very hard to figure out their logic on this topic. Let's hope future rulings provide a bit more guidance. Unless, of course, the Third Circuit ends up merely saying that it knows it when it sees it...