Yusupov: Amended Decision To Elaborate On Why BIA's Decision Appealable

In an amended decision in Yusupov v. Mukasey, Nos. 05-4232 & 05-5411 (3d Cir. Mar. 27, 2008), the Third Circuit added a footnote to elaborate why the BIA's decision could be appealed immediately but the BIA's decision in the Vakker case was not appealable right away.

Let's compare the two cases:

• Vakker: BIA grants withholding of removal pending a background check for the IJ to make sure is done.
• Yusupov: BIA denied withholding of removal but granted deferral of removal while sending the case to the IJ to get background checks done.

Here is how the Third Circuit justified allowing an appeal in Yusupov but not Vakker: the background checks in Yusupov are completely a waste of time that will not affect anything; the background checks in Vakker, though, could have an impact by uncovering evidence that the person is barred from getting withholding of removal.

The Third Circuit explained that even if the background checks uncover major criminal convictions or membership in a major terrorist group, the person still keeps deferral of removal.

It seems like the Third Circuit is saying that the government is devoting critical resources toward doing background checks in situations where it is completely irrelevant.

This thorny issue of what BIA rulings are final such that they can be appealed will surely come up again. Especially when there are allegations of multiple blunders by immigration judges and the BIA comes up with splintered decisions on which issues it agrees need further work and which ones it does not believe have merit -- which reasonable people might think are worthy of further litigation.