On Petition for Review of a Final Order of the Board of Immigration Appeals. No. A089 856 290.
For Alvaro Adame, Petitioner: Jennifer L. Bennett, Attorney, Ira Benjamin Kahn, Attorney, Chicago, IL; Charles A. Rothfeld, Attorney, Mayer Brown Llp, Washington, DC.
For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: Lisa M. Damiano, Attorney, Patrick J. Glen, Attorney, OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC.
For National Immigrant Justice Center, American Immigration Lawyers Association, Amicus Curiae: Charles Roth, Attorney, National Immigrant Justice Center, Chicago, IL.
Before DIANE P. WOOD, Chief Judge, RICHARD A. POSNER, Circuit Judge, JOEL M. FLAUM, Circuit Judge.
Petitioner filed a petition for rehearing and rehearing en banc on October 30, 2014, with an Amicus Brief filed by the National Immigration Lawyers Association in support of the petition for rehearing and rehearing en banc, and Respondent's response to the rehearing en banc filed on January 7, 2015. No judge in regular active service has requested a vote on the petition for rehearing en banc, and all members of the original panel have voted to deny rehearing. Judge Hamilton concurs in the denial of the petition for rehearing en banc for the reasons stated in his separate opinion, which follows this order. Accordingly,
IT IS ORDERED that the petition for rehearing and rehearing en banc is DENIED.
Hamilton, Circuit Judge, concerning the denial of rehearing en banc. The petition for rehearing en banc in this case presents an important and difficult question about the scope of our jurisdiction under 8 U.S.C. § 1252(a)(2)(B) and (D) in petitions seeking judicial review of certain discretionary Board of Immigration Appeals decisions, such as the decision here denying discretionary cancellation of removal under 8 U.S.C. § 1229b. The issue is whether subparagraph (D) allows us to consider mixed questions of law and fact. The panel opinion, the rehearing petition, and answer persuade me that this circuit stands alone on the wrong side of a circuit split.
Subparagraph (a)(2)(B) of § 1252 imposes limits on federal courts' jurisdiction to review discretionary immigration decisions. As pertinent here, it provides that " no court shall have jurisdiction to review ... any judgment regarding the granting of relief under [8 U.S.C. § 1229b] ... [or] any other decision or action of the Attorney General ... the authority for which is specified under this subchapter to be in the discretion of the Attorney General...." Subparagraph (D) then provides an important limit on that prohibition: " Nothing in subparagraph (B) ... 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...."
The point of controversy is whether subparagraph (D)'s preservation of jurisdiction
to decide " questions of law" extends to " mixed" questions of law and fact involving the application of statutes or regulations to undisputed facts. Our circuit has said no, many times. As the panel opinion explained here, we have tried to follow the intent of subparagraph (B) by declining jurisdiction over such mixed questions because such review can slide so easily into review of factual issues. Adame v. Holder, 762 F.3d 667, 672 (7th Cir. 2014), citing, e.g., Viracacha v. Mukasey, 518 F.3d 511, 515-16 (7th Cir. 2008).
The panel opinion recognizes, however, that our circuit is now a minority of one. Disagreeing with us are the First, Second, Third, Fourth, Fifth, Sixth, Eighth, and Ninth Circuits. 762 F.3d at 671 (collecting cases). Though some of these circuits limit what types of mixed questions they will review, we alone apply the categorical rule that courts of appeal can never review mixed questions of law and fact. Id. The panel described this conflict in the circuits as " a serious one" but one that has stood for some time. Id. at 672. The petition for rehearing en banc, supported by an amicus brief from the National Immigrant Justice Center and the American Immigration Lawyers ...