Court Limits BIA Appeal on Immigration Hardship Issue

By Tanya Roth, Esq. on April 04, 2012 | Last updated on March 21, 2019

For immigration attorneys practicing before the Eighth Circuit Court of Appeals, jurisdiction can be a very important topic. When the Board of Immigration Appeals shoots down your case, you may have to consider whether the Eighth Circuit can even hear your case.

A recent case was tossed by the federal appeals court for exactly that reason-- lack of jurisdiction.

The case involved a Mexican citizen, Victor Castillo-Castillo, who was to be removed by the Department of Homeland Security, essentially for being an unlawful alien. He had five minor children who were citizens of the U.S. and he argued that his removal would impose exceptional hardship on them.

An Immigration Judge cancelled his removal and the DHS appealed to the BIA. The BIA vacated the cancellation of removal, on the grounds that Castillo-Castillo didn't show that his removal would result in extreme hardship to his kids. The case was remanded to the Immigration Judge.

Castillo-Castillo appealed to the Eighth Circuit. The Government argued that the appeals court had no jurisdiction, based on two key points. First, they argued that there was no final order by the BIA, since the matter had been remanded. Secondly, they argued that the determination on hardship to the children was discretionary and not subject to judicial review.

The Eighth Circuit Court of Appeals didn't address the first issue on the finality of the order. Rather, it proceeded directly to the second question, which related to the challenge of the BIA's decision on the hardship issue.

The issue was reviewed strictly as a jurisdictional one, as to whether or not the decision of the BIA could be reviewed.

The Court of Appeals held that a challenge of the BIA's discretionary determination, even if disguised as a constitutional challenge, was not subject to review.

In sum, jurisdiction cannot be created "by cloaking an abuse of discretion argument in constitutional [or legal] garb."

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