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Incompetent court challenges to discretionary decisions

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Incompetent court challenges to discretionary decisions

  1. 1. Incompetent Court Challenges are Frivolous and Pointless and Merely Line the Pockets of Shysters or Boobs by Joseph P. Whalen (march 26, 2013)It happens far too often that purely discretionary decisions are challengedin court just to be dismissed for lack of subject matter jurisdiction. It iseven worse when something that might have had a ghost of a chance atbeing labeled “arbitrary” is challenged in the wrong court and prior tobeing ripe for a court challenge. Prior to being ripe in this essay meansthat USCIS has denied a waiver application and often an associatedadjustment application (however, the alien relative or worker might beabroad for Consular processing). Such matters may be addressed only bythe Circuit Courts of Appeals upon a petition for review of a final order ofremoval. The vast majority of the challenges that come before the CircuitCourts are dismissed as being unreviewable discretionary decisions. Thevast majority of “constitutional claims” are bogus, that is, mere requestsfor the panel to re-examine the same evidence differently, more favorably.This is little more than venue shopping.While it is true that the question of basic eligibility to apply for adiscretionary waiver is a mixed question of law and facts, if a waiverapplication has been given full consideration and it is denied as a matterof discretion then the court challenges that follow are futile efforts. Tworecent cases come to mind where denials of discretionary waivers havebeen challenged.The three judge panel hearing Sabaj v. Holder, ___ F. 3d ___ (2nd Cir.2013) [No. 12-703, January 15, 2013] summed up that case as follows: “Appeal from a December 21, 2011 judgment of the United States District Court for the Southern District of New York (Hellerstein, J.) dismissing Plaintiff-Appellant’s complaint for lack of jurisdiction. We hold that the district court lacked jurisdiction to review the United States Citizenship and Immigration Services’ discretionary decision to deny Plaintiff-Appellant’s application for a
  2. 2. waiver of inadmissibility under 8 U.S.C. § 1182(i)(1) because judicial review of such decisions is available only for “constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals.” 8 U.S.C. § 1252(a)(2)(D). AFFIRMED.” p. 2Sabaj initially attempted to enter the U.S. with a fake passport. He wassent for asylum-only proceedings but over the course of many years, hemarried a USC. Their I-130 was approved but he needed a 212(i) waiverfor his attempted fraud upon entry. He did not get it as he had too littleequity in the U.S. See the AAO Dismissal of May 2, 2011, which was beingchallenged at this link. A few more last choice excerpts follow. Even assuming, however, that Shabaj’s complaint actually had raised “constitutional claims or questions of law,” Shabaj’s argument ignores the statute’s requirement that any such claims must be raised “upon a petition for review filed with an appropriate court of appeals.” 8 U.S.C. § 1252(a)(2)(D) (emphasis added). Thus, while this court would have jurisdiction to review any constitutional claims or questions of law raised by Shabaj in a petition for review of CIS’s hardship determination, the district court did not.4” at p. 6Footnote from decision: “4 Indeed, this Court denied Shabaj’s petition for review of his removal order over two years ago. See Shabaj, 602 F.3d at 106. Although Shabaj is ineligible to reopen his removal proceedings and file a petition for review because of his participation in the Visa Waiver Program, see 8 U.S.C. § 1187(b), we do not mean to preclude a petitioner who is otherwise eligible to reopen proceedings from attempting to reopen those proceedings in order to raise legal challenges to hardship rulings by the AAO. Under those circumstances, as permitted by § 1252(a)(2)(D), we would have jurisdiction over any “constitutional claims or questions of law” raised by petitions for review to this court.” at p. 6 footer “.... Shabaj seeks “de novo review of [his] waiver application,” Pl.’s Br. at 5, which would subject to judicial review CIS’s discretionary determination that Shabaj should not be granted a waiver of inadmissibility. ....” at p. 8Another recent case, O’Neill et al v. Cook et al, No. 12-1406 (3rd Cir.11-13-2012), was actually specifically labeled by the court as “frivolous”.
  3. 3. Here is the set up for this case: “Because he had been deported and was inadmissible under several provisions of the Immigration and Nationality Act (INA), O’Neill filed two forms with the London Field office of the USCIS in his effort to reenter the United States lawfully: (1) an Application for Permission to Reapply for Admission Into the United States After Deportation, using an I-212 Form, and (2) an Application for Waiver of Grounds of Inadmissibility, using an I-601 Form.” at pp. 2-3Ultimately, the Circuit Court upheld the decision of the District Court’sdetermination that the plaintiff failed to state a claim upon which thecourt could decide and to dismiss for lack of subject matter jurisdiction.The Circuit Court felt the same way about jurisdiction: [The Court] “...must begin with an inquiry of our jurisdiction, as “every federal appellate court has a special obligation to satisfy itself . . . of its own jurisdiction . . . even though the parties are prepared to concede it.” Arizonans for Official English v. Arizona, 520 U.S. 43, 73 (1997) (internal quotations omitted). If we do not have jurisdiction, our only function must be announcing that fact and dismissing the appeal. Elliot v. Archdiocese of N.Y., 682 F.3d 213, 219 (3d Cir. 2012).” at pp. 3-4The panel concluded thus: “Because O’Neill did not file a timely notice of appeal, we do not have jurisdiction, and thus we dismiss the appeal.” at p. 4 [Final sentence of the decision.]In PACER (the electronic court docket mgmt and filing system), the caseis actually identified as being “frivolous”. I have to ask, why were thesechallenges filed in the first place? Was Counsel merely pacifying the clientand accepting fees for a pointless litigation? Was Counsel soincompetent that (s)he did not know it was frivolous and pointless to file?Was Counsel overconfident that (s)he could reinvent the wheel, so tospeak, in regard to Courts reviewing unreviewable discretionarydecisions? The world may never know!

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