Sunday, December 1, 2013

High Court Considering Case Raising Issue of Judicial Review



The certiorari petition pending in the Supreme Court in Perez-Guererro v. Holder raises important questions of judicial review.  The question presented is whether 8 U.S.C. § 1252(a)(2)(C), part of the 1996 immigration reforms limits the review of asylum and withholding of removal to questions of law (not fact), restricts  jurisdiction in deferral of removal cases under the Convention Against Torture in the absence of statutory text to that effect.

The Eleventh Circuit ruled as follows:

 This petition [for review] presents the question whether the Board of Immigration Appeals erred when it denied Jose Alberto Perez-Guerrero's request for relief under the Convention Against Torture. Perez-Guerrero accepted a bribe from a Mexican drug cartel while he was employed by the United States Embassy in Mexico City. After the United States arrested Perez-Guerrero, he provided valuable information about corrupt officials in Mexico and pleaded guilty to bribery and obstruction of justice. Perez-Guerrero completed a sentence in a federal prison, and the United States then petitioned to remove him. The immigration judge and the Board concluded that Perez-Guerrero was subject to removal and that he was not entitled to relief under the Convention because he had failed to prove that it was more likely than not that he would be tortured in Mexico. We have jurisdiction to review only the conclusions of law, but not the findings of fact, of the Board. 8 U.S.C. § 1252(a)(2)(C), (D). Because the Board committed no error of law, we deny Perez-Guerrero's petition for relief under the Convention. . . ."

There is a split in the circuits on whether fact questions are subject to judicial review in Convention Against Torture claimns.  The Supreme Court generally has been protective in reserving some kind of judicial review in removal cases.  Perez-Guerrero, however, raises somewhat different questions involving th elimitation of judicial review to legal questions..


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