Government Motion to Dismiss Denied

During the holidays, the Government submitted a motion to dismiss on one of my petitions for review that was pending in the U.S. Court of Appeals for the Second Circuit.  The Government argued that my client’s case should be dismissed because the court did not have jurisdiction.  Litigating petitions for review is very difficult.  One of the reasons for this is that not all cases that are lost at the Board of Immigration Appeals can be challenged in federal court as a petition for review.  There are many complicated rules about what kinds of immigration cases that the court of appeals can hear in a petition for review.  Normally, discretionary decisions of the Board of Immigration Appeals cannot be challenged in a petition for review.  The Government argued that I was challenging a discretionary decision, so that the case should be dismissed.  However, there is an exception to that rule, which is that even if a decision is discretionary, the court can still hear a challenge to that decision if the argument is based upon a question of law or the constitution.  I argued that the Board’s decision was not discretionary and even if it was, my client’s case involved both a question of law and the constitution.  Earlier this week, the Second Circuit issued a short summary order denying the motion to dismiss and agreeing with me.  Now my client will be able to continue his fight to stay in the United States.