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Keywords

jurisdictionappealvisadeportationnaturalizationjudicial review
jurisdictionappealvisadeportationnaturalizationjudicial review

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Bernal-Vallejo v. Immigration and Naturalization Service

Facts

Javier Bernal-Vallejo, a Colombian citizen, entered the U.S. without inspection in April 1986 after a prior student visa application was denied. He attempted to obtain a green card fraudulently in 1989 but was caught. Deportation proceedings began in 1995, and an Immigration Judge found him deportable, denying his application for suspension of deportation due to failure to demonstrate extreme hardship. The Board of Immigration Appeals affirmed this decision.

Bernal is thirty-seven years old, single, and a citizen of Colombia. He studied chemical engineering in Colombia and his family still resides there. He entered this country without inspection in April 1986, his earlier application for a student visa having been denied.

Issue

Whether the court has jurisdiction to review the Board of Immigration Appeals' decision regarding Bernal's claim of extreme hardship and his ineffective assistance of counsel claim.

Whether 309(c)(4)(E) precludes jurisdiction over Bernal's claim that the BIA erred in finding under the Immigration and Naturalization Act 244, 8 U.S.C. 1254 (repealed 1996), that he had not demonstrated extreme hardship.

Rule

Jurisdiction is precluded under 309(c)(4)(E) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 for discretionary decisions made under enumerated sections of the Immigration and Nationality Act, but not for claims involving objective factual determinations.

We hold that whether 309(c)(4)(E) precludes jurisdiction depends on the precise grounds upon which the decision of the Board of Immigration Appeals rests and the precise nature of the claims made in the petition.

Analysis

The court determined that the BIA's finding of no extreme hardship was a discretionary decision, thus precluding judicial review under 309(c)(4)(E). However, the court acknowledged that Bernal's claim of ineffective assistance of counsel could be reviewed, but he failed to exhaust his administrative remedies regarding this claim.

In Bernal's case, we conclude that 309(c)(4)(E) precludes jurisdiction over his claim that the BIA erred in finding under the Immigration and Naturalization Act 244, 8 U.S.C. 1254 (repealed 1996), that he had not demonstrated extreme hardship.

Conclusion

The court dismissed the petition for judicial review and vacated the stay of deportation order due to lack of jurisdiction over the extreme hardship claim and non-exhaustion of remedies for the ineffective counsel claim.

We dismiss the petition.

Who won?

The Immigration and Naturalization Service prevailed because the court found that it lacked jurisdiction to review the discretionary decision regarding extreme hardship.

The court dismissed the petition for judicial review and vacated the stay of deportation order, for lack of jurisdiction, under Illegal Immigration Reform and Immigrant Responsibility Act of 1996, to review discretionary finding under Immigration and Naturalization Act, of no extreme hardship, and for petitioner's non-exhaustion of remedies as to ineffective counsel claim.

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