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Keywords

jurisdictionattorneyprecedentappealdue processadmissibility
jurisdictionattorneyprecedentappealdue processadmissibility

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Falek v. Gonzales

Facts

Falek arrived in the United States in 1973 at the age of 15 as a lawful permanent resident. In 1993, he was convicted of sexually assaulting his stepdaughter, served four years in prison, and reported annually as a registered, but low-risk, sex offender. In 2000, after accompanying his employer abroad, he was denied reentry and arrested as an alien seeking admission into the United States under 8 U.S.C.S. 1101(a)(13). The court denied and dismissed two of the alien's claims based on precedent and lack of jurisdiction, respectively, and rejected the alien's argument regarding the retroactive effect of the law as applied to him.

Falek arrived in the United States in 1973 at the age of 15 as a lawful permanent resident. In 1993, he was convicted of sexually assaulting his stepdaughter, served four years in prison, and reported annually as a registered, but low-risk, sex offender. In 2000, after accompanying his employer abroad, he was denied reentry and arrested as an alien seeking admission into the United States under 8 U.S.C.S. 1101(a)(13). The court denied and dismissed two of the alien's claims based on precedent and lack of jurisdiction, respectively, and rejected the alien's argument regarding the retroactive effect of the law as applied to him.

Issue

Whether the retroactive application of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to Falek's case violated his due process rights.

Whether the retroactive application of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to Falek's case violated his due process rights.

Rule

A court may review a final order of removal only if the alien has exhausted all administrative remedies as of right, as stated in 8 U.S.C. 1252(d)(1).

A court may review a final order of removal only if [] the alien has exhausted all administrative remedies as of right. 8 U.S.C. 1252(d)(1).

Analysis

The court determined that Falek failed to exhaust his administrative remedies regarding his nonconstitutional IIRIRA claim, which meant it lacked jurisdiction to consider the retroactivity argument. The court emphasized that the BIA's decision regarding waiver of admissibility is discretionary and nonappealable.

The court determined that Falek failed to exhaust his administrative remedies regarding his nonconstitutional IIRIRA claim, which meant it lacked jurisdiction to consider the retroactivity argument. The court emphasized that the BIA's decision regarding waiver of admissibility is discretionary and nonappealable.

Conclusion

The alien's petition for review was denied in part for lack of merit and dismissed in part for lack of appellate jurisdiction.

The alien's petition for review was denied in part for lack of merit and dismissed in part for lack of appellate jurisdiction.

Who won?

The U.S. Attorney General prevailed in the case because the court found that Falek did not exhaust his administrative remedies and that the BIA's decision was nonappealable.

The U.S. Attorney General prevailed in the case because the court found that Falek did not exhaust his administrative remedies and that the BIA's decision was nonappealable.

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