Jose Catalino Guzman-Andrade v. Alberto Gonzales, Attorney General

Opinion by Judge LEAVY; Concurrence by Judge BERZON.

Jose Catalino Guzman-Andrade petitions for review of a final removal order of the Board of Immigration Appeals (BIA). Through his petition he seeks review of a decision of the Legalization Appeals Unit *1075 (LAU) 1 affirming the Immigration and Naturalization Service’s (INS). 2 denial of his application for adjustment of status to that of a permanent resident under a legalization program established by the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1255a. This appeal raises an issue of first impression in this circuit: do aliens denied temporary or permanent resident status by the INS under the § 1255a legalization program retain the right to judicial review of that denial after the 1996 amendments to IRCA by section 308(g)(2)(B) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, div. C, § 308(g)(2)(B), 110 Stat. 3009 -546, 3009-622 (1996)? We conclude that we continue to have jurisdiction, when reviewing the final removal order of an alien who would have been placed in deportation proceedings prior to passage of IIRIRA, to review the denial of a § 1255a…

concurring.

I agree with every sentence of the majority opinion except the penultimate one. The statutory structure is peculiar, as it allows judicial review of the Legalization Appeals Unit’s (LAU) legalization decision only on petition for review from a decision of the Board of Immigration Appeals *1081 (BIA). See 8 U.S.C. § 1255a(f)(4)(A) (“There shall be judicial review of such a denial only in the judicial review of an order of deportation.... ”). As the caption of the majority opinion indicates, this is such a petition for review. I therefore have a hard time seeing how we can “remand” to the LAU, as the case did not come to us from the LAU. Nor can we remand to the BIA with instructions to remand to the LAU, for the former body has no authority over the latter. See, e.g., In re Singh, 21 I. & N. Dec. 427, 428 (BIA 1996).

I would simply decide that Guzman-Andrade’s legalization application was erroneously denied, and that further proceedings before the LAU are therefore warranted. In other words, I would grant Guzman-Andrade’s petition for review and allow him to go back to the LAU (or its successor), which, as the majority concludes, will be obligated to grant his…

407 F.3d 1073 Jose Catalino GUZMAN-ANDRADE, Petitioner, v. Alberto GONZALES, * Attorney General, Respondent. No. 03-70765. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 8, 2004. Filed May 19, 2005. Roger S. Green, San Francisco, CA, for the petitioner. Anthony P. Nicastro and John Hogan, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Before B. FLETCHER, LEAVY, and BERZON, Circuit Judges. Opinion by Judge LEAVY; Concurrence by Judge BERZON. LEAVY, Circuit Judge. 1 Jose Catalino Guzman-Andrade petitions for review of a final removal order of the Board of Immigration Appeals (BIA). Through his petition he seeks review of a decision of the Legalization Appeals Unit (LAU) 1 affirming the Immigration and Naturalization Service's (INS) 2 denial of his application for adjustment of status to that of a permanent resident under a legalization program established by the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1255a. This appeal raises an issue of first impression in this circuit: do aliens denied temporary or permanent resident status by the INS under the § 1255a…