De Perio v. Gonzales

MEMORANDUM ***

Petitioners Alfredo and Myrna De Perio and their children filed a petition for a writ of habeas corpus in the district court challenging the former Immigration and Naturalization Service district director’s failure to cancel the revocation of Alfredo De Perio’s visa application for humanitarian reasons. The district court transferred the matter to this court pursuant to § 106(c) of the REAL ID Act of 2005, Pub.L. No. 109-13,119 Stat. 231.

We are not precluded by 8 U.S.C. § 1252 (a)(2)(B)(ii) from exercising jurisdiction over this appeal because that statute “applies only to acts over which a statute gives the Attorney General pure discretion,” Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir.2004) (emphasis added), and thus does not apply to our review of a discretionary decision made pursuant to regulation. See also Fernandez v. Gonzales, 439 F.3d 592, 601 (9th Cir.2006). Nor does Elbez v. INS, 767 F.2d 1313, 1314 (9th Cir.1985), prevent us from reviewing this case. That case merely stands for the proposition that “[m]atters relating to the withdrawal of visa petitions ... are not within the scope of a deportation proceeding” and “must be initially raised…

concurring and dissenting:

While I agree with my colleagues that the De Perios’ claims do not warrant granting their petition for review, I respectfully dissent because we lack jurisdiction to reach the merits of their appeal. We should simply dismiss the petition for that reason. The BIA issued two orders on July 10, 2003 — one involving the IJ’s denial of the petitioners’ request for a continuance of the removal proceeding, and one involving the revocation of Mr. De Perio’s visa petition. As they did in their previous appeal to this court, see De Perio v. Ashcroft, 120 Fed.Appx. 75, 76 (9th Cir. 2005), the De Perios appealed the first of the BIA orders, but not the visa petition decision.

Indeed, the petitioners asserted — both in their brief to us and in their habeas petition below — that the BIA never issued an order regarding the revocation of the visa petition. When the government included the missing BIA order in its supplemental excerpts of record, petitioners’ counsel did not bother to submit a reply brief acknowledging the order or arguing that we should review it.

Because the De Perios did not petition for review of the BIA’s visa petition decision, they failed to…