Cho v. Gonzales, No. 04-1437 is a freakin’ important immigration decision. I know this, not because I follow this area of law closely, but because there are amicus briefs from the NLJ, and other do-gooders. It includes the typical remand to an IJ because they don't care about making real findings of fact, but instead opt to seize on one thing proved by the government, and conclude that the reset of the petitioner's argument is bunk, and resolves a jurisdictional issue.
This case holds that when “an alien who marries a United States citizen is entitled to petition for permanent residency on a conditional basis” but later divorces, but wishes to stay in the US and apply for a hardship waiver, the “the relevant legal standard is, again, whether [the petitioner] intended to establish a life with her spouse at the time [they] married [them].”
The First Circuit found that the IJ and the BIA (as usual) seemed to analyze the timing of the marriage in isolation, and did not look at any other facts proven at hearings, and so mere “timing” is not enough to base a finding on.
OIL for some reason made the argument that the court “lack[s] power to consider the petition under a permanent, jurisdiction-stripping statute enacted into law as part of the Immigration Reform and Immigrant Responsibility Act of 1996.” The court found that it had jurisdiction because based on 1) precedent; and 2) reasoning that Congress would have made the AG’s absolute discretion more clear if was really a complete jurisdiction-stripping statute, and concluded that .“...the final agency order in this case would not be the Attorney General's rejection of Cho's application for a hardship waiver. Rather, it would be the removal order itself, which is the final decision of the Attorney General that we have jurisdiction to review under 8 U.S.C. § 1252(a)(1).”
Oh, speaking of that, some lawyers think that terrorists are using our system of laws to hurt us. What a crock.