Enwonwu v. Gonzales, No. 06-2457 (unpublished). This case was previously before the First Circuit in Enwonwu v. Gonzales, 438 F.3d 22 (1st Cir. 2006)(our coverage here). The First remanded “remanded his claim for CAT relief to the BIA for ‘further consideration . . . in light of its failure to address the second ground in the IJ's decision,’” Surprise, surprise, he lost at the BIA. But things get weird.
The respondent argues that the First can’t review a “question of law” because of the REAL ID Act. “Because this statutory jurisdictional argument presents difficult and unsettled issues, we will by-pass it.... and, for the reasons discussed below, deny the petition on other grounds.” Let me say that this slight of hand is a load of crap. If the court really didn’t have jurisdiction to decide an issue, then it shouldn’t decide it. If a court does have jurisdiction to decide such an issue, despite Congress’ statement that it doesn’t, it should say so as well. If a court decides an issue that it didn’t have jurisdiction to decide, then such a decision is accorded no preclusive ore precedential effect. Skeptical? Let’s look at what the Supreme Court says:
The question of personal jurisdiction, which goes to the court's power to exercise control over the parties, is typically decided in advance of venue, which is primarily a matter of choosing a convenient forum. See generally C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3801, pp. 5-6 (1976) (hereinafter Wright, Miller, & Cooper). On the other hand, neither personal jurisdiction nor venue is fundamentally preliminary in the sense that subject-matter jurisdiction is, for both are personal privileges of the defendant, rather than absolute strictures on the court, and both may be waived by the parties.
Leroy v. Great Western United Corp., 443 U.S. 173, 180 (1979)
Even weirder, the First holds that a decision of a District Court (which it doesn't provide the cite for), which it calls “advisory” “is [probably not] an ‘official document’ that the BIA is authorized to notice under 8 C.F.R. § 1003.1(d)(3)(iv).” No details are given as to why this is an advisory opinion.
Anyway, on the “merits” it finds that the petitioner didn’t administrative exhaust his claims, and that the doctrine of “law of the case” applies both to issues that were raised in the First appeal that, and issues that he apparently could have, but did not raise in the First appeal.
Also, correction of an error (indicating that the BIA would rule the opposite way) wasn’t a constitutional error.
There is way to much here for it to be an unpublished opinion.
What's really interesting is that Judge Young posted his 7/12/05 opinion (which recommended, in a 105 pg. opus, that Enwonwu's due process challenge be allowed, and he be released forthwith) to the D. Mass PACER web site on May 3, 2007. One of Judge Young's complaints was that the REAL ID act stripped the trial courts of meaningful habeas review of deportation decisions, thereby depriving petitioners of the trial courts' fact-finding expertise.
Here's a link: http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=young/pdf/enwonwu-7-12-05-rpt-recommendation.pdf
It seems there's an ever-increasing amount of bench-slappery going on between the First Circuit (is it just Judge Lynch?) and Judge Young.
Posted by: enjointhis | May 11, 2007 at 02:18 PM