Robledo Response to Motion to Dismiss - Surviving Spouses ...

(i) any judgment regarding the granting of relief under section 1182 (h),
1182 (i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the Secretary
of Homeland Security the authority for which is specified under this
subchapter to be in the discretion of the Attorney General or the Secretary
of Homeland Security, other than the granting of relief under section 1158
(a) of this title.
8 U.S.C. § 1252(a)(2)(B) (Supp. V 2005). Thus, by its express terms, “the jurisdiction-stripping
provisions apply only to judgments by the Government specified under § 1252(a)(2)(B)(i) and
other decisions or actions of the Government that are discretionary under § 1252(a)(2)(B)(ii).”
Ogbolumani, 523 F. Supp. 2d at 873 (citing El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004)
and Holy Virgin Protection Cathedral of the Russian Orthodox Church Outside Russia v.
Chertoff, 499 F.3d 658 (7th Cir. 2007)).
In 2005, Congress enacted the Real ID Act which merely confirmed the prevailing view
in the circuits that, while the IIRIRA foreclosed judicial review of discretionary decisions
themselves, it did not bar review of “constitutional questions or questions of law arising from the
agency’s decision to deny discretionary relief.” Jean v. Gonzales, 435 F.3d 475, 480 (4th Cir.
2006) (emphasis added). The REAL ID Act provided direct appeal of such questions to the court
of appeals. Neither the IIRIRA nor the REAL ID Act address judicial review of non-enumerated
and non-discretionary decisions.
Several courts have held that § 1252 “only strips a district court of jurisdiction when the
alien is challenging an order of removal.” Bin Lateef v. Jaromin, 2008 WL 3411783, at *3 (E.D.
Mo. Aug. 8, 2008) (citing Nnadika v. Attorney Gen., 484 F.3d 626, 632 (3d Cir. 2007); Kellici v.
Gonzales, 472 F.3d 416, 419-20 (6th Cir. 2006); Madu v. Attorney Gen., 470 F.3d 1362, 1365-
- 8 -