In a non-LPR Cancellation case, the Petitioner argued that the Board failed to apply its own precedent - Matter of Recinas - which would have led to a finding of extraordinary hardship. The CtApp found that Board failure to follow precedent is not a discretionary decision, so 1252(a)(2)(B) didn't bar review - thus, no need to reach whether failure to file precedent is a question of law under 1252(a)(2)(D). (Note that the 6th Cir treats 1252(a)(2)(B) as barring only review over discretionary questions.) However, the CtApp found that such review must be deferential, and limited to whether the Board made a reasonable application of its precedent to this particular case.
At the end of Rashid v. Mukasey, the Court of Appeals referred to "the government’s apparent concession [in its Answering Brief] that it will return Rashid to the United States for the proceedings that we now require." Indicating that it will not appeal the merits of the decision, the Govt fears the precedent of being ordered to return someone to the U.S., and asked the Court to amend that part of the Court's decision. The Govt argued that it should not have to pay for a proper removal, and gave the following version of its obligations:
The Government’s involvement in returning Petitioner would be limited to facilitating his return if he chooses to do so, by ensuring that Petitioner’s transportation is not prohibited by lack of travel documents and taking other necessary steps to ensure that his entry is effectuated at the border once he presents himself for admission into the United States. For example, the Government would first assess whether Petitioner actually wants to return to the United States. Assuming his desire to return to the United States, Petitioner would have to agree to return to the same custody status from which he was removed. Moreover, once the perimeters of his return were established, the Government would begin the process of generating the appropriate documents to facilitate Petitioner’s processing at the border. In order to generate the appropriate documentation to parole Petitioner into the United States, DHS would coordinate certain matters with Petitioner’s counsel, which would include the completion of a specific forms and other documents.
The Govt also contested the Board's role in refereeing any disputes: "the Board has no statutory or regulatory authority over the procedural nature of the processes involved in Petitioner’s return to the United States. That authority lies exclusively with DHS."
[The return of individuals to the US after a removal order is a major problem, reported by litigators throughout the country. USCIS has no forms that can be filled out; ICE and the State Dept have great trouble coordinating travel documents. The only times the process is simple is where the respondent happened to maintain a travel document, such as an LPR card. While it does seem unlikely that the Govt could be made to pay for the return, an order requiring documentation within a set time period seems not unreasonable. -CR]
The 6th Cir found that a second or subsequent drug possession offense is not an aggravated felony.
"The ultimate problem with the conclusions of the Seventh Circuit in Pacheco-Diaz, the Fifth Circuit in Cepeda-Rios, and the IJ and the BIA in the present case is that, as Rashid aptly explains, they 'added a hypothetical to a hypothetical.' The first and only hypothetical that should be considered under the 'hypothetical federal felony approach' is whether the crime that an individual was actually convicted of would be a felony under federal law. But by looking to facts not at issue in the crime of conviction in order to determine whether an individual could have been charged with a federal felony, our sister circuits, the IJ, and the BIA have considered an impermissible second hypothetical."
Rejecting United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007); United States v. Cepeda-Rios, ___ F.3d ___, No. 07-50731, 2008 WL 2266996 (5th Cir. June 4, 2008) - accord, Berhe v. Gonzales, 464 F.3d 74 (1st Cir. 2006), Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001).
The 6th Cir published a decision upholding - under abuse of discretion - the IJ's denial of a continuance, because USCIS had issued Notice of Intent to Deny I-130 petition based on suspicion of fraud. No right to wait for a decision.
The 6th Cir held that where a man insulted a Prince in the UAE, and police tried to throw him in jail as a result (and imprisoned his brother for 6 months), it was not on account of political opinion, but just a business dispute.
Sixth Circuit 
