The most interesting part of the case was the discussion of the CtApp's inherent authority to remand for new evidence; the CtApp followed the 2d Cir's decision in Xiao Xing Ni v. Gonzales, 494 F.3d 260, 264-65 (2d Cir. 2007).
The CtApp found that the one-year issues in the case were "predominantly factual," and thus found no jurisdiction under 1252(a)(2)(D). It found that substantive evidence supported the Board's denial of withholding (despite Aird affidavit, in Chinese pop control case) and removal of conditions (where marriage fraud found) - and no abuse of discretion in refusing remand.
Barry v. Mukasey (6th Cir. 2/25/08 / published 4/8/08)
McKEAGUE, Batchelder, Moore
The 6th Cir held that it lacks jurisdiction over a sua sponte reopening claim, and upheld the Board's finding that equitable tolling was inappropriate because of her lack of due diligence in pursuing her claim.
In a 238(b) expedited removal, the 6th cir declined to address the procedural due process arguments, finding that restitution of 875K was sufficient to show that fraud conviction was over 10K, in the absence of plea agreement to the contrary. The Court also rejected a (weak) Equal Protection against against 238(b) proceedings.
The 6th Cir held that the Board acted irrationally in refusing to consider FOIA evidence obtained while case was on appeal, strongly suggesting that the I-130 was received by USCIS before the Petitioner turned 21 (thus bringing him within the CSPA and making him eligible for Adjustment of Status). It also stated that the Board could have simply ordered DHS to produce the original envelope, just as it (the CtApp) did.
The 6th Cir found that where the Board granted reconsideration of an order (but ordered removal anyway), after the Petition for Review was filed, that this had the effect of vacating the removal order and substituting a new removal order. Because no new Petition for Review had been filed, found no jurisdiction to consider case.
Sixth Circuit 
