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Home arrow Immigration Litigation Update arrow 9th Cir.: BIA Can't Correct Direct Appeal Legal Errors in MTR

9th Cir.: BIA Can't Correct Direct Appeal Legal Errors in MTR Print E-mail
Tuesday, 19 August 2008

Doissaint v. Mukasey (No.s 06-73218, 06-75390; August 18, 2008)

GRABER, Alarcón, Rawlinson

     The 9th Circuit had before it two timely petitions for review from petitioner - one the direct appeal and one based on the BIA's denial of a motion to reopen.  The BIA had ruled on the direct appeal that petitioner had abandoned his CAT claim on the appeal.  The 9th Circuit held that petitioner had clearly not abandoned the CAT claim as he had briefed it on the direct appeal to the BIA.  The 9th Circuit then held that the BIA could not correct this legal error by then mentioning in the denial of the MTR that they found no clear error in the IJ's decision.

     The 9th Circuit remanded the direct appeal case to the BIA to examine petitioner's CAT claim in the first instance and dismissed the petition based on the MTR as moot.

Read opinion here

 
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