Saturday, September 27, 2008

Immigration: Case withdrawn without explanation: Almousa v. Mukasey, 518 F.3d 738 (9th Cir. 2008)

The Ninth Circuit issued an order withdrawing the published case of Khalid Me Almousa, 518 F.3d 738 (9th Cir. 2008) and denying the right of counsel to cite the case in the future. The petition for panel rehearing was granted. A petition for rehearing en banc may be filed; 2008 WL 4330339. On rehearing, the 2-1 majority filed a non published decision; 294 Fed. Appx. 277 All without explanation by the court. The Immigration Judge (IJ) denied Almousa's request for asylum. On appeal, Almousa contended he was a minor, and the Ninth Circuit 2-1 majority remanded the case to the IJ to determine whether this issue, never raised before in any proceeding, precluded his deportation. Here is the dissent: . . ."this issue [minority] was not raised in the asylum application itself, before the IJ or in [Almousa's] pro se appeal." And quoting the majority, "'[age] may provide an exception to the exhaustion rule'. . . Absolutely no supporting authority is cited to bolster this novel attempt to bootstrap us into jurisdiction over an unexhausted issue." And on the merits the dissenting judge wrote:"This [case] is a quintessential factfinding function that should not be hijacked on appellate review. Note: a petitioner must "exhaust" his administrative and procedural remedies in papers filed in support of his application before the IJ or otherwise forfeit the right to allege those claims on appeal.

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