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35 Immigr. & Nat'lity L. Rev. 759 (2014)
Removal of Adequacy: Appellate Review of Mixed Questions in Discretionary Removals

handle is hein.journals/inlr35 and id is 773 raw text is: COMMENT REMOVAL OF ADEQUACY: APPELLATE REVIEW OF MIXED QUESTIONS IN DISCRETIONARY REMOVALS Terry Cannon* I. INTRODUCTION The question of whether appellate courts may consider mixed questions of law and fact that arise out of petitions to review removal orders of aliens has been problematic for the circuits that have attempted to resolve it. While 8 U.S.C. § 1252(a)(2)(D)1 preserves appellate court jurisdiction to review denials of discretionary relief if the cases present constitutional claims or questions of law, federal circuit courts have interpreted questions of law very differently. This article seeks to explain the circuit split that exists over the questions of law requirement and the various interpretations of that phrase that determine whether appellate courts may review mixed questions of law and fact, as well as understanding why mixed questions require a specific interpretation in the immigration context. Part II explains mixed questions of law, the statutory limitations of review, the potential constitutional problems with the jurisdiction-stripping provision of § 1252 as it existed in the latter part of the 1990s, and the Supreme Court's decision in INS v. St. Cyr2 that prompted Congress to amend it. Part III examines the current practices of the circuit courts since the implementation of § 1252(a)(2)(D), finding that as of 2015, the Seventh Circuit stands alone in its strict interpretation that § 1252(a)(2)(D) precludes review of mixed questions of law and fact. Finally, Part IV provides further discussion of the Second and Ninth Circuits' interpretations, both of which conclude that mixed questions are reviewable. * Associate Member, 2014-2015 Immigration and Nationality Law Review. '8 U.S.C. § 1252(a)(2)(D) codifies REAL ID Act of 2005 § 106(a)(1)(A)(ii). Courts sometimes refer to this provision simply as REAL ID or Section 106, Immigration and Naturalization Act of 1952 § 242(a)(2)(D). To be consistent with references used in recent court decisions, I will refer to the provision in question as § 1252(a)(2)(D). 2INSv. St. Cyr, 533 U.S. 289 (2001). 759

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