Seventh Circuit Weighs in on Reviewability of BIA Decision Affirming IJ Opinion Containing Reviewable and Non-Reviewable Bases

Per the Seventh Circuit in Cuellar Lopez v. Gonzales, 427 F.3d 492 (7th Cir. Oct. 26, 2005):

Our sister circuits have come to different conclusions about the reviewability of an IJ decision that contains both a reviewable and nonreviewable basis, which the BIA affirms without opinion.

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The Ninth, Fifth, and First Circuits have concluded that the proper disposition when an IJ opinion contains both reviewable and nonreviewable grounds is to remand to the BIA so that it may clarify the basis of its holding. See Lanza v. Ashcroft, 389 F.3d 917, 919-20, 932 (9th Cir.2004) (holding that a remand to the BIA is necessary where the IJ's decision is founded on a discretionary and nondiscretionary basis and the BIA affirms without an opinion); Zhu v. Ashcroft, 382 F.3d 521, 527 (5th Cir.2004) (same); Haoud v. Ashcroft, 350 F.3d 201, 206-08 (1st Cir.2003) (same). The Tenth Circuit, in contrast, rejects the "assum[ption] that the decision from which jurisdiction is determined must be the decision by the highest tribunal in the hierarchy that considers the matter," holding instead that "we look to the IJ's decision (rather than the BIA's unexpressed reasons) ... when we are determining our jurisdiction." Ekasinta v. Gonzales, 415 F.3d 1188, 1193-94 (10th Cir.2005).

We agree with the reasoning of the majority position in this circuit split, which seems to us the best way to apply the rules that confine our jurisdiction in immigration matters to particular questions, while still safeguarding due process.