Fifth Cir. Notes Split Re Decision Whether Crime is "Particularly Serious" is Matter for Court Jurisdiction

Per Solorzano-Moreno v. Mukasey, 2008 WL 4538322 n.5 (5th Cir. Oct 10, 2008):

We need not address the government's alternative jurisdictional argument that section 1252(a)(2)(B) precludes our review of the immigration judge's finding under section 1231(b)(3) that Solorzano's crime was "particularly serious." This argument, which posits that whether an alien has been convicted of a "particularly serious" crime is a matter of "discretion" within the meaning of section 1252(a)(2)(B), is the subject of a circuit split. Compare, e.g., Villegas v. Mukasey, 523 F.3d 984, 987 (9th Cir.2008) (holding that whether a crime is "particularly serious" is a "determination [ ] committed by statute to the Attorney General's discretion, so this court lacks jurisdiction to review it") with Nethagani v. Mukasey, 532 F.3d 150, 154-55 (2d Cir.2008) (reaching the contrary conclusion).


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