9th Circuit reverses BIA decision upholding IJ decision on erroneous grounds
Immigrants' Rights Update, Vol. 17, No. 3, June 3, 2003

The U.S. Court of Appeals for the Ninth Circuit has reversed a decision of the Board of Immigration Appeals that upheld an immigration judge's denial of a waiver that the IJ in fact never denied. In overturning the ruling, the court noted that "[w]hile we recognize that the BIA is swimming in a sea of cases, barely able to keep itself afloat, there remains no excuse for the apparent failure to read the decision one is reviewing and to review the decision that was made."

The respondent in this case, Jose Arturo Murillo-Salmeron, applied for adjustment of status at his deportation hearing. In conjunction with that application, he applied for a waiver under section 212(h) of the Immigration and Nationality Act because of drunk driving offenses that he had committed in his youth. The IJ concluded that the offenses did not render Murillo-Salmeron inadmissible and therefore did not consider the waiver application. However, the IJ denied the adjustment application in the exercise of discretion.

On appeal, the BIA issued a three-paragraph decision affirming the IJ's finding "that the respondent had not established that he merited a favorable exercise of discretion for a section 212(h) waiver of inadmissibility." The respondent then petitioned for review of this decision.

The court first rejected the government's contention that it lacked jurisdiction to consider the petition. The government contended that the BIA's decision was an exercise of discretion, which the court could not review in a petition for review because of restrictions enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The court rejected this argument because the BIA's conclusion-i.e., that Murillo-Salmeron's failure to merit a waiver meant he did not qualify for adjustment- presents a nondiscretionary legal question. The court also rejected the government's argument that the BIA decision should simply be considered as an adoption of the IJ's decision and ignored, because the cursory decision cannot be read in that manner.

On the merits, the court found that the denial of adjustment based solely on a failure to qualify for a waiver that was not needed was invalid as a matter of law. Accordingly, the court reversed the BIA's ruling and remanded the case for adjudication of the adjustment case. The court noted that "[a]lthough it seems plain enough that Murillo's twenty-five years of U.S. residence, four dependent citizen children, and entire extended family within the United States more than outweigh his stale DUI convictions, the procedural posture of this case requires us to return it to the BIA."

Murillo-Salmeron v. INS, 327 F.3d 898 (9th Cir. 2003).