On August 28, 2003, Petitioners in the Ninth Circuit case Carriche v. Ashcroft, 335 F.3d 1009 (9th Cir. 2003), filed a petition for rehearing and rehearing en banc.  In this case, the court held that the Board of Immigration Appeals (BIA) affirmance without opinion (AWO) procedure did not violate Petitioners’ due process rights.  It also held that the court had no jurisdiction to evaluate whether the BIA appropriately issued an AWO decision in the case.  There was a strong dissent on this issue.  The original decision and a discussion of the case are posted on InfoNet:  “Ninth Circuit Upholds BIA Streamlining Procedures,” AILA Doc. ID 03071740 (July 17, 2003) and “Analysis of Falcon Carriche,” AILA Doc. ID 03071741 (July 17, 2003).

The American Immigration Law Foundation (AILF) joined by the National Immigration Law Center and the National Immigration Project of the National Lawyers’ Guild, submitted an amicus brief in support of the petition.  The court immediately granted the motion to file an amicus brief and ordered the government to respond to the petition within 21 days.  This is a very good sign, as it indicates the court is considering the petition.

AILF continues to encourage lawyers to challenge the AWO procedure and argue that Carriche must be limited to its fact and to the type of case it is (i.e., cancellation of removal/hardship).  Other circuits have yet to rule on this issue.

Legal Action Center, American Immigration Law Foundation
September 5, 2003