Walter Antonio Amaya Arias v. Alberto Gonzales, the Attorney General of the United States

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
September 15, 2005
No. 04-1999
WALTER ANTONIO AMAYA ARIAS,
Petitioner
v.
ALBERTO GONZALES, THE ATTORNEY GENERAL
OF THE UNITED STATES; DEPARTMENT OF
HOMELAND SECURITY; BUREAU OF
IMMIGRATION & CUSTOMS ENFORCEMENT,
Respondents
(Agency No. A97 133 248)
Present: SMITH, FISHER, and NYGAARD, Circuit Judge.
Motion by Respondents to Amend or Modify the Decision by striking
the final sentence in Part II of its opinion and in its place adding the
following:
We therefore find that we have jurisdiction to review
to review that legal determination. However, the BIA
alternatively held that even if an involuntariness
exception exists, Amaya Arias’s support was not
involuntary. Amaya Arias challenges this determination
as well. Because this determination is, as previously
noted, a factual one, we would have no jurisdiction to
review it if Amaya Arias were only seeking review of
the asylum claim. But as previously noted, he is also
seeking review of the withholding denial, and we retain
jurisdiction to review factual issues pertaining to that
claim because the jurisdiction limitation at 8 U.S.C.
Section 1182(b)(2)(D) does not apply to withholding
claims, and therefore does not preclude our review of
factual issues pertaining to such claims. Thus, because
the availability of withholding of removal turns on the
same factual issues that Amaya Arias raised in his asylum
claim, we have jurisdiction to reach the merits of his
claims, both factual and legal.
And

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Amend the first sentence of part III to read:
“We now turn to the merits of the withholding claim.”
/s/ Rebecca L. Simon
Case Manager 267-299-4947
O R D E R
The foregoing motion is granted.
By the Court,
/s/ D. Michael Fisher
Circuit Judge
Dated: October 26, 2005
RLS/cc: RA
LDJ

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