                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-26-2005

Arias v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1999




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Recommended Citation
"Arias v. Atty Gen USA" (2005). 2005 Decisions. Paper 347.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/347


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      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
             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

                                         ORDER

      The foregoing motion is granted.

                                             By the Court,


                                             /s/ D. Michael Fisher
                                             Circuit Judge
Dated: October 26, 2005
RLS/cc: RA
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