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Intercultural Human Rights Law Review

First Page

57

Abstract

This article demonstrates that the basic, analytical concept of a question of law in immigration court decisions is more expansive than is typically understood. I unearth and analyze confusion in immigration case law and propose some ways for us to think more clearly about the law-fact distinction, focusing on questions that involve the application of law to facts that have already been established - questions that are commonly called mixed questions. Part II of this article briefly traces the history of immigration judicial review, culminating with the REAL ID Act of 2005 and the jurisdictional savings clause contained in it. Part III discusses the concept of a mixed question of law and fact, offering a basic formula that captures the concept of a mixed question as a question of law. In Part IV, I discuss the extent to which courts regard particular mixed questions as legal or factual. Part V suggests a meta-rule formula for mixed questions that offers a way to identify and categorize mixed questions involving a breach of the rules of decision-making. Part VI addresses the interplay between the concepts of law-fact and discretion, as this has been a focal point of confusion. The article concludes with thoughts about how courts and litigators should proceed in their thinking about the law-fact distinction.

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