CA9 on Jurisdiction: Nakka v. USCIS

Nakka v. USCIS

Plaintiffs' counsel Brent Renison reports: "The Ninth Circuit has extended the Supreme Court’s interpretation of § 1252(a)(2)(B) in Patel v. Garland, 596 U.S. 328 (2022) to constitutional and collateral APA claims to rule that purely legal challenges to adjustment of status practices and procedures require the plaintiff to apply for adjustment of status, be denied, be placed in removal proceedings (which is not a right), go before an immigration judge, be ordered removed, appeal to the Board of Immigration Appeals, and finally make a claim before the circuit court before having their claims of misapplication of law reviewed. In Nakka v. USCIS (9th Cir. August 8, 2024), the Court said, “We recognize that individuals like [plaintiff]—who have not violated any immigration laws—must violate the law to render themselves removable and obtain judicial review. And, ‘[w]e normally do not require plaintiffs to ‘bet the farm’ . . . by taking the violative action before testing the validity of the law, and we do not consider this a meaningful avenue of relief.’ Id. (cleaned up). However, Congress can require review in this manner by expressly limiting and channeling judicial review. See id. at 489–90. And, in CSS, the Court considered an almost identical situation. There, to obtain judicial review, the plaintiffs had to “either surrender to the INS for deportation or wait for the INS to catch [them] and commence a deportation proceeding, and then suffer a final adverse decision in that proceeding, before having an opportunity to challenge the INS’s denial of [the] application in court.” 509 U.S. at 55.” Brent Renison, counsel for plaintiffs, was “disheartened” by the opinion, after waiting nearly 5 years to have a decision on the merits. He commented, “A mockery of justice is made when law abiding immigrants must break the law before asking a federal judge to review whether the government has broken the law.”