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Dean Shoba Sivaprasad Wadhia, Dec. 3, 2021
"Patel v. Garland raises an important question about whether a federal court can review a decision by an agency within the Department of Justice that a noncitizen is ineligible for a green card. The Supreme Court will hear oral argument in the case on Monday.
Congress created a process known as “adjustment of status” so that immigrants physically present in the United States could change their status to that of a lawful permanent resident (i.e., a green card holder) without having to leave the United States. The government’s decision to grant or deny a person adjustment has profound consequences for the individual. In fiscal year 2021, 104,000 noncitizens adjusted their status. Holding a green card allows a person to work, go to school, and build a home in the United States. Many green card holders in the United States eventually apply for and attain U.S. citizenship.
Congress designed adjustment of status to require a person to first meet precise eligibility requirements that include a showing they entered the United States lawfully, are in a qualifying legal category (i.e., family, employment) for which a visa is available, and are “admissible.” Congress also created a “forgiveness” clause to these eligibility requirements by creating a pathway for adjustment for those who entered the country without “inspection” if they could show they filed a visa petition or labor certification with the government on or before April 30, 2001, were physically present in the United States, and would pay a fine of $1,000.
Congress created a second step to all adjustment-of-status applications that requires a person to show they qualify for adjustment in the exercise of discretion. This two-step design of adjustment — meeting eligibility requirements plus a discretionary component mirrors the design of many other forms of immigration relief. Both the Department of Homeland Security and the Department of Justice have the legal authority to grant adjustment of status depending on whether a person is in deportation (formally known as “removal”) proceedings. When a person is placed in deportation proceedings, adjustment of status acts as a “defense” to deportation.
This case involves Pankajkumar Patel, a citizen of India who has lived in the United States for nearly 30 years. Patel is married to Jyotsnaben Patel (a co-petitioner in this case) and together they have three children. Patel first applied for adjustment of status under the forgiveness clause and based on his employment in the United States and because he entered without inspection. He stated that he mistakenly marked “yes” in response to a Georgia driver’s license application question “Are you a U.S. Citizen?” DHS found that he falsely represented himself to be a U.S. citizen on his application and denied him adjustment.
In 2012, Patel was placed in deportation proceedings before an immigration judge. The immigration charge by DHS against Patel was being present in the United States without admission or parole. Patel renewed his application for adjustment as a defense to deportation. DHS then argued that Patel was ineligible for adjustment of status because he made a false claim of U.S. citizenship, and an immigration judge agreed, despite Patel’s testimony that he marked the U.S. citizen box by mistake. The immigration judge never decided the second step — the discretionary one. Patel appealed this decision to another unit in DOJ called the Board of Immigration Appeals, and the BIA agreed with the immigration judge.
In 1996, Congress created 8 U.S.C. § 1252(a)(2)(B)(i), which bars federal courts from reviewing denials of discretionary relief and specifically “any judgment regarding the granting of relief” of five different kinds of immigration relief, including adjustment of status. In 2005, Congress added 8 U.S.C. § 1252(a)(2)(D), which clarified that nothing in subparagraph (B)(i) should “be construed as precluding review of constitutional claims or questions of law raised upon a petition for review” in the federal courts of appeals.
Patel challenged the BIA denial in the U.S. Court of Appeals for the 11th Circuit. The circuit court concluded that subparagraph (B)(i) bars a court from reviewing Patel’s case. The court held that (B)(i) prohibits all judicial review of adjustment of status, except for legal or constitutional questions brought under Section 1252(a)(2)(D). Patel sought review before the Supreme Court.
At the heart of this case is whether a federal court can review questions tied to Patel’s statutory eligibility for adjustment of status. Specifically, the Supreme Court will consider “[w]hether 8 U.S.C. § 1252(a)(2)(B)(i) preserves the jurisdiction of federal courts to review a non-discretionary determination that a noncitizen is ineligible for certain types of discretionary relief.” Patel and the federal government agree that the case involves a non-discretionary determination regarding Patel’s eligibility for adjustment of status. They also both agree that the 11th Circuit made a mistake and further believe that the 1996 law permits review over non-discretionary decisions, including findings of fact. The court appointed attorney Taylor Meehan to defend the 11th Circuit’s decision.
The government’s brief begins with the words used in Section 1252(a)(2)(B)(i) and agrees that it bars the review of “any judgment regarding” the granting or denying of relief. By looking at how the word “judgment” is used in other sections of the Immigration and Nationality Act and the courts’ presumption “that a given term is used to mean the same thing throughout the statute,” the government argues that subparagraph (B)(i) should be read to refer only to discretionary decisions. The government notes that the very heading of this statutory section, “Denials of discretionary determinations,” provides a cue as to what Congress intended. Applied here, the government would have permitted judicial review to the factual question in Patel’s case, namely whether he intended to misrepresent his citizenship on his driver’s license application. The government rejects the claim by the 11th Circuit that the neighboring clause created in 2005 of Section 1252(a)(2)(D) would be unnecessary or superfluous if subparagraph (B)(i) already permitted review of nondiscretionary decisions.
Relying on the words and structure of the statute, Patel argues that the most natural reading of Section 1252(a)(2)(B)(i) is that “judgment(s) regarding the granting of relief” pertains only to the second-step discretionary decision. They argue that the decisions on whether persons meet the threshold eligibility requirements of adjustment are distinguishable from the discretionary decision to which the statutory text of “judgment” “granting” or “judgment regarding the granting of relief” attach. At a minimum, Patel argues that (B)(i) is best read to apply only to the second-step discretionary decision. While the word “judgment” might have different meanings in isolation, Patel argues that in context “it is best read to refer to the discretionary determination whether to ultimately grant such relief.” Patel also discusses the settled principles of statutory interpretation and, citing to Kucana v. Holder and Guerrero-Lasprilla v. Barr, underscores the principle and presumption of judicial review. Finally, citing to INS v. Cardoza-Fonseca, Patel uplifts the doctrine of interpreting ambiguities in a statute in favor of the noncitizen.
Meehan, in support of the 11th Circuit’s judgment, interprets 8 U.S.C. § 1252(a)(2)(B)(i) to mean that no court has jurisdiction to review whether Patel misrepresented citizenship because that is a question of fact and distinguishable from questions of law. She challenges both Patel and the government’s characterization of non-discretionary determinations as reviewable by arguing, “If that were so, then every denial of discretionary relief would be reviewable for every lurking question of fact. Congress might have well re-titled the section “[m]atters not always subject to judicial review.”
How this legal issue is resolved will impact the fate for Patel and his wife and also for thousands of cases involving two-step discretionary relief. Thirty-five former immigration judges and BIA members say in an amicus brief that if the court finds the immigration statute forecloses all judicial review, “The impact of such a ruling would be substantial. Every year, there are tens of thousands of cases decided that involve requests for discretionary relief under § 1252(a)(2)(B)(i). Between January 2017 and September 2020, for instance, immigration judges decided over 94,000 such applications.” As revealed in an amicus brief by the National Immigration Litigation Alliance, adopting the 11th Circuit’s interpretation could also leave thousands of people seeking adjustment of status outside of deportation proceedings without any kind of review of the denial of their applications.
How the 1996 law or jurisdictional bar is interpreted by the court could also influence the future of statutory construction and specifically whether ambiguous statutes are read to favor the noncitizen. Immigration scholars argue that a failure to construe ambiguities in Section 1252(a)(2)(B)(i) in favor of the noncitizen would have “drastically negative consequences for Petitioners as well as other noncitizens who would have no recourse to challenge misguided agency decisions affecting whether discretionary relief could even be considered.” Finally, the outcome in this case could also raise new questions about the meaning of separation of powers and due process."
Shoba Sivaprasad Wadhia is Associate Dean for Diversity, Equity, and Inclusion; the Samuel Weiss Faculty Scholar; and Clinical Professor of Law at Penn State Law in University Park.