By Shoba Sivaprasad Wadhia
December 3, 2021
at 3:20 p.m.
Patel vs. Garland raises an important question about whether a federal court can review a decision by a Justice Department agency that a noncitizen is ineligible for a green card. The Supreme Court will hear oral arguments in the case on Monday.
Congress has created a process known as “adjustment of status” so that immigrants who are physically present in the United States can change their status to that of lawful permanent resident (i.e. card holder). green) without having to leave the United States. The government’s decision to grant or deny a person an adjustment has profound consequences for the individual. In fiscal year 2021, 104,000 non-nationals adjusted their status. Possession of 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 obtain US citizenship.
Congress designed a statute adjustment to require a person to first meet with eligibility requirements that include showing they have entered the United States legally, belong to an eligible legal category (i.e. family, employment) for which a visa is available, and are “admissible”. Congress also created a “pardon” clause to these eligibility requirements by creating an adjustment pathway for those who entered the country without “inspection” if they could show they had applied for a visa. or government labor certification no later than April 30, 2001. , were physically present in the United States and would pay a fine of $1,000.
Congress has created a second step for all requests for adjustment of status that requires a person to show that they are eligible for an adjustment in the exercise of their discretion. This design of the two-step adjustment – meeting eligibility criteria plus a discretionary element – mirrors the design of many other forms of immigration assistance. 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 undergoing deportation proceedings (formerly known as ” dismissal”). When a person is subject to deportation proceedings, the adjustment of status serves as a “defence” to the deportation.
This case concerns Pankajkumar Patel, an Indian citizen who has lived in the United States for almost 30 years. Patel is married to Jyotsnaben Patel (a co-petitioner in this case) and together they have three children. Patel initially applied for adjustment of status under the pardon clause and on the basis of his employment in the United States and because he entered without inspection. He said he mistakenly marked “yes” in response to a Georgia driver’s license application’s question “Are you a US citizen?” DHS found he had misrepresented himself as a US citizen on his application and denied him the adjustment.
In 2012, Patel was placed in deportation proceedings before an immigration judge. The DHS immigration charge against Patel was present in the United States without admission or parole. Patel renewed his claim for adjustment as a defense to expulsion. DHS then argued that Patel was ineligible for an adjustment of status because he had made a false claim of US citizenship, and an immigration judge agreed, despite Patel’s testimony that he had checked the US citizen box by mistake. The immigration judge never decided on the second stage – the discretionary. Patel appealed that decision to another DOJ unit called the Board of Immigration Appeals, and the BIA ruled in favor of the immigration judge.
In 1996, Congress created 8 USC § 1252(a)(2)(B)(i), which prohibits federal courts from reviewing denials of discretionary relief and specifically “any judgment regarding the granting of a redress” of five different types of immigration redress. , including status adjustment. In 2005, Congress added 8 USC § 1252(a)(2)(D), which clarified that nothing in subparagraph (B)(i) should “be construed to exclude consideration of constitutional claims or questions of law raised in a petition for review” before the federal appeals courts.
Patel challenged the BIA’s denial in the United States Court of Appeals for the 11th Circuit. The circuit court found that subparagraph (B)(i) precludes a court from reviewing Patel’s case. The court held that (B)(i) precludes any judicial review of adjustment of status, except for legal or constitutional issues raised under section 1252(a)(2)(D). Patel has asked for a Supreme Court review.
At the heart of this case is whether a federal court can consider issues related to Patel’s legal eligibility for adjustment of status. Specifically, the Supreme Court will consider “[w]ether 8 USC § 1252(a)(2)(B)(i) preserves the jurisdiction of federal courts to review a nondiscretionary 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 decision regarding Patel’s eligibility for adjustment of status. They also both agree that the 11th Circuit erred and further believe that the 1996 law allows for non-discretionary review of 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 s. repair. In examining 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 law”, the government argues that subparagraph (B)(i) should be interpreted as referring only to discretionary decisions. The government notes that the very title of this statutory article, “Refusal of Discretionary Determinations,” provides a clue as to the intentions of Congress. Applied here, the government would have allowed judicial review of the question of fact in Patel’s case, namely whether he intended to misrepresent his citizenship on his driver’s license application. The government rejects the 11th Circuit’s assertion that the 2005-created neighboring clause of Section 1252(a)(2)(D) would be unnecessary or superfluous if subparagraph (B)(i) already permitted control of non-discretionary decisions.
Relying on the wording and structure of the statute, Patel argues that the most natural reading of Section 1252(a)(2)(B)(i) is that “the judgment or judgments regarding the grant of a remedy” relate only to the second -stage discretionary decision. They argue that decisions about whether individuals meet the adjustment threshold eligibility criteria are distinct from the discretionary decision to which the statutory language of “judgment” “granting” or “judgment regarding the granting of ‘a repair’ is attached. At the very least, Patel argues that it is best to interpret (B)(i) as applying only to the second stage discretionary decision. Although the word “judgment” can have different meanings in isolation, Patel argues that in context “it is best read to refer to the discretionary decision to ultimately award such relief.” Patel also discusses established principles of statutory interpretation and, citing Kucana v. Incumbent and Guerrero-Lasprilla vs. Barr, emphasizes the principle and presumption of judicial review. Finally, citing INS vs. Cardoza-Fonseca, Patel elevates the doctrine of interpreting ambiguities into a law in favor of the non-citizen.
Meehan, in support of the 11th Circuit judgment, interprets 8 USC § 1252(a)(2)(B)(i) to mean that no court has jurisdiction to consider whether Patel misrepresented citizenship because it is a question of fact and is distinct from a question of law. She takes issue with both Patel and the government’s characterization of non-discretionary determinations as reviewable by arguing that “if that were the case, then every denial of discretionary relief would be reviewable for every hidden factual issue.” Congress could well have renamed the section “[m]after
do not still subject to judicial review. »
How this legal issue is resolved will impact the fate of Patel and his wife, as well as thousands of cases involving two-step discretionary relief. Thirty-five former immigration judges and members of the BIA said in an amicus brief that if the court finds the immigration law precludes judicial review, “the impact of such a decision would be far-reaching. . Each year, tens of thousands of cases are decided that involve requests for discretionary relief under section 1252(a)(2)(B)(i). Between January 2017 and September 2020, for example, immigration judges ruled on more than 94,000 such applications. As an amicus brief from the National Immigration Litigation Alliance revealed, adopting the 11th Circuit’s interpretation could also leave thousands of people seeking adjustment of status outside of deportation proceedings without any type examination of the refusal of their requests.
How the 1996 Act or inadmissibility is interpreted by the court could also influence the future of statutory interpretation and particularly if ambiguous statutes are interpreted in a way that favors non-citizens. Immigration scholars argue that failure to interpret the ambiguities of Section 1252(a)(2)(B)(i) in favor of the non-citizen would have “drastically negative consequences for petitioners as well as for other non-citizens who would have no recourse to challenge agency decisions affecting whether discretionary relief might even be considered. Finally, the outcome of this case could also raise new questions about the meaning of separation of powers and due process.