Under the Immigration and Nationality Act, when can a federal court review a decision that a noncitizen was not eligible to request relief from removal proceedings?
This case asks the Supreme Court to determine whether 8 U.S.C. § 1252(a)(2)(B)(i) allows a federal court to review decisions by an executive agency holding that a noncitizen was not eligible for relief from removal. The Eleventh Circuit claimed judicial review of such decisions was barred by 8 U.S.C. § 1252(a)(2)(B)(i) and declined to review a Board of Immigration Appeals decision, which held that because Petitioner Pankajkumar Patel (“Patel”) had previously made a false statement to a federal agency, he was not eligible for such relief. Patel appealed, arguing that 8 U.S.C. § 1252(a)(2)(B)(i) merely bars judicial review of decisions to grant relief, not the prerequisite eligibility decisions. Respondent Attorney General Merrick Garland (“Garland”) interprets the provision to bar judicial review of any discretionary decision, including some eligibility decisions, although he agrees that the Eleventh Circuit erred in holding that 8 U.S.C. § 1252(a)(2)(B)(i) prohibits judicial review of Patel’s particular eligibility decision. This case has important implications for the future of immigration law and procedure, the status of noncitizens in the United States, and the jurisdiction of federal courts.
Questions as Framed for the Court by the Parties
Patel came to the United States from India with his family in 1992. Patel v. Att’y Gen. (“Patel I”) at 1322. Patel entered the country unlawfully in violation of 8 U.S.C. § 1182(a)(6)(A)(i). Under this statute, the government must either admit or parole foreign citizens upon entry. Patel I at 1322. In August 2007, Patel filed for an adjustment of status because an immigrant visa became available to him. Id. Patel’s family also applied for adjustments of status as Patel’s beneficiaries. Id. While Patel’s application was pending, the Department of Homeland Security (“DHS”) issued him an employment authorization document, which allowed Patel to lawfully work in the United States. Brief for Petitioner, Pankajkumar S. Patel at 12.
In December 2008, Patel tried to renew his Georgia driver’s license while his application for adjustment of status was still pending. Brief for Respondent at 6. The driver’s license renewal form asked if Patel was a U.S. citizen, and Patel checked “yes.” Id.
In August 2010, DHS denied Patel’s adjustment of status application because Patel falsely claimed he was a U.S. citizen on his driver’s license renewal form. Id. at 7. By checking “yes” on his renewal form, Patel violated 8 U.S.C. § 1182(6)(C)(ii). This section provides that any foreign citizen that misrepresents himself to be a U.S. citizen “for any purpose or benefit” is “inadmissible” and therefore subject to removal proceedings. 8 U.S.C. § 1182(6)(C)(ii).
In 2012, DHS began removal proceedings against Patel and his family. Id. Patel tried to get discretionary relief from removal by renewing his application to become a lawful resident under 8 U.S.C. § 1255(i). Section 1255 provides a path to residency for foreign citizens with a labor certification. Patel I at 1322. To qualify for a path to residency under Section 1255, Patel needed to prove “clearly and beyond doubt” that he was not disqualified from this process. Id.
At his removal hearing, Patel testified that he mistakenly checked the box claiming he was a citizen and thus lacked intent to misrepresent himself. Id. at 1323. Intent is required to disqualify this type of application for residency. Id. The Immigration Judge did not find Patel credible due to inconsistencies in his testimony. Id. The Judge ultimately denied Patel’s application for residency and ordered Patel’s removal, finding Patel did not show “clearly and beyond doubt” that he lacked intent and had therefore violated the statute. Id. at 1323–24.
The Board of Immigration Appeals (“BIA”) affirmed the Immigration Court’s decision. Id. at 1323. The Eleventh Circuit later heard Patel’s case en banc, and held that it lacked jurisdiction to review denials of discretionary relief from removal, unless the issue was a question of law or a constitutional issue due to the language from the relevant statute. Patel v. Att’y Gen. (“Patel II”) at 1273. Therefore, the Eleventh Circuit held that it lacked jurisdiction to hear the appeal because the question of Patel’s intent concerned a finding of fact. Id.
Patel appealed the Eleventh Circuit’s decision, and on June 28, 2021 the United States Supreme Court granted Patel’s petition for certiorari. Brief for Petitioner at 17.
SECTION 1252(A)(2)(B)(I)’S PLAIN LANGUAGE
Petitioner Pankajkumar Patel (“Patel”) argues that courts should interpret Section 1252(a)(2)(B)(i) to preserve judicial review of an executive agency’s decision to grant relief from a removal order because doing so is consistent with the plain meaning of the statutory language. Brief for Petitioner, Pankajkumar S. Patel, et al. at 20. In support of this view, Patel highlights that the statute prohibits judicial review of “judgment[s],” a term that most commonly refers to either a decision involving the balancing of factors or a final formal order. Id. at 20-21. Patel asserts that in determining whether Immigration Judges ought to grant relief, they must first decide an applicant’s eligibility, and then whether to administer relief. Id. at 22. Because courts typically only apply the term “judgment” to the final step of a multistep procedure, Patel insists that here “judgment” should only apply to the relief-granting step, and not the eligibility requirement. Id. Patel likewise argues that because the executive has discretion to deny relief to even an eligible applicant, an eligibility determination is not a judgment “regarding the granting of relief” and is therefore reviewable. Id. at 24. Patel contends the Eleventh Circuit read the relief-granting provision to bar judicial review of all eligibility decisions. Id. at 25. Patel also argues that Garland’s interpretation of Section 1252(a)(2)(B)(i) suffers the same problem because Garland's interpretation would prohibit the judicial review of discretionary eligibility determinations. Id. at 34. Finally, Patel suggests that the two ostensibly clashing interpretations may not be distinguishable after all, particularly if the decisive question of whether such a discretionary eligibility criterion exists remains unanswered, and so would support a presumption in favor of judicial review. Id. at 33–35.
Respondent Attorney General Merrick B. Garland (“Garland”) counters that the language of the statute bars judicial review of any discretionary decision of an Immigration Judge, and therefore, Patel’s interpretation is too narrow. Brief for Respondent, Merrick B. Garland at 17. Garland argues that, had Congress intended to preclude judicial review of only the second-step relief decision, as Patel claims, the provision would have prohibited “final” or “ultimate” judgments. Id. at 19. Instead, Garland posits that Congress intended a broader prohibition on all discretionary decisions, evidenced by the term “regarding” in Section 1252(a)(2)(B)(i), which historically demands a broad construction of any provision it modifies. Id. Additionally, Garland emphasizes that Congress could have more easily achieved Patel’s goal by wording the statute to prohibit review of “any judgment granting or denying relief.” Id. Garland instead proposes that Congress had intended the relevant provision to bar judicial review over any judgment that requires an exercise of discretion; hence, even discretionary eligibility criteria would be unreviewable. Id. at 18. Garland concedes that Patel would still be able to obtain review of his eligibility determination here because it rested on a non-discretionary factual finding. Id. at 15. But Garland maintains that Patel otherwise misconstrues the language of the relevant provision, thus supporting his reading. Id. at 17.
CONFLICTS OVER STATUTORY STRUCTURE AND HISTORY
Patel contends that the statutory structure of the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”) also contradicts the Eleventh Circuit’s reading of Section 1252(a)(2)(B)(i) and therefore supports his interpretation. Brief for Petitioner at 25, 39. Patel compares the relevant section with its neighboring section, Section 1252(a)(2)(B)(ii), which covers “other decisions or actions” that the statute defines to be within the Executive’s discretion. Id. at 26. Patel highlights that if Congress had wanted (B)(i) to cover threshold eligibility decisions, it would have used the broader language found in (B)(ii). Id. Further, Patel contends that Congress used the term “judgment” in other sections of the IIRIRA and the Immigration and Nationality Act (“INA”) generally to refer to wholly discretionary decisions, such as in the definition of “supervisor.” Id. at 27. Thus, Patel maintains the court should similarly interpret (B)(i)’s use of the term. Id.
Further, Patel alleges the legislative history of Section 1252(a)(2)(B)(i) supports his interpretation. Id. at 41. Patel highlights that many circuit courts had already read Section 1252(a)(2)(B)(i) to allow judicial review of eligibility determination when Congress passed Section 1252(a)(2)(D), which permits review of constitutional and legal questions raised by federal courts of appeals. Id. at 42. Patel posits that, had Congress wanted to modify the circuit courts’ reading of the statute, it would have directly amended (B)(i) or included language in (D) that would have achieved the same effect. Id.
Garland counters that statutory structure instead supports the government’s interpretation of the statute. Brief for Respondent at 21. Garland identifies that the word “judgment” is not once used elsewhere in the INA or IIRIRA to refer to factual findings. Id. Further, Garland posits that the title of the relevant subsection—“Denials of discretionary relief—counsels against extending the section’s judicial-review prohibition to non-discretionary decisions. Id. at 22. Garland asserts that Patel’s interpretation of the provision contradicts the title because it would allow judicial review of some discretionary eligibility decisions. Id. Garland likewise alleges that the Eleventh Circuit’s reading would create a quirk in the structure of IIRIRA. Id. at 26. Garland argues that had the government found that Patel’s false statement was a basis for a removal charge, rather than a basis for denial of relief, Patel could have sought review of whether he intended to make the false statement. Id.
Further, Garland argues that both Patel’s and the Eleventh Circuit’s interpretations lack historical precedent, and hence support his reading. Id. at 27–28. Garland posits that the history of the IIRIRA supports the government’s interpretation because courts reviewed factual determinations of the Executive in removal proceedings prior to the enactment of IIRIRA. Id. Additionally, Garland proposes that IIRIRA’s purpose was to protect the Executive’s discretionary actions from judicial discretion, which the government’s construction accurately achieves. Id. at 40. Garland concludes that because the Eleventh Circuit’s interpretation prohibits judicial review of non-discretionary actions and Patel’s would allow the review of discretionary decisions, IIRIRA’s history supports only the government’s interpretation. Id.
PRINCIPLES OF STATUTORY INTERPRETATION
Finally, Patel claims that the Eleventh Circuit’s reading contravenes two tenets of statutory interpretation, and therefore, favor his interpretation. Brief for Petitioner at 31. Patel asserts that under the Supreme Court’s decision in Kucana, a court must presumptively favor allowing judicial review when interpreting statutes covering administrative action. Id. at 31–32. Patel claims this presumption strengthens where a statute may be subject to multiple interpretations. Id. Patel further suggests that when interpreting immigration statutes, courts resolve any ambiguities to favor the non-citizen. Id. Here, Patel argues that both these presumptions favor his interpretation because relative to both Garland’s and the Eleventh Circuit’s reading, Patel’s is most favorable to noncitizens and allows the broadest judicial review. Id. at 35.
By contrast, Garland contests the Eleventh Circuit’s assertion that the presumption in favor of judicial review does not apply to findings of fact, the asserted basis for Patel’s interpretation. Brief for Respondent at 38. Garland posits that the Supreme Court has previously acknowledged that dispositive determinations of fact are also presumptively reviewable. Id. Garland further argues that even assuming that the presumption only applies to legal determinations, the Eleventh Circuit’s reading would bar review of even legal questions in district courts, but the government’s reading would not. Id. at 39. Accordingly, Garland stresses that because Patel misconstrued how judicial review applies to findings of fact, it therefore favors his reading of the provision. Id.
EFFECTS OF JUDICIAL REVIEW ON IMMIGRATION PROCEDURE
Former Executive Office for Immigration Review Judges (“Judges”), in support of Patel, argue that because immigration courts are severely backlogged, Article III judges must be able to review their decisions to ensure just outcomes. Brief of Amicus Curiae Former Executive Office for Immigration Review Judges, in Support of Petitioner at 12–13. Judges note that the Board of Immigration Appeals (“BIA”) tries to reduce the immigration court backlog by providing very little analysis when reviewing immigration court decisions. Id. at 14. Indeed, Judges argue that Article III judges frequently discover errors in many immigration court and BIA decisions. Id. at 14–15. Judges contend that because federal judges have significantly fewer cases on their docket and more law clerks, they therefore have more time to correct errors of immigration courts, which ensures a fair process for discretionary relief. Id. at 12–13, 15–16.
Taylor A.R. Meehan (“Meehan”), in support of the Eleventh Circuit’s decision, argues that the Eleventh Circuit correctly distinguished between review of legal questions and factual questions, because appellate courts cannot efficiently review factual findings. Brief of Amicus Curiae Taylor A.R. Meehan, in Support of the Judgment Below at 38-39. Meehan notes that at the appellate level, judges must look at a cold record removed by layers of review. Id. Meehan contends that in this case, eight years had passed since much of the live testimony took place. Id. at 39. Moreover, Meehan notes that the United States Citizenship and Immigration Services (“USCIS”) authorized an immigration judge as well as the BIA to review the relevant facts of the case. Id. Meehan argues that a federal appellate court cannot objectively review this far-removed testimony as well as the people who originally heard the live testimony. Id. So, Meehan urges courts to deny review of all factual findings in discretionary decisions because that would be the most practical solution to case backlogs. Id.
THE SEPARATION OF POWERS AND CONGRESSIONAL CONTROL OVER THE IMMIGRATION PROCESS
American Immigration Lawyers Association (“Lawyers Association”), in support of Patel, argues that courts should not adopt the Eleventh Circuit’s reasoning because Congress likely did not intend to deny foreign citizens judicial review when they are denied residency. Brief of Amicus Curiae American Immigration Lawyers Association, in Support of Petitioner at 23. In particular, Lawyers Association notes that USCIS residency denials are only reviewable in district courts. Id. Lawyers Association contends that the Eleventh Circuit’s reading of the statute allows only review of questions of law by appellate courts under Section D, and thus district courts cannot conduct any type of review, either factual or legal, under that interpretation. Id. at 24. In addition, Judges argue that Congress likely did not intend to prevent all reviews of immigration decisions. Brief of Judges at 9. The National Immigration Litigation Alliance and the National Immigrant Justice Center contend that Congress could not encourage inaccurate applications of immigration law and leave individuals without redress for errors committed by immigration courts. Brief of Amici Curiae National Immigration Litigation Alliance & National Immigrant Justice Center, in Support of Petitioner at 22.
By contrast, Meehan counters that appellate review complicates the immigration appeals process and goes against Congress’ goal in adopting the legislation, which was to streamline immigration processes, therefore favoring a stricter interpretation. Brief of Meehan at 39. Meehan argues that Congress sought to avoid delays in the removal of immigrants. Id. Meehan adds that if Article III judges can review questions of fact in every denial of discretionary relief, it would draw out the appeals process and delay removal. Id. Finally, Meehan argues that the 2005 amendments to the legislation show that Congress sought to foreclose Article III review of fact questions in immigration proceedings and hence only allow judicial review for legal and constitutional questions. Id. As such, Meehan concludes that Congress must have intended for questions of fact to remain non-reviewable and thus to interpret otherwise would contravene the will of Congress. Id.
- John Elwood, Immigrations, Takings, Administrative Law and the Kitchen Sink, SCOTUSblog (June 24, 2021)
- Jennifer Doherty, Justices Vet Court Review of Non-Discretionary BIA Orders, Law360 (June 28, 2021)
- Barbara Leonard, Immigrant’s Deportation Challenge Headed to High Court, Courthouse News Service (Nov. 17, 2021)