On May 16, the Supreme Court issued a decision in Patel v. Garland, finding that the Immigration and Nationality Act (INA) limits courts’ authority to review the facts underlying discretionary relief decisions in removal cases. The decision is unexceptional, except to the degree that it reflects the adherence of the current Court to the actual language in the act and to common sense.
Facts of the Case. I covered this case back when the oral arguments were held in December, but briefly, Patel is an Indian national who entered the United States illegally in 1992, eventually moving to Georgia.
His employer subsequently filed an I-140 (Immigrant Petition for Alien Workers) on his behalf, and Patel was issued an employment authorization document while his 2007 application for a adjustment of status under section 245(i) of the INA (which allowed certain illegal aliens to get green cards through adjustment) was pending.
While USCIS was considering his application, Patel applied for a replacement Georgia driver’s license in December 2008. On his application for a new license, he checked a box indicating that he was a U.S. citizen even though he was still an alien.
Because of his misrepresentation on his driver’s license application, USCIS denied his application for adjustment of status. He was placed into removal proceedings in 2012, charged with removability for having entered the United States illegally under section 212(a)(6)(A)(i) of the INA.
In those proceedings, Patel conceded removability and again applied for adjustment of status — which as I will explain below is a “discretionary” form of relief.
To establish eligibility for adjustment, Patel was required to prove that he was otherwise admissible to the United States. ICE counsel argued that he was inadmissible, however, because he had made a false claim to U.S. citizenship, barring his admission under section 212(a)(6)(C)(ii)(I) of the INA, which states:
Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including [section 274A of the INA]) or any other Federal or State law is inadmissible.
There is one inapplicable exception to that ground of inadmissibility, but no waiver for a false claim to U.S. citizenship. Under Board of Immigration Appeals (BIA) case law, an alien is inadmissible under this provision if the alien makes a false citizenship claim that is material to a purpose or benefit under the law intending to satisfy that purpose or obtain that benefit.
Patel contended that he had checked the box in error, and in the alternative that his “misstatement” was not material, as he would have been eligible for at least a temporary Georgia license even if he had identified himself as an alien.
The immigration judge (IJ) rejected those contentions, finding that Patel’s action was material and that he was not credible. Accordingly, the IJ denied Patel’s adjustment application and ordered him removed.
A divided BIA panel dismissed Patel’s appeal from the IJ’s decision, and Patel filed a petition for review under section 242 of the INA with the U.S. Court of Appeals for the Eleventh Circuit.
In March 2019, a three-judge panel of the Eleventh Circuit denied that petition, but Patel’s petition for consideration en banc (with all of the judges on the circuit court participating) was thereafter granted. In August 2020, a divided en banc circuit court again dismissed Patel’s petition. The Supreme Court granted his petition for certiorari, however, teeing the matter up for review.
Discretionary Relief. Certain forms of relief from removal — such as statutory withholding (which is like asylum) and withholding under the Convention Against Torture (CAT) — are nondiscretionary. If the alien shows statutory eligibility for such relief, the court must grant it, regardless of what it thinks about the applicant. Had Osama bin Laden made it to the United States alive, for example, he likely would have been granted at least CAT.
Other forms of relief, like asylum and adjustment of status (which again Patel sought) are discretionary, meaning that even if the applicant shows that he or she has checked all the statutory boxes, the adjudicator can deny such relief in the exercise of discretion.
Congressional Limitations on Federal Court Review. While the courts issue the decisions, Congress has the authority to limit the scope of the courts’ review, which it has done twice in the past 25-plus years. The most recent major revamp of the INA’s rules governing judicial review of immigration decisions (section 242 of the INA) was in the REAL ID Act of 2005.
The conference report for that bill explained that Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) intended to limit judicial review of immigration decisions, particularly those involving criminals (whose removal orders were made unreviewable). Despite this, the Supreme Court instead expanded review for criminal aliens five years later in INS v. St. Cyr.
The Court there had held that criminal aliens were entitled to more review than they had before the 1996 amendments, and more review than non-criminal aliens, because they could seek review of constitutional and legal claims before federal district courts through habeas. Congress had failed to expressly exclude habeas review in IIRIRA.
The REAL ID Act corrected that error and directly provided for circuit court review of “constitutional claims or questions of law”, notwithstanding other limits on review while limiting habeas relief. As I explained in my earlier post, however, Eleventh Circuit precedent based on transitional appellate rules Congress had also included in IIRIRA and on the pre-REAL ID Act version of section 242 of the INA had caused confusion at the circuit court level as to the reviewability of Patel’s claims.
The Supreme Court’s Decision. The Court’s focus was on the jurisdiction-stripping provisions in section 242(a)(2)(B)(i) of the INA (captioned “Denials of discretionary relief”), which states:
Notwithstanding any other provision of law (statutory or nonstatutory), including any ... habeas corpus provision, and ... regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review- any judgment regarding the granting of relief under section [245 of the INA]. [Emphasis added.]
The question with which the Court grappled was what, exactly, is included in a “judgment” under that section of the INA?
The government had argued that a “judgment” means any decision that goes to whether relief should be granted as a matter of discretion. As the Court explained: “The Government classifies the factual findings at issue in this case — the Immigration Judge’s conclusions that Patel’s testimony was not credible and that he had lied on the form — as nondiscretionary and therefore outside the jurisdictional bar.”
Patel asked the Court to take that one step further and limit the review bar to just the immigration judge’s decision to grant discretionary relief. Justice Gorsuch, writing for the dissent, agreed with Patel.
Justice Barrett, however, writing for the majority opted instead for the interpretation offered by amicus, who had been appointed by the Court because Biden’s DOJ disagreed with the Eleventh Circuit’s conclusions on the reviewability of factual decisions in applications for discretionary relief.
Amicus argued that the prohibition on review in section 242(a)(2)(B)(i) of the INA “’encompasses any and all decisions relating to the granting or denying’ of discretionary relief”. Justice Barrett concluded that this “interpretation is the only one that fits the ... text and content” of the provision in question.
That’s because “judgment” is modified in that section of the INA by the word “any”, which as Justice Barrett explained “has an expansive meaning” and is further modified by the word “regarding”, which “in a legal context generally has a broadening effect, ensuring that the scope of a provision covers not only its subject but also matters relating to that subject.”
She further determined that section 242(a)(2)(D) of the INA, added to the INA by the REAL ID Act to preserve constitutional claims and questions of law for review post-St. Cyr, “reinforces” her conclusion.
Justice Barrett explained that while Congress in the REAL ID Act could have simply lifted the restrictions on review in IIRIRA, “it instead excised only the legal and constitutional questions that implicated” the Court’s concern in St. Cyr. “And if Congress made such questions an exception, it must have left something within the rule. The major remaining category is questions of fact.”
Note that Patel’s intentions when he claimed to be a citizen on his driver’s license application would have been reviewable if DHS had charged him with removability under section 212(a)(6)(C)(ii)(I) of the INA, which it did not (he was simply charged with illegal entry). In that case the dispute would have then been under over a “question of law” (interpretation of that ground of removal) courts can review under section 242(a)(2)(D) of the INA.
Justice Barrett held that this distinction in section 242 of the INA was “not arbitrary”, but rather “reflects Congress’ choice to provide reduced procedural protection for discretionary relief, the granting of which is ‘not a matter of right under any circumstances, but rather is in all cases a matter of grace.’”
Finally, she rejected an argument made by both Patel and the government that the Court’s logic would bar an applicant for discretionary relief (including adjustment) from seeking review of a denial of that benefit from USCIS, because only final orders of removal are reviewable under the amendments in the REAL ID Act.
Justice Barrett sidestepped the issue (properly) because it was not before the Court, but she also rejected adopting that contrary interpretation of section 242(a)(2)(B)(i) of the INA simply “to avoid the risk of this result”, explaining that the justices “inevitably swerve out of our lane when we put policy considerations in the driver’s seat.” Significantly, she continued: “As we have emphasized many times before, policy concerns cannot trump the best interpretation of the statutory text.”
That is comfort to all those (including myself) who believe the Court should apply the law as written, as opposed to in a way that would reach the best policy results. If Congress does not like the way the Court has applied the law, it can always change the law, as it did in the REAL ID Act. That said, Congress ends up with decisions like St. Cyr if it doesn’t close all possible loopholes, but that is much preferable to having the Court making up the law on the fly.
As I explained in my earlier post, the Court’s interpretation of section 242(a)(2)(B)(i) of the INA is the only logical one. Had the Court accepted either Patel’s or the government’s interpretation, amenable courts would have parsed what should have been unreviewable factual determinations ad infinitum, thus doing the opposite of what Congress clearly intended them to do.
Note that even though asylum is discretionary relief, Congress did not limit judicial review of factual decisions in asylum denials in section 242(a)(2)(B)(i) of the INA. The scope of judicial review of asylum denials is governed by several other provisions in section 242 of the INA, but a future Congress may consider scrapping them and adding asylum relief to section 242(a)(2)(B)(i) of the INA to limit what is often a results-oriented review.
Though the decision in Patel is straightforward and logical, the Court still clarified many significant points relating to the jurisdiction of the courts to review factual determinations in discretionary relief decisions. Congress intended to streamline and limit judicial review in 1996; more than a quarter of a century later, its efforts are continuing to come to fruition.