On December 6, the Supreme Court heard oral arguments in Patel v. Garland, a case that involves the reviewability of certain “judgments” in cases involving applications for discretionary relief under the Immigration and Nationality Act (INA). It is because of cases like this that Congress has limited courts’ jurisdiction over a wide variety of immigration decisions.
Facts of the Case. Patel, an Indian national, entered the United States illegally in 1992, and eventually moved 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 application for adjustment of status under section 245(i) of the INA was pending.
Thereafter, he applied for a replacement Georgia driver’s license in December 2008. In his application for a new license, he checked a box indicating that he was a United States citizen — which he was not.
As a consequence, his application for adjustment of status was denied and 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 — 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 not admissible, 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. It 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 there is no waiver for a false claim to U.S. citizenship.
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 didn’t buy it, holding that Patel’s action was material, and finding that Patel was not credible. Accordingly, he denied the adjustment application and ordered Patel removed.
A divided panel of the Board of Immigration Appeals (BIA) dismissed Patel’s appeal, and Patel filed a petition for review under section 242 of the INA with the U.S. Court of Appeals for the Eleventh Circuit.
The Decisions of the Three-Judge Panel and En Banc Circuit Court. In March 2019, a three-judge panel issued an opinion denying that petition.
It held that section 242(a)(2)(B)(i) of the INA deprived it of jurisdiction to review the factual issue of whether Patel had the requisite intent to misrepresent his status as a U.S. citizen. Note that the court made this determination sua sponte, that is on its own without prompting by either party; the government argued that this factual question was reviewable, but that it should be resolved in its favor.
While the circuit court found that it could consider the legal issue of whether there is a materiality element in the false claim to U.S. citizenship ground of inadmissibility at section 212(a)(6)(C)(ii)(I) of the INA, it held that the materiality of the claim was not a factor to removal under that provision.
The Eleventh Circuit ordered the case to be reheard en banc (with all of the judges of the court considering the matter). In August 2020, the court issued its decision.
Nine of the 14 judges who heard the case voted, again, to dismiss Patel’s appeal in an order issued by Judge Gerald Bard Tjoflat. Like the three-judge panel, it rejected the government’s arguments in finding that the court lacked jurisdiction to consider factual challenges to Patel’s eligibility for adjustment.
And like the three-judge panel, the en banc majority relied on the jurisdiction-stripping language in section 242(a)(2)(B)(i) of the INA, which states:
Notwithstanding any other provision of law (statutory or nonstatutory) ... and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-
(i) any judgment regarding the granting of relief [sections 212(h), 212(i), 240A, 240B, or 245 of the INA].
Section 212(h) of the INA is a waiver for certain criminal grounds of inadmissibility. Section 212(i) is a waiver for fraud grounds in section 212(a)(6)(C)(i) of the INA. Section 240A is cancellation of removal for permanent and non-permanent residents. Section 240B governs applications for the privilege of voluntary departure. Finally, section 245 of the INA is adjustment of status — the relief Patel sought.
The government argued — based on years of precedent — that the court was barred from reviewing both the ultimate decision to deny adjustment and factual challenges to the IJ’s and BIA’s exercise of discretion, but that it still had jurisdiction to consider Patel’s factual challenges to his statutory eligibility for adjustment.
Adjustment of status is discretionary relief, but there are statutory elements in section 245 that an applicant must meet before he or she can be considered for a discretionary adjustment grant, including, as noted, that the applicant is not inadmissible (the issue in Patel’s case, due to his false claim of U.S. citizenship).
Under the government’s logic, the court could have reviewed the findings of the immigration judge and the BIA that Patel had failed to show that he did not falsely represent himself as a U.S. citizen when he applied for his Georgia driver’s license. Both the three-judge panel and the en banc Eleventh Circuit majority held, however, its jurisdiction to do so was stripped by Congress in section 242(a)(2)(B)(i) of the INA.
Judge Tjoflat’s analysis was much more robust than that in the earlier panel decision, and included the history of discretionary immigration relief dating back to 1940, and an in-depth assessment of Congress’ use of the word “judgment” in section 242(a)(2)(B)(i) of the INA.
With respect to the latter, he concluded that the word meant not only the final judgment of the administrative tribunal but also its determinations with respect to each of the elements for adjustment — including whether Patel had shown that he was admissible.
The Eleventh Circuit Decisions Contradicted Precedent — For Good Reason. As alluded to above, both Eleventh Circuit decisions bucked years of precedent. Judge Tjoflat explained, however, that this precedent was in error because it was based on interpretations of transitional jurisdictional rules that Congress provided when it created the limits on circuit-court review in section 242 of the INA, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
Transitional Rules in IIRIRA. The permanent rules were effective April 1, 1997, but the transitional ones were temporary, providing a bridge between the enactment date of IIRIRA (September 30, 1996) and that April effective date. The transitional rules prohibited appeals “of any discretionary decision under section 212(c), 212(h), 212(i), 244, or 245 of the [INA] (as in effect as of the date of the enactment of this Act).”
The permanent rules, however, were more expansive, as set forth above.
Amendments in the REAL ID Act of 2005. Judge Tjoflat’s decision also rested on subsequent amendments to section 242 in the REAL ID Act of 2005 (which I drafted as a counsel for the House Judiciary Committee).
The conference report for that bill explained that Congress in IIRIRA had attempted to limit judicial review of immigration decisions (and in particular, those involving criminals, whose removal orders were made unreviewable), but the Supreme Court instead expanded review for criminal aliens in its 2001 decision, INS v. St. Cyr.
The Court there held that criminal aliens were actually entitled to more review than they had before the 1996 amendments, and more review than non-criminal aliens, due to the fact that 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 plugged that hole, and provided for circuit court review of “constitutional claims or questions of law”, notwithstanding the limits on review of discretionary relief in section 242(b)(2)(B) of the INA.
The three-judge circuit-court panel in Patel did consider (and rejected) the alien’s legal argument that only material claims to U.S. citizenship would render him inadmissible under section 212(a)(6)(C)(ii)(I) of the INA and barring him from receiving adjustment of status, and Judge Tjoflat affirmed that decision.
Reading sections 242(a)(2)(B)(i) and 242(a)(2)(D) in conjunction with one another, the en banc majority concluded, precluded them from “engaging in mental gymnastics to determine if a particular decision is ‘discretionary or not’ and then determining whether the alien’s claim presents a question of law or a constitutional challenge”.
Instead, it held, “the logical interpretation of the statutory scheme is that” the word “judgment” in section 242(a)(2)(B)(i) of the INA “encompasses all decisions made by the BIA”, preventing the court “from reviewing those determinations unless the alien presents a legal or constitutional challenge.”
Supreme Court Review and the “Burgers and Fries” Argument. On January 15, Patel filed a petition for writ of certiorari with the Supreme Court, which it granted.
The oral argument in that case lasted for 92 minutes, and because the government disagreed with the circuit court’s analysis, the Court appointed an amicus counsel to brief and argue the case.
Amicus counsel likely presented the best argument in that hearing. She analogized IIRIRA’s jurisdictional limits in 242(a)(2)(B)(i) of the INA to a rule that one cannot eat junk food, and the exceptions in the REAL ID Act’s amendments to section 242(a)(2)(D) of the INA to a caveat that one could, however, eat “peas and carrots”.
Amicus counsel explained:
And if I told you you can't eat junk food, except you can eat peas and carrots, that doesn't make a whole lot of sense. You know what does make sense? You can't eat junk food, but you can eat burgers and fries. And so junk food is the larger category. Burgers and fries are in that category. They're the exception. And, by implication, everything else is still unreviewable.
The Presumption in Favor of Judicial Review and the Textualist Court. The en banc court’s analysis is thorough and well-reasoned, and the statutory provisions are straightforward, so what’s the problem?
The issue is that courts have traditionally followed a presumption in favor of judicial review of administrative action, and the dissent in the en banc decision in Patel (authored by Judge Beverly Baldwin Martin) relied heavily on that presumption in her analysis.
It’s no defense of my own work, but drafting a court-stripping provision like section 242(a)(2)(B) of the INA that will overcome that presumption is onerous. Still, the Court’s “conservative” wing (Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) is stacked with so-called “textualists”.
As I explained in a December 4 post (with significant help from Ballotpedia):
Textualism is a method of statutory interpretation whereby the plain text of a statute is used to determine the meaning of the legislation. Instead of attempting to determine statutory purpose or legislative intent, textualists adhere to the objective meaning of the legal text.
Justice Thomas has long been identified as a textualist, Chief Justice Roberts and Justice Alito as “textualist-leaning”, Justice Kavanaugh as a “self-described textualist”, Justice Gorsuch as a “proud textualist”, and Justice Barrett as a “champion of textualism”.
That does not mean that they always agree (see my May analysis of the spat between Justices Gorsuch and Kavanaugh in Niz-Chavez v. Garland, wherein, I explained the two went “at it with the punctiliousness of Oxford dons and the tenacity of barroom drunks arguing Tom Brady vs. Joe Montana”).
But they will first look at the text of the INA, which in this case is not favorable toward Patel’s request for review of his intentions when he checked the U.S. citizen box on his driver’s license application.
Conclusion. This case demonstrates why Congress set bright-line rules when it divested courts of jurisdiction over certain categories of immigration decisions in 1996. By this point, Patel has been in removal proceedings for nine years. That is exactly the sort of delay Congress attempted to preclude in IIRIRA.