Judicial Review Unavailable for Factual Findings Made in Connection with Discretionary Relief in Removal Proceedings: Patel v. Garland, Pt. 1

Judicial Review Unavailable for Factual Findings Made in Connection with Discretionary Relief in Removal Proceedings: Patel v. Garland, Pt. 1

By Catherine Park

By a vote of 5-4, the U.S. Supreme Court held in Patel v. Garland, 596 U.S. ___ (2022), 2022 LEXIS 2494, that the Immigration and Nationality Act (“INA”) precludes judicial review of factual findings made in connection with a denial of discretionary relief to a noncitizen in removal proceedings. In Patel, the noncitizen was charged with inadmissibility for entering the United States without inspection in the 1990’s. Presence in the U.S. without admission or “parole” (temporary permission to enter for the purpose of completing an application for admission) is prohibited and renders the noncitizen inadmissible and removable. INA § 212(a)(6)(A)(i), 8 U.S.C. § 1192(a)(6)(A). 

In Immigration Court, the noncitizen admitted to violating section (a)(6)(A) and sought adjustment of his status to that of lawful permanent resident (“LPR” or “green card holder”).  Adjustment under the INA is discretionary relief. See, e.g., Id. § 1255(a). The Immigration Judge denied adjustment, citing various reasons, but most important under the U.S. Department of Homeland Security (“DHS”) policy was the noncitizen’s false claim of U.S. citizenship—a false representation he made on a driver’s license application in the state of Georgia in 2007. 

Under the INA, “[a]ny 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 Act (including section 274A [unlawful employment of aliens]) or any other Federal or State law is inadmissible.” INA § 212(a)(6)(C)(ii)(I), 8 U.S.C. § 1182(a)(6)(C)(ii)(I). 

“False claim of U.S. citizenship” is a priority enforcement category. See blog post (April 13, 2022), Civil Immigration Enforcement Priorities. Since false claims of U.S. citizenship frequently arise in connection with unauthorized employment—and the potential impacts on wages for U.S. workers and exploitation of foreign nationals—it seems unlikely that waivers will be allowed for such conduct for the foreseeable future.

A false claim of U.S. citizenship after September 30, 1996 cannot be cured by a waiver. See, e.g., Theodros v. Gonzalez, 590 F.3d 396, 401 (5th Cir. 2007) (“Both parties agree that no waiver is available for this ground of inadmissibility.”).

Because “false claim of U.S. citizenship” is a ground of inadmissibility, the Government could have charged the noncitizen with removability on this basis—section (a)(6)(A). Instead, he was charged with being present without admission or parole—section (a)(6)(C). 

This distinction is what the Supreme Court’s decision in Patel is all about. If the noncitizen had been charged as inadmissible on the statutory ground of having made a false claim of U.S. citizenship, INA § § 212(a)(6)(C)(ii)(I), 8 U.S.C. § 1182(a)(6)(C)(ii)(I), judicial review still would be available for factual findings made by the Immigration Judge when the noncitizen was determined to be inadmissible, according to the Supreme Court:

[T]he Government did not premise his removal on the contested claim that he had not intentionally misrepresented his citizenship. But if the Government had taken that route, the Immigration Judge’s determinations would have been reviewable in the ordinary course [emphasis added].

That distinction is not arbitrary. It 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.’” INS v. St. Cyr, 533 U. S. 289, 308 (2001). That reduced protection is reflected in the burden of proof too: The Government bears the burden of proving removability by clear and convincing evidence, while an applicant bears the burden of establishing eligibility for discretionary relief. Compare §1229a(c)(3)(A) with §1229a(c)(4)(A). For both judicial review and the burden of proof, the context in which a fact is found explains the difference in protection afforded [emphasis added].

Patel, 2022 LEXIS 2494, *26-27

The Supreme Court emphasized that in removal proceedings, the Government charged the noncitizen with inadmissibility for entry without inspection “presumably” because the noncitizen had “readily admitted” to this ground of inadmissibility, instead of charging him with conduct he contested (false claim of U.S. citizenship).

During the removal proceeding, the noncitizen sought discretionary relief–adjustment of status. He testified he had checked the wrong checkbox by mistake on the driver’s license application. To bolster his testimony, he asserted he had provided his “A number” (alien number) on the driver’s license application, but this turned out to be not true. He also had falsely represented his manner of entry into the U.S. on a previously filed application for asylum. The Immigration Judge found that the noncitizen had intentionally portrayed himself as a U.S. citizen to obtain a benefit to which he was not entitled and ordered his and his wife’s removal from the United States. (His wife was a derivative beneficiary of his adjustment application.)

Georgia law does not require U.S. citizenship to obtain a driver’s license. (Most likely, the driver’s license application asked about citizenship for voter registration purposes.) On appeal to the Board of Immigration Appeals (BIA), the noncitizen argued that, despite checking the wrong checkbox, the false claim was not material to obtaining any “benefit” and therefore he wasn’t in violation of INA § 212(a)(6)(C)(ii)(I), 8 U.S.C. § 1182(a)(6)(C)(ii)(I). The BIA found that the noncitizen “did not testify directly to the objective necessity of proving United States citizenship to obtain a noncommercial Georgia driver’s license.” That is to say, the noncitizen might have had a subjective belief that citizenship was required to obtain a driver’s license—a possibility that wasn’t overcome through his testimony or other evidence—and therefore the false claim could have been for an unlawful “purpose,” if not for an existing “benefit.” A dissenting opinion at the BIA thought the “purpose or benefit” distinction to be beyond the statute (INA).

Although not discussed by the Supreme Court in Patel, the Immigration Court proceedings reveal that the Immigration Judge had granted voluntary departure to the noncitizen’s son, but the BIA stripped the voluntary departure (because the son had not filed the bond for voluntary departure during the pendency of the appeal). The dissenting opinion at the BIA would have granted the son an opportunity to apply for deferred action (the “DACA” program). 

Key Point: After the Patel decision, an Immigration Judge’s factual findings with respect to requests for discretionary relief during removal proceedings are conclusive. (The BIA still reviews the Immigration Judge’s factual findings for clear error. See, e.g., In re: Patel, 2017 Immig. Rptr. LEXIS 10618 (“We review the Immigration Judge’s factual findings for clear error only ….”)). Legal and constitutional conclusions drawn from the factual findings made with respect to discretionary relief during removal proceedings remain reviewable by federal courts. See Patel, 2022 LEXIS 2494, *17 (“Section 1252(a)(2)(D) … preserves review of constitutional claims and questions of law, ….” as to discretionary relief during removal proceedings). 

Next: Patel suggests in non-binding dicta that discretionary determinations made by U.S. Citizenship and Immigration Services (“USCIS”) are unreviewable by federal courts until a removal proceeding is commenced. Id. at 27 (“[The noncitizen] and the Government [complain that] USCIS decisions will be wholly insulated from judicial review. The reviewability of such decisions is not before us, and we do not decide it.  But it is possible that Congress did, in fact, intend to close that door.” (footnote omitted)).

DISCLAIMER:  The opinions expressed herein are for informational purposes only and might not be applicable to your case or circumstances. If you need legal advice about a specific matter, consult an attorney.