Non-Binding Dicta from U.S. Supreme Court Says Judicial Review Probably Unavailable for Many USCIS Determinations: Patel v. Garland, Pt. 2

Non-Binding Dicta from U.S. Supreme Court Says Judicial Review Probably Unavailable for Many USCIS Determinations: Patel v. Garland, Pt. 2

By Catherine Park

As discussed in Part 1 of this series, Judicial Review Unavailable for Factual Findings Made in Connection with Discretionary Relief in Removal Proceedings (May 20, 2022), the U.S. Supreme Court’s 5-4 decision in Patel v. Garland, 596 U.S. ___ (2022), 2022 LEXIS 2494, contains non-binding dicta that seems to suggest that judicial review is unavailable for any determinations made by USCIS regarding some common waivers sought in connection with immigration benefits, until removal proceedings are commenced—and then the review is quite limited, as discussed in Part 1. 

U.S. Citizenship and Immigration Services (“USCIS”) adjudicates applications for immigration benefits as a division of the U.S. Department of Homeland Security (“DHS”). See, e.g., 8 C.F.R. § 1.1. In the Patel case, several years before the removal proceedings, the noncitizen had filed an application with USCIS for adjustment of his status to that of lawful permanent resident (“LPR” or “green card holder”) in 2007. While his application with USCIS was pending, he filled out a driver’s license application in the state of Georgia and marked the wrong checkbox for the question “Are you a U.S. citizen?” Because of the false claim of U.S. citizenship, his pending application was denied by USCIS. 

The Supreme Court’s Patel decision is concerned with removal proceedings. USCIS’ denial of the 2007 application, in contrast, was not an issue before the Supreme Court: 

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) The post-St. Cyr [INS v. St. Cyr, 533 U.S. 289 (2001)] amendments expressly extended the jurisdictional bar to judgments made outside of removal proceedings at the same time that they preserved review of legal and constitutional questions made within removal proceedings. See [8 U.S.C.] §§1252(a)(2)(B), (D). And foreclosing judicial review unless and until removal proceedings are initiated would be consistent with Congress’ choice to reduce procedural protections in the context of discretionary relief. See Lee v. U.S. Citizenship & Immigration Servs., 592 F.3d 612, 620 (4th Cir. 2010) (“To the extent Congress decided to permit judicial review of a constitutional or legal issue bearing upon the denial of adjustment of status, it intended for the issue to be raised to the court of appeals during removal proceedings”).

Patel, 2022 LEXIS 2494, *27-28.

To pinpoint the Supreme Court’s non-binding dicta within the text of the INA, 8 U.S.C. § 1252(a)(2)(B)(i) states: 

Denials of discretionary relief…. [R]egardless 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 212(h), 212(i), 240A, 240B, or 245 [8 U.S.C. § 1182(h), 1182(i), 1229b, 1229c, or 1255], or any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this title [8 U.S.C. § 1151 et seq. (“Selection System” for worldwide immigration]] to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 208(a) [8 U.S.C. § 1158(a) (“Authority to apply for asylum”)].

The titles of the specific INA sections referenced above are as follows: 

Section 1182(h): Waivers of criminal and related grounds of inadmissibility.

Section 1182(i): Waivers of fraud and misrepresentation grounds of inadmissibility.

Section 1229b: Cancellation of removal; adjustment of status [in removal proceedings].

Section 1229c: Voluntary departure.

Section 1255: Adjustment of status.

The above-cited sections comprise many discretionary DHS and DOJ decisions regarding immigration—which the non-binding dicta suggests may be beyond judicial review (though not beyond administrative review, reopening, reconsideration, or re-submission) in accordance with the text of the INA.

Apart from the Patel decision, the Immigration and Nationality Act (“INA”) does permit judicial review of factual findings in connection with discretionary relief in the following circumstances:

  • Habeas corpus proceedings, though limited to determinations of whether the petitioner is an alien, whether the petitioner was ordered removed [as an “applicant for admission” under 8 U.S.C. § 1225(b)(1)], and whether the petitioner can prove by a preponderance of the evidence that he is an LPR, a refugee admitted under INA § 207 [8 U.S.C. § 1157], or has been granted asylum under INA §  208 [8 U.S.C. § 1158], and such status has not been terminated.
  • Following the habeas corpus proceedings, judicial review is available of the decisions but only with respect to whether an order of removal was indeed issued and whether the order relates to the petitioner.
  • Challenges to the validity of the system, though limited to reviews of the constitutionality of INA § 235(b)(1) [8 U.S.C. § 1225(b)(1) (“Inspection of applicants for admission”)], or whether such regulation, or written policy direction, written policy guidelines, or written procedure issued to implement such section, is inconsistent with the INA or otherwise in violation of law.  The action must be brought within 60 days of the first implementation of the challenged section, regulation, or policy.  Cases must be brought in the U.S. District Court for the District of Columbia. 

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.