©Attorney Farhad Sethna, 2022
In a decision issued May 16, 2022, in Patel v Garland, the United States Supreme Court struck a massive blow against immigrants.
In that decision, the Supreme Court held that no court had any authority to examine the factual basis for a decision by the USCIS or by the Department of Homeland Security, including immigration judges, and any review by the federal courts would be limited only to “questions of law or constitutional issues”.
This is indeed a shocking development. For years, the federal courts have been the only check on the otherwise unbridled authority of the immigration system on the Department of Homeland Security. This decision gives those agencies the unfettered right to make arbitrary and capricious decisions with absolutely no oversight. So, the question becomes: how could this have happened?
A detailed review of the decision and the dissent reveals the following:
There was a split between Circuits, in which some of the Circuit Courts held that the federal courts retained jurisdiction to review factual questions raised in the immigration service and immigration court as well as BIA decisions. Other circuits held that the federal courts had no such jurisdiction other than jurisdiction carved out under 8 U.S.C. §1252(a)(2)(D).
Indeed, in Patel v Garland, both Patel as well as the US government agreed that the courts should have jurisdiction to review questions of fact leading to decisions by either the agencies or the immigration courts or the BIA. However, the parties also agreed to submit this matter to the Supreme Court to address this jurisdictional issue due to a split between the Circuits.
Given that both the parties – the US government and the alien – were essentially agreeing with each other, there would be no entity to rebut that assertion, and therefore, no argument could result before the Supreme Court.
However, there is a special circumstance when this happens. In such a case, where there really are not two sides to the litigation, the Supreme Court can choose to appoint an “amicus”. This individual or entity can take the position that is not being represented and represent its position to the Supreme Court. In this particular case, therefore, Justice Clarence Thomas appointed his former law clerk, a lawyer with the firm Consovoy McCarthy in Virginia, to argue the case for the unrepresented side. That lawyer, Taylor Meehan, argued that the court should restrict the authority of the federal judiciary to review any factual findings in cases decided by the agencies of the DHS or by the Board of Immigration Appeals. The court agreed with the amicus position.
So now, we are left with the Supreme Court ruling, which essentially, becomes the law of the land, which severely restricts the ability of aliens – or the US government – to adjudicate the arbitrariness of factual findings by agencies or by immigration courts.
What is the basis for this decision?
The Supreme Court analyzed the statute at 8 U.S.C. §1252(a)(2)(B)(i).
That statute essentially reads:
“ . . . regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have the jurisdiction to review –
any judgment regarding the granting of relief under 8 U.S.C. §1182(h), 8 U.S.C. §1182(i), 8 U.S.C. §1229b, 8 U.S.C. §1229c and 8 U.S.C. §1255 of this title.”
The five subsections referenced above bear further scrutiny, as ONLY any decision arising out of these particular subsections would be ineligible for any federal court review.
What kind of immigration issues do these subsections implicate?
8 U.S.C. §1182(h): no waiver is available for criminal grounds arising out of torture, murder, or aggravated felony except for simple possession of 30 grams or less of marijuana;
8 U.S.C. §1182(i): a waiver is available for aliens inadmissible for fraud or willful misrepresentation of material fact;
8 U.S.C. §1229b: cancellation of removal for nonpermanent resident aliens;
8 U.S.C. §1229c: voluntary departure;
8 U.S.C. §1255: adjustment of status of non-immigrant to that of person admitted for permanent residence.
The Supreme Court held that under 8 U.S.C. §1252(2)(B), “denials of discretionary relief”, that no federal court would have jurisdiction to review any decisions arising out of cases brought before the agencies or the immigration court under any of the five subsections above.
However, what the Supreme Court did not consider was that these agencies could and do make mistakes, and immigration judges can and do make mistakes as well. In essence, the Supreme Court has held that any mistake by an agency, the immigration court or the Board of Immigration Appeals applying any of the five grounds above is essentially not reviewable by a federal court, unless it can fall under the ambit of 8 U.S.C. §1252(2)(D), “judicial review of certain legal claims”. Under that subsection, only review of constitutional claims or questions of law may be heard by the federal court.
This is an extremely troubling development for aliens with petitions before the USCIS or before the immigration courts. Absent judicial review, there is no controlling mechanism to rein in the arbitrary and capricious actions of federal officials.
Indeed, this author has handled several cases where – but for the ability to have due process review by the federal courts – the aliens affected by incorrect decisions of the federal agencies or the immigration courts would have had no recourse.
As Justice Gorsuch, writing for the minority opinion in the Patel case stated:
“It is a conclusion that turns an agency once accountable to the rule of law into an authority unto itself. Perhaps some would welcome a world like that. But it is hardly a world Congress ordained.”
What legal strategy or solution may be used to ensure that federal courts have at least some review of a case or application before the DHS?
I would respectfully submit that the only ground which remains after the Patel decision for a denial based on a factual misinterpretation on one of the five categories of cases implicated in the Patel decision is to argue – every step of the way – that a decision contrary to the relief being sought implicates questions of law and/or constitutional issues. This would mean arguing due process, arguing that investigations were not properly grounded in law or fact, arguing that documentation was not provided, or was insufficient or imprecise, and any other legal, nonfrivolous strategy to implicate constitutional issues and questions of law into the case. By continuing to bring up these issues at every level, these matters may be preserved for federal appellate review.
Please note that the agencies may not be able to review constitutional questions, but nevertheless, it is important to bring them forward in order to set them later. Failure to do so at a lower court level (for example – at the BIA) may be deemed a waiver of those claims at a later date.
The Patel v Garland decision represents a significantly difficult hurdle for immigrants. Since it is a Supreme Court decision, it is unlikely to be overruled anytime soon, because the Supreme Court is very reluctant to overrule its own decisions. This decision is likely to bring forth a slew of related litigation based exactly on the issue of what constitutes a question of fact, which is no longer subject to review, versus a question of law, which can potentially be reviewed by the federal courts.
© Farhad Sethna, Attorney, 2022
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.