Federal courts have limited power to review the decisions of the immigration agencies. The Supreme Court’s recent decision in Patel v. Garland narrows the scope of judicial review even further. 142 S. Ct. 1614 (2022)

In Patel, the Supreme Court considered whether 8 USC § 1252(a)(2)(B)(i) “precludes judicial review of factual findings that underlie a denial of relief” from removal. Id. at 1618. The Court concluded that subsection (a)(2)(B)(i) bars federal courts from reviewing factual findings made in connection with “any judgment regarding the granting of relief” under five provisions of the Immigration and Nationality Act (INA):    

1. 8 USC § 1182(h) (waiver of certain criminal offenses),  
2. 8 USC § 1182(i) (waiver for fraud or willful misrepresentation of a material fact),  
3. 8 USC § 1229b (cancellation of removal)  
4. 8 USC § 1229c (voluntary departure), and  
5. 8 USC § 1255 (adjustment of status).1 

Background 

The Supreme Court granted certiorari after the Eleventh Circuit’s en banc decision in Patel created a circuit split over the scope of federal courts’ jurisdiction when reviewing a finding that a noncitizen is ineligible for certain types of discretionary relief. In Patel, the en banc Eleventh Circuit interpreted 8 USC § 1252(a)(2)(B)(i) very broadly, finding that judicial review is unavailable for any decision regarding the five forms of relief listed above — including determinations regarding non-discretionary threshold eligibility criteria. The only exception to this jurisdictional bar is for legal or constitutional questions, which remain reviewable under 8 USC § 1252(a)(2)(D).  

Before the Eleventh Circuit’s Patel decision, the circuit courts generally agreed that 8 USC § 1252(a)(2)(B)(i) applied only to the discretionary aspects of the forms of relief enumerated in the jurisdiction-stripping statute.2 Judicial review remained available for challenges to non-discretionary eligibility requirements. For example, if the Board of Immigration Appeals denied cancellation of removal because the respondent failed to establish ten years of continuous physical presence, that determination was reviewable on petition for review because the denial was due to the noncitizen’s failure to satisfy a non-discretionary eligibility requirement. In contrast, the BIA’s denial of cancellation of removal in the exercise of discretion would be nonreviewable. 

The Supreme Court’s Patel Decision 

The case before the Supreme Court involved a noncitizen, Mr. Patel, who had applied for adjustment of status before the immigration court. The Immigration Judge, in a decision affirmed by the BIA, denied the application and concluded that Mr. Patel was inadmissible — and therefore ineligible for adjustment of status — because he had misrepresented in a driver’s license application that he was a U.S. citizen. The IJ found that Mr. Patel was not credible in asserting that he mistakenly checked the wrong box on the driver’s license application and never intentionally misrepresented his citizenship. Specifically, the IJ found Mr. Patel intentionally represented himself falsely to obtain a benefit under state law. According to the IJ, Mr. Patel had a strong incentive to deceive Georgia officials because he would have been ineligible for a Georgia driver’s license if he had disclosed that he was “neither a citizen [n]or a lawful permanent resident.” However, the IJ was wrong on this point — under Georgia law, Mr. Patel was eligible to receive a driver’s license without being a citizen because he had a pending application seeking lawful permanent residence and a valid employment authorization document. Mr. Patel accordingly sought review of this decision. 

On petition for review, the Eleventh Circuit had determined that it lacked jurisdiction to review the IJ’s factual findings because of the jurisdictional bar at 8 USC § 1252(a)(2)(B)(i). In so doing, the Eleventh Circuit interpreted this provision quite broadly, stating that it lacked the power to review any factual findings made in connection with one of the five forms of relief enumerated in the statute.   

At the Supreme Court, Mr. Patel argued that the adjudication of adjustment of status applications required two separate determinations: 1) whether the noncitizen is statutorily eligible for relief, and 2) whether the noncitizen should be granted the relief as a matter of discretion. Mr. Patel contended that the bar to judicial review at 8 USC § 1252(a)(2)(B)(i) applied only to the second part of the adjudication, and therefore federal courts had the power to review all claims — including factual, legal, and constitutional claims — arising from the first part of the inquiry. The government similarly argued that courts could review determinations made about statutory eligibility for relief, except where the eligibility determination had been made discretionary by statute. Mr. Patel and the government agreed that federal courts had jurisdiction to consider his case because it raised a nondiscretionary factual question as to statutory eligibility. 

Because the parties agreed that the court had jurisdiction over Mr. Patel’s claim, the Supreme Court appointed an amicus curiae to argue in support of the Eleventh Circuit’s decision. Amicus argued that 8 USC § 1252(a)(2)(B)(i) precludes judicial review of all issues related to adjustment of status applications, including factual questions underlying nondiscretionary eligibility issues. Amicus also argued that 8 USC § 1252(a)(2)(D) does not restore jurisdiction to review factual questions — only legal and constitutional issues. Because Mr. Patel’s claim was factual, amicus said that the Eleventh Circuit was correct in holding that it lacked jurisdiction to review the petition.   

The Supreme Court affirmed the Eleventh Circuit’s holding that federal courts lack jurisdiction to review factual determinations underlying applications for relief enumerated in 8 USC § 1252(a)(2)(B)(i). In other words, federal courts lack the authority to review and correct an agency decision deeming an individual ineligible for relief even “when that decision rests on a glaring factual error.” Id. at 1627 (Gorsuch, J., dissenting). 

Implications  

The Patel decision strips jurisdiction over all purely factual questions in challenges to denials of the forms of relief listed in section 1252(a)(2)(B)(i) raised in a petition for review. Moreover, Patel calls into question whether a district court has jurisdiction over USCIS’s denial of an adjustment of status application.3   

In strongly worded dissent, Justice Gorsuch explained the consequences of the Patel decision:   

Today, the Court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it. No court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants. 

Id. at 1627 (Gorsuch, J., dissenting).