Respondents Brief — Pankajkumar S. Patel, et al., Petitioners v. Merrick B. Garland, Attorney General

No. 20-979

In the Supreme Court of the United States

PANKAJKUMAR S. PATEL, ET AL., PETITIONERS

v.

MERRICK B. GARLAND, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

ELIZABETH B. PRELOGAR

Acting Solicitor General

Counsel of Record

SARAH E. HARRINGTON

Deputy Assistant Attorney

General

DONALD E. KEENER

JOHN W. BLAKELEY

SARA J. BAYRAM

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether 8 U.S.C. 1252(a)(2)(B)(i) precludes judicial

review of non-discretionary determinations underlying

the determination of the Board of Immigration Appeals

that petitioner is inadmissible to the United States for

permanent residence and therefore ineligible for adjustment of status under 8 U.S.C. 1255(i).

2. Whether a finding of inadmissibility under 8 U.S.C.

1182(a)(6)(C)(ii), for falsely representing oneself as a

United States citizen “for any purpose or benefit” under

federal or state law, requires a finding that the misrepresentation was material to the purpose or benefit.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States Court of Appeals (11th Cir.):

Patel v. United States Attorney General, No.

17-10636 (Aug. 19, 2020)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument..................................................................................... 12

Conclusion ................................................................................... 25

TABLE OF AUTHORITIES

Cases:

Barton v. Barr, 140 S. Ct. 1442 (2020)................................... 2

Bryan v. Credit Control, LLC, 954 F.3d 576

(2d Cir. 2020) ....................................................................... 22

Castillo-Solis v. State, 740 S.E.2d 583 (Ga. 2013) ................ 5

Castro v. Attorney General of the United States,

671 F.3d 356 (3d Cir. 2012) ................................................ 22

Cevilla v. Gonzales, 446 F.3d 658 (7th Cir. 2006) ............... 18

Cuellar Lopez v. Gonzales, 427 F.3d 492

(7th Cir. 2005) ...................................................................... 18

Dean v. United States, 556 U.S. 568 (2009) ........................ 20

Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020) ........... 16

Hashish v. Gonzales, 442 F.3d 572 (7th Cir.),

cert. denied, 549 U.S. 995 (2006) ....................................... 18

Hassan v. Holder, 604 F.3d 915 (6th Cir. 2010) ................. 23

Iddir v. INS, 301 F.3d 492 (7th Cir. 2002) .......................... 18

INS v. St. Cyr, 533 U.S. 289 (2001) ...................................... 16

Kucana v. Holder, 558 U.S. 233 (2010) ............................... 15

Kungys v. United States, 485 U.S. 759 (1988) .............. 10, 20

Lee v. USCIS, 592 F.3d 612 (4th Cir. 2010) ........................ 17

Lomax v. Ortiz-Marquez, 140 S. Ct. 1721 (2020) ............... 19

Mamigonian v. Biggs, 710 F.3d 936 (9th Cir. 2013) .......... 18

(III)

IV

Cases—Continued:

Page

Melendez v. McAleenan, 928 F.3d 425 (5th Cir.),

cert. denied, 140 S. Ct. 561 (2019) ..................................... 17

Mendez-Moranchel v. Ashcroft, 338 F.3d 176

(3d Cir. 2003) ....................................................................... 17

Merit Mgmt. Grp., LP v. FTI Consulting, Inc.,

138 S. Ct. 883 (2018) ........................................................... 15

Morales-Morales v. Ashcroft, 384 F.3d 418

(7th Cir. 2004) ...................................................................... 18

Neder v. United States, 527 U.S. 1 (1999) ........................... 21

Ortiz-Cornejo v. Gonzales, 400 F.3d 610

(8th Cir. 2005) ...................................................................... 18

Reyes-Sanchez v. Holder, 646 F.3d 493

(7th Cir. 2011) ...................................................................... 18

Richmond v. Holder, 714 F.3d 725 (2d Cir. 2013) ........ 23, 24

Richmond v. Sessions, 697 Fed. Appx. 106

(2d Cir. 2017) ....................................................................... 24

Richmond, In re, 26 I. & N. Dec. 779 (B.I.A. 2016) ....... 8, 22

Roland v. USCIS, 850 F.3d 625 (4th Cir. 2017) .................. 17

Sabido Valdivia v. Gonzales, 423 F.3d 1144

(10th Cir. 2005) .................................................................... 18

Santana-Albarran v. Ashcroft, 393 F.3d 699

(6th Cir. 2005) ...................................................................... 18

Scialabba v. Cuellar de Osorio, 573 U.S. 41 (2014) ............ 22

Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. 2005) ............ 17

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83

(1998) .................................................................................... 19

Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005) .................... 17

United States v. Wells, 519 U.S. 482 (1997) ........................ 19

Statutes, regulations, and rule:

Fair Debt Collection Practices Act, 15 U.S.C. 1692e......... 21

V

Statutes, regulations, and rule—Continued:

Page

Immigration and Nationality Act, 8 U.S.C. 1101

et seq. ...................................................................................... 2

8 U.S.C. 1101(a)(3)............................................................. 2

8 U.S.C. 1101(f )(6) ........................................................... 10

8 U.S.C. 1103(a)(7)........................................................... 14

8 U.S.C. 1182(a) ................................................................. 2

8 U.S.C. 1182(a)(6)(A)(i) ................................................... 6

8 U.S.C. 1182(a)(6)(C)(i) ............................................. 9, 20

8 U.S.C. 1182(a)(6)(C)(ii) ....................................... passim

8 U.S.C. 1182(a)(6)(C)(ii)(I) .................................. 3, 19, 21

8 U.S.C. 1182(a)(6)(C)(ii)(II) ............................................ 3

8 U.S.C. 1226(e) ............................................................... 14

8 U.S.C. 1227(a)(3)(D)(i) ................................................. 23

8 U.S.C. 1229a(c)(4)(A)(i)-(ii) ............................................ 2

8 U.S.C. 1252 ...................................................................... 3

8 U.S.C. 1252(a)(1)............................................................. 3

8 U.S.C. 1252(a)(2)............................................................. 3

8 U.S.C. 1252(a)(2)(A) ..................................................... 15

8 U.S.C. 1252(a)(2)(B) ............................................ passim

8 U.S.C. 1252(a)(2)(B)(i) ........................................ passim

8 U.S.C. 1252(a)(2)(B)(i)-(ii) ............................................. 5

8 U.S.C. 1252(a)(2)(B)(ii) ................................................ 15

8 U.S.C. 1252(a)(2)(C) ..................................................... 15

8 U.S.C. 1252(a)(2)(D) ............................................ passim

8 U.S.C. 1252(a)(5)............................................................. 3

8 U.S.C. 1252(b)(1) ............................................................ 3

8 U.S.C. 1252(b)(4)(D) ..................................................... 14

8 U.S.C. 1252(b)(9) ............................................................ 3

8 U.S.C. 1255 .................................................2, 4, 12, 13, 14

8 U.S.C. 1255(i) ........................................................ 2, 7, 17

8 U.S.C. 1255(i)(1)(B) ........................................................ 2

VI

Statutes, regulations, and rule—Continued:

Page

8 U.S.C. 1255(i)(1)(B)(ii) ................................................. 17

8 U.S.C. 1255(i)(2)(B) ........................................................ 2

8 U.S.C. 1537(b)(2)(A) ..................................................... 14

18 U.S.C. 1341 ........................................................................ 21

11 U.S.C. 523(a) ..................................................................... 22

8 C.F.R.:

Section 1240.8(d)................................................................ 2

Section 1245.1 .................................................................... 2

Section 1245.2 .................................................................... 2

Ga. Code Ann.:

§ 16-10-20 (2007) ................................................................ 6

§ 40-5-21.1(a) (2006) .......................................................... 5

§ 40-5-32(a)(1) (2007) ......................................................... 5

Ga. Comp. R. & Regs. (2007):

375-3-2-.01(1)(a) ................................................................. 5

375-3-2-.01(1)(b) ................................................................. 5

Sup. Ct. R. 10(a) ..................................................................... 24

In the Supreme Court of the United States

No. 20-979

PANKAJKUMAR S. PATEL, ET AL., PETITIONERS

v.

MERRICK B. GARLAND, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-77a)

is reported at 971 F.3d 1258. The opinion of the court

of appeals panel (Pet. App. 79a-102a) is reported at

917 F.3d 1319. The decisions of the Board of Immigration Appeals (Pet. App. 103a-110a) and the immigration

judge (Pet. App. 111a-119a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

August 19, 2020. On March 19, 2020, the Court extended

the time within which to file any petition for a writ of certiorari due on or after that date to 150 days from the date

of the lower-court judgment or order denying a timely

petition for rehearing. The petition for a writ of certiorari was filed on January 15, 2021. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. a. Under the Immigration and Nationality Act

(INA), 8 U.S.C. 1101 et seq., the Attorney General has

the discretion to adjust the status of a removable noncitizen 1 who meets certain statutory criteria to that of a

noncitizen lawfully admitted for permanent residence.

8 U.S.C. 1255; see 8 C.F.R. 1245.1 and 1245.2. Section

1255 provides various means by which a noncitizen may

become eligible for an adjustment of status, including

by virtue of an application for a labor certification filed

with the Secretary of Labor. See 8 U.S.C. 1255(i). To

be statutorily eligible for adjustment of status under

Section 1255(i) based on such an application, a noncitizen who entered the United States without inspection

must, among other things, (1) be the beneficiary of an

application for labor certification that was filed on or

before April 30, 2001; (2) be admissible to the United

States for permanent residence; and (3) have an immigrant visa immediately available to him at the time of

his application. 8 U.S.C. 1255(i)(1)(B) and (2)(B). A noncitizen seeking an adjustment of status, or any other

discretionary form of relief from removal, bears the

burden of establishing that he “satisfies the applicable

eligibility requirements” and that he “merits a favorable exercise of discretion.” 8 U.S.C. 1229a(c)(4)(A)(i)(ii); see 8 C.F.R. 1240.8(d).

The INA sets forth grounds that generally make a

noncitizen “ineligible to be admitted to the United

States,” 8 U.S.C. 1182(a), and therefore ineligible for

adjustment of status under Section 1255(i). As relevant

here, a noncitizen “who falsely represents, or has falsely

This brief uses the term “noncitizen” as equivalent to the statutory term “alien.” See Barton v. Barr, 140 S. Ct. 1442, 1446 n.2

(2020) (quoting 8 U.S.C. 1101(a)(3)).

1

3

represented, himself or herself to be a citizen of the

United States for any purpose or benefit under this

chapter * * * or any other Federal or State law is inadmissible.” 8 U.S.C. 1182(a)(6)(C)(ii)(I). 2

b. The INA generally provides that a noncitizen aggrieved by a final order of removal may seek judicial review of that order by filing a petition for review in the

appropriate court of appeals within 30 days of the final

order of removal. 8 U.S.C. 1252(a)(1) and (b)(1); see

8 U.S.C. 1252(a)(5) (noting that such a petition is the

“sole and exclusive means” of obtaining judicial review

of a removal order). “Judicial review of all questions of

law and fact * * * arising from any action taken or proceeding brought to remove an alien from the United

States” is “available only in judicial review of a final order” under Section 1252. 8 U.S.C. 1252(b)(9).

Although Congress has generally authorized judicial

review of final orders of removal, it has also insulated

certain discretionary determinations of the Attorney

General from such review. See 8 U.S.C. 1252(a)(2) (entitled “Matters not subject to judicial review”). In particular, Section 1252(a)(2)(B)—entitled “Denials of

discretionary relief ”—provides as follows:

Notwithstanding any other provision of law

* * * , and except as provided in subparagraph (D)

* * * , no court shall have jurisdiction to review—

Section 1182(a)(6)(C)(ii) provides a narrow exception to inadmissibility, not applicable here, for a noncitizen who has “permanently

resided in the United States prior to attaining the age of 16”; whose

natural or adoptive parents are, or were, each a citizen by birth or

naturalization; and who “reasonably believed at the time of making

such representation that he or she was a citizen.” 8 U.S.C.

1182(a)(6)(C)(ii)(II).

2

4

(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or

1255 of [Title 8], or

(ii) any other decision or action of the Attorney

General or the Secretary of Homeland Security

the authority for which is specified under this subchapter to be in the discretion of the Attorney

General or the Secretary of Homeland Security,

other than the granting of relief under section

1158(a) of [Title 8].

8 U.S.C. 1252(a)(2)(B).

Section 1252(a)(2)(B)(i)’s cross-reference to 8 U.S.C.

1255 generally deprives courts of appeals of jurisdiction

to review “any judgment” regarding the Attorney General’s decision to grant or deny adjustment of status.

Section 1252(a)(2)(D) provides that “[n]othing in subparagraph (B) or (C), or in any other provision of [the

INA] (other than this section) which limits or eliminates

judicial review, shall be construed as precluding review

of constitutional claims or questions of law raised upon

a petition for review filed with an appropriate court of

appeals.” 8 U.S.C. 1252(a)(2)(D).

2. a. Petitioner Pankajkumar S. Patel (Patel) is a

native and citizen of India, who entered the United

States unlawfully in February 1992. Pet. App. 103a104a, 111a-112a; Administrative Record (A.R.) 1237. In

August 2007, after an immigrant visa became immediately available to him, Patel applied for adjustment of

status under Section 1255(i) based on a timely filed application for a labor certification. Pet. App. 112a; A.R.

1633; see also A.R. 1273, 1319-1326. In his adjustmentof-status application, he listed his wife, petitioner

Jyotsnaben P. Patel, and his son, Nishantkumar Patel,

5

as derivative beneficiaries. Pet. App. 81a n.1, 104a; A.R.

302-308; see Pet. ii.

In December 2008, while his adjustment-of-status

application was pending, Patel sought to renew his

Georgia driver’s license. Pet. App. 113a; A.R. 66-67. At

the time, the State of Georgia issued two different types

of driver’s licenses, with different periods of validity,

depending on the applicant’s citizenship status. A

noncitizen was eligible to obtain a “temporary” license

valid only for the time he was legally authorized to remain in the United States or, if the documents reflecting

such authorization did not include an expiration date,

for one year. Pet. App. 89a n.6; Ga. Code Ann. § 40-521.1(a) (2006); Ga. Comp. R. & Regs. 375-3-2-.01(1)(b)

(2007); see Castillo-Solis v. State, 740 S.E.2d 583, 585,

588 (Ga. 2013). United States citizens, by contrast, received non-temporary licenses valid for either five or ten

years. Pet. App. 89a n.6; Ga. Code Ann. § 40-5-32(a)(1)

(2007); Ga. Comp. R. & Regs. 375-3-2-.01(1)(a) (2007).

On Patel’s driver’s license renewal application, in response to the question “Are you a U.S. citizen? If not,

what is your Alien Registration Number or I-94 Number,” Patel checked “yes.” A.R. 66; see Pet. App. 113a.

According to a copy of the renewal application in the administrative record, he submitted his then-current

Georgia driver’s license along with his application. A.R.

67. On the basis of the application, he was issued a new

license. A.R. 75, 239.

A few months later, Patel was interviewed by agents

from the Georgia Department of Driver Services “in

connection with the issuance of a Georgia Driver’s License.” A.R. 75. In the interview, he admitted that he

had checked the box stating that he was a United States

citizen, that he did so without influence or assistance

6

from anyone else, and that he knew when he did so that

he was not a United States citizen. Ibid. Georgia authorities charged Patel with making a false statement or

writing under Ga. Code Ann. § 16-10-20 (2007). A.R. 6970. But the charge was ultimately dismissed. A.R. 71.

In August 2010, the Department of Homeland Security (DHS) denied Patel’s adjustment-of-status application, determining that his false representation of United

States citizenship rendered him inadmissible under

8 U.S.C. 1182(a)(6)(C)(ii). A.R. 73-75; see Pet. App.

112a. DHS subsequently denied Patel’s motion to reopen his application. A.R. 640-641.

b. In 2012, DHS commenced removal proceedings

against petitioners, charging them as removable under

8 U.S.C. 1182(a)(6)(A)(i) for being present in the United

States without admission or parole. Pet. App. 111a112a; A.R. 1811. Through counsel, petitioners each conceded removability, and Patel renewed his application

for adjustment of status on his and his family’s behalf.

Pet. App. 111a-112a; A.R. 224, 1237, 1811-1812.

During the removal proceedings, Patel offered inconsistent testimony about his false claim to citizenship

on his driver’s license application. On direct examination, Patel insisted that he “might have made a mistake”

on the application, and that “[he] didn’t have an intention” to falsely represent his citizenship to obtain a license “because [his] work permit was in process.” Pet.

App. 113a; A.R. 235, 237. He claimed that he had submitted his employment authorization card and “nothing

else” with his driver’s license application. Pet. App.

113a; A.R. 237, 239. On cross-examination, however,

Patel acknowledged that he had also submitted his

then-current driver’s license. Pet. App. 113a; A.R. 240.

7

Patel also initially testified that he had provided his

alien registration number both in writing on the driver’s

license application and by presenting his employment

authorization card (which contained the number). Pet.

App. 113a; A.R. 240. But when presented with a copy of

his driver’s license application, which did not include his

alien registration number, Patel stated that he had just

“showed them [his employment authorization] card, and

then it was all done.” A.R. 243. He could not explain

why the application did not reflect that he had shown

his card and alien registration number. Pet. App. 113a114a; A.R. 244.

At the conclusion of the removal proceedings, the immigration judge (IJ) denied Patel’s renewed application

to adjust his and his family’s status, and ordered petitioners removed. Pet. App. 111a-119a; A.R. 162-169.

The IJ observed that “[t]here [wa]s no dispute” that Patel had falsely claimed he was a United States citizen on

his driver’s license renewal application, and the IJ rejected as “not plausible” his explanation that his false

claim had been “a mistake.” Pet. App. 113a, 115a; A.R.

163, 166. The IJ found Patel to be not credible, describing his testimony as “not candid,” “somewhat evasive,”

and both internally inconsistent and inconsistent with

his renewal application. Pet. App. 113a-114a; A.R. 164165. The IJ also determined that Patel failed to establish that he would have been eligible for a Georgia

driver’s license, regardless of his false claim. Pet. App.

115a-117a; A.R. 166-167. The IJ thus found Patel inadmissible under Section 1182(a)(6)(C)(ii) for falsely representing himself as a citizen to obtain a benefit under

state law. A.R. 167-168. On that basis, the IJ concluded

that Patel and his family were ineligible for adjustment

of status under Section 1255(i). A.R. 168.

8

c. The Board of Immigration Appeals (Board) upheld the IJ’s decision and dismissed petitioners’ appeal.

Pet. App. 103a-110a. The Board found no clear error in

the IJ’s finding that Patel had “willfully and purposefully indicated that he was a United States citizen” on

the driver’s license application. Id. at 107a (citation

omitted). And the Board rejected petitioners’ argument

that the false claim was immaterial because United

States citizenship was not required to obtain a driver’s

license under Georgia law. Id. at 107a-108a. The Board

observed that the “clear implication” of the question inquiring about citizenship or lawful status was that an

applicant must be either a United States citizen or a

lawfully admitted noncitizen to obtain a driver’s license.

Id. at 108a (citation omitted). And it determined that

petitioners, who bore the burden of establishing Patel’s

admissibility, had failed to refute that implication. Ibid.

One Board Member dissented. Pet. App. 109a-110a.

She stated that she would have reversed the IJ’s decision on the ground that, even assuming Patel had falsely

claimed citizenship with the intent to obtain a state-law

benefit, he was not inadmissible because his claim did

not “actually affect or matter to the purpose or benefit

sought.” Id. at 109a (quoting In re Richmond, 26 I. &

N. Dec. 779, 787 (B.I.A. 2016)). Under her reading of

Georgia regulations, Patel’s employment authorization

and pending adjustment-of-status application made him

eligible for a driver’s license regardless of his citizenship status. Id. at 109a-110a.

3. a. Petitioners sought review of the final orders of

removal by the court of appeals, contending that the

agency erred in finding that Patel intended to make a

false representation to obtain the license and in determining that the false representation was material to his

9

license application. A panel of the court of appeals

unanimously denied the petition for review. Pet. App.

79a-102a.

With respect to the first question presented in this

Court, the court of appeals panel concluded sua sponte

that it lacked jurisdiction under Section 1252(a)(2)(B)(i)

to review the agency’s finding that Patel intended to

make a false representation of citizenship to obtain a

state-law benefit. Pet. App. 85a-86a, 88a-90a. While expressing some doubt that Section 1182(a)(6)(C)(ii) requires such an intent to render a noncitizen inadmissible, the court assumed that, had Patel shown a lack of

such intent, petitioners would have been entitled to relief before the Board. Id. at 88a-89a. The court interpreted Section 1252(a)(2)(B) and (D), however, to limit

its jurisdiction to review denials of adjustment of status

under Section 1255 to constitutional questions or questions of law. Id. at 85a. The court thus held that it

lacked jurisdiction to consider petitioners’ challenge to

the agency’s factual finding. Id. at 89a-90a.

With respect to the second question presented, the

panel held that the “plain meaning” of the inadmissibility criteria in Section 1182(a)(6)(C)(ii) requires that the

noncitizen “make the false representation with the goal

of obtaining a purpose or benefit under the law,” but not

that the false representation “be material to the purpose or benefit sought.” Pet. App. 92a; see id. at 90a101a. The court found support for that view in the express materiality requirement contained “in the immediately preceding subsection.” Id. at 93a; see 8 U.S.C.

1182(a)(6)(C)(i) (rendering inadmissible “[a]ny alien

who, by fraud or willfully misrepresenting a material

fact, seeks to procure * * * a visa, other documentation,

10

or admission into the United States”). And it found further support in this Court’s decision in Kungys v.

United States, 485 U.S. 759 (1988), which declined to

read a materiality requirement into a similarly worded

bar on naturalization for individuals who have “given

false testimony for the purpose of obtaining any benefits under [immigration law].” Pet. App. 94a (quoting

8 U.S.C. 1101(f )(6)) (brackets in original). Because the

court determined that Section 1182(a)(6)(C)(ii) is unambiguous, it declined to defer to the Board’s contrary

conclusion in In re Richmond. Id. at 99a-101a.

b. The court of appeals vacated the panel’s decision

and ordered the case to be reheard en banc to resolve

the jurisdictional question. Pet. App. 9a. By a vote of 9

to 5, the en banc court agreed with the panel that it

lacked jurisdiction over petitioners’ factual challenge to

the agency’s denial of their adjustment-of-status application. Id. at 1a-77a. The court reinstated the panel’s

resolution of the materiality question without analysis.

Id. at 47a.

The majority of the en banc court of appeals agreed

with the panel that Section 1252(a)(2)(B)(i) bars all judicial review of the denial of adjustment of status—or

any of the other enumerated forms of relief—with the

exception of constitutional claims and questions of law

raised under Section 1252(a)(2)(D). Pet. App. 3a. The

court reasoned that the statutory phrase “any judgment” is best read to mean “[a]ny decision” regarding

the statutorily enumerated categories of relief, and that

“any doubt” about its meaning “should be resolved in

favor of a more expansive meaning given the modifying

phrases ‘any’ and ‘regarding’ ” in the statute. Id. at 27a.

Although the court reasoned that Section 1252(a)(2)(D)

11

“restores” the court’s jurisdiction “to review constitutional claims or questions of law,” it concluded that

factual determinations by the Board remains “ ‘beyond

the power of judicial review.’ ” Id. at 28a-29a (citation

omitted).

The en banc court of appeals rejected the government’s contention that Section 1252(a)(2)(B)(i) precludes judicial review of only discretionary determinations underlying the enumerated categories of relief

and petitioners’ distinct contention that it bars review

of only the Attorney General’s ultimate decision

whether to exercise discretion to grant relief, not

whether a noncitizen meets the statutory eligibility criteria for such relief. Pet. App. 30a-45a. The court

acknowledged that it was departing from its own precedent and that of numerous other courts of appeals. See

id. at 32a & n.22 (citing decisions from the First, Second, Third, Fifth, Ninth, and Tenth Circuits).

c. Judge Martin, joined by four other judges, dissented from the jurisdictional holding. Pet. App. 48a77a. Judge Martin reasoned that the phrase “any judgment regarding the granting of relief ” is ambiguous

standing alone. Id. at 58a-65a. Considered in the context of the statutory scheme as a whole and against the

backdrop of the presumption of judicial review, however, she concluded that the “best interpretation” is

that it “excludes review of decisions that involve the exercise of discretion.” Id. at 65a; see id. at 52a-55a, 65a72a. While that “may include both the final decision of

whether to grant any of the five enumerated forms of

relief, as well as some other discretionary findings related to eligibility for relief,” it does not preclude judicial review of “findings of fact that require no discretionary evaluation from the factfinder.” Id. at 65a.

12

Judge Martin observed that her view has been

“widely accepted” by other circuits. Pet. App. 50a. Indeed, she noted, “all but one of [the Eleventh Circuit’s]

sister circuits who have considered this issue [have]

conclude[d] that § 1252(a)(2)(B) does not eliminate review of factual or legal determinations related to eligibility for discretionary relief.” Id. at 57a-58a (citing

cases from the First, Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits); but see id. at

58a n.5 (noting that the Fourth Circuit “has reached a

similar conclusion to that of the majority”).

ARGUMENT

Petitioners contend (Pet. 14-26) that the court of appeals erred in holding that 8 U.S.C. 1252(a)(2)(B)(i) bars

judicial review of all factual findings related to a noncitizen’s eligibility for relief in the form of adjustment of

status under 8 U.S.C. 1255. The government agrees. In

its view, Section 1252(a)(2)(B)(i) precludes judicial review of only discretionary determinations related to the

granting of relief under Section 1255. The court of appeals’ contrary conclusion implicates an acknowledged

and entrenched circuit split on the scope of Section

1252(a)(2)(B)(i). And this case presents a suitable vehicle for resolving that disagreement. The petition for a

writ of certiorari should therefore be granted with respect to the first question presented.

For purposes of the second question presented, petitioners contend (Pet. 26-32) that the court of appeals

erred in holding that a false representation of United

States citizenship need not be material to the benefit

sought to render a noncitizen inadmissible under

8 U.S.C. 1182(a)(6)(C)(ii). But the court of appeals’ resolution of that question is correct. Contrary to petitioners’ contention, it does not squarely conflict with any

13

decision of another court of appeals. And, in any event,

this case would present an unsuitable vehicle to consider the question, principally because, even if materiality were required, petitioners could not establish that

Patel’s false claim of United States citizenship was immaterial to the state-law benefit (a Georgia driver’s license) that he sought and received. Further review of

the second question presented is therefore unwarranted.

1. The Court should grant the petition for a writ of

certiorari with respect to the first question presented,

concerning the scope of the bar on judicial review in

Section 1252(a)(2)(B)(i).

a. Section 1252(a)(2)(B)(i) provides that “[n]otwithstanding any other provision of law * * * , no court shall

have jurisdiction to review * * * any judgment regarding the granting of relief under section * * * 1255.”

8 U.S.C. 1252(a)(2)(B)(i). The court of appeals interpreted that restriction to extend to all determinations

made in conjunction with an application for adjustment

of status under Section 1255, except insofar as Section

1252(a)(2)(D) permits review of constitutional claims and

questions of law. Pet. App. 25a-28a. The court acknowledged that “the purpose of [Section 1252(a)(2)(B)(i)] appears to be to place discretionary rulings beyond the

power of judicial review.” Id. at 29a (citation omitted).

But the court believed that “the statute itself, read literally, goes further and places all rulings other than

those resolving questions of law or constitutional issues

beyond the power of judicial review.” Ibid. (citation

omitted).

The court of appeals’ interpretation of Section

1252(a)(2)(B)(i) is incorrect, and it is contrary to the

government’s longstanding position that the provision

allows judicial review of determinations related to the

14

granting of relief under Section 1255 when those

determinations are not discretionary in nature—such

as a factual determination about whether a noncitizen

intended to make a false representation of citizenship

to obtain a state-law benefit. See Gov’t C.A. En Banc

Br. 21-29.

For three principal reasons, Section

1252(a)(2)(B)(i) is best interpreted to reach only discretionary judgments.

First, the phrase “any judgment regarding the

granting of relief under section * * * 1255,” 8 U.S.C.

1252(a)(2)(B)(i), is naturally read to include only judgments of a discretionary nature. The term “judgment,”

when used in the INA to specify a determination or decision of the relevant official (as opposed to the order of

a court), refers to a determination of a discretionary nature. See 8 U.S.C. 1103(a)(7) (authorizing the Secretary

of Homeland Security to “detail employees of the Service for duty in foreign countries” “whenever in his

judgment such action may be necessary to accomplish

the purposes of this chapter”); 8 U.S.C. 1226(e) (providing that “[t]he Attorney General’s discretionary judgment regarding the application of th[at] section shall

not be subject to review”); 8 U.S.C. 1252(b)(4)(D)

(deeming “the Attorney General’s discretionary judgment whether to grant relief under section 1158(a)”

“conclusive unless manifestly contrary to the law and an

abuse of discretion”); 8 U.S.C. 1537(b)(2)(A) (permitting

the removal of noncitizens to “any country which the alien shall designate if such designation does not, in the

judgment of the Attorney General * * * impair the obligation of the United States under any treaty”).

Second, the structure of Section 1252(a)(2)(B) indicates that Congress used “judgment” in the same sense

in Section 1252(a)(2)(B)(i). Section 1252(a)(2)(B) is

15

entitled “Denials of discretionary relief.” 8 U.S.C.

1252(a)(2)(B); see Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883, 893 (2018) (“Although section headings cannot limit the plain meaning of a statutory text, ‘they supply cues’ as to what Congress intended.”) (citation omitted). Moreover, while Section

1252(a)(2)(B)(i) precludes judicial review of “any judgment regarding the granting of relief ” under five enumerated provisions granting the Attorney General discretionary authority, Section 1252(a)(2)(B)(ii) precludes

judicial review of “any other decision or action of the Attorney General or the Secretary of Homeland Security

the authority for which is specified under this subchapter to be in the discretion of the Attorney General or

the Secretary.” 8 U.S.C. 1252(a)(2)(B)(i)-(ii) (emphasis

added). “Read harmoniously, both clauses convey that

Congress barred court review of discretionary decisions[.]” Kucana v. Holder, 558 U.S. 233, 247 (2010).

Third, Congress used very different language in

other INA provisions to express an intent to bar all review of a particular type of order. Most conspicuously,

the adjacent subparagraph provides that “no court shall

have jurisdiction to review * * * any individual determination or to entertain any cause or claim arising

from or relating to the implementation or operation of ”

an expedited order of removal. 8 U.S.C. 1252(a)(2)(A)

(emphasis added). Similarly, Congress has precluded

judicial review of “any final order of removal against

an alien who is removable by reason of having committed” certain enumerated criminal offenses. 8 U.S.C.

1252(a)(2)(C) (emphasis added). Congress would likely

have used similarly broad language if it intended that

Section 1252(a)(2)(B)(i) foreclose all review of Board orders denying adjustment of status.

16

Reading Section 1252(a)(2)(B)(i) more narrowly, as

precluding judicial review of only discretionary judgments regarding the enumerated forms of relief, is also

consistent with this Court’s observation that “when a

statutory provision ‘is reasonably susceptible to divergent interpretation,’ ” the Court often invokes the basic

principle that “executive determinations generally are

subject to judicial review.” Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062, 1069 (2020) (citation omitted). That presumption in favor of judicial review of administrative

action reinforces the government’s longstanding interpretation of Section 1252(a)(2)(B)(i).

Finally, the court of appeals erred in relying on Section 1252(a)(2)(D)’s express preservation of judicial

review over constitutional claims and questions of law

in support of an inference that Section 1252(a)(2)(B)

precludes review of every other question. Section

1252(a)(2)(D) was added to the statute nearly a decade

after the enactment of Section 1252(a)(2)(B) to address

concerns raised in INS v. St. Cyr, 533 U.S. 289 (2001),

about the reviewability of removal orders. See GuerreroLasprilla, 140 S. Ct. at 1071. In particular, the provision was designed to provide at least the same level of

review “traditionally available in a habeas proceeding”

in Section 1252’s consolidated review proceedings of a

final order of removal, to avoid any Suspension Clause

concerns. Ibid.; see generally St. Cyr, supra. Nothing

about Congress’s effort to ensure that no provision in

the INA “which limits or eliminates judicial review”

is “construed” to dip below the constitutional floor,

8 U.S.C. 1252(a)(2)(D), suggests that the specific provision at issue here should be read to preclude other constitutionally permissible review. See Pet. App. 73a

(Martin, J., dissenting).

17

b. As the court of appeals itself recognized, its interpretation of Section 1252(a)(2)(B)(i) conflicts with that

of nearly every other circuit. See Pet. App. 32a (observing that, in determining “jurisdictional boundaries”

under Section 1252(a)(2)(B), the Eleventh Circuit “and

other Circuits” have “often” distinguished between

“ ‘discretionary’ or ‘nondiscretionary’ determinations”);

see id. at 57a-58a (Martin, J., dissenting) (collecting

conflicting decisions).

Like the Eleventh Circuit, the Fourth Circuit has interpreted Section 1252(a)(2)(B)(i) to bar judicial review

of any challenge to a denial of one of the enumerated

forms of relief. In Lee v. USCIS, 592 F.3d 612 (4th Cir.

2010), the court held that Section 1252(a)(2)(B)(i) precluded a noncitizen’s challenge to the denial of adjustment of status under Section 1255(i) on the ground that

the applicant was not the beneficiary of a labor certification filed before April 30, 2001. Id. at 620-621. The

court reasoned that the agency’s denial of his application on the basis of “a faulty eligibility determination

* * * cannot be divorced from the denial itself.” Id. at

620; see 8 U.S.C. 1255(i)(1)(B)(ii); see also Roland v.

USCIS, 850 F.3d 625, 630 (4th Cir. 2017) (quoting Lee

with approval).

By contrast, the First, Second, Third, Fifth, Sixth,

Eighth, Ninth, and Tenth Circuits have repeatedly held,

both before and after the 2005 addition of Section

1252(a)(2)(D), that Section 1252(a)(2)(B)(i) bars judicial

review of only discretionary determinations related to

the enumerated forms of relief. See, e.g., Succar v.

Ashcroft, 394 F.3d 8, 19 (1st Cir. 2005); Sepulveda v.

Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005); MendezMoranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir. 2003);

Melendez v. McAleenan, 928 F.3d 425, 426 (5th Cir.),

18

cert. denied, 140 S. Ct. 561 (2019); Santana-Albarran v.

Ashcroft, 393 F.3d 699, 703 (6th Cir. 2005); OrtizCornejo v. Gonzales, 400 F.3d 610, 612 (8th Cir. 2005);

Mamigonian v. Biggs, 710 F.3d 936, 943-944 (9th Cir.

2013); Sabido Valdivia v. Gonzales, 423 F.3d 1144,

1148-1149 (10th Cir. 2005). The Seventh Circuit has also

predominantly adhered to the majority view. See Iddir

v. INS, 301 F.3d 492, 496-498 (2002) (“[W]e find section

1252(a)(2)(B)(i), by its use of the terms ‘judgment’ and

‘decision or action’, only bars review of actual discretionary decisions to grant or deny relief under the enumerated sections, including section 1255.”); see also,

e.g., Reyes-Sanchez v. Holder, 646 F.3d 493, 496 (7th

Cir. 2011); Hashish v. Gonzales, 442 F.3d 572, 574 (7th

Cir.), cert. denied, 549 U.S. 995 (2006); Cuellar Lopez v.

Gonzales, 427 F.3d 492, 495 (7th Cir. 2005); MoralesMorales v. Ashcroft, 384 F.3d 418, 421-423 (7th Cir.

2004); but see Cevilla v. Gonzales, 446 F.3d 658, 661 (7th

Cir. 2006).

c. This case presents a suitable vehicle for resolving

the widespread, entrenched conflict among the courts

of appeals about the meaning of Section 1252(a)(2)(B)(i).

In the published decision below, the question was given

careful consideration by the en banc court in light of the

views of the other circuits. The majority and the dissenting opinions each acknowledge and grapple with the

reasoning of the other circuits and each other. There is

no dispute that petitioners’ challenge to the agency’s

subjective-intent finding concerns a non-discretionary

determination regarding Patel’s eligibility for relief,

and therefore the question presented is dispositive of

the courts’ jurisdiction to consider that challenge. And

because the question goes to the jurisdiction of the

court of appeals (and this Court), the government’s

19

continued defense on the merits of the agency’s casespecific factual finding will not serve as an independent

ground on which to affirm to the judgment without resolving the first question presented. See Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998).

2. The Court should deny the petition for a writ of

certiorari with respect to the second question presented, concerning whether a noncitizen’s false representation of United States citizenship must be material

to the benefit sought to render the noncitizen inadmissible under 8 U.S.C. 1182(a)(6)(C)(ii).

a. Section 1182(a)(6)(C)(ii)(I) provides that “[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 chapter (including

section 1324a of this title) or any other Federal or State

law is inadmissible.” Nothing in the text of that provision requires that the false representation of citizenship

be material to the purpose or benefit sought to trigger

inadmissibility. As a general matter, “this Court may

not narrow a provision’s reach by inserting words Congress chose to omit.” Lomax v. Ortiz-Marquez, 140 S. Ct.

1721, 1725 (2020). Because the statute “[n]owhere * * *

say[s] that a material fact must be the subject of the

false statement or so much as mention[s] materiality,”

United States v. Wells, 519 U.S. 482, 490 (1997), the plain

text strongly suggests there is no such requirement.

In Wells, this Court held that a criminal prohibition

on “ ‘knowingly mak[ing] any false statement or report

. . . for the purpose of influencing in any way the action’ ” of a federally insured bank applied to false statements made with the intent “to influence the institution,” whether or not material to the relevant decision.

20

519 U.S. at 490, 499 (citation omitted; brackets in original). And in Kungys v. United States, 485 U.S. 759

(1988), the Court interpreted a similarly worded bar on

naturalization for an individual who “has given false testimony for the purpose of obtaining” immigration benefits to require a subjective intent to obtain the benefit,

but not materiality. Id. at 779 (citation omitted). “Literally read,” the Court explained, that language includes false testimony of “even the most immaterial

of lies,” if offered “with the subjective intent of obtaining immigration or naturalization benefits.” Id. at 779780. Similarly, the most natural reading of Section

1182(a)(6)(C)(ii) is that “it means precisely what it says”

and does not incorporate an unwritten materiality requirement. Id. at 780.

The statutory context confirms that conclusion. The

immediately preceding provision, Section 1182(a)(6)(C)(i),

renders inadmissible any noncitizen “who, by fraud

or willfully misrepresenting a material fact, seeks

to procure” certain immigration benefits. 8 U.S.C.

1182(a)(6)(C)(i) (emphasis added). “Where Congress

includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.”

Dean v. United States, 556 U.S. 568, 573 (2009) (brackets and citation omitted). As the court of appeals explained, that distinction makes sense. While Section

1182(a)(6)(C)(i) applies to the misrepresentations of

“any fact, which would be very broad without a materiality requirement,” Section 1182(a)(6)(C)(ii) applies exclusively to misrepresentations about a particularly solemn fact: one’s U.S.-citizenship status. Pet. App. 94a.

For that reason, it was sensible for Congress—when it

21

was delineating conduct that would render someone

inadmissible—to include all false representations of

U.S. citizenship made “with the goal of obtaining a purpose or benefit under the law,” whether or not they

were material to that purpose or benefit. Id. at 92a.

Petitioners contend (Pet. 29-32) that the Court

should infer a materiality requirement in Section

1182(a)(6)(C)(ii) based on the common-law meaning of

“false representation.” Pet. 29 (citation omitted). Petitioners observe that this Court has interpreted the federal mail-, wire-, and bank-fraud statutes to incorporate

a materiality requirement even though they do not expressly include such a requirement. See Pet. 29-30 (citing Neder v. United States, 527 U.S. 1 (1999)). And petitioners contend that lower courts have incorporated a

materiality element into a provision of the Fair Debt

Collection Practices Act (FDCPA) that prohibits collecting debts by “false, deceptive, or misleading representation.” Pet. 30 (quoting 15 U.S.C. 1692e).

But even accepting petitioners’ interpretation of the

common law, there are several reasons to doubt that

Congress’s regulation of noncitizens for purposes of

admissibility was meant to incorporate common-law

rules for obtaining money and property by fraud. Section 1182(a)(6)(C)(ii)’s text is meaningfully distinct from

the text of the provisions that implicitly incorporate

common-law fraud principles. Compare 8 U.S.C.

1182(a)(6)(C)(ii)(I) (describing “[a]ny alien who falsely

represents, or has falsely represented, himself or herself to be a citizen of the United States”), with, e.g.,

18 U.S.C. 1341 (prohibiting “any scheme or artifice to

defraud, or for obtaining money or property by means

of false or fraudulent pretenses, representations, or

22

promises”), and 11 U.S.C. 523(a) (preventing bankruptcy discharge of debts for money or property “obtained by * * * false pretenses, a false representation,

or actual fraud”). The provisions appear in meaningfully different contexts and serve meaningfully different purposes. See, e.g., Bryan v. Credit Control, LLC,

954 F.3d 576, 582 (2d Cir. 2020) (inferring a materiality

requirement as a “natural ‘corollary’ to the least sophisticated consumer test” under the FDCPA).

Finally, the Board’s decision in In re Richmond,

26 I. & N. Dec. 779 (2016), does not warrant a different

result. In that decision, the Board interpreted Section

1182(a)(6)(C)(ii) to be limited to false claims of U.S. citizenship that are “made with the subjective intent of

achieving a purpose or obtaining a benefit” under state

or federal law and “actually affect or matter to the purpose or benefit sought.” Id. at 786-787. The Board’s interpretation of the immigration laws adopted in a precedential decision would ordinarily warrant judicial deference. See Scialabba v. Cuellar de Osorio, 573 U.S. 41,

57 (2014) (plurality opinion). But as the government explained below, because Congress “sp[oke] clearly to the

question at issue” here, “the statute’s plain meaning controls.” Ibid.; see Gov’t C.A. Supp. Br. 1-2 (Oct. 11, 2018).

b. Petitioners contend (Pet. 27-29) that the court of

appeals’ resolution of the second question presented

conflicts with decisions from the Second, Third, and

Sixth Circuits. None of those decisions, however, adopts

a definitive construction of Section 1182(a)(6)(C)(ii), and

thus none conflicts with the decision below in a manner

that would warrant this Court’s review.

In Castro v. Attorney General of the United States,

671 F.3d 356 (2012), for example, the Third Circuit expressly declined to “lay down an exhaustive interpretation

23

of the circumstances to which [Section] 1182(a)(6)(C)(ii)

might apply.” Id. at 371. Instead, the court held “only

that the statute did not apply to the facts” before it,

where citizenship status was both “irrelevant to the loan

application, and no evidence suggested that the [noncitizen] believed that claiming to be a U.S. citizen would

raise the probability that his application would be approved.” Ibid. (emphasis added).

The Sixth Circuit took a similar approach in Hassan

v. Holder, 604 F.3d 915 (2010), concerning the similarly

worded Section 1227(a)(3)(D)(i). The noncitizen in that

case had falsely claimed citizenship in an application for

a loan. Id. at 928. Because Section 1227(a)(3)(D)(i) governs removability, the government bore the burden of

showing that the noncitizen made the false statement

“for any purpose or benefit under [the INA] . . . or any

Federal or State law.” Id. at 928 (quoting 8 U.S.C.

1227(a)(3)(D)(i)). But the government had “simply offered no evidence of the ‘purpose or benefit.’ ” Ibid.

And similar to Castro, the court of appeals found that

Section 1227(a)(3)(D)(i) did not apply where the only evidence in the record suggested that the noncitizen’s immigration status “would have no effect on the loan” and

his “past conduct suggest[ed] that he did not subjectively believe that” it would. Id. at 928-929; see id. at

929 (reasoning that the noncitizen “might still be removable notwithstanding the lack of effect if his ‘purpose’

was to affect his application (even though his immigration status was irrelevant)”).

The Second Circuit’s decision in Richmond v.

Holder, 714 F.3d 725 (2013), is of a piece. There, the

court observed that Castro and Hassan both “left open”

whether Section 1182(a)(6)(C)(ii) applied only where the

noncitizen’s false claim to citizenship “would actually

24

affect” his ability to serve the purpose or obtain a benefit under state or federal law or applied whenever the

noncitizen “intends his or her citizenship” to have such

an effect. Id. at 730. And the Second Circuit likewise

declined to generate “ ‘a set of standards’ to use in applying the statute * * * from scratch.” Id. at 731 (citation omitted). Instead, it remanded the case to the

Board to consider the question in the first instance.

Ibid.; see Richmond v. Sessions, 697 Fed. Appx. 106,

106-107 (2d Cir. 2017) (affirming the Board’s decision on

remand in an unpublished decision without passing on

the question).

Here, unlike in Castro and Hassan, the IJ found, and

the Board affirmed, the subjective intent that was missing in those cases. See Pet. App. 115a (finding that Patel “willfully and purposefully indicated that he was a

United States citizen * * * to obtain the driver’s license

based on [that] claim of citizenship”). And while unlike

the Second Circuit in Richmond, the court below did

adopt a definitive holding that Section 1182(a)(6)(C)(ii)

does not require a showing that the false claim was material to the purpose or benefit for which it was offered,

it did so only after considering the Board’s interpretation of the provision in Richmond, supra, and determining that it was inconsistent with the plain meaning of

the statutory text. See Pet. App. 99a-101a. Even if the

Eleventh Circuit’s adoption of a controlling interpretation of Section 1182(a)(6)(C)(ii) could be described as

conflicting with the Second, Third, and Sixth Circuits’

previous decisions to not yet do so, it is not the sort of

circuit conflict that warrants this Court’s review. See

Sup. Ct. R. 10(a).

25

c. Finally, even if the second question presented

warranted this Court’s review, this case would be an unsuitable vehicle to address it. As an initial matter, if the

Court agrees with the parties that the first question

presented is worthy of its review and resolution, it

should not complicate the case with “an alternative basis for reversing the judgment below.” Pet. 27.

In any event, this case would be a poor vehicle for

resolving the second question because petitioners would

not be entitled to relief. Although the court of appeals

panel determined that materiality was not a requirement of Section 1182(a)(6)(C)(ii), the IJ and the Board

resolved petitioners’ application for adjustment of status on the understanding that materiality was required.

The Board upheld the IJ’s determination and found that

Patel was inadmissible, and therefore ineligible for adjustment of status, because petitioners failed to show

that the citizenship question on the Georgia driver’s license application “was not relevant to whether the application was approved.” Pet. App. 108a. And although

petitioners challenged the Board’s resolution of materiality below, they “acknowledge[d] that Georgia would

have granted [Patel] a license of shorter duration had

he disclosed his actual immigration status.” Pet. C.A.

En Banc Br. 58 n.10; see p. 5, supra (describing Georgia

law). It is therefore unlikely that petitioners would ultimately prevail on the issue of materiality, even if this

Court were to adopt their interpretation of Section

1182(a)(6)(C)(ii).

CONCLUSION

The petition for a writ of certiorari should be granted

limited to the first question presented. Because the

court of appeals adopted an interpretation of 8 U.S.C.

26

1252(a)(2)(B)(i) that is inconsistent with both the petitioners’ view and the government’s longstanding interpretation of that provision, if the Court grants plenary

review of the first question presented, the Court may

wish to consider appointing an amicus curiae to defend

the judgment of the court of appeals.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Acting Solicitor General

SARAH E. HARRINGTON

Deputy Assistant Attorney

General

DONALD E. KEENER

JOHN W. BLAKELEY

SARA J. BAYRAM

Attorneys

MAY 2021