Amicus Curiae Brief — Pankajkumar S. Patel, et al., Petitioners v. Merrick B. Garland, Attorney General
Supreme Court briefSep 3, 2021
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No. 20-979
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------PANKAJKUMAR S. PATEL and JYOTSNABEN P. PATEL,
Petitioners,
v.
MERRICK B. GARLAND, ATTORNEY GENERAL,
Respondent.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Eleventh Circuit
---------------------------------♦--------------------------------BRIEF FOR THE AMERICAN IMMIGRATION
LAWYERS ASSOCIATION AS AMICUS CURIAE
IN SUPPORT OF PETITIONERS
---------------------------------♦--------------------------------ROMY LERNER
Counsel of Record
REBECCA SHARPLESS
IMMIGRATION CLINIC
UNIVERSITY OF MIAMI
SCHOOL OF LAW
1311 Miller Drive, E273
Coral Gables, FL 33146
(305) 284-6092
rlerner@law.miami.edu
MAUREEN SWEENEY
IMMIGRATION CLINIC
CHACÓN CENTER FOR
IMMIGRANT JUSTICE
UNIVERSITY OF MARYLAND
CAREY SCHOOL OF LAW
500 W. Baltimore St., 353
Baltimore, MD 21201
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE ......................
1
SUMMARY OF THE ARGUMENT .....................
1
ARGUMENT ........................................................
4
I.
II.
Nothing in 8 U.S.C. § 1252(a)(2)(B)(i) Bars
Review of Threshold Eligibility Determinations for the Enumerated Discretionary
Relief ..........................................................
4
Courts of Appeals Have Jurisdiction to
Review Eligibility for Cancellation of Removal ............................................................
6
A. Eligibility Determinations Under VAWA
Cancellation of Removal Are Reviewable ......................................................
8
B. Courts Have Jurisdiction Over Physical
Presence and Good Moral Character
Questions ............................................... 13
C. Courts Have Jurisdiction Over Hardship Questions ....................................... 19
III.
Under the Eleventh Circuit’s Erroneous
Interpretation, Questions of Law Would
Not Be Reviewable In District Courts ....... 23
CONCLUSION..................................................... 33
ii
TABLE OF AUTHORITIES
Page
CASES
Abuzeid v. Wolf, No. 1:18-cv-00382-TJK, 2020
WL 7629664 (D.D.C. Dec. 22, 2020) .................. 26, 28
Chavez-Vasquez v. Mukasey, 548 F.3d 1115 (7th
Cir. 2008) ........................................................... 22, 23
Commandant v. Rinehart, No. 1:20-cv-23630,
2021 WL 422177 (S.D. Fla. Feb. 1, 2021) .......... 28, 29
Del Carmen Duron v. Nielson, 491 F. Supp. 3d
256 (S.D. Tex. 2020) .................................................30
Diaz v. Mukasey, 280 F. App’x 643 (9th Cir.
2008) ........................................................................17
Erazo Alvarez v. Garland, 850 F. App’x 846 (4th
Cir. 2021) .................................................................12
Galaz v. Gonzales, 176 F. App’x 822 (9th Cir.
2006) ........................................................................17
Gonzalez-Maldonado v. Gonzales, 487 F.3d 975
(5th Cir. 2007).................................................... 18, 19
Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183
(2021) .........................................................................5
Gurrola-Rosales v. Holder, 351 F. App’x 98 (7th
Cir. 2009) ........................................................... 21, 22
Hamilton v. Holder, 680 F.3d 1024 (8th Cir.
2012) ........................................................................13
INS v. St. Cyr, 533 U.S. 289 (2001).............................25
Jimenez Verastegui v. Wolf, 468 F. Supp. 3d 94
(D.D.C. 2020) ...........................................................31
iii
TABLE OF AUTHORITIES—Continued
Page
Kim v. Gonzales, No. CCB-05-485, 2006 WL
1892426 (D. Md. June 19, 2006) .............................32
Lee v. U.S. Citizenship & Immigr. Servs., 592
F.3d 612 (4th Cir. 2010) ...........................................25
Lopez-Birrueta v. Holder, 633 F.3d 1211 (9th Cir.
2011) .................................................................... 9, 10
Luna v. Mukasey, 279 F. App’x 487 (9th Cir.
2008) ........................................................................17
Martinez v. Ashcroft, 114 F. App’x 313 (9th Cir.
2004) .................................................................. 17, 18
Meyers v. Sessions, 904 F.3d 1101 (9th Cir.
2018) ........................................................................16
Mkanyia v. Gonzales, 140 F. App’x 422 (3d Cir.
2005) .................................................................. 19, 20
Order, Balroop v. Gonzales, No. 6:07-cv-1203Orl-28KRS (M.D. Fla. September 2, 2008) .............30
Order, Karr Karr v. United States & Immigration Services, No. 1:19-cv-000125-PAB (D.
Colo. Nov. 27, 2019) .................................................31
Ortega-Guillen v. Holder, 315 F. App’x 619 (9th
Cir. 2009) .................................................................17
Patel v. U.S. Att’y Gen., 971 F.3d 1258 (11th Cir.
2020) .................................................................... 5, 25
Perales-Cumpean v. Gonzales, 429 F.3d 977
(10th Cir. 2005).................................................. 10, 12
Peralta Gandarilla v. Gonzales, 233 F. App’x 670
(9th Cir. 2007)...................................................... 14, 5
iv
TABLE OF AUTHORITIES—Continued
Page
Romano-Varian v. Att’y Gen., 155 F. App’x 620
(3d Cir. 2005) ..................................................... 15, 16
Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021) .... 3, 25, 26
STATUTES
8 U.S.C. § 1101(a)(13)(A) ............................................26
8 U.S.C. § 1101(f ) ..........................................................7
8 U.S.C. § 1101(f )(4) ....................................................13
8 U.S.C. § 1101(f )(6) ....................................................19
8 U.S.C. § 1182(a)(9)(B)(i)(II) ......................................31
8 U.S.C. § 1182(e) ........................................................28
8 U.S.C. § 1229b ............................................................4
8 U.S.C. § 1229b(b)(1) ...................................................7
8 U.S.C. § 1229b(b)(1)(A) ............................................13
8 U.S.C. § 1229b(b)(1)(B) ...................................... 13, 17
8 U.S.C. § 1229b(b)(2) ...................................................8
8 U.S.C. § 1229b(b)(2)(A)(i) ...........................................7
8 U.S.C. § 1229b(b)(2)(A)(ii) .................................... 7, 13
8 U.S.C. § 1229b(b)(2)(A)(iii) ................................... 7, 13
8 U.S.C. § 1229b(b)(2)(A)(iv) .........................................7
8 U.S.C. § 1229b(b)(2)(A)(v) ..........................................7
8 U.S.C. § 1229b(d)(1) ...................................................7
8 U.S.C. § 1252(a)(2)(B)(i) ................................... passim
v
TABLE OF AUTHORITIES—Continued
Page
8 U.S.C. § 1252(a)(2)(D) ...................................... passim
8 U.S.C. § 1252(a)(5) ...................................................24
8 U.S.C. § 1252(b)(4)(B) ................................................5
8 U.S.C. § 1255 ..............................................................4
8 U.S.C. § 1255(a) .................................................. 26, 29
28 U.S.C. § 1331 ..........................................................24
Administrative Procedure Act, 5 U.S.C. § 551
et seq. .......................................................................24
Victims of Trafficking and Violence Protection
Act of 2000, Pub. L. No. 106-386, 114 Stat.
1464 ...........................................................................8
Violence Against Women and Department of
Justice Reauthorization Act of 2005, Pub. L.
No. 109-162, 119 Stat. 2960 ......................................8
Violence Against Women Reauthorization Act of
2013, Pub. L. No. 113-4, 127 Stat. 54........................8
REGULATIONS
8 C.F.R. § 1.2 ...............................................................24
8 C.F.R. § 1245.2(a)(1)(ii) ............................................24
vi
TABLE OF AUTHORITIES—Continued
Page
OTHER AUTHORITIES
140 Cong. Rec. E1364-65 (daily ed. Jun. 29,
1994) ..........................................................................8
H. R. Rep. No. 103-395 (1993) ......................................8
Legal Opinion from Paul W. Virtue, Acting Gen.
Counsel, INS to Jim Puleo, Assoc. Comm’r, Examinations, INS, Temporary Protected Status
and Eligibility for Adjustment of Status under
Section 245, INS Gen. Counsel Op. No. 91-27,
1991 WL 1185138 (Mar. 4, 1991) ............................29
S. Rep. No. 102-197 (1991) ............................................8
OTHER MATERIALS
Appellant’s Opening Brief, Gurrola-Rosales v.
Holder, 351 F. App’x 98 (7th Cir. 2009) (No. 091644) ........................................................................21
Brief and Appendix on Behalf of PetitionersAppellants, Mkanyia v. Gonzales, 140 F. App’x
422 (3d Cir. 2005) (No. 04-2094), 2004 WL
5247586 ...................................................................20
Brief and Appendix Volume I on Behalf of
Petitioner, Romano-Varian v. Att’y Gen., 155 F.
App’x 620 (3d Cir. 2005) (No. 04-3208), 2005
WL 4862528 ...................................................... 15, 16
Brief of Appellant, Erazo Alvarez v. Garland,
850 F. App’x 846 (4th Cir. 2021) (No. 201818) ........................................................................12
vii
TABLE OF AUTHORITIES—Continued
Page
Brief of the Respondent to Board of Immigration
Appeals, In the Matter of Graciela PeralesCumpean (Utah Imm. Ct. Nov. 3, 1999) ........... 10, 11
Class Action Complaint for Declaratory and
Injunctive Relief, Commandant v. Rinehart,
No. 1:20-cv-2360 (S.D. Fla. Aug. 31, 2020)..............28
Email from Brian Schmitt, Hake & Schmitt, to
Maureen Sweeney, Dir., Md. Carey Immigr.
Clinic (Aug. 1, 2021, 2:01 PM EST) ........................26
Email from Dr. Adel Abuzeid, to Maureen
Sweeney, Dir., Md. Carey Immigr. Clinic &
Brian Schmitt, Hake & Schmitt (Aug. 4, 2021,
2:14 PM EST) ..........................................................27
Email from Roy Petty, Petty & Assocs., PLLC, to
Maureen Sweeney, Dir., Md. Carey Immigr.
Clinic (July 30, 2021, 2:52 PM EST) ................ 31, 32
Opening Brief of Petitioner, Martinez v. Ashcroft,
114 F. App’x 313 (9th Cir. 2004) (No. 0273265), 2004 WL 1125458 .......................................17
Oral Decision of the Immigration Judge, In the
Matter of Graciela Perales-Cumpean (Utah
Imm. Ct. Nov. 3, 1999) ....................................... 10, 11
Order, Balroop v. Gonzales, No. 6:07-cv-1203-Orl28KRS, 2008 WL 11435736 (M.D. Fla. April
15, 2008) ..................................................................30
Order Granting the Parties’ Joint Motion to
Hold Case in Abeyance, Abuzeid v. Mayorkas,
No. 21-5003 (D.C. Cir. May 28, 2021)......................28
viii
TABLE OF AUTHORITIES—Continued
Page
Original Complaint, Karr Karr v. United States
Citizenship & Immigration Services, No. 1:19cv-00125-WYD (D. Colo. Jan. 15, 2019) ..................31
Petitioner’s Opening Brief in Support of Appeal,
Peralta Gandarilla v. Gonzalez, 233 F. App’x
670 (9th Cir. 2007) (No. 05-74351), 2005 WL
4586430 ...................................................................14
1
INTEREST OF AMICUS CURIAE
The American Immigration Lawyers Association
(“AILA”) is a national nonprofit association with more
than 15,000 members throughout the United States
and abroad, including lawyers and law school professors who practice and teach in the field of immigration and nationality law. AILA seeks to advance
the administration of law pertaining to immigration,
nationality and naturalization; and to facilitate the
administration of justice and elevate the standard of
integrity, honor, and courtesy of those appearing in a
representative capacity in immigration and naturalization matters. AILA’s members practice regularly
before the Department of Homeland Security (“DHS”)
and before the Executive Office for Immigration
Review, as well as before the United States district
courts, courts of appeal, and this Court.1
---------------------------------♦---------------------------------
SUMMARY OF THE ARGUMENT
The jurisdictional bar at 8 U.S.C. § 1252(a)(2)(B)(i)
must be read to preserve judicial review of all
threshold statutory eligibility determinations for the
enumerated forms of immigration relief. The provision
provides that no court has jurisdiction to review “any
1
Amicus states that no counsel for a party authored any part
of this brief and no person or entity other than counsel for Amicus
made a monetary contribution to the preparation or submission of this brief. Petitioners, Respondents and court-appointed
Amicus have consented to the filing of this brief pursuant to Rule
37.3(a).
2
judgment regarding the granting of ” certain discretionary forms of relief. Amicus agrees with Petitioners
that the phrase “judgment regarding the granting of
relief ” refers to the ultimate discretionary decision to
grant or deny an application and not to decisions about
whether an applicant has met the requirements to be
considered for relief, such as whether an applicant for
cancellation of removal for nonpermanent residents
(“nonLPR cancellation”) has established physical presence, good moral character, or hardship, or whether
an applicant for cancellation of removal under the
Violence Against Women Act (“VAWA cancellation”)
has been battered. Federal courts, therefore, retain
jurisdiction to consider both factual and legal questions regarding statutory eligibility for relief. In this
case, the Eleventh Circuit erred by expansively interpreting the phrase “judgment regarding the granting
of relief ” to include decisions about statutory eligibility,
erroneously extending the bar to those determinations.
The personal accounts below—many of them
about the clients of AILA members—illustrate the
important factual and legal questions that arise in
considering whether a noncitizen is eligible to be
considered for discretionary relief. Upholding the
Eleventh Circuit’s ruling in this case would mean that
many noncitizens with strong claims, including survivors of domestic abuse, individuals whose deportation would cause hardship to U.S. citizen family
members, and those making significant contributions
to society, will have no recourse when the immigration
3
agency erroneously concludes that they fail to meet the
statutory requirements for relief.
Even more troubling is the far-reaching impact of
the Eleventh Circuit’s rule on the many cases heard
only in district courts. The Eleventh Circuit stated that
review of legal and constitutional questions would
remain under the jurisdictional clause at 8 U.S.C.
§ 1252(a)(2)(D). But this assertion is incorrect. Subsection (D) only restores jurisdiction in cases before the
courts of appeals on a petition for review, not in cases
filed in district court. As a result, all agency errors—
legal, factual, and constitutional—would go uncorrected in district courts under the Eleventh Circuit’s
interpretation. As the accounts in Part III demonstrate, judicial review of agency denials of adjustment
of status often occurs in the district courts, rather
than in the courts of appeals pursuant to petitions
for review. The Eleventh Circuit’s rule would permit
U.S. Citizenship and Immigration Services (“USCIS”)
officers, who are not judges and often not even lawyers,
to apply legally erroneous statutory interpretations to
applications for lawful permanent residence—with no
possibility of review. Just this last term, in Sanchez
v. Mayorkas, this Court considered the legality of
USCIS’s interpretation of the definition of “admission”
in the context of review of an adjustment of status
application that originated in district court.2 Under the
Eleventh Circuit’s interpretation of subsection (B)(i),
this Court would have not been able to review the legal
2
Sanchez v. Mayorkas, 141 S. Ct. 1809, 1812 (2021).
4
question at issue because it related to relief enumerated in the jurisdictional bar.
Congress did not intend for the courts to abdicate
their critical role in correcting the factual and legal
errors concerning relief eligibility made by immigration agencies. Amicus urges the Court to reverse the
decision of the Eleventh Circuit and find that all
threshold eligibility determinations relating to the
enumerated forms of relief in subsection (B)(i) are
subject to judicial review.
---------------------------------♦---------------------------------
ARGUMENT
I.
NOTHING IN 8 U.S.C. § 1252(A)(2)(B)(i)
BARS REVIEW OF THRESHOLD ELIGIBILITY DETERMINATIONS FOR THE
ENUMERATED DISCRETIONARY RELIEF.
Federal courts have jurisdiction to review any
question—legal or factual—regarding whether a person is statutorily eligible to apply for the discretionary
relief enumerated in subsection (B)(i), including adjustment of status and cancellation of removal.3
Section 1252(a)(2)(B)(i) bars review of “any judgment
regarding the granting of relief under section 1182(h),
1182(i), 1229b, 1229c, or 1255 of this title”—all discretionary immigration remedies. Amicus agrees with
Petitioners that the plain language of the statute,
the context provided by the jurisdictional provisions
3
8 U.S.C. § 1255; 8 U.S.C. § 1229b.
5
around it, the longstanding rule that Congress must
speak clearly if it intends to repeal jurisdiction, and
the principle that courts construe ambiguities in deportation statutes in favor of the noncitizen all weigh
in favor of interpreting subsection (B)(i) to apply only
to the ultimate discretionary “judgment” to grant or
deny an application. There is no distinction between
legal determinations about eligibility and related factual determinations, except that different standards of
review apply to legal and factual findings.4 Properly
interpreted, subsection (B)(i) does not bar review over
any questions relating to threshold eligibility, be they
factual or legal.5
As noted by the Eleventh Circuit in the decision
below, subsection (D) restores jurisdiction in the
appellate courts over legal and constitutional questions that are otherwise barred.6 But this provision
does not apply to preserve review of such questions in
district court proceedings, an important subset of cases
in which applicants seek review of agency action. As a
4
Legal questions are reviewed de novo. Google LLC v. Oracle
Am., Inc., 141 S. Ct. 1183, 1199 (2021). Courts generally review
facts found by immigration agencies under the substantial evidence test. 8 U.S.C. § 1252(b)(4)(B).
5
Courts have sometimes characterized certain eligibility
determinations, such as hardship and part of the good moral
character determination, as “discretionary.” But even if threshold
eligibility determinations are properly viewed as discretionary,
they are reviewable under 8 U.S.C. § 1252(a)(2)(B)(i).
6
Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1272 (11th Cir.
2020), cert. granted sub nom. Patel v. Garland, No. 20-979, 2021
WL 2637834 (U.S. June 28, 2021).
6
result, it is particularly important that this Court
interpret subsection (B)(i) to maintain review of all
eligibility questions. Otherwise, even legal and constitutional questions relating to eligibility for the
enumerated remedies will be unreviewable in district
court.
Amicus focuses on two types of immigration relief—nonLPR cancellation and adjustment of status to
lawful permanent residence—to illustrate the range of
critical threshold eligibility questions that arise and
the crucial role that federal courts play in correcting
agency errors.
II.
COURTS OF APPEALS HAVE JURISDICTION TO REVIEW ELIGIBILITY FOR
CANCELLATION OF REMOVAL.
NonLPR cancellation of removal is a frequent and
vital defense to deportation for survivors of domestic
abuse and noncitizens with long residence and close
family ties in the United States. In the most common
type of nonLPR cancellation, often known as 10-year
cancellation, an immigration judge “may cancel removal of ” and confer lawful permanent residence on, a
removable noncitizen who proves: 1) physical presence
in the United States for a continuous period of not
less than 10 years preceding the date they were
served with a notice to appear in removal proceedings;
2) “good moral character” during that period; 3) no
convictions for certain enumerated offenses; and 4)
“exceptional and extremely unusual hardship” to a U.S.
7
citizen or lawful permanent resident spouse, parent or
child upon removal.7
Noncitizens who can demonstrate they have been
“battered or subjected to extreme cruelty” by a U.S.
citizen or lawful permanent resident spouse or parent
or are the parent of a battered child may apply for
VAWA cancellation, another type of nonLPR cancellation, pursuant to 8 U.S.C. § 1229b(b)(2). Section
1229b(b)(2) retains the good moral character requirement, but applicants need only show three years of
physical presence before the date of application and
“extreme” hardship to themselves, their child, or their
parent. 8 U.S.C. §§ 1229b(b)(2)(A)(i)-(iii) and (v).
Only if the applicant meets these eligibility requirements for 10-year or VAWA cancellation can an
immigration judge make the separate “judgment” of
whether to exercise discretion and grant cancellation.
The accounts detailed below, of immigrant survivors of
abuse and non-citizens with strong roots in the United
States, demonstrate the importance of federal appellate court review of all questions of statutory eligibility.
7
8 U.S.C § 1229b(b)(1) (emphasis added). See also 8 U.S.C.
§ 1229b(d)(1) (providing that the ten-year period of continuous
presence ends with service of the notice to appear); 8 U.S.C.
§1101(f ) (defining “good moral character”).
8
A. Eligibility Determinations Under VAWA
Cancellation of Removal Are Reviewable.
The Eleventh Circuit’s erroneous interpretation of
subsection (B)(i) would block review of key questions
relating to eligibility for VAWA cancellation for a
“battered spouse or child.”8 Congress passed VAWA as
a sweeping response to what it dubbed a “national
tragedy” of violence inflicted on women.9 Since then,
Congress has expanded VAWA protections by reauthorizing and amending the law three times.10 Congress
designed the legislation to empower and protect a
broad class of survivors, including immigrants battered by U.S. citizen or lawful permanent resident
spouses.11 Congress recognized that abusers often use
immigration status as a tool of abuse and that
immigrant survivors may not be willing to seek help
because of the threat or fear of deportation.12 The
Eleventh Circuit’s interpretation of subsection (B)(i)
would leave VAWA cancellation applicants without
8
8 U.S.C. § 1229b(b)(2).
S. Rep. No. 102-197, at 39 (1991).
10
See Violence Against Women Reauthorization Act of 2013,
Pub. L. No. 113-4, 127 Stat. 54; Violence Against Women and
Department of Justice Reauthorization Act of 2005, Pub. L. No.
109-162, 119 Stat. 2960; Victims of Trafficking and Violence
Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464.
11
See 140 Cong. Rec. E1364-65 (daily ed. Jun. 29, 1994)
(statement of Rep. Nancy Pelosi).
12
See H. R. Rep. No. 103-395, at 26 (1993) (“Many immigrant
women live trapped and isolated in violent homes, afraid to turn
to anyone for help. They fear both continued abuse if they stay
with their batterers and deportation if they attempt to leave.”).
9
9
recourse to judicial review of fundamental questions
in their cases—a result at odds with Congressional
intent to provide expansive protections for immigrant
survivors of abuse. Congress did not intend for the
Board of Immigration Appeals (“BIA”) to have the final
word on whether VAWA applicants have experienced a
“battery” or “extreme cruelty” or would suffer “extreme
hardship.”
Maria Lopez-Birrueta’s case illustrates how a
court of appeals is authorized to step in to correct
an agency mistake regarding eligibility for VAWA
cancellation.13 Ms. Lopez-Birrueta came to the United
States from Mexico in 1994, at the age of 14. Shortly
after her arrival, when she was still 14, she met Gill
Campos, a 36-year-old lawful permanent resident.
Campos started a sexual relationship with her. Ms.
Lopez-Birrueta had her first child with Campos when
she was 16 and her second when she was 18. Campos
abused both Ms. Lopez-Birrueta and their children. He
“repeatedly threatened [her], insulted her, prohibited
her from talking with others, acted aggressively toward
her, and threatened to alert immigration officials if
[she] disobeyed his orders.”14 Campos “was violent
toward his children, yelled at them, and often took
them for rides in his car when he was drunk.”15 Several
times a week, he struck his young children with sticks,
leaving them with red welts. The immigration judge
13
The facts of Ms. Lopez-Birrueta’s case are detailed in
Lopez-Birrueta v. Holder, 633 F.3d 1211 (9th Cir. 2011).
14
Id. at 1213.
15
Id.
10
found Ms. Lopez-Birrueta credible regarding the abuse
but held that the children had not been “battered” or
subject to “extreme cruelty” because the violence
was not sufficiently “heightened.”16 The BIA affirmed
the judge’s decision, and Ms. Lopez-Birrueta filed a
petition for review with the Ninth Circuit. The court
analyzed the regulatory definition of “battery” to
reject the agency’s requirement of “heightened” violence and reviewed whether the agency’s finding
was supported by substantial evidence.17 The court
ruled that the facts “compelled” the conclusion that
the abuse qualified as a “battery,” making Ms. LopezBirrueta eligible for VAWA cancellation as the parent
of a battered child.18
Other VAWA applicants have not been as fortunate. Graciela Perales-Cumpean had her VAWA case
incorrectly dismissed from the circuit court for lack
of jurisdiction under subsection (B)(i).19 Ms. PeralesCumpean came to the United States from Mexico in
June 1990. In April 1997, she married Derwood
Shaffer, a U.S. citizen. Thereafter, Shaffer began drinking heavily. He also began forcing himself sexually on
16
Id. at 1216.
Id.
18
Id.
19
The facts of Ms. Perales-Cumpean’s case are detailed in
Perales-Cumpean v. Gonzales, 429 F.3d 977 (10th Cir. 2005); Oral
Decision of the Immigration Judge, In the Matter of Graciela
Perales-Cumpean (Utah Imm. Ct. Nov. 3, 1999) (on file with
counsel), and Brief of the Respondent to Board of Immigration
Appeals, In the Matter of Graciela Perales-Cumpean (Utah Imm.
Ct. Nov. 3, 1999) (on file with counsel).
17
11
Ms. Perales-Cumpean. When she resisted, he yelled at
her and accused her of sleeping with other men. He
called her “prostitute” and “bitch” in front of friends.20
Ms. Perales-Cumpean moved out of the marital home
and started attending counseling to cope with her
experiences of abuse. She later started her own
cleaning business.
In December 1997, immigration officials started
the process to deport Ms. Perales-Cumpean, and she
filed for VAWA cancellation. In court, Ms. PeralesCumpean’s upstairs neighbor testified that Shaffer was
jealous, frequently degraded Ms. Perales-Cumpean in
front of others, and forbade her from having contact
with male friends. When Ms. Perales-Cumpean was
asked whether her husband ever forced her to have sex
against her will, she stated that it happened a few
times. After the immigration judge defined “rape,” Ms.
Perales-Cumpean stated that her husband raped her
“two or three times a week.”21
The immigration judge denied Ms. PeralesCumpean’s case, finding that the verbal humiliation
was not extreme cruelty and that Ms. PeralesCumpean “came up with another story” about the
marital rape, making her not credible.22 Ms. PeralesCumpean appealed to the BIA, which upheld the
decision. She sought review before the Tenth Circuit,
20
Oral Decision of the Immigration Judge, supra note 19, at 3.
Brief of the Respondent to Board of Immigration Appeals,
supra note 19, at 12 (citing to Trial Transcript at 45).
22
Oral Decision of the Immigration Judge, supra note 19, at 7.
21
12
but the court incorrectly interpreted the scope of
subsection (B)(i) to prohibit review of whether she met
the eligibility requirement of abuse.23
Elina Erazo Alvarez was also denied judicial
review of her VAWA cancellation case.24 A Honduran
citizen, Ms. Erazo Alvarez fled to the United States to
escape repeated sexual abuse by her step-grandfather.
Once here, she lived with her father, who abused her
by whipping her regularly with a belt. When she left
his home, he continued to threaten her. Immigration
officials put her in removal proceedings, and she applied for VAWA cancellation. The immigration judge
found that she was not eligible for relief because she
had not established that she had been battered or
subjected to extreme cruelty. In so ruling, the judge
stated that Ms. Erazo Alvarez was not a credible witness and disregarded affidavits from three witnesses
corroborating the abuse because they were not
notarized. Ms. Erazo Alvarez filed a motion to reopen
and reconsider with the judge as well as an appeal
to the BIA. The judge denied the motions, and the
BIA upheld the judge’s decision. Ms. Erazo Alvarez
filed a petition for review with the Fourth Circuit,
which issued a summary order dismissing for lack of
jurisdiction, citing to subsection (B)(i).25 As a result, no
23
Perales-Cumpean, 429 F.3d at 981-82.
The facts of Ms. Erazo Alvarez’s case are detailed in Erazo
Alvarez v. Garland, 850 F. App’x 846 (4th Cir. 2021) and Brief of
Appellant, Erazo Alvarez v. Garland, 850 F. App’x 846 (4th Cir.
2021) (No. 20-1818) (on file with counsel).
25
Erazo Alvarez, 850 F. App’x at 847.
24
13
federal court has been able to review Ms. ErazoAlvarez’s challenge to the agency’s finding that she
failed to establish she was subject to extreme cruelty
or battery. Other courts have refused to review similar
questions. See, e.g., Hamilton v. Holder, 680 F.3d 1024
(8th Cir. 2012) (no jurisdiction to review agency’s
denial of VAWA cancellation case of Kenyan woman
raped by her husband).
As the above cases illustrate, it is crucial for
federal courts to retain review over threshold eligibility determinations for VAWA cancellation of removal.
B. Courts Have Jurisdiction Over Physical Presence and Good Moral Character Questions.
Courts also have jurisdiction to review questions
regarding physical presence and good moral character,
both eligibility requirements for 10-year and VAWA
cancellation of removal. See 8 U.S.C. §§ 1229b(b)(1)(A)(B); 8 U.S.C. §§ 1229b(b)(2)(A)(ii)-(iii). In deciding
whether an applicant has satisfied these requirements,
the immigration judge must often make factual determinations based on the evidence. For example, a
judge might determine the date a person entered the
United States for purpose of continuous physical
presence; or whether an applicant gambles illegally
and the extent of their gambling income, for the
purpose of the statutory bars to showing good moral
character. See 8 U.S.C. § 1101(f )(4).
14
When courts reverse the BIA’s rulings on whether
an applicant qualifies to apply for nonLPR cancellation
of removal, they illustrate the importance of judicial
review as a backstop against agency errors. For
example, Floritulia Peralta Gandarilla, an applicant
for 10-year cancellation, entered the United States
in January 1988.26 She raised her two children—U.S.
citizens ages 8 and 15—on her own, with no child
support from their fathers. The father of Richard, her
oldest child, was abusive. One of the reasons Ms. Peralta Gandarilla feared deportation was that Richard’s
father had returned to Mexico, and she worried that
he might harm her or her children. At Ms. Peralta
Gandarilla’s removal hearing, an issue arose regarding
whether she had been physically present in the United
States for 10 years prior to February 27, 1998, the date
that immigration officials served her with a notice to
appear. The notice to appear correctly alleged that she
had entered the United States in January 1988, and
Ms. Peralta Gandarilla testified to this date of entry at
the hearing. She also filed with the court a letter from
her employer stating “that payroll records indicated
that she was a permanent employee and started work
in California on February 18, 1988.”27 And she submitted evidence that she had filed taxes in 1988 and
that her son Richard was born in the United States
26
The facts of Ms. Peralta Gandarilla’s case are detailed in
Peralta Gandarilla v. Gonzales, 233 F. App’x 670 (9th Cir. 2007)
and Petitioner’s Opening Brief in Support of Appeal, Peralta
Gandarilla v. Gonzalez, 233 F. App’x 670 (9th Cir. 2007) (No. 0574351), 2005 WL 4586430.
27
Peralta Gandarilla, 233 F. App’x at 671.
15
that same year. Nonetheless, the immigration judge
denied Ms. Peralta Gandarilla’s application on the
ground that she had failed to establish the required
physical presence, and the BIA upheld the determination. Ms. Peralta Gandarilla filed a petition for review
with the Ninth Circuit. The court found it had
jurisdiction over the eligibility determination relating
to physical presence and reversed.28 Had the court
followed the Eleventh Circuit’s interpretation of
subsection (B)(i), Ms. Peralta Gandarilla would have
had no recourse to challenge the erroneous agency
finding.
Antonio Romano-Varian also successfully challenged the denial of his application for 10-year cancellation of removal for failure to show the requisite
physical presence.29 Mr. Romano-Varian came to the
United States from Mexico on September 4, 1989 and
never departed. He soon met Santa Canete, and they
had three children, all born in New Jersey. On June 12,
2002, immigration officials served Mr. Romano-Varian
with a notice to appear, and he applied for cancellation
of removal. At the time of Mr. Romano-Varian’s court
hearing, his daughter Wendy was age 10, his daughter
Denise was age 9, and his son Edwin was age 5. Wendy
suffered from a speech disorder and was undergoing
28
Id.
The facts of Mr. Romano-Varian’s case are detailed in
Romano-Varian v. Att’y Gen., 155 F. App’x 620 (3d Cir. 2005) and
Brief and Appendix Volume I on Behalf of Petitioner, RomanoVarian v. Att’y Gen., 155 F. App’x 620 (3d Cir. 2005) (No. 04-3208),
2005 WL 4862528.
29
16
speech therapy. Edwin had been diagnosed with acute
anxiety disorder and had significant oral health
problems that could pose “great health risks” if left
untreated.30 Mr. Romano-Varian submitted a letter
from his New Jersey employer, Pierson Industries,
stating that he had been employed since September
1989, when he had entered the country. Mr. RomanoVarian and three additional witnesses testified about
his physical presence in the United States. The immigration judge found Mr. Romano-Varian and his
witnesses truthful but nonetheless denied relief,
finding that Mr. Romano-Varian had not met his
burden of establishing ten years of physical presence
because his employer was not present in court and the
employer’s letter was not notarized. After the BIA
affirmed the judge’s decision, Mr. Romano-Varian filed
a petition for review with the Third Circuit. The court
reversed the BIA’s finding on physical presence and
remanded for a new hearing, stating that “[b]ased on
the [immigration judge’s] own view that Mr. Romano’s
witnesses testified truthfully, the letter from Mr.
Romano’s employer, and the common-sense assumption that Mr. Romano did not arrive in the United
States on the day of his first child’s conception” the
judge’s denial was neither reasonable nor supported
by substantial evidence.31 Other courts have also
reversed the agency’s physical presence findings. See,
e.g., Meyers v. Sessions, 904 F.3d 1101 (9th Cir. 2018);
30
Brief and Appendix Volume I on Behalf of Petitioner,
supra note 29, at 5.
31
Romano-Varian, 155 F. App’x at 624.
17
Ortega-Guillen v. Holder, 315 F. App’x 619 (9th Cir.
2009); Diaz v. Mukasey, 280 F. App’x 643 (9th Cir.
2008); Luna v. Mukasey, 279 F. App’x 487 (9th Cir.
2008); Galaz v. Gonzales, 176 F. App’x 822 (9th Cir.
2006).
Important questions relating to the “good moral
character” requirement also require review.32 Manuel
Martinez came to the United States from his home
country of Mexico in February 1987.33 He left for a
period of two and half months in 1988 and then
returned on a temporary visa. Since his last entry in
1988, he has lived in the United States and worked to
support his family. He was the sole caregiver to his two
U.S.-born children, born in 1991 and 1993. At the time
of the hearing, one of his children had a cleft palate,
which required two surgeries, and would require more
in the future. He filed his income tax returns every
year since 1989, earned certificates for improving
his computer and English skills, and volunteered in
his community. Mr. Martinez had no criminal record.
At his hearing, the U.S. Immigration and Customs
Enforcement (“ICE”) attorney acknowledged that
there was “no issue with regard to the 10 years and the
good moral character.”34 Despite ICE’s concession and
32
8 U.S.C. § 1229b(b)(1)(B).
The facts of Mr. Martinez’s case are detailed in Martinez
v. Ashcroft, 114 F. App’x 313 (9th Cir. 2004) and Opening Brief of
Petitioner, Martinez v. Ashcroft, 114 F. App’x 313 (9th Cir. 2004)
(No. 02-73265), 2004 WL 1125458.
34
Opening Brief of Petitioner, supra note 33, at 6-7 (internal
citation omitted).
33
18
Mr. Martinez’s stellar record, the immigration judge
determined that Mr. Martinez lacked good moral
character. The judge cited an alleged inconsistency in
the record regarding Mr. Martinez’s physical presence
to find that he had not been truthful about having been
in the country for the necessary ten years. The BIA
upheld the judge’s decision. But the Ninth Circuit
reversed, finding that the negative credibility finding
was not supported by substantial evidence.35
Martin Gonzalez-Maldonado also successfully
challenged the finding that he was ineligible for
cancellation as lacking good moral character.36 Mr.
Gonzalez-Maldonado came to the United States in
1989 at the age of 14. In 2001, he met with an attorney
in California in an attempt to file for lawful status.
His attorney helped him fill out an application for
asylum and advised him to use his office’s address in
California, even though Mr. Gonzalez-Maldonado was
living in New Mexico at the time. The asylum office
denied his application and ICE started removal proceedings. Mr. Gonzalez-Maldonado sought cancellation of removal. The immigration judge said he was
“favorably impressed” with Mr. Gonzalez-Maldonado,
as he was a nationally recognized employee of the
Marriott Corporation and had worked hard to support
his family.37 But the judge ruled that Mr. GonzalezMaldonado was ineligible for cancellation, finding that
35
Martinez, 114 F. App’x at 315.
The facts of Mr. Gonzalez-Maldonado’s case are detailed in
Gonzalez-Maldonado v. Gonzales, 487 F.3d 975 (5th Cir. 2007).
37
Id. at 978.
36
19
he had given false testimony about his address to
the asylum officer.38 The BIA affirmed the denial. Mr.
Gonzalez-Maldonado filed a petition for review with
the Fifth Circuit. The court reversed the agency’s
finding regarding good moral character, ruling that the
evidence compelled the conclusion that Mr. GonzalezMaldonado had not provided false testimony regarding
where he lived for the purpose of obtaining an immigration benefit but rather for the convenience of his
lawyer.39 The Eleventh Circuit’s interpretation of
subsection (B)(i), however, would erroneously prevent
other cancellation applicants from obtaining judicial
review to challenge a negative good moral character
finding.
C. Courts Have Jurisdiction Over Hardship Questions.
Courts also retain jurisdiction under subsection
(B)(i) to review the threshold finding that an applicant
for nonLPR cancellation of removal failed to prove
hardship. But many cancellation applicants have
been erroneously denied review. Steven Mkanyia and
Juliana Nyasinga, natives of Tanzania and Kenya
respectively, were a married couple with three U.S.
citizen daughters between 3 and 13.40 Mr. Mkanyia
38
Under 8 U.S.C. § 1101(f )(6) a person is barred from showing good moral character if they give false testimony for the
purpose of obtaining an immigration benefit.
39
Gonzalez-Maldonado, 487 F.3d at 978-79.
40
The facts of Mr. Mkanyia and Ms. Nyasinga’s case are
detailed in Mkanyia v. Gonzales, 140 F. App’x 422 (3d Cir. 2005)
20
entered the United States in 1988 on a visa, worked to
support his family, and paid his taxes annually. Ms.
Nyasinga entered the United States on a visa in 1986
and devoted herself to her children. At their 2002
merits hearing, the couple argued that their daughters
would be forced to undergo female genital mutilation
(“FGM”), a procedure Ms. Nyasinga herself suffered as
a child in Kenya, if they were deported to their native
countries. The immigration judge acknowledged documentary evidence that FGM was carried out in both
countries. However, the judge determined the evidence
was insufficient to demonstrate FGM would be performed on the children because Mr. Mkanyia and Ms.
Nyasinga would not consent to it. The judge made this
finding despite Ms. Nyasinga’s testimony that the
procedure was often carried out against the parents’
wishes. Although the judge found the couple met three
of the four eligibility requirements for cancellation of
removal, the judge denied the application for failure to
prove hardship. The BIA affirmed the decision. On
petition for review, the Third Circuit refused to
consider a challenge to factual findings relating to the
hardship determination on the grounds that subsection (B)(i) stripped it of jurisdiction.41
In another case, the reviewing court “much prefer[red]” the decision of the immigration judge granting cancellation but determined it could not uphold
and Brief and Appendix on Behalf of Petitioners-Appellants,
Mkanyia v. Gonzales, 140 F. App’x 422 (3d Cir. 2005) (No. 042094), 2004 WL 5247586.
41
Mkanyia, 140 F. App’x at 424.
21
the decision after the BIA reversed it, due to subsection (B)(i).42 Gregorio Gurrola-Rosales was a Mexican citizen who entered the United States when he
was 17 years old, obtained steady employment, and
owned his own home.43 The immigration judge found
that Mr. Gurrola-Rosales’ removal would work exceptional and extremely unusual hardship on his threeyear-old U.S. citizen daughter, who had already
undergone 14 surgeries for a potentially life-threatening medical condition that caused recurrent growths
in her larynx and obstructed her breathing. The judge
also found that the child was at risk for diabetes and
that she could not safely return to Mexico with her
father and would suffer psychological and physiological hardship if she were separated from him. The
judge granted relief, but DHS appealed, and the BIA
reversed, finding that Mr. Gurrola-Rosales had not met
the hardship standard. The BIA disagreed with the
judge’s factual findings concerning the severity of the
child’s illness, the psychological harm she would
endure if her father were deported, and the risk
that she would develop diabetes. Mr. Gurrola-Rosales
filed a petition for review with the Seventh Circuit.
Although it dismissed the petition for lack of jurisdiction, the court indicated that it disagreed with
the BIA’s decision, stating that its “[f ]inding that we
42
Gurrola-Rosales v. Holder, 351 F. App’x 98, 101 n.2 (7th
Cir. 2009).
43
The facts of Mr. Gurrola-Rosales’ case are detailed in
Gurrola-Rosales v. Holder, 351 F. App’x 98 (7th Cir. 2009) and
Appellant’s Opening Brief, Gurrola-Rosales v. Holder, 351 F.
App’x 98 (7th Cir. 2009) (No. 09-1644) (on file with counsel).
22
lack jurisdiction to review the BIA’s decision should
not be confused with agreeing with that decision . . .
[W]e much prefer the decision of Judge Brahos.”44
Aura Chavez-Vasquez was denied review of her
cancellation application in another case of serious
medical hardship.45 Ms. Chavez-Vasquez fled Guatemala in 1991 after masked men raped her and
threatened to kill her. She had two children in the
United States, Henry and Melvin. Henry was afflicted
with asthma, prone to respiratory infections, and
suffered from frequent high fevers and vomiting. Prior
to Ms. Chavez-Vasquez’s January 2006 cancellation
hearing, she submitted medical records demonstrating
that Henry required medical attention on 74 occasions
between 2000 and 2005. But the judge found she had
not satisfied the hardship requirement because she did
not demonstrate that Henry’s medical condition would
go untreated in Guatemala, despite her submission of
government reports describing poor health care resources in the country. Ms. Chavez-Vasquez appealed
the decision to the BIA, challenging the conclusion that
she had failed to show Henry could not obtain
adequate medical care in Guatemala. After the BIA
affirmed the IJ’s decision, Ms. Chavez-Vasquez filed a
petition for review with the Seventh Circuit. But the
44
Gurrola-Rosales, 351 F. App’x at 101, 101 n.2.
The facts of Ms. Chavez-Vasquez’s case are detailed in
Chavez-Vasquez v. Mukasey, 548 F.3d 1115 (7th Cir. 2008).
45
23
court dismissed her case on the grounds that it lacked
jurisdiction under subsection (B)(i).46
The cases of Mr. Mkanyia, Ms. Nyasinga, Mr.
Gurrola-Rosales, and Ms. Chavez-Vasquez demonstrate how vital it is that review over eligibility
requirements for discretionary relief be preserved.
III. UNDER THE ELEVENTH CIRCUIT’S ERRONEOUS INTERPRETATION, QUESTIONS
OF LAW WOULD NOT BE REVIEWABLE IN
DISTRICT COURTS.
The Eleventh Circuit’s erroneous interpretation of
subsection (B)(i) has especially devastating effects in
the context of adjustment of status denials by USCIS,
which are directly reviewable only in United States
district courts.47 District courts represent the only
avenue of review for a substantial number of adjustment applications decided by USCIS officers, who are
not judges and usually not attorneys. People who seek
review of a USCIS denial of adjustment cannot file a
petition for review with the court of appeals because a
petition for review is only available to review a final
46
Chavez-Vasquez, 548 F.3d at 1119.
USCIS is an agency of the U.S. Department of Homeland
Security that adjudicates affirmative immigration applications. The
immigration court is part of Executive Office for Immigration
Review, U.S. Department of Justice, and is responsible for
removal proceedings.
47
24
order of removal.48 USCIS denials can only be directly
reviewed via an original action in district court.49
Multiple categories of adjustment applicants have
no choice but to file for adjustment with USCIS and
seek review of a denial in district court. Anyone considered an “arriving alien,” a status that can last for
many years after an individual’s physical arrival,
can only file for adjustment with USCIS. 8 C.F.R.
§ 1.2. Immigration judges lack jurisdiction over their
adjustment. 8 C.F.R. § 1245.2(a)(1)(ii). People in lawful temporary status (such as an H-1B or another
employment-based visa) cannot be put in removal
proceedings and therefore cannot have their cases
decided by an immigration judge. Lastly, people whom
the agency could—but elects not to—put into removal
proceedings must file for adjustment with USCIS
because they are not before an immigration judge.
The Eleventh Circuit’s interpretation of subsection (B)(i) would deprive these applicants of all review,
both factual and legal, contrary to the court’s assertion
that review of legal questions would still be available under its rule. In holding that subsection (B)(i)
bars review of all determinations relating to adjustment of status and other forms of discretionary relief,
the Eleventh Circuit recognized the importance of
48
See 8 U.S.C. § 1252(a)(5) (channeling review of final orders
to the courts of appeals via a petition for review).
49
District courts are empowered to review USCIS action by
the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and have
federal question jurisdiction over such claims pursuant to 28
U.S.C. § 1331.
25
preserving review of legal questions and believed such
review would survive under subsection (D). Patel v.
U.S. Att’y Gen., 971 F.3d at 1275 (“[R]eview [of questions of law] is preserved under our interpretation.”).
This provision states that nothing precludes “review
of constitutional claims or questions of law” if they
are “raised upon a petition for review filed with an
appropriate court of appeals.”50 8 U.S.C. § 1252(a)(2)(D)
(emphasis added). But courts have held that the
“petition for review” limitation means that questions
of law raised in district court fall outside subsection
(D). See, e.g., Lee v. U.S. Citizenship & Immigr. Servs.,
592 F.3d 612, 620 (4th Cir. 2010). As a result, the
provision does nothing to preserve review of legal
questions in district court. In claiming that questions
of law would remain reviewable, the Eleventh Circuit
failed to account for the important legal questions that
arise when district courts review USCIS adjustment
denials.
A case decided by this Court last term illustrates
that important questions of law would be barred by the
Eleventh Circuit’s interpretation of subsection (B)(i).
See Sanchez v. Mayorkas, 141 S. Ct. 1809 (2021). In
Sanchez v. Mayorkas, individuals in Temporary Protected Status (“TPS”) filed suit in district court after
USCIS denied their adjustment of status applications
50
Subsection (D) was added to Section 1252 after this Court’s
decision in INS v. St. Cyr, which noted the strong presumption in
favor of judicial review of administrative action and constitutional concerns where such review is lacking. INS v. St. Cyr, 533
U.S. 289, 298 (2001).
26
on the ground that they had initially entered unlawfully and therefore had not made an “admission” as
required by the adjustment statute. Id. at 1812 (citing
8 U.S.C. §§ 1101(a)(13)(A) and 1255(a)). The district
court reversed the agency, holding that a provision that
requires TPS holders to be considered in “lawful
status” means that they should also be treated as
“inspected and admitted” for adjustment purposes. Id.
The Third Circuit disagreed, creating a circuit split. Id.
This Court granted certiorari and ruled on the merits,
agreeing with the Third Circuit that TPS did not
create an “admission.” Id. Had the Eleventh Circuit’s
interpretation of subsection (B)(i) been in force, the
federal courts would not have been empowered to
resolve the legal question at issue, because it arose
from the denial of adjustment.
The case of Dr. Adil Mohammed Abuzeid demonstrates how a district court combined the Eleventh
Circuit’s interpretation of subsection (B)(i) with subsection (D) to cut off all judicial review of legal
questions for someone whose adjustment application
was denied by USCIS and who had no access to
removal proceedings because he is in lawful status. Dr.
Abuzeid is a trauma surgeon with nationality in the
United Kingdom and Saudi Arabia who came to the
United States on a J-1 exchange visa to complete his
medical residency.51 He is board-certified in general
51
The facts of Dr. Abuzeid’s case are detailed in Abuzeid v.
Wolf, No. 1:18-cv-00382-TJK, 2020 WL 7629664 (D.D.C. Dec. 22,
2020), appeal filed sub nom. Abuzeid v. Mayorkas, No. 21-5003
(D.C. Cir. filed Jan. 12, 2021); Email from Brian Schmitt, Hake &
27
surgery and surgical critical care and serves as an
Assistant Professor in trauma and surgical critical
care at Augusta University Medical Center in Georgia,
where he works 80-hour weeks in the emergency room
doing surgery for patients with life-threatening injuries and illnesses. His patients come from communities in Georgia and South Carolina that have been
designated by the government as medically underserved. Many lack health insurance and are referred
from the Veterans Administration and other local
hospitals that do not have the expertise to perform
the required surgery. As a critical care physician, Dr.
Abuzeid has also been on the front line of the pandemic
for the last year and a half, managing COVID-19
patients in the hospital’s intensive care units. He also
trains general surgery residents, surgical critical care
fellows, medical students, nurses and local paramedics.
Dr. Abuzeid’s spouse, a U.S. citizen born in Arkansas,
is unable to work because of a chronic medical condition.
After his medical residency and before he applied
for adjustment of status, Dr. Abuzeid spent time and
worked in hospitals in his two countries of nationality,
the United Kingdom and Saudi Arabia, for a total of
806 days, thus fulfilling the J-1 visa’s requirement that
an individual return to their country of nationality
Schmitt, to Maureen Sweeney, Dir., Md. Carey Immigr. Clinic
(Aug. 1, 2021, 2:01 PM EST) (on file with counsel); Email from Dr.
Adel Abuzeid, to Maureen Sweeney, Dir., Md. Carey Immigr.
Clinic & Brian Schmitt, Hake & Schmitt (Aug. 4, 2021, 2:14 PM
EST) (on file with counsel).
28
“for an aggregate of at least two years” before they
can become eligible for permanent residency. 8 U.S.C.
§ 1182(e). USCIS, however, has denied multiple adjustment applications by Dr. Abuzeid, interpreting the
foreign residency requirement to require a single
period of residence in the single country of nationality
where the applicant had most recently resided. Dr.
Abuzeid challenged the denials in district court, where
the court held that it was unable to reach the legal
question of eligibility, both because it implicated a
“judgment” regarding a form of relief listed in subsection (B)(i) and because subsection (D) did not
preserve review of legal questions in district court.52
The case is currently stayed on appeal, pending the
outcome of this case.53 If Dr. Abuzeid is ultimately
denied adjustment, he will have to leave the United
States, taking his medical practice and expertise to
benefit the citizens of some other country.
The case of Commandant v. Rinehart illustrates
the fate of a recurring legal question in the hands
of USCIS under the Eleventh Circuit decision in
this case.54 Commandant involves 15 adjustment
52
Abuzeid, No. 1:18-cv-00382-TJK, 2020 WL 7629664, at *4.
Order Granting the Parties’ Joint Motion to Hold Case in
Abeyance, Abuzeid v. Mayorkas, No. 21-5003 (D.C. Cir. May 28,
2021) (on file with counsel).
54
The facts of the case are detailed in Commandant v.
Rinehart, No. 1:20-cv-23630, 2021 WL 422177 (S.D. Fla. Feb. 1,
2021), appeal filed sub nom. Commandant v. District Director,
No. 21-10372 (11th Cir. filed Feb. 3, 2021) and Class Action
Complaint for Declaratory and Injunctive Relief, Commandant v.
53
29
applicants who have been in the United States since at
least 2010 and have been granted TPS, despite having
been previously ordered deported. Plaintiff Carel
Carius, a widower father of two U.S citizen children,
and 14 other individuals from Haiti and Honduras
all have U.S. citizen spouses or children and are
beneficiaries of family-based immigrant petitions, a
prerequisite to adjustment of status. The plaintiffs
sought to adjust under longstanding USCIS policy
recognizing that they meet the requirement of having
been “inspected and admitted or paroled” under the
adjustment statute because their travel outside the
United States and return on advance parole gave
them parole status.55 USCIS denied their adjustment
applications, relying on its new legal interpretation
that plaintiffs were still subject to their prior removal
orders and thus are not considered to have been
paroled, despite their travel on advance parole. The
plaintiffs argued that the denials were based on legal
error and were contrary to longstanding USCIS policy. But the district court held that it was bound by
the Eleventh Circuit’s ruling in this case and had
no jurisdiction under subsection (B)(i) to review the
plaintiffs’ legal claims. USCIS is now free to apply
Rinehart, No. 1:20-cv-2360 (S.D. Fla. Aug. 31, 2020) (on file with
counsel).
55
See Legal Opinion from Paul W. Virtue, Acting Gen.
Counsel, INS to Jim Puleo, Assoc. Comm’r, Examinations, INS,
Temporary Protected Status and Eligibility for Adjustment of
Status under Section 245, INS Gen. Counsel Op. No. 91-27, 1991
WL 1185138, at *2 (Mar. 4, 1991) (interpreting 8 U.S.C. § 1255(a)
for individuals with TPS who travel on advance parole).
30
this legal interpretation with no judicial review, preventing similar TPS holders from obtaining permanent residence.
When district courts have taken jurisdiction—
because they found that statutory eligibility determinations were not subject to the bar—they have been
able to reverse USCIS denials and fix legal errors by
agency officers. Prior to the Eleventh Circuit’s decision
in this case, Roneel Balroop benefited from judicial
review when a district court in Florida reversed
USCIS’s determination that the Child Status Protection Act (“CSPA”) did not apply to his adjustment
application as a derivative beneficiary of his father’s
employment-based visa, which affected his eligibility
because he had since turned 21.56 Gloria del Carmen
Duron successfully challenged the USCIS interpretation of the statutory phrase “seeking admission” to
overcome the agency’s legal conclusion that she was
inadmissible (and ineligible to adjust) for failure to
wait ten years after departure under an order of
removal before seeking admission.57
The case of Ms. Brenda Karr Karr, which arose in
the Eleventh Circuit, demonstrates how that court’s
interpretation of subsection (B)(i) would give the
56
The facts of Mr. Balroop’s case are detailed in Order, Balroop
v. Gonzales, No. 6:07-cv-1203-Orl-28KRS, 2008 WL 11435736 (M.D.
Fla. April 15, 2008) (denying USCIS’s motion to dismiss for lack
of jurisdiction); and Order, Balroop v. Gonzales, No. 6:07-cv-1203Orl-28KRS (M.D. Fla. September 2, 2008) (ordering USCIS to
adjudicate the application under the CSPA) (on file with counsel).
57
Del Carmen Duron v. Nielson, 491 F. Supp. 3d 256, 267
(S.D. Tex. 2020).
31
agency the power to cut off review of legal questions by
choosing not to initiate removal proceedings after an
adjustment application is denied.58 Ms. Karr Karr
contested a USCIS officer’s legal determination that
the statutory ten-year bar to adjustment for having
been unlawfully present in the United States required
her to have waited outside the country for the ten-year
period.59 After USCIS denied her adjustment application, Ms. Karr Karr’s counsel urged the agency to begin
removal proceedings against Ms. Karr Karr so that she
could obtain a ruling on the legal question of her
eligibility from the immigration court. But the government refused to begin removal proceedings for four
years, until Ms. Karr Karr finally filed suit in the
district court. In those proceedings, agency counsel
now concedes that USCIS’ interpretation was wrong
and is not contesting her eligibility. The Eleventh
Circuit’s erroneous interpretation would allow DHS to
continue to evade review of clear legal errors by USCIS
officers by declining to initiate removal proceedings.60
58
The facts of Ms. Karr Karr’s case are detailed in Original
Complaint, Karr Karr v. United States Citizenship & Immigration
Services, No. 1:19-cv-00125-WYD (D. Colo. Jan. 15, 2019) (on file
with counsel); Order, Karr Karr v. United States & Immigration
Services, No. 1:19-cv-000125-PAB (D. Colo. Nov. 27, 2019); Email
from Roy Petty, Petty & Assocs., PLLC, to Maureen Sweeney,
Dir., Md. Carey Immigr. Clinic (July 30, 2021, 2:52 PM EST) (on
file with counsel).
59
See 8 U.S.C. § 1182(a)(9)(B)(i)(II).
60
For other examples, see Jimenez Verastegui v. Wolf, 468
F. Supp. 3d 94, 95 (D.D.C. 2020), appeal dismissed sub nom.
Verastegui v. Wolf, No. 20-5215, 2020 WL 8184637 (D.C. Cir. Dec.
11, 2020); Email from Roy Petty, Petty & Assocs., PLLC, to
Maureen Sweeney, Dir., Md. Carey Immigr. Clinic (July 30, 2021,
32
For adjustment applicants whom the government
cannot—or chooses not to—put in removal proceedings
and for others whose applications cannot be heard in
the immigration courts, the district court is the only
forum for review of any legal error USCIS may make
and the courts’ only chance to correct erroneous legal
interpretations by the agency. Because subsection (D)
does not preserve review of legal errors in district
court, such review is possible only because subsection
(B)(i) does not bar jurisdiction over threshold eligibility
determinations. The Eleventh Circuit’s erroneous
interpretation would strip district courts of jurisdiction to review such errors.
---------------------------------♦---------------------------------
2:52 PM EST) (on file with counsel) (DHS delayed initiating
removal proceedings against a couple thereby preventing review
of adjustment applications denied based on a legal interpretation
of a ground of inadmissibility); Kim v. Gonzales, No. CCB-05-485,
2006 WL 1892426, at *1 (D. Md. June 19, 2006) (noting that it is
“regrettabl[e]” that plaintiffs “would have no further opportunity
to challenge USCIS’s decision and clarify their legal status unless
and until the government initiates removal proceedings against
them”).
33
CONCLUSION
Amicus urges the Court to reverse the decision of
the Eleventh Circuit and find that all threshold
eligibility determinations relating to the enumerated
forms of relief in 8 U.S.C. § 1252(a)(2)(B)(i) are subject
to judicial review.
Respectfully submitted,
ROMY LERNER
Counsel of Record
REBECCA SHARPLESS
IMMIGRATION CLINIC
UNIVERSITY OF MIAMI
SCHOOL OF LAW
1311 Miller Drive, E273
Coral Gables, FL 33146
MAUREEN SWEENEY
IMMIGRATION CLINIC
CHACÓN CENTER FOR
IMMIGRANT JUSTICE
UNIVERSITY OF MARYLAND
CAREY SCHOOL OF LAW
500 W. Baltimore St., 353
Baltimore, MD 21201
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