Amicus Curiae Brief — Pankajkumar S. Patel, et al., Petitioners v. Merrick B. Garland, Attorney General
Supreme Court briefSep 7, 2021
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No. 20-979
In the
PANKAJKUMAR S. PATEL, ET AL.,
Petitioners,
v.
MERRICK B. GARLAND, ATTORNEY GENERAL,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
Brief of Amici Curiae
National Immigration Litigation Alliance
& National Immigrant Justice Center
Mary Kenney
Counsel of Record
NATIONAL IMMIGRATION
LITIGATION ALLIANCE
10 Griggs Terrace
Brookline, MA 02446
617-819-4681
mary@immigrationlitigation.org
Counsel for NILA
[Counsel for Amici Curiae continued on next page]
Charles Roth
NATIONAL IMMIGRANT
JUSTICE CENTER
224 S. Michigan Ave.
Ste. 600
Chicago, IL 60604
Matthew P. Gordon
Rachel Dallal
PERKINS COIE LLP
1201 Third Ave.
Ste. 4900
Seattle, WA 98101
Counsel for NIJC
Sopen B. Shah
Will M. Conley
PERKINS COIE LLP
33 E. Main St.
Ste. 201
Madison, WI 53703
Counsel for NILA & NIJC
i
TABLE OF CONTENTS
Page
Interest of Amici Curiae ......................................... 1
Introduction............................................................. 3
Background ............................................................. 5
A.
“Adjustment of status” allows
eligible noncitizens to become
lawful permanent residents .............. 5
B.
AOS has two parts ............................. 7
C.
Individuals who apply for AOS
outside of removal proceedings
must sue in district court to
obtain any review of the denial
of their application ............................ 8
D.
Congress altered the courts’
jurisdiction over certain aspects
of AOS proceedings .......................... 11
E.
The Eleventh Circuit’s interpretation of the jurisdictionlimiting provision leaves some
individuals without any review
of the denial of their adjustment
application ....................................... 14
Summary of Argument ......................................... 16
ii
TABLE OF CONTENTS
(continued)
Page
Argument .............................................................. 18
I.
The effect of the Eleventh Circuit’s
incorrect interpretation of subsection
(B)(i) on individuals who are denied a
Green Card outside of removal
proceedings highlights the decision’s
shortcomings............................................... 18
II.
The Eleventh Circuit’s decision is
wrong as a matter of policy ........................ 22
A.
Precluding review of legally
erroneous decisions will cause
significant personal and societal
arms ................................................. 23
B.
The Eleventh Circuit’s
interpretation encourages
inconsistent outcomes ..................... 27
C.
The personal and societal
effects of the Eleventh Circuit’s
decision are severe ........................... 29
Conclusion ............................................................. 34
iii
TABLE OF AUTHORITIES
Page(s)
CASES
Alimoradi v. USCIS,
No. CV 08-02529, 2008 WL
11336668 (C.D. Cal. Aug. 29, 2008) ................. 24
Duron v. Nielsen,
491 F. Supp. 3d 256
(S.D. Tex. 2020)................................................. 24
Freeman v. Gonzales,
444 F.3d 1031 (9th Cir. 2006)........................... 23
Gomillion v. Lightfoot,
364 U.S. 339 (1960)........................................... 20
Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062 (2020)....................................... 19
Iddir v. INS,
301 F.3d 492 (7th Cir. 2002) ............................ 13
INS v. St. Cyr,
533 U.S. 289 (2001).................................... passim
iv
TABLE OF AUTHORITIES
(continued)
Page(s)
Kucana v. Holder,
558 U.S. 233 (2010)......................................19, 21
Lockhart v. Napolitano,
573 F.3d 251 (6th Cir. 2009) ............................ 23
Mamigonian v. Biggs,
710 F.3d 936 (9th Cir. 2013) ............................ 12
McNary v. Haitian Refugee Ctr., Inc.,
498 U.S. 479 (1991)........................................... 19
Mendez-Moranchel v. Ashcroft,
338 F.3d 176 (3d Cir. 2003) .............................. 12
Mireles-Valdez v. Ashcroft,
349 F.3d 213 (5th Cir. 2003) ............................ 13
Montero-Martinez v. Ashcroft,
277 F.3d 1137 (9th Cir. 2002)........................... 12
Morton v. Ruiz,
415 U.S. 199 (1974)........................................... 26
Neang Chea Taing v. Napolitano,
567 F.3d 19 (1st Cir. 2009) ............................... 23
v
TABLE OF AUTHORITIES
(continued)
Page(s)
N.Y. Legal Assistance Grp. v. Bd. of
Immigr. Appeals,
987 F.3d 207 (2d Cir. 2021) .............................. 26
Ornelas v. United States,
517 U.S. 690 (1996)........................................... 28
Patel v. Garland,
No. 20-979 (U.S. 2021) .................................24, 25
Patel v. INS,
738 F.2d 239 (7th Cir. 1984) .............................. 8
Pinho v. Gonzales,
432 F.3d 193 (3d Cir. 2005) .............................. 23
Reno v. Am.-Arab Anti-Discrimination
Comm.,
525 U.S. 471 (1999)......................................10, 19
Reyes-Vasquez v. Ashcroft,
395 F.3d 903 (8th Cir. 2005) ............................ 13
Robinson v. Napolitano,
554 F.3d 358 (3d Cir. 2009) .............................. 23
Sabido Valdivia v. Gonzales,
423 F.3d 1144 (10th Cir. 2005)......................... 13
vi
TABLE OF AUTHORITIES
(continued)
Page(s)
Santana-Albarran v. Ashcroft,
393 F.3d 699 (6th Cir. 2005) ............................ 13
Sepulveda v. Gonzales,
407 F.3d 59 (2d Cir. 2005) ................................ 12
Succar v. Ashcroft,
394 F.3d 8 (1st Cir. 2005) ................................. 12
Thompson v. Keohane,
516 U.S. 99 (1995)............................................. 28
Verovkin v. Still,
No. C 07-3987, 2007 WL 4557782
(N.D. Cal. Dec. 21, 2007) .................................. 24
Zadvydas v. Davis,
533 U.S. 678 (2001)........................................... 27
STATUTES
5 U.S.C. § 702 ......................................................... 19
5 U.S.C. § 704 ......................................................... 20
6 U.S.C. § 271 ........................................................... 8
6 U.S.C. § 521 ........................................................... 8
vii
TABLE OF AUTHORITIES
(continued)
Page(s)
8 U.S.C. § 245.2 ...................................................... 10
8 U.S.C. § 1101 ......................................................... 8
8 U.S.C. § 1103 ......................................................... 8
8 U.S.C. § 1151 ......................................................... 7
8 U.S.C. § 1153 ..................................................... 7, 8
8 U.S.C. § 1182 ....................................................... 12
8 U.S.C. § 1225 ......................................................... 8
8 U.S.C. § 1229 ....................................................... 10
8 U.S.C. § 1252 ................................................ passim
8 U.S.C. § 1255 ................................................ passim
OTHER AUTHORITIES
151 Cong. Rec. H2813-01 (2005)............................ 27
8 C.F.R. pt. 3 .......................................................... 28
8 C.F.R § 1.2 ............................................................. 9
8 C.F.R. § 103.3 ........................................................ 9
viii
TABLE OF AUTHORITIES
(continued)
Page(s)
8 C.F.R. § 245.2 .................................................. 9, 10
8 C.F.R. § 1245.2 ...........................................4, 10, 20
Aaron G. Leiderman, Preserving the
Constitution’s Most Important Human Right: Judicial Review of
Mixed Questions Under the REAL
ID Act,
106 Colum. L. Rev. 1367 (2006) ....................... 28
Career Opportunities, USCIS,
https://www.uscis.gov/about-us/careers/career-opportunities .................................. 9
Dep’t of Homeland Sec., Legal Immigration and Adjustment of Status
Report Fiscal Year 2020, Quarter 4,
https://www.dhs.gov/immigrationstatistics/special-reports/legal-immigration ............................................................. 6
Examining the Importance of the H-1B
Visa to the American Economy,
Hearing Before the Committee on
the Judiciary of the United States
Senate, One Hundred Eighth Congress, S. Hrg. 108–415 (2003) ........................... 31
ix
TABLE OF AUTHORITIES
(continued)
Page(s)
H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion
Models, USCIS,
https://www.uscis.gov/working-inthe-united-states/h-1b-specialty-occupations ............................................................. 6
H.R. Rep. No. 109–72 (2005) ................................. 13
Job Announcement, USAJOBS,
https://www.usajobs.gov/GetJob/ViewDetails/610448600 ............................... 9
Lauren E. Sasser, Waiting in Immigration Limbo: The Federal Court
Split Over Suits to Compel Action
on Stalled Adjustment of Status
Applications, 76 Fordham L. Rev.
2512 (2008) .............................................5, 6, 7, 30
Laurence H. Tribe, Jurisdictional Gerrymandering: Zoning Disfavored
Rights Out of the Federal Courts,
16 Harv. C.R.-C.L. L. Rev. 129
(1981) ................................................................. 21
x
TABLE OF AUTHORITIES
(continued)
Page(s)
Lawful Permanent Residents (LPR),
DHS, https://www.dhs.gov/immigration-statistics/lawful-permanent-residents ................................................. 6, 7
Madeleine Sumption & Sarah Flamm,
The Economic Value of Citizenship
for Immigrants in the United
States, Migration Pol’y Inst. (Sept.
2012), https://www.migrationpolicy.org/pubs/citizenship-premium.pdf ........................................................... 30
Number of I-485 Applications to Register Permanent Residence or Adjust
Status by Category of Admission
Case Status, and USCIS Field Office or Service Center Location January 1 - March 31, 2021, U.S. Citizenship and Immigration Servs.,
https://www.uscis.gov/sites/default/files/document/reports/I485_performancedata_fy2021_qtr2.pdf ........................................ 26
xi
TABLE OF AUTHORITIES
(continued)
Page(s)
Oxford Essential Quotations, Franklin
D. Roosevelt, Daughters of the
American Revolution Convention,
Washington, D.C., 21 April 1938
(4th ed. 2016), https://www.oxfordreference.com/view/10.1093/acref/97801
91826719.001.0001/q-oro-ed400008907 ........................................................... 31
Patrick C. Wohlfarth, How the Prospect of Judicial Review Shapes
Bureaucratic Decision Making,
(2010) (Ph.D. dissertation, University of North Carolina), available at
https://doi.org/10.17615/h706-4949 .................. 25
xii
TABLE OF AUTHORITIES
(continued)
Page(s)
Pooja B. Vijayakumar & Christopher
J. L. Cunningham, An Indentured
Servant - The Impact of Green Card
Waiting Time on the Life of Highly
Skilled Indian Immigrants in the
United States of America, Indus.
and Organizational Psych. Translational Rsch. and Working Papers
(2019),
https://scholar.utc.edu/cgi/viewcontent.cgi?article=1002&context=iopsy .....................................................30, 32
Stephen H. Legomsky, Fear and
Loathing in Congress and the
Courts: Immigration and Judicial
Review, 78 Tex. L. Rev. 1615 (2000) ................ 27
Stuart Anderson, Immigrants and Billion Dollar Startups, Nat’l Found.
for Am. Pol’y (Mar. 2016),
https://www.immigrationresearch.org/system/files/Immigrants-and-Billion-DollarStartups.NFAP-PolicyBrief.March-2016.pdf........................................ 31
xiii
TABLE OF AUTHORITIES
(continued)
Page(s)
U.S. Dep’t of Labor, “H-1B Program,”
available at https://www.dol.gov
/agencies/whd/immigration/h1 ......................... 32
V. Vivek Wadhwa, A Reverse Brain
Drain, Issues in Sci. & Tech.
(2009), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1358382 ............................................ 32
Visas for Fiancé(e)s of U.S. Citizens,
USCIS, https://www.uscis.gov/family/family-of-us-citizens/visas-for-fiancees-of-us-citizens ........................................... 6
Working with Immigrant-Origin Clients - An Update for Mental
Health Professionals, Am. Psych.
Ass’n 2 (2013),
https://www.apa.org/topics/immigration-refugees/report-professionals.pdf ................................................................ 29
1
Interest of Amici Curiae1
The National Immigration Litigation Alliance
(“NILA”) is a not-for-profit organization dedicated to
championing the rights of noncitizens and to elevating the capacity and quality of those who represent
them. NILA engages in impact litigation to extend
the rights of noncitizens and to eliminate systemic
obstacles noncitizens routinely face. In addition,
NILA builds the capacity of immigration attorneys
to litigate in federal court by co-counseling individual federal court cases and by providing strategic advice and assistance. NILA has a direct interest in ensuring that noncitizens who are not in removal proceedings have a federal court forum to challenge erroneous agency denials of their applications for immigration benefits.
The National Immigrant Justice Center
(“NIJC”), a program of the Heartland Alliance for
Human Needs and Human Rights, is a Chicagobased not-for-profit organization that provides legal
representation and consultation to immigrants,
1 No counsel for a party authored this brief in whole or in part,
and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No
person other than the amici curiae or its counsel made a monetary contribution to its preparation or submission. All parties
have consented to the filing of this brief.
2
refugees and asylum-seekers of low-income backgrounds. Each year, NIJC represents thousands of
individuals before the immigration courts, Board of
Immigration Appeals, and the U.S. Courts of Appeals, through its offices in Illinois, Indiana, and
California and through its network of nearly 1,500
pro bono attorneys. NIJC’s case load includes hundreds of individuals and families seeking adjustment of status before USCIS. Those adjustment
cases include family-based immigration cases,
asylees and refugees seeking to adjust to permanent
resident status, individuals with “special immigrant
juvenile status” in the U.S. after having been
abused, abandoned, or neglected by their parents,
victims of crime who obtain U-visa status after cooperating with police or prosecutors, and survivors of
human trafficking adjusting status from T visa status to permanent resident status. When NIJC attorneys observe errors in USCIS adjudication, they employ a variety of techniques to attempt to resolve the
errors, including motions to reopen with the agency,
advocacy with the agency, and requests for Congressional intervention. In NIJC’s experience, due to
agency workload and bureaucratic inertia, those informal means are insufficient to correct agency errors in adjudicating adjustment of status applications. Thus, NIJC has an interest in ensuring judicial review of erroneous denials of adjustment of status applications.
3
Introduction
The Patel court’s overbroad and incorrect interpretation of 8 U.S.C. § 1252(a)(2)(B)(i) will foreclose
all judicial review of all issues, including constitutional claims and questions of law, for noncitizens
whose only option for challenging adverse immigration rulings is in federal district court, raising constitutional, statutory, and policy concerns.
The Patel court interpreted subsection (B)(i)’s jurisdiction-limiting provision through the lens of 8
U.S.C. § 1252(a)(2)(D), which allows courts of appeals to review questions of law and constitutional
claims related to adjustment of status in removal
proceedings.2 But subsection (D) does not apply to
the many tens of thousands—or more—noncitizens
who apply for adjustment of status with U.S. Citizenship and Immigration Services (“USCIS”) because they are not in removal proceedings, including
those sponsored by U.S. employers, immediate relatives of U.S. citizens, and victims of human trafficking, among other categories, and who are never
placed in such proceedings, either because they have
lawful status or because immigration officials
“[W]e determine that we lack jurisdiction to review Patel’s
challenges to ‘any judgment regarding the granting of relief’
under § 1255 unless such challenges involve a viable constitutional or legal claim.” Pet. App. 29a (referencing 8 U.S.C. §
1252(a)(2)(D)).
2
4
exercise discretion not to do so.3 These individuals
can challenge denials of their adjustment of status
applications—made by non-judge, non-lawyer officials—only in district court under the Administrative Procedure Act (“APA”) or the Declaratory Judgment Act (“DJA”). But if the Eleventh Circuit’s interpretation were adopted, there would be no avenue
for review of any such denials, no matter how erroneous or capricious.
Congress did not intend this result. As Petitioners and the Eleventh Circuit dissent below point out,
the Eleventh Circuit’s interpretation violates basic
rules of statutory construction. Moreover, the Eleventh Circuit’s interpretation is particularly problematic when applied to individuals whose adjustment
applications are denied by USCIS and who are not
placed in removal proceedings, as it would foreclose
all review of applications for discretionary relief,
even for questions of law or constitutional challenges. Congress is more explicit when it intends to
foreclose all review of any agency action.
The Eleventh Circuit’s erroneous interpretation
is also poor policy, with significant negative consequences. Shielding the clearly erroneous—and unpublished—decisions of administrative officers from
judicial review allows the law to be repeatedly misapplied without any recourse for those adversely
3 In addition, in most cases, “arriving aliens” have no oppor-
tunity for review of this decision, even on removal. See 8 C.F.R.
§ 1245.2(a)(1)(ii).
5
affected and impairs the development of doctrinal
coherence. Hundreds of thousands of affirmative applications for adjustment of status are pending with
USCIS, and the consequences of wrongful denials
are severe: financial and mental distress, employment difficulties, and relegation to immigration
limbo, where applicants may be unable to secure
permanent resident status and are left without a
path to citizenship. As a result, as Congress and this
Court have explained, such denials warrant judicial
scrutiny.
Background
A.
“Adjustment of status” allows eligible noncitizens to become lawful
permanent residents.
Adjustment of Status (“AOS”), outlined at 8
U.S.C. § 1255, is the process allowing noncitizens already physically present in the United States to “adjust” their immigration status to “lawful permanent
resident” (“LPR”), essentially “immigrating from
within.” Lauren E. Sasser, Waiting in Immigration
Limbo: The Federal Court Split Over Suits to Compel
Action on Stalled Adjustment of Status Applications,
76 Fordham L. Rev. 2512, 2514‒15 (2008). LPRs are
also known as “Green Card” holders.4 While some
4 “AOS is an alternative to consular processing, the more tra-
ditional process requiring noncitizens to apply at U.S. consulates overseas before entering the United States.” Sasser, supra, at 2514‒15.
6
noncitizens seek to adjust their status while in removal proceedings, many—if not most—applications
for adjustment are filed outside of removal proceedings—by, for example, an individual in the United
States on a work visa, an immediate relative of a
U.S. citizen, or a victim of human trafficking.5
The benefits of permanent status are significant.
Permanent resident status is a requisite step in the
path to U.S. citizenship. Sasser, supra, at 2515. Permanent residents have the right to travel overseas
freely, to leave the country for long periods, and to
petition for close family members’ immigration. Id.
In addition, permanent status grants freedom from
restrictions on employment. Lawful Permanent Residents (LPR), DHS, https://www.dhs.gov/immigration-statistics/lawful-permanent-residents. For instance, H-1B nonimmigrant visas condition residency in the United States on employment with a
certain employer. See H-1B Specialty Occupations,
DOD Cooperative Research and Development Project Workers, and Fashion Models, USCIS,
https://www.uscis.gov/working-in-the-unitedstates/h-1b-specialty-occupations. Other nonimmigrant visas (like a K-1 fiancé visa or other family visas) require the individual to apply for and regularly
renew an employment authorization document,
without which they cannot legally work. Visas for
5 Dep’t of Homeland Sec., Legal Immigration and Adjustment
of Status Report Fiscal Year 2020, Quarter 4,
https://www.dhs.gov/immigration-statistics/special-reports/legal-immigration.
7
Fiancé(e)s
of
U.S.
Citizens,
USCIS,
https://www.uscis.gov/family/family-of-us-citizens/visas-for-fiancees-of-us-citizens. But permanent residents receive unrestricted work authorization and can change employers or quit their jobs
without affecting their immigration status. Lawful
Permanent
Residents
(LPR),
DHS,
https://www.dhs.gov/immigration-statistics/lawfulpermanent-residents.
B.
AOS has two parts.
There are two parts to getting a Green Card—a
preliminary determination of eligibility and, for
those deemed eligible, a discretionary decision
whether to adjust status. Part one asks whether the
applicant meets statutorily described criteria for eligibility and whether there are any statutory bars to
adjustment of status, see 8 U.S.C. § 1255(c). Briefly,
and in general, the applicant must have been inspected and admitted or paroled into the United
States, be eligible to receive an available immigrant
visa and be admissible to the United States for permanent residence. 8 U.S.C. § 1255(a). The principal
questions are whether the person is “eligible,” “admissible,” and not barred. The three major categories of immigrant visas are: family-sponsored, employment-based, or diversity. Sasser, supra, at 2515.
Most aspects of determining whether an individual is eligible and admissible are clear-cut. For example, whether an applicable visa—for instance, one
based on family sponsorship, see 8 U.S.C. §§ 1151,
8
1153(a)— is immediately available; whether the person has a sponsoring employer whose petition on
their behalf has been approved, see 8 U.S.C.
§ 1153(b); or whether their entry to the United
States was authorized by immigration officials. 8
U.S.C. §§ 1101(a)(13); 1225(a)(3).
Part two allows the Attorney General, through
USCIS—a component of the Department of Homeland Security (“DHS”), see 6 U.S.C. § 271; 8 U.S.C.
§ 1103—or the Executive Office for Immigration Review (“EOIR”), 6 U.S.C. § 521, to decide who among
those eligible should receive relief. The discretion
delegated to the Attorney General is a “matter of
grace.” Patel v. INS, 738 F.2d 239, 242 (7th Cir.
1984). So an individual could meet the statutory eligibility criteria and avoid the statutory bars in Section 1255(c) in part one but still be denied relief.
C.
Individuals who apply for AOS
outside of removal proceedings
must sue in district court to obtain any review of the denial of
their application.
The decision-maker for Green Card applications
varies depending on whether an applicant is in removal proceedings—if they are, an immigration
judge makes the initial call, subject to review by the
Board of Immigration Appeals (“BIA”). If not, USCIS
9
makes the decision. 8 C.F.R. §§ 245.2(a)(1);
1245.2(a)(1).6
For applications submitted outside removal proceedings, a non-attorney, non-judge “Immigration
Services Officer” (“Officer”) at USCIS, decides the
fate of Green Card applicants. Career Opportunities,
USCIS, https://www.uscis.gov/about-us/careers/career-opportunities. The Officer, who need not be an
attorney or other immigration specialist, is typically
stationed at one of 88 field offices or a USCIS Service
Center. See Job Announcement, USAJOBS,
https://www.usajobs.gov/GetJob/ViewDetails/610448600 (requiring “one year of
specialized experience” working in a federal government position at the GS-04 level or a bachelor’s degree).
The Officer issues a letter to the applicant stating
whether the application was granted or denied. 8
C.F.R. § 103.3(a)(1)(i). The letter is not published.
See 8 C.F.R. § 103.3(c) (requiring only “precedent decisions” by USCIS’s appeals office to be published).
6 USCIS also has jurisdiction over most “arriving alien” ap-
plicants, regardless of whether the applicant is in removal proceedings. 8 C.F.R. §§ 245.2(a)(1); 1245.2(a)(1). An “arriving alien” is a noncitizen who applies for admission at a port of entry.
8 C.F.R § 1.2. Because an “arriving alien” may be paroled into
the United States, id., he or she may be present in the country
for many years.
10
A noncitizen whose adjustment application is denied by an Officer has no administrative appeal, and
unless the United States seeks to remove the applicant, no administrative recourse. 8 U.S.C.
§ 245.2(a)(5)(ii). If the applicant is placed in removal
proceedings, then the applicant can renew the adjustment application, in which case EOIR generally
has jurisdiction.7 Id. But applicants have no control
over if, or when, they are placed in removal proceedings. See id. And some adjustment applicants, such
as noncitizens in valid student or temporary-work
status, are not subject to removal at all because they
are in lawful status when their application is denied
by USCIS. See 8 U.S.C. § 1229a(a)(2) (specifying that
removal proceedings are to determine a noncitizen’s
inadmissibility or deportability). For the remainder
who are subject to removal, DHS has sole and unreviewable discretion whether—and when—to initiate
removal proceedings. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-85 (1999).
7 The exception to this rule is if the applicant is an “arriving
alien” in which case the applicant is necessarily deprived of any
review by the Eleventh Circuit’s interpretation—even if placed
in removal proceedings—because (with limited exception) an
immigration judge would have no jurisdiction over the application. See 8 C.F.R. § 245.2(a)(1). For an “arriving alien,” the immigration judge “does not have jurisdiction to adjudicate any
application for adjustment of status filed by the arriving alien”
unless one narrow exception applies. See 8 C.F.R. §
1245.2(a)(1)(ii).
11
And for “arriving aliens” (supra n.7), review is only
ever available in district court.
A challenge to an AOS denial can be lodged in
federal district court under the APA or the DJA by
an applicant not in removal proceedings—this is the
only means of obtaining any review, of any kind, over
a USCIS Officer’s denial outside of removal proceedings. In contrast, an individual whose adjustmentof-status application is denied in removal proceedings can obtain judicial review of that decision
through a petition for review with the court of appeals of the removal order that follows. See 8 U.S.C.
§ 1252(b).
D.
Congress altered the courts’ jurisdiction over certain aspects of
AOS proceedings.
In 1996, Congress passed the Illegal Immigration
Reform and Immigrant Responsibility Act
(“IIRIRA”), which limited federal courts’ jurisdiction
over certain aspects of immigration cases. Specifically, 8 U.S.C. § 1252(a)(2)(B), titled “[d]enials of discretionary relief,” states in relevant part that no
court shall have jurisdiction to review “any judgment regarding the granting of relief under” section
1255, the AOS provision.8 8 U.S.C. § 1252(a)(2)(B)(i).
8 This provision was first enacted in IIRIRA, and the lan-
guage of the relevant subpart, subsection (B)(i), has not been
amended (other than to update cross-references) since then.
12
Subsection (B) also prohibits review of “any other decision or action” that 8 U.S. Code Subchapter II specifies to be in the discretion of the Attorney General
or Secretary of Homeland Security. 8 U.S.C.
§ 1252(a)(2)(B)(ii).
Before the enactment in 2005 of the REAL ID
Act, courts did not interpret subsection (B)(i) to strip
federal district or appellate courts’ jurisdiction over
nondiscretionary legal and factual issues, such as
whether an individual was married to a U.S. citizen.
See Sepulveda v. Gonzales, 407 F.3d 59, 63 (2d Cir.
2005) (holding that subsection (B)(i) does not bar judicial review of legal determination regarding
noncitizen's eligibility for cancellation of removal
and adjustment of status); Mamigonian v. Biggs,
710 F.3d 936, 946 (9th Cir. 2013) (reaffirming preREAL ID Act caselaw regarding subsection (B)(i)
and holding that district court could review nondiscretionary aspects of USCIS’s denial of adjustment
of status); Montero-Martinez v. Ashcroft, 277 F.3d
1137, 1143 (9th Cir. 2002) (interpreting “judgment”
in subsection (B)(i) to apply only to ultimate discretionary determination and not to nondiscretionary
eligibility determinations); see also Succar v. Ashcroft, 394 F.3d 8, 19‒20 (1st Cir. 2005); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir. 2003);
See Pet. App. 18a-19a. The other specified sections all concern
decisions that primarily arise in removal proceedings, and thus
would not be reviewed in district court, or that have separate
jurisdictional bars that prevent district court review. 8 U.S.C.
§§ 1182(h)(2) and (i)(2).
13
Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215 (5th
Cir. 2003); Santana-Albarran v. Ashcroft, 393 F.3d
699, 703 (6th Cir. 2005); Iddir v. INS, 301 F.3d 492,
497‒98 (7th Cir. 2002); Reyes-Vasquez v. Ashcroft,
395 F.3d 903, 906 (8th Cir. 2005); Sabido Valdivia v.
Gonzales, 423 F.3d 1144, 1149 (10th Cir. 2005) (decided after enactment of REAL ID Act but relying on
other circuits’ pre-REAL ID Act caselaw).
In 2005, Congress added a subsection (D) to Section 1252 through the REAL ID Act. Titled “[j]udicial review of certain legal claims,” subsection (D)
states that nothing in the jurisdiction-limiting provision “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.” Id. § 1252(a)(2)(D). Subsection (D) was
enacted as a response to the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001), rejecting
the government’s argument that a jurisdiction-stripping provision of the IIRIRA precluded judicial review. “A construction of the [IIRIRA] amendments
at issue that would entirely preclude review of a
pure question of law by any court would give rise to
substantial constitutional questions.” 533 U.S. at
300. Congress enacted subsection (D) for the express
purpose of giving “every alien a fair opportunity to
obtain judicial review while restoring order and common sense to the judicial review process.” H.R. Rep.
No. 109–72, at 174 (2005), as reprinted in 2005
U.S.C.C.A.N. 240, 299.
14
By its plain language, subsection (D) does not
save judicial review of legal or constitutional questions arising in APA or DJA claims brought by AOS
applicants to challenge denials by USCIS Officers,
since those arise in federal district court, not the
courts of appeals.
E.
The Eleventh Circuit’s interpretation of the jurisdiction-limiting
provision leaves some individuals
without any review of the denial
of their adjustment application.
The Eleventh Circuit’s interpretation of subsection (B)(i) in Patel involved an appeal of a final order
of removal from the BIA—not an appeal from a district court review of a USCIS Officer’s determination. Pet. App. 8a. Patel applied for adjustment prior
to removal, was denied, and then renewed his application after being placed in removal proceedings.
Pet. Br. 12-14. An immigration judge denied his second application, and the BIA affirmed. Id. at 14-15.
On review, the court interpreted subsection (B)(i) to
bar review of any part of the decision to deny Patel’s
adjustment of status under Section 1255—except,
because of subsection (D), for viable constitutional or
legal claims. “[W]e determine that we lack jurisdiction to review Patel’s challenges to ‘any judgment regarding the granting of relief’ under § 1255 unless
15
such challenges involve a viable constitutional or legal claim.” Pet. App. 29a.
In so doing, the court chose the broadest of multiple definitions of the word “judgment,” id. at 25a28a, despite multiple canons of statutory interpretation militating against that choice, id. at 48a (Martin, J., dissenting) (citing presumption in favor of judicial review of administrative actions and principle
of construing any lingering ambiguities in deportation statutes in favor of the noncitizen). The court,
contrary to nine other circuits,9 determined that
“judgment” meant “any decision,” including any determination as to whether Patel met certain binary,
nondiscretionary statutory eligibility criteria.
To justify its choice of the broadest among multiple definitions of the word “judgment,” the Patel
court specifically relied on subsection (D)’s carveout
for appellate court jurisdiction. Id. at 28a-30a. Because, under subsection (D), courts of appeals may
review “questions of law” in appeals of removal orders, the Patel majority deemed its interpretation of
the jurisdiction-limiting provision consistent with
St. Cyr and the “strong presumption in favor of judicial review of administrative action.” Id. at 29a. “Applicants who have been denied a form of discretionary relief enumerated in § 1252(a)(2)(B)(i) can still
obtain review of constitutional and legal challenges
to the denial of that relief, including review of mixed
questions of law and fact.” Id. at 30a.
9 See infra pp. 10-11.
16
But, as noted, subsection (D) does not apply to
district courts. As a result, the Eleventh Circuit’s interpretation of the jurisdiction-limiting provision
forecloses any judicial review of adjustment decisions in non-removal cases and for “arriving aliens,”
even when such challenges involve colorable constitutional or legal claims, leaving those individuals
without any avenue for review and no path to citizenship. As discussed below, this immigration purgatory—or outright denial of review—has profound
negative effects on applicants and their families, and
on society as a whole.
Summary of Argument
In addition to the other problems with its opinion, the Eleventh Circuit majority failed to appreciate the effect of its decision on Green Card applicants who are not in removal proceedings. In endorsing a broad interpretation of subsection (B)(i) that
precludes judicial review of nondiscretionary questions of statutory eligibility, the court relied on subsection (D)’s restoration of jurisdiction to appellate
courts—and only appellate courts—to decide legal
and constitutional questions, apparently overlooking the many noncitizens who are not placed in removal proceedings and therefore can only seek review in district court under the APA or DJA. Without subsection (D)’s backstop, the Eleventh Circuit’s
already shaky rationale crumbles.
17
I. The incorrectness of the Eleventh Circuit’s interpretation of subsection (B)(i) is evidenced by its
effect on individuals who are denied a Green Card
outside of removal proceedings: the deprivation of
any judicial review. Subsection (D), which applies
only to petitions for review filed in the courts of appeals, does not help these individuals because they
can challenge denials only in district court. For that
reason, under the Eleventh Circuit’s view, there is
no judicial review of these important agency decisions, a result that devitalizes the Eleventh Circuit’s
reliance on subsection (D) as an escape hatch from
the strong presumption of judicial review of executive and agency action.
II. The practical consequences of precluding judicial review of unpublished administrative decisions by USCIS Officers are severe. The lack of judicial review leads to “secret agency law” that has
proven to be subject to frequent error. In addition,
an absence of judicial review will lead to less uniformity in these decisions, contrary to Congress’s
goals for immigration law in particular, and important ideals of fairness and equity in general. Inaccurate and inconsistent denials of AOS applications cause severe negative personal and societal
effects, including wrongly leaving those improperly
denied without a path to U.S. citizenship.
18
Argument
I.
The effect of the Eleventh Circuit’s incorrect interpretation of subsection
(B)(i) on individuals who are denied a
Green Card outside of removal proceedings highlights the decision’s shortcomings.
In addition to the reasons discussed by Petitioner
and the Eleventh Circuit dissent, the Eleventh Circuit’s interpretation is incorrect because it deprives
many individuals of any federal court review of their
denied AOS applications.
The Eleventh Circuit’s interpretation is especially unpersuasive when applied to individuals who
apply for AOS outside of removal proceedings, as
those individuals cannot rely on subsection (D) in order to seek judicial review. The Patel majority relied
heavily on subsection (D)’s carveout for appellate jurisdiction to avoid an otherwise irreconcilable conflict with this Court’s precedent favoring judicial review of agency action, but that provision undisputedly does not apply to individuals whose applications are adjudicated by USCIS outside of removal
proceedings. For those applicants, the Patel court’s
interpretation of the jurisdiction-limiting provision
would “entirely preclude review of a pure question of
law by any court,” St. Cyr, 533 U.S. at 300. This result is directly at odds with what the Patel court itself recognized as the “clear import of St. Cyr”—
namely, “that judicial review of questions of law
19
regarding removal orders need[s] to be preserved in
some manner to avoid creating serious constitutional questions.” Patel, 971 F. 3d at 1271.
Indeed, the Eleventh Circuit’s interpretation of
subsection (B) improperly expands the provision’s
jurisdiction-stripping effect and would create circumstances in which there is no judicial review of
any questions—including those of fact or law—contrary to St. Cyr, other decisions of this Court, and
the APA. This Court has “consistently applied” the
“well settled” presumption of reviewability to immigration statutes—including to Section 1252. See
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069‒70
(2020); McNary v. Haitian Refugee Ctr., Inc., 498
U.S. 479, 496‒99 (1991) (stating restrictions on jurisdiction are to be construed narrowly, and the
court will not assume that its jurisdiction has been
repealed unless the statute says so explicitly); Reno
v. Am.–Arab Anti–Discrimination Comm., 525 U.S.
471, 480–82 (1999) (rejecting the Ninth Circuit’s
“broad reading of § 1252(g)”); Kucana v. Holder, 558
U.S. 233, 252 (2010) (rejecting a construction of subsection (B)(ii) that would give the executive “a free
hand to shelter its own decisions from abuse-of-discretion appellate court review” by self-labeling those
decisions “discretionary”). And the APA, under
which individuals challenge the denial of their AOS
applications by USCIS Officers, makes clear that
“[a] person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute . . .
is entitled to judicial review.” APA, 5 U.S.C. § 702
20
(emphasis added); see also APA, 5 U.S.C. § 704 (“final agency action for which there is no other adequate remedy in a court are subject to judicial review”).
As discussed, the Eleventh Circuit’s interpretation forecloses judicial review of any aspect of any
adjustment decision by a USCIS Officer when the
noncitizen is not in removal proceedings, no matter
how arbitrary or unlawful that decision might be.
And it could preclude judicial review for “arriving aliens,” even if their removal is sought. See 8 C.F.R. §
1245.2(a)(1)(ii). In fact, under this interpretation,
the agency could deny an application based on the
color of the applicant’s skin, their religion, country
of origin, or the fact that their first name begins with
a P and never face any judicial scrutiny. As such, the
Eleventh Circuit’s interpretation greatly exceeds the
permissible bounds of jurisdiction stripping, granting Congress broad authority to impair rights of
noncitizens and intrude on the constitutional
bounds of judicial authority. With such broad authority, Congress could then “sanction the achievement . . . of any impairment of . . . rights whatever
so long as it [is] cloaked in the garb of the realignment of [jurisdiction].” Gomillion v. Lightfoot, 364
U.S. 339, 345 (1960).
Moreover, because the “arriving alien” rule—
which deprives immigration courts of jurisdiction to
review AOS application denials even in removal proceedings—is solely the product of regulation, it could
be expanded to encompass a larger class of
21
noncitizens who, under the Eleventh’s Circuit interpretation of subsection (B)(i), would be deprived of
any review at all. This unchecked ability to create
disfavored groups, precluded from judicial review, is
indefensible. Kucana, 558 U.S. at 252 (“If the Seventh Circuit's construction of § 1252(a)(2)(B)(ii) were
to prevail, the Executive would have a free hand to
shelter its own decisions from abuse-of-discretion
appellate court review simply by issuing a regulation declaring those decisions ‘discretionary.’”). Such
an extraordinary delegation of authority cannot be
extracted from the statute. Where noncitizens have
no opportunity for judicial review of clearly incorrect
legal or factual non-discretionary decisions of administrative agents, the power ceded to both the executive and legislative branches would be “literally
boundless.” Laurence H. Tribe, Jurisdictional Gerrymandering: Zoning Disfavored Rights Out of the
Federal Courts, 16 Harv. C.R.-C.L. L. Rev. 129, 133
(1981).
The Eleventh Circuit does not appear to have
considered the implications of such an expansive interpretation: that those who are “arriving aliens,” remain in lawful status, or are considered low-priority
for deportation would be deprived of any judicial review of a bureaucrat’s denial of their path to citizenship. Under this scheme, a foreign student who
meets his U.S.-citizen spouse at university or a
skilled worker whose employer successfully sponsors her for permanent employment would each face
a stark choice in the face of an AOS denial: accept
the impossibility of ever achieving permanent
22
residency or citizenship, or intentionally fall out of
lawful status in the hopes that USCIS will exercise
its discretion to initiate removal proceedings, thus
opening the door to review of the AOS denial.
II.
The Eleventh Circuit’s decision is wrong
as a matter of policy.
In addition to its legal inadequacies, the Eleventh Circuit’s decision is harmful as a matter of policy—and thus unlikely to reflect the intent of Congress—for two reasons. First, it would foment inaccurate application of immigration law. Left uncorrected, erroneous denials of adjustment applications
cause severe individual and societal harms, ranging
from financial and other personal difficulties to a collective detrimental impact on the U.S. economy and
employment due to a chilling effect on lawful immigration. Second, it would increase inconsistent application of immigration law, undermining important immigration policy ideals and goals.
The error-correcting and error-inhibiting functions of independent review are needed to ameliorate the deleterious effects of incorrect decisions and
provide settled guidance to future adjudicators.
Moreover, where a split does develop, independent
review provides an opportunity for resolution via
courts of appeals. These important functions are entirely lost where judicial review is abrogated.
A.
23
Precluding review of legally erroneous decisions will cause significant personal and societal harms.
Without judicial review, incorrect agency decisions will go uncorrected. This is no small matter, as
erroneous agency decisions are not uncommon, and
their consequences are significant. In fact, district
courts regularly find that USCIS Officers wrongly
deny adjustment of status applications based on incorrect interpretations of the law. For instance, in
appeals from district court decisions, courts of appeals have held that USCIS erred in denying adjustment applications based on a finding that the death
of the applicants’ U.S. citizen spouses voided the
“immediate relative” basis for adjustment of status.
See, e.g., Freeman v. Gonzales, 444 F.3d 1031 (9th
Cir. 2006) (reversing district court dismissal); Lockhart v. Napolitano, 573 F.3d 251 (6th Cir. 2009) (affirming district court grant of summary judgment to
plaintiff); Neang Chea Taing v. Napolitano, 567 F.3d
19 (1st Cir. 2009) (affirming district court’s denial of
motion to dismiss and remand to USCIS); but see
Robinson v. Napolitano, 554 F.3d 358 (3d Cir. 2009)
(reversing district court and finding that plaintiff
did not remain an immediate relative under facts of
the case). Similarly, the Third Circuit reversed a
district court’s grant of summary judgment, holding
that USCIS erred in predicating the denial of an application on the applicant’s vacated conviction for a
drug possession charge. See Pinho v. Gonzales, 432
F.3d 193 (3d Cir. 2005).
24
District courts have corrected other dispositive
legal errors by USCIS officers on a variety of occasions. See, e.g., Duron v. Nielsen, 491 F. Supp. 3d
256, 267 (S.D. Tex. 2020) (holding that USCIS misinterpreted the meaning of an “admission” to the
United States where a purportedly improper “admission” was the basis of denial); Alimoradi v. USCIS,
No. CV 08-02529, 2008 WL 11336668, at *6 (C.D.
Cal. Aug. 29, 2008) (holding that USCIS’s regulatory
interpretation of a statutory exception to a bar on
adjustment was impermissibly narrow as applied to
the plaintiff); Verovkin v. Still, No. C 07-3987, 2007
WL 4557782, at *5 (N.D. Cal. Dec. 21, 2007) (finding
remand warranted because USCIS applied the
wrong provision of the statute in denying plaintiff’s
adjustment application). In the absence of judicial
review, these and other injustices have the potential
to remain indefinitely unresolved, leading to a proliferation of incorrect—and uncorrected—administrative decisions.
Errors are, unfortunately, prevalent in administrative agency application of immigration law. The
Amicus Curiae brief filed by the Former EOIR
Judges explains that Immigration Judges and BIA
officers face heavy caseloads and are under substantial pressure to complete cases rapidly. Brief for Former Executive Office of Immigration Review Judges
as Amici Curiae in Support of Petitioner at 2-3, Patel
v. Garland, No. 20-979 (U.S. 2021). These conditions, compounded with resource constraints in immigration court, often result in erroneous interpretations of state and federal law, as evidenced by
25
numerous federal appellate decisions sharply criticizing those errors. Id. at 3. Against this backdrop,
the former Immigration Judges welcome Article III
review of non-discretionary determinations to maintain “fair, reasoned, and legally sound immigration
court adjudications.” Id. It stands to reason that judicial review serves an equally important role for
USCIS Officer decisions, particularly given that
such Officers have less familiarity with and expertise in immigration law than immigration judges.
In fact, the mere prospect of judicial review likely
encourages administrative adjudicators to engage in
more thoughtful, careful, and rational decision-making that is consistent with the law and thus less
likely to be reversed. Patrick C. Wohlfarth, How the
Prospect of Judicial Review Shapes Bureaucratic
Decision Making, (2010) (Ph.D. dissertation, University
of
North
Carolina),
available
at
https://doi.org/10.17615/h706-4949 (showing, via
empirical analyses, that the presence of independent
review significantly affects agency decision making).
That USCIS Officers issue their decisions as unpublished brief letters only heightens the problems
that arise from shielding these—often wrongful—
decisions from judicial review. There is no administrative secondary review within DHS of these decisions. As a result, denials reflecting legal or factual
errors are consigned to the obscurity of the applicant’s immigration file, contributing to the phenomenon of “secret agency law,” which “systematically
limit[s] the access to information of parties opposing
26
the government in immigration proceedings.” N.Y.
Legal Assistance Grp. v. Bd. of Immigr. Appeals, 987
F.3d 207, 223 (2d Cir. 2021). Secret agency law not
only limits the ability of applicants to advocate for
their own interests, but also the ability of USCIS to
self-audit its rulings for consistency and “avoid the
inherently arbitrary nature of unpublished ad hoc
[administrative] determinations.” Morton v. Ruiz,
415 U.S. 199, 232 (1974) (emphasizing that the APA
was adopted to ensure that “administrative policies
affecting individual rights and obligations be promulgated pursuant to certain stated procedures” rather than merely arbitrarily).
And when there are errors, the Eleventh Circuit’s
decision risks leaving the wrongfully denied applicants in a purgatorial immigration status from
which they have no opportunity to seek relief. In the
first quarter of 2021 alone, USCIS denied over
15,000 adjustment of status applications, while
more than 750,000 remain pending. See Number of
I-485 Applications to Register Permanent Residence
or Adjust Status by Category of Admission Case Status, and USCIS Field Office or Service Center Location January 1 - March 31, 2021, U.S. Citizenship
and
Immigration
Servs.,
https://www.uscis.gov/sites/default/files/document/reports/I485_performancedata_fy2021_qtr2.pdf (last visited Aug. 24, 2021).
Unless they are placed in removal proceedings, these
applicants have no opportunity to appeal their denials other than by filing an APA or DJA claim in federal district court. As noted, see supra p. 8, not all
27
AOS applicants are subject to removal upon denial
of their adjustment application; moreover, DHS
chooses not to place many others—who may be subject to removal—in proceedings. As explained, the
Eleventh Circuit’s erroneous reading of the law
would remove the lone forum of review for all these
individuals, leaving them in indefinite immigration
limbo.
B.
The Eleventh Circuit’s interpretation encourages inconsistent outcomes.
Stripping district—and, by extension, appellate—courts of jurisdiction to review USCIS Officers’
denials outside of removal proceedings also promotes inconsistency in decision-making, undermining important immigration policy ideals and goals.
Indeed, doctrinal coherence—the pursuit of orderly
and consistent administration of laws—is especially
important in immigration matters to ensure legal
rights are respected within the complex framework
of national laws and regulations, often applied by local administrative officials such as USCIS Officers.
Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (referencing “Nation’s need to ‘speak with one voice’ in immigration matters”); see also 151 Cong. Rec. H281301, H2872-2873 (2005) (Section 106 of the REAL ID
Act “address[es] the anomalies created by St. Cyr
and its progeny by restoring uniformity and order to
the law.”); see Stephen H. Legomsky, Fear and
Loathing in Congress and the Courts: Immigration
28
and Judicial Review, 78 Tex. L. Rev. 1615, 1631
(2000) (explaining benefits of independent review in
immigration context).
Abrogating judicial review of agency action undermines the twin goals of curbing incorrect agency
decisions and establishing doctrinal coherence. See
e.g. Ornelas v. United States, 517 U.S. 690, 697
(1996) (“de novo review tends to unify precedent and
will…provid[e]… a defined set of rules which, in
most instances, makes it possible to reach a correct
determination.”) (internal quotations omitted); see
Thompson v. Keohane, 516 U.S. 99, 100 (1995) (“As
the Court’s decisions bear out, the law declaration
aspect of independent review potentially may guide
[law enforcement], unify precedent, and stabilize the
law.”); see also Aaron G. Leiderman, Preserving the
Constitution’s Most Important Human Right: Judicial Review of Mixed Questions Under the REAL ID
Act, 106 Colum. L. Rev. 1367, 1399–400 (2006) (“[Independent] review empower[s] courts to ensure that
agencies are applying the law consistently.”).
Indeed, even administrative tribunals that do
publish their decisions are vulnerable to inconsistent and arbitrary interpretations of the law. For
example, the Department of Justice previously
found that the BIA has long struggled to apply even
basic principles coherently and consistently. See
Board of Immigration Appeals: Procedural Reforms
to Improve Case Management; Final Rule, 8 C.F.R.
pt. 3 (2002) (“[T]he Board’s precedent decisions indicate an inability to reach consensus about even
29
fundamental approaches to the law.” (statement of
John Ashcroft, U.S. Attorney General)). It is entirely
plausible, if not likely, that such problems are even
more common among decisions rendered by USCIS
Officers, for whom legal education is not a prerequisite. Precluding judicial review of such decisions
shields them from the vital role of the federal courts
in ensuring correct and consistent interpretation of
the law.
C.
The personal and societal effects
of the Eleventh Circuit’s decision
are severe.
Incorrect and inconsistent USCIS decisions exact
a personal and societal toll. At a personal level, the
American Psychological Association has recognized
that the stresses of the immigration experience “can
cause or exacerbate mental health difficulties, including anxiety, depression, posttraumatic stress
disorder (PTSD), substance abuse, suicidal ideation,
and severe mental illness.” Working with Immigrant-Origin Clients - An Update for Mental Health
Professionals, Am. Psych. Ass’n 2 (2013),
https://www.apa.org/topics/immigration-refugees/report-professionals.pdf. Many noncitizens’
livelihoods depend upon attaining some degree of
permanency in the United States. Indeed, the inability to pursue permanent residency—and by extension citizenship—has a significant and lasting impact on noncitizens’ earnings relative to naturalized
U.S. citizens, with the latter earning 50 to 70
30
percent more than their unnaturalized counterparts. See Madeleine Sumption & Sarah Flamm, The
Economic Value of Citizenship for Immigrants in the
United States, Migration Pol’y Inst. (Sept. 2012),
https://www.migrationpolicy.org/pubs/citizenshippremium.pdf. Some employment disparities are expressly linked to the ability to obtain a Green Card.
For example, Dr. Xiaoqing Tang, a Chinese diabetes
researcher at the University of Kentucky, received a
$300,000 research grant from the National Institutes of Health, contingent on proof of her LPR status or evidence of meaningful progress toward that
end. Sasser, supra, at 2512. For Dr. Tang and others
like her, a USCIS adjustment of status denial is far
more than an administrative inconvenience; it is a
potentially insurmountable barrier to pursuing a
fully realized life and career in the United States.
More generally, applicants awaiting permanent
residency report that the uncertainties of the process—compounded by legally or factually erroneous
agency decisions—cause them financial insecurity
and hinder their ability to invest in a home, or even
a car. See Pooja B. Vijayakumar & Christopher J. L.
Cunningham, An Indentured Servant - The Impact
of Green Card Waiting Time on the Life of Highly
Skilled Indian Immigrants in the United States of
America, Indus. and Organizational Psych. Translational Rsch. and Working Papers (2019),
https://scholar.utc.edu/cgi/viewcontent.cgi?article=1002&context=iopsy. They also report wage
stagnation, obstacles to promotion, and an inability
to start their own businesses or engage in other
31
forms of entrepreneurship. See id. at 27.
The vagaries of the immigration process have
negative implications not only for individual AOS
applicants, but also for U.S. domestic policy. This
nation—which, as Franklin D. Roosevelt recognized,
is “descended from immigrants and revolutionists”—derives enormous wealth and vibrancy from
the innovations of its immigrant residents. Oxford
Essential Quotations, Franklin D. Roosevelt,
Daughters of the American Revolution Convention,
Washington, D.C., 21 April 1938 (4th ed. 2016)
https://www.oxfordreference.com/view/10.1093/acref/9780191826719.001.00
01/q-oro-ed4-00008907 (last visited Aug 26, 2021).
To take but one example, more than half of startup
companies worth $1 billion in 2016 had at least one
immigrant founder, and 71% of those companies had
at least one immigrant in a key management or
product development position. See Stuart Anderson,
Immigrants and Billion Dollar Startups, Nat’l
Found. for Am. Pol’y (Mar. 2016), https://www.immigrationresearch.org/system/files/Immigrants-andBillion-Dollar-Startups.NFAP-Policy-Brief.March2016.pdf. And the H-1B visa program, championed
as having allowed “some of the most talented persons in the world to come to the United States,” allows domestic employers to obtain needed business
skills and abilities from unique individuals not otherwise authorized to work in the United States. Examining the Importance of the H-1B Visa to the
American Economy, Hearing Before the Committee
32
on the Judiciary of the United States Senate, One
Hundred Eighth Congress, S. Hrg. 108–415, 1 (2003)
(statement of Sen. Orrin Hatch); U.S. Dep’t of Labor,
“H-1B Program,” available at https://www.dol.gov
/agencies/whd/immigration/h1b.
But skilled immigrants are increasingly unwilling to tolerate the personal, financial, and bureaucratic stresses associated with the AOS process, and,
as a result, significant numbers of these highly
skilled individuals are contemplating a return to
their home countries, or to more visa-friendly third
countries. See, e.g., Vijayakumar et. al, supra,
https://www.researchgate.net/publication/341611638 (noting that 32% of skilled Indian
immigrants surveyed reported “seriously thinking of
returning to their home country in the next 12
months,” while 70% reported seriously considering
emigrating to a more hospitable third country in the
face of obstacles posed by the U.S. green card process). The loss of such highly skilled immigrants
from just one country, India, would—in a single
year—directly cost U.S. organizations $19–54 billion. Id. at 44. The United States “can no longer expect highly skilled arrivals from other countries to
endure the indignities and inefficiencies of an indifferent immigration system” without looking for opportunities elsewhere. V. Vivek Wadhwa, A Reverse
Brain Drain, Issues in Sci. & Tech. 45, (2009),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1358382. The lack of judicial review for
adjustment of status denials and the concomitant increase in errors and inconsistencies can only
33
exacerbate these “indignities and inefficiencies,”
which risks further chilling lawful immigration by
leaving immigrants with the not unreasonable sense
that the immigration system is not only arduous, but
arbitrary and unjust.
It is, of course, not the role of the courts to set the
direction of the nation’s immigration policy. But it is
entirely appropriate and right that courts should
continue to exercise judicial review over an already
often-arbitrary, lengthy, and confusing process,
providing much-needed consistency and transparency to agency determinations while also ensuring
that the executive branch properly interprets the
conditions that Congress has set for discretionary relief. In doing so, the judiciary indirectly benefits
broader policy aims such as providing denied applicants with an avenue for relief, correcting agency
misinterpretations of relevant law, and alleviating
some of the more extreme bureaucratic obstacles facing would-be permanent residents of the United
States.
34
Conclusion
Amici curiae respectfully ask that the Court reverse the opinion of the Eleventh Circuit and adopt
a construction of 8 U.S.C. § 1252(a)(2)(B) that allows
all applicants for adjustment of status under Section
1255 adequate judicial review by preserving judicial
review of eligibility determinations for discretionary
relief.
September 7, 2021
Respectfully submitted,
Matthew P. Gordon
Rachel Dallal
PERKINS COIE LLP
1201 Third Ave.
Ste. 4900
Seattle, WA 98101
Mary Kenney
Counsel of Record
NATIONAL IMMIGRATION
LITIGATION ALLIANCE
10 Griggs Terrace
Brookline, MA 02446
617-819-4681
mary@immigrationlitigation.org
Sopen B. Shah
Will M. Conley
PERKINS COIE LLP
33 E. Main St.
Ste. 201
Madison, WI 53703
Counsel for
NILA & NIJC
Counsel for NILA
Charles Roth
NATIONAL IMMIGRANT
JUSTICE CENTER
224 S. Michigan Ave.
Ste. 600
Chicago, IL 60604
Counsel for NIJC
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.