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

No. 20-979

IN THE

Supreme Court of the United States

_______________

PANKAJKUMAR S. PATEL 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 FORMER EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW JUDGES

AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

_______________

RICHARD W. MARK

Counsel of Record

AMER S. AHMED

CHRIS JONES

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166

(212) 351-4000

rmark@gibsondunn.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................3

I. IIRIRA Properly Balances Executive

Discretion and Article III Review ...........................3

II.

Ensuring Article III Review Over NonDiscretionary Determinations Is Critical to

Correct Errors That Can Occur in

Overburdened Immigration Courts ........................7

CONCLUSION ..........................................................16

APPENDIX OF AMICI CURIAE ..............................1a

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Laboratories v. Gardner,

387 U.S. 136 (1967) ................................................ 7

Aburto-Rocha v. Mukasey,

535 F.3d 500 (6th Cir. 2008) ............................ 5, 16

Benslimane v. Gonzales,

430 F.3d 828 (7th Cir. 2005) ................................ 10

Berishaj v. Ashcroft,

378 F.3d 314 (3d Cir. 2004) ................................. 14

Bowen v. Michigan Acad. of Fam. Physicians,

476 U.S. 667 (1986) ................................................ 7

Buckley v. Valeo,

424 U.S. 1 (1976) .................................................... 8

CDI Info. Servs., Inc. v. Reno,

278 F.3d 616 (6th Cir. 2002) .................................. 5

Commodity Futures Trading Comm’n v. Schor,

478 U.S. 833 (1986) ................................................ 8

Fong Haw Tan v. Phelan,

333 U.S. 6 (1948) .................................................... 8

Gallimore v. Att’y Gen.,

619 F.3d 216 (3d Cir. 2010) ................................. 15

iii

Garcia-Melendez v. Ashcroft,

351 F.3d 657 (5th Cir. 2003) .................................. 5

Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020) ........................................ 2, 7

Iddir v. INS,

301 F.3d 492 (7th Cir. 2002) .................................. 5

INS v. Elias-Zacarias,

502 U.S. 478 (1992) .............................................. 10

INS v. St. Cyr,

533 U.S. 289 (2001) ............................................ 3, 4

Jay v. Boyd,

351 U.S. 345 (1956) ................................................ 4

Kucana v. Holder,

558 U.S. 233 (2010) .................................... 2, 3, 4, 8

Lee v. United States,

137 S. Ct. 1958 (2017) .......................................... 11

Lopez-Birrueta v. Holder,

633 F.3d 1211 (9th Cir. 2011) .............................. 10

Bernardo ex rel. M & K Eng’g, Inc. v. Johnson,

814 F.3d 481 (1st Cir. 2016) .................................. 5

Makwana v. Att’y Gen. of United States,

611 F. App’x 58 (3d Cir. 2015) ............................. 13

Manzanarez-Santos v. Sessions,

714 F. App’x 696 (9th Cir. 2017) ......................... 10

iv

Mayorga v. Att’y Gen.,

757 F.3d 126 (3d Cir. 2014) ................................. 15

McNary v. Haitian Refugee Center, Inc.,

498 U.S. 479 (1991) ............................................ 7, 9

Mendez-Moranchel v. Ashcroft,

338 F.3d 176 (3d Cir. 2003) ................................... 5

Montero-Martinez v. Ashcroft,

277 F.3d 1137 (9th Cir. 2002) ................................ 5

Nasrallah v. Barr,

140 S. Ct. 1683 (2020) ............................................ 7

Nat’l Ins. Co. v. Tidewater Co.,

337 U.S. 582 (1949) ................................................ 8

Niam v. Ashcroft,

354 F.3d 652 (7th Cir. 2004) ................................ 14

Ortiz-Cornejo v. Gonzales,

400 F.3d 610 (8th Cir. 2005) .................................. 5

Peralta Gandarilla v. Gonzales,

233 F. App’x 670 (9th Cir. 2007) ......................... 10

Quinteros v. Att’y Gen. of United States,

945 F.3d 772 (3d Cir. 2019) ........................... 11, 15

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) .......................................... 15

Recinos De Leon v. Gonzales,

400 F.3d 1185 (9th Cir. 2005) .............................. 16

v

Reno v. Am.-Arab Anti-Discrimination Comm.,

525 U.S. 471 (1999) ............................................ 1, 4

Reno v. Cath. Soc. Servs., Inc.,

509 U.S. 43 (1993) .................................................. 8

Rodriguez v. Gonzales,

451 F.3d 60 (2d Cir. 2006) ..................................... 4

Romano-Varian v. Att’y Gen. of United States,

155 F. App’x 620 (3d Cir. 2005) ........................... 10

Romero-Torres v. Ashcroft,

327 F.3d 887 (9th Cir. 2003) .................................. 5

Sabido Valdivia v. Gonzales,

423 F.3d 1144 (10th Cir. 2005) .............................. 5

Singh v. Gonzales,

413 F.3d 156 (1st Cir. 2005) .................................. 5

Ssali v. Gonzales,

424 F.3d 556 (7th Cir. 2005) ................................ 13

United States v. Nourse,

34 U.S. 8 (1835) ...................................................... 9

Valarezo-Tirado v. Att’y Gen. of United States,

6 F.4th 542 (3d Cir. 2021) .................................... 15

Voci v. Gonzales,

409 F.3d 607 (3d Cir. 2005) ................................. 15

Wellness Int’l Network, Ltd. v. Sharif,

135 S. Ct. 1932 (2015) ............................................ 9

vi

Statutes

8 U.S.C. § 1252(a)(2)(B)(i) ........................................... 4

Pub. L. No. 104–208, 110 Stat. 3009 .......................... 4

Regulations

84 Fed. Reg. 31463 (July 2, 2019) ............................. 14

Other Authorities

Amid “nightmarish” case backlog, experts call for

independent immigration courts, A.B.A. News

(Aug. 9, 2019),

https://www.americanbar.org/news/abanews/abanews-archives/2019/08/amid-_nightmarish-casebacklog--experts-call-for-independent-imm/ ....... 12

Anne Edland & Ola Svenson, Judgment and Decision

Making Under Time Pressure Studies and

Findings, in TIME PRESSURE AND STRESS IN

HUMAN JUDGMENT AND DECISION MAKING 29 (Ola

Svenson & A. John Maule eds., 1993) ................. 13

Arnold & Porter, 2019 Update Report: Reforming the

Immigration System UD (Mar. 2019),

https://www.americanbar.org/content/dam/aba/pu

blications/commis-sion_on_immigration/2019_reforming_the_immigra

tion_system_volume_2.pdf................................... 14

vii

Backlog of Pending Cases in Immigration Courts as

of July 2021, The Transactional Records Access

Clearinghouse,

https://trac.syr.edu/phptools/immigration/court_b

acklog/apprep_backlog.php .................................. 12

Beyond, Asylum: Deportation Relief During the

Trump Administration, TRAC (Oct. 29, 2020),

https://trac.syr.edu/ immigration/reports/631/...... 9

Eberhard Feess & Roee Sarel, Judicial Effort and

the Appeals System: Theory and Experiment, 47 J.

LEGAL STUD. 269 (2018) ....................................... 13

EOIR, Statistics Yearbook: Fiscal Year 2018,

https://www.justice.gov/eoir/file/1198896/downloa

d .............................................................................. 9

Jonah B. Gelbach & David Marcus, Rethinking

Judicial Review of High Volume Agency

Adjudication, 96 TEX. L. REV. 1097 (2018).......... 13

United States Department of Justice, Executive

Office for Immigration Review: About the Office,

https://www.justice.gov/eoir/office-of-the-chiefimmigration-judge ............................................... 12

INTEREST OF AMICI CURIAE 1

Amici curiae are thirty-five former immigration

judges (IJs) and members of the Board of Immigration

Appeals (BIA or Board). A complete list of signatories

can be found in the Appendix of Amici Curiae.

Amici have dedicated their careers to the immigration court system and to upholding the immigration laws of the United States of America. Each is intimately familiar with the immigration court system

and its procedures. Together they have a distinct interest in ensuring that claims duly asserted in immigration cases are afforded the level of Article III appellate review required by governing law.

In the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Congress passed

a number of provisions intended to “protect[] the Executive’s discretion from the courts.” Reno v. Am.Arab Anti-Discrimination Comm., 525 U.S. 471, 486

(1999).

One such provision is 8 U.S.C.

§ 1252(a)(2)(B)(i), which eliminates judicial review of

“any judgment regarding the granting of relief” as to

five forms of discretionary relief authorized by statute. Circuit courts around the country have, for many

years, almost uniformly interpreted this provision to

strip federal courts of jurisdiction to review discretionary decisions—but not non-discretionary, predicate

determinations such as, for example, whether a

noncitizen can show 10 years of physical presence in

1

All parties have consented to the filing of this brief. Amici

state that this brief was not authored in whole or in part by counsel for any party, and that no person or entity other than amici,

their members, or its counsel made a monetary contribution intended to fund the preparation or submission of this brief.

2

the United States.

In amici’s experience, this

longstanding approach appropriately respects decisions Congress committed to executive discretion

while preserving Article III review for non-discretionary determinations in proceedings that can carry lifeor-death consequences.

SUMMARY OF ARGUMENT

Congress drew clear boundaries in IIRIRA. The

statute shields executive-branch discretionary decisions in immigration cases from judicial review while

permitting Article III courts to review black-andwhite, non-discretionary determinations that concern

whether non-citizens are eligible for eventual discretionary relief.

This case illustrates that sharp distinction. Both

the Immigration Judge and the BIA found that Mr.

Patel’s testimony was not credible based in large part

on those agency officials’ erroneous interpretation of

Georgia law regarding necessary criteria for a driver’s

license. That misunderstanding of state law—which

drove the outcome of the immigrant’s petition—is precisely the type of predicate non-discretionary determination that Article III courts are well-suited to review.

Permitting judicial review of non-discretionary

determinations also comports with the “well-settled”

and “strong” presumption of judicial review that has

“consistently” been applied to immigration legislation,

“particularly to questions concerning the preservation

of federal-court jurisdiction.” Guerrero-Lasprilla v.

Barr, 140 S. Ct. 1062, 1069 (2020) (quoting McNary v.

Haitian Refugee Center, Inc., 498 U.S. 479, 496, 498

(1991)); Kucana v. Holder, 558 U.S. 233, 251 (2010).

And it avoids the “[s]eparation-of-powers concerns”

3

created by further removing these cases from the judiciary’s domain. Kucana, 558 U.S. at 237.

In amici’s experience, maintaining Article III review of predicate non-discretionary determinations

aids the proper functioning of the immigration adjudication system. Both IJs and the BIA face heavy

caseloads and are under significant pressure to complete cases rapidly. Review by an Article III court of

objective, non-discretionary determinations generally

improves outcomes and builds confidence in a system

of adjudication. There have been numerous important

examples over the years of federal appellate decisions

sharply criticizing IJs or the BIA for error, including

in cases involving erroneous interpretations of state

law and the forms of discretionary relief covered by

§ 1252(a)(2)(B)(i). Amici have experienced firsthand

what it means to operate within the severe resource

constraints applied to the immigration courts. In that

context and amidst that pressure, Article III review of

non-discretionary determinations provides a structure that maintains fair, reasoned, and legally sound

immigration court adjudications.

ARGUMENT

I.

IIRIRA PROPERLY BALANCES EXECUTIVE DISCRETION AND ARTICLE III REVIEW

“Traditionally, courts recognized a distinction between eligibility for discretionary relief, on the one

hand, and the favorable exercise of discretion, on the

other hand.” INS v. St. Cyr, 533 U.S. 289, 307 (2001).

As such, “[e]ligibility that was ‘governed by specific

statutory standards’ provided ‘a right to a ruling on

an applicant’s eligibility,’ even though the actual

granting of relief was ‘not a matter of right under any

4

circumstances, but rather is in all cases a matter of

grace.’” Id. at 307–08 (quoting Jay v. Boyd, 351 U.S.

345, 353–354 (1956)).

This distinction is reflected in the statutory provision at issue here. In 1996, Congress amended the

Immigration and Nationality Act by enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Pub. L. No. 104–208, 110 Stat. 3009.

The “theme” of IIRIRA is “protecting the Executive’s

discretion from the courts.” Reno v. Am.-Arab AntiDiscrimination Comm., 525 U.S. 471, 486 (1999) (emphasis added).

One of the ways it did so was the enactment of 8

U.S.C. § 1252(a)(2)(B). This subsection, titled “Denials of discretionary relief,” contains two subclauses.

The first, at issue here, provides that “no court shall

have jurisdiction to review” “any judgment regarding

the granting of relief” under five statutory provisions

that each “address[] a different form of discretionary

relief from removal, … and each contains language indicating that the decision is entrusted to the Attorney

General’s discretion.” Kucana, 558 U.S. at 246 (2010).

Nine Circuit Courts of Appeal agree that this provision does not generally strip jurisdiction over the

threshold determination of whether a noncitizen has

shown that he or she “meets the statutory eligibility

requirements” that would authorize the executive to

subsequently make a discretionary decision as to

whether relief should be granted in that particular

case. Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir.

5

2006) (per curiam).2 Put differently, while all the

Courts

of

Appeals

agree

that

8

U.S.C.

§ 1252(a)(2)(B)(i) strips jurisdiction over discretionary

determinations, the overwhelming majority have concluded that that provision does not bar Article III review of “nondiscretionary factors,” Mendez-Moranchel, 338 F.3d at 178, or “nondiscretionary determinations underlying” a subsequent discretionary determination, Ortiz-Cornejo, 400 F.3d at 612.

This statutory scheme makes sense. Because

“Congress has to structure and allocate the resources

of our immigration system,” “judicial review may be

thought to be warranted in some, but not all, situations.” Bernardo ex rel. M & K Eng’g, Inc. v. Johnson,

814 F.3d 481, 494 (1st Cir. 2016). IIRIRA did just

that. See, e.g., CDI Info. Servs., Inc. v. Reno, 278 F.3d

616, 618 (6th Cir. 2002) (IIRIRA “enacted to protect

the discretion of the Executive” through “provisions

limiting or eliminating judicial review of particular …

decisions”). In § 1252(a)(2)(B)(i), Congress defined

protected agency territory by removing judicial review

over “subjective question[s] that depend[] on the value

judgment of the person or entity examining the issue,”

Romero-Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir.

2003) (cleaned up), while retaining judicial review

over the predicate non-discretionary determinations

2

See also Singh v. Gonzales, 413 F.3d 156, 160 n.4 (1st Cir.

2005); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir.

2003); Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661 (5th Cir.

2003); Aburto-Rocha v. Mukasey, 535 F.3d 500, 502 (6th Cir.

2008); Iddir v. INS, 301 F.3d 492, 497 (7th Cir. 2002); OrtizCornejo v. Gonzales, 400 F.3d 610, 612 (8th Cir. 2005); MonteroMartinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002); Sabido

Valdivia v. Gonzales, 423 F.3d 1144, 1149 (10th Cir. 2005).

6

that undergird discretionary judgments. This division prevents Article III courts from second-guessing

subjective determinations—such as whether discretionary relief is appropriate in any particular case—

while preserving the ability of those courts to correct

errors involving legal principles or objective factual

determinations that are antecedent to those discretionary determinations.

This case illustrates why § 1252(a)(2)(B)(i) should

not be read to foreclose Article III review of all agency

determinations that in any way touch upon the forms

of relief specified therein. Mr. Patel testified that he

inadvertently indicated that he was a U.S. citizen on

his Georgia driver’s license application. In rejecting

that testimony as unpersuasive, the Immigration

Judge completely misread Georgia law. Specifically,

the IJ incorrectly concluded that Mr. Patel could not

have obtained a Georgia driver’s license “had [he] disclosed that he was neither a citizen [n]or a lawful permanent resident o[f] the United States.” Pet. App

116a. In other words, the IJ misconstrued Georgia

law as requiring U.S. citizenship or permanent residency for a driver’s license, and on that basis concluded that Mr. Patel must have been lying when he

testified that his conduct was innocent. The BIA majority agreed with this misinterpretation of Georgia

law, concluding that the “implication of the questions

set forth in the driver’s license application is that [Mr.

Patel] needed to show that he was either a citizen or

a lawfully admitted alien in order to obtain the

driver’s license.” Id. 108a.

In dissent, one Board member explained that this

conclusion was objectively wrong, as Georgia law only

7

required “lawful presence in the United States” to receive a driver’s license—not U.S. citizenship or permanent residency—and Mr. Patel had unquestionably

satisfied that lawful-presence requirement through

his “valid employment authorization document and a

pending adjustment of status application.” Id. 109a110a (Wendtland, Board Member, dissenting).

The non-discretionary determination embedded

within the IJ’s and the BIA’s ultimate conclusion—

whether Georgia law required Mr. Patel to show he

was a citizen or a lawful permanent resident in order

to be eligible for a driver’s license—is precisely the

type of non-discretionary determination that Article

III courts are well equipped to review. Cf. Nasrallah

v. Barr, 140 S. Ct. 1683 (2020) (8 U.S.C.

§ 1252(a)(2)(C)-(D) does not preclude judicial review of

facts underlying Convention Against Torture orders).

II. ENSURING ARTICLE III REVIEW OVER NON-DISCRETIONARY DETERMINATIONS IS CRITICAL TO

CORRECT ERRORS THAT CAN OCCUR IN OVERBURDENED IMMIGRATION COURTS

“From the beginning,” the Court has established

that “judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of

Congress.” Bowen v. Michigan Acad. of Fam. Physicians, 476 U.S. 667, 670 (1986) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967)).

As a result, there is a “well-settled” and “strong”

presumption favoring judicial review of administrative action. Guerrero-Lasprilla, 140 S. Ct. at 1069 (citing McNary, 498 U.S. at 496, 498). Indeed, the Court

8

has “consistently” applied this presumption to “legislation regarding immigration, and particularly to

questions concerning the preservation of federal-court

jurisdiction.” Kucana, 558 U.S. at 251; see also Fong

Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (“[S]ince the

stakes are considerable for the individual, we will not

assume that Congress meant to trench on his freedom

beyond that which is required by the narrowest of several possible meanings of the words used.”). To that

end, the Court “assumes that ‘Congress legislates

with knowledge of’ the presumption,” and thus requires “‘clear and convincing evidence’ to dislodge the

presumption.” Kucana, 558 U.S. at 251 (citing Reno v.

Cath. Soc. Servs., Inc., 509 U.S. 43, 64 (1993)).

Relatedly, “[s]eparation-of-powers concerns” also

militate “against reading legislation, absent clear

statement, to place in executive hands authority to remove cases from the Judiciary’s domain.” Kucana,

558 U.S. at 237. That is because this Court has understood Article III as “barring congressional attempts ‘to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating’ constitutional courts and thereby prevent[ing] ‘the encroachment or aggrandizement of one branch at the expense

of the other.’” Commodity Futures Trading Comm’n

v. Schor, 478 U.S. 833, 850 (1986) (alteration in original) (citation omitted) (first quoting Nat’l Ins. Co. v.

Tidewater Co., 337 U.S. 582, 644 (1949) (Vinson, C.J.,

dissenting); then quoting Buckley v. Valeo, 424 U.S. 1,

122 (1976) (per curiam)). Accordingly, in the bankruptcy context, for instance, this Court has held that

“Article I adjudicators” may decide claims before them

without “offend[ing] the separation of powers” only “so

long as Article III courts retain supervisory authority

9

over the process.” Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1944 (2015).

Against this backdrop, “it is most unlikely that

Congress intended to foreclose all forms of meaningful

judicial review” in § 1252(a)(2)(B)(i). McNary, 498

U.S. at 496 (emphasis added). Doing so would leave

individuals aggrieved by an incorrect non-discretionary determination with “no remedy, no appeal to the

laws of his country.” United States v. Nourse, 34 U.S.

8, 9 (1835) (Marshall, C.J.). At the same time, it would

remove from Article III courts the “supervisory authority” to check that non-discretionary determinations are correct. Wellness Int’l, 135 S. Ct. at 1944.

The impact of such a ruling would be substantial.

Every year, there are tens of thousands of cases decided that involve requests for discretionary relief under § 1252(a)(2)(B)(i). Between January 2017 and

September 2020, for instance, immigration judges decided over 94,000 such applications.3

By contrast, maintaining the approach that the

vast majority of courts follow in reading

3

See Beyond, Asylum: Deportation Relief During the Trump

Administration, TRAC (Oct. 29, 2020), https://trac.syr.edu/ immigration/reports/631/ (reporting that approximately 72,526

applications for cancellation of removal under 8 U.S.C. § 1229b,

18,482 applications for adjustment of status under 8 U.S.C.

§ 1255, 2,956 applications for waivers under 8 U.S.C. § 1182(h),

and 678 applications for waivers under 8 U.S.C. § 1182(i) were

decided during this period). This figure does not include the

number of applications for voluntary departure under 8 U.S.C.

§ 1229c. In Fiscal Year 2018, over 20,000 such applications were

granted by immigration courts. EOIR, Statistics Yearbook: Fiscal

Year

2018,

at

13,

https://www.justice.gov/eoir/file/1198896/download (last accessed Aug. 28, 2021).

10

§ 1252(a)(2)(B)(i) would allow Article III judges to continue performing a review function with which they

are completely familiar. Cf. INS v. Elias-Zacarias,

502 U.S. 478, 481 n.1, 483–84 (1992) (discussing nature of judicial review of a BIA finding). Indeed, there

are many examples of appellate court decisions addressing significant non-discretionary errors in immigration proceedings involving the statutory eligibility

criteria in § 1252(a)(2)(B)(i). See, e.g., ManzanarezSantos v. Sessions, 714 F. App’x 696, 698 (9th Cir.

2017) (even if BIA correctly refused to credit testimony, remand ordered because “no . . . evidence” in

record, as is required, regarding acceptance of voluntary departure); Lopez-Birrueta v. Holder, 633 F.3d

1211, 1216 (9th Cir. 2011) (IJ and BIA “made several

errors in [their] legal analysis,” including improperly

relying on state law to define key term in federal statute); Peralta Gandarilla v. Gonzales, 233 F. App’x

670, 672 (9th Cir. 2007) (IJ and BIA improperly ignored multiple pieces of evidence in the record which

established physical presence); Romano-Varian v.

Att’y Gen. of United States, 155 F. App’x 620, 624 (3d

Cir. 2005) (denial not supported by substantial evidence given IJ’s “own view . . . witnesses testified

truthfully” and the “common-sense assumption that

Mr. Romano did not arrive in the United States on the

day of his first child’s conception”).

As these cases illustrate, Article III review of nondiscretionary determinations can be critical to ensuring that the “minimum standards of legal justice” are

satisfied. Benslimane v. Gonzales, 430 F.3d 828, 830

(7th Cir. 2005). That is particularly true where, as in

the instant case, the IJ and the BIA majority erred on

a critical legal question of state law—a question alien

11

to the agency’s developed immigration law expertise—

underpinning the discretionary determination that

was made. Because “[d]eportation is always ‘a particularly severe penalty,’” Lee v. United States, 137 S. Ct.

1958, 1968 (2017) (quoting Padilla v. Kentucky, 559

U.S. 356, 365 (2010)), it is crucial that predicate nondiscretionary determinations in a case be reviewable

to ensure that IJs and the BIA do not categorically bar

discretionary relief based on an objectively incorrect

finding, or let an objectively incorrect finding improperly drive the exercise of discretion. Indeed, the BIA

has been described as “[t]he single most important decision-maker in the immigration system,” and it is

doubtful “that any court or any other administrative

tribunal so regularly addresses claims of life-changing

significance, often involving consequences of life and

death.” Quinteros v. Att’y Gen. of United States, 945

F.3d 772, 794 (3d Cir. 2019) (McKee, J., concurring).

It is well within the competence of an Article III court

to recognize that the BIA’s assessment of the record

lacks substantial support or, at a minimum, was inadequately explained, and to require further agency proceedings to correct the error.

If the Court were to adopt the Eleventh Circuit’s

position that § 1252(a)(2)(B)(i) bars Article III review

of any factual determination made by IJs or the BIA

in requests for discretionary relief of the form listed in

that provision, it would remove a critical check on immigration decisions. As amici are aware, blocking Article III court review would insulate the administrative decisionmaking process from independent judicial review of non-discretionary legal determinations.

The practical importance of preserving Article III

review of non-discretionary determinations becomes

12

even clearer when the docket pressures on agency adjudicators are taken into account. In situations where

IJs and the BIA have spent insufficient time considering a case, or failed to write out complete (even if brief)

reasoning for a decision, it is critical that Article III

courts retain the power to review and correct, where

necessary, decisions made by EOIR adjudicators.

Immigration courts face a national backlog of

nearly 1.4 million cases.4 That calculates to an average backlog of over 2,600 cases for each of the approximately 535 immigration judges in the country.5 Immigration judges face a daunting challenge because of

these caseloads. One judge described her experience

as “nightmarish,” explaining that to tackle her wellabove the mathematical average “pending caseload

[of] about 4,000 cases” she had only “about half a judicial law clerk and less than one full-time legal assistant to help [her].”6

By contrast, in 2014, for instance, the entire federal appellate bench only had 54,988 cases, and the

4

Backlog of Pending Cases in Immigration Courts as of July

2021, The Transactional Records Access Clearinghouse,

https://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php (last visited Aug. 27, 2021).

5

United States Department of Justice, Executive Office for

Immigration Review:

About the Office, https://www.justice.gov/eoir/office-of-the-chief-immigration-judge (last updated

Aug. 2, 2021).

6

Amid “nightmarish” case backlog, experts call for independent immigration courts, A.B.A. News (Aug. 9, 2019),

https://www.americanbar.org/news/abanews/aba-news-archives/2019/08/amid-_nightmarish-case-backlog--experts-callfor-independent-imm/.

13

law clerk-to-IJ ratio is 1:4, whereas federal judges

generally have two to four clerks per judge.7

In amici’s respectful view, these docket pressures

further heighten the risk that IJ errors will go unseen

and uncorrected. Although agency adjudicators may

have a better sense of the “overall … landscape” than

federal judges, “the time and resource shortfalls that

afflict agency decision-making may make its adjudicators more error-prone, while federal judges’ comparative surfeit of both improves their relative capacity to

decide cases accurately.”8 Indeed, social science research confirms that “[t]he accuracy of human judgments decreases under time pressure.”9 And the pressures on the immigration adjudication system already

have produced significantly flawed results. See, e.g.,

Makwana v. Att’y Gen. of United States, 611 F. App’x

58, 61 (3d Cir. 2015) (remanding case because of factual error by BIA regarding date visa was revoked);

Ssali v. Gonzales, 424 F.3d 556, 563 (7th Cir. 2005)

(remanding case where a “very significant mistake

suggests that the Board was not aware of the most

7

Jonah B. Gelbach & David Marcus, Rethinking Judicial Review of High Volume Agency Adjudication, 96 TEX. L. REV. 1097,

1111 (2018).

8

Id.

9

Anne Edland & Ola Svenson, Judgment and Decision Making Under Time Pressure Studies and Findings, in TIME PRESSURE AND STRESS IN HUMAN JUDGMENT AND DECISION MAKING

29, 35–36 (Ola Svenson & A. John Maule eds., 1993); see also

Eberhard Feess & Roee Sarel, Judicial Effort and the Appeals

System: Theory and Experiment, 47 J. LEGAL STUD. 269, 270–71

(2018) (concluding from laboratory experiment that penalizing

reversals prompts greater trial-level effort compared with systems with no appeals and systems where reversals are not penalized).

14

basic facts of [petitioner’s] case and deprives its ruling

of a rational basis”); Niam v. Ashcroft, 354 F.3d 652,

656 (7th Cir. 2004) (“[T]he remainder of the immigration judge’s opinion is riven with errors as well, . . .

and these were not noticed by the [B]oard . . . .”); Berishaj v. Ashcroft, 378 F.3d 314, 331 (3d Cir. 2004) (concluding that it was “an embarrassment to the Agency

on multiple levels” where BIA’s summary affirmance

of a stale decision “shirk[ed] its role and duty of ensuring that the final agency determination in an immigration case is reasonably sound and reasonably

current”), abrogated on other grounds by Nbaye v.

Att’y Gen. of U.S., 665 F.3d 57 (3d Cir. 2011).

In an attempt to cut through the backlog, BIA

members have increasingly turned to mechanisms by

which they can affirm the IJ’s conclusion with minimal analysis. For instance, BIA members may fall

back on the option of Affirmance Without Opinion

(“AWO”). As recently as 2011, the percentage of cases

resolved via AWO was low—2 to 5%.10 A new rule,

however (effective as of September 2019), provides

that when a Board member issues an AWO, that decision is “presumed to have considered all of the parties’

relevant issues and claims of error on appeal regardless of the type of the BIA’s decision.”11 Thus, the BIA

can now issue a two-sentence opinion endorsing the IJ

10

Arnold & Porter, 2019 Update Report: Reforming the Immigration System UD 3–7 (Mar. 2019), https://www.americanbar.org/content/dam/aba/publications/commis-si-on_on_immigration/2019_reforming_the_immigration_system_volume_2.pdf.

11

Board of Immigration Appeals: Affirmance Without Opinion,

Referral for Panel Review, and Publication of Decisions as Precedents, 84 Fed. Reg. 31463 (July 2, 2019) (to be codified at 8

C.F.R. pts. 1003, 1292).

15

and rely on a regulatory presumption of regularity, regardless of the record.

Federal courts have long been critical of IJ and

BIA opinions as inadequately reasoned. To be sure,

as amici are familiar, “the large number of cases” on

IJs and BIA’s dockets “imposes practical limitations

on the length” of written opinions. Voci v. Gonzales,

409 F.3d 607, 613 n.3 (3d Cir. 2005). IJs and BIA

members may have spent more time evaluating a case

than the length of an opinion alone would suggest. At

the same time, “every judge must learn to live with

the fact he or she will make some mistakes; it comes

with the territory.” Ramos v. Louisiana, 140 S. Ct.

1390, 1408 (2020). Article III courts play a crucial role

in ensuring that executive-branch productivity mandates do not override the obligation to give due attention to a case; that “crowded dockets or a backlog of

cases” do not “allow an IJ or the BIA to dispense with

an adequate explanation … merely to facilitate or accommodate administrative expediency.” ValarezoTirado v. Att’y Gen. of United States, 6 F.4th 542, 549

(3d Cir. 2021).

The federal reporters are replete with examples

where federal courts have found that BIA opinions

were deficient because they were incorrect about key

determinations in the case or made significant nondiscretionary errors. See, e.g., Quinteros, 945 F.3d at

789 (McKee, J., concurring) (“[I]t is difficult for me to

read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral

and fair tribunal it is expected to be.”); Mayorga v.

Att’y Gen., 757 F.3d 126, 134 (3d Cir. 2014) (reversing

a BIA decision without remand and observing that

16

“[i]deally the BIA would have provided more analysis,

explaining why it accepted the IJ’s (erroneous) reasoning…”) (alteration in original); Gallimore v. Att’y

Gen., 619 F.3d 216, 221 (3d Cir. 2010) (holding that

“[t]he BIA’s analysis in all likelihood rests on an historically inaccurate premise …”); Recinos De Leon v.

Gonzales, 400 F.3d 1185, 1193–94 (9th Cir. 2005) (“By

streamlining the case, the BIA offered no coherent alternative explanation for the decision not dependent

on the IJ’s deficient finding of facts.”).

In amici’s view, the Court should read

§ 1252(a)(2)(B)(i) to permit Article III courts to continue to correct these types of objective predicate determinations that can be critical in requests for ultimate discretionary relief.

CONCLUSION

For the reasons stated above and in Petitioners’

briefs, the Court should reverse the Eleventh Circuit’s

judgment.

Respectfully submitted,

RICHARD W. MARK

Counsel of Record

AMER S. AHMED

CHRIS JONES

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166

(212) 351-4000

rmark@gibsondunn.com

Counsel for Amici Curiae

September 7, 2021

1a

APPENDIX OF AMICI CURIAE

1. The Honorable Steven Abrams served as an

Immigration Judge at the New York, Varick

Street, and Queens Wackenhut Immigration

Courts in New York City from 1997 until 2013.

2. The Honorable Terry A. Bain served as an Immigration Judge in New York from 1994 until

2019.

3. The Honorable Sarah Burr served as an Immigration Judge, and then as Assistant Chief Immigration Judge, in New York from 1994 until

2012.

4. The Honorable Teofilo Chapa served as an Immigration Judge in Miami, Florida from 1995

until 2018.

5. The Honorable Jeffrey S. Chase served as an

Immigration Judge in New York City from 1995

until 2007.

6. The Honorable George T. Chew served as an

Immigration Judge in New York from 1995 until 2017.

7. The Honorable Joan V. Churchill served as an

Immigration Judge from 1980 until 2005 in

Washington DC-Arlington VA, including 5

terms as a Temporary Member of the Board of

Immigration Appeals.

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8. The Honorable Bruce J. Einhorn served as an

Immigration Judge in Los Angeles from 1990

until 2007.

9. The Honorable Cecelia M. Espenoza served as

a Member of the BIA from 2000 until 2003.

10. The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 until

2013. Previously, she served as Chief of the Immigration Unit at the U.S. Attorney’s Office for

the Southern District of New York from 1987

until 1990.

11. The Honorable James R. Fujimoto served as

an Immigration Judge in Chicago from 1990

until 2019.

12. The Honorable Alberto E. Gonzalez served as

an Immigration Judge in San Francisco from

1995 until 2005.

13. The Honorable John F. Gossart, Jr. served as

an Immigration Judge in Baltimore from 1982

until 2013.

14. The Honorable Paul Grussendorf served as an

Immigration Judge in Philadelphia and San

Francisco from 1997 until 2004.

15. The Honorable Miriam Hayward served as an

Immigration Judge in San Francisco from 1997

until 2018.

16. The Honorable Charles Honeyman served as

an Immigration Judge in Philadelphia and New

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York from 1995 until 2020.

17. The Honorable Rebecca Jamil served as an Immigration Judge in San Francisco from 2016

until 2018.

18. The Honorable William P. Joyce served as an

Immigration Judge in Boston, Massachusetts

from 1996 until 2002.

19. The Honorable Carol King served as an Immigration Judge in San Francisco from 1995 until

2017 and was a temporary member of the

Board for six months between 2010 and 2011.

20. The Honorable Elizabeth A. Lamb served as an

Immigration Judge in New York from 1995 until 2018.

21. The Honorable Margaret McManus served as

an Immigration Judge in New York from 1991

until 2018.

22. The Honorable Charles Pazar served as an Immigration Judge in Memphis, Tennessee, from

1998 until 2017.

23. The Honorable Laura Ramirez served as an

Immigration Judge in San Francisco from 1997

until 2018.

24. The Honorable John W. Richardson served as

an Immigration Judge in Phoenix, Arizona

from 1990 until 2018.

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25. The Honorable Lory D. Rosenberg served on

the BIA from 1995 until 2002.

26. The Honorable Susan Roy served as an Immigration Judge from 2008 until 2010 in Newark.

27. The Honorable Paul W. Schmidt served as an

Immigration Judge from 2003 until 2016 in Arlington, VA. He previously served as Chairman

of the BIA from 1995 until 2001, and as a BIA

Member from 2001 until 2003. He served as

Deputy General Counsel of the former INS

from 1978 until 1987, serving as Acting General Counsel from 1979 until 1981 and 1986 until 1987.

28. The Honorable Patricia M. B. Sheppard

served as an Immigration Judge in Boston from

1993 until 2006.

29. The Honorable Ilyce S. Shugall served as an

Immigration Judge in San Francisco from 2017

until 2019.

30. The Honorable Helen Sichel served as an Immigration Judge in New York from 1997 until

2020.

31. The Honorable Denise Slavin served as an Immigration Judge in the Miami, Krome Detention Center, and Baltimore Immigration Courts

from 1995 until 2019.

32. The Honorable Andrea Hawkins Sloan served

as an Immigration Judge in Portland from 2010

until 2017.

5a

33. The Honorable Tuê Phan-Quang served as an

Immigration Judge in San Francisco from 1995

until 2012.

34. The Honorable Polly A. Webber served as an

Immigration Judge in San Francisco from 1995

until 2016.

35. The Honorable Robert D. Weisel served as an

Immigration Judge, and then as an Assistant

Chief Immigration Judge, in New York from

1989 until 2016.