Tag Archive for: discretionary decisions

Cyrus Mehta

The Pathos of Patel v. Garland

/0 Comments/in /by

By Stacy Caplow∗

There are many reasons for despair over the Supreme Court’s technocratic decision in Patel v. Garland which strikingly depends on arguments advanced by an amicus rather than the Government. The decision effectively forecloses judicial review of fact-finding by immigration courts or agencies regardless of whether the fact-finding was unreasonable and produced an incorrect legal conclusion.  In 1996, Congress did insulate certain specific discretionary decisions, which already have an almost impossible standard of review in most contexts and, by their nature are highly subjective, from judicial review. But, in Patel, the effort to protect the courts’ dockets from revisiting a “matter of grace” shields incorrect, biased, ignorant, illogical, and indefensible fact-finding by low-level or quasi-judicial officials.

As Justice Gorsuch laments in his surprisingly critical and forceful dissent, life-altering consequences ensue based on the assessment of a single Immigration Judge, or worse immigration functionaries in local offices—in this case the deportation of a person whose ties to the U.S. were substantial and longstanding.  He describes this an “assertion of raw administrative power.”

Mr. Patel made a mistake—checked a wrong box which happens to be the worst wrong box possible: misrepresentation of U.S. citizenship.  His mistake related to a Georgia driver’s license not any immigration benefits.  Apparently, he may even have been entitled to a license without being a citizen.  More importantly, when his misrepresentation was discovered, Georgia declined to prosecute him, crediting his claim of mistake.  That was the end of the road for his good luck.

Anyone familiar with the bureaucracy of the immigration system must cringe at Mr. Patel’s misfortune at every stage thereafter.  The Georgia decision apparently was unpersuasive to immigration authorities who denied lawful permanent residence, and several years later, placed Mr. Patel into removal proceedings.

This is the first cringe: Why did USCIS seek his removal?  Both the agency and then the ICE lawyers in Immigration Court had could have exercised discretion by declining to prosecute.  His basis for removal was unlawful presence making him a low priority for deportation.  The equities of his situation were in his favor.

The next cringe is geographical: While none of the reported decisions specify the jurisdiction of his removal proceedings or name the judge, as a Georgia resident he likely was venued in Atlanta Immigration Court where every judge has a denial rate over 90% in asylum cases.  While his application for relief was Adjustment of Status, this astonishingly miserly grant rate reveals how immigrant-unfriendly the judge who decided that Mr. Patel was untruthful must have been.

From one of the most immigrant-hostile immigration courts, Patel’s case eventually landed in the Eleventh Circuit, whose pro immigrant rulings are below average for all circuits.

The final cringe is ideological:  Despite the Government’s basic agreement with Patel’s legal theory that the law permits judicial review in cases like his, the Court invited an amicus defense of the Eleventh Circuit’s decision, enlisting a former law clerk of Justice Thomas.  Then, early in its opinion the majority states “Amicus’ interpretation is the only one that fits [the statute’s] text and context.” The outcome, however laboriously reasoned, was a foregone conclusion.

While Patel was found incredible by an Immigration Judge, the ramifications of this decision extend far beyond the 3,000 or so Adjustment of Status and the close to 3,000 Cancellation of Removal or related relief matters heard in Immigration Courts yearly, a small percentage of the overall caseload.  Every day, multiple thousands of cases decided by USCIS never reach even Immigration Court let alone the Circuits. These agency determinations rarely are explained or justified.   Bureaucrats—not judges—make life changing decisions invisibly, anonymously, and unaccountably.

This case has a sad ending for Mr. Patel personally.  Maybe one of the nameless agency decision makers will be compassionate enough to exercise their unlimited discretion now and defer deportation.  He may not gain lawful status, but he can remain in the U.S. with his family and his community.

Patel shuts the door firmly and unequivocally, preventing independent review of fact-finding by Immigration Judges, however irrational and indefensible once the Board of Immigration Appeals has affirmed. This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent. Perhaps this case will provide new impetus for reform such as Real Courts, Rule of Law Act of 2022 voted by the House Judiciary Committee in May just days before the Supreme Court’s decision.

∗Guest author Professor Stacy Caplow teaches immigration law at Brooklyn Law School where she has co-directed the Safe Harbor Project since 1997. 

 

 

 

 

 

Cyrus Mehta

Poursina v. USCIS: Federal Courts May Not Have Last Word in Reviewing a Denial of a National Interest Waiver

/0 Comments/in /by

Filing lawsuits in federal court to challenge erroneous denials of visa petitions by USCIS have become more frequent. There is more of a shot at a reversal when a federal judge reviews a denial of the USICS. Under the Administration Procedures Act, a court must set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §706(2)(A). Seeking review in federal court under the APA is far more powerful that appealing a denial to the USCIS’s Administrative Appeals Office, which seldom reverses denials. Sometimes, however, a challenge in federal court can get nixed if the court finds that it has no jurisdiction to review a discretionary decision under §242(a)(2)(B)(ii) of the Immigration and Nationality Act.

In Poursina v. USCIS, the plaintiff sadly found out that a federal court had no jurisdiction to review a denial of his request for a national interest waiver under the jurisdiction stripping §242(a)(2)(B)(ii) because the granting of a national interested waiver is inherently discretionary.

INA 242(a)(2)(B) is reproduced below in its entirety:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-

(i) any judgment regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245, or

(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 208(a) of this title

The Ninth Circuit in Poursina v. USCIS relied on INA 242(a)(2)(B)(ii), which requires that Congress must specify n the statutory provision that the decision must be in the discretion of the Attorney General or Secretary of Homeland Security. At issue is whether Congress specified that the issuance of a national interest waiver under INA 203(b)(2)(1)(A) is a discretionary decision.

If a national interest waiver is granted, a foreign national can waive the employer’s sponsorship through a labor certification in the employment-based second preference. Specifically, INA § 203(b)(2)(1)(A) states that the “Attorney General may, when the Attorney General deems to be in the national interest, waive the requirements….that an alien’s services in the sciences, arts, professions,  or business be sought by an employer in the United States.”  Note that under the Homeland Security Act of 2002, Congress transferred this authority from the Attorney General to the Secretary of Homeland Security.

INA § 203(b)(2)(1)(A) does not contain magic words such as “in the discretion of the Attorney General” to place it within the purview of the jurisdiction stripping provision. Still, the Ninth Circuit in Poursina v. USCIS opined that words like “may” and “deems it so” suggested some measure of judgment, and thus discretion on the part of the Attorney General (now the DHS Secretary) in granting a national interest waiver.  Moreover, the Ninth Circuit was also enamored by the fact that the invocation of “national interest” inherently exudes deference to the Executive Branch, See Webster v. Doe, 486 U.S. 592 (1988),  and further invokes broader economic and national security considerations that are firmly committed to the discretion of the Executive Branch, See Trump v. Hawaii, 138 S. Ct. 2392 (2018).

But assuming the Ninth Circuit’s logic was correct, even within a discretionary decision that may be immune from judicial review under INA 242(a)(2)(B)(ii), there may be purely legal questions that are non-discretionary. Indeed, the precedent decision of the Appeals Administrative Office in Matter of Dhanasar imposed such objective criteria that required the DHS Secretary to measure the national interest claim under those criteria rather than through the exercise of unbridled discretion. A person seeking a national interest waiver mush show:

(1)that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

Notwithstanding these criteria that are similar to other undisputable objective regulatory criteria in determining who is extraordinary under INA § 203(b)(1)(A) and 8 CFR § 204.5(h)(3)(i)-(x), the Ninth Circuit in Poursina v. USCIS strangely held they fell short of a legal standard, and the Dhanasar standards expressly reserved the issuance of the waiver “as a matter of discretion.” But is there not always some discretion in all agency adjudications?  Even under the extraordinary ability standard pursuant to §203(b)(1)(A) there is discretion in determining whether fulfillment of the evidentiary criteria under 8 CFR § 204.5(h)(3)(i)-(x) can survive a final merits determination. See  Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).  Yet, courts have always assumed jurisdiction over appeals challenging denials under extraordinary ability standard.

One should therefore be able to argue that a federal court is not forever precluded from reviewing a denial of a national interest waiver. If  for example the USCIS does not apply the Dhanasar standard whatsoever in a future case, would that then pose a purely legal question or will a court, following  Poursina v. USCIS, throw out the case under INA 242(a)(2)(B)(ii)?  In fact, with respect to a denial of Poursina’s second national interest waiver, Poursina claimed that he never received a request for evidence. The Ninth Circuit ultimately shot down that claim on the grounds that Poursina did not update his address with USCIS in time, but agreed that a constitutional claim, such as this, is not subject to INA §242(a)(2)(b)(ii)’s jurisdictional bar.

One Third Circuit case, Pinho v. Gonzales, 422 F.3d 193 (3d Cir. 2005) is especially noteworthy and discussed in David Isaacson’s blog.  Pinho’s adjustment of status application was denied because he was found to be ineligible as a result of a disqualifying conviction. However, that conviction was vacated and the charges were dismissed, but the adjustment application was still erroneously denied on the ground that his vacated guilty plea still met the definition of “conviction” under the INA.  Pinho was not placed in removal proceedings and he sought review of the denial of his adjustment of status application in federal court under the APA despite the bar on review of discretionary decisions, including adjustment of status under INA §242(a)(2)(B)(i), which is the companion jurisdiction stripping provision to INA §242(a)(2)(B)(ii). The Third Circuit Court held that this denial was based on the legal question of whether Pinho was statutorily eligible for adjustment of status, and thus fell outside the purview of the jurisdiction stripping clause.  The Third Circuit stated, “To treat all denials of adjustment as discretionary, even when based on eligibility determinations that are plainly matters of law, is to fundamentally misunderstand the relationship between the executive and the judiciary.”

Hence, under Pinho, there may still be scope to review a denial of a discretionary national interest waiver denial in federal court if there was a legal error or a constitutional claim. It must be acknowledged that the facts in Pinho were different as that case clearly concerned statutory eligibility without any element of discretion.    It remains to be seen whether a plaintiff can show legal error if the standards set forth in Matter of Dhanasar are not properly evaluated by the USCIS even though the application of those standards require discretion. This argument was not successful in Poursina v. USCIS, as the Ninth Circuit was of the opinion that the Dhanasar standards still smacked of discretion.  Moreover, in Kucana v. Holder, 558 U.S. 233 (2010), the Supreme Court held that only decisions actually declared discretionary by statute can be immunized from judicial review and not decisions made discretionary by regulation. This would also apply in the reverse. A discretionary statute cannot be made non-discretionary by regulation, or by standards set forth by the AAO in precedent decision such as Dhanasar.

While Poursina v. USCIS may have immunized national interest waiver denials from judicial review, the holding should be limited to national interest waivers only and should not impact the ability to challenge denials of other visa petitions in federal court, such as H-1B, L, or EB-1 cases.  The language of INA 214(c)(1) about how a nonimmigrant petition “shall be determined by the Attorney General” is even further away from explicit discretion than the national interest waiver language , and INA §203(b)(1)(A) regarding EB-1 cases doesn’t even have that level of Attorney General authority specified. Thus, in an APA action challenging a religious worker denial under INA §203(b)(4), the Third Circuit in Soltane v. US Dep’t of Justice, 381 F.3d 143 (3rd Cir. 2004) held that the provision did not specify that the Attorney General had discretion.  In Residential Finance Corporation v. USCIS, a federal district court in Ohio reversed a denial of an H-1B case and the court also overrode the objections of the government that it did not have jurisdiction under INA §242(a)(2)(B)(ii). None of the provisions governing approval of an H-1B petition specified that granting a petition is in the discretion of the Attorney General. The court in Residential Finance distinguished the facts from those in CDI Information Services Inc. v. Reno, 278 F.3d 616 (6th Cir. 2002) which refused to review the denial of an H-1B application for extension of stay as the grant of such an extension was within the discretion of the attorney general under INA §214(a)(1).

While one may disagree with the holding in Poursina v. USCIS, seeking review of a denial of a national waiver request in federal court is more likely to fail than the review of denial of other petitions. Even the DC Court of Appeals in Zhu v. Gonzales, 411 F.3d 292 (D.C. Cir. 2005) has agreed. The Ninth Circuit even refused to extend its holding in ANA International v. Way, 393 F.3d 886 (9th Cir. 2004), which held that the visa revocation statute, INA §205, was not subject to the jurisdiction stripping provision although it was linguistically similar to the national interest waiver statute as it did not contain any language suggesting discretion. Thus, unless another circuit court disagrees with Poursina v. USICS and Zhu v. Gonzales, an APA challenge seeking review of a national interest denial, without more, may not succeed. In a future case, an argument can be made that when the statute, which in this case INA § 203(b)(2)(1)(A) does not specify that the grant of a waiver is in the discretion of the Attorney General, the court should not be able to divine discretion from other words in the statute as the Ninth Circuit did in Poursina v. USCIS. This is especially so, when unlike the companion jurisdictional stripping provision under INA §242(a)(2)(B)(i), there is no specific mention of discretionary applications that immunize them from a court’s jurisdiction such as an adjustment of status application or cancellation of removal. Until there is such success, prospective litigants should be made aware that the USCIS’s Appeals Administrative Office rather than a federal court will likely have the final word when USCIS denies a national interest waiver request.

 

 

 

 

 

David Isaacson

SHABAJ V. HOLDER: HAS THE COURT OF APPEALS FOR THE SECOND CIRCUIT SPLIT WITH THE THIRD CIRCUIT ON JUDICIAL REVIEW OF CERTAIN USCIS APPLICATION DENIALS? WHAT SORT OF JUDICIAL REVIEW OF USCIS LEGAL ERRORS REMAINS AVAILABLE?

/1 Comment/in , /by

On January 15, 2013, the Court of Appeals for the Second Circuit issued a precedential decision in the case of Shabaj v. Holder, No. 12-703.  Paulin Shabaj, the plaintiff in the case, had come to the United States in November 2000 with a false Italian passport and sought asylum.  His asylum application was ultimately denied, but while in asylum-only proceedings before an immigration court, he had married a U.S. citizen in July 2005.  Although USCIS determined Mr. Shabaj’s marriage to be bona fide and approved his wife’s I-130 petition, it denied his application for a waiver under INA § 212(i) of his inadmissibility due to his previous fraud, and denied his related application for adjustment of status.  Mr. Shabaj filed a lawsuit in the U.S. District Court for the Southern District of New York, challenging the determination of the USCIS Administrative Appeals Office (AAO) that he had failed to demonstrate that his wife would suffer extreme hardship if he were removed from the United States.  The Second Circuit, in its recent decision, affirmed the District Court’s decision that it lacked jurisdiction to review this denial, even though Mr. Shabaj asserted “that CIS’s decision to deny his section 212(i) waiver application was erroneous as a matter of law.”  Shabaj, slip op. at 4.

As the Second Circuit indicated in Shabaj, there is a specific provision in the second subparagraph of section 212(i) stating that “[n]o court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver [of inadmissibility] under paragraph (1).”  8 U.S.C. § 1182(i)(2).  There is also a more general provision regarding judicial review of discretionary relief, 8 U.S.C. § 1252(a)(2)(B), which provides that “no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under” various sections of the INA providing for discretionary relief, including INA § 212(i).  Shabaj sought to rely on the exception provided by 8 U.S.C. § 1252(a)(2)(D) that preserves jurisdiction over “constitutional claims or questions of law,” but the Second Circuit rejected this argument because § 1252(a)(2)(D) applies to “constitutional claims or questions of law raised upon a petition for review filed in an appropriate court of appeals”; Shabaj had raised his arguments about the denial of his § 212(i) waiver not in a petition for review (his earlier petition for review from the Visa Waiver Program removal order against him having been denied previously, see Shabaj v. Holder, 602 F.3d 103 (2d Cir. 2010)), but in a suit before the district court.  Thus, because Shabaj, having participated in the Visa Waiver Program with his false Italian passport, was unable to seek to reopen his removal order and file a new petition for review, he could not obtain judicial review of the asserted legal errors in the USCIS denial of his § 212(i) waiver and adjustment application.

At first glance, there might appear to be a conflict between Shabaj and the decision of the Court of Appeals for the Third Circuit in Pinho v. Gonzales, 422 F.3d 193 (3d Cir. 2005).  Gummersindho Pinho, the plaintiff in that case, had been arrested and charged with three counts relating to possession of cocaine and intent to distribute it.  His application for New Jersey’s “Pre-Trial Intervention” (PTI) program was rejected because of a subsequently invalidated policy “against accepting into PTI any defendant against whom there was a viable case for possession with intent to distribute drugs at or near a school”,id. at 196, and in 1992 he pled guilty topossession of cocaine. He then sought post-conviction relief in 1997 based on the ineffective assistance of his criminal defense counsel.  At the hearing on Pinho’s ineffective-assistance claim, pursuant to prior discussions between Pinho’s then-counsel and the state prosecutor, it was explained that Pinho had been accepted into PTI, and his conviction was vacated and the charges dismissed.  Nonetheless, Pinho’s 2000 application for adjustment of status was denied by the then-INSon the theory that his 1992 guilty plea met the INA definition of a “conviction” despite having been vacated, rendering him inadmissible and ineligible for adjustment of status.

Pinho was not placed in removal proceedings, and so sought review of the denial of his adjustment application through a lawsuit in District Court “seeking a declaratory judgment that the denial of his adjustment of status was arbitrary, capricious and unlawful because his vacated state conviction should no longer be a bar to his eligibility for adjustment.”  422 F.3d at 198.  Despite the statutory bar on review of discretionary decisions, including the denial of an application for adjustment of status under INA § 245 (which is specifically mentioned among the types of discretionary relief covered by § 1252(a)(2)(B)), the Third Circuit found that the District Court had jurisdiction over this suit.  As the Third Circuit explained:

It is important to distinguish carefully between a denial of an application to adjust status, and a determination that an immigrant is legally ineligible for adjustment of status. This distinction is central to the question of subject-matter jurisdiction, and is easy to elide. Indeed, such distinctions are crucial to administrative law generally; the framework of judicial review of agency action that has evolved over the past half-century is grounded in a sharp distinction between decisions committed to agency discretion, and decisions, whether ‘ministerial’ or ‘purely legal,’ governed directly by the applicable statute or regulation. . . . Whatever the label, our case law distinguishes between actions which an agency official may freely decide to take or not to take, and those which he is obligated by law to take or not to take. In the case of adjustment of status, an eligible immigrant may have his application denied within the discretion of the agency. But the immigrant’s eligibility itself is determined by statute. To treat all denials of adjustment as discretionary, even when based on eligibility determinations that are plainly matters of law, is to fundamentally misunderstand the relationship between the executive and the judiciary.
. . . .

Determination of eligibility for adjustment of status — unlike the granting of adjustment itself —is a purely legal question and does not implicate agency discretion. . . . . The determination at issue here is precisely such a determination: whether under the applicable statutory language as interpreted by the BIA, Pinho was “convicted” so as to render him ineligible for adjustment of status. This is a legal question, not one committed to agency discretion.

Pinho, 422 F.3d at 203-204.  That is, the Third Circuit found that a District Court had jurisdiction over the claim that Pinho had been found ineligible for adjustment of status based on a legal error, even outside the context of removal proceedings.  At first glance, this would seem to reach the opposite result as Shabaj, under analogous circumstances.

The jurisdiction of the Second Circuitincludes New York, Connecticut, and Vermont, while the jurisdiction of the Third Circuit includes New Jersey, Pennsylvania, and Delaware, as well as the U.S. Virgin Islands.  If there is a split between the Second and Third Circuits on this issue, therefore, it would mean that adjustment applicants in New York would have less access to judicial review than adjustment applicants in New Jersey.  There may, however, be a way to read Shabajand Pinho in harmony with one another.

Although it is not entirely clear from the decision in Shabaj what sort of legal error was alleged, there does not seem to have been any dispute that Mr. Shabaj required a waiver of inadmissibility due to his past fraud, or that his U.S. citizen wife was actually his wife and was actually a U.S. citizen.  Rather, the dispute was over whether he had sufficiently established that his wife would suffer extreme hardship if he were removed—a decision that the Second Circuit had held to be discretionary, see Camara v. Dep’t of Homeland Sec., 497 F. 3d. 121 (2d Cir. 2007).  In Pinho, on the other hand, the dispute was over whether Mr. Pinho was inadmissible at all.  The disputed determination of eligibility for adjustment in Pinho was, one might say, logically prior to the discretionary decision on the ultimate adjustment application, while the disputed determination of hardship in Shabaj was itself one that is deemed discretionary.

In the context of § 1252(a)(2)(D) jurisdiction over constitutional claims and questions of law raised on a petition for review, it is possible for a reviewable legal error to exist even within a discretionary determination, if the adjudicating authority has used an incorrect legal standard or has committed some other legal error in making the discretionary determination.  In Pareja v. Att’y Gen., 615 F.3d 180 (3d Cir. 2010) (in which this author was counsel for the petitioner), for example, the Third Circuit found jurisdiction to hold that the agency could not consider the petitioner’s number of qualifying relatives as a factor necessarily weighing against her ability to establish exceptional and extremely unusual hardship to a qualifying relative for purposes of cancellation of removal under INA § 240A(b)(1)(D).  Similarly, the Second Circuit in Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009), found that the agency had made an error of law in its determination of exceptional and extremely unusual hardship “where . . . some facts important to the subtle determination of ‘exceptional and extremely unusual hardship’ have been totally overlooked and others have been seriously mischaracterized,” id. at 323.  Shabajmay stand for the proposition that the sort of legal error at issue in Pareja or Mendez, which is a part of the hardship analysis or other discretionary analysis, cannot be the basis of a lawsuit in district court; this is not necessarily inconsistent with the idea that a legal error like that at issue in Pinho, which is part of an eligibility determination logically prior to the discretionary analysis, can be the basis of such a lawsuit.  One could certainly argue with some force that the Pareja/Mendeztype of error should also be cognizable in district court, on the ground that the agency has no discretion to commit a legal error of any sort, but there is a potential distinction between the two sorts of legal error that could allow one to read Shabaj and Pinho as consistent with one another.

In any event, whether or not one reads Shabajto conflict with Pinho, it is at least clear that Shabaj should not prevent judicial review of USCIS denials of petitions or applications that are not made discretionary by statute.The decision to deny an immigrant petition for a relative or prospective employee (an I-130 petition, I-140 petition, or I-360 petition for a religious worker), for example, is not discretionary, because INA 204(b) states that the Attorney General “shall” approve the petition if he determines that the facts in the petition are true, and the alien for whom the petition is filed is an immediate relative as defined by statute or is eligible for the requested preference.  (This decision is normally now made by the Secretary of Homeland Security and her delegates within USCIS, although a BIA decision on an administrative appeal regarding an I-130 petition is still under the authority of the Attorney General.)  Thus, district courts have jurisdiction to review the denial of such petitions, as has been held in such cases as Ogbolumani v. Napolitano, 557 F.3d 729 (7th Cir. 2009);Ruiz v. Mukasey, 552 F.3d 269 (2d Cir. 2009); Ayanbadejo v. Chertoff, 517 F.3d 273 (5th Cir. 2008); and Soltane v. U.S. Dep’t of Justice, 381 F.3d 143 (3d Cir. 2004).  Similarly, district courts should have jurisdiction to review denials of H-1B and other nonimmigrant visa petitions, as described in an earliest post on this blog by Cyrus D. Mehta, because the decision on those petitions as well is not specified by the statute to be in the discretion of the Attorney General: INA § 214(c)(1) states that “the question of importing any alien as a nonimmigrant under [various subparagraphs] shall be determined by the Attorney General, after consultation with appropriate agencies of the government, upon petition of the importing employer.” In Kucana v. Holder, 558 U.S. 233 (2010), the Supreme Court made clear that only decisions actually declared discretionary by statute can be immunized from judicial review, superseding some earlier Court of Appeals decisions which had suggested that decisions made discretionary by regulation could also be immune from review.  (At least one such pre-Kucana decision, CDI Information Services Inc., v. Reno, 278 F.3d 616 (6th Cir 2002), had refused on that basis to review the denial of an H-1B application for extension of stay.)

In addition to not precluding judicial review of denials of petitions or applications that are not explicitly made discretionary, Shabaj may not preclude judicial review of a USCIS denial of a discretionary waiver or adjustment application when the denial relates to an applicant who at that time or subsequently is the subject of an otherwise reviewable order of removal, even if the discretionary waiver or adjustment denial comes from USCIS rather than the immigration courts and the BIA—as could happen with many “arriving aliens” whose adjustment applications fall outside immigration court jurisdiction.  As the Shabaj opinion explained in footnote 4:

Although Shabaj is ineligible to reopen his removal proceedings and file a petition for review because of his participation in the Visa Waiver Program, see 8 U.S.C. § 1187(b), we do not mean to preclude a petitioner who is otherwise eligible to reopen proceedings from attempting to reopen those proceedings in order to raise legal challenges to hardship rulings by the AAO. Under those circumstances, as permitted by § 1252(a)(2)(D), we would have jurisdiction over any “constitutional claims or questions of law” raised by petitions for review to this court.

Shabaj v. Holder, slip op. at 6 n.4.  The process that this footnote seems to contemplate, in which a Court of Appeals could review an AAO decision in a petition for review from a removal order even though the authorities that issued the removal order did not themselves have any ability to address the AAO decision, would not be unprecedented.  Judicial review of an AAO decision denying an application for legalization under the Immigration Reform and Control Act of 1986 or the related LIFE Act Legalization provisions proceeds in this way, as explained in Orquera v. Ashcroft, 357 F.3d 413 (4th Cir. 2003): the legalization applicant must become subject to an order of removal or deportation, and then petition for review of that order,to seek judicial review of the legalization denial, even though the immigration judge and the BIA cannot review the legalization denial during the removal proceedings.  If an arriving alien whose adjustment application or related waiver application is denied by USCIS later becomes subject to an order of removal, footnote 4 of Shabaj suggests that they could seek review of the USCIS determination on petition for review of the removal order, analogously to the process discussed in Orquera.

Even if an arriving alien is already the subject of an order of removal when their adjustment application or related waiver application is denied by USCIS, it should be possible to seek judicial review of that denial despite Shabaj, so long as there is no order under the Visa Waiver Program (or at least no valid order, since such orders are sometimes issued in error and can then be set aside on a petition for review).  As previously explained in an article by this author on our firm’s website, denial of an adjustment application made by an arriving alien against whom an order of removal is already outstanding could be analogized to the denial of an asylum application by an applicant who has been ordered removed under the Visa Waiver Program.  In both cases, the denial of the outstanding application enables the removal of the applicant, even though the denial is in some technical sense not a removal order.  Thus, just as the Second Circuit has found jurisdiction over a petition for review of the denial of an asylum application in asylum-only proceedings because such a denial is “the functional equivalent of a removal order,” Kanacevic v. INS, 448 F.3d 129, 134-135 (2d Cir. 2006), it should find jurisdiction over a petition for review of the denial of an adjustment application by an arriving alien against whom there is a final order of removal.  Alternatively, under Shabaj footnote 4, it may be possible for such an arriving alien to seek reopening of the removal proceedings to pursue such an arriving-alien adjustment application, which would presumably be denied under Matter of Yauri, 25 I&N Dec. 103 (BIA 2009) (in which the BIA held that it would not reopen proceedings for an arriving alien to apply for adjustment before USCIS because such reopening was not necessary to allow adjustment), and then petition for review of the denial of reopening and seek review of any adjustment or waiver denial in the context of that petition.