Shoba Sivaprasad Wadhia: “Justices will decide scope of judicial review over certain immigration decisions”

 

Professor Shoba Sivaprasad Wadhia offers a preview of next week’s oral argument in the Suprme Court in Patel v. Garland, which “raises an important question about whether a federal court can review a decision by an agency . . . that a noncitizen is ineligible for a green card.”  The case involves a complex statutory question raised by the adjustment of status provisions of the immigration laws. 

 

Congress increasingly has sought to foreclose judicial review of agency immigration decisions.  This case considers the availability of judicial review under the immigration statute.  As Professor Wadhia describes the question:

 

“n 1996, Congress created 8 U.S.C. § 1252(a)(2)(B)(i), which bars federal courts from reviewing denials of discretionary relief and specifically “any judgment regarding the granting of relief” of five different kinds of immigration relief, including adjustment of status. In 2005, Congress added 8 U.S.C. § 1252(a)(2)(D), which clarified that nothing in subparagraph (B)(i) should `be construed as precluding review of constitutional claims or questions of law raised upon a petition for review’ in the federal courts of appeals.

Patel challenged the BIA denial in the U.S. Court of Appeals for the 11th Circuit. The circuit court concluded that subparagraph (B)(i) bars a court from reviewing Patel’s case. . . .  Patel sought review before the Supreme Court.

At the heart of this case is whether a federal court can review questions tied to Patel’s statutory eligibility for adjustment of status. Specifically, the Supreme Court will consider `[w]hether 8 U.S.C. § 1252(a)(2)(B)(i) preserves the jurisdiction of federal courts to review a non-discretionary determination that a noncitizen is ineligible for certain types of discretionary relief.’” 

Stay tuned for reports on the oral argument next week.

UPDATE (Dec. 6, 2:15 p.m. PST):  Here is the transcript to the argument.  The Justices focused on the technicalities of the statutory language in a sprawling argument that only an immigration law professor could love.  Stay tuned for a link to Professor Wadhia’s recap of the argument when it is posted.

UPDATE (Dec. 8): Professor Wadhia recaps the argument for SCOTUSBlog here.  “For just over 90 minutes, the justices explored statutory text, legislative history, and the presumption of judicial review.”  Although a prediction of the outcome is challenging, Professor Wadhia suggests that Patel may have more Justices on his side.

KJ