65 F.4th 469
9th Cir.2023Background
- Jairo Alberto Mejia Vega, a Colombian national and former LPR, was ordered removed in 1999 after a drug conviction, then unlawfully reentered the U.S.
- In 2008 he disarmed and helped detain a shooter and later cooperated with law enforcement; he applied for a U-visa and accompanying waivers of inadmissibility.
- Mejia sought waivers under 8 U.S.C. § 1182(d)(3)(A)(ii) and § 1182(d)(14); USCIS denied the § 1182(d)(3)(A)(ii) waiver as a discretionary matter and denied the U-visa for inadmissibility.
- Mejia sued to compel reconsideration, arguing Matter of Hranka provides a legal standard USCIS failed to apply.
- The district court dismissed for lack of subject-matter jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii); the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1252(a)(2)(B)(ii) bars judicial review of USCIS's denial of a waiver under § 1182(d)(3)(A)(ii) | Mejia: statute does not expressly say decisions are unreviewable; courts retain jurisdiction | USCIS: § 1182(d)(3)(A)(ii) vests pure discretion in the agency and § 1252 bars review | Held: § 1252(a)(2)(B)(ii) precludes review because § 1182(d)(3)(A)(ii) confers unfettered discretion |
| Whether Matter of Hranka supplies a governing legal standard that renders the waiver decision reviewable | Mejia: Hranka’s guidelines create a reviewable standard, and Congress’s silence after Hranka incorporated it | USCIS: agency practice or precedent cannot convert a statute’s discretionary text into a reviewable standard | Held: Matter of Hranka cannot supply the necessary statutory standard; statutory text must provide limits to permit review |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (2010) (statutes that place decisions "in the discretion" of the Attorney General are examples of decisions shielded by § 1252(a)(2)(B)(ii))
- Spencer Enterprises, Inc. v. United States, 345 F.3d 683 (9th Cir. 2003) (explains difference between pure discretionary acts and statutory standards that permit review)
- ANA Int'l, Inc. v. Way, 393 F.3d 886 (9th Cir. 2004) (agency practice or regulations cannot create reviewability where statute confers pure discretion)
- Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (applies § 1252(a)(2)(B)(ii) to bar review of discretionary immigration waivers)
- Momox-Caselis v. Donohue, 987 F.3d 835 (9th Cir. 2021) (procedural point on abandoning arguments below)