139 F.4th 329
4th Cir.2025Background
- Kale and Dey, Indian nationals residing in the U.S., applied for adjustment of status (green cards) based on employment, with a priority date of August 26, 2014.
- Their applications were timely filed when their priority date became current in September 2022, per the Department of State's Visa Bulletin.
- Due to higher-than-anticipated demand, visa allocation for their category retrogressed, making their priority date no longer current, and their applications were put on hold by USCIS under the "Adjudication Hold Policy."
- Kale and Dey filed suit, alleging USCIS's hold policy resulted in unlawful withholding and unreasonable delay, seeking a court order (mandamus) for immediate adjudication.
- The district court dismissed the case for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii), finding that adjustment of status decisions and related processes are committed to agency discretion and thus shielded from judicial review.
- Kale and Dey appealed the dismissal to the Fourth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 1252(a)(2)(B)(ii) bar judicial review of USCIS’s hold policy for adjustment applications during retrogression? | USCIS’s hold results in unlawful withholding and delay, subject to review under the APA. | Hold policy is a discretionary action barred from review by § 1252(a)(2)(B)(ii). | § 1252(a)(2)(B)(ii) bars review because the policy is a discretionary agency action. |
| Whether the hold policy constitutes “decision or action” under the statute or mere inaction. | Agency is unlawfully failing to act by not adjudicating applications. | Policy involves discretionary decisions, not mere inaction. | Hold policy is a “decision or action” within agency discretion, thus barred from review. |
| If agency procedures for managing retrogression are subject to judicial oversight. | USCIS’s process and delay should be subject to judicial review under the APA. | Process of managing visa supply, including retrogression holds, is committed to agency discretion. | Management of visa retrogression is within discretionary authority and not reviewable. |
| Whether plaintiffs can challenge facts based on materials not in the original record. | Judicial notice should be taken of new documents showing agency practices. | Facts within such documents are disputed and not proper for judicial notice. | Only the existence (not substance) of such documents can be noticed; underlying facts are not reviewed. |
Key Cases Cited
- Kanapuram v. Dir., USCIS, 131 F.4th 1302 (11th Cir. 2025) (Adjustment of status process and agency discretion)
- Shaiban v. Jaddou, 97 F.4th 263 (4th Cir. 2024) (Scope of agency discretion bars judicial review under § 1252)
- Geda v. Dir., USCIS, 126 F.4th 835 (3d Cir. 2025) (Discretion over status adjustment procedures bars review)
- Thigulla v. Jaddou, 94 F.4th 770 (8th Cir. 2024) (Similar discretion over adjustment policy holds is unreviewable)
- Cheejati v. Blinken, 106 F.4th 388 (5th Cir. 2024) (Agency discretion bars challenges to hold policy)
- Li v. Kerry, 710 F.3d 995 (9th Cir. 2013) (Explanation of visa supply retrogression)