Shabaj v. Holder
2013 U.S. App. LEXIS 8379
| 2d Cir. | 2013Background
- Sha-baj appeals a December 21, 2011 district court judgment dismissing his complaint challenging CIS’s denial of a 212(i) waiver.
- District court held it lacked subject matter jurisdiction to review the waiver denial under 8 U.S.C. § 1182(i)(2) and § 1252(a)(2)(B).
- Shabaj entered the U.S. in 2000 using a false Italian passport; asylum proceedings were pursued but ultimately failed.
- He married a U.S. citizen in 2005; CIS approved the marriage-based visa petition but required a 212(i) waiver due to prior fraud.
- CIS denied Shabaj’s 212(i) waiver (Feb 2007 and Jan 2009) and AAO dismissed the appeal in May 2011 for lack of extreme hardship.
- Shabaj filed suit in July 2011 seeking APA and other relief; district court dismissed for lack of jurisdiction; this court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1252(a)(2)(D) allows district-court review | Shabaj contends § 1252(a)(2)(D) authorizes review of constitutional claims or questions of law. | Government argues review is limited to court of appeals for such claims; district court lacks authority. | No jurisdiction in district court; review reserved for appellate court if properly raised. |
| Whether § 1182(i)(2) precludes district-court review of the waiver denial | Shabaj argues APA/§ 1331 review is available for error in the waiver decision. | § 1182(i)(2) bars review of waiver decisions; § 1252(B) precludes review of discretionary relief. | District court correctly dismissed for lack of jurisdiction. |
| Whether the APA provides jurisdiction to review a discretionary hardship determination | Shabaj relies on Sharkey to obtain APA review of discretionary CIS hardship ruling. | APA does not override jurisdictional bar where statute precludes review; Sharkey is distinguishable. | APA review is unavailable due to statutory preclusion. |
Key Cases Cited
- Jun Min Zhang v. Gonzales, 457 F.3d 172 (2d Cir. 2006) (need for waiver of inadmissibility to adjust status after fraud)
- Camara v. Dep’t of Homeland Sec., 497 F.3d 121 (2d Cir. 2007) (discretionary hardship determinations reviewed narrowly)
- Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. 2008) (APA review limited when statute precludes judicial review)
- Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. 2008) (1252(a)(2)(B) strips review of discretionary waivers)
- Chen v. Napolitano, 651 F. Supp. 2d 68 (S.D.N.Y. 2009) (district courts considering hardship determinations; limits of review)
- Zhang v. Gonzales, 457 F.3d 172 (2d Cir. 2006) (earlier discussion of 212(i) waiver necessity)