878 F.3d 441
2d Cir.2017Background
- Singh, an Indian national who entered the U.S. unlawfully in 1995, was ordered deported in 1996 after failing to appear at a hearing. He remained in the U.S. and later married a U.S. citizen, Jaswant Kaur.
- Kaur filed I-130 petitions on Singh’s behalf; an initial petition was denied for lack of evidence, a later I-130 was approved by USCIS on May 6, 2009.
- Singh filed an adjustment-of-status application with USCIS; USCIS dismissed it for lack of jurisdiction, explaining the immigration court (and BIA) retained exclusive jurisdiction because a removal order remained in effect.
- Singh sought reconsideration at USCIS and moved to reopen his removal proceedings before the immigration judge and the BIA; the BIA denied reopening and the Ninth Circuit rejected his petition for review and held the removal proceedings had not terminated on his temporary removal to India.
- Singh filed an APA suit in district court seeking to compel USCIS to adjudicate his adjustment application; the district court dismissed for lack of subject-matter jurisdiction under 8 U.S.C. § 1252(a)(5).
- The Second Circuit affirmed, holding Singh’s APA challenge was an “indirect” challenge to a removal order and therefore barred by the REAL ID Act’s exclusive-review provision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Singh’s APA suit is barred as judicial review of a removal order under 8 U.S.C. § 1252(a)(5) | Singh argued USCIS should have jurisdiction to decide his adjustment application because his deportation proceedings terminated when he was temporarily removed to India | Government argued Singh’s suit seeks review of or to undermine an existing removal order and thus must be presented as a petition for review to a court of appeals under §1252(a)(5) | Held: Singh’s claim is an “indirect” challenge to a removal order and is barred by §1252(a)(5); APA review precluded |
| Whether the APA provides an independent basis for district-court jurisdiction | Singh contended APA §706 entitles him to judicial review of USCIS’s jurisdictional denial | Government contended the REAL ID Act precludes APA review where suit functions as review of removal order | Held: APA review is precluded by §1252(a)(5); no subject-matter jurisdiction in district court |
| Whether USCIS or the immigration court/BIA had jurisdiction to adjudicate the adjustment application | Singh asserted USCIS had authority to consider his adjustment application after the approved I-130 | Government and administrative record showed the immigration judge/BIA retained exclusive jurisdiction because removal proceedings remained open | Held: Under 8 C.F.R. §1245.2(a)(1)(i) the immigration court/BIA had exclusive jurisdiction; USCIS lacked authority |
| Whether Singh’s temporary removal to India terminated his removal proceedings | Singh argued the 2007 removal terminated proceedings, enabling USCIS adjudication | Government relied on Ninth Circuit ruling that removal did not terminate the proceedings | Held: Court treated Ninth Circuit’s determination as dispositive for jurisdictional purposes; proceedings remained open |
Key Cases Cited
- Delgado v. Quarantillo, 643 F.3d 52 (2d Cir. 2011) (REAL ID Act bars both direct and indirect challenges to removal orders)
- Ruiz-Martinez v. Mukasey, 516 F.3d 102 (2d Cir. 2008) (defines “petition for review” as challenge to BIA removal order)
- Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144 (2d Cir. 2006) (REAL ID Act consolidates and limits review of removal orders to one appellate forum)