PANKAJKUMAR S. PATEL, JYOTSNABEN P. PATEL, NISHANTKUMAR PATEL, Pеtitioners, versus UNITED STATES ATTORNEY GENERAL, Respondent.
No. 17-10636
United States Court of Appeals, Eleventh Circuit
August 19, 2020
Agency No. A072-565-851; [PUBLISH]
Petition for Review of a Decision of the Board of Immigration Appeals
(August 19, 2020)
Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, TJOFLAT, ED CARNES, and MARCUS, Circuit Judges.*
TJOFLAT, Circuit Judge, delivered the opinion of the Court, in which WILLIAM PRYOR, Chief Judge, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, ED CARNES, and MARCUS, Circuit Judges, joined.
Pankajkumar Patel seeks review of a final order of removal from the Board of Immigration Appeals (“BIA“). Patel sought discretionary relief under
was not material because the benefit, a Georgia driver‘s license, is available to non-citizens.
This case requires us to determine the scope of a jurisdiction-stripping provision in the Immigration and Nationality Act,
In our first published opinion to interpret
Patel‘s petition presents both a factual challenge and a question of law. We hold that
I.
Patel is a citizen of India who entered the United States without inspection. In 2012, the Department of Homeland Security issued a notice to appear to Patel charging him as removable for being present in the United States without inspection. In a subsequent removal proceeding before an immigration judge, Patel conceded that he was removable, but he sought discretionary relief from removal by applying for adjustment of status under
The Attorney General may adjust an alien‘s status to that of a lawful permanent resident if the alien meets certain requirements. See
Patel‘s admissibility is in doubt because he falsely represented that he was a U.S. citizen when he applied for a Georgia driver‘s license in 2008. When applying for the license, Patel checked a box indicating that he is a U.S. citizen. This incident arguably renders Patel inadmissible pursuant to
Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including section 1324a of this title) or any other Federal or State law is inadmissible.
The BIA has interpreted this section to require three elements: (1) a false representation of citizenship, (2) that is material to a purpose or benefit under thе law, (3) with the subjective intent of obtaining the purpose or benefit. Matter of Richmond, 26 I. & N. Dec. 779, 786–87 (B.I.A. 2016).
There was no dispute that Patel made a false representation of citizenship. Nor was there any dispute that a driver‘s license is a benefit under state law. Patel challenged the applicability of the statute on two grounds: (1) he lacked the requisite subjective intent to falsely represent himself as a citizen, and (2) the false representation was not material.
At the removal hearing, Patel argued that he did not have the requisite subjective intent because he simply made a mistake. To prove that it was a mistake, Patel claimed that he provided his alien registration number and his employment authorization card to the Georgia Department of Motor Vehicles with his driver‘s license application. Patel argued that it would have made no sense to document his non-citizen status if his goal were to pose as a citizen. Patel also argued that a false representation
The Immigration Judge rejected Patel‘s arguments. The Immigration Judge determined that Patel was not credible. He was evasive when testifying and would not explain to the Court exactly how he had made a mistake. Furthermore, the Immigration Judge examined the application and determined that Patel did not write his alien registration number on the application. The application asks about citizenship and directs the applicant to provide his alien registration number if he is not a citizen. Patel marked that he was a citizen and did not write down his alien registration number. The application also does not reflect that Patel provided his employment authorization card. In the section on the form where the Georgia official is to list the documents accepted, the only document mentioned is Patel‘s prior Georgia driver‘s license. In short, the evidence contradicted Patel‘s testimony, which the Immigration Judge already suspected was not candid, so the Immigration Judge did not believe Patel‘s claim that he made a mistake. The Immigration Judge fоund that Patel willfully and purposefully indicated that he was a U.S. citizen.
The Immigration Judge also held that Patel failed to prove that his false representation was immaterial because he failed to meet his burden of proving that he was otherwise eligible for a driver‘s license. The fact that Patel had previously obtained a license in Georgia is inconclusive because Patel might have misrepresented his citizenship on his past application too. Alternatively, even if Patel obtained his prior license without claiming citizenship, the rules governing who qualifies for a license in Georgia could have changed in the interim. Patel simply did not provide enough evidence to show that he was otherwise eligible for the license.3
Because Patel failed to show that he was not inadmissible, the Immigration Judge denied his application for adjustment of status and ordered the Patels removed.
The BIA affirmed. It found no clear error in the factual finding that Patel was not credible and made the false representation with the subjective intent to obtain a license. The BIA also agreed that Patel did not produce enough evidence to prove that he was otherwise eligible for a license—i.e., to prove that the false representation was immaterial.
One BIA member dissented. She observed that Georgia law extended driver‘s licenses to those with lawful status. See
Patel now seeks review of the BIA‘s decision. A panel of this Court held that under
II.
To understand the limitations of
A.
Congress has “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S. Ct. 2576, 2583 (1972) (quoting Boutilier v. INS, 387 U.S. 118, 123, 87 S. Ct. 1563, 1567 (1967)). Since 1875, Congress has placed restrictions on who can enter and remain in the United States. Id.
Prior to 1940, the Executive Branch enforced these restrictions but had no authority to grant discretionary relief for removable aliens. Foti v. INS, 375 U.S. 217, 222, 84 S. Ct. 306, 310 (1963).4 A determination that an alien was removable “necessarily resulted in, and was invariably accompanied by, a deportation order.” Id. Extenuating circumstances had to be presented via a private bill in Congress. Id.; see also INS v. Jong Ha Wang, 450 U.S. 139, 140 n.1, 101 S. Ct. 1027, 1029 n.1 (1981). The only other route to relief for aliens who had been ordered deported was via a writ of habeas corpus. INS v. St. Cyr, 533 U.S. 289, 306, 121 S. Ct. 2271, 2282 (2001).
With the passage of the Alien Registration Act of 1940, Congress gave the Attorney General some discretion to allow for voluntary departure or to suspend deportation for aliens of “good moral character whose deportation ‘would result in
serious economic detriment’ to the aliens or their families.” INS v. Phinpathya, 464 U.S. 183, 190, 104 S. Ct. 584, 589 (1984) (quoting the Alien Registration Act of 1940, Pub. L. No. 76-670, § 20, 54 Stat. 670, 672).5 In 1948, Congress amended the statute to make suspension available for “aliens who ‘resided continuously in the United States for seven years or more’ and who could show good moral character for the preceding five years, regardless of family ties.” Id. (quoting Act of July 1, 1948, ch. 783, 62 Stat. 1206).
In 1952, Congress enacted a comprehensive immigration scheme, the Immigration and Nationality Act (“INA“), which set out “the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.” Chamber of Commerce v. Whiting, 563 U.S. 582, 587, 131 S. Ct. 1968, 1973 (2011) (plurality opinion) (quoting De Canas v. Bica, 424 U.S. 351, 353, 359, 96 S. Ct. 933, 938 (1976)). Included in that act were multiple categories of relief that the Attorney General could grant, to certain eligible recipients, in his
discretion. See INA, Pub. L. No. 82-414, 66 Stat. 163 (1952); see also St. Cyr, 533 U.S. at 295, 121 S. Ct. at 2276 (interpreting INA § 212(c)).
In its most recent iteration, the INA includes many types of relief that are deemed discretionary rather thаn mandatory. Patel seeks a form of discretionary relief under
Through these provisions, “Congress made a deliberate choice to delegate to the Executive Branch, and specifically to the Attorney General, the authority to allow deportable aliens to remain in this country in certain specified circumstances.” INS v. Chadha, 462 U.S. 919, 954, 103 S. Ct. 2764, 2786 (1983). The Attorney General can establish regulations, review administrative determinations,6 delegate his authority, and perform other such acts as he deems necessary to effectuate his authority to grant
The discretion delegated to the Attorney General, and in turn to the immigration courts, to grant ultimate relief for otherwise removable aliens has been likened to “probation or suspension of criminal sentence,” that is, it functions as “an act of grace.” Jay v. Boyd, 351 U.S. 345, 354, 76 S. Ct. 919, 924 (1956) (quoting Escoe v. Zerbst, 295 U.S. 490, 492, 55 S. Ct. 818, 819 (1935)). Aliens are not entitled to the relief as a matter of right. Id. They are, however, given a right
to a ruling on such relief.8 Id. Applicants who do not meet the threshold statutory requirements are ineligible for consideration of discretionary relief. Applicants who meet the threshold requirements are eligible for a favorable exercise of discretion but are not entitled to it as a matter of right. Id.; see also Barton v. Barr, 140 S. Ct. 1442, 1445 (2020) (“If a lawful permanent resident meets those eligibility requirements, the immigration judge has discretion to (but is not required to) cancel removal and allow the lawful permanent resident to remain in the United States.“).
Even if an alien is eligible for relief, an immigration judge can still decide—for any number of reasons—that a favorable exercise of discretion is not warranted. “[E]ligibility in no way limits the considerations that may guide the Attorney General in exercising her discretion to determine who, among those eligible, will be accorded grace.” INS v. Yueh-Shaio Yang, 519 U.S. 26, 31, 117 S. Ct. 350, 353 (1996). For example, the Attorney General can promulgate regulations that allow immigration judges to consider “confidential informаtion” in their assessment. See Jay, 351 U.S. at 349–50, 76 S. Ct. at 922 (upholding the immigration judge‘s determination that although the
prerequisites [for] the favorable exercise of the discretionary relief,” favorable action was not warranted in light of certain “confidential information“).9
Alternatively, based on the circumstances presented, immigration judges can make case-by-case determinations that a favorable exercise of discretion is not warranted. In United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S. Ct. 618, 621 (1957), the Supreme Court upheld the BIA‘s determination that, even though “deportation . . . would result in a serious economic detriment to an American citizen infant child,” discretionary relief was not warranted because the applicants waited to apply for relief until after their son was born and had no other close family ties in the United States.10 Id. at 75–76, 77 S. Ct. at 620 (quoting the eligibility requirement of § 19(c) of the Immigration Act of 1917). The Supreme Court has stated that, in exercising their discretion, immigration judges can consider the “flagrancy and nature of [aliens‘] violations” of immigration laws,
Rios-Pineda, 471 U.S. at 451, 105 S. Ct. at 2103, as well as the egregiousness of an alien‘s unconnected entry fraud, Yueh-Shaio Yang, 519 U.S. at 31, 117 S. Ct. at 353. Immigration judges, however, have no discretion to disregard the statutory eligibility requirements to grant relief for an ineligible alien. Jay, 351 U.S. at 349, 76 S. Ct. at 922.
Over time, with the increase of regulations interpreting the INA as well as precedential BIA decisions that “provide clear and uniform guidance to . . . immigration judges . . . on the proper interpretation and administration of the Act and its implementing regulations,”
The BIA reviews an immigration judge‘s findings of fact for clear error and reviews “questions of law, discretion, and judgment and all other issues” de novo.
B.
Now,
Before 1952, “the sole means by which an alien could test the legality of his or her deportation order was by bringing a habeas corpus action in district court.” St. Cyr, 533 U.S. at 306, 121 S. Ct. at 2282; see also Heikkila v. Barber, 345 U.S. 229, 230, 73 S. Ct. 603, 604 (1953). Courts consistently rejected attempts to use other types of relief to challenge deportation orders, recognizing that “Congress had intended to make these administrative decisions nonreviewable to the fullest extent possible under the Constitution.” Heikkila, 345 U.S. at 234, 73 S. Ct. at 605. Specifically, the Immigration Act of 1917 stated that deportation orders of the Attorney General should be “final,” and the Supreme Court interpreted that language to preclude judicial review except by habeas corpus. Id.; see also Shaughnessy v. Pedreiro, 349 U.S. 48, 52, 75 S. Ct. 591, 594 (1955).
Like the Immigration Act of 1917, the INA of 1952 used language that deportation orders should be “final.” Pedreiro, 349 U.S. at 52, 75 S. Ct. at 594. However, in 1955, the Supreme Court was forced to reconcile its previous interpretation of this language with the right of review provided by the Administrative Procedure Act (the “APA“).11 Id. The Court concluded that the finality language in the 1952 INA was ambiguous and could not be read as
foreclosing judicial review, especially given the purposes of the APA. Id. Hence, the lack of explicit judicial review limitations in the INA of 1952 opened other pathways for aliens to obtain judicial review of deportation orders. Id.; St. Cyr, 533 U.S. at 306, 121 S. Ct. at 2282.
That period of full judicial review was short lived, curtailed by amendments made to the INA in 1961. See Act of Sept. 26, 1961, Pub. L. No. 87-301, 75 Stat. 650. The 1961 Act withdrew jurisdiction from the
In 1996, Congress amended the INA with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, § 309, 110 Stat. 3009-626 (1996). The IIRIRA made significant revisions to federal immigration
law. One major change was in terminology; “Congress abolished the distinction between exclusion and deportation procedures and created a uniform proceeding known as ‘removal.‘” Vartelas v. Holder, 566 U.S. 257, 262, 132 S. Ct. 1479, 1484 (2012). Another change was to significantly revise the judicial-review scheme. See Calcano-Martinez v. INS, 533 U.S. 348, 350, 121 S. Ct. 2268, 2269 (2001); Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 475, 119 S. Ct. 936, 940 (1999).
The IIRIRA included permanent rules that would go into effect on April 1, 1997, as well as temporary rules that applied during the transition period. See Pub. L. No. 104-208, § 309, 110 Stat. at 3009-626. The transitional rules provided that “there shall be no appeal of any discretionary decision under section 212(c), 212(h), 212(i), 244, or 245 of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act).”12 Id. § 309(b)(4)(E). The permanent rules set up the current judicial-review structure providing that, “Notwithstanding any other provision of law, no court shall have jurisdiction to review” “(i) any judgment regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245, or” “(ii) any other decision or action of the Attorney General the authority for which is specified under this title to be in the discretion of the Attorney General, other than the granting of relief under section 208(a).” Id. at § 306.
In 2001, the Supreme Court grappled with the judicial-review limitations in the permanent rules. In St. Cyr, 533 U.S. at 314, 121 S. Ct. at 2287, the Supreme Court determined that the writ of habeas corpus was still available to alien petitioners despite the limitations of “judicial review” in the IIRIRA. The INS argued that three provisions of the IIRIRA—
Following St. Cyr, Congress enacted the Real ID Act of 2005, which added another provision to
Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.
See
The Real ID Act also added a provision that a petition for review filed with the Court of Appeals in accordance with § 1252 should be the “sole and exclusive means for judicial review of an order of removal” and that “judicial review” included “habeas corpus review.” Id. § 106(a)(1)(B)(5); see also Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020) (recognizing that
In its entirety,
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—
- any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title,15
or - any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
Before proceeding to the merits of Patеl‘s petition, we must assess whether we have jurisdiction under § 1252 to consider his petition.
III.
We start where we always start—with the language of the statute. Section 1252, entitled “Judicial review of orders of removal,” first gives the Courts of Appeals jurisdiction to review “final order[s] of removal.”
But what Congress giveth, it can also taketh away. And in § 1252(a)(2), the statute explicitly lists certain “[m]atters [that are] not subject to judicial review.” Included among these matters are “[d]enials of discretionary relief.” Within that section are two categories of “judgment[s], decision[s] or action[s]” that “no court shall have jurisdiction to review.” Id. § 1252(a)(2)(B). The first—at issue here—strips courts of the jurisdiction to review “any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title.” See § 1252(a)(2)(B)(i). The second strips courts of the jurisdiction to review decisions that are statutorily specified to be in the discretion of the Attorney General or the Secretary of Homeland Security. See § 1252(a)(2)(B)(ii).
Section 1252(a)(2)(D) then restores our jurisdiction to review constitutional claims or questions of law. Such a claim must be colorable. Arias v. U.S. Att‘y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007). In other words, a party may not dress up a claim with legal or constitutional clothing to invoke our jurisdiction. Id. Therefore, as the Supreme Court has interpreted the jurisdiction-stripping provision of § 1252(a)(2)(B), “a noncitizen may not bring a factual challenge to orders denying discretionary relief.” Nasrallah, 140 S. Ct. at 1694.
Patel sought relief under
The parties disagree with this plain-reading interpretation, arguing that we have jurisdiction to review certain types of judgments, but diverging as to the scope of our jurisdiction.17 Patel argues that the statute only strips our jurisdiction to review
This section proceeds in two parts. We first explain why the statute strips us of jurisdiction from considering Patel‘s claim that, as a factual matter, he checked the wrong box and thus lacked the requisite subjective intent. We then explain why the parties are misguided in their analyses.
A.
We lack jurisdiction to review the immigration court‘s determination that Patel was ineligible for relief because, as a factual matter, he misrepresented his citizenship. The statute means what it says, “no court shall have jurisdiction to review” “any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of [Title 8].” Except, as stated in § 1252(a)(2)(D), we maintain jurisdiction to review constitutional claims or questions of law. We start with the language of § 1252(a)(2)(B)(i) itself and then look at the statutory scheme.
1.
At heart, the varying approaches disagree over the definition of judgment in § 1252(a)(2)(B)(i). The word “judgment” is not defined in Title 8, Chapter 12 of the United States Code. See
- The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination;
- The final decision of the court resolving the dispute and determining the rights and obligations of the parties;
- Determination of a court of competent jurisdiction upon matters submitted to it.
- An opinion or estimate.
Judgment, Black‘s Law Dictionary (2020). Some of these definitions suggest that “judgment” refers to a final decision. Others suggest that “judgment” refers to any decision made by a court. See id. (“Terms ‘decision’ and ‘judgment’ are commonly used interchangeably.“).
Other dictionaries tell the same story. The Oxford English Dictionary provides the following relevant definitions for “judgment“:
- The action or result of forming or pronouncing an opinion.
- The formation of an opinion or conclusion concerning something,
esp. following careful consideration or deliberation. Also: the opinion or conclusion thus formed; an assessment, a view, an estimate. - That which has bеen formally decided and pronounced to be the case; any formal or authoritative decision, as of an umpire or arbiter.
- The pronouncing of a deliberate opinion upon a person or thing, or the opinion pronounced.
- The formation of an opinion or conclusion concerning something,
- The action or result of pronouncing a legal decision, and related uses.
- A decision formally made in regard to a matter under consideration in a court of law or comparable context; a judicial decision, pronouncement, or order; the action or act of making or announcing such a decision.
Judgment, Oxford English Dictionary (2nd ed. 1989), https://www.oed.com/view/Entry/101892?redirectedFrom=judgment#eid (last visited May 29, 2020).18 Similarly, the following definitions are found in Merriam-Webster:
- An opinion or estimate so formed.
- A formal utterance of an authoritative opinion.
- A formal decision given by a court.
- A proposition stating something believed or asserted.
Judgment, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/judgment (last visited May 3, 2020). These definitions fall into one of two camps: either judgment means the final decision of a court, such as a sentence, or it is broad and means any decision. Any decision is the better fit, because the statutory language is not limited to a final judgment of removal, but rather “any judgment” regarding the five enumerated categories of relief.
Further, any doubt regarding the meaning of “judgment” in § 1252(a)(2)(B)(i) should be resolved in favor of a more expansive meaning given the modifying phrases “any” and “regarding.” As the Supreme Court has “repeatedly explained,” “any” is expansive. Babb v. Wilkie, 140 S. Ct. 1168, 1173 n.3 (2020). The word “any” means “[o]ne indiscriminately of whatever kind.” Black‘s Law Dictionary (6th ed. 1990); see also Babb, 140 S. Ct. at 1173 n.3 (“The standard dictionary definition of ‘any’ is ‘[s]ome, regardless of quantity or number.‘” (quoting American Heritage Dictionary 59 (def. 2) (1969)). Thus, “[r]ead naturally,” the word “any” has an expansive effect on the word that it modifies. United States v. Gonzales, 520 U.S. 1, 5, 117 S. Ct. 1032, 1035 (1997). In addition, modifiers such as “respecting” and “regarding” have a broadening effect, “ensuring that the scope of a provision covers not only its subject but also matters relating to that subject.” Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1760 (2018). Thus, read in context, § 1252(a)(2)(B)(i) precludes us from reviewing “whatever kind” of judgment “relating to” the granting of relief under the five enumerated sections.
2.
To interpret the scope of our jurisdiction, we must also consider the rest
Reading § 1252(a)(2)(B)(i) in combination with § 1252(a)(2)(D), we determine that we lack jurisdiction to review Patel‘s challenges to “any judgment regarding the granting relief” under § 1255 unless such challenges involve a viable constitutional or legal claim. As the Seventh Circuit wrote, “while the purpose of the door-closing statute appears to be to place discretionary rulings beyond the power of judicial review (hence the caption of subsection (B)), the statute itself, read literally, goes further and places all rulings other than those resolving questions of law or constitutional issues beyond the power of judicial review.” Cevilla v. Gonzales, 446 F.3d 658, 661 (7th Cir. 2006); cf. Jean v. Gonzales, 435 F.3d 475, 480 (4th Cir. 2006).
Logically, the Seventh Circuit‘s reasoning makes sense given the background of St. Cyr. The Supreme Court recognized that historically, habeas was a mechanism to review “questions of law that arose in the context of discretionary relief.” 533 U.S. at 307, 121 S. Ct. at 2283 (emphasis added). But “the courts generally did not review factual determinations made by the Executive.” Id. at 306, 121 S. Ct. at 2282 (emphasis added). The current judicial-review scheme ensures that courts maintain jurisdiction to review “questions of law” while streamlining the process of judicial review. See Foti v. INS, 375 U.S. 217, 224–25, 84 S. Ct. 306, 311–13 (1963). The dissent argues that “judgment” must be read narrowly because St. Cyr and other opinions emphasize a strong presumption in favor of judicial review of administrative action. Dissenting Op. at 57–59. The presumption cautions against “foreclos[ing] all forms of meaningful judicial review,” McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496, 111 S. Ct. 888, 898 (1991), and has led courts to preserve review of “questions of law,” St. Cyr, 533 U.S. at 307, 121 S. Ct. at 2283. Such review is preserved under our interpretation.19 Applicants who have been denied a form of discretionary relief enumerated in § 1252(a)(2)(B)(i) can still obtain review of
The presumptions do not require a garbled interpretation of the statute to ensure the broadest possible review, especially to allow review of subordinate decisions underpinning an ultimately unreviewable decision. We conclude that the best interpretation of § 1252(a)(2)(B)(i) is that we lack jurisdiction to review “any judgment regarding the granting of relief” under the five enumerated categories, unless the petitioner asserts a constitutional or legal challenge to the denial of such relief.
B.
The Attorney General argues for a mixed model. In his view, courts have jurisdiction to review non-discretionary determinations underlying an alien‘s removal order, but lack jurisdiction to review discretionary determinations, except to the extent that those determinations raise questions of law or constitutional claims. Patel argues that we retain broad jurisdiction to review final orders of removal; courts are precluded only from reviewing the ultimate grant of discretionary relief. Under his interpretation, “judgment” refers only to the agency‘s exercise of “grace,” and no judgment is exercised in determining whether an alien meets the statutory eligibility requirements. Therefore, the argument goes, we are prohibited from reviewing the ultimate decision of who among eligible persons is granted relief but maintain jurisdiction to review whether an alien meets threshold eligibility determinations. Both interpretations lack a statutory basis and are circuitous run-arounds on the judicial-review limitation.
1.
Under the Attorney General‘s interpretation, which the dissent adopts, some of the eligibility requirements are discretionary and others are not. The Attorney General‘s delineation is flawed because determining whether an alien is statutorily eligible for relief is not a “discretionary” decision. All eligibility determinations are “non-discretionary.” As the Supreme Court has said, eligibility determinations are “substantive decisions . . . made by the Executive.”20 Kucana, 558 U.S. at 247, 130 S. Ct. at 837. Each enumerated section in § 1252(a)(2)(B)(1) sets forth specific statutory requirements that must be met before any act of grace can be bestowed upon the alien. For relief under § 1129b(b), for example, an alien is eligible for discretionary relief only if the alien has “(A) a continuous physical presence of not less than 10 years, (B) good moral character, (C) a lack of certain criminal convictions, and (D) establishes exceptional and extremely unusual hardship to a qualifying relative.” For an adjustment of status under § 1255(i), such as the one that Patel seeks, the Attorney General may adjust the status of qualified aliens21 only if “(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence,”
In assessing our jurisdictional boundaries, we—and other Circuits—have often characterized these eligibility requirements as “discretionary” or “non-discretionary” determinations.22 For example, we have held that the “exceptional and extremely unusual hardship” determination is a discretionary decision, while the continuous physical presence requirement is a non-discretionary determination. Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir. 2001); see also Gonzalez-Oropeza v. U.S. Att‘y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). In Najjar, we explained that determining whether an alien met the presence requirement was not an exercise in discretion but was simply “a matter of applying the law to the facts of the case.” 257 F.3d at 1298. Hardship, on the other hand, was a “discretionary decision” because Congress had delegated the authority to construe the meaning of that phrase to the Attorney General. Id. (citing Jong Ha Wang v. INS, 450 U.S. 139, 145, 101 S. Ct. 1027, 1031 (1981)); see also Gomez-Gomez v. INS, 681 F.2d 1347, 1349 (11th Cir. 1982).
This distinction between discretionary and non-discretionary determinations arose from our interpretation of the IIRIRA transitional rules, which barred the appeal of “any discretionary decision” under five enumerated sections of the INA. See Najjar, 257 F.3d at 1298 (“Section 309(c)(4)(E) does not preclude our review of all decisions under § 244 of the INA, but applies only to ‘any discretionary decision’ under the enumerated provisions.“). When the permanent rules went into effect, we grafted the distinction onto the permanent rules without considering the difference in statutory language. Gonzalez-Oropeza, 321 F.3d at 1332 (applying the discretionary distinction from “1252(a)(2)(B)‘s predecessor“). Other lines of cases subsequently adhered to this precedent without further consideration.23
But the permanent rules do not include the “any discretiоnary decision” language. Instead, the statute bars review for “any judgment,” a broader term that encompasses both discretionary and non-discretionary determinations. It provides a
Clinging to the discretionary and non-discretionary distinction flies in the face of the statutory language specifically used by Congress. And it is a misnomer. We have previously described “discretionary” decisions as those that lack “an objective legal standard on which a court can base its review.” Bedoya-Melendez, 680 F.3d at 1325. In Bedoya-Melendez, we contrasted a question of law—which involves “the application of an undisputed fact pattern to a legal standard“—to a discretionary decision, which “requires an adjudicator to make a judgment call.” Id. at 1324. As a matter of jurisprudence, rather than of jurisdiction, we—as well as the BIA—would be unable to review a judgment that truly lacked any standards of review. Cf. Heckler v. Chaney, 470 U.S. 821, 830, 105 S. Ct. 1649, 1655 (1985) (“[E]ven where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency‘s exercise of discretion.“).
The threshold eligibility determinations, however, are not discretionary decisions—immigration courts cannot grant relief if they are not met. As the Supreme Court has said, “[e]ligibility [for discretionary relief] is governed by specific statutory standards which provide a right to a ruling on an applicant‘s eligibility.” Jay v. Boyd, 351 U.S. 345, 353, 76 S. Ct. 919, 924 (1956). Eligibility determinations— both those that we have previously deemed “discretionary” and those that we have deemed “non-discretionary“—involve the same decisional process: applying the law to a set of facts. And, “the application of law will necessarily involve judgment.” Henry M. Hart Jr. & Albert M. Sacks, Legal Process: Basic Problems in the Making and Application of Law 375 (1958). If the statutory standards for eligibility are less specific, it gives an immigration judge more leeway in interpreting and applying the law. But qualitative standards such as “good moral character” or “exceptional and extremely unusual hardship” are not in themselves discretionary decisions. An immigration judge must find that the alien meets such standards before she can grant relief.24 Not only does the Attorney General‘s interpretation—allowing appellate review of factual decisions underlying some statutory eligibility determinations but not others—lack a statutory basis, it is also illogical as a matter of policy. If Congress intended to block our
Finally, § 1252(a)(2)(B) must be read in conjunction with § 1252(a)(2)(D). See Guerrero-Lasprilla, 140 S. Ct. at 1073. Rather than engaging in mental gymnastics to determine if a particular decision is “discretionary or not” and then determining whether the alien‘s claim presents a question of law or a constitutional challenge, the logical interpretation of the statutory scheme is that “judgment” encompasses all decisions made by the BIA and that we are foreclosed from reviewing those decisions unless they present constitutional claims or questions of law.
reviewing those determinations unless the alien presents a legal or constitutional challenge. We thus lack jurisdiction to review factual challenges to a denial of discretionary relief.26 Nasrallah, 140 S. Ct. at 1694; Guerrero-Lasprilla, 140 S. Ct. at 1073
The two pathways—that judgments are barred from review, except to the extent they raise a constitutional or legal claim, and that discretionary decisions are barred from review—may often reach the same result. As the Second Circuit pointed out in Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010), the “two characterizations” are “congruent: BIA statutory interpretation pursuаnt to an eligibility determination is nondiscretionary and therefore reviewable precisely because it presents a legal question. In contrast, the BIA‘s factfinding, factor-balancing, and exercise of discretion normally do not involve legal or constitutional questions, so we lack jurisdiction to review them.” See also Jean, 435 F.3d at 480 (concluding that the Court need not consider “the scope of subsection (a)(2)(B)” in light of the enactment of subsection (D) by the REAL ID Act); Reyes v. Holder, 410 F. App‘x 935, 939 (6th Cir. 2011) (“[I]t remains unclear whether the two categories . . . overlap entirely or almost entirely.“).
Regardless of how we have characterized eligibility determinations in the past, they are threshold requirements.27 The Attorney General and immigration judges have no discretion to grant relief unless the statutory criteria are met.
2.
Relying on the Ninth Circuit‘s en banc opinion in Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1142 (9th Cir. 2002), Patel argues that “[t]he only judgment exercised regarding the order or decision lies in the Attorney General‘s discretionary authority to determine who among the eligible persons should be granted discretionary relief.” Because “[n]o judgment is exercised with respect to the mere eligibility for discretionary relief,” he asserts that
The Ninth Circuit held that it had jurisdiction to consider whether Montero-Martinez‘s adult daughter qualifies as a “child” under
We disagree. While a discretionary decision, such as the “grace” of ultimately granting relief, necessarily involves the exercise of judgment, the meaning of judgment does not end there. Compare Black‘s Law Dictionary (defining “administrative discretion” as “[a] public official‘s or agency‘s power to exercise judgment in the discharge of its duties” and “judicial discretion” as “[t]he еxercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law“), with Judgment, Black‘s Law Dictionary (6th ed. 1990) (“Determination of a court of competent jurisdiction upon matters submitted to it.“). The Ninth Circuit so narrowly construed the word “judgment” that it contorted its meaning.29
As the dictionary definitions above indicate, “judgment” is a broad term, encompassing both the process of forming an opinion as well the pronouncement of the result. That process includes both legal and factual determinations and is not arbitrarily limited to decisions involving the exercise of discretion. As the panel in Montero-Martinez initially held, ”
After the Supreme Court decided St. Cyr, the Ninth Circuit granted Montero-Martinez‘s petition for rehearing en banc, 277 F.3d at 1137, and then re-interpreted the meaning of “judgment” to conform the statutory language to what it thought St. Cyr required.30 Mysteriously, the Ninth Circuit‘s en banc opinion never addresses
We are unpersuaded by the Ninth Circuit‘s other arguments. By the Court‘s own reasoning, it is impossible to give the word “judgment” the same meaning throughout the INA. Montero-Martinez, 277 F.3d at 1141. Sometimes, when preceded by the modifier “discretionary,” it means “discretionary judgment.” Id. n.5; see also
Our interpretation of “judgment” also does not make the “any other decision” language in
The dissent expounds on this structure argument, pointing to the Supreme Court‘s decision in Kucana for additional support. Dissenting Op. at 69–70. In Kucana, the Supreme Court looked to the structure of
That is a faulty conclusion. As we explained above, eligibility determinations are not discretionary. While the ultimate decision of whether to grant of relief is discretionary; eligibility for the relief is not. Kucana read “other” to align with the five types of relief enumerated in
Finally, the use of the words “decision” or “individual determination” in other judicial-stripping provisions in the INA does not convince us that “judgment” in
Patel‘s interpretation—that
Because
III.
On appeal, Patel does not assert any constitutional claims regarding the denial of relief under
Patel also claims that the BIA used the wrong legal standard to determine that he
SO ORDERED.
MARTIN, Circuit Judge, joined by WILSON, JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges, dissenting:
Pankajkumar Patel applied to immigration authorities to adjust his immigration status so that he could continue living in the United States. His application for adjustment of his status was denied, and Mr. Patel then turned to this Court to review that denial of relief. Originally, a three-judge panel of this Court affirmed the ruling of the Board of Immigration Appeals (“BIA“) and also affirmed the final order directing his removal from this country. Our en banc Court then vacated that panel opinion and reheard Mr. Patel‘s petition so the whole court could decide the proper scope of
My reading of the statute leads me to a different understanding. The majority opinion analyzes the statute extensively. But it pays scant attention to the two foundational canons of statutory construction that must guide our interpretation of jurisdictional restrictions placed on us by the INA. First, there is a longstanding
Once the proper canons of construction are applied,
Nearly every one of our sister circuits have adopted the reading of the jurisdiction stripping provisions that would allow courts to reverse findings of fact contradicted by the record. Under this widely accepted reading of
The majority has ably described the history of Mr. Patel‘s appeal, so I review it only briefly here. The Department of Homeland Security (“DHS“) served Mr. Patel a notice to appear (“NTA“) in April 2012 that charged him as being removable because he is an “alien” present in the United States without being admitted or paroled, pursuant to
Mr. Patel appealed to the BIA. In a divided decision, the BIA affirmed the IJ‘s factual findings that Mr. Patel was not a credible witness and had falsely represented himself to be a U.S. citizen for purposes of obtaining a noncommercial Georgia driver‘s license. The BIA found no clear error in the IJ‘s rejection of Mr. Patel‘s argument that he “made a mistake” in checking a box on a form, indicating that he was a U.S. citizen. Board Member Wendtland dissented, noting that Mr. Patel was not inadmissible under Matter of Richmond, 26 I & N Dec. 779 (BIA 2016), since under Georgia law he was eligible to receive a driver‘s license whether or not he was a U.S. citizen. Thus, according to Board Member Wendtland, Mr. Patel‘s answer to the citizenship question was immaterial to the issuance of his license.
Mr. Patel asked our Court to review the BIA‘s rejection of his claim. What matters for this discussion is Mr. Patel‘s argument that, since he did not intend to check the U.S. citizenship box on the driver‘s license aрplication form, he lacked the requisite subjective intent to be found inadmissible on the ground that he made a false claim of U.S. citizenship. See Patel v. U.S. Att‘y Gen., 917 F.3d 1319, 1326 (11th Cir. 2019). As mentioned above, the panel that originally heard Mr. Patel‘s case affirmed the BIA ruling against him. The panel concluded that it lacked jurisdiction to review any factual findings about Mr. Patel‘s intent that were made in support of the denial of adjustment of status, including the IJ‘s finding that Mr. Patel‘s false claim was made with subjective intent. Id. at 1327.
On September 13, 2019, a majority of this Court‘s active judges voted to rehear Mr. Patel‘s petition en banc and vacated the panel opinion. We asked the parties to brief the question of whether Mr. Patel‘s subjective intent to obtain a purpose or benefit was a “non-discretionary finding pertaining to statutory eligibility for immigration relief” and whether we had jurisdiction to review that finding.
II.
Before I address the text of
True, other sections of
The presumption of judicial review is further buttressed by the “longstanding prinсiple of construing any lingering ambiguities in deportation statutes in favor of the alien.” Cardoza-Fonseca, 480 U.S. at 449. We use this rule of construction because, as the Supreme Court has explained, “deportation is a drastic measure and at times the equivalent of banishment or exile.” INS v. Errico, 385 U.S. 214, 225 (1966) (quotation marks omitted). Because “the stakes are considerable for the individual, we will not assume that
Ignoring the guideposts of the strong presumption of judicial review and the narrow interpretation of deportation statutes, the majority sets off on the wrong path entirely. Since we are not legislators writing laws to enforce our own views, our job in interpreting the jurisdiction-stripping provisions of the INA is to determine the degree to which Congress clearly intended to remove this Court‘s ability to review executive action. In fact, “[s]eparation-of-powers concerns . . . caution us against reading legislation, absent clear statement, to place in executive hands authority to remove cases from the Judiciary‘s domain.” Kucana, 558 U.S. at 237. The following discussion demonstrates ambiguity within the text of No one disputes that But the statute does not require such a diminished role for federal courts. First, when the statute removes our jurisdiction to review “any judgment regarding the granting of relief,” the word “judgment” refers to exercises of judgment. It does not naturally include findings of fact. The INA simply does not use the word “judgment” to convey all the meanings given it in the majority opinion. Second, the adjacent statutory text supports involvement of the courts in some of the factfinding related to eligibility determinations. It shows that where Congress intended to eliminate all review other than legal and constitutional error, it knew how to do so. And reading “judgment” to so broadly inhibit judicial review, as the majority does here, renders superfluous other adjacent statutory language. Third, the structure of the INA and of removal proceedings weigh heavily against interpreting I first turn to the meaning of the word “judgment.” Again, granting of relief” under five specified sections of the INA. The majority thinks the meaning of this word tells us quite a lot about the scope of our jurisdiction. But “judgment” is not defined in the statute and, in ordinary conversation, it can convey different meanings. “In determining the meaning of a statutory provision, we look first to its language, giving the words used their ordinary meaning.” Artis v. District of Columbia, 583 U.S. ___, 138 S. Ct. 594, 603 (2018) (quotation marks omitted). The INA does not define the term “judgment.” Montero-Martinez, 277 F.3d at 1141. And at the time International Dictionary (1993); and “the mental or intellectual process of forming an opinion or evaluation by discerning and comparing” or “an opinion or estimate so formed,” id. The majority says these definitions fall into two categories: (1) final decisions or conclusions of a court based on the application of law to fact and (2) any decision reached by a court. Maj. Op. at 28. But a judgment can also be the exercise of discretion. See Montero-Martinez, 277 F.3d at 1144 (holding that the word “judgment” could mean “a decision involving the exercise of discretion” (quotation mark omitted)). This idea is supported by definitions like the “process of forming an opinion or evaluation by discerning and comparing.” Judgment, Webster‘s Third New International Dictionary (1993). And I do not agree with the majority that “any decision” is the only natural meaning in the context of Take, for example, the decision of whether to grant cancellation of removal under And the INA uses the word “judgment” in other places, where its meaning is never as broad as that assigned to it by the majority opinion. It is a well-established canon of interpretation that we presume the same word is intended to have the same meaning when used in different parts of the same act. Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574, 127 S. Ct. 1423, 1432 (2007). The word “judgment” is used thirteen times in the INA. See Montero-Martinez, 277 F.3d at 1141 n.5. When not referring to the final decision of a court, the term “judgment” is used exclusively to refer to discretionary decisions, including: the Attorney General‘s “judgment” of whether to establish DHS offices in foreign countries, judgment” to mean “any decision” or “findings of fact” surely weighs against imposing those meanings on the text of The surrounding statutory language casts further doubt on the majority‘s conclusion. The title of the subsection, “Denials of discretionary relief,” suggests that Congress intended to preclude review of the ultimate discretionary decision, as opposed Also, if we construe “judgment” to mean “any decision,” this would render the accompanying subsection, are specified as discretionary. See Montero-Martinez, 277 F.3d at 1143 n.7; Torres v. Lynch, 578 U.S. ___, 136 S. Ct. 1619, 1628 n.8 (2016) (noting courts ordinarily “assum[e] that Congress, when drafting a statute, gives each provision independent meaning“). Likewise, there are adjacent subsections of the statute, in which Congress clearly meant to strip courts of jurisdiction over all matters related to an immigration order or decision, and did so unequivocally and without ambiguity. Section 1252(a)(2)(A)(i), which immediately precedes An examination of the language of these three adjacent sections shows that if Congress wanted Also worthy of note, the Supreme Court interpreted the scope of Congress added in clause (ii) a catchall provision covering “any other decision . . . the authority for which is specified under this subchapter.” The proximity of clauses (i) and (ii), and the words linking them—“any other decision“—suggests that Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation. The clause (i) enumeration, we find, is instructive in determining the meaning of the clause (ii) catchall. Read harmoniously, both clauses convey that Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General‘s discretionary authority in the statute. Id. at 246–47 (emphasis added). Though I acknowledge this passage is dicta, the discussion is closely related to the statute and the concepts before us here. Kucana essentially tells us that Because of the presumption in favor of judicial review as well as the rule favoring narrow interpretation of deportation-related laws, it is not necessary for me to show that majority‘s understanding of “judgment” is impossible. I must show only that their interpretation barring judicial review is not required. And this statute just as naturally accepts the narrower definition I have given it. See Montero-Martinez, 277 F.3d at 1144 (“The meaning of ‘judgment’ in The best interpretation of to grant an immigration benefit does not mean that every determination . . . regarding an alien‘s application for that benefit is discretionary, and hence not subject to review“); Alvarado v. U.S. Att‘y Gen., 610 F.3d 1311, 1314 (11th Cir. 2010) (holding that the Court had jurisdiction to review the IJ‘s conclusion that respondent A review of the history and structure of removal proceedings is helpful to clarify the meaning of “discretionary decisions.” Courts have long recognized that within immigration proceedings there is “a distinction between eligibility for discretionary relief, on the one hand, and the favorable exercise of discretion, on the other hand.” St. Cyr, 533 U.S. at 307, 121 S. Ct. at 2283; Jay v. Boyd, 351 U.S. 345, 353, 76 S. Ct. 919, 924 (1956) (distinguishing eligibility for relief from the decision about whether to grant that relief); Judulang v. Holder, 565 U.S. 42, 48, 132 S. Ct. 476, 481 (2011) (describing two-step process of determining eligibility for discretionary relief and then determining whether to grant that relief). The first step, eligibility for relief, is generally “governed by specific statutory standards” for determining who may receive it. St. Cyr, 533 U.S. at 307–08, 121 S. Ct. at 2283 (quoting Jay, 351 U.S. at 353, 76 S. Ct. at 924); see also Zadvydas v. Davis, 533 U.S. 678, 688, 121 S. Ct. 2491, 2497 (2001) (“The aliens here . . . do not seek review of the Attorney General‘s exercise of discretion; rather, they challenge the extent of the Attorney General‘s authority under the [INA]. And the extent of that authority is not a matter of discretion.“). A noncitizen faces the discretionary decision of the immigration authorities only once she has established that the statute makes her eligible for that discretionary form of relief. Foti v. INS, 375 U.S. 217, 228 n.15, 84 S. Ct. 306, 313 n.15 (1963) (holding that since an immigration officer “cannot exercise his discretion . . . until he finds the alien statutorily eligible . . . , a finding of eligibility and an exercise of (or refusal to exercise) discretion may properly be considered as distinct and separate matters“); McGrath v. Kristensen, 340 U.S. 162, 165, 71 S. Ct. 224, 227 (1950) (“Eligibility is a statutory prerequisite to the Attorney General‘s exercise of his discretion to suspend deportation in this case.“). Unlike eligibility, the decision about whether to grant a form of relief for which a noncitizen is eligible “is in all cases a matter of grace,” and in most cases is not guided by clear statutory standards. Sеe St. Cyr, 533 U.S. at 307–08, 121 S. Ct. at 2283 (quotation marks omitted); Kucana, 558 U.S. at 247, 130 S. Ct. at 837 (describing the enumerated forms of relief in Mr. Patel‘s case illustrates the distinction between eligibility for relief and the discretionary decision of whether to grant that relief. Mr. Patel entered the United States without inspection but applied for adjustment of status under Characteristically, the statute carefully defines the conditions of eligibility for adjustment but gives no guidance as to which eligible candidates should receive this discretionary relief. That, of course, is left to the discretion of the Attorney General.8 In examining this area of the law, I recognize that some findings about eligibility are also left to the discretion of the Attorney General. In this regard, the majority offers the example of a noncitizen seeking cancellation of removal under removal would result in “exceptional and extremely unusual hardship” is one left to the discretion of the Attorney General, and so is not subject to review under There is a clear difference between straightforward factual findings and discretionary judgments. With this in mind, the narrower interpretation of “judgment” as “discretionary decision” produces a more coherent reading of the statute as a whole. In drafting subsections (i) and (ii), “Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation,” Kucana, 558 U.S. at 246–47, 130 S. Ct. at 836. Under this interpretation, subsection (i) would exclude from our review discretionary judgments, even including eligibility requirements that call common meaning of “judgment,” the adjacent statutory language, and longstanding precedent recognizing the distinction between discretionary and non-discretionary decisions. Certainly, this interpretation is at least as plausible as that given by the majority. And since we must construe the immigration statutes in favor of judicial review absent clear statutory language to the contrary, the ambiguity in The majority claims the distinction between discretionary and non-discretionary determinations has no statutory basis. Maj. Op. at 35–36. Yet this distinction has bеen repeatedly recognized by the Supreme Court. And as demonstrated here, it also emerges naturally from the structure of removal proceedings, the text of hardship” in any given case. The first determination is self-explanatory and can most often be easily verified as either correct or incorrect. But the same cannot be said of the second. That “hardship” determination requires the Attorney General to use judgment to place someone in a subjective category that lacks clear, self-explanatory boundaries. See Moosa v. INS, 171 F.3d 994, 1013 (5th Cir. 1999) (noting that the term “extreme hardship” is “not self-explanatory” and that reasonable people could differ as to its construction (quotation marks omitted)). There is no need for “mental gymnastics” to see the difference between these two categories, as the majority claims. Maj. Op. at 39. This Court and our sister circuits have been ably distinguishing them for decades. See, e.g., id.; Gonzalez-Oropeza, 321 F.3d at 1332–33. I also reject the view of the majority that the distinction between discretionary and non-discretionary eligibility findings is illogical as a matter of policy. Maj. Op. at 38–39. There is good reason to leave discretionary decisions in the hands of the Attorney General while maintaining appellate review of non-discretionary findings. For example, when interpreting the phrase “extreme hardship” in a predecessor statute to cases frоm the Immigration and Naturalization Service to this court.” INS v. Jong Ha Wang, 450 U.S. 139, 145–46, 101 S. Ct. 1027, 1031–32 (1981) (per curiam). Similarly, we do not review the ultimate decision of whether to grant discretionary relief because it is not bounded by clear statutory standards and requires The majority says we must read Nothing in the text or legislative history of review] may also be inferred from contemporaneous judicial construction barring review and the congressional acquiescence in it.“). Finally, I must address another serious problem with the majority‘s interpretation of Removal proceedings have two stages. First, the government has the burden of establishing, by clear and convincing evidence, that the noncitizen is removable. Bigler v. U.S. Att‘y Gen., 451 F.3d 728, 732 (11th Cir. 2006) (per curiam). The grounds for removability include both grounds of inadmissibility, proceedings and explaining that, since 1996, there has been a unified procedure for both excluding and deporting noncitizens). Then, if the government proves removability, or the noncitizen concedes it, the noncitizen may apply for various forms of discretionary relief. See Matovski v. Gonzales, 492 F.3d 722, 727 (6th Cir. 2007). These discretionary forms of relief include seeking an adjustment of status, as Mr. Patel did here. Id. For this, he bears the burden of proving eligibility. Id. To be eligible for some forms of discretionary relief, such as adjustment of status under ineligible for discretionary relief because he is inadmissible, our Court will lack jurisdiction to review that finding. In both cases, the IJ will have found the noncitizen inadmissible, but the government‘s charging decision alone will have established the scope of our jurisdiction. And that is exactly what happened to Mr. Patel. The government issued Mr. Patel an NTA that charged him with being removable for being an alien present in the United States without being admitted or paroled, pursuant to This outcome is at odds with Kucana. In Kucana, the Supreme Court interpreted Congress ensured that it, and only it, would limit the federal courts’ jurisdiction.” Id. at 252, 130 S. Ct. at 839. Giving the executive branch a “free hand to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions ‘discretionary‘” would be an “extraordinary delegation of authority” which “cannot be extracted from the statute Congress enacted.” Id. at 252, 130 S. Ct. at 840. If Today, the majority gives precisely this extraordinary degree of authority to immigration officials. The INA or Supreme Court precedent do not permit this. And this startling result offers an independent reason to reject the rule adopted by the majority here. In holding the IJ‘s factual findings unreviewable, the majority ignores a narrower interpretation of III.
A.
B.
1.
2.
C.
IV.
Notes
St. Cyr does not support the majority‘s reasoning. In St. Cyr, the Supreme Court considered whether portions of the Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA“) “stripped the courts of jurisdiction to decide the question of law presented by respondent‘s habeas corpus application.” St. Cyr, 533 U.S. at 298. Applying the canons favoring judicial review and constitutional avoidance, it concluded that the disputed statutes did not withdraw the power of federal courts to review such questions. Id. at 305. Whether those statutes withdrew jurisdiction to review findings of fact was not before the Court. Thus, it is unsurprising the Court preserved only the authority to review questions of law. Nothing in St. Cyr, or any other decision I am aware of, implies that preserving review of questions of law independently satisfies the presumption of judicial review of agency action.
For example, the due process considerations at the two stages differ. See Matovski v. Gonzales, 492 F.3d 722, 738 (6th Cir. 2007). The government bears the burden of proving removability by clear and convincing evidence, while the applicant bears the burden of establishing admissibility clearly and beyond doubt. Id. The government must inform the alien of the specific allegations which would justify removal but need not list all grounds for inadmissibility in the notice to appear. See Aalund v. Marshall, 461 F.2d 710, 712 (5th Cir. 1972); Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006). Aliens are entitled to effective assistance of counsel during the removal proceeding yet lack the same constitutional protection when seeking discretionary relief. Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999). Applicants cannot mount substantive due process challenges to eligibility considerations for discretionary relief because, we have held, they lack the requisite liberty interest. Mohammed v. Ashcroft, 261 F.3d 1244, 1250–51 (11th Cir. 2001).
Given that these differences follow from the government‘s charging decisions, it is not surprising that our jurisdiction to review the two determinations may also differ. Congress explicitly limited our jurisdiction to review “any judgment regarding the granting of relief under”
For one, some of the inadmissibility criteria are statutorily specified to be in the discretion of the Attorney General. See, e.g.,
The dissent‘s interpretation assumes that an inadmissibility determination is one straightforward, non-discretionary decision. In reality, that eligibility determination is the culmination of a variety of judgments.