Lee v. USCIS (4th Cir. Jan. 25, 2010)
TRAXLER Niemeyer Agee
Lee applied for adjustment of status, which was denied by USCIS - but they never put him into removal proceedings. He brought an action in District Court, on the basis of APA and 1331 (federal question jurisdiction), arguing that USCIS's reasons for denying the petition were legally flawed. The DistCt dismissed for lack of jurisdiction; a finding which the 4th cir upheld.
1. It should be noted that the legal arguments regarding adjustment eligibility were very interesting. Lee had been substituted on a labor certification which had been filed early enough to grandfather him into 245(i) eligibility, but the regulations wouldn't allow grandfathering because Lee wasn't named in the original labor cert. There was also an issue regarding portability under 204(j). But the courts didn't really get to those arguments, because he was kicked out for lack of jurisdiction.
2. The CtApp explained that the APA is a waiver of sovereign immunity, not a jurisdictional grant; but 1331 gives jurisdiction. However, the APA doesn't apply where another statute strips jurisdiction.
3. The CtApp found that 1252(a)(2)(B)(i) strips jurisdiction over actions related to adjustment of status.
The claim raised in Lee’s APA action falls squarely within the scope of § 1252(a)(2)(B)(i). Although Lee’s claim in his amended complaint is carefully worded to avoid expressly challenging the denial of his application for adjustment of status, that is clearly what Lee seeks to do. Lee’s complaint is that the District Director made a faulty eligibility determination under § 1255(i); that determination was the sole basis for the denial of Lee’s application and cannot be divorced from the denial itself.
4. Because 1252(a)(2)(D) applies on its face only in the context of a Petition for Review, nothing restored jurisdiction over questions of law.
Even if we assume Lee’s challenge raises a reviewable question of law, § 1252(a)(2)(D) does not give Lee a jurisdictional bootstrap into district court. The express language of the statute requires Lee to raise any constitutional or legal questions "upon a petition for review filed with an appropriate court of appeals." 8 U.S.C. § 1252(a)(2)(D). To the extent Congress decided to permit judicial review of a constitutional or legal issue bearing upon the denial of adjustment of status, it intended for the issue to be raised to the court of appeals during removal proceedings.
5. Therefore, the CtApp concluded that:
the district court did not have jurisdiction to entertain Lee’s challenge to the District Director’s eligibility determination and subsequent denial of adjustment of status. See Abdelwahab, 578 F.3d at 820-21; Hassan, 543 F.3d at 566; McBrearty v. Perryman, 212 F.3d 985, 987 (7th Cir. 2000); cf. Hamilton, 485 F.3d at 567. But see Pinho v. Gonzales, 432 F.3d 193, 200-04 (3d Cir. 2005). The statute specifically provides that the exclusive means of judicial review of a legal issue related to the denial of an adjustment of status is by a petition for review to the court of appeals.
6. Note that the CtApp did not base its decision on failure to exhaust. Since the regulations permit an adjustment application to be renewed in removal proceedings, it would have been a plausible argument to say that he had to wait until being put into removal proceedings, and then losing, before challenging the denial in federal court. Lee argued that this would have left him in limbo, if DHS decided not to put him in proceedings.
[Particularly prior to the enactment of 1252(a)(2)(D), courts interpreted 1252(a)(2)(B), and had found that it only applies to decisions involving judgment or discretion; not to factual errors, and certainly not to legal ones. Most prominently, the Supreme Court did so in Zadvydas, finding that legal challenges 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 postremoval-period detention statute. And the extent of that authority is not a matter of discretion." Zadvydas v. Davis, 533 U.S. 678, 688 (2001). Various CtApp decisions hold similarly as to purely legal claims; though the 4th cir never had occasion to reach the question. Singh v. Gonzales, 413 F.3d 156, 160 n.4 (1st Cir. 2005); Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005); Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir. 2006); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215-16 (5th Cir. 2003); Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661 (5th Cir. 2003); Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir. 2005); Aburto-Rocha v. Mukasey, 535 F.3d 500, 502-03 (6th Cir. 2008); Ortiz-Cornejo v. Gonzales, 400 F.3d 610, 612 (8th Cir. 2005); Gutierrez v. Mukasey, 521 F.3d 1114, 1116 (9th Cir. 2008); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1140-41 (9th Cir. 2002); San Pedro v. Ashcroft, 395 F.3d 1156, 1157-58 (9th Cir. 2005); Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1147-49 (10th Cir. 2005). The case law with regard to factual claims relating to discretionary applications is more varied, see e.g., Andrada v. Gonzales, 459 F.3d 538, 542 (5th Cir. 2006), but the majority of the CtApps would find that 1252(a)(2)(B) doesn't bar review over fact claims, either.
[It seems to me that if the CtApp wanted to reach this conclusion, a better course would have been to rule on the basis of finality. The APA generally permits review over final agency decisions, not provisional ones. USCIS's denial of adjustment was non-final in many senses, since adjustment can be renewed in proceedings. (Which, by the way, is why it's so annoying when USCIS denies a work permit in that situation.) The federal courts have some interest in avoiding unnecessary entanglements with immigration matters, particularly where the problem might be resolved or clarified in the removal process. I mean, look at this legal argument! It seems to me the courts' disinclination to permit an end-run around EOIR is not error, but the 4th Cir reached that end by interpreting 1252(a)(2)(B)(i) in a uniquely wrong way. It is to be hoped that rehearing is sought. - CR]