Supreme Court delivers a Monday morning earthquake.

Monday, May 16th, 2022
By: Jonathan MontagJ.D.

Some may recall that immediately after IIRIRA, in 1997 and 1998, there was great concern that judicial review of agency action would be decimated. We were in dread awaiting a decision in Reno v. American-Arab Anti-Discrimination Committee. When the decision came out, to our collective relief, it limited the jurisdiction-stripping threat from the new law. Circuit court decisions held that judicial review existed, even in cases dealing with decisions involving discretionary determinations, a major jurisdiction-stripping aspect of IRIIRA. For example, the 9th Circuit held in Hernandez v. Ashcroft that determinations that require application of law to factual determinations are nondiscretionary.

The raised tentacles of concern in 1998 were not stimulated at all at present, Thus, the Supreme Court today surprised us, bringing on much of the damage we feared in 1998, in an earthquake decision in Patel v. Garland. The Supreme Court held that federal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings when adjusting status, seeking waivers under 212(h) and 212(i), seeking Cancellation of Removal, seeking voluntary departure, and any other discretionary immigration benefits. There may be some exceptions for petitions for review, but this remains to be seen and seems improbable from the language of the decision, “The reviewability of such decisions is not before us, and we do not decide it. But it is possible that Congress did, in fact, intend to close that door.” Posted May 16, 2022.


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