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 all in dread of the decision in Reno v. American-Arab Anti-Discrimination Committee. When the decision came out, it limited the jurisdiction-stripping threat in IIRIRA. 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, and the Supreme Court today has surprised us, an earthquake decision bringing on much of the damage we feared in 1998, in Patel v. Garland. The case holds that Federal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings in adjustment of status cases as well as 212(h) waivers, 212(i) waivers, Cancellation cases, voluntary departure cases, and any other cases where the decision is discretionary. Posted May 16, 2022.