APPEAL MATTERS - an Immigration Defense and Expert Advocacy Solutions (IDEAS) Blog

by Lory D. Rosenberg

Appeal and access to the federal courts is an essential underpinning of agency accountability, insuring that fairness is observed and justice is served in the implementation of United States immigration laws. As the potential for realization of true immigration reform grows, no desire for legislative simplicity, no concern over excessive enforcement, and no plan for expeditious processing of the greatest number of immigrants, however laudable each of these goals may be, is more important than the right to impartial review, and that .... APPEAL MATTERS


Have you found yourself wondering recently about the state of federal appellate jurisdiction over discretionary waiver decisions? A cautionary tale at best, and before venturing into new territory, policymakers would be well-advised to be cognizant of the gaps and issues that plague the present scheme and remain unresolved.

In Shabaj v. Holder, 2013 U.S. App. LEXIS 975 (2d Cir. 2013), the Court of Appeals for the Second Circuit held that "the district court lacked jurisdiction to review the United States Citizenship and Immigration Services’ discretionary decision to deny Plaintiff-Appellant’s application for a waiver of inadmissibility under 8 U.S.C. § 1182(i)(1) because judicial review of such decisions is available only for “constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals."

The Circuit Court affirmed the ruling of the District Court on jurisdictional grounds for two reasons arising out of the particular facts and posture of this individual case. The petitioner's appeal is a challenge by an individual who initially was denied admission to the United States based on misrepresentation involving a false passport used in an effort to enter under the Visa Waiver Program, and then subsequently denied a 212(i) waiver under 8 U.S.C. § 1182(i)(1) that would have allowed a grant of adjustment of status based on his valid marriage. It also constitutes a challenge by one treated as a participant in the Visa Waiver Program, albeit an illegitimate one, who was not afforded a removal hearing before an Immigration Judge, and therefore, was unable to seek review of the waiver he sought at the Board of Immigration Appeals or before the court of appeals.

In this posture, the petitioner was subject to the bar precluding appeal of the waiver denial found in 8 U.S.C. § 1182(i)(1), and could not avail himself of the exception to the general preclusion of review over discretionary determinations available under 8 U.S.C. § 1252(a)(2)(D).  As the Second Circuit's decision in Shabaj points out, such an exception is available in the case of any “constitutional claims or questions of law” raised by a petition for review to the court of appeals, because the key limiting  language in (D) reads: “upon a petition for review filed with an appropriate court of appeals.”  U.S. App. LEXIS 975 supra. at 9 (emphasis added).  Shabaj was unable to file such a petition to the court of appeals  because he was barred from presenting his case in a removal hearing  that would form the predicate for such review.

The problem here is the collision of disparate jurisdictional preclusions on three different fronts – a preclusion of review of the agency's denial of a waiver, coupled with a second preclusion of a hearing before an immigration court in which a waiver adjudication would be subject to review in the context of an agency appeal, and the denial of access to a later–in-time statutory exception to yet a third preclusion of review of discretionary decisions in the court of appeals.   

What does this tell us about the nature of the enforcement adjudication scheme intended to secure removal of immigration law violators?   How does the exception in subsection (D) apply in light of the limitations on Visa Waiver Program participants which preclude their being afforded a removal hearing in proceedings before the immigration court?  Although one might argue that the benefit  of an expeditious nonimmigrant admission without having to obtain a formally issued visa justifies giving up the right to a removal hearing in the event the participant is found inadmissible or violates the terms of his nonimmigrant stay,  the participant's eligibility for more permanent immigration benefits continues to exist.  Moreover, the waivers applicable in that context implicate not only the participant's success in acquiring a new status, but  the potential hardship to a spouse or close family member who is a lawful resident or citizen of the United States.

For that matter, it is not only beneficiaries of the Visa Waivers Program who may be adversely affected. In the absence of removal  proceedings that ultimately lead to judicial review over any constitutional questions or questions of law arising in the adjudication of waivers by USCIS and the AAO,  there is no opportunity to insure the  accuracy and integrity of the adjudication.  Given DHS's general prosecutorial discretion to determine whether to initiate such removal proceedings before EOIR, there seems to be no way that an applicant might obtain review at any level beyond the AAO, much less invoke subsection (D).   Does this mean that DHS simply may refuse to issue a Notice To Appear once USCIS and the AAO deny a waiver accompanying an application for adjustment of status, thus foreclosing the path to appellate review and precluding federal court review of a constitutionally or legally deficient waiver denial?

Likewise, Shabaj's appeal  raises the question whether any recourse exists to challenge a USCIS decision to deny him a waiver of inadmissibility under 8 U.S.C. § 1182(i)(1) that is erroneous as a matter of law, not withstanding the statutory preclusion n review of the denial.  How does the prohibition on review of waiver decisions in subparagraph 2 of § 1182(i) square with congressional intent to provide general review authority over errors of law that is plainly articulated in other parts of the Immigration and Nationality Act such as subsection (D)?

The Second Circuit's comment that "Although Shabaj is ineligible to reopen his removal proceedings and file a petition for review because of his participation in the Visa Waiver Program, see 8 U.S.C. § 1187(b), we do not mean to preclude a petitioner who is otherwise eligible to reopen proceedings from attempting to reopen those proceedings in order to raise legal challenges to hardship rulings by the AAO" is surely of little comfort to Shabaj. And it also should raise concerns about the credibility and workability of these intertwining provisions, motivating examination of the rationale and practical realities underlying our system of removal, access to benefits, and review.

About The Author

Lory D. Rosenberg is an award-winning attorney and owner of IDEAS Consultation & Coaching, LLC, a unique immigration law consulting and mentoring practice providing high-achieving immigration lawyers, leaders and businesses with comprehensive analysis, strategy, expert opinion, and collaboration, so they can successfully obtain visa approvals and lawful permanent residence, defend against removal, and win appeals for their clients despite complex and challenging circumstances.  Ms. Rosenberg is a national speaker and former adjunct professor, who served from 1995-2002 as an appellate immigration judge on the Board of Immigration Appeals. She is co-author of the leading treatise, Immigration Law and Crimes, was a featured columnist for Benders Immigration Bulletin (2002-2007, and has extensive experience as a legal analyst, practitioner, writer, trainer, non-profit director, litigator, policy advocate, and decision-maker involving immigration law and policy. Her website is

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