Article: Shabaj v. Holder: Has the Court of Appeals for the Second Circuit Split with the Third Circuit on Judicial Review of Certain USCIS Application Denials? What Sort of Judicial Review of USCIS Legal Errors Remains Available?
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Although it is not entirely clear from the decision in Shabaj what sort of legal error was alleged, there does not seem to have been any dispute that Mr. Shabaj required a waiver of inadmissibility due to his past fraud, or that his U.S. citizen wife was actually his wife and was actually a U.S. citizen. Rather, the dispute was over whether he had sufficiently established that his wife would suffer extreme hardship if he were removed—a decision that the Second Circuit had held to be discretionary, seeCamara v. Dep’t of Homeland Sec., 497 F. 3d. 121 (2d Cir. 2007). In Pinho, on the other hand, the dispute was over whether Mr. Pinho was inadmissible at all. The disputed determination of eligibility for adjustment in Pinho was, one might say, logically prior to the discretionary decision on the ultimate adjustment application, while the disputed determination of hardship in Shabaj was itself one that is deemed discretionary.
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. Under those circumstances, as permitted by § 1252(a)(2)(D), we would have jurisdiction over any “constitutional claims or questions of law” raised by petitions for review to this court.
David A. Isaacson is an Associate at Cyrus D. Mehta & Associates, PLLC where he works on immigration and nationality law matters. David's practice includes asylum cases, other removal proceedings such as those based on criminal convictions or denied applications for adjustment of status, and federal appellate litigation, as well as a variety of family-based and employment-based applications for both nonimmigrant visas and permanent residence. David also assists clients in citizenship matters and late legalization matters.