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?


A. Isaacson

January 15, 2013, the Court of Appeals for the Second Circuit issued a
precedential decision in the case of
Shabaj v. Holder,
No. 12-703.  Paulin Shabaj, the plaintiff
in the case, had come to the United States in November 2000 with a false
Italian passport and sought asylum.  His
asylum application was ultimately denied, but while in asylum-only proceedings
before an immigration court, he had married a U.S. citizen in July 2005.  Although USCIS determined Mr. Shabaj’s marriage
to be bona fide and approved his wife’s I-130 petition, it denied his
application for a waiver under INA § 212(i) of his inadmissibility due to his
previous fraud, and denied his related application for adjustment of status.  Mr. Shabaj filed a lawsuit in the U.S.
District Court for the Southern District of New York, challenging the
determination of the USCIS Administrative Appeals Office (AAO) that he had
failed to demonstrate that his wife would suffer extreme hardship if he were
removed from the United States.  The
Second Circuit, in its recent decision, affirmed the District Court’s decision
that it lacked jurisdiction to review this denial, even though Mr. Shabaj
asserted “that CIS’s decision to deny his section 212(i) waiver application was
erroneous as a matter of law.” 
Shabaj, slip op. at 4.

the Second Circuit indicated in Shabaj,
there is a specific provision in the second subparagraph of section 212(i)
stating that “[n]o court shall have jurisdiction to review a decision or action
of the Attorney General regarding a waiver [of inadmissibility] under paragraph
(1).”  8 U.S.C. § 1182(i)(2).  There is also a more general provision
regarding judicial review of discretionary relief, 8 U.S.C. § 1252(a)(2)(B), which
provides that “no court shall have jurisdiction to review . . . any judgment
regarding the granting of relief under” various sections of the INA providing
for discretionary relief, including INA § 212(i).  Shabaj sought to rely on the exception provided by 8 U.S.C. § 1252(a)(2)(D) that preserves jurisdiction over
“constitutional claims or questions of law,” but the Second Circuit rejected
this argument because § 1252(a)(2)(D) applies to “constitutional claims or
questions of law raised upon a petition for review filed in an appropriate court of appeals”; Shabaj had raised his arguments about the denial of his § 212(i) waiver not in a petition for review (his earlier petition for review from the Visa Waiver Program removal order against him having been denied previously, see Shabaj v. Holder, 602 F.3d 103 (2d Cir.
), but in a suit before the district court.  Thus, because Shabaj, having participated in the Visa Waiver Program with his false Italian passport, was unable to seek to reopen his removal order and file a new petition for review, he could not
obtain judicial review of the asserted legal errors in the USCIS denial of his § 212(i) waiver and adjustment application.>>

At first glance, there might appear to be a conflict between Shabaj and the decision of the Court of Appeals for the Third Circuit in Pinho v. Gonzales, 422 F.3d 193 (3d Cir.2005).  Gummersindho Pinho, the plaintiff in that case, had been arrested and charged with three counts
relating to possession of cocaine and intent to distribute it.  His application for New Jersey’s “Pre-Trial Intervention” (PTI) program was rejected because of a subsequently invalidated policy “against accepting into PTI any defendant against whom there was a viable case for possession with intent to distribute drugs at or near a school”,
id. at 196, and in 1992 he pled guilty
topossession of cocaine. He then sought post-conviction relief in 1997 based on
the ineffective assistance of his criminal defense counsel.  At the hearing on Pinho’s ineffective-assistance claim, pursuant to prior discussions between Pinho’s then-counsel and the state prosecutor, it was explained that Pinho had been accepted into PTI, and his conviction was vacated and the charges dismissed.  Nonetheless, Pinho’s 2000 application for adjustment of status was denied by the then-INSon the theory that his 1992 guilty plea met the INA definition of a “conviction” despite having been
vacated, rendering him inadmissible and ineligible for adjustment of status.

was not placed in removal proceedings, and so sought review of the denial of his
adjustment application through a lawsuit in District Court “seeking a
declaratory judgment that the denial of his adjustment of status was arbitrary,
capricious and unlawful because his vacated state conviction should no longer
be a bar to his eligibility for adjustment.” 
422 F.3d at 198.  Despite the
statutory bar on review of discretionary decisions, including the denial of an
application for adjustment of status under INA § 245 (which is specifically
mentioned among the types of discretionary relief covered by § 1252(a)(2)(B)),
the Third Circuit found that the District Court had jurisdiction over this
suit.  As the Third Circuit explained:

It is important to distinguish carefully between a denial of an application to adjust status, and a determination that an
immigrant is legally ineligible for adjustment of status. This distinction is
central to the question of subject-matter jurisdiction, and is easy to elide.
Indeed, such distinctions are crucial to administrative law generally; the
framework of judicial review of agency action that has evolved over the past
half-century is grounded in a sharp distinction between decisions committed to
agency discretion, and decisions, whether ‘ministerial’ or ‘purely legal,’
governed directly by the applicable statute or regulation. . . . Whatever the
label, our case law distinguishes between actions which an agency official may
freely decide to take or not to take, and those which he is obligated by law to
take or not to take. In the case of adjustment of status, an eligible immigrant
may have his application denied within the discretion of the agency. But
the immigrant's eligibility itself is determined by statute. To treat all
denials of adjustment as discretionary, even when based on eligibility
determinations that are plainly matters of law, is to fundamentally
misunderstand the relationship between the executive and the judiciary.

. . . .

Determination of eligibility for adjustment of
status — unlike the granting of adjustment itself —is a purely legal
question and does not implicate agency discretion. . . . . The determination at
issue here is precisely such a determination: whether under the applicable
statutory language as interpreted by the BIA, Pinho was “convicted” so as to
render him ineligible for adjustment of status. This is a legal question, not
one committed to agency discretion.>>

Pinho, 422 F.3d at 203-204.  That is, the Third Circuit found that a
District Court had jurisdiction over the claim that Pinho had been found
ineligible for adjustment of status based on a legal error, even outside the
context of removal proceedings.  At first
glance, this would seem to reach the opposite result as Shabaj, under analogous circumstances.

jurisdiction of the
Second Circuit
includes New York, Connecticut, and Vermont, while the jurisdiction of the
Third Circuit includes New Jersey,
Pennsylvania, and Delaware, as well as the U.S. Virgin Islands.  If there is a split between the Second and Third Circuits on this issue, therefore, it would mean that adjustment applicants in New York would have less access to judicial review than
adjustment applicants in New Jersey. There may, however, be a way to read
Pinho in harmony with one another.

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

the context of § 1252(a)(2)(D) jurisdiction over constitutional claims and
questions of law raised on a petition for review, it is possible for a reviewable
legal error to exist even within a discretionary determination, if the
adjudicating authority has used an incorrect legal standard or has committed
some other legal error in making the discretionary determination.  In Pareja v. Att’y Gen., 615 F.3d 180 (3d
Cir. 2010)
 (in which this author was counsel for the petitioner), for
example, the Third Circuit found jurisdiction to hold that the agency could not
consider the petitioner’s number of qualifying relatives as a factor necessarily
weighing against her ability to establish exceptional and extremely unusual
hardship to a qualifying relative for purposes of cancellation of removal under
INA § 240A(b)(1)(D).  Similarly, the
Second Circuit in Mendez v. Holder, 566 F.3d 316 (2d Cir.
, found that the agency had made an error of law in its determination
of exceptional and extremely unusual hardship “where . . . some facts important
to the subtle determination of ‘exceptional and extremely unusual hardship’
have been totally overlooked and others have been seriously mischaracterized,” id. at 323.  Shabaj
may stand for the proposition that the sort of legal error at issue in Pareja or Mendez, which is a part of the hardship analysis or other discretionary
analysis, cannot be the basis of a lawsuit in district court; this is not
necessarily inconsistent with the idea that a legal error like that at issue in
Pinho, which is part of an
eligibility determination logically prior to the discretionary analysis, can be
the basis of such a lawsuit.  One could
certainly argue with some force that the Pareja/Mendez
type of error should also be cognizable in district court, on the ground that
the agency has no discretion to commit a legal error of any sort, but there is
a potential distinction between the two sorts of legal error that could allow
one to read Shabaj and Pinho as consistent with one another.

any event, whether or not one reads Shabaj
to conflict with Pinho, it is at
least clear that Shabaj should not
prevent judicial review of USCIS denials of petitions or applications that are
not made discretionary by statute.The decision to deny an immigrant petition
for a relative or prospective employee (an I-130 petition, I-140 petition, or
I-360 petition for a religious worker), for example, is not discretionary,
because INA 204(b) states that
the Attorney General “shall” approve the petition if he determines that the
facts in the petition are true, and the alien for whom the petition is filed is
an immediate relative as defined by statute or is eligible for the requested
preference.  (This decision is normally now made by the Secretary of
Homeland Security and her delegates within USCIS, although a BIA decision on an
administrative appeal regarding an I-130 petition is still under the authority
of the Attorney General.)  Thus, district
courts have jurisdiction to review the denial of such petitions, as has been
held in such cases as Ogbolumani v. Napolitano, 557 F.3d 729
(7th Cir. 2009)
;Ruiz v. Mukasey, 552 F.3d 269 (2d Cir.
; Ayanbadejo v. Chertoff, 517 F.3d 273
(5th Cir. 2008)
; and Soltane v. U.S. Dep’t of Justice, 381
F.3d 143 (3d Cir. 2004)
.  Similarly, district courts should have
jurisdiction to review denials of H-1B and other nonimmigrant visa petitions,
as described in an
earliest post on this blog by Cyrus D. Mehta
, because the decision on those petitions as well is not
specified by the statute to be in the discretion of the Attorney General: INA §
214(c)(1) states that “the question of importing any alien as a nonimmigrant
under [various subparagraphs] shall be determined by the Attorney General,
after consultation with appropriate agencies of the government, upon petition
of the importing employer.” In Kucana v. Holder, 558 U.S. 233 (2010), the Supreme Court made clear that only decisions
actually declared discretionary by statute can be immunized from judicial
review, superseding some earlier Court of Appeals decisions which had suggested
that decisions made discretionary by regulation could also be immune from
review.  (At least one such pre-Kucana decision,
CDI Information Services Inc., v. Reno,
278 F.3d 616 (6th Cir 2002)
, had
refused on that basis to review the denial of an H-1B application for extension
of stay.)

addition to not precluding judicial review of denials of petitions or
applications that are not explicitly made discretionary, Shabaj may not preclude judicial review of a USCIS denial of a
discretionary waiver or adjustment application when the denial relates to an
applicant who at that time or subsequently is the subject of an otherwise reviewable
order of removal, even if the discretionary waiver or adjustment denial comes
from USCIS rather than the immigration courts and the BIA—as could happen with
many “arriving aliens” whose adjustment applications fall outside immigration
court jurisdiction.  As the Shabaj opinion explained in footnote 4:

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.

Shabaj v. Holder, slip op. at 6 n.4.  The process that this footnote seems to
contemplate, in which a Court of Appeals could review an AAO decision in a
petition for review from a removal order even though the authorities that
issued the removal order did not themselves have any ability to address the AAO
decision, would not be unprecedented. 
Judicial review of an AAO decision denying an application for
legalization under the Immigration Reform and Control Act of 1986 or the
related LIFE Act Legalization provisions proceeds in this way, as explained in Orquera v. Ashcroft, 357 F.3d 413 (4th
Cir. 2003)
: the legalization applicant must become subject to an order of
removal or deportation, and then petition for review of that order,to seek
judicial review of the legalization denial, even though the immigration judge and
the BIA cannot review the legalization denial during the removal proceedings.  If an arriving alien whose adjustment
application or related waiver application is denied by USCIS later becomes
subject to an order of removal, footnote 4 of Shabaj suggests that they could seek review of the USCIS
determination on petition for review of the removal order, analogously to the
process discussed in Orquera.

if an arriving alien is already the subject of an order of removal when their
adjustment application or related waiver application is denied by USCIS, it should
be possible to seek judicial review of that denial despite Shabaj, so long as there is no order under the Visa Waiver Program
(or at least no valid order, since such
orders are sometimes issued in error
and can then be set aside on a
petition for review).  As previously explained in an article by this author on our firm’s website, denial of an adjustment application
made by an arriving alien against whom an order of removal is already
outstanding could be analogized to the denial of an asylum application by an
applicant who has been ordered removed under the Visa Waiver Program.  In both cases, the denial of the outstanding application enables the removal of the applicant, even though the denial is in some technical sense not a removal order.  Thus, just as the Second Circuit has found jurisdiction over a petition for review of the denial of an asylum application in asylum-only proceedings because such a denial is “the functional equivalent of a removal order,” Kanacevic v. INS, 448 F.3d 129, 134-135 (2d Cir. 2006), it should find jurisdiction over a petition for review of the denial of an adjustment application by an arriving alien against whom there is a final order of removal. Alternatively, under Shabaj footnote 4, it may be possible for such an arriving alien to seek reopening of the
removal proceedings to pursue such an arriving-alien adjustment application,
which would presumably be denied under Matter of Yauri, 25 I N Dec. 103 (BIA 2009) (in which the BIA held that it would not reopen proceedings for an arriving alien to apply for adjustment before USCIS because such reopening was not necessary to allow adjustment), and then petition for review of the
denial of reopening and seek review of any adjustment or waiver denial in the
context of that petition.>>

This post originally appeared on The Insightful Immigration Blog on January 28, 2013.

About The Authors

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.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.