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 ....


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
."  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. 


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