Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Elldakli v. Garland (April 4, 2023) No. 22-20344 are as follows:

 

Case History

United States Customs and Immigration Services (“USCIS”) prematurely granted the Petitioner’s family members’ adjustment applications (Form I-485) before it had made a decision relating to the Petitioner’s labor based visa petition (Form I-140).

 

USCIS denied the Petitioner’s visa petition.

 

The Petitioner appealed the denial of his visa petition to the USCIS Administrative Appeals Office (“AAO”).

 

USCIS then issued a notice to rescind the lawful permanent resident status of the Petitioner’s family members (which had been granted prematurely) during the pendency of the Petitioner’s AAO appeal.

 

The AAO then affirmed USCIS’s denial of the Petitioner’s visa petition and dismissed his appeal.

 

The Petitioner and his family filed a complaint in district court seeking a temporary restraining order to keep USCIS from rescinding the green cards and to reopen consideration of the adjustment of status applications, arguing that denial of the Petitioner's visa petition (Form I-140) was arbitrary and capricious.

 

The district court dismissed the complaint.

 

The Petitioner filed a petition for review.   

 

 

Facts

• The district court determined that it had no subject matter jurisdiction to review the original denial of the Form I-140 visa petition because plaintiffs had not exhausted their administrative remedies.
• The district court then concluded that section 242(a)(2)(B)(i) of the Immigration and Nationality Act, as amended (“the Act”) (i.e. provisions that limit appellate jurisdiction over certain administrative discretionary decisions) precludes federal jurisdiction over discretionary agency decisions granting adjustment of status under section 245 of the Act.
• Thus, the district court dismissed the Petitioners’ complaint for lack of jurisdiction.

 

Held

Petition for Review DISMISSED

 

Rationale

The Petitioners assert that:

1. the district court erred in holding that “[a]ny judgment regarding the granting of relief under section 245 of the Act, which provides the statutory authority for I-485 applications, is in the category of discretionary decisions that no court has jurisdiction to review;” and
2. federal subject-matter jurisdiction exists under the Administrative Procedure Act ("APA"), the Declaratory Judgment Act, as well as federal question jurisdiction.

 

The Fifth Circuit Court of Appeal reasoned as follows:

• The Declaratory Judgment Act is not an independent basis for subject matter jurisdiction.  In re B-727 Aircraft Serial No. 21010, 272 F.3d 264, 270 (5th Cir. 2001).
• The APA allows federal courts to review an agency action that is “made reviewable by statute” or is a “final agency action for which there is no other adequate remedy in court.”  See 5 U.S.C. § 704.
• Agency action is not subject to judicial review where the relevant statute precludes such review or the action is committed to agency discretion by law. See 5 U.S.C. § 701(a)(1) – (2).
• Section 242(d)(1) of the Act provides that “a court may review a final order of removal only if [among other requirements] the alien has exhausted all administrative remedies available to the alien as of right.”
• “As a matter of jurisdiction, courts may not review the administrative decisions of the INA unless the appellant has first exhausted ‘all administrative remedies.’”  Cardoso v. Reno, 216 F.3d 512, at 518 (5th Cir. 2000) (citing section 242(d) of the Act (1999)).
• Status-adjustment decisions by USCIS are not final removal actions under the Act because aliens may renew status-adjustment requests upon commencement of removal proceedings.
• A significant number of unpublished appellate decisions and district court decisions have held that a USCIS status-adjustment decision is a not a final agency action such that the APA might grant jurisdiction despite the limitation of jurisdiction to removal actions in the Act.  See 8 C.F.R. § 245.2 (a)(5)(ii).
• Adoption of the majority view described immediately above leads to the conclusion that subject matter appellate jurisdiction does not exist to allow review a status-adjustment decision by USCIS under either the APA or the INA, because the alien retains the right to de novo review of that decision in his final removal proceedings.
• In the case of the Petitioners, they have not yet exhausted their administrative remedies.  Therefore, an appellate court may not exercise jurisdiction.  See Cardoso v. Reno, 216 F.3d at 518.

 

Commentary

Review of the Fifth Circuit Court of Appeal’s routine interpretation of section 242(d)(1) of the Act might be useful to some readers.

To establish a foundation for appellate court jurisdiction by first exhausting administrative remedies according to section 242(d)(1) of the Act, a petitioner must sometimes raise the issue in a motion for reconsideration.  See Avelar-Oliva v. Barr, 954 F.3d 757, at 766 (5th Cir. 2020) (“Avelar-Oliva’s contention that the BIA misapplied the standard of review should have been presented to the BIA in a motion for reconsideration.”).

In Sonia Maritzel Martinez-Guevara v. Garland (March 3, 2022) No. 20-60624, the Fifth Circuit Court of Appeal provided additional guidance about how it applies section 242(d)(1) of the Act.

The fundamental jurisdictional question that the Fifth Circuit Court of Appeal asks is whether the BIA was given a chance to consider the issue presented for appellate review.

Also, whether or not an issue is presented by the petitioner, if the BIA spontaneously considers the issue or the BIA considers an issue raised by the government the issue is exhausted and the appellate court has jurisdiction to review it.

No jurisdiction for appellate review of an issue exists if the BIA was not given an opportunity to consider it and did not actually consider it.

The following summary might provide clarity.

 

Jurisdiction (based on exhaustion of administrative remedies) exists if:

The petitioner “raised, presented, or mentioned” the direct predicate of the BIA’s error to the BIA.  Vazquez v. Sessions, 885 F.3d 862, at 868 (5th Cir. 2018) (e.g. the BIA wrongly weighed the evidence or misapplied the law) so long as the petitioner had raised the same issue to the BIA on appeal from the Immigration Judge.  See, also, Dale v. Holder, 610 F.3d 294, at 300 (5th Cir. 2010).

 

Jurisdiction (based on exhaustion of administrative remedies) does not exist if:

• The petitioner alleges a new defect that the BIA “never had a chance to consider.” Avelar-Oliva v. Barr, 954 F.3d 757, at 766 (5th Cir. 2020).
• The petitioner claims that the BIA “engaged in impermissible factfinding.” Omari v. Holder, 562 F.3d 314, at 321 (5^th Cir. 2009).
• The petitioner claims that the BIA applied the wrong standard of review Avelar-Oliva, 954 F.3d 757, at 766 (5^th Cir. 2020).
• The Petitioner claims that the BIA’s ruling on a properly presented issue breached a procedural requirement or the petitioner’s due process rights, Roy v. Ashcroft, 389 F.3d 132, at 137 (5^th Cir. 2004) (per curiam) (“Procedural error correctable by the Board . . . properly subject to the exhaustion requirement”).

An issue that has not been exhausted requires a motion to reconsider timely filed at the BIA to establish appellate jurisdiction in the Fifth Circuit Court of Appeal.

As the best practice for preserving jurisdiction for appellate review, if the BIA does not address all of the issues raised in an appeal to the BIA (or when in doubt) a motion to reconsider should be timely filed within 30 days of the date of entry of a final administrative order of removal.  See section 240(c)(6)(C) of the Act; 8 C.F.R. § 1003.23(b)(1).

Most of the time, the filing deadlines for a motion to reconsider and the filing of a petition for review will overlap.  Just file both.

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