Will Fowler | Is Following Procedure Discretionary? Limits on the Jurisdictional Ban on Review of Discretionary Immigration Decisions

ISSUE

In the Immigration and Nationality Act (“INA”), Congress provided certain limits on a court’s jurisdiction to review discretionary decisions by the United States Citizenship and Immigration Services (“USCIS”). The INA provides that “the Secretary of Homeland Security may … for what he deems to be a good and sufficient cause, revoke the approval of any petition approved by him….” 8 U.S.C. § 1155. The substance of such discretionary decisions is not reviewable by the courts under 8 U.S.C. § 1252(a)(2)(B)(ii). The issue is whether the courts can still review the procedural basis for those discretionary decisions.

The issue arose in the context of three almost identical cases in three separate circuits. In each of the cases, the US employer of a citizen of India filed an I-140 (immigrant petition for alien worker) on the employee’s behalf. The employee then changed companies and “ported” their I-140 to their new employer under Section 105 of the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”). The initial I-140s were subsequently revoked and the employees’ requests for adjustment of status denied. The employees in each case sought to appeal the decision alleging that USCIS failed to follow its own procedural regulations in revoking their I-140s.

If a Supreme Court Decision is rendered that—under the discretionary bar—courts could not review such procedural questions, procedural regulations in the immigration context, which supposedly protect the rights of immigrants, would serve as little more than suggestions. For example, in the I-140 context discussed in these cases, supposed protections like the requirement for notice and opportunity to present evidence could be unenforceable by the people affected.

SPLIT

The split exists between the Second and Eleventh Circuits, holding that the courts have jurisdiction to hear claims that USCIS failed to follow procedural regulations, and the Eighth Circuit, holding that the courts lack jurisdiction to hear such procedural claims.

The Second and Eleventh Circuits focus on the word ‘discretionary’ in the statutory limits on jurisdiction found in 8 U.S.C. § 1252(a)(2)(B)(ii).

In Kurapati v. U.S. Bureau of Citizenship and Immigration Servs. (2014), the Eleventh Circuit reasoned that “If … USCIS failed to follow the correct procedure in revoking the I-140 petitions, that failure was not within USCIS’s discretion. § 1252(a)(2)(B)(ii) thus does not prevent judicial review of the conduct of the administrative proceedings.”

In Mantena v. Johnson (2015), the Second Circuit similarly held that “compliance with regulations establishing procedural requirements is ‘not within the discretion of the Attorney General,’ so the INA’s jurisdiction-stripping provision does not apply.”

In contrast, the Eighth Circuit ignores the word ‘discretionary’ and instead draws a distinction between reviewable and non-reviewable procedural questions.

In Rajasekaran v. Hazuda (2016), the Eighth Circuit first noted the Supreme Court’s holding that “courts review an agency’s compliance with its own regulations when … the rules were intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion….” The Eighth Circuit relied on its own precedent in drawing the distinction that “where a procedural rule is designed primarily to benefit the agency in carrying out its functions, judicial review may be circumscribed.” Without explicitly stating that the case fell into this latter category, the court implied within its ultimate holding that the court lacked jurisdiction to review what it calls the agency’s “discretionary procedural decisions.”

In short, while the Second and Eleventh Circuits uphold jurisdiction over review of compliance with procedural requirements on the grounds that following procedural regulations is not discretionary and therefore not covered by the jurisdictional ban, the Eighth Circuit denies jurisdiction over such review on the grounds that these procedural rules are merely designed to help the agency carry out its functions and are still within the umbrella of discretionary decisions covered in the jurisdictional ban.

LOOKING FORWARD

On December 5, 2016, the Supreme Court denied a petition for writ of certiorari for the Eighth Circuit’s Rajasekaran v. Hazuda decision. Therefore, it is unlikely that a resolution to this issue, in its present form, will come from the Supreme Court.

A 2017 amendment to the AC21 has presumptively resolved the confusion in I-140 revocation hearings that caused problems for the plaintiffs in the three cases discussed. However, the underlying issue of courts’ jurisdiction to hear appeals on procedural compliance is still very much alive. We may have to wait until the issue returns in another context to get a resolution.