Justices Appear to Back Immigrants on Court Review Question (1)

Dec. 6, 2021, 5:52 PMUpdated: Dec. 6, 2021, 9:19 PM

The U.S. Supreme Court seemed likely to side with noncitizens seeking a more favorable immigration status by allowing them to challenge in federal court administrative decisions that went against them.

Several justices during argument Monday suggested that the strong presumption for judicial review in general should favor Indian national and petitioner Pankajkumar Patel, despite a law saying courts can’t review discretionary decisions like an adjustment of status.

A ruling for Patel, who has lived in the U.S. for nearly 30 years, would allow him to take another shot at arguing that he isn’t precluded from seeking a green card because he falsely said he was a U.S. citizen while getting a driver’s license in Georgia.

The Supreme Court’s ruling, which is expected by July, is likely to matter in a handful of instances involving adverse rulings, but could for certain people make the difference between staying in the U.S. or being deported.

Meaning of Judgment

The case centers on an immigration law that removes from federal courts the ability to review relief determined at the discretion of immigration officials. The law says courts can review constitutional issues, or questions of law, not determinations of fact.

But the government and Patel agree that courts should be able to review factual disputes relating to whether noncitizens are eligible for certain kinds of relief from deportation even if they can’t review the ultimate decision of whether to grant or deny it.

The government sought Supreme Court intervention to clear up a split among the circuit courts. “We don’t usually have the government coming in in an immigration case through four administrations and saying, ‘we want courts to review issues,’” Justice Brett Kavanaugh said.

The Supreme Court appointed Consovoy McCarthy’s Taylor Meehan as amicus to argue in favor of a ruling by the U.S. Court of Appeals for the Eleventh Circuit that said even eligibility requirements can’t be reviewed by courts.

Arguing for Patel, Wilmer Hale’s Mark Fleming acknowledged that the text of the statute—which bars review of a “judgment regarding the granting of relief"—could be interpreted as a matter of ordinary language to preclude review of the ultimate relief determination as well as the eligibility determinations necessary for that relief. But, Fleming argued, used here the statement is a “term of art.”

In passing the law, Congress wanted immigration officials to have the last word on relief left up to the discretion of the executive branch, and not have courts second guess or overrule those decisions, Fleming said.

But “we don’t assume that Congress is allowing the Executive Branch to have the last word on whether it’s complying with congressional mandates,” he added.

Meehan said the bar for judicial review “subsumes any subsidiary determination made along the way to denying relief. So whatever the reasons leading to the denials of relief, the resulting judgment is barred.”

It may be tough for Meehan to convince the justices to accept her reading of the statute.

“I think all of this means that, at best, the statute is ambiguous. It’s not clear,” Justice Sonia Sotomayor said. And in that case, the presumption favoring review would kick in, she said.

Chief Justice John Roberts didn’t think that was the end of the inquiry.

“I understand about the presumption of reviewability,” Roberts said. But in this area, “the exercise of discretion by the attorney general with respect to immigration and refugee matters, there is a presumption also that the discretion is broad and, to an unusual extent compared to other areas, unreviewable.”

Roberts then asked whether “those two presumptions kind of cancel each other out, and we’re left with just reading the statute as it’s written?”

The government already grants approximately 87% of requests to obtain a more favorable immigration status, Meehan said.

“I think this will matter in not very many cases, but in the cases where it does matter, that is a very desirable result because we do not want the agency to be making such serious decisions on the basis of anything less than substantial evidence,” Fleming said.

The case is Patel v. Garland, U.S., No. 20-979.

(Updates with quotes from the transcript starting in paragraph 3.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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