No Judicial Review of Fact Findings for Certain Discretionary Immigration Relief, Rules Supreme Court
Legal Sidebari
No Judicial Review of Fact Findings for
Certain Discretionary Immigration Relief,
Rules Supreme Court
June 15, 2022
On May 16, 2022, the Supreme Court decided Patel v. Garland, a case concerning the scope of an
Immigration and Nationality Act (INA) provision barring judicial review of decisions denying certain
forms of discretionary immigration relief. Specifically, this case asked whether 8 U.S.C. §
1252(a)(2)(B)(i) (Subsection (B)(i)) precludes review by the federal courts of a nondiscretionary, factual
determination that an alien is ineligible for discretionary relief from removal. In Patel v. Garland, the
Supreme Court held that applicants may not seek judicial review of any judgment relating to the granting
of discretionary relief from removal, including underlying factual findings.
Immigration and Nationality Act
The Immigration and Nationality Act governs the admission, removal, and presence of non-U.S. nationals
(aliens, as the term is used in the INA) in the United States. An alien found to be inadmissible under 8
U.S.C. § 1182 or deportable under 8 U.S.C. § 1227 may be ordered removed. For instance, Section
1182(a)(6)(A)(i) provides for the removal of aliens who are present in the United States without
admission or parole. Immigration judges (IJs) within the Department of Justice (DOJ) conduct removal
proceedings and may order removal. An alien may appeal an IJ’s decision to the Board of Immigration
Appeals (BIA), an administrative appellate body within DOJ. In many situations, a BIA decision can be
appealed to a federal court of appeals.
Congress has authorized relief from removal in certain situations. As relevant to this case, 8 U.S.C. §
1255(i) gives the Attorney General discretion to adjust the status of an eligible individual in certain
specified circumstances, including those who have filed a labor certification under Section 1182(a)(5)(A).
To be eligible for relief, the applicant must satisfy certain threshold requirements specified in statute,
including that the applicant is not inadmissible.
In the event of an unfavorable decision, review by a court is limited pursuant to 8 U.S.C. § 1252. Of
particular relevance here, Section 1252(a)(2)(B)(i) bars judicial review of “any judgment regarding the
granting of relief” specified in five INA provisions that authorize discretionary relief, including
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adjustment of status under Section 1255. Notwithstanding that provision, Section 1252(a)(2)(D) allows
for “review of constitutional claims or questions of law” raised in a petition for review of a final removal
order filed with “an appropriate court of appeals in accordance with this section.”
Patel v. Garland
Factual Background
Pankajkumar Patel, an Indian national, entered the United States unlawfully in 1992. In 2007, after an
immigrant visa became immediately available to him, he applied for adjustment of status under Section
1255(i) based on a timely filed application for a labor certification. In December 2008, while his
application was pending, he renewed his Georgia driver’s license. Patel indicated on the application that
he was a U.S. citizen and was issued a new license. Patel’s application for adjustment of status was
denied based on the United States Citizenship and Immigration Services’ (USCIS’s) finding that he
falsely represented U.S. citizenship on his driver’s license application, and was thus inadmissible under 8
U.S.C. § 1182(a)(6)(C)(ii).
The Department of Homeland Security (DHS) commenced removal proceedings against Patel for being
present in the United States without admission or parole, in violation of Section 1182(6)(A)(i). During a
removal hearing before an IJ, Patel offered purportedly inconsistent testimony about his false claim of
citizenship, insisting that checking the box on the driver’s license application declaring U.S. citizenship
was a mistake. The IJ did not find his testimony credible, denied his application for adjustment of status,
and ordered removal from the United States. The IJ concluded Patel failed to satisfy his burden to show
he was not inadmissible for falsely representing himself as a U.S. citizen. The BIA affirmed the IJ’s
decision.
Patel appealed the BIA decision to the U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit),
arguing that any reasonable judge would have found his testimony credible and that he had made an
honest mistake on the form. An Eleventh Circuit panel concluded it lacked jurisdiction under Section
1252(a)(2)(B) and (D) to review Patel’s challenge to the IJ’s underlying factual findings. Upon rehearing
en banc, the Eleventh Circuit agreed. The court concluded that all factual determinations made as part of
an application for discretionary relief fell within the meaning of “judgment” and were thus covered by
Section 1252(a)(2)(B)(i)’s prohibition on judicial review.
Arguments Presented by the Parties
On appeal to the Supreme Court, the government argued that the petitioner could seek judicial review of
his challenge to the agency’s factual findings. The government maintained that Subsection (B)(i) bars
only review of discretionary determinations by the Attorney General, and does not preclude review of
nondiscretionary determinations, that is, determinations of law and fact. Patel advanced a somewhat
similar interpretation, arguing that Subsection (B)(i)’s statutory bar does not preclude judicial review of
nondiscretionary eligibility decisions. Patel contended that review of the initial statutory eligibility
determination, specifically whether he is inadmissible for falsely representing himself to be a U.S. citizen,
would be consistent with a two-step approach, under which the Attorney General determines first whether
an individual is eligible for adjustment of status, and second whether to grant an adjustment request “in
his discretion.” Because the government supported Patel’s position that Subsection (B)(i) does not bar
review of nondiscretionary determinations, the Court appointed an amicus to argue in support of the
Eleventh Circuit’s judgment. The amicus argued that Subsection (B)(i)’s phrase “any judgment regarding
the granting of relief under §1255” precludes review of any decision relating to the granting or denying of
relief, including factual findings for an eligibility determination.
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The Court’s Decision
The Supreme Court affirmed the Eleventh Circuit’s decision. In a 5-4 opinion authored by Justice Barrett
and joined by Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh, the Court ruled that
Section 1252(a)(2)(B)(i) entirely bars judicial review of the Attorney General’s decisions denying
discretionary relief from removal, including judicial review of initial eligibility determinations such as
factual findings that underlie a denial of relief. The Court based its conclusion on the text and context of
Subsection (B)(i), and emphasized that the provision prohibits review of any judgment relating to the
granting of relief under Section 1255. The Court explained that “‘any’ means that the provision applies to
judgments ‘of whatever kind’ under [Section 1255], not just discretionary judgments or the last-in-time
judgment.” The Court thus concluded that Subsection (B)(i)’s scope consists of any judgment relating to
the granting of relief, which “plainly includes factual findings.” The Court also noted that Section
1252(a)(2)(D) further supports this conclusion because it specifically preserves review of constitutional
claims and questions of law. This leaves out, according to the Court, a “major remaining category” of
questions of fact. Thus, Subsection (B)(i) bars judicial review of Patel’s factual challenge to the denial,
leaving Patel without a judicial forum to appeal the BIA’s decision.
Justice Gorsuch authored a dissent joined by Justices Breyer, Sotomayor, and Kagan. He cautioned that
the majority’s ruling would have “dire consequences” by removing the availability of judicial review even
when a BIA decision is based on a “glaring factual error,” thus “promis[ing] that countless future
immigrants will be left with no avenue to correct even more egregious agency errors.” Justice Gorsuch
agreed with Patel that the statutory bar does not preclude judicial review of initial nondiscretionary
eligibility decisions. He would have allowed Patel to seek judicial review under another provision of
Section 1252 that grants federal courts of appeals the power to review “all questions of law and fact,
including interpretation and application of constitutional and statutory provisions, arising from any action
taken or proceeding brought to remove an alien from the United States.” He further noted that another
provision in Section 1252 grants a federal court authority to reject the agency’s factual findings
underlying an order of removal if “no ‘reasonable adjudicator’ could adopt them.”
Considerations for Congress
Patel v. Garland clarifies that, when seeking certain discretionary forms of relief, including adjustment of
status under Section 1255 of the INA, petitioners are unable to seek review of factual findings underlying
eligibility determinations conducted at the agency level due to Subsection (B)(i)’s judicial review bar. The
Court’s decision has implications beyond the reviewability of factual determinations underlying the denial
of adjustment under Section 1255. Subsection (B)(i)’s judicial review bar applies to other specified forms
of relief:
Section 1182(h) (granting discretion to waive certain criminal grounds of
inadmissibility);
Section 1182(i) (granting discretion to waive a provision that makes an alien inadmissible
due to fraud or willful misrepresentation of material fact “in the case of an immigrant
who is the spouse, son, or daughter of a United States citizen or of an alien lawfully
admitted for permanent residence if . . . the refusal of admission to the United States . . .
would result in extreme hardship to the citizen or lawfully resident spouse or parent of
such an alien” or, in the case of a self-petitioner under the Violence Against Women Act,
“extreme hardship” to certain family members);
Section 1229b (allowing for cancellation of removal); and
Section 1229c (allowing for voluntary self-departure in lieu of or at the conclusion of
removal proceedings for certain individuals).
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Future petitioners for relief from removal under these provisions cannot avail themselves of the courts to
correct perceived factual errors upon which the denial of relief was premised. That said, petitioners can
seek judicial review of a final order of removal where the petitioner raises colorable questions of law or
constitutional claims.
Congress could amend the INA to clarify when judicial review is available for nondiscretionary threshold
eligibility determinations, including factual findings, for certain forms of immigration relief. If Congress
would like to allow for review of statutory eligibility determinations, including factual findings that may
underlie eligibility, it could amend the INA to clarify the scope of Subsection (B)(i). For instance,
Congress could amend Section 1252(a)(2)(D) to allow review of questions of fact by “an appropriate
court of appeals in accordance with this section,” in addition to constitutional claims or questions of law.
Congress could also amend Subsection (B)(i) to address the scope of the language “any judgment
regarding the granting of relief under . . . Section 1255.” Alternatively, Congress may seek to further limit
judicial review of discretionary forms of relief. For instance, Congress could amend the INA to preclude
judicial review of constitutional claims and questions of law, thereby leaving review by the BIA as the
final opportunity to appeal an unfavorable decision.
Author Information
Kelsey Y. Santamaria
Legislative Attorney
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