These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
jurisdiction
The Sixth Circuit has determined that a District Court has no jurisdiction to naturalize a non-citizen who is currently in removal proceedings. “In sum, when a noncitizen is concurrently subject to removal and naturalization proceedings, removal takes priority. “
The full text of Ebu v. USCIS can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0093p-06.pdf
The Sixth Circuit has determined that the agency’s hardship determinations related to an unlawful presence waiver (212(a)(9)(B)(v)) and a fraud waiver (212(i)) are not reviewable by a federal court. Unlike the hardship determination for a cancellation of removal case, which is a mixed question of fact and law, hardship determinations related to these waivers are committed exclusively to the Attorney General.
The full text of Rahman v. Bondi can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0058p-06.pdf
The First Circuit has determined that a federal court lacks jurisdiction to review the revocation of an approval of a National Interest Waiver and an I-140 petition.
The full text of Guedes v. Mayorkas can be found here:
https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1228P-01A.pdf
The Ninth Circuit has determined that it has jurisdiction to review the agency’s determination that a non-citizen had not established extraordinary circumstances that would justify tolling the one-year filing deadline for a motion to reopen based on eligibility for VAWA-related relief.
The full text of Magana Magana v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/12/26/23-1887.pdf
An amended decision can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2025/02/19/23-1887.pdf
The Sixth Circuit has determined that it lacks jurisdiction to review the agency’s determination that an applicant for adjustment of status had not proven her manner of entry. That said, the Court took the opportunity to criticize the agency for making blatant and obvious errors in its determination.
“Although 8 U.S.C. § 1252(a)(2)(B) forecloses review of the IJ’s decision, we do note that a significant error haunts this case. A visa, issued by a United States embassy or consulate, provides the holder a window of time in which she may travel to the United States and present herself to customs officials for entry into the country. It is not a guarantee of admission but does carry some weight because it bears the imprimatur of a United States government entity in the traveler’s home country. If the visa holder is allowed entry into the United States by customs officials, she is issued an I-94 form, her entry is logged, and her passport stamped. The I-94 sets forth the dates the traveler is allowed to stay in the United States. Thus, the dates on a visa and an I-94 will almost certainly never match. The date range on the visa sets forth the timeframe in which the holder may present herself at the border for admission. The I-94 indicates how long the holder may stay in the country, once admitted.
In his oral decision denying her adjustment of status, the IJ castigated Petitioner for presenting a visa that did not align with the government’s ‘visa.’ He even recommended that the government’s attorneys refer the matter to the Fraud Detection and National Security Directorate (‘FDNS’) for investigation. But this concern rests on a fundamental error: the government never entered a copy of Petitioner’s visa into the record. Instead, we have two government exhibits— the letter USCIS sent to Petitioner requesting that she clarify her manner of entry, and an I-797A form supplying Petitioner a replacement copy of her original I-94. Nothing else. The USCIS letter informs her that their ‘records demonstrate that on January 6, 2000, [she was] issued a visa as a non-immigrant visitor’ indicating she was ‘the domestic employee of Shanti Ray.’ The letter provides no information on the valid dates of the visa. The I-797A form and the attached replacement I-94 show that she entered on a B2 visa and was allowed to stay in the country from March 3, 2000, until September 2, 2000. Notably, however, the form contains no information about her visa beyond the fact that she presented a B2 visa, and even contains the warning that ‘this form is not a visa nor may it be used in place of a visa.’ The visa Petitioner offered shows that it was issued on January 6, 2000, and that she entered the country as the ‘domestic employee of Mrs Shanti Ray.’ Not only does Petitioner’s visa not contradict any government visa, it actually matches the USCIS letter in every respect.
The government, in its answering brief, and the IJ, in his oral decision, both conflate the I-797A and I-94 with a visa. The government cites to the above-mentioned USCIS exhibits for the proposition that ‘Petitioner was issued a tourist visa to the United States on January 6, 2000, that was valid from March 3, 2000 until September 2, 2000.’ This is not an accurate characterization of the evidence. That I-797A form shows the details of Petitioner’s I-94, not her visa. Therefore, the two notations ‘Valid from 03/03/2000 to 09/02/2000’ and ‘VALID FROM 03/03/2000 UNTIL 09/02/2000’ refer to the I-94’s dates she is allowed to stay in the country, not the visa, and the ‘B2’ notation simply marks the type of visa upon which she was admitted.
In summary, the IJ repeatedly expressed concern that Petitioner’s visa exhibit did not match up with the government’s visa exhibit when there was no government visa in evidence. It is more than a little disturbing that such sophisticated parties do not appear to know the difference between an I-94 and a visa, particularly when the forms are so visually different. Ultimately, however, this error was only part of the IJ’s reason for denying relief, and the decision was within his discretion on the grounds of Petitioner’s other falsehoods. We merely flag this error as guidance for future proceedings.”
The full text of Patel v. Garland can be found here: https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0216p-06.pdf
The Ninth Circuit has determined that it does not have jurisdiction to review a negative credibility determination made by the agency with respect to the denial of an I-751 waiver. However, the Court found that the good faith marriage determination is a mixed question of fact and law over which it maintained jurisdiction to review. However, because it is a “primarily factual question,” the court’s review is deferential.
The full text of Zia v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/26/21-1325.pdf
The Fifth Circuit has affirmed that federal courts have no jurisdiction to review the denial of adjustment of status applications outside of the removal context, precluding judicial review of denials of adjustment of status to arriving aliens. “That Momin has no recourse for what may be a series of mistakes by the government is cruel but legally compelled. As the law stands, 8 U.S.C. § 1252(a)(2)(B)(i) precludes judicial review of denials of applications for adjustment of status and waivers of inadmissibility. This case illustrates some of the pitfalls that follow. In the absence of judicial review to ensure that the government turns square corners, we are left only with the hope that USCIS will give any future application by Momin to reopen his case careful attention.“
The full text of Momin v. Jaddou can be found here: https://www.ca5.uscourts.gov/opinions/pub/23/23-20327-CV0.pdf
The Ninth Circuit 8 USC § 1252(a)(2)(B) does not strip courts of jurisdiction over review of USCIS policies and procedures (as opposed to adjudication of individual applications for adjustment of status). The Court further determined that claims challenging such policies brought by plaintiffs who had not yet filed for adjustment of status were not yet ripe. Finally, the Court rejected the plaintiffs’ contention that 8 USC § 1252(a)(2)(B) did not bar review of adjustment of status applications filed outside of the immigration court system.
“We recognize that individuals like P. Peddada—who have not violated any immigration laws—must violate the law to render themselves removable and obtain judicial review.”
The Fifth Circuit has determined that it lacks subject matter jurisdiction over a claim under the Administrative Procedure Act that an adjustment of status application has been unreasonably delayed.
The full text of Cheejati v. Blinken can be found here: https://www.ca5.uscourts.gov/opinions/pub/23/23-40398-CV1.pdf
The Seventh Circuit has reaffirmed that it lacks jurisdiction to review a discretionary denial of a cancellation of removal application.
The full text of Santiago Lopez v. Garland can be found here:
The Third Circuit has determined that the 30-day deadline to file a petition for review of a final removal order is a claims processing rule, not a jurisdictional rule. The court also determined that a reinstatement order is not administratively final until a final agency decision is issued on the applicant’s withholding of removal and CAT applications.
The full text of Inestroza-Tosta v. Attorney General can be found here:
The Seventh Circuit has determined that federal courts lack jurisdiction to review the delay in adjudication of provisional waivers of unlawful presence (Form I-601A) under the Administrative Procedure Act. The court cited the prohibition in 8 USC 1182(a)(9)(B)(v) on federal court review of any action regarding waivers of unlawful presence.
The full text of Soni v. Jaddou can be found here:
The Ninth Circuit has determined that the statutory bar to reopening or reconsidering a reinstated removal is non-jurisdictional, and therefore, the Board of Immigration Appeals may exercise its jurisdiction to reopen a reinstated removal order.
The full text of Suate-Orellana v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/05/07/19-72446.pdf
The Ninth Circuit has determined that it is precluded by the “criminal alien bar” from reviewing the denial of procedural motions (in this case, a motion to remand and a motion to administratively close proceedings).
“With the benefit of Nasrallah’s guidance, we hold that in challenging the denials of her motions for remand and administrative closure, Tapia Coria asks us to review agency decisions that merge with the final order of removal. Each motion, if granted, would ‘affect the validity of the final order of removal’ or disturb the final order of removal.’” The court recognized that it was creating a circuit split with the Fourth Circuit’s decision in Williams.
“Courts must first determine whether the denial of relief raised in a petition for review is part of the final order of removal or merges with it. If so, and if the petitioner is removable based on a conviction covered by § 1252(a)(2)(C), then we lack jurisdiction to review factual challenges to the final order of removal and may only review constitutional claims or questions of law under § 1252(a)(2)(D). But if the denial of relief is not considered part of the ‘final order of removal, as is true with a CAT order, we can review factual challenges notwithstanding a criminal conviction that would otherwise implicate § 1252(a)(2)(C).’”
The full text of Tapia Cora v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/19/22-970.pdf
The amended decision can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/08/16/22-970.pdf
The Fifth Circuit has reversed its prior decision and determined that it has jurisdiction to review the agency’s denial of withholding of removal and protection under the Convention against Torture to a non-citizen subject to a reinstatement order, so long as the petition for review is filed within 30 days of the Board of Immigration Appeals’ decision. The opinion also contains an excellent analysis of when threats rise to the level of persecution, and how to articulate sufficient nexus in a “mixed motives” analysis.
The full text of Argueta-Hernandez v. Garland can be found here: https://www.ca5.uscourts.gov/opinions/pub/22/22-60307-CV1.pdf
The Fourth Circuit has determined that it has no jurisdiction over a petition for review challenging the denial of withholding of removal and protection under the Convention against Torture filed by a non-citizen subject to a reinstated removal order. The court assumed, without deciding, that a reinstatement order is a final order for jurisdictional purposes, but found that the petition for review as filed more than 30 days after the issuance of the reinstatement order.
The full text of Martinez v. Garland can be found here:
The Ninth Circuit has determined that the 30-day deadline to file a petition for review of a removal order is not jurisdictional. The court has further determined that a petition for review filed within 30 days of the completion of reasonable fear proceedings (rather than the issuance of a reinstatement order) is timely.
The full text of Alonso-Juarez v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2023/09/08/15-72821.pdf
The Sixth Circuit has reaffirmed that an individual subject to a reinstated removal order files a timely petition for review if it is filed within 30 days of the agency’s dismissal of his withholding of removal and protection under the Convention Against Torture claims.
The full text of Kolov v. Garland can be found here:
https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0186p-06.pdf
The Tenth Circuit has reaffirmed that a petition for review (PFR) challenging a reinstatement order is timely if it is filed within 30 days of the Board of Immigration Appeals’ decision at the end of the ensuing withholding/CAT only proceeding. The PFR need be filed within 30 days of ICE’s issuance of the reinstatement order.
The full text of Arostegui-Maldonado v. Garland can be found here:
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110897188.pdf
The Fifth Circuit has determined that a reinstatement order is a final order of removal, and therefore, a petition for review must be filed within 30 days of the issuance of that order. The existence of an ongoing withholding/CAT only proceedings does not toll the deadline for filing that petition for review.
The full text of Argueta-Hernandez v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/22/22-60307-CV0.pdf
