Supreme Court Case Limits Judicial Review of Discretionary Decisions by Immigration Authorities

A recent ruling by the U.S. Supreme Court may have devastating consequences, particularly for immigrants asking courts to review certain types of discretionary decisions issued by immigration authorities. In particular, the ruling may leave immigrants with little recourse when their applications are rejected based on mistakes they have made in the past, essentially blocking their ability to have decisions by immigration agencies reviewed by the courts. 

The ruling effectively limits the ability of immigrants to ask courts to review certain decisions issued by immigration officers, including, for example, the decision to grant an individual permanent residency or citizenship, when this decision is based on certain forms of discretion. The decision is a blow to the due process rights of immigrants and significantly limits access to justice to review certain immigration decisions at a time when immigrants face lengthy backlogs in an already complex legal system. 

“Today’s decision lets immigration officials make discretionary decisions based on totally mistaken assumptions about the immigrant. The official might know they’re false, or it might be based on an honest mistake. Either way, our courts exist to correct such mistakes and allow all people to be treated fairly,” Paul Gordon, legislative counsel at the People for the American Way, told Voice of America News.

Background

The ruling, which was issued on May 16, 2022, by the Supreme Court, was based on a 5-4 decision in the case Patel v. Garland. The ruling stated that federal courts do not have jurisdiction to review findings of fact in cases that involve discretionary relief related to immigration proceedings. 

The case was brought by an Indian Citizen, Pankajkumar Patel, and centered around Patel’s desire to obtain permanent residency in the United States. Patel, who had initially entered the United States without inspection in the 1990s, filed for permanent residency, but his application was rejected. The rejection was based on evidence presented by immigration authorities that Patel had misrepresented his citizenship on a Georgia driver's license application in 2008. Patel contended that this was a mistake and that he had marked the wrong box on the application.

Following the rejection of his application, Patel was placed in removal proceedings and was referred to immigration court. During his hearing, Patel asked the immigration judge presiding over his case to grant him discretionary relief and reinstate his application for residency to prevent his deportation. Patel testified that he had made a mistake when filling out the driver’s license application and had no intention of claiming to be a U.S. citizen. The judge did not find Patel credible and denied his request.

Patel appealed the decision to the Board of Immigration Appeals (BIA), who affirmed the immigration judge’s decision. Patel subsequently appealed to the 11th Circuit Court of Appeals, who reviewed one central issue: whether their court had jurisdiction to review fact findings that involve discretionary relief, including findings of fact related to credibility, as was the case for Patel. 

In a ruling issued by a three-judge panel at the 11th Circuit, the court stated that Congress has: “stripped our jurisdiction to hear certain appeals of immigration cases." The panel further noted, "Congress enumerated several '[m]atters not subject to judicial review' in 8 U.S.C. § 1252(a)(2)... In short, we cannot review appeals from judgments under § 1255 unless the party raises a constitutional claim or a question of law."

As a result, the 11th Circuit held that it could not review the BIA’s factual findings and denied Patel’s petition for review. Patel appealed the decision to the Supreme Court as his last hope. The court, however, ruled against Patel, with Justice Amy Coney Barrett writing the opinion for the majority:

“Federal courts have a very limited role to play in this process. With an exception for legal and constitutional questions, Congress has barred judicial review of the Attorney General’s decisions, denying discretionary relief from removal. We must decide how far this bar extends—specifically, whether it precludes judicial review of factual findings that underlie a denial of relief. It does.”

In a written dissent, Justices Neil Gorsuch, Stephen Breyer, Sonia Sotomayor, and Elena Kagan made an impassioned case for the potential consequences of this decision. “Today, the Court holds that federal bureaucracy can make an obvious factual error that will result in an individual’s removal from this country, and nothing can be done about it. No court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants. And it is such an unlikely assertion of raw administrative power that not even the agency that allegedly erred, nor any other arm of the Executive Branch, endorses it. Today’s majority acts on its own to shield the government from the embarrassment of having to correct even its most obvious errors. Respectfully, I dissent.” 

Conclusion

The case is a striking example of the challenges faced by immigrants in navigating the complex and, at times, unforgiving U.S. immigration system. While many await some form of comprehensive immigration reform to be passed by Congress, the current state of affairs only seems to be getting worse for immigrants inside the country. According to some estimates, 5.2 million of the 8.5 million total applications pending before United States Citizenship and Immigration Services (USCIS) are currently beyond acceptable processing time. 

While waiting times grow, there is no shortage of administrative barriers for immigrants navigating the system. Patel and his wife and three children now face an uncertain future despite residing in the United States for nearly 30 years. Their ability to continue to remain in the United States is in doubt, based solely on a single question on a driver’s license form. 

Biden Administration Expands TPS For Ukraine and Cameroon

On March 31, the Biden administration announced that they would be expanding Temporary Protected Status (TPS) for Ukrainian nationals in an effort to assist those fleeing the Russian invasion of that country to seek protection in the United States. The news was shortly followed by an April 15 announcement that the United States would provide TPS for immigrants from Cameroon after long-standing advocacy from various organizations requesting protection for individuals from that country. The TPS announcements come at a time of mounting pressure for the Biden administration to do more to protect vulnerable immigrants, particularly from countries with intense conflicts.

The March 31 announcement to provide TPS for Ukrainians builds on earlier announcements by the Biden administration that they would shield Ukrainians in the United States from deportation to the war-torn country, with the earlier announcement only applying to Ukrainians who had entered the United States before March 1, 2022. This more recent announcement now allows anyone from Ukraine who was present in the United States after April 11, 2022, to receive the benefit. The announcement is expected to benefit an estimated 59,600 Ukrainians.

The decision to provide TPS to Cameroonians was welcomed by advocates, many of whom have spent months campaigning for the designation. In response to the announcement, the Cameroon Advocacy Network tweeted: “This victory is a result of years of advocacy and leadership of Black immigrants and the support of our allies. Longstanding socio-political tensions and years of armed conflicts in Cameroon have left thousands dead and millions displaced.” The group estimated that more than 40,000 people would benefit from the designation.

In unveiling the decision, DHS Secretary Alejandro N. Mayorkas stated, “Cameroonian nationals currently residing in the U.S. who cannot safely return due to the extreme violence perpetrated by government forces and armed separatists and a rise in attacks led by Boko Haram will be able to remain and work in the United States until conditions in their home country improve.”

The protection will provide 18 months of relief for individuals from that country, including the ability to obtain work permits in the United States.

Temporary Protected Status provides individuals with two primary benefits, the first being a reprieve from the threat of deportation back to their home country, and the second includes the ability to obtain employment authorization and work legally in the United States during the temporary period. TPS is normally granted in 6, 12, and 18-month increments, during which time the United States may decide to extend the TPS grant. 

Importantly, TPS does not provide a pathway to permanent residency or citizenship, nor do recipients enjoy the same level of protections or benefits afforded to refugees or those granted asylum.

The announcement to provide TPS to Ukrainians also comes in the wake of a commitment by President Biden to welcome up to 100,000 Ukrainians displaced by the war. The TPS announcement was followed by the creation of a special humanitarian program called “Uniting for Ukraine,” designed to provide Ukrainians outside the United States a path to enter the country and stay for a two-year period of parole. According to USCIS, “Ukrainians participating in Uniting for Ukraine must have a supporter in the United States who agrees to provide them with financial support for the duration of their stay in the United States.”

Advocates have welcomed the program as an important step to protecting Ukrainians but have also drawn criticism as a contrasting policy offered to Ukrainians but not offered to other immigrants in war-torn countries, especially from the global south.

In particular, advocates have pointed out the hypocrisy of the Biden administration creating a special parole program for Ukrainians while more than 45,000 Humanitarian Parole requests for Afghans remain pending. 

The disparate treatment of Ukrainians and immigrants of color has also been highlighted by advocates at the southern border, many noting that Ukrainians seeking protection deserve protection, as do countless other immigrants fleeing from conflicts that have received less global attention.

PBS noted the sentiment of advocates from African countries in an April 1 article entitled, “In U.S.’s welcome to Ukrainians, African refugees see racial bias.” The article notes that the advocates have complained that Ukrainian asylum seekers have been able to circumvent limits placed on asylum seekers at the border. At the same time, immigrants from other countries have not. Sylvie Bello, founder of the D.C.-based Cameroon American Council, who was interviewed in the article, agreed with this sentiment. “Black pain and Black suffering do not get the same attention. The same anti-Blackness that permeates American life also permeates American immigration policy.”

Democratic lawmakers also took the opportunity to note that Haitians have been denied the same level of humanitarian consideration or care at the southern border. A letter written by Congresswoman Ayanna Pressley (MA-07) and Congressman Mondaire Jones (NY-17) to the Biden administration noted the disappointing disparity:

“On March 3, Immigration and Customs Enforcement suspended deportation flights to Ukraine in response to the “ongoing humanitarian crisis” there – a lifesaving decision and justified and important exercise of your enforcement discretion,” the representatives continued. “There is every reason to extend the same level of compassion and exercise that same discretion to suspend deportations to Haiti – and, in light of your own findings about the ongoing humanitarian crisis there, there is simply no excuse not to.”

Policy Changes and Legal Rulings Underscore Pressure on Biden to End Title 42

The Biden administration has announced new rules pertaining to asylum claims in a move that is set to overhaul the asylum system in the United States. The new rule, announced this week by the administration, seeks to force certain asylum claims to be heard at a faster pace and will shift much of the process towards asylum officers and away from courts. The announcement is just the latest chapter in the ongoing saga of policy changes and legal rulings affecting migrants at the southern border of the United States. 

The new rule would allow asylum officers with U.S. Citizenship and Immigration Services (USCIS) to consider the merits of an asylum case following a determination that the individual has a credible fear of persecution or harm in their home country. Under this new rule, individuals who are denied by USCIS can request a review of the finding by an immigration judge, with the goal of a final decision by the judge being issued within 90 days after the proceedings begin.

The regulation largely targets asylum claims arising at the southern border, where migrants often present asylum claims to border officials and ask for protection. While the administration claims the new rule will allow for asylum claims to move forward faster, advocates fear the change in policy will lessen legal protections for asylum-seekers. 

"It will help reduce the burden on our immigration courts, protect the rights of those fleeing persecution and violence, and enable immigration judges to issue removal orders when appropriate," said Attorney General Merrick Garland in a statement.

However, advocates have noted that the new process will undermine due process as it does not provide individuals enough time to seek legal representation, an essential component of presenting a strong asylum claim. 

Richard Caldarone, with Tahirih Justice Center, spoke with the L.A. Times and was skeptical of the move. “Survivors of trauma will not be able to recite what happened to them 72 hours after arriving in a safe place to a government official,” he said. “Given the emphasis that DHS has placed on speed for asylum seekers, this will be like the former process — designed in a way that will systematically fail to elicit people’s best asylum claims.”

Other advocates noted that imposing a specific timeline for the completion of cases stands in direct conflict with obtaining accurate asylum decisions and will ultimately lead to improper or incorrect decisions. 

Many remain concerned about the Biden administration's ongoing use of the controversial Title 42 policy and expedited removal, a process in which individuals at the border are removed without going through full immigration proceedings.

The new rule is set to go into effect in late May, with the agency taking public comments and modifications during the interim period. The rule will not apply to unaccompanied children and is set to be implemented in a staggered manner, starting with a limited population before applying to a broader group.

Recent Court Rulings

The news comes after a number of recent legal rulings pertaining to asylum and COVID-19 protections at the border. One ruling, issued on March 4th by a federal appeals court, held that the United States could continue to expel migrants at the border under COVID-issued public health orders but not to countries where they may face persecution. The three-judge panel, who issued a unanimous verdict, cited “stomach-churning evidence” that the United States had deported individuals to countries where they may face violence, torture, and even death.

While the ruling upholds a bar to asylum for migrants, it allows them to seek “withholding of removal” and protection under the United Nations Convention Against Torture in order to avoid being deported back to countries where they may face persecution or harm.

The ruling included a sharp critique of the Title 42 rules used by the Biden administration to remove hundreds of thousands of individuals seeking protection at the border. Judge Justin Walker, a Trump appointee who wrote the unanimous ruling, noted that it was “far from clear that the CDC order serves any purpose” with respect to public health. In addition, he questioned the complete lack of evidence in the ruling with respect to the efficacy of Title 42.  “We are not cavalier about the risks of COVID-19. And we would be sensitive to declarations in the record by CDC officials testifying to the efficacy of the Order. But there are none.”

Since March 2020, the United States has expelled migrants more than 1.6 million times at the Mexico border, denying them the chance to seek protection in the United States. The ruling added to mounting pressure on the administration to end the use of the Title 42 policy and restore basic protections required by international law. 

Advocates hailed the ruling as at least a partial victory. “Today’s decision did not strike down Title 42 but created legal and procedural safeguards to protect immigrants. Moving forward, immigrants cannot be deported without an assessment of whether they will be safe," said Ivan Espinoza-Madrigal, executive director of Lawyers for Civil Rights.

In an almost simultaneous ruling, a federal judge in a different case ruled against the Biden administration's decision to exempt unaccompanied migrant children from restrictions related to Title 42 at the border, siding with the State of Texas that brought the lawsuit. Despite the ruling, the Biden administration announced shortly after that unaccompanied minor children would continue to be exempt from Title 42. 

A statement issued by the CDC on March 12th stated: "In the current termination, CDC addresses the court's concerns and has determined, after considering current public health conditions and recent developments, that expulsion of unaccompanied noncitizen children is not warranted to protect the public health."

The CDC’s announcement was met with a lukewarm reception from advocates, just as the recent asylum rule change, with many noting that the administration can and should do more to protect migrants seeking protection at the border. Chief among the demands from advocates and elected officials is the call to end the use of the Title 42 policy completely. “We are deeply disappointed in the Biden Administration's decision to maintain Title 42," said a joint statement authored by Senator Chuck Schumer from New York, along with Sens. Bob Menendez of New Jersey and Alex Padilla of California. "While we recognize that the Administration made the right choice to prevent unaccompanied children from being expelled, it is wrong that they made the decision to continue sending families with minor children back to persecution and torture."

A new bill in California targets solitary confinement, including in private immigration detention

Advocates in California have expressed their support for new legislation that challenges the use of solitary confinement in the state’s jails, prisons, and private immigration detention facilities. The bill, AB 2632, is called the California Mandela Act on Solitary Confinement and was authored by Asm. Chris Holden (Dem) representing the 41st California Assembly District. The legislation intends to limit the use of solitary confinement across all facilities and completely end the practice for specific populations, including people with disabilities, pregnant women, and certain age groups. The bill is partly inspired by the United Nation’s Nelson Mandela Rules, designed to protect the human rights of those in prisons worldwide. 

“Rehabilitation is lost once you put someone in a solitary confinement setting,” said Assemblymember Chris Holden in a press release announcing the bill.  “Our constitution prohibits torture, and I believe that the use of prolonged solitary is wrong, both morally and also concerning the rehabilitation of individuals in jails and prisons.” 

The legislation comes at a time when a growing number of states and countries have begun to reexamine whether the use of solitary confinement is justified in carceral settings. New York and Colorado passed bills in 2021 that accomplish many of the objectives set forth by the Mandela Act and mirror the Mandela Rules adopted by the United Nations General Assembly. This recent movement on the issue is centered on a growing consensus that solitary confinement constitutes torture. 

This consensus, based partly on a growing body of research and agreement among experts and advocates, is now emerging. On February 16th, the Washington Post’s Editorial Board published a piece entitled “Call solitary confinement what it is: Torture” and highlights the case of Dennis Wayne Hope, a man who has been held in solitary confinement in Texas for 27 years. Hope has a pending case asking the United States Supreme Court to decide whether his time in solitary violates the Eighth Amendment’s ban on cruel and unusual punishment.

Meanwhile, advocates in California believe that the state must take action to end the use of solitary, citing heartbreaking examples, including the shocking story of a woman who gave birth while alone at the Santa Rita jail, as well as examples of people held in solitary for decades.

In fact, California was once the state with the most individuals serving the longest periods of solitary confinement. Thanks to a concerted effort to organize by those inside these facilities and impact litigation by advocates, these numbers have been reduced. Yet, solitary confinement continues to be a major issue in the state. 

While a few states have passed legislation on the issue, California’s bill could be the first to include private immigration detention facilities used by ICE to detain immigrants. In 2020, a 74-year-old Korean man died after being held in solitary confinement at the Mesa Verde detention facility. The death sparked outrage among advocates who noted that the man’s age and medical history should have prevented him from ever being placed in solitary. 

In 2021, Carlos Murillo Vega filed suit against a private detention operator after he was held in solitary confinement for 14 months at the Imperial Regional Detention Facility. The facility was the subject of a 2020 report released by the Office of the Inspector General, citing the facility's abuse of solitary confinement against immigrants detained there. The report noted, “[W]e determined detainees were held in administrative segregation for prolonged periods of 22 to 23 hours a day, including two detainees who had been held in isolation for more than 300 days.”

Murillo provided a quote along with a number of other impacted individuals in a press release by advocates sponsoring AB 2632. After many years of advocacy, the press statement hailed the legislation as an important first step. “Today, the California Mandela Act builds on the decades of work done by detained individuals, activists, and organizers to shed light on the darkness that is solitary confinement and continue to move towards the ultimate goal of liberation for all.”

The bill is being sponsored by Immigrant Defense Advocates, NextGen California, Disability Rights California, Initiate Justice, California Collaborative for Immigrant Justice, and the Prison Law Office – whose staff attorney, Margot Mendelson, serves on the Board of Directors for Immigrant Legal Defense.  

Biden Administration Keeps Trump’s “Remain In Mexico” Policy Alive

The Biden administration has continued to frustrate immigration advocates with its border policies, with the latest reports indicating that the administration is looking to expand the controversial Migrant Protection Program (MPP). The MPP, or “Remain in Mexico” policy, is a program developed by the Trump administration that has been used to keep tens of thousands of migrants arriving at the southern border in Mexico while their cases are adjudicated in the United States. On December 2, 2021, Mexico and the United States announced a new deal to restart the controversial program, despite Biden campaigning on a promise to end the policy that many advocates have claimed violates international laws. 

During the Trump administration, the program became a lightning rod for criticism as the policy was used to send more than 60,000 asylum-seeking migrants back to Mexico, as opposed to allowing them into the United States to seek asylum. Many of those sent back to Mexico were forced to live in tents and received little protection from the government. Human Rights First documented more than 1,500 “violent attacks” against migrants who were returned to Mexico under the program. 

The Biden administration has claimed it has no choice but to restart the program following a series of lawsuits by opponents to keep it in place. Under the Biden presidency, the Department of Homeland Security (DHS) had sought to repeal the program by issuing a memorandum on June 1, 2021, however that process was overturned by a federal court in Texas, leading to a second DHS memo in October. On December 14, 2021, the Fifth Circuit Court of Appeals denied the legal basis of that second memo. The ruling by three Republican-appointed judges is the result of a legal battle between republican states that have sued the Biden administration to maintain Trump-era border policies. 

In response to the news of the program restarting, Texas Congressman Joaquin Castro tweeted, “I strongly disagree with the reinstatement of the ‘Remain in Mexico’ program, which contributed to a humanitarian crisis at the border. Those previously subjected to the program, including women and young children, were living in horrendous conditions for months on end.”

By restarting the program, with its core intact, the administration has drawn the ire of advocates, Democratic Congressmen, and even asylum officers charged with screening migrants at the border. “While the administration has taken measures intended to mitigate some of the most egregious elements of MPP’s prior iteration, a program that requires asylum seekers to remain in one of the most dangerous parts of the world while their cases are pending in US immigration courts cannot guarantee their protection from persecution and torture, as required by US law,” the union for asylum officers wrote in an open letter on December 2, 2021.

Many advocates believe that the program violates the principle of non-refoulement. According to the United Nations Office of the High Commissar for Human Rights,  “Under international human rights law, the principle of non-refoulement guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status.”

Advocates have also slammed the administration for expanding the program, which was previously reserved for Spanish speakers, to anyone seeking to enter from the Western Hemisphere. Advocates argue that this expansion is not the result of a court order but a choice by the Biden administration to expand the program. 

“The Biden administration was not ordered by the court to expand Remain in Mexico to new populations,” Ursela Ojeda, senior policy adviser for migrant rights and justice at the Women’s Refugee Commission, was quoted as saying in an article by Vox. “They are going well above and beyond good faith compliance that’s required of them [by the court] to make this policy more cruel and more deadly.”

The disappointing news involving the Biden administration and its posture towards Trump-era policies also included recent news that Justice Department officials had pulled out of settlement talks with the families who had been forcibly separated by the Trump administration at the border. “There’s no explanation for not settling these cases other than the Biden administration is unwilling to use literally any political capital to help the young children deliberately abused by our government,” said Lee Gelernt, deputy director for the ACLU’s Immigrants’ Rights Project, in an article by NBC News.

The announcement of the expansion of MPP, coupled with the Biden administration's continued use of Title 42 as its primary border management tool, has left many immigration advocates wondering what if any, humanitarian changes will be made by a President who ran on a platform of inclusion and compassion.