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Lory D. Rosenberg on Appeal Matters

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  1. JURISDICTIONAL QUERIES AND THE WAIVER REVIEW CONUNDRUM

    Appeal
    and access to the federal courts is an essential underpinning of agency
    accountability, insuring that fairness is observed and justice is served in the
    implementation of United
    States immigration laws.  As the potential
    for realization of true immigration reform grows, no desire for legislative
    simplicity, no concern over excessive enforcement, and no plan for expeditious
    processing of the greatest number of immigrants, however laudable each of these goals may be, is
    more important than the right to impartial review, and that .... APPEAL MATTERS
     
    Have you found yourself
    wondering recently about the state of federal appellate jurisdiction over
    discretionary waiver decisions?  A
    cautionary tale at best, and before venturing into new territory, policymakers
    would be well-advised to be cognizant of the gaps and issues that plague the
    present scheme and remain unresolved. 
     In Shabaj v. Holder, 2013 U.S.
    App. LEXIS 975 (2d Cir. 2013), the Court of Appeals for the Second
    Circuit held that "the district court lacked jurisdiction to review the
    United States Citizenship and Immigration Services' discretionary decision to
    deny Plaintiff-Appellant's application for a waiver of inadmissibility under 8
    U.S.C. § 1182(i)(1) because judicial review of such decisions is available only
    for "constitutional claims or questions of law raised upon a petition for
    review filed with an appropriate court of appeals."
    The Circuit Court affirmed
    the ruling of the District Court on jurisdictional grounds for two reasons
    arising out of the particular facts and posture of this individual case.  The petitioner's appeal is a challenge by an
    individual who initially was denied admission to the United States based on misrepresentation
    involving a false passport used in an effort to enter under the Visa Waiver
    Program, and then subsequently denied a 212(i) waiver under 8 U.S.C. §
    1182(i)(1) that would have allowed a grant of adjustment of status based on his
    valid marriage. It also constitutes a challenge by one treated as a participant
    in the Visa Waiver Program, albeit an illegitimate one,   who
    was not afforded a removal hearing before an Immigration Judge, and therefore,
    was unable to seek review of the waiver he sought at the Board of Immigration
    Appeals or before the court of appeals.
    In this posture, the
    petitioner was subject to the bar precluding appeal of the waiver denial found
    in 8 U.S.C. § 1182(i)(1), and could not avail himself of the exception to the general
    preclusion of review over discretionary determinations available under 8 U.S.C.
    § 1252(a)(2)(D).  As the Second Circuit's
    decision in Shabaj points out, such an exception is available in the case of
    any "constitutional claims or questions of law" raised by a petition for review
    to the court of appeals, because the key limiting  language in (D) reads: "upon a petition for
    review filed with an appropriate court of
    appeals."  U.S. App. LEXIS 975 supra. at 9 (emphasis added).  Shabaj was unable to file such a petition to
    the court of appeals  because he was
    barred from presenting his case in a removal hearing  that would form the predicate for such review.
    The problem here is the
    collision of disparate jurisdictional preclusions on three different fronts - a
    preclusion of review of the agency's denial of a waiver, coupled with a second
    preclusion of a hearing before an immigration court in which a waiver
    adjudication would be subject to review in the context of an agency appeal, and
    the denial of access to a later-in-time statutory exception to yet a third
    preclusion of review of discretionary decisions in the court of appeals.   
    What does this tell us about
    the nature of the enforcement adjudication scheme intended to secure removal of
    immigration law violators?   How does the
    exception in subsection (D) apply in light of the limitations on Visa Waiver Program
    participants which preclude their being afforded a removal hearing in
    proceedings before the immigration court? 
    Although one might argue that the benefit  of an expeditious nonimmigrant admission
    without having to obtain a formally issued visa justifies giving up the right
    to a removal hearing in the event the participant is found inadmissible or violates
    the terms of his nonimmigrant stay,  the
    participant's eligibility for more permanent immigration benefits continues to
    exist.  Moreover, the waivers applicable
    in that context implicate not only the participant's success in acquiring a new
    status, but  the potential hardship to a
    spouse or close family member who is a lawful resident or citizen of the United States.
    For that matter, it is not
    only beneficiaries of the Visa Waivers Program who may be adversely affected. In the absence of removal  proceedings that ultimately lead to judicial
    review over any constitutional questions or questions of law arising in the
    adjudication of waivers by USCIS and the AAO,  there is no opportunity to insure the  accuracy and integrity of the
    adjudication.  Given DHS's general prosecutorial
    discretion to determine whether to initiate such removal proceedings before
    EOIR, there seems to be no way that an applicant might obtain review at any
    level beyond the AAO, much less invoke subsection (D).   Does
    this mean that DHS simply may refuse to issue a Notice To Appear once USCIS and
    the AAO deny a waiver accompanying an application for adjustment of status,
    thus foreclosing the path to appellate review and precluding federal court
    review of a constitutionally or legally deficient waiver denial?
    Likewise, Shabaj's
    appeal  raises the question whether any
    recourse exists to challenge a USCIS decision to deny him a waiver of
    inadmissibility under 8 U.S.C. § 1182(i)(1) that is erroneous as a matter of
    law, not withstanding the statutory preclusion n review of the denial.  How does the prohibition on review of waiver
    decisions in subparagraph 2 of § 1182(i) square with congressional intent to
    provide general review authority over errors of law that is plainly articulated
    in other parts of the Immigration and Nationality Act such as subsection (D)?  
    The Second Circuit's comment
    that "Although Shabaj is ineligible to reopen his removal proceedings and
    file a petition for review because of his participation in the Visa Waiver
    Program, see 8 U.S.C. § 1187(b), we
    do not mean to preclude a petitioner who is otherwise eligible to reopen
    proceedings from attempting to reopen those proceedings in order to raise legal
    challenges to hardship rulings by the AAO" is surely of little comfort to
    Shabaj.  And it also should raise
    concerns about the credibility and workability of these intertwining
    provisions, motivating examination of the rationale and practical realities
    underlying our system of removal, access to benefits, and review. 
    -------------------------------------------------------
    Lory D. Rosenberg is an award-winning attorney and owner of IDEAS Consultation & Coaching, LLC, a
    unique immigration law consulting and mentoring practice providing
    high-achieving immigration lawyers, leaders and businesses with comprehensive
    analysis, strategy, expert opinion, and collaboration, so they can successfully
    obtain visa approvals and lawful permanent residence, defend against removal,
    and win appeals for their clients despite complex and challenging
    circumstances.  Ms. Rosenberg is a
    national speaker and former adjunct professor, who served from 1995-2002 as an
    appellate immigration judge on the Board of Immigration Appeals. She is co-author
    of the leading treatise, Immigration Law and Crimes, was a featured
    columnist for Benders Immigration Bulletin (2002-2007, and has extensive
    experience as a legal analyst, practitioner, writer, trainer, non-profit
    director, litigator, policy advocate, and decision-maker involving immigration
    law and policy. Her website is www.ideaswithlory.com.
     
     
     

  2. About Lory D. Rosenberg

    Lory D. Rosenberg is an
    award-winning attorney and owner of IDEAS Consultation & Coaching,
    LLC, a unique immigration law consulting and mentoring practice providing
    high-achieving immigration lawyers, leaders and businesses with comprehensive
    analysis, strategy, expert opinion, and collaboration, so they can successfully
    obtain visa approvals and lawful permanent residence, defend against removal,
    and win appeals for their clients despite complex and challenging
    circumstances.  Ms. Rosenberg is a national speaker and former adjunct
    professor, who served from 1995-2002 as an appellate immigration judge on the
    Board of Immigration Appeals. She is co-author of the leading treatise, Immigration
    Law and Crimes, was a featured columnist for Benders Immigration Bulletin
    (2002-2007, and has extensive experience as a legal analyst, practitioner,
    writer, trainer, non-profit director, litigator, policy advocate, and
    decision-maker involving immigration law and policy. Her website is www.ideaswithlory.com.
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