Summary
The Ninth Circuit affirmed the dismissal for lack of jurisdiction of Sosimo Vera Chairez’s Administrative Procedure Act challenge to USCIS’s denial of a waiver of inadmissibility sought in connection with a U visa application. The court held that the waiver authority under 8 U.S.C. § 1182(d)(14) is discretionary and therefore falls within the jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(B)(ii). The court also held that the INA’s savings clause did not provide district-court jurisdiction over the claims presented and concluded that the asserted constitutional claim was not colorable at that stage.
Topics
Practice areas
Questions Presented
- Whether 8 U.S.C. § 1252(a)(2)(B)(ii) strips federal courts of jurisdiction to review USCIS's denial of an inadmissibility waiver under 8 U.S.C. § 1182(d)(14).
- Whether the INA's savings clause, 8 U.S.C. § 1252(a)(2)(D), gives a district court jurisdiction to review constitutional or legal claims outside a petition for review of a final removal order.
- Whether the statutory scheme is unconstitutional as applied because Chairez might lack an avenue for judicial review of the agency's discretionary decisions.
- Whether the court had jurisdiction over Chairez's procedural due process claim alleging agency bias, and whether that claim was colorable.
Holdings
- The denial of an inadmissibility waiver under 8 U.S.C. § 1182(d)(14) is an agency action specified to be in the Secretary of Homeland Security's discretion and therefore falls within 8 U.S.C. § 1252(a)(2)(B)(ii)'s jurisdictional bar.
- 8 U.S.C. § 1252(a)(2)(D) does not give a district court jurisdiction over Chairez's APA challenge because it preserves review of constitutional claims and questions of law only when raised in a petition for review filed with an appropriate court of appeals from a final order of removal.
- At this procedural juncture, the court would not set aside the INA's jurisdictional bar on the theory that Chairez might lack an adequate avenue for judicial review; any viable challenge to the discretionary decisions could be raised in removal proceedings and a subsequent petition for review.
- Although the court retains jurisdiction over colorable constitutional claims challenging the procedures used by an agency, Chairez's procedural due process claim was entirely speculative and not colorable, so the court lacked jurisdiction over it.
Key quotations
“Instead, when Congress signals that it is merely providing guidance to the agency on its exercise of discretion, the discretionary judgment call as a whole falls within the jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(B)(ii).” (16)
“Going forward, in a case brought in district court under the APA, if a clause provides only guidance to the agency on its exercise of discretion, then that guidance is part of the exercise of discretion and falls within 8 U.S.C. § 1252(a)(2)(B)(ii).” (18)
Factual background
Sosimo Vera Chairez, a native and citizen of Mexico, applied for a U visa and an inadmissibility waiver. He conceded that he was inadmissible based on unlawful entry and unlawful presence, among other possible grounds, and sought a waiver under 8 U.S.C. § 1182(d)(14) to become eligible for U-visa status. USCIS denied the waiver and U-visa applications, and Chairez challenged the denials under the APA and alleged that the agency decisionmaker was biased against him in violation of procedural due process.
Procedural history
Chairez applied for a U visa and an inadmissibility waiver under 8 U.S.C. § 1182(d)(14). USCIS initially denied the U-visa application, later denied the waiver, reopened both applications after Chairez filed an APA action, and again denied both applications. Chairez amended his complaint to challenge the new denials and added a Fifth Amendment procedural due process claim. The district court dismissed for lack of jurisdiction, and the Ninth Circuit affirmed.