Appellate Jurisdiction Over Denials of Permanent Residence
In Shaiban v. Jaddou, the Fourth Circuit held that it lacked jurisdiction to review the denial of an immigrant’s application for permanent residence under 8 U.S.C. § 1159(b). Under 18 U.S.C. § 1252(a)(2)(B)(ii), courts lack jurisdiction to review certain discretionary decisions in the immigration context. And the government has discretion when it comes to adjusting an asylee’s status to that of permanent resident.
The Petition in Shaiban
The plaintiff in Shaiban was initially granted asylum. Several years later, he applied for permanent residence.
The U.S. Customs and Immigration Services denied that application. It determined that the plaintiff was ineligible for permanent residence on terrorism grounds, concluding that the plaintiff’s membership in certain organizations qualified as terrorist activity.
The plaintiff sought review in the district court, which granted summary judgment to the government. The plaintiff then sought review in the Fourth Circuit.
No Jurisdiction Over Permanent-Residence Decisions
The Fourth Circuit concluded that 18 U.S.C. § 1252(a)(2)(B)(ii) stripped it of jurisdiction to review the denial of permanent residence.
Section 1252(a)(2)(B)(ii) generally bars appellate review of the the Attorney General or Secretary’s discretionary decisions. In relevant part, it says that “[n]otwithstanding any other provision of law (statutory or nonstatutory), . . . and regardless of whether the . . . decision . . . is made in removal proceedings, no court shall have jurisdiction to review . . . any other decision or action of . . . the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in [their] discretion.” And the decision to grant permanent residence to an asylee is discretionary. The power to adjust status comes from 8 U.S.C. § 1159(b), which says that “[t]he Secretary of Homeland Security or the Attorney General” “may adjust [] the status of” a foreign national granted asylum “in the Secretary’s or the Attorney General’s discretion.”
Putting these provisions together, appellate courts lack jurisdiction to review the denial of permanent residence.
The Fourth Circuit added that the Supreme Court’s recent decision in Patel v. Garland supported this conclusion. Patel held that a neighboring statutory provision—§ 1252(a)(2)(B)(i)—barred appellate review of adjustment-of-status decisions under 8 U.S.C. § 1255(i).
To be sure, Patel didn’t apply directly to the present case. It arose out of removal proceedings (not a suit seeking permanent residence) and involved a jurisdiction-stripping statute with slightly different language.
But Patel suggested—and § 1252(a)(2)(B)’s language says—that these jurisdiction-stripping provisions apply outside of the removal context. And since § 1252(a)(2)(B)(ii) (the relevant provision in the present case) is supposed to be a catchall following § 1252(a)(2)(B)(i) (the relevant provision in Patel), the Fourth Circuit saw no reason not to apply Patel’s broad reading of the statute.
Shaiban v. Jaddou, 2024 WL 1422735 (4th Cir. Apr. 3, 2024), available at the Fourth Circuit and Westlaw
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