Judicial review of administrative immigration decisions: can the doctrine of "ejusdem generis" save it from extinction?

• Author: Pakula, David B.

Until recently, immigration lawyers took for granted federal court jurisdiction to review denials of applications for work visas and other immigration benefits. Historically, judicial review has served as an important check on the government's power to control the entry, presence, and work authorization of aliens in the United States. Without judicial review, unlimited discretion over the fates of millions of aliens would be vested in the Bureau of Citizenship and Immigration Services (BCIS), which recently assumed the benefits adjudications duties of the now dissolved Immigration and Naturalization Service. (1)

During the past few years, a line of federal court decisions has called into question the power of federal courts to review BCIS-type immigration adjudications. The problem stems from a jurisdiction-limiting provision enacted by Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). (2)

The provision appears in the midst of a group of statutory provisions limiting judicial review of immigration decisions made during the process of deporting ("removing," according to newly introduced IIRIRA terminology) aliens who have violated U.S. laws. However, some recent federal court decisions have held that the provision limits judicial review of immigration decisions affecting aliens who are not being removed, but are merely seeking to live and work lawfully in the U.S. While not all courts have ruled against judicial review, if the current trend continues discretionary immigration decisions outside the removal context may be on the brink of being totally shielded from judicial review.

This article examines the provision of the IIRIRA at the root of the controversy concerning federal court jurisdiction. The authors discuss legal theories, not previously discussed in the reported judicial decisions, that may be available to arrest the antireview trend. In particular, an overlooked rule of statutory interpretation known as "ejusdem generis" may be crucial in overcoming the government's jurisdictional defense.

Judicial Review of Immigration Decisions Before and After the IIRIRA

Before 1996, [section]106 of the Immigration and Nationality Act, 8 U.S.C. [section]1105a, titled "Judicial review of orders of deportation and exclusion," governed federal court review of decisions made during deportation and exclusion proceedings. The overall effect of [section]106 was to streamline the review process. Section 106(a) granted exclusive jurisdiction to the U.S. courts of appeal to review final orders of deportation. Section 106(b) made habeas corpus the exclusive vehicle for review of exclusion orders (decisions denying entry into the U.S.). INS decisions made during the process of deportation were generally reviewed in a single circuit court proceeding following entry of the final order of deportation. (3)

Federal courts held that decisions made outside the context of deportation proceedings were beyond the scope of circuit court review under [section]106(a). (4)

District courts had subject matter jurisdiction to review such decisions under the Administrative Procedures Act. (5)

The IIRIRA repealed INA [section]106, 8 U.S.C. [section]1105a, and replaced it with INA [section]242, 8 U.S.C. [section]1252. Like its predecessor, 8242, titled "Judicial review of orders of removal," is designed to streamline judicial review of removal decisions. Section 242(a) provides that exclusive jurisdiction to review final orders of removal remains in the circuit courts of appeal. Section 242(e) retains habeas corpus review of decisions regarding summary removal (analogous to "exclusion" under preIIRIRA law). The concept of preventing piecemeal review of nonfinal deportation decisions is codified in the new [section]242(b)(9). This provision, which the U.S. Supreme Court has called a "zipper clause," (6) provides that review of "all questions of law and fact" arising from removal proceedings "shall be available only in judicial review [by the circuit court of appeal] of a final order [of removal] under this section."

However, [section]242 contains new restrictions on judicial review of removal orders that are aimed at further simplifying and expediting the removal of aliens. Habeas review of summary removal decisions is severely restricted under [section][section]242(a)(2)(A) and 242(e). Section 242(f) prohibits federal district courts from granting classwide injunctive relief against the operation of 8 U.S.C. [section][section]1221-1231, (7) and imposes a more difficult "clear and convincing" standard on aliens seeking injunctive relief in individual removal cases. Section 242(g) eliminates district court jurisdiction to review the government's discretionary decisions "to commence proceedings, adjudicate cases, or execute removal orders against any alien." (8)

INA [section]242(a)(2)(B)(ii)'s Catch-all Phrase

The most controversial jurisdiction-limiting provision of IIRIRA is [section]242(a)(2)(B), 8 U.S.C. [section]1252(a)(2)(B), tiffed "Denials of discretionary relief," which provides:

Notwithstanding any other provision of law, no court shall have jurisdiction to review--(i)

any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1129c, or 1255 of this title, (9) or

(ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter (10) to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) (11) of this title.

Section 242(a)(2)(B) refers to several statutory forms of relief that can be raised both before the commencement of removal proceedings and during removal proceedings: 212(h)&(i) waivers of inadmissibility, voluntary departure, adjustment of status and asylum. In addition, it refers to one form or relief that can only be raised during removal proceedings: cancellation of removal.

Federal courts are divided on the crucial question of whether [section]242(a)(2)(B)(ii)'s catch-all phrase, "any other [discretionary] decision or action of the Attorney General [except asylum]" should be given a narrow interpretation, as applying only to decisions made in the context of removal proceedings, or whether it should be construed broadly as barring federal court review of all discretionary immigration decisions. Three U.S. Circuit Courts of Appeal--the Sixth, (12) Seventh, (13) and Ninth (14) circuits--and four U.S. district courts (15) have interpreted the provision broadly. (16) Two U.S. district courts (17) have interpreted [section]242(a)(2)(B)(ii) narrowly, and two other U.S. district courts (18) have interpreted [section]242(a)(2)(B)(i) narrowly, applying an analysis similar to that used by the courts that have interpreted [section]242(a)(2)(B)(ii) narrowly.

Cases Interpreting [section]242(a)(2)(B)(ii) Narrowly

Cases interpreting [section]242(a)(2)(B)(ii) narrowly have found that the title of [section]242, "Judicial review orders of removal," indicates that Congress intended for [section]242(a)(2)(B)(ii) only to bar circuit court review of removal decisions. In Talwar v. INS, 2001 U.S. Dist. LEXIS 9248 (S.D.N.Y. 2001), a 2001 decision of the U.S. District Court for the Southern District of New York, the court stated:

Section 1252 is entitled "Judicial review of orders of removal," suggesting that [[section]242(a)(2)(B)(ii)] only limits judicial review of discretionary decisions in the context of removal proceedings. While it is true, as the INS asserts, that the heading of a section cannot limit the plain meaning of the text, it is also true that headings serve as useful tools in resolving doubt about ambiguities in a statute. (19)

In Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151 (D. Minn. 1999), a 1999 decision of the U.S. District Court for the District of Minnesota, the court emphasized the significance of the title of [section]242 and held that the denial of an H-1B nonimmigrant petition is a collateral matter not within the scope of removal proceedings, and therefore does not fall within the...