AuthorGarnick, Adam J.

INTRODUCTION 784 I. THE HISTORY OF JUDICIAL REVIEW IN IMMIGRATION CASES AND THE INTRODUCTION OF [section] 1252(b)(9) 789 A. Judicial Review in Immigration Proceedings Before 1996 790 B. Judicial Review in Immigration Proceedings After 1996 794 C. Consolidation of Claims: The Addition and Intent of [section] 1252(b)(9) 795 D. The Consequence of Consolidation: The Administrative Process 796 E. The Contexts Where [section] 1252(b)(9) May Arise 802 F. Textual Considerations When Interpreting [section] 1252(b)(9) 805 II. THE LONG-ROAD TO JENNINGS-. A POST-ST. CYR CIRCUIT SPLIT 807 A. The First Attempt: Reno v. AADC 807 B. The Second Attempt: INS v. St. Cyr 809 C. Divergences After St. Cyr, Before Jennings. 812 1. The Temporal Approach 811 2. The "Arising From" Framework 810 D. The Third Attempt: Jennings v. Rodriguez 820 III. POST-JENNINGS AND THE PRESENT STATE OF [section] 1252(b)(9) 824 A. The Conflict Between Jennings and the Aguilar Interpretation 825 B. The State of the Law. Interpreting "Arising From" 827 1. Reviewability 829 2. Timeframe 837 3. Nature of the Right 834 4. Three Challenges Approach, 836 a. "Review of an Order of Removal". 837 b. "Decision to Detain [Noncitizens] in the First Place or to Seek Removal" 838 c. 'Any Part of the Process by Which [] Removability [Would] Be Determined" 840 5. Effect on Removal Proceedings. 841 6. An Action Taken or Proceeding Brought 843 CONCLUSION 844 APPENDIX: CHART OF MAJOR [section] 1252(b)(9) CASES SINCE JENNINGS 845 INTRODUCTION

Efrain and his six-year-old daughter Mia feared being returned to Mexico, for they knew what awaited them there. (1) Just months earlier, in April 2019, the father and daughter fled the violence of their hometown in Guatemala and crossed the southern border of the United States. (2) But instead of finding the refuge they sought, Efrain and Mia were hauled back across the border and dropped off in Tijuana, Mexico, without food, shelter, or a guarantee of survival. (3) They, like nearly 60,000 other migrants, were subject to the Migrant Protection Protocols (MPP), a Trump administration policy that forced asylum seekers to wait for months in increasingly dangerous and crowded Mexican border towns until their appearance in immigration court. (4) In Tijuana, Efrain and Mia were initially homeless and lived in constant fear for their safety, avoiding harm only because they were taken in by a willing stranger. (5)

In June, they returned to the United States for their immigration court hearing. (6) Despite having a viable asylum claim, (7) Efrain told the immigration judge, on the flawed advice of a Customs and Border Patrol (CBP) agent, that he had no fear of returning to Guatemala and was merely seeking a better life for his daughter in the United States. (8) Because these are insufficient grounds for a grant of asylum, the immigration judge ordered Efrain's removal. (9) Rather than appeal his removal, Efrain waived his opportunity to do so, fearing that he and his daughter would be sent back to Mexico as they awaited another hearing. (10)

To prepare for their deportation to Guatemala, the government transferred Efrain and Mia across the country, from southern California to the Berks County Residential Center--an immigration detention center--in Leesport, Pennsylvania. (11) There, an attorney took up their case and appealed it to the Board of Immigration Appeals, arguing that Efrain's waiver of appeal was invalid because he made the decision under duress. (12) Filing the appeal triggered an automatic stay of removal, but it was unclear whether this stay prevented their intermediate return to Mexico or their ultimate removal to Guatemala. (13) Given this ambiguity, the government took Efrain and Mia from the Berks County facility and put them on a plane to California, with the intent to return them to Mexico for the pendency of their appeal to the Board of Immigration Appeals. (14)

In a matter of hours, their pro bono counsel scrambled to draft and file an emergency mandamus petition for a preliminary injunction in federal district court. (15) In their petition, Efrain and Mia alleged, among other things, that returning them to Mexico would violate their constitutional and statutory rights to counsel, and that they were ineligible to be placed in MPP in the first place. (16) Simply put, they asked the district court to prohibit their return to Mexico.

The district court declined to do so. (17) Instead, it found that it lacked jurisdiction to adjudicate Efrain and Mia's claims under 8 U.S.C. [section] 1252(b)(9), (18) which provides in relevant part:

judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the united states under this subchapter shall be available only injudicial review of a final order under this section. (19) The district court reasoned that the father and daughter's claims "arose from" an "action taken or proceeding brought to remove [them]" from the United States, and therefore [section] 1252(b)(9) precluded district court jurisdiction. (20) If Efrain and Mia wanted relief, they would have to first bring their claims before the immigration judge, then to the Board of Immigration Appeals, and finally in a petition for review before a court of appeals. (21) In other words, they would have to return to Mexico and wait to bring their claims to a federal court only after trudging through the entire administrative appeals process--one that could take months, if not years. (22)

Although the district court's jurisdictional analysis was later overturned by the Third Circuit--an outcome that ultimately prevented the government from returning Efrain and Mia to Mexico--its initial decision represents a larger, and troubling pattern. In dozens of cases like this one, noncitizens bring urgent claims to district court, only to face the potentially insurmountable hurdle of [section] 1252(b)(9). (23) And when the doors to district court are slammed shut, so too are the doors to justice, as noncitizens have no other avenues to immediate relief. (24) Thus, as Efrain and Mia's case illustrates, whether noncitizen plaintiffs can access federal district court may be the difference between relief and removal, freedom and detention, life and death.

In the years following [section] 1252(b)(9)'s enactment, several scholars published seminal articles addressing the provision and the newly installed judicial review system more broadly, including Professors Lenni B. Benson; (25) Gerald L. Neuman; (26) and Hiroshi Motomura. (27) Since 2000, only one other article, another student Comment, has addressed the provision, which focused specifically on [section] 1252(b)(9)'s applicability in Bivens actions. (28)

This Comment not only aims to address the provision more comprehensively, but it also seeks to update the literature in light of Jennings v. Rodriguez, in which the Supreme Court squarely addressed the scope of [section] 1252(b)(9) for the first time in nearly two decades. (29) Specifically, this Comment contributes to the literature in two related ways: first, it presents an argument that Jennings substantively narrowed earlier interpretations of [section] 1252(b)(9). Second, it compiles, outlines, and evaluates the various frameworks and factors that lower courts have used since Jennings to determine whether [section] 1252(b)(9) prohibits review of the claims before them.

Part I provides a brief history of judicial review in the immigration context. It then describes the purpose and framework of [section] 1252(b)(9), explains the administrative process for immigrants appealing removal decisions, highlights the types of claims that may implicate the provision, and introduces the textual issues courts grapple with when interpreting [section] 1252(b)(9).

Part II provides a summary and analysis of the Supreme Court's opinion in Immigration and Naturalization Service v. St. Cyr, where the Court directly addressed [section] 1252(b)(9) for the first time. (30) It then traces the evolution of how lower courts interpreted and applied [section] 1252(b)(9) after St. Cyr, with a particular focus on the extremely broad reading of [section] 1252(b)(9) advanced by the U.S. Court of Appeals for the First Circuit and later adopted by the U.S. Court of Appeals for the Ninth Circuit. Finally, it summarizes the Supreme Court's decision in Jennings.

Part III provides a substantive analysis of Jennings, arguing that it directed a narrower interpretation of [section] 1252(b)(9) than had previously been embraced by the First and Ninth Circuits. In turn, it outlines and analyzes the various factors lower courts have employed since Jennings, many of which have been used to properly effectuate the Court's narrower interpretation of [section] 1252(b)(9). Finally, the Appendix provides a comprehensive chart summarizing the main district and circuit court cases that have addressed [section] 1252(b)(9) since Jennings. (30)


    The story of judicial review in the immigration context has been analogized to Sir Isaac Newton's Third Law of Motion: for every action there is an equal, and opposite, reaction. (32) It may be better characterized, however, as a perpetual game of "Whac-a-Mole" in which Congress seeks to smack down nearly all avenues of judicial review that surface--particularly those that lead to review in federal district court. (33) Congress's intent to curb judicial review of immigration decisions was most evident in two laws enacted in 1996, which categorically eliminated judicial review for certain noncitizens and for particular claims. Moreover, all judicial review of final orders of removal, as well as any related claims, was to take place solely in a court of appeals presented through the petition for...

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