A recent article in U.S. News and World Report, quoted Mary Giovagnoli, Director of the...
INA § 242(a)(2)(D) not a bar to district court jurisdiction
<This page is under construction>
Federal District Court Jurisdiction over Legal and Constitutional Questions
The Legal Action Center (LAC) is urging a narrow and strict interpretation of the statutory bars to review of discretionary issues in cases where discretionary relief may have been sought, but the cases themselves present legal or constitutional issues. This situation arises when a person seeks district court review of USCIS’s denial of an application for adjustment of status on non-discretionary grounds. This issue has become increasingly important as more noncitizens challenge USCIS denials of applications in district court. It is an issue that remains unresolved in the majority of circuits. We argue that: (1) the bar in INA § 242(a)(2)(B)(i) is inapplicable to a court’s review of non-discretionary statutory eligibility for benefits; and (2) that INA § 242(a)(2)(D) expands the court of appeals’ jurisdiction and in no way limits district court jurisdiction over legal and constitutional questions.
The LAC presented these arguments to the court of appeals in an amicus curiae brief in support of rehearing and rehearing en banc in Lee v. USCIS, 592 F.3d 612 (4th Cir. 2010). We also received a decision in another case in which we had filed an amicus curiae brief. Although the Third Circuit Court of Appeals upheld the district court’s finding that the plaintiff was seeking review of a discretionary determination that is barred under INA § 242(a)(2)(B), the court agreed with the LAC that the district court would retain jurisdiction over nondiscretionary issues and that it had wrongly interpreted INA § 242(a)(2)(D) as restricting the court’s jurisdiction over legal and constitutional questions.
LAC amicus briefs on 242(a)(2)(D):
- Alla Barenboy v. Secretary of DHS et al., No. 10-1802 (3d Cir. amicus brief filed June 7, 2010) (court granted motion to appear as amicus)
- Sang Lee v. United States Citizenship and Immigration Services, No. 08-1659 (4th Cir. amicus filed March 11, 2010)
- Vaso v. Homeland Sec Agcy Dir, et al., No. 09-1988 (3d Cir. amicus filed Dec. 18, 2009)