Pankajkumar Patel v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 19, 2020
• Docket: 17-10636
• Status: Published

Opinion

Case: 17-10636 Date Filed: 08/19/2020 Page: 1 of 86

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-10636 ________________________

Agency No. A072-565-851

PANKAJKUMAR S. PATEL, JYOTSNABEN P. PATEL, NISHANTKUMAR PATEL,

Petitioners,

versus

UNITED STATES ATTORNEY GENERAL, Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(August 19, 2020)

Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN, Case: 17-10636 Date Filed: 08/19/2020 Page: 2 of 86

ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, TJOFLAT, ED CARNES, and MARCUS, Circuit Judges.*

TJOFLAT, Circuit Judge, delivered the opinion of the Court, in which WILLIAM PRYOR, Chief Judge, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, ED CARNES, and MARCUS, Circuit Judges, joined.

TJOFLAT, Circuit Judge:

Pankajkumar Patel seeks review of a final order of removal from the Board

of Immigration Appeals (“BIA”). Patel sought discretionary relief under 8 U.S.C.

§ 1255(i), which permits an alien who entered without inspection to obtain relief

from removal if, among other things, the alien is the beneficiary of a labor

certification. The BIA determined that Patel was ineligible for such relief because

he falsely represented himself as a citizen for a benefit when he applied for a

Georgia driver’s license. See 8 U.S.C. § 1182(a)(6)(C)(ii)(I). Patel now petitions,

asking us to resolve two questions. First, he argues that, as a factual matter, he did

not falsely represent himself as a citizen because he merely checked the wrong box

on the license application form. Second, Patel argues that his misrepresentation

* Judges Gerald Bard Tjoflat, Stanley Marcus, and Ed Carnes were members of the en banc Court that heard oral argument in this case. Judges Tjoflat and Marcus took senior status on November 19, 2019 and December 6, 2019, respectively, and both have elected to participate in this decision pursuant to 28 U.S.C. § 46(c)(1). Judge Ed Carnes took senior status on June 30, 2020 and has elected to participate in this decision pursuant to 28 U.S.C. § 46(c)(2). Judge Andrew L. Brasher joined the Court on June 30, 2020 and did not participate in this en banc proceeding. 1 Case: 17-10636 Date Filed: 08/19/2020 Page: 3 of 86

was not material because the benefit, a Georgia driver’s license, is available to

non-citizens.

This case requires us to determine the scope of a jurisdiction-stripping

provision in the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2)(B). That

provision provides that “no court shall have jurisdiction to review” “any judgment

regarding the granting of relief” for certain enumerated categories of discretionary

relief. 8 U.S.C. § 1252(a)(2)(B)(i). Section 1255, the relief for which Patel

applied, is one of the enumerated categories in § 1252(a)(2)(B)(i).

In our first published opinion to interpret § 1252(a)(2)(B)(i), we drew a

distinction between “appellate review of discretionary decisions” and “review of

non-discretionary legal decisions that pertain to statutory eligibility for

discretionary relief.” Gonzalez-Oropeza v. U.S. Attorney General, 321 F.3d 1331,

1332 (11th Cir. 2003). Since then, we have held in numerous cases that we lack

jurisdiction to review discretionary determinations underlying discretionary relief,

while we retain jurisdiction to review non-discretionary decisions underlying that

relief. The problem: that interpretation is based on the predecessor version of

§ 1252(a)(2)(B) and is unmoored from the current statutory language. Today, we

overrule such precedent, holding that we are precluded from reviewing “any

judgment regarding the granting of relief under [8 U.S.C §§] 1182(h), 1182(i),

2 Case: 17-10636 Date Filed: 08/19/2020 Page: 4 of 86

1229b, 1229c, or 1255” except to the extent that such review involves

constitutional claims or questions of law. See 8 U.S.C. §§ 1252(a)(2)(B)(i) & (D).

Patel’s petition presents both a factual challenge and a question of law. We

hold that § 1252(a)(2)(B)(i) precludes our review of the factual challenge. We

retain jurisdiction to review the question of law related to whether a Georgia

driver’s license is a material benefit.

I.

Patel is a citizen of India who entered the United States without inspection.

In 2012, the Department of Homeland Security issued a notice to appear to Patel

charging him as removable for being present in the United States without

inspection. In a subsequent removal proceeding before an immigration judge,

Patel conceded that he was removable, but he sought discretionary relief from

removal by applying for adjustment of status under 8 U.S.C. § 1255(i). Section

1255 permits an alien who entered without inspection to obtain relief from removal

if, among other things, the alien is the beneficiary of a labor certification. See

§ 1255(i)(1)(B)(ii). 1

1 8 U.S.C. § 1255(i)(1) provides: (1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States-- (A) who-- 3 Case: 17-10636 Date Filed: 08/19/2020 Page: 5 of 86

Patel qualified to apply for relief pursuant to § 1255(i) as he had an

approved I-140 employment authorization document.2

The Attorney General may adjust an alien’s status to that of a lawful

permanent resident if the alien meets certain requirements. See § 1255(i); see also

8 C.F.R. § 1245.10(b) (listing the eligibility requirements for an alien who entered

without inspection and is seeking adjustment of status based on a labor

certification). The parties agree that Patel meets all the statutory criteria for

adjustment of status except one: the applicant must show “clearly and beyond

doubt” that he is not inadmissible. See 8 U.S.C. § 1229a(c)(2) (in a removal

(i) entered the United States without inspection; or (ii) is within one of the classes enumerated in subsection (c) of this section; (B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 1153(d) of this title) of-- (i) a petition for classification under section 1154 of this title that was filed with the Attorney General on or before April 30, 2001; or (ii) an application for a labor certification under section 1182(a)(5)(A) of this title that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and (C) who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically present in the United States on December 21, 2000; may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. 2 Patel’s wife, Jyotsnaben Patel, and son, Nishantkumar Patel, are also parties to this appeal. They too are subject to removal for entering the country without inspection. They are seeking adjustment of status as derivative beneficiaries of Patel’s labor certification. See § 1255(i)(1)(B). As Patel is the lead respondent, and the outcome of all three petitions for relief depends on his case, we focus solely on Patel for the convenience of the reader. 4 Case: 17-10636 Date Filed: 08/19/2020 Page: 6 of 86

proceeding, an alien applying for admission “has the burden of establishing . . .

that the alien is clearly and beyond doubt entitled to be admitted and is not

inadmissible”).

Patel’s admissibility is in doubt because he falsely represented that he was a

U.S. citizen when he applied for a Georgia driver’s license in 2008. When

applying for the license, Patel checked a box indicating that he is a U.S. citizen.

This incident arguably renders Patel inadmissible pursuant to 8 U.S.C.

§ 1182(a)(6)(C)(ii)(I), which says:

Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including section 1324a of this title) or any other Federal or State law is inadmissible. The BIA has interpreted this section to require three elements: (1) a false

representation of citizenship, (2) that is material to a purpose or benefit under the

law, (3) with the subjective intent of obtaining the purpose or benefit. Matter of

Richmond, 26 I. & N. Dec. 779, 786–87 (B.I.A. 2016).

There was no dispute that Patel made a false representation of citizenship.

Nor was there any dispute that a driver’s license is a benefit under state law. Patel

challenged the applicability of the statute on two grounds: (1) he lacked the

requisite subjective intent to falsely represent himself as a citizen, and (2) the false

representation was not material.

5 Case: 17-10636 Date Filed: 08/19/2020 Page: 7 of 86

At the removal hearing, Patel argued that he did not have the requisite

subjective intent because he simply made a mistake. To prove that it was a

mistake, Patel claimed that he provided his alien registration number and his

employment authorization card to the Georgia Department of Motor Vehicles with

his driver’s license application. Patel argued that it would have made no sense to

document his non-citizen status if his goal were to pose as a citizen. Patel also

argued that a false representation of citizenship was not material to obtaining a

driver’s license because an alien is eligible to receive a driver’s license from

Georgia. As proof, Patel observed that he had previously received a license from

Georgia.

The Immigration Judge rejected Patel’s arguments. The Immigration Judge

determined that Patel was not credible. He was evasive when testifying and would

not explain to the Court exactly how he had made a mistake. Furthermore, the

Immigration Judge examined the application and determined that Patel did not

write his alien registration number on the application. The application asks about

citizenship and directs the applicant to provide his alien registration number if he is

not a citizen. Patel marked that he was a citizen and did not write down his alien

registration number. The application also does not reflect that Patel provided his

employment authorization card. In the section on the form where the Georgia

official is to list the documents accepted, the only document mentioned is Patel’s

6 Case: 17-10636 Date Filed: 08/19/2020 Page: 8 of 86

prior Georgia driver’s license. In short, the evidence contradicted Patel’s

testimony, which the Immigration Judge already suspected was not candid, so the

Immigration Judge did not believe Patel’s claim that he made a mistake. The

Immigration Judge found that Patel willfully and purposefully indicated that he

was a U.S. citizen.

The Immigration Judge also held that Patel failed to prove that his false

representation was immaterial because he failed to meet his burden of proving that

he was otherwise eligible for a driver’s license. The fact that Patel had previously

obtained a license in Georgia is inconclusive because Patel might have

misrepresented his citizenship on his past application too. Alternatively, even if

Patel obtained his prior license without claiming citizenship, the rules governing

who qualifies for a license in Georgia could have changed in the interim. Patel

simply did not provide enough evidence to show that he was otherwise eligible for

the license.3

3 To prove his theory, Patel asked the Immigration Judge to take judicial notice of Georgia law. The Immigration Judge refused. Federal courts, however, must take judicial notice of state law. See Lamar v. Micou, 114 U.S. 218, 223, 5 S. Ct. 857, 859 (1885) (“The law of any state of the Union, whether depending upon statutes or upon judicial opinions, is a matter of which the courts of the United States are bound to take judicial notice, without plea or proof.”). 7 Case: 17-10636 Date Filed: 08/19/2020 Page: 9 of 86

Because Patel failed to show that he was not inadmissible, the Immigration

Judge denied his application for adjustment of status and ordered the Patels

removed.

The BIA affirmed. It found no clear error in the factual finding that Patel

was not credible and made the false representation with the subjective intent to

obtain a license. The BIA also agreed that Patel did not produce enough evidence

to prove that he was otherwise eligible for a license—i.e., to prove that the false

representation was immaterial.

One BIA member dissented. She observed that Georgia law extended

driver’s licenses to those with lawful status. See Ga. Comp. R. & Regs. 375-3-

1.02(6) (“Each customer must provide documentation of his or her citizenship or

lawful status in the United States.” (emphasis added)). And an alien with “a

pending application for lawful permanent residence” has lawful status for the

purpose of a driver’s license application. 6 C.F.R. § 37.3. Since Patel had a

pending application for lawful permanent residence when he applied for the

Georgia license, he did not need citizenship to obtain the license. Thus, the

dissenting BIA member reasoned, the false representation was immaterial.

Patel now seeks review of the BIA’s decision. A panel of this Court held

that under § 1252(a)(2)(B)(i) it lacked jurisdiction to review whether Patel, as a

8 Case: 17-10636 Date Filed: 08/19/2020 Page: 10 of 86

factual matter, had the requisite subjective intent to misrepresent his citizenship

status. Patel v. U.S. Att’y Gen., 917 F.3d 1319, 1322 (11th Cir.), reh’g en banc

granted, opinion vacated, 786 F. App’x 1005 (11th Cir. 2019). The panel also

determined that it had jurisdiction to review Patel’s legal challenge and determined

that the provision on which the BIA found Patel inadmissible,

§ 1182(a)(6)(C)(ii)(I), does not contain a materiality element. Id. We granted

rehearing en banc to resolve the first of these issues—whether this Court has

jurisdiction to review the factual findings underlying the BIA’s determination that

Patel had the subjective intent to misrepresent his citizenship status. In doing so,

we must interpret 8 U.S.C. § 1252(a)(2)(B)(i).

II.

To understand the limitations of 8 U.S.C. § 1252(a)(2)(B)(i), one must

understand the underlying immigration scheme. This section first provides a quick

primer on the background of relief from removal and then outlines the history of

judicial review on removal proceedings.

A.

Congress has “plenary power to make rules for the admission of aliens and

to exclude those who possess those characteristics which Congress has forbidden.”

Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S. Ct. 2576, 2583 (1972) (quoting

Boutilier v. INS, 387 U.S. 118, 123, 87 S. Ct. 1563, 1567 (1967)). Since 1875, 9 Case: 17-10636 Date Filed: 08/19/2020 Page: 11 of 86

Congress has placed restrictions on who can enter and remain in the United States.

Id.

Prior to 1940, the Executive Branch enforced these restrictions but had no

authority to grant discretionary relief for removable aliens. Foti v. INS, 375 U.S.

217, 222, 84 S. Ct. 306, 310 (1963).4 A determination that an alien was removable

“necessarily resulted in, and was invariably accompanied by, a deportation order.”

Id. Extenuating circumstances had to be presented via a private bill in Congress.

Id.; see also INS v. Jong Ha Wang, 450 U.S. 139, 140 n.1, 101 S. Ct. 1027, 1029

n.1 (1981). The only other route to relief for aliens who had been ordered deported

was via a writ of habeas corpus. INS v. St. Cyr, 533 U.S. 289, 306, 121 S. Ct.

2271, 2282 (2001).

With the passage of the Alien Registration Act of 1940, Congress gave the

Attorney General some discretion to allow for voluntary departure or to suspend

deportation for aliens of “good moral character whose deportation ‘would result in

4 Some have pointed out that the Executive Branch “did have some very limited executive discretion before 1940 through the Seventh Proviso of the Immigration Act of 1917,” which provided that “aliens returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years may be admitted in the discretion of the Attorney General and under such conditions as he may prescribe.” Kati L. Griffith, Perfecting Public Immigration Legislation: Private Immigration Bills and Deportable Lawful Permanent Residents, 18 Geo. Immigr. L.J. 273, 304 (2004) (quoting Immigration Act of 1917, Pub. L. No. 301, 39 Stat. 874 (1917) (codified as amended at 8 U.S.C. § 156 (1917)) (repealed 1952)). Although the Seventh Provisio applied “literally only to exclusion proceedings,” it was used as a nunc pro tunc correction of the record of reentry to suspend deportations in some removal proceedings. Id. (citing St. Cyr, 533 U.S. at 289, 121 S. Ct. at 2282). 10 Case: 17-10636 Date Filed: 08/19/2020 Page: 12 of 86

serious economic detriment’ to the aliens or their families.” INS v. Phinpathya,

464 U.S. 183, 190, 104 S. Ct. 584, 589 (1984) (quoting the Alien Registration Act

of 1940, Pub. L. No. 76-670, § 20, 54 Stat. 670, 672). 5 In 1948, Congress

amended the statute to make suspension available for “aliens who ‘resided

continuously in the United States for seven years or more’ and who could show

good moral character for the preceding five years, regardless of family ties.” Id.

(quoting Act of July 1, 1948, ch. 783, 62 Stat. 1206).

In 1952, Congress enacted a comprehensive immigration scheme, the

Immigration and Nationality Act (“INA”), which set out “the terms and conditions

of admission to the country and the subsequent treatment of aliens lawfully in the

country.” Chamber of Commerce v. Whiting, 563 U.S. 582, 587, 131 S. Ct. 1968,

1973 (2011) (plurality opinion) (quoting De Canas v. Bica, 424 U.S. 351, 353,

359, 96 S. Ct. 933, 938 (1976)). Included in that act were multiple categories of

relief that the Attorney General could grant, to certain eligible recipients, in his

5 The Alien Registration Act allowed the Attorney General to suspend deportation “[i]n the case of any alien . . . who is deportable under any law of the United States and who has proved good moral character for the preceding five years” if “[the Attorney General] finds that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien.” § 20, 54 Stat. at 671–72. However, if the Attorney General suspended deportation for more than six months, it was subject to review by Congress. Id. § 20, 54 Stat. at 672. 11 Case: 17-10636 Date Filed: 08/19/2020 Page: 13 of 86

discretion. See INA, Pub. L. No. 82-414, 66 Stat. 163 (1952); see also St. Cyr, 533

U.S. at 295, 121 S. Ct. at 2276 (interpreting INA § 212(c)).

In its most recent iteration, the INA includes many types of relief that are

deemed discretionary rather than mandatory. Patel seeks a form of discretionary

relief under 8 U.S.C. § 1255, which allows aliens to apply for adjustment of status

to a lawful permanent resident. Other types of discretionary relief include

readmission of immigrants in the United States, § 1181, cancellation of removal,

§ 1229b, and voluntary departure, § 1229c.

Through these provisions, “Congress made a deliberate choice to delegate to

the Executive Branch, and specifically to the Attorney General, the authority to

allow deportable aliens to remain in this country in certain specified

circumstances.” INS v. Chadha, 462 U.S. 919, 954, 103 S. Ct. 2764, 2786 (1983).

The Attorney General can establish regulations, review administrative

determinations, 6 delegate his authority, and perform other such acts as he deems

necessary to effectuate his authority to grant discretionary relief. 8 U.S.C.

6 While the Attorney General can review decisions of the BIA, he cannot dictate the actions of the BIA. See 8 U.S.C. §§ 1003.1(d)(7) & (h); Marcello v. Bonds, 349 U.S. 302, 311, 75 S. Ct. 757, 762 (1955) (“[T]he Attorney General cannot, under present regulations, dictate the actions of the Board of Immigration Appeals.”); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267, 74 S. Ct. 499, 503 (1954) (“[A]s long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.”). 12 Case: 17-10636 Date Filed: 08/19/2020 Page: 14 of 86

§§ 1103(g)(1) & (2). Pursuant to those directives, the Attorney General and the

Secretary of Homeland Security have promulgated regulations interpreting the

INA. See 8 C.F.R. §§ 100–507. In addition, the Attorney General delegated his

authority to determine removability to the Executive Office of Immigration

Review, which includes the immigration courts and the BIA. 7 See 6 U.S.C. § 521

(establishing the EOIR); 8 U.S.C. § 1103 (Attorney General has control of the

EOIR); 8 C.F.R. § 1003.0 (listing the offices that encompass the EOIR).

The discretion delegated to the Attorney General, and in turn to the

immigration courts, to grant ultimate relief for otherwise removable aliens has

been likened to “probation or suspension of criminal sentence,” that is, it functions

as “an act of grace.” Jay v. Boyd, 351 U.S. 345, 354, 76 S. Ct. 919, 924 (1956)

(quoting Escoe v. Zerbst, 295 U.S. 490, 492, 55 S. Ct. 818, 819 (1935)). Aliens are

not entitled to the relief as a matter of right. Id. They are, however, given a right

7 Certain responsibilities under the INA were also delegated to the Immigration and Naturalization Service (“INS”). Jaramillo v. INS., 1 F.3d 1149, 1151 (11th Cir. 1993) (en banc). In 2003, Congress abolished the INS and transferred its functions to three agencies within the newly formed Department of Homeland Security: U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement. See Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116 Stat. 2135, 2192, 2195–97, 2205. Thus, Congress has delegated the authority to administer and enforce immigration and naturalization laws to both the Secretary of Homeland Security and the Attorney General. See 8 U.S.C. § 1103. Since Patel’s petition arises in the removal context, we focus on that avenue rather than on prosecutorial discretion to grant relief. 13 Case: 17-10636 Date Filed: 08/19/2020 Page: 15 of 86

to a ruling on such relief.8 Id. Applicants who do not meet the threshold statutory

requirements are ineligible for consideration of discretionary relief. Applicants

who meet the threshold requirements are eligible for a favorable exercise of

discretion but are not entitled to it as a matter of right. Id.; see also Barton v. Barr,

140 S. Ct. 1442, 1445 (2020) (“If a lawful permanent resident meets those

eligibility requirements, the immigration judge has discretion to (but is not

required to) cancel removal and allow the lawful permanent resident to remain in

the United States.”).

Even if an alien is eligible for relief, an immigration judge can still decide—

for any number of reasons—that a favorable exercise of discretion is not

warranted. “[E]ligibility in no way limits the considerations that may guide the

Attorney General in exercising her discretion to determine who, among those

eligible, will be accorded grace.” INS v. Yueh-Shaio Yang, 519 U.S. 26, 31, 117 S.

Ct. 350, 353 (1996). For example, the Attorney General can promulgate

regulations that allow immigration judges to consider “confidential information” in

their assessment. See Jay, 351 U.S. at 349–50, 76 S. Ct. at 922 (upholding the

immigration judge’s determination that although the applicant “met the statutory

8 Depending on the applicable regulations, an alien may or may not be entitled to a ruling on whether certain eligibility requirements are met. INS v. Rios-Pineda, 471 U.S. 444, 449, 105 S. Ct. 2098, 2102 (1985) (“[I]f the Attorney General decides that relief should be denied as a matter of discretion, he need not consider whether the threshold statutory eligibility requirements are met.” (citing INS v. Bagamasbad, 429 U.S. 24, 26, 97 S. Ct. 200, 201 (1976))). 14 Case: 17-10636 Date Filed: 08/19/2020 Page: 16 of 86

prerequisites [for] the favorable exercise of the discretionary relief,” favorable

action was not warranted in light of certain “confidential information”).9

Alternatively, based on the circumstances presented, immigration judges can

make case-by-case determinations that a favorable exercise of discretion is not

warranted. In United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77,

77 S. Ct. 618, 621 (1957), the Supreme Court upheld the BIA’s determination that,

even though “deportation . . . would result in a serious economic detriment to an

American citizen infant child,” discretionary relief was not warranted because the

applicants waited to apply for relief until after their son was born and had no other

close family ties in the United States. 10 Id. at 75–76, 77 S. Ct. at 620 (quoting the

eligibility requirement of § 19(c) of the Immigration Act of 1917). The Supreme

Court has stated that, in exercising their discretion, immigration judges can

consider the “flagrancy and nature of [aliens’] violations” of immigration laws,

9 The special inquiry officer and the BIA considered certain confidential information pursuant to then-8 C.F.R. § 244.3, which provided, “In the case of an alien qualified for * * * suspension of deportation under section * * * 244 of the Immigration and Nationality Act the determination as to whether the application for * * * suspension of deportation shall be granted or denied (whether such determination is made initially or on appeal) may be predicated upon confidential information without the disclosure thereof to the applicant, if in the opinion of the officer or the Board making the determination the disclosure of such information would be prejudicial to the public interest, safety, or security.” Jay, 351 U.S. at 347–48, 76 S. Ct. at 921. Current regulations allow immigration judges to consider confidential information to determine the admissibility of arriving aliens. See 8 C.F.R. § 235.8. 10 The Court held that it was not error for the BIA “to take cognizance of present-day conditions and congressional attitudes” by looking to the policy reasons underlying the enactment of the 1952 INA in exercising its discretion. Hintopoulos, 353 U.S. at 78, 77 S. Ct. at 622. 15 Case: 17-10636 Date Filed: 08/19/2020 Page: 17 of 86

Rios-Pineda, 471 U.S. at 451, 105 S. Ct. at 2103, as well as the egregiousness of an

alien’s unconnected entry fraud, Yueh-Shaio Yang, 519 U.S. at 31, 117 S. Ct. at

353. Immigration judges, however, have no discretion to disregard the statutory

eligibility requirements to grant relief for an ineligible alien. Jay, 351 U.S. at 349,

76 S. Ct. at 922.

Over time, with the increase of regulations interpreting the INA as well as

precedential BIA decisions that “provide clear and uniform guidance to . . .

immigration judges . . . on the proper interpretation and administration of the Act

and its implementing regulations,” 8 C.F.R. § 1003.1(d)(1), the scope of an

individual immigration judge’s discretion to grant relief has narrowed. As the

Supreme Court has said, “[t]hough the agency’s discretion is unfettered at the

outset, if it announces and follows—by rule or by settled course of adjudication—a

general policy by which its exercise of discretion will be governed, an irrational

departure from that policy (as opposed to an avowed alteration of it) could

constitute action that must be overturned as ‘arbitrary, capricious, [or] an abuse of

discretion.’” Yueh-Shaio Yang, 519 U.S. at 32, 117 S. Ct. at 353 (quoting 5 U.S.C.

§ 706(2)(A)). This Circuit has likewise recognized that promulgation of

regulations “could limit the Attorney General’s discretion in ways that make the . .

. determination effectively nondiscretionary.” Bedoya-Melendez v. U.S. Att’y

Gen., 680 F.3d 1321, 1326 (11th Cir. 2012).

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Still, in seeking relief, an alien has the burden of establishing that he (i)

“satisfies the applicable eligibility requirements”; and (ii) “with respect to any

form of relief that is granted in the exercise of discretion, that the alien merits a

favorable exercise of discretion.” 8 U.S.C. § 1229a(c)(4)(A). In applying for

admission, the alien must show “clearly and beyond doubt” that he “is not

inadmissible under section 1182.” Id. § 1229a(c)(2)(A). If an immigration judge

determines that an alien is removable and orders that the alien be removed, the

judge shall inform the alien of the right to appeal to the BIA and the consequences

for failure to depart. Id. § 1229a(c)(4)(C).

The BIA reviews an immigration judge’s findings of fact for clear error and

reviews “questions of law, discretion, and judgment and all other issues” de novo.

8 C.F.R. § 1003.1(d)(3). If an alien seeks to appeal the BIA’s final order of

removal, he shall file a petition for review with the court of appeals for the judicial

circuit in which the immigration proceedings took place. 8 U.S.C. § 1252(b).

B.

Now, 8 U.S.C. § 1252 streamlines judicial review in the Courts of Appeals

and imposes certain limits on the scope of that review. We outline the statutory

changes that lead to the current scheme.

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Before 1952, “the sole means by which an alien could test the legality of his

or her deportation order was by bringing a habeas corpus action in district court.”

St. Cyr, 533 U.S. at 306, 121 S. Ct. at 2282; see also Heikkila v. Barber, 345 U.S.

229, 230, 73 S. Ct. 603, 604 (1953). Courts consistently rejected attempts to use

other types of relief to challenge deportation orders, recognizing that “Congress

had intended to make these administrative decisions nonreviewable to the fullest

extent possible under the Constitution.” Heikkila, 345 U.S. at 234, 73 S. Ct. at

605. Specifically, the Immigration Act of 1917 stated that deportation orders of

the Attorney General should be “final,” and the Supreme Court interpreted that

language to preclude judicial review except by habeas corpus. Id.; see also

Shaughnessy v. Pedreiro, 349 U.S. 48, 52, 75 S. Ct. 591, 594 (1955).

Like the Immigration Act of 1917, the INA of 1952 used language that

deportation orders should be “final.” Pedreiro, 349 U.S. at 52, 75 S. Ct. at 594.

However, in 1955, the Supreme Court was forced to reconcile its previous

interpretation of this language with the right of review provided by the

Administrative Procedure Act (the “APA”). 11 Id. The Court concluded that the

finality language in the 1952 INA was ambiguous and could not be read as

11 Congress enacted the APA in 1946. Section 10 of the APA provides a right of review for “final agency action[s]” except so far as (1) “statutes preclude judicial review” or (2) the action is, by law, committed to agency discretion. Administrative Procedure Act, Pub. L. No. 79-404, § 10, 60 Stat. 237, 243 (1946). 18 Case: 17-10636 Date Filed: 08/19/2020 Page: 20 of 86

foreclosing judicial review, especially given the purposes of the APA. Id. Hence,

the lack of explicit judicial review limitations in the INA of 1952 opened other

pathways for aliens to obtain judicial review of deportation orders. Id.; St. Cyr,

533 U.S. at 306, 121 S. Ct. at 2282.

That period of full judicial review was short lived, curtailed by amendments

made to the INA in 1961. See Act of Sept. 26, 1961, Pub. L. No. 87-301, 75 Stat.

650. The 1961 Act withdrew jurisdiction from the district courts and consolidated

review in the courts of appeals. St. Cyr, 533 U.S. at 306 n.26, 121 S. Ct. at 2282

n.26; Foti, 375 U.S. at 225, 84 S. Ct. at 312. “[T]he plain objective of [§] 106(a)

was ‘to create a single, separate, statutory form of judicial review of administrative

orders for the deportation of . . . aliens.’” Foti, 375 U.S. at 225, 84 S. Ct. at 312.

Section 106(a) of the 1961 Act provided the “sole and exclusive procedure for, the

judicial review of all final orders of deportation,” which included determinations

related to discretionary relief. Id. at 221, 84 S. Ct. at 310 (quoting 75 Stat. at 651).

It was implemented for the express purpose of “abbreviat[ing] the process of

judicial review of deportation orders” and preventing “dilatory tactics in the

courts.” Id. at 224, 84 S. Ct. at 311.

In 1996, Congress amended the INA with the Illegal Immigration Reform

and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, § 309, 110 Stat.

3009-626 (1996). The IIRIRA made significant revisions to federal immigration 19 Case: 17-10636 Date Filed: 08/19/2020 Page: 21 of 86

law. One major change was in terminology; “Congress abolished the distinction

between exclusion and deportation procedures and created a uniform proceeding

known as ‘removal.’” Vartelas v. Holder, 566 U.S. 257, 262, 132 S. Ct. 1479,

1484 (2012). Another change was to significantly revise the judicial-review

scheme. See Calcano-Martinez v. INS, 533 U.S. 348, 350, 121 S. Ct. 2268, 2269

(2001); Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 475, 119 S.

Ct. 936, 940 (1999).

The IIRIRA included permanent rules that would go into effect on April 1,

1997, as well as temporary rules that applied during the transition period. See Pub.

L. No. 104-208, § 309, 110 Stat. at 3009-626. The transitional rules provided that

“there shall be no appeal of any discretionary decision under section 212(c),

212(h), 212(i), 244, or 245 of the Immigration and Nationality Act (as in effect as

of the date of the enactment of this Act).”12 Id. § 309(b)(4)(E). The permanent

rules set up the current judicial-review structure providing that, “Notwithstanding

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

judgment regarding the granting of relief under section 212(h), 212(i), 240A,

240B, or 245, or” “(ii) any other decision or action of the Attorney General the

authority for which is specified under this title to be in the discretion of the

12 These sections correspond to 8 U.S.C. §§ 1182(h), 1182(i), 1229b, 1229c, and 1255. 20 Case: 17-10636 Date Filed: 08/19/2020 Page: 22 of 86

Attorney General, other than the granting of relief under section 208(a).” Id. at

§ 306.

In 2001, the Supreme Court grappled with the judicial-review limitations in

the permanent rules. In St. Cyr, 533 U.S. at 314, 121 S. Ct. at 2287, the Supreme

Court determined that the writ of habeas corpus was still available to alien

petitioners despite the limitations of “judicial review” in the IIRIRA. The INS

argued that three provisions of the IIRIRA—8 U.S.C. § 1252(a)(1), 1252(a)(2)(C),

and 1252(b)(9)—precluded the District Court from exercising its jurisdiction to

consider St. Cyr’s habeas corpus petition. 13 Id. at 310–11, 121 S. Ct. at 2285. The

Supreme Court concluded that, because “judicial review” is a historically distinct

term from “habeas corpus,” the limitations in these statutes did not bar jurisdiction

under 28 U.S.C. § 2241, the general habeas statute. Id. at 312–13, 121 S. Ct. at

2285–86. The clear import of St. Cyr was that judicial review of questions of law

regarding removal orders needed to be preserved in some manner to avoid creating

serious constitutional problems. See id. at 300, 121 S. Ct. at 2279 (“A construction

of the amendments at issue that would entirely preclude review of a pure question

13 St. Cyr challenged the Attorney General’s conclusion that, as a matter of statutory interpretation, he was not eligible for discretionary relief. He alleged that the restrictions on discretionary relief for aliens convicted of offenses involving moral turpitude or the illicit traffic in narcotics contained in the Antiterrorism and Effective Death Penalty Act of 1996 and the IIRIRA do not apply to aliens who pleaded guilty to those crimes before the enactment of the restrictions. St. Cyr, 533 U.S. at 293, 121 S. Ct. at 2275. 21 Case: 17-10636 Date Filed: 08/19/2020 Page: 23 of 86

of law by any court would give rise to substantial constitutional questions.”). St.

Cyr found that such review was preserved by the availability of habeas corpus, but

left open the possibility that Congress could otherwise restrict the availability of

the writ of habeas corpus as long as “question[s] of law” could be answered in a

judicial forum. Id. at 314, 121 S. Ct. at 2287.

Following St. Cyr, Congress enacted the Real ID Act of 2005, which added

another provision to § 1252. See Pub. L. No. 109-13, 119 Stat. 231. Section

1252(a)(2)(D), as currently enacted, states:

Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. See 8 U.S.C. 1252(a)(2)(D); Pub. L. No. 109-13 at § 106(a)(1)(iii), 119 Stat.

at 310. 14

The Real ID Act also added a provision that a petition for review filed with

the Court of Appeals in accordance with § 1252 should be the “sole and exclusive

means for judicial review of an order of removal” and that “judicial review”

included “habeas corpus review.” Id. § 106(a)(1)(B)(5); see also Nasrallah v.

14 The Real ID Act also added prefatory language to § 1252(a)(2)(B) & (C), by inserting “(statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D),” § 106(a)(1)(ii), 119 Stat. at 310, and “regardless of whether the judgment, decision, or action is made in removal proceedings,” id. at § 101(f). 22 Case: 17-10636 Date Filed: 08/19/2020 Page: 24 of 86

Barr, 140 S. Ct. 1683, 1690 (2020) (recognizing that 8 U.S.C. § 1252(a)(5)

supersedes St. Cyr).

In its entirety, 8 U.S.C. § 1252(a)(2)(B) now reads:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—

(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, 15 or

(ii) 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 the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.

Before proceeding to the merits of Patel’s petition, we must assess whether

we have jurisdiction under § 1252 to consider his petition.

III.

We start where we always start—with the language of the statute. Section

1252, entitled “Judicial review of orders of removal,” first gives the Courts of

15 “Sections 1182(h) and 1182(i) address waivers of inadmissibility based on certain criminal offenses, and fraud or misrepresentation, respectively; § 1229b addresses cancellation of removal; § 1229c, voluntary departure; and § 1255, adjustment of status.” Kucana v. Holder, 558 U.S. 233, 239 n.2, 130 S. Ct. 827, 832 n.2 (2010). 23 Case: 17-10636 Date Filed: 08/19/2020 Page: 25 of 86

Appeals jurisdiction to review “final order[s] of removal.” 8 U.S.C.

§ 1252(a)(1). 16

But what Congress giveth, it can also taketh away. And in § 1252(a)(2), the

statute explicitly lists certain “[m]atters [that are] not subject to judicial review.”

Included among these matters are “[d]enials of discretionary relief.” Within that

section are two categories of “judgment[s], decision[s] or action[s]” that “no court

shall have jurisdiction to review.” Id. § 1252(a)(2)(B). The first—at issue here—

strips courts of the jurisdiction to review “any judgment regarding the granting of

relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title.” See §

1252(a)(2)(B)(i). The second strips courts of the jurisdiction to review decisions

that are statutorily specified to be in the discretion of the Attorney General or the

Secretary of Homeland Security. See § 1252(a)(2)(B)(ii).

Section 1252(a)(2)(D) then restores our jurisdiction to review constitutional

claims or questions of law. Such a claim must be colorable. Arias v. U.S. Att’y

Gen., 482 F.3d 1281, 1284 (11th Cir. 2007). In other words, a party may not dress

16 A final order of removal encompasses “the rulings made by the immigration judge or Board of Immigration Appeals that affect the validity of the final order of removal.” Nasrallah, 140 S. Ct. at 1691. Review of a final order of removal extends to “all matters on which the validity of the final order is contingent.” Id. (quoting Chadha, 462 U.S. at 938, 103 S. Ct. at 2777 (internal quotation marks omitted)). As a final order of removal is contingent on the denial of discretionary relief, the immigration judge’s evidentiary findings regarding discretionary relief are merged into the final order of removal. Id. 24 Case: 17-10636 Date Filed: 08/19/2020 Page: 26 of 86

up a claim with legal or constitutional clothing to invoke our jurisdiction. Id.

Therefore, as the Supreme Court has interpreted the jurisdiction-stripping

provision of § 1252(a)(2)(B), “a noncitizen may not bring a factual challenge to

orders denying discretionary relief.” Nasrallah, 140 S. Ct. at 1694.

Patel sought relief under § 1255(i)(1)(B)(ii). There is no question that

§ 1255 is among the enumerated categories that § 1252(a)(2)(B)(i) bars from

review. A straightforward reading of the jurisdiction-stripping statute indicates

that we lack jurisdiction to review Patel’s petition except to the extent that he

raises constitutional claims or questions of law.

The parties disagree with this plain-reading interpretation, arguing that we

have jurisdiction to review certain types of judgments, but diverging as to the

scope of our jurisdiction.17 Patel argues that the statute only strips our jurisdiction

to review the ultimate discretionary relief determination, but that we retain

jurisdiction to review factual, legal, and constitutional challenges to any eligibility

determination. On the other hand, the Attorney General, relying on a string of

cases interpreting an earlier version of this statute, argues that we are precluded

from reviewing both the ultimate decision and factual challenges to discretionary

17 Even though the parties agree that this Court has some limited jurisdiction, we must consider jurisdictional issues sua sponte. Gonzalez v. Thaler, 565 U.S. 134, 141, 132 S. Ct. 641, 648 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.”). 25 Case: 17-10636 Date Filed: 08/19/2020 Page: 27 of 86

eligibility determinations, but can consider factual challenges to non-discretionary

eligibility determinations. Under its interpretation, we retain jurisdiction to review

all constitutional and legal challenges.

This section proceeds in two parts. We first explain why the statute strips us

of jurisdiction from considering Patel’s claim that, as a factual matter, he checked

the wrong box and thus lacked the requisite subjective intent. We then explain

why the parties are misguided in their analyses.

We lack jurisdiction to review the immigration court’s determination that

Patel was ineligible for relief because, as a factual matter, he misrepresented his

citizenship. The statute means what it says, “no court shall have jurisdiction to

review” “any judgment regarding the granting of relief under section 1182(h),

1182(i), 1229b, 1229c, or 1255 of [Title 8].” Except, as stated in § 1252(a)(2)(D),

we maintain jurisdiction to review constitutional claims or questions of law. We

start with the language of § 1252(a)(2)(B)(i) itself and then look at the statutory

scheme.

1.

At heart, the varying approaches disagree over the definition of judgment in

§ 1252(a)(2)(B)(i). The word “judgment” is not defined in Title 8, Chapter 12 of

26 Case: 17-10636 Date Filed: 08/19/2020 Page: 28 of 86

the United States Code. See 8 U.S.C. § 1101. Therefore, in interpreting the

statute, we give “each word its ordinary, contemporary, [and] common meaning.”

Artis v. Dist. of Columbia, 138 S. Ct. 594, 603 n.8 (2018) (internal quotation marks

and citation omitted). Black’s Law Dictionary offers numerous definitions for

judgment. Here are a few representative samples:

• The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination; • The final decision of the court resolving the dispute and determining the rights and obligations of the parties; • Determination of a court of competent jurisdiction upon matters submitted to it. • An opinion or estimate.

Judgment, Black’s Law Dictionary (2020). Some of these definitions suggest that

“judgment” refers to a final decision. Others suggest that “judgment” refers to any

decision made by a court. See id. (“Terms ‘decision’ and ‘judgment’ are

commonly used interchangeably.”).

Other dictionaries tell the same story. The Oxford English Dictionary provides

the following relevant definitions for “judgment”:

• The action or result of forming or pronouncing an opinion. o The formation of an opinion or conclusion concerning something, esp. following careful consideration or deliberation. Also: the opinion or conclusion thus formed; an assessment, a view, an estimate. o That which has been formally decided and pronounced to be the case; any formal or authoritative decision, as of an umpire or arbiter. o The pronouncing of a deliberate opinion upon a person or thing, or the opinion pronounced. 27 Case: 17-10636 Date Filed: 08/19/2020 Page: 29 of 86

• The action or result of pronouncing a legal decision, and related uses. o A decision formally made in regard to a matter under consideration in a court of law or comparable context; a judicial decision, pronouncement, or order; the action or act of making or announcing such a decision.

Judgment, Oxford English Dictionary (2nd ed. 1989),

https://www.oed.com/view/Entry/101892?redirectedFrom=judgment#eid (last

visited May 29, 2020). 18 Similarly, the following definitions are found in

Merriam-Webster:

• An opinion or estimate so formed. • A formal utterance of an authoritative opinion. • A formal decision given by a court. • A proposition stating something believed or asserted.

Judgment, Merriam-Webster Online Dictionary, https://www.merriam

webster.com/dictionary/judgment (last visited May 3, 2020). These definitions fall

into one of two camps: either judgment means the final decision of a court, such as

a sentence, or it is broad and means any decision. Any decision is the better fit,

because the statutory language is not limited to a final judgment of removal, but

rather “any judgment” regarding the five enumerated categories of relief.

Further, any doubt regarding the meaning of “judgment” in

§ 1252(a)(2)(B)(i) should be resolved in favor of a more expansive meaning given

18 There are other definitions referring to “judgment” as a faculty (e.g., one has good judgment), among other more obscure uses. Those are not relevant here. 28 Case: 17-10636 Date Filed: 08/19/2020 Page: 30 of 86

the modifying phrases “any” and “regarding.” As the Supreme Court has

“repeatedly explained,” “any” is expansive. Babb v. Wilkie, 140 S. Ct. 1168, 1173

n.3 (2020). The word “any” means “[o]ne indiscriminately of whatever kind.”

Black’s Law Dictionary (6th ed. 1990); see also Babb, 140 S. Ct. at 1173 n.3 (“The

standard dictionary definition of ‘any’ is ‘[s]ome, regardless of quantity or

number.’” (quoting American Heritage Dictionary 59 (def. 2) (1969)). Thus,

“[r]ead naturally,” the word “any” has an expansive effect on the word that it

modifies. United States v. Gonzales, 520 U.S. 1, 5, 117 S. Ct. 1032, 1035 (1997).

In addition, modifiers such as “respecting” and “regarding” have a broadening

effect, “ensuring that the scope of a provision covers not only its subject but also

matters relating to that subject.” Lamar, Archer & Cofrin, LLP v. Appling, 138 S.

Ct. 1752, 1760 (2018). Thus, read in context, § 1252(a)(2)(B)(i) precludes us from

reviewing “whatever kind” of judgment “relating to” the granting of relief under

the five enumerated sections.

2.

To interpret the scope of our jurisdiction, we must also consider the rest of

the statutory scheme. Section 1252(a)(2)(D) restores our jurisdiction to review

constitutional claims or questions of law. Guerrero-Lasprilla v. Barr, 140 S. Ct.

1062, 1068 (2020). To invoke jurisdiction under § 1252(a)(2)(D), a petitioner

must “allege at least a colorable constitutional violation.” Arias, 482 F.3d at 1284. 29 Case: 17-10636 Date Filed: 08/19/2020 Page: 31 of 86

A colorable claim need not involve a “substantial” violation, but “the claim must

have some possible validity.” Id. at 1284 n.2 (quoting Mehilli v. Gonzales, 433

F.3d 86, 93–94 (1st Cir. 2005)). “A petitioner may not create the jurisdiction that

Congress chose to remove simply by cloaking an abuse of discretion argument in

constitutional garb.” Id. at 1284 (quoting Torres–Aguilar v. INS, 246 F.3d 1267,

1271 (9th Cir. 2001)). The Supreme Court also recently addressed the scope of

“questions of law” in § 1252(a)(2)(D), determining that it restores the Court’s

jurisdiction to review the “application of a legal standard to undisputed or

established facts.” Guerrero-Lasprilla, 140 S. Ct. at 1068. The BIA, in reviewing

an immigration judge’s decision, establishes the facts and makes legal

determinations. On review, we are jurisdictionally limited to considering only

colorable constitutional or legal challenges to those established facts.

Reading § 1252(a)(2)(B)(i) in combination with §1252(a)(2)(D), we

determine that we lack jurisdiction to review Patel’s challenges to “any judgment

regarding the granting relief” under § 1255 unless such challenges involve a viable

constitutional or legal claim. As the Seventh Circuit wrote, “while the purpose of

the door-closing statute appears to be to place discretionary rulings beyond the

power of judicial review (hence the caption of subsection (B)), the statute itself,

read literally, goes further and places all rulings other than those resolving

questions of law or constitutional issues beyond the power of judicial review.”

30 Case: 17-10636 Date Filed: 08/19/2020 Page: 32 of 86

Cevilla v. Gonzales, 446 F.3d 658, 661 (7th Cir. 2006); cf. Jean v. Gonzales, 435

F.3d 475, 480 (4th Cir. 2006).

Logically, the Seventh Circuit’s reasoning makes sense given the

background of St. Cyr. The Supreme Court recognized that historically, habeas

was a mechanism to review “questions of law that arose in the context of

discretionary relief.” 533 U.S. at 307, 121 S. Ct. at 2283 (emphasis added). But

“the courts generally did not review factual determinations made by the

Executive.” Id. at 306, 121 S. Ct. at 2282 (emphasis added). The current judicial-

review scheme ensures that courts maintain jurisdiction to review “questions of

law” while streamlining the process of judicial review. See Foti, 375 U.S. at 224–

25, 84 S. Ct. at 311–13. The dissent argues that “judgment” must be read narrowly

because St. Cyr and other opinions emphasize a strong presumption in favor of

judicial review of administrative action. Dissenting Op. at 57–59. The

presumption cautions against “foreclos[ing] all forms of meaningful judicial

review,” McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496, 111 S. Ct. 888,

898 (1991), and has led courts to preserve review of “questions of law,” St. Cyr,

533 U.S. at 307, 121 S. Ct. at 2283. Such review is preserved under our

31 Case: 17-10636 Date Filed: 08/19/2020 Page: 33 of 86

interpretation. 19 Applicants who have been denied a form of discretionary relief

enumerated in § 1252(a)(2)(B)(i) can still obtain review of constitutional and legal

challenges to the denial of that relief, including review of mixed questions of law

and fact. See Guerrero-Lasprilla, 140 S. Ct. at 1071. Via explicit instruction from

Congress, however, we are restricted from reviewing factual challenges to denials

of certain kinds of discretionary relief.

The presumptions do not require a garbled interpretation of the statute to

ensure the broadest possible review, especially to allow review of subordinate

decisions underpinning an ultimately unreviewable decision. We conclude that the

best interpretation of § 1252(a)(2)(B)(i) is that we lack jurisdiction to review “any

judgment regarding the granting of relief” under the five enumerated categories,

unless the petitioner asserts a constitutional or legal challenge to the denial of such

relief.

The Attorney General argues for a mixed model. In his view, courts have

jurisdiction to review non-discretionary determinations underlying an alien’s

removal order, but lack jurisdiction to review discretionary determinations, except

19 And, as the dissent points out, our interpretation of § 1252(a)(2)(B)(i) in no way restricts our jurisdiction to review the legal and factual predicates for an alien’s removal. Dissenting Op. at 82–83; see also § 1252(b)(9). 32 Case: 17-10636 Date Filed: 08/19/2020 Page: 34 of 86

to the extent that those determinations raise questions of law or constitutional

claims. Patel argues that we retain broad jurisdiction to review final orders of

removal; courts are precluded only from reviewing the ultimate grant of

discretionary relief. Under his interpretation, “judgment” refers only to the

agency’s exercise of “grace,” and no judgment is exercised in determining whether

an alien meets the statutory eligibility requirements. Therefore, the argument goes,

we are prohibited from reviewing the ultimate decision of who among eligible

persons is granted relief but maintain jurisdiction to review whether an alien meets

threshold eligibility determinations. Both interpretations lack a statutory basis and

are circuitous run-arounds on the judicial-review limitation.

Under the Attorney General’s interpretation, which the dissent adopts, some

of the eligibility requirements are discretionary and others are not. The Attorney

General’s delineation is flawed because determining whether an alien is statutorily

eligible for relief is not a “discretionary” decision. All eligibility determinations

are “non-discretionary.” As the Supreme Court has said, eligibility determinations

are “substantive decisions . . . made by the Executive.” 20 Kucana, 558 U.S. at 247,

130 S. Ct. at 837. Each enumerated section in § 1252(a)(2)(B)(1) sets forth

20 In removal proceedings, these decisions are made by an immigration judge and subject to review by the BIA. 33 Case: 17-10636 Date Filed: 08/19/2020 Page: 35 of 86

specific statutory requirements that must be met before any act of grace can be

bestowed upon the alien. For relief under § 1129b(b), for example, an alien is

eligible for discretionary relief only if the alien has “(A) a continuous physical

presence of not less than 10 years, (B) good moral character, (C) a lack of certain

criminal convictions, and (D) establishes exceptional and extremely unusual

hardship to a qualifying relative.” For an adjustment of status under § 1255(i),

such as the one that Patel seeks, the Attorney General may adjust the status of

qualified aliens21 only if “(A) the alien is eligible to receive an immigrant visa and

is admissible to the United States for permanent residence,” and “(B) an immigrant

visa is immediately available to the alien at the time the application is filed.”

In assessing our jurisdictional boundaries, we—and other Circuits—have

often characterized these eligibility requirements as “discretionary” or “non-

discretionary” determinations. 22 For example, we have held that the “exceptional

and extremely unusual hardship” determination is a discretionary decision, while

the continuous physical presence requirement is a non-discretionary determination.

21 See 8 U.S.C. § 1255(i)(1). 22 See, e.g., Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir. 2001); Gonzalez-Oropeza, 321 F.3d at 1332; Gomez-Gomez v. INS, 681 F.2d 1347, 1349 (11th Cir. 1982); Twum v. Barr, 930 F.3d 10, 19–20 (1st Cir. 2019); Barco-Sandoval v. Gonzales, 516 F.3d 35, 39–40 (2d Cir. 2008); Mejia-Castanon v. Att’y Gen., 931 F.3d 224, 232 (3d Cir. 2019); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 216 (5th Cir. 2003); Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003); Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1149 (10th Cir. 2005); Perales- Cumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir. 2005). 34 Case: 17-10636 Date Filed: 08/19/2020 Page: 36 of 86

Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir. 2001); see also Gonzalez-

Oropeza, 321 F.3d at 1332. In Najjar, we explained that determining whether an

alien met the presence requirement was not an exercise in discretion but was

simply “a matter of applying the law to the facts of the case.” 257 F.3d at 1298.

Hardship, on the other hand, was a “discretionary decision” because Congress had

delegated the authority to construe the meaning of that phrase to the Attorney

General. Id. (citing Jong Ha Wang, 450 U.S. at 145, 101 S. Ct. at 1031); see also

Gomez-Gomez, 681 F.2d at 1349.

This distinction between discretionary and non-discretionary determinations

arose from our interpretation of the IIRIRA transitional rules, which barred the

appeal of “any discretionary decision” under five enumerated sections of the INA.

See Najjar, 257 F.3d at 1298 (“Section 309(c)(4)(E) does not preclude our review

of all decisions under § 244 of the INA, but applies only to ‘any discretionary

decision’ under the enumerated provisions.”). When the permanent rules went into

effect, we grafted the distinction onto the permanent rules without considering the

difference in statutory language. Gonzalez-Oropeza, 321 F.3d at 1332 (applying

35 Case: 17-10636 Date Filed: 08/19/2020 Page: 37 of 86

the discretionary distinction from “1252(a)(2)(B)’s predecessor”). Other lines of

cases subsequently adhered to this precedent without further consideration. 23

But the permanent rules do not include the “any discretionary decision”

language. Instead, the statute bars review for “any judgment,” a broader term that

encompasses both discretionary and non-discretionary determinations. It provides

a blanket prohibition on review of judgments relating to these five categories. A

change in statutory language generally connotes a change in meaning to the statute.

In re BFW Liquidation, LLC, 899 F.3d 1178, 1191 (11th Cir. 2018). Therefore, “in

the absence of any evidence to the contrary, one can plausibly infer that, by

replacing” any discretionary decision “with new language that omits any such

requirement, Congress intended to eliminate [that requirement], and to replace that

requirement with something substantively different.” Id.; see also Prado v. Reno,

23 See, e.g., Jimenez-Galicia v. U.S. Att’y Gen., 690 F.3d 1207, 1209 (11th Cir. 2012); Bedoya-Melendez v. U.S. Att’y Gen., 680 F.3d 1321, 1324 (11th Cir. 2012); Camacho-Salinas v. U.S. Att’y Gen, 460 F.3d 1343, 1347 (11th Cir. 2006). We are not the only circuit to have erroneously relied on precedent interpreting the transitional rules to demarcate our jurisdiction under the permanent rules. For example, in Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661 (5th Cir. 2003), the Fifth Circuit cited Gonzalez-Torres v. INS, 213 F.3d 899, 901 (5th Cir. 2000), for its holding that the continuous presence requirement is a factual determination subject to appellate review. Gonzalez-Torres of course interpreted the transitional rules, not the permanent rules. 213 F.3d at 901. In Aburto- Rocha v. Mukasey, 535 F.3d 500, 502 (6th Cir. 2008), the Sixth Circuit quoted language from Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 711 (6th Cir. 2004), for its conclusion that it could review non-discretionary decisions underpinning discretionary relief. Appellate jurisdiction in Billeke-Tolosa was based on the transitional rules of the IIRIRA. 385 F.3d at 710. 36 Case: 17-10636 Date Filed: 08/19/2020 Page: 38 of 86

198 F.3d 286, 290–92 (1st Cir. 1999) (“[T]he permanent rules remove more than

‘discretionary decisions’ from review in the courts of appeals.”).

Clinging to the discretionary and non-discretionary distinction flies in the

face of the statutory language specifically used by Congress. And it is a misnomer.

We have previously described “discretionary” decisions as those that lack “an

objective legal standard on which a court can base its review.” Bedoya-Melendez,

680 F.3d at 1325. In Bedoya-Melendez, we contrasted a question of law—which

involves “the application of an undisputed fact pattern to a legal standard”—to a

discretionary decision, which “requires an adjudicator to make a judgment call.”

Id. at 1324. As a matter of jurisprudence, rather than of jurisdiction, we—as well

as the BIA—would be unable to review a judgment that truly lacked any standards

of review. Cf. Heckler v. Chaney, 470 U.S. 821, 830, 105 S. Ct. 1649, 1655 (1985)

(“[E]ven where Congress has not affirmatively precluded review, review is not to

be had if the statute is drawn so that a court would have no meaningful standard

against which to judge the agency’s exercise of discretion.”).

The threshold eligibility determinations, however, are not discretionary

decisions—immigration courts cannot grant relief if they are not met. As the

Supreme Court has said, “[e]ligibility [for discretionary relief] is governed by

specific statutory standards which provide a right to a ruling on an applicant’s

eligibility.” Jay, 351 U.S. at 353, 76 S. Ct. at 924. Eligibility determinations— 37 Case: 17-10636 Date Filed: 08/19/2020 Page: 39 of 86

both those that we have previously deemed “discretionary” and those that we have

deemed “non-discretionary”—involve the same decisional process: applying the

law to a set of facts. And, “the application of law will necessarily involve

judgment.” Henry M. Hart Jr. & Albert M. Sacks, Legal Process: Basic Problems

in the Making and Application of Law 375 (1958). If the statutory standards for

eligibility are less specific, it gives an immigration judge more leeway in

interpreting and applying the law. But qualitative standards such as “good moral

character” or “exceptional and extremely unusual hardship” are not in themselves

discretionary decisions. An immigration judge must find that the alien meets such

standards before she can grant relief. 24 Not only does the Attorney General’s

interpretation—allowing appellate review of factual decisions underlying some

statutory eligibility determinations but not others—lack a statutory basis, it is also

illogical as a matter of policy. If Congress intended to block our review of the

ultimate decision to grant relief, why would courts be entitled to assess the

evidence for the more objective eligibility requirements, such as residency

requirements, while being barred from weighing the evidence for the qualitative

24 The dissent reads our analysis to say that judgment means “findings of fact.” Dissenting Op. at 64. While we don’t dispute that a factfinder may need to use judgment to assess witness credibility, weigh evidence, evaluate competing evidence, and draw inferences, we read “judgment” to encompass eligibility determinations rather than requiring appellate courts to assess whether a particular finding reflects an exercise of “judgment” before a determination of whether they have jurisdiction to review that finding. 38 Case: 17-10636 Date Filed: 08/19/2020 Page: 40 of 86

requirements, such as the character requirements? 25 A more consistent reading of

“judgment” is that, under § 1252(a)(2)(B)(i), all eligibility determinations for the

five enumerated categories of discretionary relief are barred from review.

Finally, § 1252(a)(2)(B) must be read in conjunction with § 1252(a)(2)(D).

See Guerrero-Lasprilla, 140 S. Ct. at 1073. Rather than engaging in mental

gymnastics to determine if a particular decision is “discretionary or not” and then

determining whether the alien’s claim presents a question of law or a constitutional

challenge, the logical interpretation of the statutory scheme is that “judgment”

encompasses all decisions made by the BIA and that we are foreclosed from

25 The dissent answers our inquiry with the simple explanation that there are questions about which the Attorney General “simply might be wrong.” Dissenting Op. at 79. Perhaps in recognition that the actual eligibility requirements under § 1255 and the other enumerated categories of relief are not merely “straightforward” criteria, the dissent reaches for a hypothetical age requirement to contextualize how obvious some errors can be. Dissenting Op. at 53. We are unpersuaded. First, the hypothetical assumes that an immigration judge’s factual findings are the end of the story. Before an applicant can petition this Court for review, however, he must appeal to the BIA, which reviews the immigration judge’s factual findings for clear error. 8 C.F.R. § 1003.1(d)(3). For example, in Patel’s appeal, the BIA identified the three factors upon which the Immigration Judge concluded that Patel’s testimony was not credible and found no clear error. The BIA’s review should correct obvious errors. See, e.g., In Re B-, 21 I. & N. Dec. 66, 71 (BIA 1995) (declining to accept the immigration judge’s adverse credibility finding). Furthermore, erroneous factual findings are subject to correction via a motion to reconsider. See 8 C.F.R. § 1003.2(b)(1). Second, to the extent that an immigration judge’s factual conclusions reflect a lack of “reasoned consideration” (or lack any reasoning, as in the hypothetical), those rulings are subject to legal and constitutional challenges. See Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1302–03 (11th Cir. 2015); Tan v. U.S. Att’y Gen., 446 F.3d 1369 (11th Cir. 2006). Finally, it is still unclear why we can review the BIA’s erroneous determination of age for the hypothetical age requirement, but lack jurisdiction to review the same factual finding when it relates to the “extreme hardship” or “good moral character” requirement. 39 Case: 17-10636 Date Filed: 08/19/2020 Page: 41 of 86

reviewing those determinations unless the alien presents a legal or constitutional

challenge. We thus lack jurisdiction to review factual challenges to a denial of

discretionary relief. 26 Nasrallah, 140 S. Ct. at 1694; Guerrero-Lasprilla, 140 S.

Ct. at 1073 (“The Limited Review Provision, however, will still forbid appeals of

factual determinations—an important category in the removal context.”).

The two pathways—that judgments are barred from review, except to the

extent they raise a constitutional or legal claim, and that discretionary decisions are

barred from review—may often reach the same result. As the Second Circuit

26 The dissent highlights one potential quirk of our interpretation—that we retain jurisdiction to review factual determinations when made in the removability context but lack jurisdiction to review the same facts when made in the discretionary relief context. Dissenting Op. at 82–83. This difference arises not because of our interpretation of “judgment,” but is due to the very nature of discretionary relief. A charge of removal is a separate determination from a finding of ineligibility for discretionary relief. For example, the due process considerations at the two stages differ. See Matovski v. Gonzales, 492 F.3d 722, 738 (6th Cir. 2007). The government bears the burden of proving removability by clear and convincing evidence, while the applicant bears the burden of establishing admissibility clearly and beyond doubt. Id. The government must inform the alien of the specific allegations which would justify removal but need not list all grounds for inadmissibility in the notice to appear. See Aalund v. Marshall, 461 F.2d 710, 712 (5th Cir. 1972); Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006). Aliens are entitled to effective assistance of counsel during the removal proceeding yet lack the same constitutional protection when seeking discretionary relief. Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999). Applicants cannot mount substantive due process challenges to eligibility considerations for discretionary relief because, we have held, they lack the requisite liberty interest. Mohammed v. Ashcroft, 261 F.3d 1244, 1250–51 (11th Cir. 2001). Given that these differences follow from the government’s charging decisions, it is not surprising that our jurisdiction to review the two determinations may also differ. Congress explicitly limited our jurisdiction to review “any judgment regarding the granting of relief under” § 1255 and included among those judgments are factual determinations regarding inadmissibility. 40 Case: 17-10636 Date Filed: 08/19/2020 Page: 42 of 86

pointed out in Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010), the “two

characterizations” are “congruent: BIA statutory interpretation pursuant to an

eligibility determination is nondiscretionary and therefore reviewable precisely

because it presents a legal question. In contrast, the BIA’s factfinding, factor-

balancing, and exercise of discretion normally do not involve legal or

constitutional questions, so we lack jurisdiction to review them.” See also Jean,

435 F.3d at 480 (concluding that the Court need not consider “the scope of

subsection (a)(2)(B)” in light of the enactment of subsection (D) by the REAL ID

Act); Reyes v. Holder, 410 F. App’x 935, 939 (6th Cir. 2011) (“[I]t remains

unclear whether the two categories . . . overlap entirely or almost entirely.”).

Regardless of how we have characterized eligibility determinations in the

past, they are threshold requirements.27 The Attorney General and immigration

judges have no discretion to grant relief unless the statutory criteria are met.

27 By treating all eligibility decisions as non-discretionary, we eliminate the case-by-case determination of whether an eligibility decision is discretionary or non-discretionary and bring stability to the law. See, e.g., Jimenez-Galicia, 690 F.3d at 1210 (“The other circuits that have examined . . . whether the catchall provision [for good moral character] is discretionary have not come to a uniform result.”); Twum, 930 F.3d at 19 (explaining the juxtaposition of conflicting case precedent about whether particular eligibility determinations provide objective criteria); Wilmore v. Gonzales, 455 F.3d 524, 527 (5th Cir. 2006) (noting the split between the Ninth and Tenth Circuits on whether the determination of “extreme cruelty” is discretionary). 41 Case: 17-10636 Date Filed: 08/19/2020 Page: 43 of 86

Relying on the Ninth Circuit’s en banc opinion in Montero-Martinez v.

Ashcroft, 277 F.3d 1137, 1142 (9th Cir. 2002), Patel argues that “[t]he only

judgment exercised regarding the order or decision lies in the Attorney General’s

discretionary authority to determine who among the eligible persons should be

granted discretionary relief.” Because “[n]o judgment is exercised with respect to

the mere eligibility for discretionary relief,” he asserts that § 1252(a)(2)(B)(i) does

not bar review of whether an alien meets the statutory criteria for relief. Id.

The Ninth Circuit held that it had jurisdiction to consider whether Montero-

Martinez’s adult daughter qualifies as a “child” under 8 U.S.C. § 1229b(b)(1)(D) 28

because this “purely legal and hence non-discretionary question” is not a

“judgment regarding the granting of relief.” Id. at 1140–41 (emphasis added). The

Ninth Circuit based its interpretation on three arguments. First, the Court looked to

the way the term “judgment” was used throughout the INA. Second, the Court

considered the structure of § 1252(a)(2)(B). Third, the Court compared the

jurisdiction-stripping language in § 1252(a)(2)(B)(i) with other provisions that

limit judicial review. The Court concluded that, based on these factors as well as

the background principle of narrowly construing restrictions on jurisdiction,

28 For cancellation of removal under § 1229b(b), an alien must, inter alia, establish that “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). 42 Case: 17-10636 Date Filed: 08/19/2020 Page: 44 of 86

§ 1252(a)(2)(B)(i) did not unambiguously bar review over “all decisions by the

BIA regarding discretionary relief.” Id. at 1144. Instead § 1252(a)(2)(B)(i)

“eliminates jurisdiction only over decisions by the BIA that involve the exercise of

discretion.” Id.

We disagree. While a discretionary decision, such as the “grace” of

ultimately granting relief, necessarily involves the exercise of judgment, the

meaning of judgment does not end there. Compare Black’s Law Dictionary

(defining “administrative discretion” as “[a] public official’s or agency’s power to

exercise judgment in the discharge of its duties” and “judicial discretion” as “[t]he

exercise of judgment by a judge or court based on what is fair under the

circumstances and guided by the rules and principles of law”), with Judgment,

Black’s Law Dictionary (6th ed. 1990) (“Determination of a court of competent

jurisdiction upon matters submitted to it.”). The Ninth Circuit so narrowly

construed the word “judgment” that it contorted its meaning.29

As the dictionary definitions above indicate, “judgment” is a broad term,

encompassing both the process of forming an opinion as well the pronouncement

29 The Ninth Circuit referenced a dictionary for its footnote that other common definitions of “judgment” include “a formal utterance of an authoritative opinion” or the “process of forming an opinion or evaluation,” but it did not cite a dictionary or other common- meaning source for its conclusion that “judgment” means either “any decision” or “any decision involving the exercise of discretion.” Montero-Martinez, 277 F.3d at 1141 & n.4. 43 Case: 17-10636 Date Filed: 08/19/2020 Page: 45 of 86

of the result. That process includes both legal and factual determinations and is not

arbitrarily limited to decisions involving the exercise of discretion. As the panel in

Montero-Martinez initially held, Ҥ 1252(a)(2)(B)(i), by its plain terms, appears to

encompass all decisions regarding cancellation of removal, including

determinations of statutory eligibility.” 249 F.3d 1156, 1158 (9th Cir.), as

amended (May 30, 2001), rev’d, 277 F.3d at 1137.

After the Supreme Court decided St. Cyr, the Ninth Circuit granted Montero-

Martinez’s petition for rehearing en banc, 277 F.3d at 1137, and then re-interpreted

the meaning of “judgment” to conform the statutory language to what it thought St.

Cyr required.30 Mysteriously, the Ninth Circuit’s en banc opinion never addresses

the common meaning of judgment. And St. Cyr merely acknowledged that some

form of judicial review for questions of law needed to be preserved—such as via

the writ of habeas corpus—not that “judgment” can only mean decisions involving

30 The Ninth Circuit is not alone in re-interpreting the meaning of “judgment” after acknowledging that its plain meaning bars review of all decisions. Compare Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir. 2003) (“On its face, [8 U.S.C. § 1252(a)(2)(B)(i)] seems to foreclose judicial review completely.”), with Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1148 (10th Cir. 2005) (adopting the Ninth Circuit’s analysis in Montero-Martinez); Mancha-Chairez v. Reno, 224 F.3d 766 (5th Cir. 2000) “[8 U.S.C. § 1252(a)(2)(B)(i)] forestalls any judicial review of Board judgments, regardless of the conclusion reached.”), with Mireles- Valdez v. Ashcroft, 349 F.3d 213, 216 (5th Cir. 2003) (“[8 U.S.C. § 1252(a)(2)(B)(i)’s] ban on review of “judgment[s] regarding the granting of relief” precludes review only of discretionary decisions.” (emphasis in original)), and Prado, 198 F.3d at 290 (“[T]he permanent rules remove more than ‘discretionary decisions’ from review in the courts of appeals.”), with Mele v. Lynch, 798 F.3d 30, 32 (1st Cir. 2015) (“[W]e lack jurisdiction to review the purely discretionary decisions made under the other statutory sections identified in § 1252(a)(2)(B)(i).”). 44 Case: 17-10636 Date Filed: 08/19/2020 Page: 46 of 86

the exercise of discretion. With the enactment of the Real ID Act of 2005,

Congress embedded these protections in § 1252(a)(2)(D), which preserves

appellate review of “purely legal” questions, such as whether an adult daughter

qualifies as a child.

We are unpersuaded by the Ninth Circuit’s other arguments. By the Court’s

own reasoning, it is impossible to give the word “judgment” the same meaning

throughout the INA. Montero-Martinez, 277 F.3d at 1141. Sometimes, when

preceded by the modifier “discretionary,” it means “discretionary judgment.” Id.

n.5; see also 8 U.S.C. § 1226(e); 8 U.S.C. 1252(b)(4)(D). Other times, when

preceded by “formal” or when the provision includes the word “final,” judgment

refers to a final judgment. See 8 U.S.C. § 1101(a)(48)(A); § 1158(b)(2)(A)(ii); §

1227(a)(2)(D); § 1229a(c)(3)(B)(i); § 1324b(i)(2); § 1375c(a)(3). Because, “[a]

given term in the same statute may take on distinct characters from association

with distinct statutory objects calling for different implementation strategies,”

Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574, 127 S. Ct. 1423, 1432

(2007), the use of the term in other parts of the statute says little about its meaning

in § 1252(a)(2)(B)(i).

Our interpretation of “judgment” also does not make the “any other

decision” language in § 1252(a)(2)(B)(ii) superfluous. See Montero-Martinez, 277

F.3d at 1142. Section 1252(a)(2)(B) limits our review of discretionary relief. 45 Case: 17-10636 Date Filed: 08/19/2020 Page: 47 of 86

Section 1252(a)(2)(B)(i) enumerates five types of relief. See Kucana, 558 U.S. at

246–47, 130 S. Ct. at 836. But those five categories aren’t the only provisions in

the INA that allow for discretionary action. Id. at 248, 130 S. Ct. at 837 (citing §

1157(c)(1); § 1181(b), & § 1182(a)(3)(D)(iv) as examples). Section

1252(a)(2)(B)(ii) is therefore a “catchall provision” to preclude our review of those

other categories of discretionary relief. Id. at 247, 130 S. Ct. at 836.

The dissent expounds on this structure argument, pointing to the Supreme

Court’s decision in Kucana for additional support. Dissenting Op. at 69–70. In

Kucana, the Supreme Court looked to the structure of § 1252(a)(2)(B) to support

its holding that the “any other decision” language in § 1252(a)(2)(B)(ii) refers to

decisions “made discretionary by legislation” rather than by regulation. Id. at 248,

130 S. Ct. at 837. Therefore, the dissent reasons, § 1252(a)(2)(B)(i) must also

apply only to discretionary decisions. Dissenting Op. at 69–70.

That is a faulty conclusion. As we explained above, eligibility

determinations are not discretionary. While the ultimate decision of whether to

grant of relief is discretionary; eligibility for the relief is not. Kucana read “other”

to align with the five types of relief enumerated in § 1252(a)(B)(ii). See id. at 247–

48, 130 S. Ct. at 836–37. It said nothing about how to interpret the meaning of

“judgment[s] regarding the granting of [that] relief.”

46 Case: 17-10636 Date Filed: 08/19/2020 Page: 48 of 86

Furthermore, our interpretation is the only one that appropriately reads

§ 1252(a)(2)(B)(i) & (ii) harmoniously. If, as Patel contends, “judgment” is

limited to the ultimate grant of grace, there is little need for § 1252(a)(2)(B)(i)

because our review of that final decision is already circumscribed by

§ 1252(a)(2)(B)(ii). Id. at 246–47, 130 S. Ct. at 836 & n. 13. If eligibility criteria

are deemed discretionary because Congress “itself set out the Attorney General’s

discretionary authority in the statute,” those determinations would be barred from

review by § 1252(a)(2)(B)(ii), not by § 1252(a)(2)(B)(i). Id. at 247, 130 S. Ct. at

837. And if, as the dissent reasons, eligibility criteria are deemed discretionary for

some other reason, then Kucana provides no guidance because its holding was

based on what Congress “made discretionary by legislation.” Id. at 246-47, 130 S.

Ct. at 836. Accordingly, we do not read “any other decision” to import a

discretionary gloss on “any judgment.”

Finally, the use of the words “decision” or “individual determination” in

other judicial-stripping provisions in the INA does not convince us that “judgment”

in § 1252(a)(2)(B)(i) is arbitrarily limited to decisions involving discretion. Such a

cursory comparison overlooks the words “any” and “regarding” in §

1252(a)(2)(B)(i). If Congress intended to prohibit our review of only the ultimate

determination of relief, it merely needed to say that “[n]o court shall have

jurisdiction” to review “the ultimate judgment granting relief” under the

47 Case: 17-10636 Date Filed: 08/19/2020 Page: 49 of 86

enumerated provisions, rather than stripping our jurisdiction to review “whatever

kind” of judgments that “relate to the subject.” See Babb, 140 S. Ct. 1173 n.3;

Appling, 138 S. Ct. at 1760. And, as we have said before, “whatever kind” of

judgments that “relate to the subject” include even the most objective seeming

eligibility requirements.

Patel’s interpretation—that § 1252(a)(2)(B) bars review only of the final

grant or denial of relief—renders our jurisdictional limits meaningless. Enabling

review of each individual determination underpinning the final decision effectively

allows for review of the grant of relief. See Lee v. U.S. Citizenship & Immigration

Servs., 592 F.3d 612, 620 (4th Cir. 2010) (finding that eligibility determinations

cannot be divorced from the denial of discretionary relief). We cannot accept such

a run-around of our limitations.

Because § 1252(a)(2)(B)(i) contains no modifying phrases that would

indicate that “judgment” refers exclusively to a discretionary decision, we hold that

we are precluded from reviewing any judgment relating to Patel’s request for

relief, except to the extent that he raises a constitutional claim or a question of law.

On appeal, Patel does not assert any constitutional claims regarding the

denial of relief under § 1255. He claims that the BIA erred in its determination

48 Case: 17-10636 Date Filed: 08/19/2020 Page: 50 of 86

that he lacked the requisite subjective intent to misrepresent his citizenship status.

Such a challenge presents a factual question. We lack jurisdiction to such a claim

under § 1252(a)(2)(B)(i).31

Patel also claims that the BIA used the wrong legal standard to determine

that he is ineligible for relief. The Panel appropriately retained jurisdiction to

consider that claim. We need not disturb the panel’s ruling that the statute lacks a

31 The dissent interprets § 1252(a)(2)(B)(i) to allow judicial review of this question, but fails to explain why a finding that Patel’s false claim of citizenship was made with subjective intent is a “non-discretionary” finding subject to judicial review. In the dissent’s view, Patel is either admissible or he is not; “[n]o discretion is required to make these decisions.” Dissenting Op. at 74. That is an overly simplistic way of looking at the inadmissibility criteria in 8 U.S.C. § 1182(a). For one, some of the inadmissibility criteria are statutorily specified to be in the discretion of the Attorney General. See, e.g., § 1182(a)(3)(D)(iv) (discretionary waiver for applicants who have affiliated with a totalitarian party). Other criteria include statutory definitions to minimize discretion. See, e.g., § 1182(a)(3)(B)(iii) & (iv) (defining “terrorist activity” and “engage in terrorist activity”). Others list regulations or statutes that should guide the Attorney General’s opinion. See, e.g., § 1182(a)(1)(A)(i) & (iii) (determinations of inadmissibility based on certain health-related grounds should be made “in accordance with regulations prescribed by the Secretary of Health and Human Services”); § 1182(a)(4)(A) & (B) (listing factors to consider in the determination of whether an applicant is “likely at any time to become a public charge”). And, still others clearly require the Attorney General “to use judgment to place someone in a subjective category that lacks clear, self-explanatory boundaries.” Dissenting Op. at 78. For example, a determination that an applicant “seeks to enter the United States to engage solely, principally, or incidentally in” “any activity a purpose of which is the opposition to . . . the Government of the United States” is hardly self-explanatory or easily verified as correct or incorrect. See § 1182(a)(3)(A)(iii). The same goes for the provision on which Patel was found inadmissible. See § 1182(a)(6)(C)(ii)(I). To complicate the inquiry further, the Attorney General has discretion to grant inadmissibility waivers, including for the ground on which Patel was found inadmissible. See, e.g., § 1182(g) (waiver for health- related grounds); § 1182(h) (waiver for marijuana offenses); § 1182(i) (waiver for fraud or misrepresentation grounds). The dissent’s interpretation assumes that an inadmissibility determination is one straightforward, non-discretionary decision. In reality, that eligibility determination is the culmination of a variety of judgments. 49 Case: 17-10636 Date Filed: 08/19/2020 Page: 51 of 86

materiality element. See Patel v. U.S. Att’y Gen., 917 F.3d 1319, 1322 (11th Cir.

2019).

SO ORDERED.

50 Case: 17-10636 Date Filed: 08/19/2020 Page: 52 of 86

MARTIN, Circuit Judge, joined by WILSON, JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges, dissenting:

Pankajkumar Patel applied to immigration authorities to adjust his

immigration status so that he could continue living in the United States. His

application for adjustment of his status was denied, and Mr. Patel then turned to

this Court to review that denial of relief. Originally, a three-judge panel of this

Court affirmed the ruling of the Board of Immigration Appeals (“BIA”) and also

affirmed the final order directing his removal from this country. Our en banc

Court then vacated that panel opinion and reheard Mr. Patel’s petition so the whole

court could decide the proper scope of 8 U.S.C. § 1252(a)(2)(B)(i), a jurisdiction-

stripping provision of the Immigration and Nationality Act (“INA”). Today the

majority of the judges on this Court rule that a “straightforward reading” of

§ 1252(a)(2)(B)(i) tells us we lack jurisdiction to review any element of Mr. Patel’s

petition other than constitutional questions or errors of law. Maj. Op. at 25.

My reading of the statute leads me to a different understanding. The

majority opinion analyzes the statute extensively. But it pays scant attention to the

two foundational canons of statutory construction that must guide our

interpretation of jurisdictional restrictions placed on us by the INA. First, there is a

longstanding presumption in favor of judicial review of administrative actions.

Time and again, the Supreme Court has told us that when a jurisdiction-stripping

51 Case: 17-10636 Date Filed: 08/19/2020 Page: 53 of 86

provision “is reasonably susceptible to divergent interpretation, we adopt the

reading that accords with traditional understandings and basic principles: that

executive determinations generally are subject to judicial review.” Guerrero-

Lasprilla v. Barr, 589 U.S. ___, 140 S. Ct. 1062, 1069 (2020) (quoting Kucana v.

Holder, 558 U.S. 233, 251, 130 S. Ct. 827, 839 (2010)). And the second tenet

neglected by the majority is the “longstanding principle of construing any lingering

ambiguities in deportation statutes in favor of the alien.”1 INS v. Cardoza-

Fonseca, 480 U.S. 421, 449, 107 S. Ct. 1207, 1222 (1987). The majority’s failure

to employ these canons of statutory construction gives us an interpretation of the

statute that vests immigration officials with the ability to insulate immigration

court rulings from judicial review based solely on their own charging decisions.

The Supreme Court has warned against such an “extraordinary delegation of

authority.” Kucana, 558 U.S. at 252, 130 S. Ct. at 840.

Once the proper canons of construction are applied, § 1252(a)(2)(B)(i)

cannot properly be read to strip this Court of jurisdiction to review a finding of fact

that is contradicted by the record. Rather, the statute more naturally allows our

1 “Alien” is not my preferred term, but it is the word used in the statute. I use it here when quoting the agency decision or the text of the INA, but otherwise have adopted the term “noncitizen” as equivalent to the statutory term. See Barton v. Barr, 590 U.S. ___, 140 S. Ct. 1442, 1446 n.2 (2020).

52 Case: 17-10636 Date Filed: 08/19/2020 Page: 54 of 86

Court to review findings of fact that are mistaken. And that review properly

extends even to eligibility determinations made by an Immigration Judge (“IJ”),

where those determinations are based on facts belied by the record. This is so

because, among other reasons, factual findings related to a person’s eligibility for

discretionary relief are generally not discretionary, and § 1252(a)(2)(B)(i) strips

our jurisdiction to review only discretionary determinations. For example, assume

the immigration statute says only people over the age of 40 years are eligible to

remain in the country. The record contains much evidence of the applicant’s actual

age of 50 years, including her birth certificate and even photographs from her 40th

birthday party, showing that it took place ten years ago. The IJ nevertheless finds

that the applicant is only 30 years old, and rules as a result that the applicant is not

eligible for discretionary relief. The applicant then comes to our Court to point us

to the substantial evidence of her actual age of 50 years. I say our Court is

empowered to review this obviously mistaken finding of fact that was the basis for

denial of discretionary relief. It is also true, of course, that if the IJ had got the 50-

year age right, and then the applicant was denied discretionary relief, our Court

would have no jurisdiction to review the ultimate denial of relief.

Nearly every one of our sister circuits have adopted the reading of the

jurisdiction stripping provisions that would allow courts to reverse findings of fact

contradicted by the record. Under this widely accepted reading of

53 Case: 17-10636 Date Filed: 08/19/2020 Page: 55 of 86

§ 1252(a)(2)(B)(i), our Court is entitled to review mistakes made by the IJ about

the cold hard facts of Mr. Patel’s eligibility for adjustment of status. And this

review can extend to the immigration judge’s credibility finding when that finding

is based on facts plainly contradicted by the record. Since I believe the majority

opinion misreads § 1252(a)(2)(B)(i), I respectfully dissent.

The majority has ably described the history of Mr. Patel’s appeal, so I

review it only briefly here. The Department of Homeland Security (“DHS”)

served Mr. Patel a notice to appear (“NTA”) in April 2012 that charged him as

being removable because he is an “alien” present in the United States without

being admitted or paroled, pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). The NTA did

not charge Mr. Patel with being inadmissible. Mr. Patel conceded he was

removable and applied for adjustment of status under 8 U.S.C. § 1255(i), based on

an approved employment-related visa petition filed on his behalf. Mr. Patel’s wife,

Jyotsnaben, and one of his sons, Nishantkumar, also applied for derivative status

based on Mr. Patel’s application for adjustment. On May 9, 2013, the IJ found that

Mr. Patel was not eligible for adjustment of status because, during his time living

in the United States, he once falsely claimed United States citizenship. The IJ said

this rendered Mr. Patel inadmissible under 8 U.S.C. § 1182(a)(6)(c)(ii)(I) and

therefore not eligible for discretionary relief. 54 Case: 17-10636 Date Filed: 08/19/2020 Page: 56 of 86

Mr. Patel appealed to the BIA. In a divided decision, the BIA affirmed the

IJ’s factual findings that Mr. Patel was not a credible witness and had falsely

represented himself to be a U.S. citizen for purposes of obtaining a noncommercial

Georgia driver’s license. The BIA found no clear error in the IJ’s rejection of Mr.

Patel’s argument that he “made a mistake” in checking a box on a form, indicating

that he was a U.S. citizen. Board Member Wendtland dissented, noting that Mr.

Patel was not inadmissible under Matter of Richmond, 26 I & N Dec. 779 (BIA

2016), since under Georgia law he was eligible to receive a driver’s license

whether or not he was a U.S. citizen. Thus, according to Board Member

Wendtland, Mr. Patel’s answer to the citizenship question was immaterial to the

issuance of his license.

Mr. Patel asked our Court to review the BIA’s rejection of his claim. What

matters for this discussion is Mr. Patel’s argument that, since he did not intend to

check the U.S. citizenship box on the driver’s license application form, he lacked

the requisite subjective intent to be found inadmissible on the ground that he made

a false claim of U.S. citizenship. See Patel v. U.S. Att’y Gen., 917 F.3d 1319,

1326 (11th Cir. 2019). As mentioned above, the panel that originally heard Mr.

Patel’s case affirmed the BIA ruling against him. The panel concluded that it

lacked jurisdiction to review any factual findings about Mr. Patel’s intent that were

55 Case: 17-10636 Date Filed: 08/19/2020 Page: 57 of 86

made in support of the denial of adjustment of status, including the IJ’s finding that

Mr. Patel’s false claim was made with subjective intent. Id. at 1327.

On September 13, 2019, a majority of this Court’s active judges voted to

rehear Mr. Patel’s petition en banc and vacated the panel opinion. We asked the

parties to brief the question of whether Mr. Patel’s subjective intent to obtain a

purpose or benefit was a “non-discretionary finding pertaining to statutory

eligibility for immigration relief” and whether we had jurisdiction to review that

finding.

Before I address the text of § 1252(a)(2)(B)(i), I first review the statutory

framework and interpretive canons that must guide our analysis. Remarkably, the

majority mentions these principles only in passing. See Maj. Op. at 31–32. But

they are foundational and compel a different conclusion than that reached by the

majority.

First, the default rule of the INA is that the agency’s legal holdings and

factual findings are subject to judicial review. 8 U.S.C. § 1252(b)(2) and (9) tell us

that appeals from the findings of immigration judges will be channeled through

petitions for review to the federal courts of appeals, which have jurisdiction to

56 Case: 17-10636 Date Filed: 08/19/2020 Page: 58 of 86

review “all questions of law and fact . . . arising from any action taken or

proceeding brought to remove an alien from the United States.”

True, other sections of § 1252 limit this general grant of jurisdiction. But in

applying those limits, we must follow two familiar canons of statutory

interpretation. As for the first, the Supreme Court again recently reminded us that

there is a “well-settled” and “strong presumption” favoring judicial review of

administrative actions. Guerrero-Lasprilla, 140 S. Ct. at 1069 (quoting McNary v.

Haitian Refugee Ctr., Inc., 498 U.S. 479, 496, 498, 111 S. Ct. 888, 898, 899

(1991)). The Court has “consistently applied” the presumption of reviewability

when it interprets immigration statutes. Id. (quoting Kucana, 558 U.S. at 251, 130

S. Ct. at 839); see also INS v. St. Cyr, 533 U.S. 289, 298, 121 S. Ct. 2271, 2278

(2001). It has told us there is a “heavy burden” for dislodging the presumption in

favor of judicial review, Bowen v. Mich. Acad. of Family Physicians, 476 U.S.

667, 672, 106 S. Ct. 2133, 2136 (1986), and this burden requires “clear and

convincing evidence” that Congress intended to preclude review. Reno v. Catholic

Soc. Servs., Inc., 509 U.S. 43, 64, 113 S. Ct. 2485, 2499 (1993). For these reasons,

when a statute is reasonably susceptible to different interpretations, we must adopt

57 Case: 17-10636 Date Filed: 08/19/2020 Page: 59 of 86

the interpretation permitting federal court review. Kucana, 558 U.S. at 251, 130 S.

Ct. at 839.2

The presumption of judicial review is further buttressed by the

“longstanding principle of construing any lingering ambiguities in deportation

statutes in favor of the alien.” Cardoza-Fonseca, 480 U.S. at 449, 107 S. Ct. at

1222. We use this rule of construction because, as the Supreme Court has

explained, “deportation is a drastic measure and at times the equivalent of

banishment or exile.” INS v. Errico, 385 U.S. 214, 225, 87 S. Ct. 473, 480 (1966)

(quotation marks omitted). Because “the stakes are considerable for the individual,

we will not assume that Congress meant to trench on his freedom[] beyond that

2 The majority suggests that, because its interpretation preserves review of “questions of law” under § 1252(a)(2)(D), it does not run afoul of this principle. Maj. Op. at 31–32. That is a non sequitur. The presumption of judicial review is not a jurisdictional floor. It is a rule of statutory interpretation that guides our reading of any statute limiting federal court jurisdiction to review administrative action, including by limiting our review of non-discretionary factual determinations. See Kucana, 558 U.S. at 251, 130 S. Ct. at 839. St. Cyr does not support the majority’s reasoning. In St. Cyr, the Supreme Court considered whether portions of the Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) “stripped the courts of jurisdiction to decide the question of law presented by respondent’s habeas corpus application.” St. Cyr, 533 U.S. at 298, 121 S. Ct. at 2278. Applying the canons favoring judicial review and constitutional avoidance, it concluded that the disputed statutes did not withdraw the power of federal courts to review such questions. Id. at 305, 121 S. Ct. at 2282. Whether those statutes withdrew jurisdiction to review findings of fact was not before the Court. Thus, it is unsurprising the Court preserved only the authority to review questions of law. Nothing in St. Cyr, or any other decision I am aware of, implies that preserving review of questions of law independently satisfies the presumption of judicial review of agency action. 58 Case: 17-10636 Date Filed: 08/19/2020 Page: 60 of 86

which is required by the narrowest of several possible meanings of the words

used.” Id. (quotation marks omitted).

Ignoring the guideposts of the strong presumption of judicial review and the

narrow interpretation of deportation statutes, the majority sets off on the wrong

path entirely. Since we are not legislators writing laws to enforce our own views,

our job in interpreting the jurisdiction-stripping provisions of the INA is to

determine the degree to which Congress clearly intended to remove this Court’s

ability to review executive action. In fact, “[s]eparation-of-powers concerns . . .

caution us against reading legislation, absent clear statement, to place in executive

hands authority to remove cases from the Judiciary’s domain.” Kucana, 558 U.S. at

237, 130 S. Ct. at 831. The following discussion demonstrates ambiguity within

the text of § 1252(a)(2)(B). I believe my narrower reading of the statute (allowing

more judicial review) resolves this ambiguity better than the broad interpretation

(allowing much less judicial review) given it by the majority. I do not say that my

narrow reading is the only possible one. But it is certainly a natural and available

interpretation. Thus, absent clear evidence to the contrary, and with the

presumption in favor of judicial review as well as the presumed narrow reading of

removal statutes, it is the interpretation we must adopt. With this in mind, I turn to

the text of the statute.

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Section 1252(a)(2)(B) is titled “Denials of discretionary relief.” It has two

subsections. Subsection (i) strips courts of jurisdiction to review “any judgment

regarding the granting of relief” under §§ 1182(h), 1182(i), 1229b, 1229c, or 1255.

Each of those five enumerated sections of the INA describes a form of relief that

may only be granted in the discretion of the Attorney General. 3 Subsection (ii)

strips jurisdiction to review “any other decision or action . . . the authority for

which is specified under this subchapter to be in the discretion of the Attorney

General or the Secretary of Homeland Security.” Thus, I read § 1252(a)(2)(B) to

say that subsection (i) strips courts of jurisdiction to review only discretionary

decisions related to eligibility and the granting of relief under any of the five

statutes listed there. Then, subsection (ii) strips courts of jurisdiction to review any

other decisions that are explicitly specified to be “discretionary” in the INA. 4

3 See 8 U.S.C. § 1182(h) (“The Attorney General may, in his discretion, waive the application of subparagraphs . . . [of this section].”); § 1182(i)(1) (“The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) [of this section].”); § 1229b(b)(1) (“The Attorney General may cancel removal . . . .”); § 1229c(a)(1) (“The Attorney General may permit an alien voluntarily to depart the United States . . . .”); § 1255(a) (“The status of an alien . . . may be adjusted by the Attorney General, in his discretion, and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence . . . .”). 4 Subsection (ii) does not apply Mr. Patel’s petition for review and its meaning is not in dispute here. 60 Case: 17-10636 Date Filed: 08/19/2020 Page: 62 of 86

No one disputes that § 1252(a)(2)(B) removes our jurisdiction to review the

ultimate discretionary decision of the Attorney General about whether to grant the

five forms of relief enumerated in subsection (i). But the majority reads the statute

to do much more than that. There are often many factual and legal questions that

must be decided in determining whether a person is even eligible for discretionary

relief. And the majority opinion says § 1252(a)(2)(B) leaves us no jurisdiction to

review any of those factual findings made by immigration judges in deciding this

eligibility question. See Maj. Op. at 24–25. Under the majority’s interpretation,

our Court has jurisdiction to review only legal and constitutional questions under

the jurisdiction-restoring provisions of § 1252(a)(2)(D).

But the statute does not require such a diminished role for federal courts.

First, when the statute removes our jurisdiction to review “any judgment regarding

the granting of relief,” the word “judgment” refers to exercises of judgment. It

does not naturally include findings of fact. The INA simply does not use the word

“judgment” to convey all the meanings given it in the majority opinion. Second,

the adjacent statutory text supports involvement of the courts in some of the fact-

finding related to eligibility determinations. It shows that where Congress

intended to eliminate all review other than legal and constitutional error, it knew

how to do so. And reading “judgment” to so broadly inhibit judicial review, as the

majority does here, renders superfluous other adjacent statutory language. Third,

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the structure of the INA and of removal proceedings weigh heavily against

interpreting § 1252(a)(2)(B) as eliminating all jurisdiction of this Court to review

basic findings of fact. Perhaps it is these reasons that have led all but one of our

sister circuits who have considered this issue to conclude that § 1252(a)(2)(B) does

not eliminate review of factual or legal determinations related to eligibility for

discretionary relief. See Singh v. Gonzales, 413 F.3d 156, 160 n.4 (1st Cir. 2005);

Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir. 2006) (per curiam); Mendez-

Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir. 2003); Garcia-Melendez v.

Ashcroft, 351 F.3d 657, 661 (5th Cir. 2003); Aburto-Rocha v. Mukasey, 535 F.3d

500, 502 (6th Cir. 2008); Iddir v. INS, 301 F.3d 492, 497 (7th Cir. 2002); Ortiz-

Cornejo v. Gonzales, 400 F.3d 610, 612 (8th Cir. 2005); Montero-Martinez v.

Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002); Sabido Valdivia v. Gonzales, 423

F.3d 1144, 1149 (10th Cir. 2005). 5 I hoped this Court would join the majority of

our sister circuits.

I first turn to the meaning of the word “judgment.” Again,

§ 1252(a)(2)(B)(i) removes our jurisdiction to review “any judgment regarding the

5 The Fourth Circuit has reached a similar conclusion to that of the majority. See Jean v. Gonzales, 435 F.3d 475, 480–81 (4th Cir. 2006). The D.C. Circuit has not yet taken up this question. 62 Case: 17-10636 Date Filed: 08/19/2020 Page: 64 of 86

granting of relief” under five specified sections of the INA. The majority thinks

the meaning of this word tells us quite a lot about the scope of our jurisdiction.

But “judgment” is not defined in the statute and, in ordinary conversation, it can

convey different meanings.

“In determining the meaning of a statutory provision, we look first to its

language, giving the words used their ordinary meaning.” Artis v. District of

Columbia, 583 U.S. ___, 138 S. Ct. 594, 603 (2018) (quotation marks omitted).

The INA does not define the term “judgment.” Montero-Martinez, 277 F.3d at

1141. And at the time § 1252(a)(2)(B)(i) was written, Black’s Law Dictionary

gave many definitions for the word, including: “[t]he official and authentic

decision of a court of justice upon the respective rights and claims of the parties to

an action or suit therein litigated and submitted to its determination”; “[t]he final

decision of the court resolving the dispute and determining the rights and

obligations of the parties”; “conclusion[s] of law upon facts found or admitted by

the parties”; and the “[d]etermination of a court of competent jurisdiction upon

matters submitted to it.” Judgment, Black’s Law Dictionary (6th ed. 1990). Other

contemporary dictionaries also swept broadly. They included definitions such as

“the sentence of a court of justice, a judicial decision or order in court,” Judgment,

Oxford English Dictionary (2nd ed. 1989); “a formal utterance or pronouncing of

an authoritative opinion after judging,” Judgment, Webster’s Third New

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International Dictionary (1993); and “the mental or intellectual process of forming

an opinion or evaluation by discerning and comparing” or “an opinion or estimate

so formed,” id.

The majority says these definitions fall into two categories: (1) final

decisions or conclusions of a court based on the application of law to fact and (2)

any decision reached by a court. Maj. Op. at 28. But a judgment can also be the

exercise of discretion. See Montero-Martinez, 277 F.3d at 1144 (holding that the

word “judgment” could mean “a decision involving the exercise of discretion”

(quotation mark omitted)). This idea is supported by definitions like the “process

of forming an opinion or evaluation by discerning and comparing.” Judgment,

Webster’s Third New International Dictionary (1993). And I do not agree with the

majority that “any decision” is the only natural meaning in the context of

§ 1252(a)(2)(B)(i). In particular, I reject the majority’s definition that extends the

meaning of the word “judgment” to include findings of fact. This seems to me a

highly eccentric use of the word.6

6 The majority cites a sentence from Nasrallah v. Barr, 590 U.S. ___, 140 S. Ct. 1683 (2020), saying that under § 1252(a)(2)(B) “a noncitizen may not bring a factual challenge to orders denying discretionary relief.” See id. at 1693–94; Maj. Op. at 25. However, the Court made this statement (without attendant analysis) only in response to a potential counterargument regarding the scope of a separate jurisdiction stripping statute, § 1252(a)(2)(C). See Nasrallah, 140 S. Ct. at 1693–94. And as we note, see infra at 52, the case the Supreme Court cited for this proposition, Kucana, actually supports the opposite principle—that is, that § 1252(a)(2)(B) strips jurisdiction of only discretionary decisions. The question we address today was not before the 64 Case: 17-10636 Date Filed: 08/19/2020 Page: 66 of 86

Take, for example, the decision of whether to grant cancellation of removal

under § 1229b(a), which is one of the five forms of discretionary relief listed in

§ 1252(a)(2)(B)(i). To be eligible for cancellation of removal, a permanent

resident must show that she has been a lawfully admitted permanent resident for at

least five years; she has resided continuously in the United States for seven years

after being admitted; and she has not been convicted of an aggravated felony. 8

U.S.C. § 1229b(a). These eligibility requirements are simply a matter of fact:

either you’ve been in the United States for five years, or you haven’t. And a

recitation of this fact (one way or the other) would not naturally be described as a

“judgment.” Of course, I can’t say that no one has ever used the word “judgment”

to mean “findings of fact,” but it does not reflect the most natural understanding of

the term.

Court in Nasrallah. And the Court did clarify that its decision “has no effect on judicial review of those discretionary determinations” described in § 1252(a)(2)(B). Id. The statement quoted by the majority is therefore indisputably dictum. Dicta, and especially Supreme Court dicta, can be persuasive but we are not required to follow it where “the point now at issue was not fully debated.” Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548, 133 S. Ct. 1351, 1368 (2013) (declining to follow “dictum contained in a rebuttal to a counterargument”). Thus, this statement from Nasrallah is properly viewed in light of the facts that: the Supreme Court conducted no analysis of § 1252(a)(2)(B) in connection with its mention of factual challenges; the Court referenced Kucana, which seems to link the jurisdiction stripping to discretionary decisions only; and nine circuits say § 1252(a)(2)(B) does not strip jurisdiction of federal courts to review fact-finding related to eligibility. While ordinarily we find Supreme Court dicta to be persuasive, for these reasons the quotation from Nasrallah is less so.

65 Case: 17-10636 Date Filed: 08/19/2020 Page: 67 of 86

And the INA uses the word “judgment” in other places, where its meaning is

never as broad as that assigned to it by the majority opinion. It is a well-

established canon of interpretation that we presume the same word is intended to

have the same meaning when used in different parts of the same act. Envtl. Def. v.

Duke Energy Corp., 549 U.S. 561, 574, 127 S. Ct. 1423, 1432 (2007). The word

“judgment” is used thirteen times in the INA. See Montero-Martinez, 277 F.3d at

1141 n.5. When not referring to the final decision of a court, the term “judgment”

is used exclusively to refer to discretionary decisions, including: the Attorney

General’s “judgment” of whether to establish DHS offices in foreign countries, 8

U.S.C. § 1103(a)(7); the Attorney General’s “discretionary judgment[s]” regarding

the apprehension and detention of noncitizens, id. § 1226(e); the Attorney

General’s “discretionary judgment” about whether to grant asylum, id.

§ 1252(b)(4)(D); and the Attorney General’s judgment of whether removal of a

noncitizen to the country of the noncitizen’s designation would “impair the

obligation of the United States under any treaty . . . or otherwise adversely affect

the foreign policy of the United States,” id. § 1537(b)(2)(A). I’m aware the

Supreme Court has also cautioned that “most words have different shades of

meaning and consequently may be variously construed,” even when used in the

same statute. Duke Energy Corp., 549 U.S. at 574, 127 S. Ct. at 1432 (quotation

marks omitted) (alteration adopted). But the fact that the INA never uses the word

66 Case: 17-10636 Date Filed: 08/19/2020 Page: 68 of 86

judgment” to mean “any decision” or “findings of fact” surely weighs against

imposing those meanings on the text of § 1252(a)(2)(B). 7

The surrounding statutory language casts further doubt on the majority’s

conclusion. The title of the subsection, “Denials of discretionary relief,” suggests

that Congress intended to preclude review of the ultimate discretionary decision, as

opposed to the factual findings that must be made prior to the exercise of that

discretion. See St. Cyr, 533 U.S. at 308–09, 121 S. Ct. at 2284 (holding that the

title of a statute cannot limit the plain meaning of the text but can shed light on

ambiguous words or phrases).

Also, if we construe “judgment” to mean “any decision,” this would render

the accompanying subsection, § 1252(a)(2)(B)(ii), superfluous. If “judgment”

includes all decisions, discretionary and non-discretionary, then there would be no

need for subsection (ii) to preclude review of “other decision[s] or action[s]” which

7 It is true that in some places in the INA, Congress used the phrase “discretionary judgment,” rather than just the word “judgment.” I do not think the use of this phrase in other parts of the statute tells us much about what Congress meant when it used the word “judgment” alone. The sections of the INA that use the phrase “discretionary judgment” do not appear in statutes with similar construction as § 1252(a)(2)(B), and were not made part of the statute at the same time. See Gomez-Perez v. Potter, 553 U.S. 474, 486, 128 S. Ct. 1931, 1940 (2008) (holding that the inference from negative implication is strongest when “the relevant statutory provisions were considered simultaneously when the language raising the implication was inserted” (quotation marks omitted)); City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 435–436, 122 S. Ct. 2226, 2234 (2002) (holding that presumptions from negative implication “grow[] weaker with each difference in the formulation of the provisions under inspection.”). But I do think it significant that neither the phrase “discretionary judgment” nor the word “judgment” alone are ever used to mean “findings of fact” or “any decision.” 67 Case: 17-10636 Date Filed: 08/19/2020 Page: 69 of 86

are specified as discretionary. See Montero-Martinez, 277 F.3d at 1143 n.7; Torres

v. Lynch, 578 U.S. __, 136 S. Ct. 1619, 1628 n.8 (2016) (noting courts ordinarily

“assum[e] that Congress, when drafting a statute, gives each provision independent

meaning”).

Likewise, there are adjacent subsections of the statute, in which Congress

clearly meant to strip courts of jurisdiction over all matters related to an

immigration order or decision, and did so unequivocally and without ambiguity.

Section 1252(a)(2)(A)(i), which immediately precedes § 1252(a)(2)(B), says that

“no court shall have jurisdiction to review . . . any individual determination or to

entertain any other cause or claim arising from or relating to the implementation or

operation of an order of removal pursuant to section 1225(b)(1) of this title.”

§ 1252(a)(2)(A)(i) (emphasis added). The jurisdiction-stripping effect of this

statute is similar to the effect the majority would give § 1252(a)(2)(B): it precludes

all judicial review of any factual determinations or applications of law to fact. See

Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. ___, 140 S. Ct. 1959, 1966

(2020). Congress also spoke clearly to remove jurisdiction elsewhere in § 1252 of

the INA. Section 1252(a)(2)(C) states “no court shall have jurisdiction to review

any final order of removal against an alien who is removable by reason of having

committed a criminal offense” under certain enumerated sections. In contrast,

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§ 1252(a)(2)(B)(i) precludes review of only “any judgment regarding the granting

of relief.”

An examination of the language of these three adjacent sections shows that

if Congress wanted § 1252(a)(2)(B) to eliminate review over all decisions

underlying the grant of discretionary relief, it knew exactly how to do it. And it

did not do so. See Montero-Martinez, 277 F.3d at 1143 (holding that the contrast

between “[t]he broad and all-inclusive scope of subsection (A)(i)” and “the far

more limited language of (B)(i)” show that Congress intended (B)(i) to apply only

to discretionary decisions). This comparison also shows that when Congress

wanted to refer to a broad range of decisions that include findings of fact, it did not

use the word “judgment.” Instead it used the words “decision” or “determination,”

which are significantly broader terms. This strongly suggests that

§ 1252(a)(2)(B)(i) limits review only of decisions left to the discretion of the

Attorney General, as opposed to the factual findings related to eligibility.

Also worthy of note, the Supreme Court interpreted the scope of

§ 1252(a)(2)(B)(ii) in Kucana, 558 U.S. 233, 130 S. Ct. 827. In doing so, it

strongly suggested that § 1252(a)(2)(B)(i) only applies to discretionary decisions.

See id. at 246. The Supreme Court said that “[e]ach of the statutory provisions

referenced in clause (i) address a different form of discretionary relief from

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removal, . . . and each contains language indicating that the decision is entrusted to

the Attorney General’s discretion.” Id. The Supreme Court then explained:

Congress added in clause (ii) a catchall provision covering ‘any other decision . . . the authority for which is specified under this subchapter.’ The proximity of clauses (i) and (ii), and the words linking them—‘any other decision’— suggests that Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation. The clause (i) enumeration, we find, is instructive in determining the meaning of the clause (ii) catchall. Read harmoniously, both clauses convey that Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute.

Id. at 246–47 (emphasis added). Though I acknowledge this passage is dicta, the

discussion is closely related to the statute and the concepts before us here. Kucana

essentially tells us that § 1252(a)(2)(B)(i) applies only to discretionary decisions

and it does so in a context that provides persuasive authority to guide us here.

Because of the presumption in favor of judicial review as well as the rule

favoring narrow interpretation of deportation-related laws, it is not necessary for

me to show that majority’s understanding of “judgment” is impossible. I must

show only that their interpretation barring judicial review is not required. And this

statute just as naturally accepts the narrower definition I have given it. See

Montero-Martinez, 277 F.3d at 1144 (“The meaning of ‘judgment’

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in § 1252(a)(2)(B)(i) is unclear because the statute does not define the term, and it

could mean ‘any decision’ of the BIA, or it could mean ‘a decision involving the

exercise of discretion.’”) In light of the ambiguity of this statutory provision, the

statute does not clearly remove this Court’s jurisdiction to review factual findings

related to eligibility for the enumerated forms of discretionary relief.

The best interpretation of § 1252(a)(2)(B) is that it excludes review of

decisions that involve the exercise of discretion. I recognize that this may include

both the final decision of whether to grant any of the five enumerated forms of

relief, as well as some other discretionary findings related to eligibility for relief.

But it does not include findings of fact that require no discretionary evaluation

from the factfinder. This narrower interpretation, which has been adopted by

almost every circuit court, best comports with the structure and language of the

INA. See supra at 62. It also best aligns with our own precedent. See Gonzalez-

Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (per curiam)

(holding that § 1252(a)(2)(B) does not prevent review of “non-discretionary legal

decisions that pertain to statutory eligibility for discretionary relief” (citing Al

Najjar v. Ashcroft, 257 F.3d 1262, 1298 (11th Cir. 2001)); Mejia Rodriguez v.

Dep’t of Homeland Sec., 562 F.3d 1137, 1143 (11th Cir. 2009) (per curiam)

(holding that “simply because the Secretary has the ultimate discretionary authority 71 Case: 17-10636 Date Filed: 08/19/2020 Page: 73 of 86

to grant an immigration benefit does not mean that every determination . . .

regarding an alien’s application for that benefit is discretionary, and hence not

subject to review”); Alvarado v. U.S. Att’y Gen., 610 F.3d 1311, 1314 (11th Cir.

2010) (holding that the Court had jurisdiction to review the IJ’s conclusion that

respondent had failed to timely request voluntary departure because that was a

“non-discretionary judgment regarding . . . statutory eligibility to request

discretionary relief”).

A review of the history and structure of removal proceedings is helpful to

clarify the meaning of “discretionary decisions.” Courts have long recognized that

within immigration proceedings there is “a distinction between eligibility for

discretionary relief, on the one hand, and the favorable exercise of discretion, on

the other hand.” St. Cyr, 533 U.S. at 307, 121 S. Ct. at 2283; Jay v. Boyd, 351

U.S. 345, 353, 76 S. Ct. 919, 924 (1956) (distinguishing eligibility for relief from

the decision about whether to grant that relief); Judulang v. Holder, 565 U.S. 42,

48, 132 S. Ct. 476, 481 (2011) (describing two-step process of determining

eligibility for discretionary relief and then determining whether to grant that relief).

The first step, eligibility for relief, is generally “governed by specific statutory

standards” for determining who may receive it. St. Cyr, 533 U.S. at 307–08, 121

S. Ct. at 2283 (quoting Jay, 351 U.S. at 353, 76 S. Ct. at 924); see also Zadvydas v. 72 Case: 17-10636 Date Filed: 08/19/2020 Page: 74 of 86

Davis, 533 U.S. 678, 688, 121 S. Ct. 2491, 2497 (2001) (“The aliens here . . . do

not seek review of the Attorney General’s exercise of discretion; rather, they

challenge the extent of the Attorney General’s authority under the [INA]. And the

extent of that authority is not a matter of discretion.”).

A noncitizen faces the discretionary decision of the immigration authorities

only once she has established that the statute makes her eligible for that

discretionary form of relief. Foti v. INS, 375 U.S. 217, 228 n.15, 84 S. Ct. 306,

313 n.15 (1963) (holding that since an immigration officer “cannot exercise his

discretion . . . until he finds the alien statutorily eligible . . . , a finding of eligibility

and an exercise of (or refusal to exercise) discretion may properly be considered as

distinct and separate matters”); McGrath v. Kristensen, 340 U.S. 162, 165, 71 S.

Ct. 224, 227 (1950) (“Eligibility is a statutory prerequisite to the Attorney

General’s exercise of his discretion to suspend deportation in this case.”). Unlike

eligibility, the decision about whether to grant a form of relief for which a

noncitizen is eligible “is in all cases a matter of grace,” and in most cases is not

guided by clear statutory standards. See St. Cyr, 533 U.S. at 307–08, 121 S. Ct. at

2283 (quotation marks omitted); Kucana, 558 U.S. at 247, 130 S. Ct. at 837

(describing the enumerated forms of relief in § 1252(a)(2)(B)(i) as “matter[s] of

grace” (quotation marks omitted)).

73 Case: 17-10636 Date Filed: 08/19/2020 Page: 75 of 86

Mr. Patel’s case illustrates the distinction between eligibility for relief and

the discretionary decision of whether to grant that relief. Mr. Patel entered the

United States without inspection but applied for adjustment of status under 8

U.S.C. § 1255(i). Section 1255(i) provides that the Attorney General “may adjust

the status” of a noncitizen who entered the United States without inspection to that

of a lawful permanent resident. § 1255(i)(1)(A)(i), (2). In order to be eligible for

the Attorney General’s exercise of his discretion to make that adjustment, the

applicant carries the burden of showing he meets a number of criteria. He must

show he is eligible for an immigrant visa which is immediately available.

§ 1255(i)(2)(B). For this, he is either eligible as a matter of fact, or he is not. He

must show he is admissible to the United States for permanent residence.

§ 1255(i)(2)(A). Again, he is either admissible, or he is not. And an applicant

who, like Mr. Patel, is the beneficiary of a labor certification must also show that

he was physically present in the United States on December 21, 2000.

§ 1255(i)(1)(C). For this as well—he was either in the United States on December

21, 2000 or he was not. No discretion is required to make these decisions. But

once he has established that he meets all of these eligibility criteria, the Attorney

General then “may” grant his application. As the word “may” indicates, and as

§ 1252(a)(2)(B)’s reference to § 1255 confirms, the discretionary decision is the

decision of whether to grant the request of an eligible applicant to adjust status.

74 Case: 17-10636 Date Filed: 08/19/2020 Page: 76 of 86

Characteristically, the statute carefully defines the conditions of eligibility for

adjustment but gives no guidance as to which eligible candidates should receive

this discretionary relief. That, of course, is left to the discretion of the Attorney

General. 8

In examining this area of the law, I recognize that some findings about

eligibility are also left to the discretion of the Attorney General. In this regard, the

majority offers the example of a noncitizen seeking cancellation of removal under

§ 1229b(b). That person is required to show (A) continuous physical presence for

not less than 10 years; (B) good moral character; (C) that he has not been convicted

of certain criminal offenses; and (D) that removal would result “in exceptional and

extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen

of the United States or an alien lawfully admitted for permanent residence.” 8

U.S.C. § 1229b(b). For the factfinder, there is surely discretion involved in

deciding whether a person’s absence from the country would cause “exceptional

and extremely unusual hardship” on their family members. Two fair-minded

factfinders could look at the same facts and make a different finding. Perhaps as a

result, this Court and others have consistently held that the decision about whether

8 The majority says that enabling review of non-discretionary decisions related to eligibility would render § 1252(a)(2)(B)(i) meaningless by “effectively allow[ing] for review of the grant of relief.” Maj. Op. at 48. But of course, the narrow reading of the statute I propose here would still preclude review of all discretionary decisions, including the ultimate decision of whether to grant discretionary relief to eligible respondents. 75 Case: 17-10636 Date Filed: 08/19/2020 Page: 77 of 86

removal would result in “exceptional and extremely unusual hardship” is one left

to the discretion of the Attorney General, and so is not subject to review under

§ 1252(a)(2)(B). See Gonzalez-Oropeza, 321 F.3d at 1333; Romero-Torres v.

Ashcroft, 327 F.3d 887, 891 (9th Cir. 2003); Mendez-Moranchel v. Ashcroft, 338

F.3d 176, 179 (3d Cir. 2003). Unlike non-discretionary factual findings (like

whether the respondent was present in the United States on a certain date),

assessing “exceptional and extremely unusual hardship” is a “subjective question

that depends on the value judgment of the person or entity examining the issue.”

Romero-Torres, 327 F.3d at 891 (quotation marks omitted).

There is a clear difference between straightforward factual findings and

discretionary judgments. With this in mind, the narrower interpretation of

“judgment” as “discretionary decision” produces a more coherent reading of the

statute as a whole. In drafting subsections (i) and (ii), “Congress had in mind

decisions of the same genre, i.e., those made discretionary by legislation,” Kucana,

558 U.S. at 246–47, 130 S. Ct. at 836. Under this interpretation, subsection (i)

would exclude from our review discretionary judgments, even including eligibility

requirements that call upon the factfinder to employ discretion, and the ultimate

decision about whether to grant relief, and subsection (ii) would function as a

“catchall” clause to remove our jurisdiction over those discretionary decisions

other than the granting of relief under subsection (i). This reading harmonizes the

76 Case: 17-10636 Date Filed: 08/19/2020 Page: 78 of 86

common meaning of “judgment,” the adjacent statutory language, and

longstanding precedent recognizing the distinction between discretionary and non-

discretionary decisions. Certainly, this interpretation is at least as plausible as that

given by the majority. And since we must construe the immigration statutes in

favor of judicial review absent clear statutory language to the contrary, the

ambiguity in § 1252(a)(2)(B) does not allow the broader removal of our

jurisdiction mandated by the majority opinion.

The majority claims the distinction between discretionary and non-

discretionary determinations has no statutory basis. Maj. Op. at 35–36. Yet this

distinction has been repeatedly recognized by the Supreme Court. And as

demonstrated here, it also emerges naturally from the structure of removal

proceedings, the text of § 1252(a)(2)(B)(i), and the uniquely discretionary nature of

some eligibility determinations left to the discretion of the Attorney General. But

the majority does not stop there. It goes further to argue that there is no difference

between discretionary and non-discretionary eligibility decisions, since all

application of law to fact “will necessarily involve judgment.” Maj. Op. at 38

(quotation marks omitted). But this argument ignores the obvious differences

between such straightforward eligibility-related factual findings as the length of

time of continuous presence in the United States, and the more nuanced findings

required in deciding whether there is “exceptional and extremely unusual

77 Case: 17-10636 Date Filed: 08/19/2020 Page: 79 of 86

hardship” in any given case. The first determination is self-explanatory and can

most often be easily verified as either correct or incorrect. But the same cannot be

said of the second. That “hardship” determination requires the Attorney General to

use judgment to place someone in a subjective category that lacks clear, self-

explanatory boundaries. See Moosa v. INS, 171 F.3d 994, 1013 (5th Cir. 1999)

(noting that the term “extreme hardship” is “not self-explanatory” and that

reasonable people could differ as to its construction (quotation marks omitted)).

There is no need for “mental gymnastics” to see the difference between these two

categories, as the majority claims. Maj. Op. at 39. This Court and our sister

circuits have been ably distinguishing them for decades. See, e.g., id.; Gonzalez-

Oropeza, 321 F.3d at 1332–33.

I also reject the view of the majority that the distinction between

discretionary and non-discretionary eligibility findings is illogical as a matter of

policy. Maj. Op. at 38–39. There is good reason to leave discretionary decisions

in the hands of the Attorney General while maintaining appellate review of non-

discretionary findings. For example, when interpreting the phrase “extreme

hardship” in a predecessor statute to § 1229b, the Supreme Court recognized that

“[t]he Attorney General and his delegates have the authority to construe ‘extreme

hardship’ narrowly should they deem it wise to do so” and that imposing a

different interpretation would “shift the administration of hardship deportation

78 Case: 17-10636 Date Filed: 08/19/2020 Page: 80 of 86

cases from the Immigration and Naturalization Service to this court.” INS v. Jong

Ha Wang, 450 U.S. 139, 145–46, 101 S. Ct. 1027, 1031–32 (1981) (per curiam).

Similarly, we do not review the ultimate decision of whether to grant discretionary

relief because it is not bounded by clear statutory standards and requires the

application of the Attorney General’s subjective judgment. See St. Cyr, 533 U.S.

at 307–08, 121 S. Ct. at 2283. But there is no good reason to commit

straightforward factual findings to the unreviewable discretion of the executive

branch. After all, those are questions about which the Attorney General simply

might be wrong.

The majority says we must read § 1252(a)(2)(B)(i) in conjunction with

§ 1252(a)(2)(D). Maj. Op. at 30–31, 39–40. True, but in doing so, I draw the

conclusion opposite from that of the majority. Congress added § 1252(a)(2)(D)

through the REAL ID Act of 2005 to restore circuit courts’ jurisdiction to review

legal and constitutional claims in immigration cases. REAL ID Act of 2005, Pub.

L. No. 109-13, § 106(a), 119 Stat. 231, 310 (2005). Its purpose was to channel

those cases out of district courts and into the appellate courts, thereby avoiding

“‘bifurcated and piecemeal litigation.’” Balogun v. U.S. Att’y Gen., 425 F.3d

1356, 1359–60 (11th Cir. 2005) (quoting 151 Cong. Rec. H2813, H2873). This

was a response to the Supreme Court’s decision in St. Cyr, which held that 79 Case: 17-10636 Date Filed: 08/19/2020 Page: 81 of 86

§§ 1252(a)(1), (a)(2)(C), and (b)(9) did not strip the district courts of jurisdiction to

consider habeas petitions under 28 U.S.C. § 2241. See Chen v. U.S. Dep’t of

Justice, 471 F.3d 315, 327 (2d Cir. 2006) (describing legislative history of

§ 1252(a)(2)(D) (citing H.R. Rep. No. 109-72, at 174–75 (2005))).

Nothing in the text or legislative history of § 1252(a)(2)(D) suggests that it

was meant to expand the jurisdiction-stripping effect of § 1252(a)(2)(B). In fact,

the legislative history weighs against the majority's interpretation. 9 When

Congress passed the REAL ID Act in 2005, many circuits were already reading

§ 1252(a)(2)(B) narrowly, so as to permit judicial review of straightforward factual

findings about eligibility. In the face of this precedent, Congress could have

amended § 1252(a)(2)(B) to stop this type of review. But it did not. Rather, it

expanded the jurisdiction of courts to review legal and constitutional error that had

previously been barred. Thus, Congress’s actions strongly suggest it did not intend

§ 1252(a)(2)(B) to strip courts of this jurisdiction over anything other than the

discretionary decision related to certain forms of relief. See Block v. Cmty.

Nutrition Inst., 467 U.S. 340, 349, 104 S. Ct. 2450, 2455 (1984) (“The

congressional intent necessary to overcome the presumption [favoring judicial

9 We review legislative history only when there is ambiguity in the text of the statute. Harris v. Garner, 216 F.3d 970, 976–77 (11th Cir. 2000) (en banc). I have set out why I believe there is such ambiguity here. 80 Case: 17-10636 Date Filed: 08/19/2020 Page: 82 of 86

review] may also be inferred from contemporaneous judicial construction barring

review and the congressional acquiescence in it.”).

C.

Finally, I must address another serious problem with the majority’s

interpretation of § 1252(a)(2)(B). When it sweeps all factual findings and

discretionary judgments into § 1252(a)(2)(B), the majority opinion gives the

government the ability to insulate agency findings from judicial review, solely by

the way its charges a case. This is not proper. In Kucana, the Supreme Court told

us that IIRIRA, which added § 1252(a)(2)(B) to the INA, “did not delegate to the

Executive authority to” “pare[] back judicial review.” Kucana, 558 U.S. at 252–

53, 130 S. Ct. at 840. Since the majority’s interpretation would allow the Attorney

General and his delegates to do just that, it is directly at odds with Supreme Court

precedent.

Removal proceedings have two stages. First, the government has the burden

of establishing, by clear and convincing evidence, that the noncitizen is removable.

Bigler v. U.S. Att’y Gen., 451 F.3d 728, 732 (11th Cir. 2006) (per curiam). The

grounds for removability include both grounds of inadmissibility, 8 U.S.C.

§ 1182(a), and grounds of deportation, 8 U.S.C. § 1227(a). See Judulang, 565 U.S.

at 45–46, 132 S. Ct. at 479 (describing the evolution of modern removal

81 Case: 17-10636 Date Filed: 08/19/2020 Page: 83 of 86

proceedings and explaining that, since 1996, there has been a unified procedure for

both excluding and deporting noncitizens). Then, if the government proves

removability, or the noncitizen concedes it, the noncitizen may apply for various

forms of discretionary relief. See Matovski v. Gonzales, 492 F.3d 722, 727 (6th

Cir. 2007). These discretionary forms of relief include seeking an adjustment of

status, as Mr. Patel did here. Id. For this, he bears the burden of proving

eligibility. Id.

To be eligible for some forms of discretionary relief, such as adjustment of

status under § 1255(i), the applicant must be “admissible.” 8 U.S.C. § 1255(a)(2).

But being inadmissible is also an independent ground for removal. So, in some

cases, a noncitizen could be both removable and ineligible for discretionary relief

based on the same facts. Now under the interpretation the majority gives to

§ 1252(a)(2)(B), our jurisdiction to review whether a noncitizen is admissible will,

in many cases, depend entirely on the Attorney General’s charging decision. If the

government charges a noncitizen as removable for being inadmissible, and the IJ

finds the noncitizen inadmissible, our Court will retain jurisdiction to review that

finding under § 1252(b)(9). That provision grants us jurisdiction to review “all

questions of law and fact . . . arising from any action taken or proceeding brought

to remove an alien from the United States.” But if the government does not charge

the noncitizen as removable for being inadmissible, and the IJ finds the noncitizen 82 Case: 17-10636 Date Filed: 08/19/2020 Page: 84 of 86

ineligible for discretionary relief because he is inadmissible, our Court will lack

jurisdiction to review that finding. In both cases, the IJ will have found the

noncitizen inadmissible, but the government’s charging decision alone will have

established the scope of our jurisdiction.

And that is exactly what happened to Mr. Patel. The government issued Mr.

Patel an NTA that charged him with being removable for being an alien present in

the United States without being admitted or paroled, pursuant to 8 U.S.C.

§ 1182(a)(6)(A)(i). However, the NTA did not charge him with being inadmissible

for falsely representing his citizenship under § 1182(a)(6)(C)(ii). Had it done so, it

is indisputable that the IJ’s factfinding at issue here would have been reviewable.

Instead, the government raised inadmissibility only in opposition to Mr. Patel’s

application for adjustment of status. As a result, and because today’s majority

ruling says we now cannot review any factual determinations related to Mr. Patel’s

eligibility for adjustment of status, the government’s charging decision has fully

insulated from judicial review the IJ’s finding that Mr. Patel is inadmissible.

This outcome is at odds with Kucana. In Kucana, the Supreme Court

interpreted § 1252(a)(2)(B)(ii) as precluding judicial review of decisions made

discretionary by statute, but not of decisions made discretionary by agency

regulation. 558 U.S. at 252–53, 130 S. Ct. at 840. It held that “[b]y defining the

various jurisdictional bars by reference to other provisions in the INA itself, 83 Case: 17-10636 Date Filed: 08/19/2020 Page: 85 of 86

Congress ensured that it, and only it, would limit the federal courts’ jurisdiction.”

Id. at 252, 130 S. Ct. at 839. Giving the executive branch a “free hand to shelter its

own decisions from abuse-of-discretion appellate court review simply by issuing a

regulation declaring those decisions ‘discretionary’” would be an “extraordinary

delegation of authority” which “cannot be extracted from the statute Congress

enacted.” Id. at 252, 130 S. Ct. at 840.

If § 1252(a)(2)(B) does not permit the executive branch to insulate its

decisions from review by regulation, surely it does not allow it to do the same

through the exercise of its immigration charging discretion. Indeed, the Supreme

Court has specifically disapproved of leaving eligibility for discretionary

immigration relief to “the fortuity of an individual official’s [charging] decision.”

Judulang, 565 U.S. at 58, 132 S. Ct. at 486. Doing so subjects identically situated

noncitizens to different outcomes and turns deportation proceedings into a “sport

of chance.”10 Id. at 59, 132 S. Ct. at 487 (quotation marks omitted).

10 The majority accepts this delegation of authority as permissible because § 1252(a)(2)(B)(i) limits review of decisions related to the grant of discretionary relief, not removability. Maj. Op. at 40 n.26. But Kucana was similar to Mr. Patel’s case. In Kucana, the Supreme Court addressed its jurisdiction to review denials of motions to reopen, an arguably discretionary form of relief. 558 U.S. at 242, 130 S. Ct. at 834. It did not address determinations related to removability. Id. The Court held that the executive branch may not render decisions on motions to reopen unreviewable under § 1252(a)(2)(B)(ii) even by promulgating regulations categorizing those decisions as discretionary. Id. at 252–253, 130 S. Ct. at 840. I am therefore not persuaded by the majority’s argument that we may delegate such extraordinary authority to the executive branch even in the context of discretionary relief. 84 Case: 17-10636 Date Filed: 08/19/2020 Page: 86 of 86

Today, the majority gives precisely this extraordinary degree of authority to

immigration officials. The INA or Supreme Court precedent do not permit this.

And this startling result offers an independent reason to reject the rule adopted by

the majority here.

IV.

In holding the IJ’s factual findings unreviewable, the majority ignores

a narrower interpretation of § 1252(a)(2)(B)(i) that is at least as plausible as its

own. My narrow interpretation better fits the natural meaning of “judgment” and

its use in the INA; the legislative history of the § 1252(a)(2)(B) and (D); and the

structure of removal proceedings. And it does not vest the executive branch with

the authority to insulate its own decisions from judicial review based solely on

charging decisions. I understand § 1252(a)(2)(B)(i) to permit us to review the IJ’s

finding that Mr. Patel’s false claim of citizenship was made with subjective intent.