The ability of a federal court to review noncitizens’ eligibility for certain types of discretionary immigration relief is under consideration by the Supreme Court. The question poses where the ultimate decision rests, either a sole determination of a government agency official or judicial review.

Discretionary relief is a complicated immigration statute. Eligibility determination is not straightforward in many instances. However, the Supreme Court has recognized that access to judicial review is clear. The specific issue in the case is the immigration statute that controls judicial review of removal orders where the noncitizen pursues specific types of relief. Adjustment of status and cancellation of removal are two of the options under review.

A noncitizen filed for an adjustment of status based on a petition filed by their employer. The immigration court found the person not eligible, due to an error where the noncitizen accidentally made an error in an application, selected U.S. citizen rather than a noncitizen. The individual stated it was an error and should not be taken into consideration. However, the Eleventh Circuit Court of Appeals stated they do not have jurisdiction as the immigration statute prohibits judicial review over eligibility determinations.

There are typically two stages for immigration court proceedings: a removal stage followed by the relief stage. To be considered for relief, the courts must first find the individual removable. Then, at the relief stage, two questions are answered: is the noncitizen eligible for relief, and should that relief be granted. Access to judicial review, the question of if the noncitizen is eligible for relief, is only available if there are grounds for removal of the noncitizen.

In the Supreme Court case, the noncitizen was found ineligible for relief. Attorneys argued on the person’s behalf that all questions around eligibility for relief should be reviewable. The immigration statute solely prohibits the review of the ultimate discretionary decision to grant relief. An impasse as to who and when a review of the question of eligibility led to the case going to the Supreme Court. The Court heard initial oral arguments on Monday, December 6, 2021.

The process of first determining removability prior to being able to apply for relief, and therefore judicial review, is at the heart of the case.

ILBSG continues to monitor ongoing potential policy changes. We put our expertise and experience to work for you to ensure you get the right advice. If you have questions about any immigration-related issue, contact us at ILBSG.

Deportation Relief Judicial Review Relief Removal