Recent Federal Court Decision Upholds Limited Judicial Review for Immigration Cases

For Illya Britkovyy of Ukraine, attempts for immigration relief with the Court of Appeals by way of the Administrative Procedure Act (APA) have been denied. The 7th Circuit has upheld USCIS’ authority over its denial of Britkovyy’s adjustment of status application. According to 8 U.S.C § 1252, the court has no jurisdiction to review adjustment of status applications, and, without a final removal order, the court cannot permit judicial review of the agency’s decision.  

Britkovyy entered the United States in 2000 and was subsequently paroled – charged as inadmissible and ordered to await court judgment for claiming he was a U.S. citizen upon entry to the United States. When he failed to show up at court, he was ordered to be removed. However, he did not leave the country, instead marrying a U.S. citizen. In 2009, his wife filed an application for family-based permanent residency with USCIS, and Britkovyy applied the same with the immigration courts. His application with the courts was subsequently denied, citing that only USCIS has the authority to adjust status for parolees, as he was not admitted to the United States.  

In 2012, USCIS decided he was inadmissible for claiming U.S. citizenship upon entering the country. His removal proceedings are still pending in immigration court, with no final decision to date. Therefore, without a final order of removal, the APA does not provide Britkovyy with an avenue for judicial review. According to Judge St. Eve, “Our power to review orders of removal is quite limited, and our review of denials of discretionary relief – such as adjustment of status – is even more so.”