Thursday, May 19, 2022
Guest Post: Patel v. Garland Missed the Real Issue by Professor Geoffrey Hoffman
Patel v. Garland Missed the Real Issue by Professor Geoffrey Hoffman
The real issue in Patel v. Garland should not have been whether a "factual determination" was subject to judicial review under 8 USC 1252(a)(2)(B)(i), but rather instead whether a legal question or, more precisely, a mixed question of law and fact, should have been subject to judicial review. The answer, if the real question was addressed, is clearly "Yes". As the majority recognized, section 1252(a)(2)(D) would have applied allowing for review over legal questions and constitutional claims.
As Mr. Patel's claims were framed and conceived of by the court, it appeared he was arguing that the IJ's and BIA's determination that he was "not credible" was erroneous. What he argued at the Eleventh Circuit according to the majority was that "any reasonable judge would have been 'compelled to conclude' that his testimony was credible and that he had made an honest mistake on the form." But, that should not have been the issue at all. Rather the real issue was as follows: Whether the IJ and BIA erred as a matter of law in applying the ground of inadmissibility for a false claim to US citizenship under 8 USC 1182(a)(6)(C)(ii)(I).
Interestingly, Mr. Patel was apparently not charged in the NTA with a false claim to US citizenship but instead with an illegal entry under 1182(a)(6)(A). Nevertheless, he was potentially subject to all grounds of inadmissibility when he applied for adjustment of status as a mode of relief from removal and therefore the burden was on him to prove that he was not inadmissible. To be inadmissible for a false claim to US citizenship, however, as provided explicitly in the statute he would have had to have made the false claim in order to seek a benefit under the INA, or a benefit under state or federal law. The text of 1182(a)(6)(C)(ii) is as follows: inadmissibility attaches to an “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” state or federal law. (emphasis added).
Importantly, it appears Mr. Patel would not have obtained any benefit under state law by checking the box as a US citizen since he was otherwise entitled to a driver's license in Georgia since at the time he was an applicant for adjustment and had work authorization. This fact was noted in Justice Gorsuch's dissenting opinion, at page 3,
"Under Georgia law, Mr. Patel was eligible to receive a license without being a citizen because he had a pending application seeking lawful permanent residence and a valid employment authorization document. See Ga. Comp. Rules & Regs., Rules 375–3–1.02(3)(e), (7) (2022)."
Thus, it was most obviously a mixed question of law and fact at issue since the immigration court was asked to apply the statute and specifically the sub-part of 1182(a)(6)(C) that relates to whether or not the immigrant sought to obtain any benefit under the INA, state or federal law. This means the issue was not just whether Mr. Patel was credible, but whether in checking the box he sought to obtain a benefit under state or federal law as that phrase is understood in the INA. In addition, what is or is not a benefit and what state law says or does not say is most decidedly a legal question. The IJ and BIA apparently either did not address the issue or they ruled against him because they thought he had sought a benefit. Either way, the IJ and BIA would have erred and therefore it was a "legal" error in applying the statute and not just a "factual" error in not believing Mr. Patel's testimony or ruling against his credibility.
Interestingly, this point was not made by either majority or dissent. Justice Gorsuch comes close to articulating the point, but stops short by not recognizing that the error below was not only a factual mistake but a legal one as well. The decisions of both the majority and dissent also do not recognize the following point that should be emphasized as well going forward: nothing in the decision should be read to foreclose judicial review in any case where there exists a legal question or constitutional claim under 8 USC 1252(a)(2)(D). Since all mixed questions of law and fact are a form of "legal questions" requiring de novo review then judicial review should be unaffected in such cases.
Finally, the case of Guerrero-Lasprilla v. Barr, 589 U. S. ___ (2020), is related in that the Supreme Court already has found, as noted by the majority, that application of a legal standard to undisputed facts is still reviewable even despite the jurisdiction-stripping provisions in 8 USC 1252. On pages 9-10 of the majority opinion, Justice Barrett cites and relies upon In Guerrero-Lasprilla. Although the "facts" in Guerrero-Lasprilla were undisputed that does not mean that in any case where they facts are disputed there is no judicial review. Rather, so long as there still is a "legal question" then section 1252(a)(2)(D) applies. To interpert the statue otherwise would be to misconstrue Congressional intent to shield or prohibit review of mixed questions from review.
Individual Capacity Institution for ID only
Clinical Professor, University of Houston Law Center Immigration Clinic Director
Update (May 19, 445 P.M. PST) Shoba Sivaprasad Wadhia analyzes the opinion for SCOTUSBlog here. Her conclusion:
"This case sheds light on the problems in our immigration system and the importance of legislative reform. Patel has lived in the United States for nearly 30 years. He has a wife and three children. And now Patel, who was in the process of applying for a green card, could face deportation without judicial review because he checked the wrong box on a driver’s license application. Under President Biden’s Executive Order on Advancing Racial Equity, DHS and DOJ should collect data on adjustment cases involving facts like Patel’s that may have a disparate impact on certain groups of noncitizens."
The provision says "for any purpose or benefit." Wouldn't that include falsely representing yourself to be a citizen thinking that the driver's license would say you are a citizen?
Posted by: Rappaport Nolan | May 19, 2022 10:19:30 AM
Doesn't Patel argue that he mistakenly filled out the form and had no incentive to lie given that he was eligible for a driver's license? If so, I think that the argument for judicial review is stronger.
Posted by: KJ | May 19, 2022 4:54:54 PM
Patel didn’t have to make the false claim to citizenship to get a Georgia driver’s license, but it bypassed the REAL ID requirements for noncitizens. The benefit was a license which falsely indicated REAL ID compliance.
Posted by: Rappaport Nolan | May 20, 2022 7:56:10 AM
I don't understand your argument. He made a false claim to US citizenship on an application for a state benefit, i.e., a driver's license. 1182(a)(6)(C)(ii) doesn't require the immigrant to know that his false claim is necessary to obtain the benefit.
Posted by: Rappaport Nolan | May 19, 2022 10:03:19 AM