GARCIA v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (2024)

Order

For the reasons set forth below, the Court grants defendants’ motion to dismiss. [8]. Plaintiff's complaint is dismissed without prejudice for lack of subject matter jurisdiction.

Statement

Plaintiff Daisy Garcia, a United States citizen, seeks a writ of mandamus against United States Citizenship and Immigration Services (“USCIS”), arguing that the agency is not resolving in a sufficiently speedy manner a Form I-601 Application, for Waiver of Grounds of Inadmissibility, that Garcia has submitted to benefit her mother, Karla Martinez. [2] ¶¶ 2–4. Garcia also brings claims of unreasonable delays under both the Mandamus Act and the Administrative Procedure Act (“APA”). Id. ¶¶ 21–28. By way of relief, she demands that the Court compel USCIS to adjudicate Martinez's waiver application and the United States State Department to “create an interview date” for Martinez and then “administer a final decision within 30 days.” Id. at 7.¹

The Court lacks subject matter jurisdiction to give Garcia the relief she requests.

Under 8 U.S.C. § 1182(a)(9)(B)(v), there is no judicial review of waivers of inadmissibility, such as the one Martinez seeks after having accrued unlawful presence while previously in the United States. Section 1182(a)(9)(B)(v) gives the Secretary of Homeland Security ² sole discretion to grant a waiver of inadmissibility “in the case of an immigrant who is the spouse or son or daughter of a United States citizen ․ if it is established to the satisfaction of the [Secretary] that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen ․ spouse or parent of such alien.”³ The statute continues: “No court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.” Id. In Soni v. Jaddou, 103 F.4th 1271, 1272–73 (7th Cir. 2024), the Seventh Circuit concluded that this last sentence deprived federal courts of jurisdiction to do precisely what Garcia asks: to “order the Executive Branch to process waiver applications under § 1182(a)(9)(B)(v) on any particular schedule.” Id. at 1273.

The Court is also barred from injecting itself into Garcia's and Martinez's efforts to obtain a waiver of admissibility stemming from Martinez's prior smuggling activity. Under 8 U.S.C. § 1182(a)(6)(E)(i), “[a]ny alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.” Under 8 U.S.C. § 1182(d)(11), Martinez may obtain a waiver of inadmissibility. That statute permits the Secretary of Homeland Security, “in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, [to] waive application of clause (i) of subsection (a)(6)(E).” 8 U.S.C. § 1182(d)(11).

Courts are barred from reviewing the Secretary's exercise of discretion under § 1182(d)(11) by 8 U.S.C. § 1252(a)(2)(B)(ii). That statute has been described as “a jurisdiction-stripping provision.” See Bouarfa v. Mayorkas, No. 23-583, ––– U.S. ––––, ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2024 WL 5048700, at *3 (U.S. Dec. 10, 2024). In relevant part, it states that “no court shall have jurisdiction to review ․ 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.” 8 U.S.C. § 1252(a)(2)(B)(ii). “[T]his subchapter” refers to 8 U.S.C. §§ 1151–1382, see Kucana v. Holder, 558 U.S. 233, 239 n.3, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010), meaning that § 1182(d)(11) is within its scope.

Because § 1182(d)(11) permits USCIS to make discretionary decisions, § 1252(a)(2)(B)(ii) strips the Court of the ability to review not just those ultimate decisions but “any ․ action” leading to such decisions as well. And because that sweep encompasses the decision-making process, it insulates from judicial review the timeline under which that process unfolds. The Court comes to this conclusion by relying on Soni. There, when interpreting § 1182(a)(9)(B)(v)—and its ban on judicial review of “a decision or action ․ regarding a waiver” obtained through the exercise of the Executive Branch's discretion—the Seventh Circuit wrote: “Setting priorities—for example, how many employees to assign to processing applications under this clause, as opposed to handling other duties—is an ‘action regarding’ waivers.” 103 F.4th at 1273. Soni added: “No review means no review; the statute does not need to list all of the many potential legal theories that are not reviewable.” Id. Given the expansive way in which Soni interpreted § 1182(a)(9)(B)(v), the Court interprets the operation of § 1252(a)(2)(B)(ii) on § 1182(d)(11) in a similarly unrestrained way.

At least one other district court likewise has concluded that § 1252(a)(2)(B)(ii) bars judicial review of the timing of discretionary decisions made under § 1182(d)(11). See Boulay v. Jaddou, 700 F. Supp. 3d 753, 758 (D. Neb. 2023) (concluding that “the phrase ‘any other decision or action’ as used in § 1252(a)(2)(B)(ii) covers [USCIS's] discretionary decisions about how to prioritize and adjudicate the I-601 applications in this case”). And in related contexts, numerous federal appeals courts have interpreted § 1252(a)(2)(B)(ii) as precluding judicial review not just of the Executive Branch's discretionary decision, but of the process and timing underlying that decision, too.⁴

The Court recognizes that the district court in Mejia de Reyes v. Miller, No. 4:23-CV-5121-EFS, 2024 WL 2947716, at *4–5 (E.D. Wash. June 11, 2024), disagreed with the position that “the pace” at which the Executive Branch proceeds when deciding admissibility waivers under § 1182(d)(11) is insulated from judicial review. The Court is not persuaded, however, by the reasoning in Mejia de Reyes. It hinged on an apparent lack of sufficiently specific language in § 1252(a)(2)(B)(ii) and § 1182(d)(11) to indicate that “any ․ action” by the Executive Branch included “the reasonableness of the timeframe” under which such action unfolds. Id. at *5.

This Court comes back to the language in Soni: “No review means no review; the statute does not need to list all of the many potential legal theories that are not reviewable.” 103 F.4th at 1273. See also Patel v. Garland, 596 U.S. 328, 338, 142 S.Ct. 1614, 212 L.Ed.2d 685 (2022) (concluding that the use of the phrase “any judgment” in an adjacent provision, § 1252(a)(2)(B)(i), demonstrated that “[t]he provision does not restrict itself to certain kinds of decisions” but rather “prohibits review of any judgment regarding the granting of relief under § 1255 and the other enumerated provisions”; “the word ‘any’ has an expansive meaning”). As a result, the Court concludes that, courtesy of § 1252(a)(2)(B)(ii), it lacks subject matter jurisdiction to review the timeline under which USCIS considers a waiver of inadmissibility under § 1182(d)(11).

Conclusion

For the reasons set forth above, the Court grants defendants’ motion to dismiss. [8]. Plaintiff's complaint is dismissed without prejudice for lack of subject matter jurisdiction. Civil case terminated.

FOOTNOTES

1.   Defendants explain that “[t]ypically, foreign nationals cannot apply for a waiver of inadmissibility until after they have appeared for their immigrant visa interview.” [9] at 3 (citing 22 C.F.R. §§ 42.62(a)-(b)).

2.   Although § 1182 refers to the Attorney General, in 2002, Congress transferred the relevant authority to the Secretary of Homeland Security. See Nielsen v. Preap, 586 U.S. 392, 139 S. Ct. 954, 959 n.2, 203 L.Ed.2d 333 (2019) (citing 8 U.S.C. § 1101 et seq.). “And the Secretary of Homeland Security has, in turn, delegated to USCIS the authority to ‘grant waivers of inadmissibility.’ ” See Soni v. Jaddou, 702 F. Supp. 3d 757, 759 (N.D. Ill. 2023).

3.   Because the pleadings in this matter allege that Martinez is Garcia's mother, [2] ¶2, it is not clear to the Court how Martinez would even be a qualifying relative under § 1182(a)(9)(B)(v). She is not “the spouse or son or daughter of a United States citizen,” and Garcia, by extension, is not Martinez's “spouse or parent.” Defendants, however, point to § 1182(a)(9)(B)(v) as one of two statutes the Court must consider to establish jurisdiction in this matter, and Garcia does not assert otherwise. So to determine whether it has jurisdiction over this matter, the Court examines § 1182(a)(9)(B)(v), but reaches no conclusion on whether Martinez qualifies for a waiver of inadmissibility under this statute or any other.

4.   See, e.g., Cheejati v. Blinken, 106 F.4th 388, 394 (5th Cir. 2024) (interpreting the ban on judicial review of discretionary decisions in § 1252(a)(2)(B)(ii) to include “not only the ultimate decision to adjust an applicant's immigration status but also actions taken in the course of the decision-making process—including the pace at which that process is undertaken—to the discretion of the Attorney General”); Thigulla v. Jaddou, 94 F.4th 770, 775 (8th Cir. 2024) (“[Section] 1252(a)(2)(B)(ii) bars this court's jurisdiction to review the decision to delay adjudicating the status adjustment application ․ if that decision is specified under Subchapter II to be in the discretion of the Attorney General.”); Bourdon v. U.S. Dep't of Homeland Sec., 940 F.3d 537, 544 (11th Cir. 2019) (“The Act's jurisdiction-stripping language embraces both the process and ultimate ․ conclusion.”); see also Lukac v. Mayorkas, No. 22-CV-7156, 2023 WL 3918967, at *3 (N.D. Ill. June 9, 2023) (explaining that § 1252(a)(2)(B)(ii) “means what it says: the exercise of discretion is unreviewable, and the ban on judicial review covers the process, too”); Davidson v. Mayorkas, 599 F. Supp. 3d 767, 772 (W.D. Wis. 2022) (“Complete discretion to make a determination necessarily includes the authority to implement practices and procedures for how that determination is made.”).

Georgia N. Alexakis, United States District Court Judge