Can limits on judicial review exist within a “regime of law and . . . constitutional government?”1 Just ask noncitizens, millions of whom2 are deportable at the stroke of a bureaucrat’s pen.3 Indeed, under the Illegal Immigration Reform and Immigrant Responsibility Act of 19964 (IIRIRA), executive branch employees act as judge, jury, and appellate tribunal, all outside the judicial branch. Last Term, in Patel v. Garland,5 the Supreme Court held that one such provision of IIRIRA — barring review of “any judgment” of an immigration official “regarding the granting” of discretionary relief6 — forecloses judicial review of even the threshold determination of whether a noncitizen is eligible to receive such relief.7 Although Patel held that IIRIRA precludes judicial review of merely factual questions, it need not and should not be read to preclude review of fact-related judgments that are so egregiously mistaken as to violate the Due Process Clause.
In 1992, Pankajkumar Patel, along with his wife, Jyotsnaben, and their two sons, Nikhil and Nishantkumar, entered the United States without documentation or inspection and settled in Georgia.8 Fifteen years on, in 2007, Patel applied for a green card under 8 U.S.C. § 1255,9 which confers discretionary authority upon the Attorney General to forive an unlawful entry and grant permanent residency to eligible noncitizens.10 The application process has two steps: At the first step, a noncitizen must demonstrate his eligibility for relief.11 At the second, the Attorney General, or his designee, must determine whether to grant relief.12
A year later, with his application under review within the Department of Homeland Security, Patel set off on a more quotidian task — renewing his driver’s license.13 His immigration status posed no obstacle under state law, given his pending application for permanent residence.14 Nonetheless, the form asked: “Are you a U.S. Citizen?”15 Patel checked: “Yes.”16
That one checkbox spawned fourteen years of litigation. At first, the Department of Homeland Security, citing the checkbox, denied Patel’s application.17 It claimed that Patel was now ineligible for permanent residency under 8 U.S.C. § 1182, which bars relief for any noncitizen who has “falsely represented himself . . . to be a citizen of the United States for any purpose or benefit under . . . any . . . State law,”18 with the “subjective intent” of obtaining a purpose or benefit.19
Soon thereafter, Patel — now in removal proceedings, along with his wife and children — renewed his request for discretionary relief.20 In 2013, Immigration Judge Wilson denied his request and ordered his deportation.21 In the judge’s view, Patel’s sworn testimony — that this was just an innocent mistake — was “simply not plausible.”22 As he saw it, to obtain a driver’s license, Patel had no choice but to lie, and that lie rendered him ineligible for discretionary relief.23 Upon review for clear error, a divided panel of the Board of Immigration Appeals affirmed in 2017.24 Board Member Wendtland dissented, noting that, contrary to Immigration Judge Wilson’s interpretation, the pertinent state law required only “lawful presence” to renew a driver’s license, a criterion Patel satisfied with his pending application.25
In 2019, a unanimous panel of the Eleventh Circuit26 — followed by the full court, splitting 9–527 — denied Patel’s petition for review on jurisdictional grounds. Writing for the en banc majority, Judge Tjoflat28 offered a “straightforward reading” of 8 U.S.C. § 1252, which bars review of “any judgment regarding the granting of relief” under the provision on which Patel’s claim rested but preserves federal jurisdiction over legal and constitutional questions.29 “[W]hat Congress giveth,” he explained, “it can also taketh away.”30 Because “judgment” is a “broad term” — “encompassing both the process of forming an opinion as well the pronouncement of the result” — it cannot be interpreted to eliminate jurisdiction over only discretionary decisions.31 In dissent, Judge Martin32 disagreed. In her view, § 1252 lent itself to precisely that interpretation — after all, the word “judgment” naturally “refers to exercises of judgment,” not “findings of fact.”33 To hold otherwise would ratify an “extraordinary delegation of authority” to immigration officials.34
The Supreme Court affirmed.35 Writing for the Court, Justice Barrett36 held that the federal courts’ “limited role” in the “comprehensive” scheme governing the exclusion of noncitizens does not extend to review of “factual findings that underlie a denial of relief.”37 She noted that the “eligibility” inquiry is just that — a threshold determination that need not result in a “favorable exercise of discretion” or, indeed, any change in a noncitizen’s legal status at all.38 In this sense, “relief from removal is ‘always a matter of grace.’”39
With this framework in mind, Justice Barrett turned to the question at the heart of the case: “[T]he scope of the word ‘judgment.’”40 Three competing views were on offer. The Solicitor General argued that a “‘judgment’ refers exclusively to a decision that requires the use of discretion,” like the determination of whether a noncitizen’s removal would result in “exceptional and extremely unusual hardship.”41 Although Patel agreed that a “‘judgment’ implies an exercise of discretion,” he argued that the rest of the phrase — a “judgment regarding the grant of relief” — narrows the jurisdictional bar to exclude only the final decision of whether to grant relief.42 And an amicus, appointed by the Court to defend the decision below, argued that a judgment is simply “any authoritative decision,” which includes any factual findings.43
Justice Barrett concluded that the amicus’s interpretation was the only one that fit the statute’s “text and context.”44 To limit its reach, she explained, would ignore not only the “expansive” language of the clause but also Congress’s decision, in the wake of Immigration & Naturalization Service v. St. Cyr,45 to retain judicial review over legal and constitutional questions, rather than lift the bar on judicial review altogether.46
Justice Gorsuch dissented.47 Like Justice Barrett, he started with the two-step process required by requests for adjustment: first, eligibility, and second, discretion.48 But unlike Justice Barrett, he saw this process as core to the “exception” carved out in § 1252.49 To Justice Gorsuch, as to Patel, “regarding the granting of relief” has a “well-understood meaning” — that is, “to ‘supply redress or benefit.’”50 As such, when a judgment is “issue[d] . . . only at step one, it never reaches the question whether to grant relief or supply some redress or benefit.”51 It cannot be, then, that the plain text of § 1252 bars all judicial review.
To Justice Gorsuch, the Court committed two arch textualist sins in its analysis of § 1252. First, it created surplusage. The Court’s expansive interpretation of “judgment,” he explained, renders a core phrase — “regarding the granting of relief” — wholly unnecessary.52 And second, it failed to acknowledge the statutory context. In enacting § 1252, he observed, Congress borrowed language “long used” by the Court to describe only “second-step discretionary determinations.”53 By ignoring these “contextual clues,” he lamented, the Court blessed a system in which the “federal bureaucracy can make an obvious factual error . . . and nothing can be done about it.”54
Two provisions loom large in Patel. One bars review of “any judgment regarding the granting of relief.”55 Another preserves jurisdiction over “constitutional claims” and “questions of law.”56 What the Patel Court read the former to preclude may be less important than what future courts interpret the latter to preserve. At most, the Court’s opinion can be read to foreclose all judicial review whatsoever, even of meritorious claims, at least insofar as those claims are predicated on disputed facts. At a minimum, however, it can be read to foreclose only review of such facts as of right — and thus to leave open factual review in the context of procedural due process claims. Both precedent and prudence counsel for the narrow reading.
If Patel is read for all it might be worth, federal courts may not adjudicate any claim that turns on a contested factual finding — no matter how tendentious or absurd that factual finding may be. Justice Barrett, after all, brooked no compromise. If § 1252 is to bar review of “any judgment” that disposes of a claim, she held, “any judgment” must mean “any judgment” — “not just discretionary judgments.”57 On this view, then, the federal courts lack jurisdiction to review any “fact found as part of [a] discretionary-relief proceeding.”58 But what of the federal courts’ jurisdiction over “constitutional claims” and “questions of law”? That, presumably, includes only three inquiries: What rule governs?59 Is that rule constitutional?60 And how should that rule be applied to agreed-upon facts in a particular case?61
On this reading, valid claims of constitutional and legal right could be evaded altogether. Consider a hypothetical. Imagine, say, that an immigration judge (J) were to predicate a factual finding against an applicant (A) solely on the basis of discriminatory animus. Indeed, imagine that J were to deem A ineligible for discretionary relief under the statute at issue here — discrediting A’s evidence that he, like Pankajkumar Patel, made an innocent mistake — on the basis that A’s fringe religious views are despicable and proof of his insincerity.62 To “single out” a religion “for discriminatory treatment” violates the First Amendment’s Free Exercise Clause.63 May no court hear A’s claim, on the basis that J’s credibility finding was, ultimately, a factual one?64 Consider a variation on these facts. Imagine that J were to find A ineligible for discretionary relief because A, in J’s considered view, assassinated President Abraham Lincoln65 — an incoherent finding based, needless to say, on pure fantasy. Under the Fifth Amendment’s Due Process Clause, an administrative finding must be supported by “some evidence,”66 even in a deportation proceeding.67 May no court hear A’s claim?68
These stylized examples are, of course, hyperbolic.69 But while the facts are farfetched, the idea that deportable noncitizens possess no enforceable constitutional rights is not. Indeed, as a doctrinal matter, the foreclosure of relief in such instances has been a hallmark of the Court’s approach to immigration law. Two decisions, both from the Term before last, are of particular note. First, in Department of Homeland Security v. Thuraissigiam,70 the Court reaffirmed the principle that “an arriving alien” at a “port of entry,” even one on “U.S. soil,” is considered “on the threshold” and outside the United States for constitutional purposes71 — and then expanded that threshold to include a noncitizen who was apprehended inside the United States, twenty-five yards from the border.72 And second, in Agency for International Development v. Alliance for Open Society International, Inc.,73 the Court deemed it “long settled” that “foreign citizens outside U.S. territory” possess no constitutional rights.74 Together, these decisions stand for the proposition that the border is, at least for noncitizens, a Constitution-free zone. Jurisdiction is of little use to those without substantive rights to assert; it should perhaps come as no surprise, then, that the scope of judicial review has shrunk as noncitizens’ rights have evaporated.75
But the noncitizen’s lot is not hopeless — at least, not yet. Just as Justice Barrett’s opinion is susceptible to a broad reading, it is susceptible to a narrow reading, too, in which it closes only one avenue of review. After all, the Court decided a claim characterized as only a factual challenge.76 It had no occasion, then, to determine the federal courts’ jurisdiction over challenges characterized otherwise. It noted that Congress preserved review for “legal and constitutional questions” and left it at that.77 It is not clear, then, that the Court’s conclusion (no review of factual findings) must follow from different premises (a constitutional claim predicated on disputed facts). If Patel had pleaded a procedural due process claim, what result?
Both precedent and prudence counsel for some form of review. Start with the Court’s precedents. Since Yick Wo v. Hopkins78 in 1886, the Court has recognized that the guarantee of due process is “universal in [its] application, to all persons within the territorial jurisdiction, without regard to differences of . . . nationality.”79 And since Yamataya v. Fisher80 in 1903, that guarantee against “arbitrary power” has applied in deportation proceedings, protecting those noncitizens who have entered the United States, regardless of the legality of their initial entry.81 Time and again, the Court has reaffirmed and applied these basic principles.82 And one “minimum requirement” of procedural due process is that “some evidence” support a factual finding.83
That the relief sought is discretionary is of no matter.84 Of course, due process attaches only to a “legitimate claim of entitlement,” not to a “unilateral expectation.”85 But the issue is not so simple. Just as a criminal defendant “may have no right to object to a particular result of the sentencing process” but has “a legitimate interest in the character of the procedure which leads to the imposition of [a] sentence,” a deportable noncitizen may have no right to object to the second-step denial of relief but retain an interest in the determination of his first-step eligibility for discretion.86 Indeed, St. Cyr held as much in the habeas context, acknowledging noncitizens’ “right to challenge the Executive’s failure to exercise the discretion authorized by law.”87 Here, then, as in parole revocation, sentencing, and appeals as of right, even if the Constitution does not require a certain procedure, if the state chooses to provide it, it must comport with due process in doing so.88
As a prudential matter, only the narrow reading promotes official adherence to law.89 Consider the Court’s approach to federal law claims predicated on issues of state law. To ensure a meritorious claim of federal right is not evaded by state law chicanery, a “nonfederal ground” for decision must have “fair or substantial support.”90 Without such review, facts could be freely “manipulated” to foreclose valid claims and federal law “nullified.”91 So, too, in the immigration domain. Indeed, in Guerrero-Lasprilla v. Barr,92 a 7–2 decision handed down in the same Term as Thuraissigiam, the Court rejected as “extreme” an interpretation of § 1252 that would have allowed executive officials to dodge judicial review merely by “recit[ing]” the applicable legal standard, even if their application of that standard was done “in a manner directly contrary to well-established law.”93 Here, as in Guerrero-Lasprilla, the threat of reversal for unsupportable factual findings — even if seldom realized — guards against both irrational94 and illicit95 decisionmaking. Patel should not be read to bless the carte blanche delegation that Guerrero-Lasprilla scorned.
Patel closes one door to judicial review. But it may leave another open. Such jurisdiction was core to what Professor Henry M. Hart, Jr., deemed the courts’ “responsibility” to ensure “that human beings were not unreasonably subjected, even by direction of Congress, to an uncontrolled official discretion.”96 Of course, as Hart acknowledged, it may well be that Congress can deport any alien, for any reason.97 But if the people must “turn square corners” in dealing with the government — even in an errant checkbox on a driver’s license renewal form — surely, “when so much is at stake,” the government must “turn square corners in dealing with the people,” too.98 Noncitizens included.