Who should suffer when an immigration judge messes up? The migrant, a divided majority of the U.S. Supreme Court announced this week. In Patel v. Garland, the Court concluded that federal courts can’t review factual assessments made by immigration judges even when the immigration judge is wrong. Justice Barrett wrote the majority opinion which Chief Justice Roberts joined along with Justices Thomas, Alito, and Kavanaugh. Justice Gorsuch wrote a dissenting opinion joined by Justices Breyer, Sotomayor, and Kagan.
This case involved Pankajkumar Patel who entered the United States without the government’s permission three decades ago. Several years later, in 2007, he applied for adjustment of status, a legal process by which a person who lacks the government’s permission to be in the United States can obtain permanent residency (aka, a green card). While his adjustment of status application sat in the federal government’s hands, Patel applied to renew his driver’s license in Georgia. To get a driver’s license in Georgia, then as now, an applicant had to show proof of lawful immigration status in the United States. A Georgia regulation says that “a pending application for lawful permanent residence” meets that requirement. Ga. Comp. R. & Regs. 375-3-1-.02(7).
Unfortunately for Patel, he also checked the box asking whether he was a U.S. citizen. Clearly, he wasn’t. Georgia prosecutors charged him with the crime of willfully falsifying his application, but soon dropped the case. It appears they didn’t think he meant to lie; he just made a mistake. As often happens, where criminal law problems ended for Mr. Patel, immigration law problems began. Despite prosecutors deciding against criminal charges, the federal government not only denied his adjustment application. It sought to remove him from the United States.
For migrants, often prosecutorial severity matters, but prosecutorial leniency doesn’t. The prosecutor’s decision to drop criminal charges against Patel meant nothing to the immigration judge reviewing the federal government’s removal case. Patel lied about his citizenship with the hope of getting a driver’s license, the immigration judge concluded, and he lied about making a mistake. “The judge explained that Patel was evasive when asked exactly how he had made a mistake,” Justice Barrett wrote for the majority.
That was enough to lead the immigration judge to deny Patel’s adjustment application. Whether he lied or not is a question of fact. And no federal court can second-guess an immigration judge’s determination of factual matters, the majority added, because Congress says they can’t review “any judgment regarding the granting of [adjustment of status]” and other types of relief from removal. 8 U.S.C. § 1252(a)(2)(B).
The dissenting justices take issue with the majority’s broad reading of executive power. What they find most troubling isn’t that immigration judges employed by the Justice Department or visa application adjudicators employed by the Department of Homeland Security can make life-altering decisions. What troubles Justice Gorsuch and his dissenting colleagues is that courts can’t correct blatant mistakes by those front-line decision-makers. Here, the immigration judge explained that “Mr. Patel had a strong incentive to deceive state officials because he could not have obtained a Georgia driver’s license if he had disclosed he was ‘neither a citizen nor a lawful permanent resident,” writes Justice Gorsuch.
The immigration judge’s interpretation of Georgia law is plainly wrong. The state doesn’t limit driver’s licenses to those two groups. The immigration judge was wrong. According to the dissenting justices, this error was a key premise in the immigration judge’s conclusion that Mr. Patel lied which in turn led to the judge’s decision to that Mr. Patel wasn’t eligible for adjustment of status. Despite the high stakes of this mistake, the majority opinion puts missteps like this off-limits. As the dissenting opinion puts it, “courts are powerless to correct bureaucratic mistakes like these no matter how grave they may be.”
The dissent’s criticism is true, of course. Cloaking an immigration judge’s decision in unreviewability turns the on-the-ground decision-maker into the final word. After this week’s decision, the worry isn’t that immigration judges will make mistakes. It’s that no one will be able to tell them that they did.
This is worrying, but it’s not a surprising extension of longstanding judicial deference to executive decision-making regarding immigration law. By and large, courts let Congress do what it likes when it comes to immigration law. Courts throw their hands up, declaring questions of who gets to make a life in the United States to be the province of the political branches of the federal government. This is a version of the rule of law that prioritizes adherence to legal doctrine over concerns about the legitimacy of legal process.
It’s not difficult to imagine alternative readings of the Immigration and Nationality Act’s text that is at issue in this case. Indeed, the Mr. Patel and the federal government each offered their own alternatives interpretations. Both would have given federal courts some room to correct errors like the one that blocks Mr. Patel from a path to permanent residency.
To find the interpretation that the majority of the justices ultimately settled on, the Court had to appoint a third-party to argue in favor of non-reviewability. That’s not unheard of, but it does illustrate just how apparent were reasonable alternatives that could have given meaning to the statutory text while breathing legitimacy into the procedures that government agencies use for life-altering decisions like whether someone gets to live in the United States.
What harm would it do to let Mr. Patel ask a federal court to weigh in on whether the immigration judge’s mistake means the difference between being eligible for adjustment of status and not being eligible?
Especially ironic is the fact that in recent years federal courts, including the Supreme Court, have leaned heavily on the Administrative Procedure Act’s bar on arbitrary and capricious governmental actions to strike down shifts in immigration policy. Rescind DACA? That’s arbitrary and capricious, the Supreme Court concluded. End Trump’s Remain in México/Migrant Protection Protocol initiative? Also arbitrary and capricious, the Fifth Circuit held. Though the outcome in each of those cases differed, what they shared was a willingness by courts to second-guess bureaucratic decision-making. To be sure, the APA was not at issue in Patel. Doctrinally, these are distinct matters.
My worry is that the Supreme Court’s retreat into the legal doctrine threatens its legitimacy. To the vast majority of people in the United States who don’t know or care about the doctrinal distinction between the INA and the APA, how do you square the fact that courts have on multiple occasions described immigration policy shifts announced at formal press conferences and justified by long memos as arbitrary and capricious, while refusing to let courts take a second look at decisions made by one immigration judge and premised on a blatantly wrong reading of the law? The justices may be asking too much.