March 20, 2023 – A statute bars judicial review of an immigration agency’s denial of a Ukrainian citizen’s adjustment-of-status application, the U.S. Court of Appeals for the Seventh Circuit has ruled.

In Britkovyy v. Mayorkas, No. 21-3160 (Feb. 17, 2023), a three-judge panel for the Seventh Circuit Court of Appeals – on appeal from the U.S. District Court for the Eastern District of Wisconsin – held that the immigration statutes do not provide for review of the U.S. Citizenship and Immigration Service’s denial decision.

Coming to America

Illya Britkovyy, a citizen of Ukraine, walked into the U.S. at the Tijuana, Mexico border crossing in 2000.

On two occasions, a U.S. immigration inspector asked Britkovyy for his country of citizenship; each time, Britkovyy said he was born in the U.S.

The day after he crossed the border, Britkovyy explained through an interpreter that he’d not understood the inspector’s question. He was Ukrainian and hadn’t claimed to be a U.S. citizen, Britkovyy said.

Immigration officials paroled Britkovyy into the U.S. – he was allowed to enter the country temporarily but was not “admitted” for purposes of 8 U.S.C. section 1101(a)(13), which addresses border crossings. Officials also charged Britkovyy in immigration court as inadmissible because he’d falsely represented himself as a U.S. citizen.

When Britkovyy didn’t appear at his removal hearing, an immigration judge (IJ) ordered him removed in absentia.

Britkovyy, who never left the U.S., later married a U.S. citizen. In 2007, a police officer conducted a traffic stop on Britkovyy and discovered that Britkovyy had an outstanding immigration warrant. The police officer turned Britkovyy over to Immigration and Customs Enforcement (ICE).

Wins Motion to Re-open

In immigration court, Britkovyy won a motion to re-open his removal proceedings. In 2009, Britkovyy’s wife petitioned for a family-based permanent residency for him.

Britkovyy then applied with the immigration court and the U.S. Citizenship and Immigration Services (USCIS) to change his immigration status to lawful permanent resident.

In immigration court, the IJ concluded that the court lacked jurisdiction over Britkovyy’s application to adjust his immigration status. The IJ concluded that Britkovyy was an “arriving alien” under 8 C.F.R. section 1001.1(q) because he was paroled and not admitted to the U.S., and therefore under 8 C.F.R. sections 242.2(a)(1) and 1245.2(a)(1), USCIS had exclusive jurisdiction to adjust his status.

Application Denied

The IJ closed Britkovyy’s application to adjust his immigration status, at the request of the parties, and awaited the USCIS decision on Britkovyy’s application.

One month later, USCIS denied Britkovyy’s application. The agency determined that Britkovyy had falsely claimed to be a U.S. citizen with the intent to enter the country, which under 8 U.S.C. sections 1182(a)(6)(C)(ii) and 1255(a) made him ineligible for an adjustment of status, so the agency concluded that he was inadmissible.

After the USCIS decision became final, the IJ re-opened the removal proceedings against Britkovyy. At the time the U.S. Seventh Circuit Court of Appeals’ decision was issued, those proceedings remained open.

Sues under APA

Britkovyy sued USCIS in the U.S. District Court for the Eastern District of Wisconsin.

Britkovyy argued that the USCIS denial was subject to review under the federal Administrative Procedure Act, 5 U.S.C. section 704. That section authorizes a court to review agency action for which there is no other adequate remedy.

He asked the district court to set aside the USCIS decision under 5 U.S.C. section 706(2)(A).

A magistrate judge concluded the USCIS decision did not violate 5 U.S.C. section 706(2)(A) and granted summary judgment in favor of USCIS. Britkovyy appealed.

Limited Avenues for Judicial Review

Writing for a three-judge panel, Chief Judge Diane Sykes explained that Congress has limited judicial review of immigration decisions.

“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,” Sykes wrote.

Under 8 U.S.C. section 1252(a)(2)(D), Judge Sykes pointed out, only legal and constitutional claims brought in a petition for review from a final order of removal are subject to judicial review.

“The plain text of section 1252(a)(2)(B)(i) precludes judicial review of the denial of Britkovyy’s adjustment-of-status application, and section 1252(a)(2)(D) is inapplicable because Britkovyy has not received a final order of removal,” Sykes wrote.

Bar on Judicial Relief is Broad

Britkovyy argued that 8 U.S.C. section 1252(a)(2)(B)(i) applied only to the granting of relief, rather than to a judgment as to one’s eligibility for relief or the method of construing the statute.

But Chief Judge Sykes pointed out that the bar on judicial review in 8 U.S.C. section 1252(a)(2)(B)(i) applied “Notwithstanding any other provision of law.”

“If that language were not clear enough to establish that we lack jurisdiction to review USCIS’s decision, surrounding provisions would drive that conclusion home,” Sykes wrote. “Congress’s intent to preclude judicial review other than through the process outlined in section 1252 is clear.”

Kucana v. Holder Distinguished

Regulations (8 C.F.R. sections 242.2(a)(1) and 1245.2(a)(1)) rather than a statute grant USCIS sole authority over the adjustment-of-status claims of arriving aliens, Britkovyy argued, reasoning that administrative agencies lack the authority to broaden or narrow the availability of judicial review.

In support of that argument, Britkovyy pointed to Kucana v. Holder, 588 U.S. 233 (2010).

In Kucana, the U.S. Supreme Court reversed the Seventh Circuit’s holding that 8 U.S.C. section 1252(a)(2)(B)(ii) eliminated judicial review of decisions that were made discretionary by a regulation as opposed to a statute on the grounds that the holding would enable the executive branch to insulate its decisions from judicial review by simply promulgating a regulation that deemed the decisions discretionary.

But that wasn’t so in Britkovyy’s case, Chief Judge Sykes reasoned, because his removal proceeding was still pending.

“If those proceedings result in a final order of removal, Britkovyy can raise this issue on appeal to the Board of Immigration Appeals and, if necessary, in a petition for review by this court,” Judge Sykes wrote.