Background
Plaintiff Sosimo Vera Chairez, a Mexican national, applied for a U visa and a waiver of inadmissibility under Section eleven eighty-two subsection d fourteen of the United States Code. USCIS denied the waiver, leading to the denial of the U visa. Chairez filed suit in district court under the Administrative Procedure Act, arguing the denial was unlawful and violated constitutional rights. The district court dismissed the case for lack of subject matter jurisdiction.
The court’s reasoning
The panel held that the agency’s denial of a waiver of inadmissibility under Section eleven eighty-two subsection d fourteen falls within Section twelve fifty-two subsection a two subsection b two of the United States Code, which precludes judicial review of agency action where the authority is specified to be in the discretion of the Secretary. The statute uses permissive terms like may and requires the Secretary to consider the public or national interest, reinforcing its discretionary nature. Following the Supreme Court decision in Bouarfa versus Mayorkas, the panel determined that statutory guidance on discretion does not create a judicially manageable standard for review. Additionally, Section twelve fifty-two subsection a two subsection d does not preserve jurisdiction for district courts because it only applies to petitions for review filed with a court of appeals from a final order of removal. The court also found the Plaintiff’s constitutional claims speculative and not colorable, distinguishing prior precedent regarding procedural challenges.
The dissent
What it means going forward
Immigration applicants cannot challenge discretionary waiver denials in district court; such claims must be raised during removal proceedings or in a petition for review to the court of appeals.