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Exhaustion Of Exhausted Remedies: The 5th Circuit Black Hole

by John Wheat Gibson

You believe the administrative agency has badly misinterpreted the law and therefore abused your client's legal rights, so you look to the Administrative Procedure Act 5 USC §702 ff., in hopes of persuading a district judge to correct the error of the problematic agency. But wait! There is a possibility that if the functionary who made the erroneous decision receives communications from a flying saucer, he or she might reconsider the decision! Are you therefore barred from taking your case to the district court? In the Fifth Circuit, the answer clearly is, "Yes, you are barred because you have not exhausted administrative remedies."

But, you object, what if the functionary does not receive instructions from flying saucers? After all, you say, there is nothing plaintiffs can do to force extraterrestrials to phone a federal bureaucrat. The law provides no administrative appeal. Didn't Chief Justice John Marshall say, "It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress?" Marbury v. Madison, 5 US 137, 147 (1803) Wrong! You are relying on the APA as it stood before the Fifth Circuit decided Cardoso v. Reno, 216 F3d 512, 518 (5th Cir 2000). That decision, although written with a paint roller rather than a sharp-pointed pen, is not utterly irrational. Its subsequent application, however, belongs to the world of disembodied voices and UFOs. The 5th Circuit said in Cardoso, "As a matter of jurisdiction, courts may not review the administrative decisions of the INS unless the appellant has first exhausted 'all administrative remedies.'" Seems reasonable so far.

The plaintiffs in Cardoso were in removal proceedings before an immigration court, which is an agency within the Department of Justice. The agency was obliged to review de novo the plaintiffs' applications for adjustment to legal resident status that the Immigration and Naturalization Service had denied. At the time, both the Immigration and Naturalization Service and the immigration court were within the US Department of Justice. The plaintiffs' boneheaded attorney sought to have the district court enjoin the removal proceedings, 1 despite the fairly clear language of INA §1252(d) which says,

(d) Review of Final Orders
A court may review a final order of removal only if-
(1) the alien has exhausted all administrative remedies available to the alien as of right…. (emphasis added).
The Cardoso panel ruled that the district court had no jurisdiction to enjoin removal proceedings, since Congress gave the federal courts authority to review them after they were final.

Then, apparently inspired by signals from Mars, the 5th Circuit, citing Cardoso, expanded the jurisdictional preclusion to include APA review of cases that do not involve orders of removal at all; and in which no administrative remedy is available to the alien "as of right." But Cardoso v. Reno did not mention the APA at all.

Of course, the possibility of a bureaucrat's reconsidering a decision on the basis of instructions from outer space does not constitute an administrative remedy available to the alien "as of right." Neither does the possibility that a government bureaucrat might institute other proceedings in which the matter could be litigated, if the commencement of such proceedings is totally at the whim of the bureaucrat, so that there is no way the alien can compel an agency to commence them. Except in the twilight zone of the Fifth Circuit.

In Gunter v. Gonzalez, No. 05-11249 (5th Cir 2006), the panel decided that if the problematic agency that made the illegal adjudication could, at its caprice, refer the matter to a different agency, which could review the adjudication, if the problematic agency in its unlimited discretion chose so to refer it, then the problematic action of the problematic agency was not final for purposes of the APA, and there remained an administrative remedy to be exhausted, which therefore precluded the district court's jurisdiction of the aggrieved plaintiff's claim. The "administrative remedy" that remained to be exhausted was the possibility that the bureaucrat might ask a different agency to review his error, but only if he were inspired to do so. Thus, said the Fifth Circuit, the APA does not confer jurisdiction. 2 The Congress provided APA jurisdiction, unless abridged by some other statute, explicitly: "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof." 5 USC §702. The APA provides, "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 USC §704.

In the Gunter case, the Bureau of Citizenship and Immigration Services denied "adjustment" to permanent resident status (the "green card") to the Russian wife of a US citizen who brought her to the US as his fiancée. The law requires such a family based adjustment applicant to prove somebody besides the government will support her financially if she falls into distress. The bureaucrat who decided the wife's application for resident status in Gunter claimed that the wife could not show she would not become a public charge, because her husband, who properly prepared and filed a form I-864, promising to support her, had not filed income tax returns, although he explained why he had no legal duty to file them. 3 A cosponsor, however, who showed more than $300,000.00 salary per year on his tax returns, also filed a proper contract promising to support her if necessary. 4 The issue was a pure question of law, therefore: whether the public charge guarantees of INA §213A could be met by an impeccable cosponsor in the absence of tax returns by the petitioner. The Fifth Circuit refused to reach the question of law. Instead, it said, simply, that the denial of the wife's adjustment was not "final agency action" because the BCIS, which is a division of the Department of Homeland Security, could choose to refer the matter for removal proceedings to the Executive Office for Immigration Review, which is a division of the US Department of Justice. 5 In removal proceedings, the EOIR could review the denial of adjustment.

Of course, there is nothing that the wife can do to compel the BCIS to refer the matter to the EOIR. INA §242(g), 8 USC §1252(g). The Fifth Circuit also has made clear that the agency need not ever initiate those removal proceedings in which the EOIR might review the legal error. Alvidres-Reyes v. Reno, 180 F3d 199 (5th Cir 1999). Thus, in the Fifth Circuit, court review of agency action is precluded even if the injured person cannot obtain review of that action within the agency itself; review is available by a different agency only if the problematic agency chooses to refer the matter to the different agency; and the plaintiff has no enforceable right to agency review anywhere, ever.

Meanwhile, back in the United States, the Court of Appeals for the Third Circuit noticed that the right to wait for a bureaucrat to correct his error or refer it to a different agency if and only if he might choose to do so is no right at all. The Third Circuit incisively surveyed the applicable law in the Pinho case, which in all matters related to APA exhaustion of administrative remedies was exactly like the Gunter case. The Third Circuit said,

Jurisdiction under the APA is available for review of "final agency action." The Supreme Court has explained the finality requirement as follows:
As a general matter, two conditions must be satisfied for agency action to be "final": First, the action must mark the "consummation" of the agency's decision making process, Chicago & Southern Air Lines, Inc v. Waterman SS Corp, 333 US 103, 113, 92 LEd 568, 68 SCt 431 (1948)--it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow," Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 US 62, 71, 27 LEd2d 203, 91 SCt 203 (1970). Bennett v. Spear, 520 US 154, 178, 117 SCt 1154, 137 LEd 2d 281 (1997). The agency action at issue here satisfies these two conditions. Pinho v. Gonzalez, 432 F3d 193 (3rd Cir 2005).
Plainly, according to the criteria established by the Supreme Court, the denial of Ms. Gunter's adjustment application on the ground that supposedly she could not cross the statutory eligibility threshold of proving she would not become a public charge was a final agency action. It was not tentative or interlocutory, since no administrative appeal of the BCIS decision was available; and clearly her rights or obligations were determined and legal consequences-the loss of employment authorization, the ability to travel, and the ability to obtain a driver's license-flowed from the agency action.

Finality requires exhaustion of administrative remedies. If there remain steps that the immigrant can take to have an action reviewed within the agency, then the action is not final and judicial review is premature. In this case, the agency offered no further procedures that Pinho could invoke to have his claim of statutory eligibility heard. There is no provision for BIA review of an AAO status-adjustment eligibility decision. See 8 CFR §3.1(b). If the agency institutes removal proceedings against an immigrant, then the immigrant may renew his or her application during those proceedings, 8 CFR §245.2, but we do not find this possibility sufficient to render the AAO's eligibility determination "tentative or interlocutory" in this case.
The reason is simple: if the agency does not seek to deport the immigrant, there can never be an appeal within the agency by which any higher level of administrative authority can be invoked to review the legal determination made by the AAO. Because applications for adjustment of status can be renewed, and are often made in the first instance, during deportation proceedings, those proceedings will in some cases address the issues considered by the AAO, see, e.g., Herrera-Inirio v. INS, 208 F3d 299, 303 (1st Cir 2000) (question whether vacated conviction constituted "conviction" under §1101(a)(48)(A) addressed during deportation hearing), so that judicial review would be barred, see, e.g., Howell v. INS, 72 F3d 288, 293 (2d Cir. 1995) (finding jurisdiction lacking once deportation proceedings had begun). n10 However, in this case, Pinho's adjustment of status application was not filed because of pending deportation proceedings, but rather because of his marriage to a U.S. citizen. Because the Department of Homeland Security ("DHS") did not provide an avenue for administrative appeal of the AAO decision, Pinho had no further opportunity to challenge the legality of the decision within the agency, and would have none at all, were he forced to await deportation proceedings that the agency may or may not choose to institute. In Howell, the Second Circuit left open the question of jurisdiction where there were no pending deportation proceedings in which the immigrant could raise her adjustment claims. Subsequently, the district court in Chen v. Reno, 1997 US Dist LEXIS 8072 (SDNY 1997), was faced with that question - the question we are faced with in this case. In Chen, the District Court found that jurisdiction did lie, explaining:
A litigant has a right to a prompt resolution of decisions concerning his status affording him the opportunity to make personal, educational, or career plans. . . . Chen has exhausted his administrative remedies because as a denied applicant not in deportation proceedings, he has no further options under the regulatory or statutory scheme to force a prompt decision by the INS. Id. at 6-7. Pinho v. Gonzalez, 432 F3d 193 (3rd Cir 2005) (emphasis supplied)

In the Fifth Circuit, however, it matters not that there remain no more steps that Ms. Gunter could take to have the denial of her claim reviewed within the BCIS or any other agency, even though all she challenged was a legal determination of her statutory eligibility for adjustment.

McBrearty v. Perryman, 212 F3d 985 (7th Cir 2000), is not on point. In that case, the plaintiffs "sought judicial review of the refusal by the district director of the immigration service to adjust their status. . . ." Id. at 986 (emphasis added).
The McBrearty plaintiffs were not challenging a legal determination of their statutory eligibility for adjustment, but rather a refusal to adjust their status. This distinction makes all the difference. The refusal to adjust - a discretionary determination - was (as the court notes) barred by [8 USC] §1252(a)(2)(B). While it is true that the plaintiffs could have renewed their adjustment application in removal proceedings, that fact is irrelevant to the District Court's lack of jurisdiction: under Section 1252(a)(2)(B) the court had no jurisdiction because the plaintiffs had no claim at all, not because they had failed to exhaust a valid claim. McBrearty is not about exhaustion, and is redeemed from making law without proper analysis only by its facts; it surely cannot be said to stand for the proposition that immigrants stating a legal claim-one not barred by §1252-must always wait for deportation proceedings. Pinho v. Gonzalez, 432 F3d 193 (3rd Cir 2005).

For exactly the same reasons, the Cardoso decision has no bearing on a suit for District Court review of the BCIS determination that a plaintiff has not met statutory prerequisites to eligibility for adjustment of status.

Thus, the Third Circuit wrote,

In our view, Chen is a proper application of the guidance given by the Supreme Court in Darby v. Cisneros, 509 US 137, 113 SCt 2539, 125 LEd 2d 113 (1993), and McCarthy v Madigan, 503 US 140, 112 SCt 1081, 117 LEd 2d 291 (1992). Darby held that agency action is final when the "aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule. . . . Where the APA applies, an appeal to 'superior agency authority' is a prerequisite to judicial review only when expressly required by statute or when an administrative rule requires appeal before review and the administrative action is made inoperative pending that review." Darby, 509 US at 154. In the case at bar, not only was there no administrative remedy "expressly prescribed," but the applicable regulation expressly provided that there was no administrative appeal available. And the AAO's decision was "operative" from the moment it was entered. A ruling that Pinho must wait for possible future deportation proceedings in order to challenge the AAO's legal determination would sit ill at ease with Darby.

The position of the Fifth Circuit is thus plainly at odds not only with the APA, but also with broader principles of separation of powers. Pinho v. Gonzalez, 432 F3d 193 (3rd Cir 2005) 6 It permits a final determination of law by the executive, with no right of review by the judiciary.

The Cardoso case, obviously, like the McBrearty case, has no bearing on whether the APA provides for review of the agency action in an APA action challenging an agency interpretation of the law like the Gunter case. In Cardoso and McBrearty, the plaintiffs sought review of the denial of their adjustment applications, which clearly is a matter of agency discretion. But the plaintiff in Gunter, like the plaintiffs in Pinho, on the contrary, was "challenging a legal determination of their statutory eligibility for adjustment." Pinho, supra. The Gunter plaintiff did not ask the District Court to order the defendants to decide her adjustment application in her favor. She asked only that the court review the application of the statute by the defendants in their determination of her eligibility for adjustment.

[T]he REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005), has further restricted the jurisdiction of the district courts to review discretionary agency actions. Non-discretionary actions, however, and purely legal determinations made by the agency, remain subject to judicial review. See, e.g., Sepulveda v. Gonzales, 407 F3d 59, 63 (2d Cir. 2005) ("[Section]1252(a)(2)(B) does not bar judicial review of nondiscretionary, or purely legal, decisions. . . ."). Pinho v. Gonzalez, 432 F3d 193 (3rd Cir 2005)

Obviously an adjustment applicant has a liberty interest in having her application adjudicated consistently with the laws as Congress wrote them and the regulations as the DHS codified them. The most fundamental principle of due process is the right to notice of what one must do to comply with the law, and must not do to avoid running afoul of the law. BMW v. Gore, 517 US 559 (1996) Thus the District Court has a duty to declare what the law is. The Fifth Amendment does not guarantee a result to applicants, but it does guarantee that the result will be reached within the law, and that the applicant can know what the law is, in order to comply with it.

Congress removed sovereign immunity as a defense under the Administrative Procedure Act in 1976, to curb abuses by the executive branch of the federal government. Pub. L. 94-574. Since then, the proponents of government by executive fiat have sought to undo the APA. Aliens are the friendless class, abuses of whom establish legal precedents for dismantling the civil liberties of citizens. Although some circuit courts have been content to let Congress curtail protections against executive abuse, the Court of Appeals for the Fifth Circuit impatiently has gutted the APA by judicial legislation. There, the victims of illegal executive action are truly lost in space.

The Gunter plaintiff filed her complaint in the district court on 21 December 2004, and the Fifth Circuit issued its decision promising adequate administrative remedies on 2 October 2006. Four years later, the BCIS still has not referred the case to the EOIR; the wife remains in limbo, unable to obtain a work permit or visit her mother and daughter in Russia, and she is subject to the draconian penalties of INA §212(a)(9)(B)(i). If she departs the US, the law prohibits her return to her husband until 10 years have passed. The wife never will be able to obtain review of the erroneous denial of her application unless the BCIS bureaucrat who denied her application receives inspiration from the same little green Martians who write Fifth Circuit opinions.

End Notes

1 Three plaintiffs complained of the denial of applications for adjustment. Two were subject to orders of deportation. The third, Aurora Moran, alleged that, although she had not been subjected to deportation proceedings, she nevertheless feared she would be deported because her request for adjustment of status had been denied. She sought injunctive relief "to compel the Attorney General to adjust [her] immigration status, permit [her] to remain in the United States, and provide [her] with work authorization."

2 To support APA jurisdiction, the agency action must be final, it must adversely affect the party seeking review, and it must be non-discretionary.
Section 1252(a)(2)(B) of Title 8 of the United States Code, which also strips the district courts of jurisdiction over discretionary agency determinations, is in that respect at least partly duplicative of the APA requirement. Pinho v. Gonzalez, 432 F3d 193 (3rd Cir 2005).

3 The district adjudications officer, who made the decision to deny the adjustment application, demanded that the petitioner produce a certificate from the IRS showing that he had no obligation to pay income taxes. The IRS told him, when he requested the certificate, that it did not issue such documents, and, in fact, never had heard of such a thing.

4 8 CFR 213A(2)(c)(2)(i)
(c)-Sponsorship requirements.
(2)-Demonstration of ability to support sponsored immigrants.
(i)-Proof of income.
(A)-The sponsor must file with the a copy of his or her Federal income tax returns for each of the 3 most recent taxable years, if he or she had a legal duty to file. By executing, the sponsor certifies under penalty of perjury under United States law that each return is a true and correct copy of the return that the sponsor filed with the Internal Revenue Service for that taxable year.
(B)-If the sponsor had no legal duty to file a Federal income tax return for any of the 3 most recent tax years, the sponsor must explain why he or she had no legal duty to a file a Federal income tax return for each year for which no Federal income tax return is available. If the sponsor had no legal obligation to file a Federal income tax return, he or she may submit other evidence of annual income.

5 The agency decided the Gunter adjustment alleging statutory ineligibility, and the plaintiff claimed the BCIS was wrong about what the law required. The plaintiff acknowledged, of course, that even if she prevailed the BCIS could deny her application on a legally correct basis or in its unfettered discretion.

6 We hold that an AAO decision is final where there are no deportation proceedings pending in which the decision might be reopened or challenged. But even if the possibility of renewing an adjustment application in future deportation proceedings were thought to cast doubt on the finality of an AAO decision, this case falls into one of the categories "in which the interests of the individual weigh heavily against requiring administrative exhaustion," McCarthy, 503 US at 146, namely, circumstances in which an "indefinite timeframe for administrative action," id. at 147, results in prejudice to the individual who must await that action. The decision whether or not to institute deportation proceedings is entirely within the discretion of the agency. There are no steps that Pinho can take to force the question in order to have his claim resolved. If the only route to the courts is through deportation proceedings, then the agency retains sole control over whether an individual's purely legal claim -- one which has not been made non-reviewable by statute -- may ever be brought before the courts. Such a result would be plainly at odds not only with the APA, but also with broader principles of separation of powers. Pinho v. Gonzalez, 432 F3d 193 (3rd Cir 2005)

About The Author

John Wheat Gibson practices immigration law in Dallas, Texas. He can be reached at (214) 748-6944.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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