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Ninth Circuit:
Courts Have No Power to Bar Deportation of Ex-Convict
Panel Says Immigration Officials Have Unfettered Discretion to Grant or Deny Continued Residency to Noncitizen Who Is Statutorily Ineligible for Admission to U.S.; Declares That Effect Must Be Given to 1996 Deportation Order
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held on Friday that when immigration officials turn down a deportable alien’s request for a discretionary waiver of ineligibility to remain in the U.S., the courts have no power to countermand that decision.
Jairo Alberto Mejia Vega must return to his homeland of Columbia, a three-judge panel said, spurning his contention that the United State Citizenship and Immigration Services (“USCIS”), a branch of the Department of Homeland Security, failed to lend proper weight to two factors: that his wife, a U.S. citizen, was gravely ill and that in 2008, he helped subdue a man who was firing a rifle into a crowd.
Mejia Vega entered the U.S. in 1981, became a lawful permanent resident in 1990, and was wed in 1993. On Oct. 17, 1994, he was convicted of possession for sale of a controlled substance in violation of California Health & Safety Code §11351; he was ordered deported in 1996; the deportation took place in 1999.
Illegal Reentry
A short time later—on March 6, 1999—he re-entered the U.S. illegally to care for his ailing wife, as well as their two children.
On May 17, 2008, at a parish festival at the St. John Baptist de la Salle church in Granada Hills, Mejia Vega was among an estimated six bystanders who tackled a man who was firing a rifle (wounding his girlfriend, with whom he was engaged in a custody dispute, and two others). In the aftermath of the shooting, he was helpful to law enforcement officers.
On Dec. 17, 2010, immigration officials caught up with Mejia Vega and made efforts to remove him from the U.S. pursuant to the 1996 order.
He sought a “U visa”—awarded to immigrants who have been helpful to law enforcement—but faced an obstacle. Such visas are only available to persons who are legally admissible to the United States and, based on his conviction and his illegal entry, he wasn’t,
Waiver Sought
Mejia Vega sought a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(d)(3)(A)(ii) which provides that an inadmissible person “may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General.” On May 17, USCIS, to which such decisions are relegated, denied a waiver and, consequently, was denied issuance of a U visa.
Contesting that denial, Mejia Vega filed a petition for a writ of mandate in the U.S. District Court for the Central District of California. Judge Otis Wright II dismissed the action on Nov. 30, 2016 for lack of subject matter jurisdiction.
He acted on the basis of 8 U.S.C. §1252 which provides, with an exception that does not apply, that “no court shall have jurisdiction to review” immigration decisions by the attorney general or the secretary of homeland security. Wright commented: “Here, Plaintiff is subject to reinstatement of removal….Yet through various mechanisms, including the initiation of these proceedings, he remains in the United States six years later.”
Dismissal Affirmed
Nearly seven years later, the Ninth Circuit affirmed Friday in an opinion by Judge Paul J. Watford. He declared that subd. (a)(2)(B)(ii) of §1252 “precludes judicial review of USCIS’s denial of a waiver of inadmissibility under § 1182(d)(3)(A)(ii) because the latter statute commits the decision to the agency’s sole discretion.”
Watford explained:
“Section 1182(d)(3)(A)(ii) states that a noncitizen ‘may be admitted into the United States temporarily as a nonimmigrant in the discretion of; USCIS. The plain terms of the statute invoke the agency’s discretion. The statute uses ‘may’ instead of ‘shall’ or ‘must.” This permissive language ‘brings along the usual presumption of discretion.’…
“In addition, § 1182(d)(3)(A)(ii) does not contain language that qualifies the agency’s exercise of discretion. It lacks governing standards or statutory guidelines restricting decision-making….The statute contains no ‘meaningful standard’ that would suggest the agency is not exercising its ‘pure’ or ‘unfettered’ discretion.”
The jurist commented:
“By all accounts, Mejia Vega demonstrated remarkable courage by intervening to stop an active shooter, and his efforts to care for his wife are equally worthy of praise. But however compelling his objections to USCIS’s denial of a waiver of inadmissibility may be, judicial review of that decision is barred by 8 U.S.C. § 1252(a)(2)(B)(ii).”
The case is Mejia Vega v. USCIS, 16-56795.
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