Question: I have heard so much about the REAL ID Act, but do not really understand what it is. Can you explain?

Answer: The REAL ID Act made two changes to INA § 242(a)(2)(B), an INA subsection added by IIRIRA that precludes federal court jurisdiction over certain discretionary decisions. One of these changes purports to expand § 242(a)(2)(B) to non-removal cases.

Courts have only recently begun to interpret the REAL ID Act.

Question: What is INA § 242(a)(2)(B)?

Answer: INA § 242(a)(2)(B), entitled “Denials of Discretionary Relief,” restricts when federal courts have jurisdiction over certain types of discretionary decisions and action by the government in immigration cases.

INA § 242(a)(2)(B) includes two subparts. The first limits federal court jurisdiction over a “judgment regarding the granting of relief under section criminal and fraud waivers, cancellation of removal or adjustment proceedings. The second subpart restricts federal court jurisdiction over “any other decision or action … the authority for which is specified under this title [Title II] to be in the discretion or the Attorney General or the Secretary of Homeland Security.” Asylum decisions are specifically exempted from this bar on jurisdiction.

For § 242(a)(2)(B) to apply, a case must fall within one of these two subsections. Each subpart has been interpreted narrowly, in accord with the specific language chosen by Congress.

The REAL ID Act also expanded the scope of § 242(a)(2)(B) so that it now applies “regardless of whether the [discretionary] judgment, decision, or action is made in removal proceedings.” Prior to the REAL ID Act, some – though not all courts had held that § 242(a)(2)(B) was applicable only in removal cases. Presumably, this amendment was intended to reverse these earlier court decisions.

Question: Do these amendments eliminate all mandamus and other types of affirmative suits in non-removal cases?

Answer: No, these changes do not eliminate all jurisdictions over mandamus and other affirmative lawsuits in non-removal cases. To determine whether jurisdiction remains available in a particular case, a practitioner may carry out a several step analysis. This analysis is essentially the same as the analysis to determine whether jurisdiction exists in a removal case involving agency discretion. Consequently, court decisions interpreting § 242(a)(2)(B) in the removal context will be helpful in determining whether the provision applies in a non-removal case.

Question: What steps are involved in determining whether a court has jurisdiction under § 242(a)(2)(B) in a removal or non-removal case?

Answer: While there are several issues in such an analysis, the first issue will be looked at in this article. INA § 242(a)(2)(B) does not apply to every immigration-related case. Thus, the first step is to determine if the case is entirely outside the reach of § 242(a)(2)(B). There are at least four general categories of cases that arguably fall outside the reach of this section.

A. INA § 242(a)(2)(B) only limits jurisdiction over certain discretionary actions and decisions. Neither this section nor the REAL ID Act stripped federal courts of jurisdiction where the government has a nondiscretionary duty to act. In mandamus cases in particular, the existence of a mandatory, non-discretionary duty on the part of the government is an essential element of the claim. Thus, mandamus actions by definition generally should not fall within the restrictions of INA § 242(a)(2)(B).

B. INA § 242(a)(2)(B) does not apply to asylum decisions. Asylum is not one of the forms of discretionary relief specifically mentioned in § 242(a)(2)(B)(i), and thus this subsection does not apply to asylum cases. Additionally, asylum is specifically exempted from § 242(a)(2)(B)(ii), and thus this subsection also does not apply to asylum cases. Consequently, § 242(a)(2)(B) should never be an issue with respect to federal court jurisdiction over asylum cases, even if the challenged agency action is a discretionary one.

C. INA § 242(a)(2)(B) also does not apply to naturalization decisions. Additionally, § 242(a)(2)(B)(ii) states that it applies to agency decisions or action, “the authority for which is specified under this title” to be discretionary. Consequently, INA § 242(a)(2)(B) should never be an issue in federal court jurisdiction over a naturalization decision, even one involving discretion.

D. INA § 242(a)(2) should not apply to S, T and U visas. While generally, this provision contains definitions that do not authorize discretion, there are a few exceptions. For example, the definition of the non-immigrant “T” visa category includes as an eligibility requirement that the Attorney General determine if the individual “would suffer extreme hardship involving unusual and severe harm upon removal.” The determination of extreme hardship has been held to be a discretionary determination. Arguably, however, the exercise of the Attorney General’s discretion with respect to a T visa would not fall within the bar to jurisdiction in § 242(a)(2)(B)(ii) because the statutory authority for this discretion is found in Title I, not Title II. The definitions of the “S” and “U” visa categories contain similar grants of discretion that fall outside the scope of § 242(a)(2)(B).

Thus, the REAL ID Act did not completely eliminate federal court jurisdiction.