Immigration
Checking the Wrong Box Can Get You Deported!
Imagine being ordered deported for checking the wrong box on a driver license application. Imagine further that you are lucky enough to have your case taken all the way all the way to the Supreme Court of the United States and the Supreme Court confirms the deportation order! That is exactly what happened on May 16, 2022, to Mr. Pankajkumar Patel and his wife Mrs. Jyotsnaben Patel who have lived in the United Sates since 1992. The Supreme Court decision is known Patel v Garland.
In August 2007, Mr. Patel applied for adjustment of status to receive a green card. While the application was in process, in December 2008, he sought to renew his Georgia driver's license and checked a box on the application stating that he was a United States citizen. Unfortunately for Mr. Patel, at that time in Georgia, they specifically investigated crimes associated with driver license applications.
After an interview with investigators at the Georgia Department of Driver Services, he was charged with false representation, a low-level offense under state law, for purportedly misrepresenting his citizenship status. The charge was eventually dismissed, but because of the record it generated, an immigration officer decided that Mr. Patel was “inadmissible” to the United States because he had lied to obtain a government benefit.
The case involved complex legal issues. Mr. Patel had applied for “adjustment of status,” which allows a person to obtain permanent residency (i.e., a green card). Like with many forms of discretionary relief, adjustment of status involves two steps. First, the applicant must meet precise eligibility requirements under a federal statute. Second, immigration officials must exercise their discretion to grant the relief.
Mr. Patel was denied adjustment and later placed in deportation proceedings before an immigration judge in the Department of Justice. He again applied for adjustment of status as a defense to removal. The immigration judge denied Mr. Patel’s adjustment application, concluding that he intentionally marked “U.S. citizen” on his application, despite Patel’s testimony that he made a mistake and did not intend to mark the U.S. citizen box. The judge determined that the misrepresentation made Patel ineligible for adjustment and never decided the second step — the discretionary one.
Mr. Patel sought to have a federal court review the immigration judge’s factual finding — specifically, the question of whether he intentionally or mistakenly checked the citizen box. But he ran into a problem: a provision of immigration known as the jurisdictional bar. That provision, 8 U.S.C. § 1252(a)(2)(B)(i), bars federal courts from reviewing “any judgment regarding the granting of relief” under five specific immigration remedies, including adjustment. Patel v. Garland asked the Supreme Court to clarify the scope of the jurisdictional bar.
The 5 to 4 opinion, written by Justice Amy Coney Barrett, severely limits the ability of the federal courts to provide relief to people injured by bureaucratic errors, even if the mistake is on the part of the government and not the applicant. Justice Barrett was appointed to the Supreme Court in October 2020 by then President Trump because of her conservative views. The dissenting opinion was written by Justice Gorsuch (another conservative appointed by Trump). He wrote:
An immigrant to this country applied for legal residency. The government rejected his application. Allegedly, the government did so based on a glaring factual error. In circumstances like that, our law has long permitted individuals to petition a court to consider the question and correct any mistake.
Not anymore. Today, the court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it. No court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants. And it is such an unlikely assertion of raw administrative power that not even the agency that allegedly erred, nor any other arm of the executive branch, endorses it. Today’s majority acts on its own to shield the government from the embarrassment of having to correct even its most obvious errors.
It requires considerable mental gymnastics to follow the technical legal arguments used by the majority to substantiate the decision.
Still, the takeaway point for our readers is this: If you are not a U.S. citizen, do not say or sign anything which indicates that you are a U.S. citizen. This relates not only to applications for driver licenses. It also comes up in applications for jobs and loans. If you are eligible for U.S. citizenship, do not put off the application.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]