Denial of Discretionary Waiver of Removal Cannot Be Appealed, Says Court

The US Court of Appeals For the 10th Circuit held in a recent decision that an order from the immigration judge denying a discretionary waiver of removal cannot be overturned unless there is a constitutional claim or legal question. Munis v. Holder Case No. 12-9593 (C.A. 10, Jul. 2, 2013).

A foreign national who is in removal proceedings without a legal defense against the charge of removability, may request a discretionary waiver of removal. The immigration judge has discretion to decide whether or not to grant the waiver, and the foreign national does not have a legal right to a discretionary waiver. Rather, the government has the power to decide whether or not to grant the waiver. Once the government has made a decision to deny a discretionary waiver, this decision cannot be appealed because courts have said that they lack jurisdiction unless there is a question of law or constitution claim.

In that case, the petitioner Peter Dausen Munis filed a request for discretionary relief from removal in response to removal proceedings that were initiated against him in 2006. He had originally entered the US in 1999 on a nonimmigrant student visa. He stopped going to school and began working without authorization, which is what led to the removal proceedings. During the removal proceedings, the government established his criminal history, which included a conviction of a crime involving moral turpitude that rendered him inadmissible. Munis conceded removability, and requested a waiver of inadmissibility based on alleged extreme hardship to his wife if he were to be removed. He also asked that in the alternative, he be granted voluntary departure.

The immigration judge denied his request for a discretionary waiver and also his request for voluntary departure and ordered him removed. Munis appealed the decision of the immigration judge to the Board of Immigration Appeals (BIA), which dismissed his appeal. Munis then appealed to the US Court of Appeals.

The court dismissed his appeal on the basis that the court lacks jurisdiction to review the immigration judge’s decision to deny discretionary relief from removal. The court said it has jurisdiction to review constitutional claims or questions of law, but not the jurisdiction to review the agency’s discretionary power to deny a waiver of inadmissibility.

The court noted that the 10th circuit has never specifically held that the hardship determination underlying the denial of a waiver of inadmissibility is unreviewable, but it did note that the 1st and 3rd Circuits have done so. The court held that in this case under 10th circuit law, the hardship determination for a waiver of inadmissibility is an unreviewable discretionary decision, and therefore the court lacks jurisdiction to hear an appeal of that decision. The court cited 8 U.S.C. Section 1182(h)(2)that provides that no court shall have jurisdiction to review the decision of the attorney general to grant or deny a waiver of inadmissibility. The court also cited cancellation of removal under 8 U.S.C. Section 1252(a)(2)(B)(i) as an exercise of discretion that is insulated from the court’s review.

Consequently, a person does not have a legal right to a discretionary waiver. Rather, the government has the power to grant or deny that privilege.