Federal Court Review of Adjustment of Status Decisions

Can a federal court review USCIS's denial of Form I-485?

See Mandamus for Delayed Adjustment of Status.

INA §242(a)(2)(B)(i)

8 U.S.C. §1252(a)(2)(B)(i) states that, notwithstanding other law and regardless of whether the judgment is made in removal proceedings, no court has jurisdiction to review:

“any judgment regarding the granting of relief” under specified statutory provisions, including INA §245.

The listed provisions include adjustment of status, certain waivers, cancellation of removal and voluntary departure.

Patel v. Garland

In Patel v. Garland, 596 U.S. 328 (2022), the Supreme Court interpreted §1252(a)(2)(B)(i) broadly.

The Court held that:

• The jurisdictional bar is not limited to purely discretionary determinations;
• It reaches factual findings concerning adjustment eligibility;
• “Any judgment” is expansive; and
• Courts cannot review covered factual determinations merely because they precede the ultimate discretionary decision.

District-court APA review after Patel

Multiple federal courts of appeals have held that §1252(a)(2)(B)(i) also bars district-court APA review of USCIS adjustment denials outside removal proceedings.

Important cases include:

• Britkovyy v. Mayorkas, 63 F.4th 480 (7th Cir. 2023);
• Abuzeid v. Mayorkas, 62 F.4th 578 (D.C. Cir. 2023); and
• Momin v. Jaddou, 113 F.4th 505 (5th Cir. 2024).

These decisions rely in part on Congress's explicit statement that §1252(a)(2)(B) applies “regardless of whether the judgment, decision, or action is made in removal proceedings.”

What about a pure legal error by USCIS?

This question must be separated into two procedural settings.

Direct district-court challenge to USCIS

Courts applying Patel, Abuzeid, Britkovyy and related decisions have rejected many attempts to characterize a USCIS adjustment denial as a reviewable APA legal question.

Petition for review after a final removal order

INA §242(a)(2)(D) expressly preserves judicial review of:

• Constitutional claims; and
• Questions of law

when raised in a petition for review filed with the appropriate federal court of appeals.

Wilkinson v. Garland and mixed questions

In Wilkinson v. Garland, 601 U.S. 209 (2024), the Supreme Court explained that §1252(a)(2)(D)'s preservation of “questions of law” includes certain mixed questions involving application of a legal standard to established facts.

Although Wilkinson involved cancellation of removal rather than adjustment of status, the decision is important in understanding the scope of legal review preserved in a proper petition for review.

Petition for review after immigration court proceedings

A non-arriving applicant whose adjustment request is denied by an immigration judge can generally:

1. Appeal to the Board of Immigration Appeals;
2. Receive a final administrative decision; and
3. File a petition for review with the appropriate federal court of appeals.

Under 8 U.S.C. §1252(b)(1), a petition for review must generally be filed no later than 30 days after the final order of removal.

See Renewing Adjustment of Status in Removal Proceedings.

Exhaustion

INA §242(d) limits review of a final removal order where the noncitizen did not exhaust administrative remedies available as of right.

That means issues intended for federal review should ordinarily be preserved before:

• The immigration judge;
• The Board of Immigration Appeals; and
• The federal court of appeals.

The federal court generally reviews the administrative record

Under §1252(b)(4), the court of appeals generally decides the petition based on the administrative record developed in removal proceedings.

That makes it important to create a record containing:

• Relevant immigration filings;
• Certified court records;
• Declarations;
• Expert reports;
• Immigration judge rulings;
• Legal briefs;
• Waiver evidence;
• Discretionary evidence; and
• Objections necessary to preserve appellate issues.

Review of factual findings

Federal review of factual adjustment findings is heavily restricted.

After Patel:

• Section 1252(a)(2)(B)(i) reaches factual eligibility judgments related to adjustment;
• §1252(a)(2)(D) preserves constitutional claims and questions of law, not ordinary factual reweighing;
• A petition should distinguish legal error from disagreement over factfinding; and
• Merely labeling a factual dispute “legal” does not create jurisdiction.

Discretionary adjustment denial

Adjustment under INA §245(a) is discretionary.

Pure challenges to the agency's balancing of discretionary factors are generally among the most difficult issues to obtain judicial review of.

Examples include arguments that USCIS or the immigration judge:

• Gave too much weight to an arrest;
• Gave too little weight to family ties;
• Should have viewed rehabilitation more favorably;
• Should have exercised humanitarian discretion differently; or
• Should simply have reached a more favorable equitable balance.

Constitutional claims

Section 1252(a)(2)(D) also preserves constitutional claims in a proper petition for review.

Potential issues can include:

• Due process;
• Meaningful opportunity to respond to evidence;
• Bias or fundamentally unfair proceedings;
• Notice;
• Opportunity to present evidence; and
• Other colorable constitutional questions.

Derogatory evidence and procedural review

An adjustment denial based on undisclosed derogatory information can raise issues under 8 C.F.R. §103.2(b)(16).

Before federal litigation, determine:

• What information USCIS relied upon;
• Whether the applicant received notice;
• Whether the applicant had a meaningful opportunity to rebut it;
• Whether regulatory exceptions applied;
• Whether the issue can be raised in a motion;
• Whether adjustment can be renewed in removal proceedings; and
• What review forum has jurisdiction over the procedural claim.

Form I-290B versus federal court

After a USCIS I-485 denial, a motion to reopen or reconsider may provide the most immediate mechanism for challenging the decision.

Form I-290B can be used to argue:

• New facts;
• New evidence;
• USCIS legal error;
• Incorrect policy application;
• Abandonment error; or
• Other grounds within 8 C.F.R. §103.5.

See Form I-290B After I-485 Denial.

Renewal in removal proceedings can create a route to review

For a non-arriving alien, USCIS denial can later be followed by removal proceedings in which the respondent renews adjustment before the immigration judge.

If the judge denies adjustment:

• The respondent can appeal to the BIA;
• A final removal order can then be challenged through a petition for review; and
• Legal and constitutional claims can fall within §1252(a)(2)(D).

This is one reason the absence of district-court APA review does not always mean there can never be federal judicial review of any legal issue in the adjustment case.

Example: USCIS factual finding outside removal proceedings

Example: legal question after final removal order

Federal-review checklist

• Identify whether decision was made by USCIS or EOIR.
• Identify whether removal proceedings exist.
• Identify whether final removal order exists.
• Identify whether the issue is factual, legal, constitutional or discretionary.
• Apply §1252(a)(2)(B).
• Apply Patel v. Garland.
• Research circuit precedent concerning USCIS APA review.
• Apply §1252(a)(2)(D) where a petition for review is available.
• Exhaust administrative remedies.
• Preserve issues before the immigration judge and BIA.
• Calendar the 30-day petition-for-review deadline.
• Review Form I-290B options.
• Review renewed adjustment options.
• Do not assume the APA independently creates jurisdiction.

Common federal-review mistakes

Primary authorities

Related INA245.com guides

Frequently asked questions