Sec. 1205. Judicial review
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Section 242 of the Immigration and Nationality Act ( 8 U.S.C. 1252 ) is amended— in subsection (a)(2)— in subparagraph (B), by inserting the exercise of discretion arising under after no court shall have jurisdiction to review ; in subparagraph (C), by inserting and subsection
(h)after subparagraph
(D); and by amending subparagraph
(D)to read as follows: Nothing in subparagraph
(B)or (C), or in any other provision of this Act that limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law. ; in subsection (b)— in paragraph (2), in the first sentence, by inserting or, in the case of a decision governed by section 245G(g)(6), in the judicial circuit in which the petitioner resides after proceedings ; and in paragraph (9), by striking the first sentence and inserting the following: Except as otherwise provided in this section, judicial review of a determination respecting a removal order shall be available only in judicial review of a final order under this section. ; in subsection (f)— in paragraph (1), by striking or restrain the operation of ; and in paragraph (2), by adding after all administrative and judicial review available to the noncitizen is complete before unless ; and by adding at the end the following: If a noncitizen’s application under section 245B, 245C, 245D, 245E, or 245F is denied, or the approval of such application is revoked, after the exhaustion of administrative appellate review under section 245G(g)(5), the noncitizen may seek review of such decision, in accordance with chapter 7 of title 5, United States Code, in the district court of the United States in which the noncitizen resides. During the period in which a review described in paragraph
(1)is pending— any unexpired grant of voluntary departure under section 240B shall be tolled; and any order of exclusion, deportation, or removal shall automatically be stayed unless the court, in its discretion, orders otherwise. A noncitizen may seek judicial review of a denial or revocation of approval of the noncitizen’s application under section 245B, 245C, 245D, 245E, or 245F in the appropriate court of appeals of the United States in conjunction with the judicial review of an order of removal, deportation, or exclusion if the validity of the denial or revocation has not been upheld in a prior judicial proceeding under paragraph (1). Judicial review of a denial or revocation of approval of an application under section 245B, 245C, 245D, 245E, or 245F shall be based upon the administrative record established at the time of the review. The reviewing court may remand a case under this subsection to the Secretary of Homeland Security (referred to in this subsection as the Secretary ) for consideration of additional evidence if the court finds that— the additional evidence is material; and there were reasonable grounds for failure to adduce the additional evidence before the Secretary. Notwithstanding any other provision of law, judicial review of all questions arising from a denial or revocation of approval of an application under section 245B, 245C, 245D, 245E, or 245F shall be governed by the standard of review set forth in section 706 of title 5, United States Code. Notwithstanding any other provision of law, the district courts of the United States shall have jurisdiction over any cause or claim arising from a pattern or practice of the Secretary in the operation or implementation of section 245B, 245C, 245D, 245E, 245F, or 245G that is arbitrary, capricious, or otherwise contrary to law. The district courts of the United States may order any appropriate relief in a cause or claim described in subparagraph
(A)without regard to exhaustion, ripeness, or other standing requirements (other than constitutionally mandated requirements), if the court determines that— the resolution of such cause or claim will serve judicial and administrative efficiency; or a remedy would otherwise not be reasonably available or practicable. Except as provided in paragraph (5), any claim that section 245B, 245C, 245D, 245E, 245F, or 245G, or any regulation, written policy, written directive, or issued or unwritten policy or practice initiated by or under the authority of the Secretary to implement such sections, violates the Constitution of the United States or is otherwise in violation of law is available in an action instituted in a district court of the United States in accordance with the procedures prescribed in this paragraph. Except as provided in subparagraph (C), nothing in subparagraph
(A)may be construed to preclude an applicant under section 245B, 245C, 245D, 245E, or 245F from asserting that an action taken or a decision made by the Secretary with respect to the applicant’s status was contrary to law. Any claim described in subparagraph
(A)that is brought as a class action shall be brought in conformity with— the Class Action Fairness Act of 2005 ( Public Law 109–2 ; 119 Stat. 4); and the Federal Rules of Civil Procedure. The final disposition of any claim brought under subparagraph
(A)shall be preclusive of any such claim asserted by the same individual in a subsequent proceeding under this subsection. No claim brought under this paragraph shall require the plaintiff to exhaust administrative remedies under section 245G(g)(5). Nothing in this paragraph may be construed to prevent the court from staying proceedings under this paragraph to permit the Secretary to evaluate an allegation of an unwritten policy or practice or to take corrective action. In determining whether to issue such a stay, the court shall take into account any harm the stay may cause to the claimant. .
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- Pub. L. 109-2
- 119 Stat. 4
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