The cases cited by plaintiff in support of this argument, namely Ling Yang v. Mukasey, 514 F.3d 278 (2d Cir. 2008), and Qin Zhang v. Sessions, No. 16-CV-6619, 2018 WL 6040089 (E.D.N.Y. Nov. 8, 2018), are inapposite. Both of those cases involved situations where the agency rested its denial on both statutory and discretionary grounds.
Indeed, cases coming before this court frequently present alternative findings of ineligibility for adjustment of status and denial of such relief as a matter of discretion. See, e.g., Guo Qi Wang v. Holder, 583 F.3d 86, 89-90 (2d Cir. 2009); Ling Yang v. Mukasey, 514 F.3d 278, 279 (2d Cir. 2008). Moreover, the Supreme Court recently stated that if an IJ "decides that denial [of adjustment of status] would be appropriate regardless of eligibility, the judge need not address eligibility at all."
Importantly, however, "we retain jurisdiction over denials of adjustment of status applications even[,] when the denial is based in part on a matter of discretion[,] when the discretionary determination is based on the same grounds as the eligibility determination." Yang v. Mukasey, 514 F.3d 278, 279 (2d Cir. 2008) (per curiam); see also Hernandez v. Ashcroft, 345 F.3d 824, 845-47 (9th Cir. 2003). Any other rule would allow the agency to insulate its non-discretionary statutory eligibility analysis from judicial review simply by labeling the decision discretionary.
Suastegui Vega relies on the Second Circuit's decision in Yang v. Mukasey, which he cites for the proposition that a Court of Appeals "retain[s] jurisdiction over denials of status applications even when the denial is based on part on a matter of discretion when the discretionary determination is based on the same grounds as the eligibility determination." 514 F.3d 278, 279 (2d Cir. 2008) (per curiam). Suastegui Vega argues that this is such a case—that is, that USCIS decided he was legally ineligible for adjustment of status, and its decision was legally incorrect.
Accordingly, we review whether Taman's false statements of U.S. citizenship before federal and state officials rendered him ineligible for adjustment of status. See Ling Yang v. Mukasey, 514 F.3d 278, 279 (2d Cir. 2008) (holding that we retain jurisdiction where "the discretionary determination is based on the same grounds as the eligibility determination"). To qualify for adjustment of status, Taman had to prove that he (1) had been inspected and admitted; (2) is admissible; (3) has an immediately available immigrant visa number; and (4) warrants a favorable exercise of discretion.
In these circumstances, § 1252(a)(2)(B)(i) bars judicial review of both the statutory and discretionary determinations. SeeLing Yang v. Mukasey, 514 F.3d 278, 279-80 (2d Cir. 2008). That Lin's complaint is nominally brought under the APA and the DJA compels no different result.
That would support a discretionary denial of adjustment of status. The Second Circuit has held it retains jurisdiction over a denial of an adjustment of status application asserting both legal ineligibility and the exercise of discretion when the discretionary determination is based on the same grounds as the eligibility determination. Ling Yang v. Mukasey, 514 F.3d 278, 279-80 (2d Cir. 2008). Here, there are reasons to conclude the USCIS based its decision on Marrakchi's failure to depart within the time he agreed to.
Under the Immigration and Nationality Act ("INA"), we lack jurisdiction to review a discretionary denial of relief by an IJ or the BIA, such as the denial of an application for adjustment of status under section 245(a) of the INA, 8 U.S.C § 1255(a). See 8 U.S.C. § 1252(a)(2)(B)(i); Ling Yang v. Mukasey, 514 F.3d 278, 280 (2d Cir. 2008). However, pursuant to the REAL ID Act, we retain jurisdiction to review constitutional claims and questions of law.
In addition, contrary to Hossain's arguments, we lack jurisdiction to review the IJ's discretionary denial of his application for adjustment of status. See 8 U.S.C. § 1252(a)(2)(B)(i); Ling Yang v. Mukasey, 514 F.3d 278, 280 (2d Cir. 2008). B. Asylum, Withholding of Removal, and CAT relief
In addition, contrary to Hossain's arguments, we lack jurisdiction to review the IJ's discretionary denial of his application for adjustment of status. See 8 U.S.C. § 1252(a)(2)(B)(I); Ling Yang v. Mukasey, 514 F.3d 278, 280 (2d Cir. 2008). B. Asylum, Withholding of Removal, and CAT relief