The Supreme Court heard oral arguments Monday in Patel v. Garland (“the immigration case”) asking whether a federal court can review a decision by an agency within the Department of Justice ruling that a person is ineligible for permanent residency and in Hughes v. Northwestern University (“the fiduciary case”) requesting clarification regarding the fiduciary obligation of sponsors of defined contribution plans.
Th immigration case involves Pankajkumar Patel, a citizen of India who has been living in the US for almost 30 years. Patel is married to Jyotsnaben Patel and they have three children. Under a “forgiveness” clause, Patel submitted an application to trigger a process called “adjustment of status,” which allows immigrants physically present in the US to change their status to that of lawful permanent residents without having to leave the US.
The forgiveness clause was designed by Congress to create a pathway for adjusting the status of those who entered the US without “inspection” if they could show they filed a visa petition or labor certification with the government on or before April 30, 2001, were physically present in the US and would pay a fine of $1,000. Patel applied for adjustment of status based on his current employment under the forgiveness clause because he initially entered the US without inspection.
Congress created a second step to the adjustment of status applications, which requires the applicant to show that they qualify for such adjustment in the exercise of discretion. The adjustment of status process is often used as a defense in deportation proceedings. The Department of Homeland Security (DHS), finding that Patel misrepresented himself as a US citizen in his Georgia driver’s license application, denied him adjustment and began deportation proceedings in 2012. Patel renewed his application for adjustment of status as a defense to these proceedings.
Despite Patel’s testimony that he checked the US citizen box due to a misunderstanding, an immigration judge agreed with DHS’s position and denied adjustment without invoking the second discretionary step. The Board of Immigration Appeals (BIA) upheld the immigration judge’s ruling. The US Court of Appeals for the 11th Circuit refused to review the case stating that 8 USC § 1252(a)(2)(B)(i) bars all judicial review of adjustment of status, except for legal or constitutional questions brought under § 1252(a)(2)(D). Thus, Patel sought review before the Supreme Court.
Interestingly, both the government and Patel agree that the 11th Circuit committed an error by concluding that “all judicial review” is barred and that the statute only bars review of decisions regarding “discretionary relief.” Thus, both the government and Patel agree that their point of contention involves a non-discretionary decision regarding the threshold eligibility requirements of adjustment of status and that the 11th Circuit’s decision be reversed to review that decision. However, in an uncharacteristic move, the 11th Circuit has appointed an attorney to defend its decision that all review—whether discretionary or non-discretionary—is barred.
The government argues that the 11th Circuit’s position that all judicial review is barred is ludicrous and overreaching that it even prevents judicial scrutiny of errors of law. The 11th Circuit responded by resting its argument on Patel’s misrepresentation of his citizenship and pointed that this is a question of fact—not law.
The fiduciary case was brought by April Hughes and other current and former employees (“Hughes”) of Northwestern University (“Northwestern”) under the Employee Retirement Income Security Act of 1973 (“ERISA”). Hughes’s central claim is that Northwestern fell short of its duty of care by including high-fee investment options in the menu of funds in which employees can invest their contributions.
Essentially, Hughes argues that Northwestern hiked up the fees for the participants in the retirement plan by including a large number of options (more than 200) without paying any attention to the level of fees charged by any particular investment fund. Hughes further argues that ERISA imposes a duty to minimize the costs of investments and and points out that the allegations of their complaint are based on a proper understanding of that fiduciary duty.
Northwestern responds that as long as each individual option is independently sound, Hughes cannot claim a breach of fiduciary duty simply because some of the options are less cost-effective than others. Northwestern points out that Hughes and the other participants were free to select other low-fee options from the fund menu.
Additionally, Northwestern argues that Hughes fundamentally misunderstands the standard for pleading a breach of fiduciary duty and that it is insufficient to make a general allegation of imprudence by pointing to actions other fiduciaries have taken. According to Northwestern, Hughes must identify the specific action that a fiduciary could have taken and also show that a prudent fiduciary would have taken a different course of action.
Hughes has requested that the case be remanded to trial court so that the litigation can proceed.