Robledo Response to Motion to Dismiss - Surviving Spouses ...

“immediate relative” classification to the jurisdictional limitations set forth in § 1252(a)(2)(B).
See Allison Engine Co. v. United States ex rel. Sanders, 128 S. Ct. 2123, 2129-130 (2008)
(“[W]hen Congress includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion”) (internal quotation marks and citation omitted).
The Fourth Circuit’s recent decision in Igwebuike is instructive. There, petitioner sought
judicial review in this Court of the District Director’s determination that he was not legally
eligible for consideration for an adjustment of status. Igwebuike, 230 Fed. Appx. at 281. The
Government argued that this Court lacked jurisdiction because the decision to adjust an alien’s
status is committed to the discretion of the Attorney General under § 1255 and the IIRIRA strips
the courts of jurisdiction over discretionary decisions. 230 Fed. Appx. at 281. This Court
dismissed for lack of subject matter jurisdiction and Igwebuike appealed. The Fourth Circuit
reversed. The appellate court acknowledged that it lacked jurisdiction to review a denial of
status of adjustment, but distinguished Igwebuike’s challenge:
Igwebuike, however, does not challenge a discretionary decision
by the Director. Indeed, the Director did not have the opportunity
to exercise discretion because he determined that Igwebuike was
an inadmissible alien under § 1182(a)(2)(C)(i) and therefore
statutorily ineligible for discretionary relief. See § 1255
(permitting the Attorney General to adjust the status of aliens who
are “admissible to the United States”). Igwebuike only seeks
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