Immigration · Primary-source case analysis

Foti: Review of a Discretionary Denial Traveled With Review of the Final Deportation Order

By Aneeta Mishra and Timothy Chan

Published August 19, 2026

Foti v. INS addressed whether review of the Attorney General’s discretionary denial of suspension belonged initially in the court of appeals as part of review of the final deportation order or in a separate district-court action.

The challenged ruling occurred in the deportation proceeding

The immigration adjudicator decided both deportability and the request for discretionary suspension as components of the proceeding producing the final order.

Congress designed a single direct-review route

The Court read the 1961 review provision to place both issues initially in the court of appeals and to avoid duplicative district- and appellate-court litigation.

Final-order review included more than the removability finding

The statutory phrase encompassed qualifying determinations made during and incident to the administrative proceeding, including the suspension denial at issue.

Modern jurisdiction uses a different statute

Foti interpreted former section 106 and former suspension relief. Current analysis must use 8 U.S.C. section 1252, the present relief provision, exhaustion rules, review bars, and the 30-day petition deadline.

Key takeaways

• Identify whether the challenged decision is part of the final removal order.
• Use the current petition-for-review route and deadline.
• Separate preserved legal questions from barred discretionary judgments.
• Avoid parallel filings unless a distinct statutory or habeas basis exists.