Jilin Pharm USA Inc v. Secretary Homeland

Citations: 447 F.3d 196; 2006 WL 1236830Docket: 05-2788

Court: Court of Appeals for the Third Circuit; May 10, 2006; Federal Appellate Court

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The United States Court of Appeals for the Third Circuit issued a precedential decision on May 10, 2006, in the case of Jilin Pharmaceutical USA, Inc. and Wei Zhao vs. Michael Chertoff and others, concerning the appeal from the District Court for the District of New Jersey. The appellants challenged the dismissal of their complaint regarding the revocation of a previously granted visa, claiming that the district court had jurisdiction to review the administrative decision. However, the court referenced its earlier ruling in Soltane v. United States Department of Justice, which established that while the statute governing visa denial (8 U.S.C. § 1153(b)(4)) does not strip district courts of jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii), the statutes governing visa revocation confer different levels of discretion upon the Secretary of Homeland Security. The court concluded that it lacked jurisdiction to review the discretionary decision made by the Secretary regarding the visa revocation. Additionally, the court affirmed the lower court's lack of jurisdiction over the appellants' Fifth Amendment due process claims.

Wei Zhao, a native of China, was transferred from Jilin Ltd. to serve as president of its wholly owned U.S. subsidiary, Jilin USA, following an employment-based non-immigrant petition filed in 1996 that classified him as an L-1A non-immigrant intracompany transferee. The petition was approved by the INS, extending his status twice until 1999 when Jilin USA filed a Form I-140 petition to classify Zhao as an E-1-3 permanent resident. This petition was approved, and Zhao applied for adjustment of status with his family in 1999. However, in 2000, the INS notified them of its intention to revoke the Form I-140 approval, questioning Zhao's employment in an executive capacity. The revocation was finalized in 2001 due to insufficient evidence of his managerial role. Jilin USA appealed, but the Office of Administrative Appeals upheld the revocation in 2003 and denied a motion to reopen in 2004. Subsequently, Jilin USA and Zhao filed a complaint in the District Court for the District of New Jersey, challenging the revocation. The court dismissed the complaint for lack of subject matter jurisdiction, citing that it could not review visa revocations under the discretion of the Attorney General, as established by precedent in the Seventh Circuit. Following this dismissal, Jilin USA and Zhao moved for reargument, claiming the court had erred in its legal interpretation.

The motion primarily referenced the Ninth Circuit's decision in ANA International, Inc. v. Way, which established that 8 U.S.C. § 1252(a)(2)(B)(ii) does not preclude judicial review of revocation decisions under 8 U.S.C. § 1155. However, the District Court rejected this reasoning, favoring the El-Khader case, leading to an appeal. Under 28 U.S.C. § 1291, the appellate court has jurisdiction over the final judgment and reviews the denial of the motion for reargument for abuse of discretion, focusing on correcting manifest errors or presenting new evidence. The court applies plenary review to the district court's subject matter jurisdiction decisions, treating all well-pleaded allegations as true.

The analysis begins with 8 U.S.C. § 1252(a)(2)(B)(ii), which limits judicial review of decisions made by the Attorney General or Secretary of Homeland Security to those explicitly specified by Congress. The court compares the current statutory language with that in the Soltane case, where the government argued that specific provisions limited jurisdiction. The court previously determined that the language did not confer unreviewable discretion to the Attorney General, asserting that statutory discretion must be explicitly outlined to invoke the jurisdictional bar of § 1252(a)(2)(B)(ii). It warns that vague statutory language is insufficient to establish such discretion and that broad interpretations of "discretion" could effectively eliminate judicial oversight of the Attorney General's actions.

The discretion-vesting statute for visa revocation is outlined in 8 U.S.C. § 1155, which allows the Secretary of Homeland Security to revoke any approved petition for "good and sufficient cause" at any time. This statute provides significantly more discretion to the Secretary compared to previous provisions, raising the question of whether 8 U.S.C. § 1252(a)(2)(B)(ii) limits judicial review of decisions made under § 1155. 

The Court of Appeals for the Seventh Circuit addressed this issue in El-Khader, determining that the language of § 1155 indicates a discretionary decision-making process by the Attorney General. Notably, the court emphasized that the removal of notice requirements streamlined the revocation process for petitions approved before, on, or after December 17, 2004.

Conversely, a split panel of the Ninth Circuit in ANA International took a different stance, emphasizing a strong presumption in favor of judicial review. This court interpreted § 1252(a)(2)(B) narrowly, asserting that only acts of pure discretion are immune from review. It acknowledged that while § 1155 grants some discretionary authority, the phrase "good and sufficient cause" imposes a legal standard that constrains the Attorney General's discretion. Additionally, the court highlighted that the definition of "managerial capacity" under 8 U.S.C. § 1101(a)(44) further restricts the Attorney General's authority, as it requires objective legal standards rather than subjective judgment to determine what constitutes a manager.

The court determined that the language "good and sufficient cause" in conjunction with the definition of "manager" at 8 U.S.C. § 1101(a)(44) does not eliminate judicial review of the Attorney General's decisions under 8 U.S.C. § 1155, despite 8 U.S.C. § 1252(a)(2)(B)(ii) suggesting limited review of discretionary decisions. Judge Tallman, dissenting, argued that a straightforward interpretation of the statutes indicates that the Attorney General's decisions regarding visa revocation are discretionary, as Section 1155 does not impose strict limitations but allows the Attorney General to assess what constitutes "good and sufficient cause." 

In previous cases, such as Urena-Tavarez v. Ashcroft, the court established that 8 U.S.C. § 1252(a)(2)(B)(ii) prevents review of the Attorney General's discretionary decisions, highlighting that the language in 8 U.S.C. § 1186a(c)(4) explicitly grants the Attorney General discretion, regardless of statutory requirements. The appellants contended that the phrase "good and sufficient cause" in Section 1155 represents a reviewable standard, implying that the Attorney General's discretion is limited. However, the court noted that the language of Section 1155 clearly indicates that revocation decisions fall solely within the administrative discretion of the Attorney General, thus upholding the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)(ii).

8 U.S.C. § 1155 empowers the Secretary of Homeland Security to revoke approval of a petition, indicating administrative discretion as supported by Urena-Tavarez. The term "may" implies discretion, and the ability to revoke "at any time" enhances this discretion, particularly following Congress’s removal of a notice requirement. The statute allows for revocation when the Secretary "deems" there to be good and sufficient cause, which means that the Secretary has the sole authority to determine what constitutes such cause. Appellants argue that the definitions of "manager" and "executive" in 8 U.S.C. § 1101(a)(44)(A)(B) should be considered as non-discretionary reviewable factors, but this interpretation is rejected. The phrase "for what [the Secretary] deems to be good and sufficient cause" is seen as highly subjective, providing no clear legal standard for judicial review. Consequently, the Secretary's decision to revoke a visa petition under this statute is deemed discretionary and not subject to judicial oversight, leading the District Court to correctly conclude it lacked jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii). 

Lastly, the Appellants claimed that the revocation violated their Fifth Amendment due process rights and alleged discrimination against smaller companies, asserting jurisdiction under 28 U.S.C. § 1331, 28 U.S.C. § 2201, and 5 U.S.C. § 702.

The District Court concluded that the Appellants' arguments, including their constitutional claims, lacked merit because federal courts cannot assert jurisdiction outside the established statutory framework. The court emphasized that without jurisdiction under the relevant statutes, it cannot assert jurisdiction at all. Specifically, the court noted that reviewing constitutional claims would necessitate examining the Attorney General’s discretionary decisions under 8 U.S.C. § 1155, which the court is not permitted to do. Jurisdiction granted by 28 U.S.C. § 1331, 2201, and 5 U.S.C. § 702 for constitutional questions is precluded by 8 U.S.C. § 1252(a)(2)(B), which explicitly states that no court may review decisions made at the discretion of the Attorney General or the Secretary of Homeland Security. Following the enactment of the REAL ID Act of 2005, federal courts remain without jurisdiction to review constitutional claims related to visa petition revocations. The District Court correctly determined that the Attorney General's decision to revoke a visa petition is a discretionary act shielded from court review under 8 U.S.C. § 1252(a)(2)(B)(ii). Consequently, the court acted properly in denying the Appellants’ motion for reargument, and the judgment of the District Court will be affirmed.