Hani El-Khader v. Donald Monica, Interim District Director, Bureau of Citizenship and Immigration Services
Docket: 03-2178
Court: Court of Appeals for the Seventh Circuit; April 29, 2004; Federal Appellate Court
On November 1, 2002, the Immigration and Naturalization Service (INS) revoked an approved visa petition for Hani El-Khader, claiming his former marriage was a "sham" under 8 U.S.C. § 1154(c). El-Khader filed a complaint in district court for judicial review, but the court dismissed it, citing lack of subject matter jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii). El-Khader appealed the dismissal. The Seventh Circuit affirmed the district court's ruling, determining that § 1252(a)(2)(B)(ii) applies broadly beyond discretionary decisions in removal proceedings and holds that the revocation of a visa petition under 8 U.S.C. § 1155 is discretionary and thus not subject to judicial review.
El-Khader, a Jordanian citizen, entered the U.S. on a student visa in 1988 and later sought political asylum, which was denied. During ongoing deportation proceedings, he obtained a non-immigrant worker visa. He married U.S. citizen Nadia Muna in 1997, but they divorced in 1998, leading to the denial of his application for adjustment of status. Concurrently, a new employer, Ameritrust Mortgage Corporation, filed an Immigrant Petition for Alien Worker classification for him, which the INS approved in August 1998. El-Khader subsequently applied for permanent resident status based on this approved petition.
The INS initiated an investigation into El-Khader's eligibility for a permanent resident visa, uncovering issues with his marriage to Nadia Muna, including lack of cohabitation, consummation, and joint assets. The INS determined the marriage was a sham intended to evade immigration laws, citing 8 U.S.C. § 1154(c), and on December 5, 2001, notified Ameritrust of its intent to revoke El-Khader's approved Immigrant Petition for Alien Worker. El-Khader and Ameritrust contested this decision on May 14, 2002, asserting the marriage was legitimate and properly arranged under Islamic customs. Despite presenting affidavits supporting his claim (excluding one from Muna), the INS revoked the visa on November 1, 2002, stating El-Khader did not demonstrate a genuine commitment to the marriage. This revocation also led to the denial of his adjustment of status application, as there was no valid basis after the visa petition was revoked, supported by 8 U.S.C. § 1155.
El-Khader filed a Third Amended Complaint that same day in district court, seeking to reverse the INS's revocation, claiming it lacked substantial evidence and was arbitrary. The INS moved to dismiss the complaint, arguing the district court lacked jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii) and that El-Khader failed to exhaust administrative remedies. On April 1, 2003, the district court granted the INS's motion to dismiss, concluding it lacked subject matter jurisdiction and that the INS's decision was discretionary. El-Khader subsequently filed a notice of appeal on April 30, 2003, seeking review under the Administrative Procedure Act, 5 U.S.C. § 706.
El-Khader contests the district court's dismissal, arguing that 8 U.S.C. § 1252(a)(2)(B)(ii) pertains exclusively to removal and deportation decisions, and claims that revoking a visa petition based on marriage fraud is not discretionary. He maintains that the district court had jurisdiction as he had exhausted all mandatory administrative remedies. The appellate court, under 28 U.S.C. § 1291, reviews the dismissal de novo for subject matter jurisdiction.
The district court dismissed El-Khader's complaint based on its interpretation of § 1252(a)(2)(B)(ii), which states that no court can review any discretionary action by the Attorney General, except for asylum grants. El-Khader's argument that § 1252(a)(2)(B)(ii) is limited to removal contexts was addressed in a prior case, Samirah v. O'Connell, where the court ruled that the section applies broadly to discretionary decisions made by the Attorney General under various provisions of Title 8. This ruling confirmed that § 1252(a)(2)(B)(ii) prohibits judicial review of discretionary decisions beyond just removal orders, encompassing actions like the revocation of advance parole.
Samirah further clarified that the title of section 1252, which mentions "Judicial review of orders of removal," does not restrict its application solely to removal proceedings. The court found no significant distinction between the Attorney General's authority to revoke advance parole and the authority to revoke a visa petition under 8 U.S.C. § 1155, reinforcing that both fall under the scope of § 1252(a)(2)(B)(ii).
El-Khader's counsel acknowledged the binding precedent of Samirah regarding the applicability of section 1252 beyond removal and deportation contexts. However, counsel argued that neither Samirah nor any other Court of Appeals ruling has addressed whether the effective date provision of 8 U.S.C. § 1252(a) restricts the statute's applicability to removal and deportation. This provision, from the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), states that amendments shall apply to all final orders of deportation or removal and motions to reopen filed after the Act's enactment. El-Khader contended that this language confines section 1252 to removal or deportation proceedings, but the court found this argument unpersuasive.
El-Khader failed to raise this argument in the district court, resulting in a waiver on appeal, as established by Schoenfeld v. Apfel. Furthermore, the court noted that § 306(c)(1) lacks any exclusionary language limiting § 1252(a) to deportation and removal, rendering El-Khader's effective-date argument meritless. The court confirmed that Samirah governs the scope of § 1252(a)(2)(B)(ii), concluding that judicial review of a visa petition revocation under 8 U.S.C. § 1155 is precluded if the decision is discretionary.
Addressing whether the INS's revocation decision was discretionary, the court cited § 1155, which allows the Attorney General to revoke any approved petition for "good and sufficient cause." The statute's language, particularly the use of "may" and "at any time," indicates a discretionary nature, as no strict standards govern the determination of "good and sufficient cause." The court found that the discretionary nature of the decision was evident from the statute's plain language and the subjective nature of the determination involved.
El-Khader contends that the broad language of § 1155 is constrained by INS precedent, which asserts that revocation of a visa petition is appropriate only if the petition should not have been approved initially, arguing this is not a discretionary matter. He cites statutory language from 8 U.S.C. § 1154(c), which prohibits approval of petitions if the petitioner has committed marriage fraud. El-Khader claims the INS's decision to revoke his visa was not discretionary, as it was based on his alleged marriage fraud for immigration benefits. However, the court finds his argument mistaken, acknowledging that while INS regulations require "substantial and probative" evidence of marriage fraud to deny a petition, these do not apply when the INS, under the Attorney General's authority, exercises discretion to revoke a visa under § 1155. The court concludes that the Attorney General’s decision to revoke a visa based on discovered marriage fraud is discretionary and not mandated by statute or regulation. Consequently, the court agrees with the district court's ruling that it lacks jurisdiction to review such discretionary revocations, affirming the decision.
Additionally, it notes that the functions of the Immigration and Naturalization Service were transferred to the Bureau of Citizenship and Immigration Services after March 1, 2003.
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act provides for visas for skilled and professional workers. El-Khader previously filed three complaints, which are not relevant to the current appeal. The court aligned its decision with other circuit courts, confirming that the Attorney General's revocation decisions under § 1155 are discretionary and that there are no specific factual standards for review. The court emphasized that 8 U.S.C. § 1155 grants the Attorney General broad discretion to revoke petitions. Consequently, § 1252(a)(2)(B)(ii) denies district courts jurisdiction to review discretionary decisions by the Attorney General, rendering El-Khader's arguments regarding judicial review of the INS's revocation decision moot. The district court dismissed El-Khader's complaint based on a lack of subject matter jurisdiction, interpreting 8 U.S.C. § 1252(a)(2)(B)(ii) as applicable to discretionary decisions made by the Attorney General. El-Khader contended that this section only pertains to removal and deportation but was countered by a recent ruling in Samirah v. O'Connell, which clarified the scope of § 1252(a)(2)(B)(ii) regarding visa revocation.
The district court's ruling requiring the government to permit an alien's return to the U.S. was reversed due to a lack of subject matter jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii). This statute broadly bars court review of discretionary decisions made by the Attorney General under Title 8, with the sole exception being discretionary asylum grants under § 1158(a). The court clarified that the language of § 1252(a)(2)(B)(ii) is not confined to removal proceedings, rejecting arguments that its heading suggests otherwise. The case of Samirah, which addressed the Attorney General's discretion to revoke advance parole, was determined to have comparable application to the revocation of visa petitions under § 1155. During oral arguments, the appellant's counsel acknowledged that Samirah serves as binding precedent, yet contended that no appellate decision has clarified whether the effective date provision of § 1252(a) restricts its applicability to removal and deportation cases. This effective date, outlined in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, was argued by the appellant to limit the scope of § 1252. However, the court found no persuasive argument supporting this limitation, particularly since the issue had not been raised in the district court, leading to a waiver on appeal. The court concluded that the language of the effective date provision does not exclude applicability of § 1252(a) beyond deportation and removal proceedings, affirming that Samirah controls the interpretation of § 1252(a)(2)(B)(ii).
Judicial review of visa petition revocation under 8 U.S.C. § 1155 is precluded if the decision is discretionary. The INS's revocation of a visa petition granted to El-Khader is deemed discretionary based on the statute's language, which employs the permissive "may" and indicates that decisions can be made "at any time." There is no established case law directly addressing the discretion involved in § 1155 decisions. El-Khader argues that the revocation was not discretionary since it was based on a finding of marriage fraud, which he contends mandates denial under § 1154(c). However, this argument is dismissed, as existing regulations concerning evidence of fraud do not restrict the INS's discretionary authority to revoke a visa once granted. The Attorney General's discretion under § 1155 remains intact, even when fraud is established, as there are no statutory requirements compelling revocation in such cases. Thus, the decision to revoke remains within the Attorney General's discretion, affirming the absence of judicial review.
The court rejects the plaintiff's claim that the INS's revocation of a visa petition is not a discretionary action when based on alleged marriage fraud for immigration purposes. It affirms that the decision to revoke a visa petition under 8 U.S.C. § 1155 is at the discretion of the Attorney General, and thus, judicial review of such decisions is barred by 8 U.S.C. § 1252(a)(2)(B)(ii). The district court correctly determined it lacked jurisdiction to review this discretionary decision. The document notes that the Immigration and Naturalization Service (INS) ceased to exist as of March 1, 2003, with its visa adjudication functions transferred to the Bureau of Citizenship and Immigration Services (BCIS). Relevant statutes regarding the approval of petitions and the lack of court jurisdiction over the Attorney General's discretionary actions are cited. The court also aligns its decision with similar rulings from other circuits, emphasizing that the Attorney General's revocation authority is clear and discretionary, with no established factual standards for judicial review. The court did not need to consider the INS's argument regarding the plaintiff's failure to exhaust administrative remedies, as jurisdiction was already denied based on the discretionary nature of the Attorney General's decision.
