Court: Court of Appeals for the Third Circuit; May 10, 2006; Federal Appellate Court
The case involves an appeal by Jilin Pharmaceutical USA, Inc. (Jilin USA) and its president Wei Zhao against the United States Department of Homeland Security and other federal officials regarding the revocation of Zhao's previously granted visa. The United States Court of Appeals for the Third Circuit addresses the distinction between visa denial and revocation, referencing the Soltane v. United States Department of Justice case, which established that jurisdiction exists for visa denials but not for discretionary revocations. The court affirms the District Court's ruling that it lacks jurisdiction to review the discretionary revocation of Zhao's visa and also dismisses the Appellants' Fifth Amendment due process claims.
Zhao, a Chinese national, was transferred to the U.S. in 1996 as the president of Jilin USA after the company’s incorporation. His initial employment-based non-immigrant petition was approved, granting him L-1A non-immigrant status, which was extended twice. In 1998, Jilin USA filed a petition for Zhao to obtain permanent resident status under the E-1-3 visa category, which was approved. However, in 2000, the Immigration and Naturalization Service (INS) notified them of its intent to revoke the visa, ultimately citing insufficient evidence that Zhao was employed in an executive or managerial capacity. The INS revoked Zhao's visa in 2001 due to vague job descriptions provided by Jilin USA and Zhao.
Jilin USA appealed to the Office of Administrative Appeals (OAA) regarding the revocation of Zhao's visa, but on January 30, 2003, the OAA affirmed the revocation, citing insufficient evidence of Zhao's managerial or executive capacity. The OAA later denied a motion to reopen on August 24, 2004. Subsequently, Jilin USA and Zhao filed a complaint in the U.S. District Court for New Jersey on November 15, 2004, challenging the revocation as legally incorrect. The District Court, concerned about jurisdiction, requested briefs from both parties detailing the statutory basis for federal jurisdiction over the visa revocation.
On February 25, 2005, the District Court dismissed the complaint for lack of subject matter jurisdiction, referencing a precedent from the Seventh Circuit (El-Khader v. Monica) that indicated judicial review of visa revocation is precluded by 8 U.S.C. § 1252(a)(2)(B)(ii). Jilin USA and Zhao subsequently filed a motion for reargument on March 7, 2005, arguing that the controlling law had changed following the Ninth Circuit's decision in ANA International, Inc. v. Way, which rejected the Seventh Circuit's interpretation. The District Court, however, denied the motion on May 11, 2005, favoring the El-Khader analysis.
The jurisdictional analysis begins with 8 U.S.C. § 1252(a)(2)(B)(ii), which states that no court shall have jurisdiction to review actions by the Attorney General or Secretary of Homeland Security that are within their discretion, except for certain relief under section 1158(a). The case compares statutes governing different visa situations, emphasizing the need to examine the specific authority granted in each statutory context to determine judicial review eligibility.
The language of 1252(a)(2)(B)(ii) does not provide sufficient specificity to grant unreviewable discretion to the Attorney General, as discretion must be clearly defined by statute. A mere ambiguous statutory language is insufficient to categorize an action as discretionary under this provision. While agencies may interpret statutes under Chevron, this does not eliminate judicial review of those interpretations. The discretion allowed by Congress in 1252(a)(2)(B)(ii) should not be interpreted so broadly that it encompasses all actions by the Attorney General.
The statute governing visa revocation, 8 U.S.C. 1155, states that the Secretary of Homeland Security may revoke petition approvals for "good and sufficient cause," indicating a significant difference in the specificity of discretion compared to the earlier case discussed. The central question for this appeal is whether 1252(a)(2)(B)(ii) restricts court jurisdiction over decisions made under 1155.
Previous court decisions, including the Seventh Circuit’s El-Khader, recognized the discretionary nature of 1155. In contrast, the Ninth Circuit’s ANA International found that the phrase "good and sufficient cause" establishes a legal standard that limits the Attorney General's discretion, suggesting that not all discretionary actions fall outside judicial review. The Ninth Circuit also noted that the definition of 'managerial capacity' under 8 U.S.C. 1101(a)(44) imposes additional restrictions on the Attorney General's discretion, as it provides an objective legal standard rather than a purely discretionary one.
The court determined that the "good and sufficient cause" language in conjunction with the definition of "manager" at 1101(a)(44) does not remove judicial jurisdiction to review the Attorney General's decisions under 1155, despite the provisions of 1252(a)(2)(B)(ii). Judge Tallman's dissent challenged the majority's interpretation, arguing that a reasonable reading of 1155 alongside 1252(a)(2)(B)(ii) suggests that the Attorney General's decisions regarding visa revocations are discretionary. He pointed out that the language "may, at any time, for what he deems to be" implies a discretionary decision-making process that should be reviewable. The court referenced previous case law, notably Urena-Tavarez v. Ashcroft, which established that the discretion granted to the Attorney General under certain statutes, even when legal requirements exist, still allows for unreviewable discretion, particularly when the language indicates a permissive rather than mandatory action.
The appellants contended that the phrase "good and sufficient cause" within 1155 is a reviewable statutory standard that limits the Attorney General's discretion. They argued that the revocation was based on specific statutory criteria for managerial roles, thus allowing for judicial review. However, the court noted that the language of 1155 clearly indicates that revocations are within the sole discretion of the Secretary of Homeland Security or the Attorney General, supporting the conclusion that such decisions are not subject to judicial review under 1252(a)(2)(B)(ii).
Approval under 8 U.S.C. § 1155 can be revoked "at any time," indicating significant discretion granted to the Secretary of Homeland Security. The elimination of a prior notice requirement reflects Congress's intent to enhance this discretion. Revocation is permissible when the Secretary "deems" there to be good and sufficient cause, which emphasizes the Secretary's subjective judgment rather than an objective standard. The phrase "for what [the Secretary] deems to be good and sufficient cause" lacks a meaningful legal standard, making it immune to judicial review. Consequently, the decision to revoke a visa petition rests solely with the Secretary, and the District Court correctly ruled it lacked jurisdiction to review such administrative decisions under 8 U.S.C. § 1252(a)(2)(B)(ii).
Appellants claimed their Fifth Amendment due process rights were violated by the revocation, asserting reliance on the approval for over two years, discrimination against small businesses, and enforcement of trade policy through immigration laws. They believed jurisdiction existed under 28 U.S.C. §§ 1331, 2201, and 5 U.S.C. § 702. However, since assessing these constitutional claims necessitates reviewing the Attorney General's discretionary decision under § 1155, jurisdiction is precluded by 8 U.S.C. § 1252(a)(2)(B). The District Court's dismissal of the constitutional claims for lack of jurisdiction was thus affirmed, and the court acted within its rights in denying the motion for reargument.
The judgment of the District Court is affirmed. The Immigration and Naturalization Service (INS) ceased to exist as an independent agency on March 1, 2003, with its functions transferred to the Department of Homeland Security under the Homeland Security Act of 2002. On July 16, 2003, the INS denied Zhao's Form I-485 application due to the absence of an approved immigrant petition. Following recent congressional amendments and a relevant Second Circuit decision, the Court ordered briefings to evaluate if 8 U.S.C. § 1252(a)(2)(B) barred judicial review of the Attorney General’s decision to revoke an immigrant visa petition approval after the beneficiary was in the U.S. Both parties submitted timely responses.
Under 28 U.S.C. § 1291, the Court has jurisdiction to hear the appeal regarding the denial of a motion for reargument, assessing the District Court’s denial for abuse of discretion. A motion for reconsideration aims to correct significant legal or factual errors or introduce newly discovered evidence. The Court exercises plenary review over subject matter jurisdiction determinations, accepting all well-pleaded allegations as true and reviewing them favorably towards the plaintiff. Jurisdiction limitations established by the REAL ID Act of 2005 apply to all cases pending in court from the enactment date, regardless of whether the decision was made in removal proceedings.
Before December 2004, the Attorney General held the authority to revoke petition approvals; however, the Intelligence Reform and Terrorism Prevention Act of 2004 transferred this authority to the Secretary of Homeland Security and removed the notice requirement for revocation. These changes apply to revocations made before, on, or after December 17, 2004. The Court also dismissed the argument that the broad language of 8 U.S.C. § 1155 could be constrained by prior INS precedent.
The court ruled that INS regulations do not limit the Attorney General's discretion when revoking a visa petition under § 1155 after it has been granted. Under § 1186a(c)(4), the Attorney General may remove the conditional basis of an alien's permanent resident status if the alien meets one of three specified waiver qualifications, with the authority to determine the credibility and weight of evidence resting solely with the Attorney General. The text references a critique of the Ninth Circuit's reasoning, which suggests that Congress's definitions of classifications could nullify judicial immunity. Appellants argue that this interpretation allows for arbitrary approvals and revocations of petitions without judicial oversight. The court acknowledges the inequity but emphasizes that it is bound by the statutory framework established by Congress, which aims to protect executive discretion from judicial intervention, as reaffirmed in previous Supreme Court rulings. Recent legislative changes have further broadened administrative discretion, eliminating notice requirements under § 1155 and extending § 1252(a)(2)(B)(ii) beyond removal proceedings.
Congress likely aimed to enhance the Secretary of Homeland Security's discretion to revoke petition approvals, despite the unconventional manner of its expression. The District Court determined that the Appellants' arguments, including constitutional claims, lack merit due to the statutory framework that limits federal court jurisdiction. Specifically, 8 U.S.C. § 1252(a)(2)(B) explicitly states that no court has jurisdiction over certain matters, which precludes any jurisdiction in this case. While 28 U.S.C. § 1331 grants district courts original jurisdiction over civil actions under the Constitution and federal laws, and 28 U.S.C. § 2201 allows for declarations of rights, these statutes do not override the jurisdictional limits established by the REAL ID Act of 2005. This Act specifies that even after its enactment, federal courts lack the jurisdiction to review constitutional claims related to visa petition revocations. The jurisdiction stripped by § 1252(a)(2)(B) is only restored when claims are made in a petition for review of a final order of removal under § 1252(a)(2)(D), which applies retroactively only to cases where a final order of removal has been issued. Since this case does not involve a petition for review, nor has a final order of removal been issued, § 1252(a)(2)(D) is inapplicable.
