Green v. Napolitano

FILED
United States Court of Appeals
Tenth Circuit

December 21, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

REGINALD GREEN; NJIDEKA
FRANCES ABAJUE,

Plaintiffs-Appellants,

v. No. 10-1156

JANET NAPOLITANO, Secretary of
Homeland Security; DISTRICT
DIRECTOR DENVER DISTRICT
OFFICE OF THE UNITED STATES
CITIZENSHIP AND IMMIGRATION
SERVICES; UNITED STATES
CITIZENSHIP AND IMMIGRATION
SERVICES; IMMIGRATION AND
CUSTOMS ENFORCEMENT,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:09-CV-01105-WYD-MEH)

Submitted on the briefs: *

Olusegun Asekun, The Law Office of Olu Asekun, Arlington, Texas, for
Plaintiffs-Appellants.

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Tony West, Assistant Attorney General, Civil Division, Samuel P. Go, Senior
Litigation Counsel, Flor M. Suarez, Trial Attorney, United States Department of
Justice, Washington, D.C., for Defendants-Appellees.

Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
GORSUCH, Circuit Judge.

TYMKOVICH, Circuit Judge.

In this immigration appeal, we are asked to determine whether a decision

under 8 U.S.C. § 1155 to revoke a petition for immigrant status is discretionary.

If so, the decision is unreviewable in district court, because 8 U.S.C.

§ 1252(a)(2)(B)(ii) strips courts of the jurisdiction to review certain discretionary

decisions. 1 Like the parties, the district court believed that this was a question of

first impression in this circuit; it predicted we would follow those courts that have

concluded a § 1155 revocation is discretionary and hence not subject to judicial

review. In fact, we already have addressed whether a § 1155 revocation is a

discretionary decision, albeit in a slightly different jurisdictional context. In

Hamilton v. Gonzales, 485 F.3d 564, 568 (10th Cir. 2007), we concluded that a

§ 1155 “revocation decision is a discretionary act” for purposes of

1
The pertinent parts of these statutes are set forth below. Unless otherwise
noted, all further statutory references are to the current version of Title 8 of the
United States Code.

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§ 1252(a)(2)(B)(ii) and that, absent a final order of removal, we lacked

jurisdiction to review constitutional and legal questions related to it.

Here, we apply Hamilton to the question of the district court’s jurisdiction.

We conclude that § 1252(a)(2)(B)(ii) strips a district court of jurisdiction to

review a § 1155 revocation. Exercising jurisdiction under 28 U.S.C. § 1291, we

AFFIRM the district court’s judgment dismissing the case for lack of jurisdiction.

I. Background

Reginald Green is a United States citizen married to Njideka Frances

Abajue, a Nigerian citizen. Mr. Green filed a form I-130 Petition for Alien

Relative with the United States Citizenship and Immigration Services (USCIS) on

behalf of his wife. The petition was approved under § 1154 but later revoked

under § 1155, after Ms. Abajue’s former spouse stated during an immigration

interview that their prior marriage was fraudulent and entered into solely for

immigration purposes. Section 1155 provides: “The Secretary of Homeland

Security may, at any time, for what he deems to be good and sufficient cause,

revoke the approval of any petition approved by him under section 1154 of this

title.”

Mr. Green appealed, but the Board of Immigration Appeals affirmed the

revocation, noting that Ms. Abajue’s former spouse made his statement in

connection with the withdrawal of an I-130 petition he had filed for her benefit.

The Board concluded that, in responding to a notice of intent to revoke his

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petition, Mr. Green failed to submit sufficient evidence that Ms. Abajue’s prior

marriage was bona fide.

Ms. Abajue filed a petition for review of the Board’s decision with this

court, but later withdrew it. Meanwhile, she and Mr. Green filed a complaint in

the district court, claiming the revocation of the I-130 petition violated their

constitutional due process rights because they never had the opportunity to

confront or cross-examine Ms. Abajue’s former spouse. They contend the former

spouse moved out of the house he shared with Ms. Abajue on the day of his

statement and apparently could not be located after the notice of intent to revoke

the I-130 petition was issued.

The government moved to dismiss for lack of jurisdiction based on

§ 1252(a)(2)(B)(ii). Section 1252(a)(2)(B) bars judicial review of certain

discretionary decisions of the Attorney General or the Secretary of Homeland

Security, as follows:

Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, and
except as provided in subparagraph (D), and regardless of whether
the judgment, decision, or action is made in removal proceedings, no
court shall have jurisdiction to review--

(i) any judgment regarding the granting of relief under section
1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or

(ii) any other decision or action of the Attorney General
or the Secretary of Homeland Security the authority for
which is specified under this subchapter [including

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 § 1155] to be in the discretion of the Attorney General
or the Secretary of Homeland Security, other than the
granting of [asylum] relief under section 1158(a) of this
title.

§ 1252(a)(2)(B)(ii) (emphasis added). Concluding that the Secretary’s revocation

under § 1155 was discretionary, the district court held it lacked jurisdiction and

dismissed the complaint. This appeal followed.

II. Discussion

We review the district court’s dismissal for lack of subject matter

jurisdiction de novo. Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir.

2007). The party invoking a court’s jurisdiction bears the burden of establishing

it. Marcus v. Kan. Dep’t of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999). We

also review de novo the district court’s interpretation of § 1155. See United

States v. Manning, 526 F.3d 611, 614 (10th Cir. 2008).

A.

Mr. Green and Ms. Abajue make two arguments in support of federal court

jurisdiction. First, they contend the district court had jurisdiction under 28 U.S.C.

§§ 1331 (federal question) and 2201 (declaratory judgment act), and nothing in

§ 1252(a)(2)(B)(ii) strips federal jurisdiction with respect to a revocation

decision. Second, they contend several exceptions to § 1252’s

jurisdiction-stripping provision apply to them. We disagree on all points.

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 The parties agree the revocation of Mr. Green’s I-130 petition was based on

§ 1155. The statute provides: “The Secretary of Homeland Security may, at any

time, for what he deems to be good and sufficient cause, revoke the approval of

any petition approved by him under section 1154 of this title.” § 1155 (emphasis

added). The question is whether this language, for purposes of the

discretionary-decision bar of § 1252(a)(2)(B)(ii), vests discretionary authority in

the Secretary of Homeland Security, as exercised through a designee, the Acting

District Director of the USCIS.

We answered this question affirmatively in Hamilton v. Gonzales. In that

case, the jurisdictional question arose in the context of a decision to revoke a visa

in the absence of a final order of removal. 485 F.3d at 566. As part of our

analysis, we examined the text of § 1155 and determined that revocation is a

discretionary decision:

A visa revocation decision “may” be made by the Secretary of
Homeland Security (or his designee) “at any time, for what he deems
to be good and sufficient cause.” 8 U.S.C. § 1155. Employing
conditional terms such as “may” and “at any time,” the statute uses
language that is “indicative of administrative discretion.” Jilin
Pharmaceutical USA, Inc. v. Chertoff, 447 F.3d 196, 203 (3d Cir.
2006). See also id. at 204 (by authorizing visa revocation for “good
and sufficient cause,” the statute requires the agency to make a
judgment call); El-Khader v. Monica, 366 F.3d 562, 567 (7th Cir.
2004) (“[T]he determination of whether there exists ‘good and
sufficient cause’ [ ] necessarily is highly subjective, and there exist
no strict standards for making this determination.”).

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Hamilton, 485 F.3d at 567 n.6 (alterations in Hamilton). We went on to conclude

that “since a visa revocation decision is a discretionary act, our jurisdiction to

review it is precluded by the plain meaning of § 1252(a)(2)(B)[ii 2] except when

(1) the decision implicates constitutional or legal questions, and (2) there is a

final order of removal.” Id. at 568.

We are guided here by the controlling statements in Hamilton: a visa

revocation under § 1155 is a discretionary decision subject to the

jurisdiction-stripping provisions of § 1252(a)(2)(B)(ii). In Hamilton, we were

concerned only with our own jurisdiction, not a district court’s, but by its plain

language, § 1252(a)(2)(B)(ii) applies to any federal court. The statute provides

that “no court shall have jurisdiction to review” the specified sort of discretionary

decisions—including a decision pursuant to § 1155. § 1252(a)(2)(B)(ii)

(emphasis added).

This position is shared by most circuit courts. In addition to the Seventh

and Third Circuit cases we relied on in Hamilton, at least three other circuits have

also concluded that § 1155 revocations are discretionary and cannot be reviewed

by district courts. See Sands v. U.S. Dep’t of Homeland Sec., 308 F. App’x 418,

419-20 (11th Cir. 2009) (concluding that § 1252(a)(2)(B)(ii) strips courts of

jurisdiction under 28 U.S.C. § 1361, “the mandamus statute,” to review a § 1155

2
Although Hamilton omitted the reference to clause (ii) of subsection
(a)(2)(B) in this conclusion, it was clearly the clause at issue.

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revocation decision); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009)

(concluding that § 1252(a)(2)(B)(ii) precludes judicial review of § 1155

revocations but noting an exception “to review a predicate legal question that

amounts to a nondiscretionary determination underlying the denial of relief”)

(quotation marks omitted); Ghanem v. Upchurch, 481 F.3d 222, 225 (5th Cir.

2007) (“interpret[ing] the phrase ‘for what he deems to be’ as vesting complete

discretion in the Secretary to determine what constitutes good and sufficient

cause”).

The Second Circuit, in dictum, also appears to agree. See Firstland Int’l,

Inc. v. U.S. INS, 377 F.3d 127, 131-32 (2d Cir. 2004) (stating “the substance of

the decision that there should be a revocation is committed to the discretion of the

Attorney General” by § 1155, but concluding the failure to comply with a former

statutory notice requirement rendered the revocation unauthorized and therefore

one not “specified” to be discretionary). 3

Our view in Hamilton that a visa-revocation decision is discretionary is

unaltered by the Supreme Court’s recent decision in Kucana v. Holder, 130 S. Ct.

3
Only the Ninth Circuit has reached a contrary result, concluding, over a
dissent, that “acts immunized from review by § 1252 are matters of pure
discretion, rather than discretion guided by legal standards.” ANA Int’l, Inc. v.
Way, 393 F.3d 886, 891 (9th Cir. 2004). The court held that § 1155’s “‘good and
sufficient cause’ language . . . constitutes a legal standard the meaning of which
we retain jurisdiction to clarify.” Id. at 893. We rejected that interpretation in
Hamilton.

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827 (2010). In that case, the Supreme Court considered the scope of the Attorney

General’s discretionary authority as applied to a motion to reopen. It held that

§ 1252(a)(2)(B)(ii)’s proscription of judicial review does not apply to the

Attorney General’s denial of a motion to reopen because the discretionary

authority for that decision is specified not in a statute, but in a regulation. See id.

at 831.

The Court considered the argument that vague language in the statute

applying to motions to reopen (“the motion to reopen shall state the new facts that

will be provided at a hearing to be held if the motion is granted,”

§ 1229a(c)(7)(B) (emphasis added)), anticipated that the Attorney General would

exercise discretion in ruling on such motions. The Court rejected this argument,

concluding that it did not meet § 1252(a)(2)(B)(ii)’s requirement that

discretionary authority be sufficiently “specified” by statute. See 130 S. Ct.

at 834 n.10 (construing the language “authority for which is specified under this

subchapter to be in the discretion of the Attorney General”). According to the

Court, the term “‘[s]pecified’ is not synonymous with ‘implied’ or ‘anticipated’”

but “means to name or state explicitly or in detail.” Id. (internal quotation marks

omitted). The Court found “‘that the use of marginally ambiguous language [i.e.,

“if the motion is granted”], without more, is [in]adequate to specify that a

particular action is within the Attorney General’s discretion for the purposes of

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§ 1252(a)(2)(B)(ii).’” Id. (quoting Soltane v. U.S. Dep’t of Justice, 381 F.3d 143,

147 (3d Cir. 2004) (Alito, J.) (alteration omitted)).

Section 1155 does not explicitly use the word “discretion.” But unlike the

provision in Kucana, it does not merely imply or anticipate that the Secretary has

discretion to revoke a § 1154 petition. In contrast to the “marginally ambiguous”

language (“if the motion is granted”) that the Kucana Court found inadequate to

provide judicially-unreviewable discretionary authority, § 1155 authorizes

revocation for what the Secretary “deems to be good and sufficient cause.”

§ 1155. We therefore adhere to our view in Hamilton that the phrase is

synonymous with a specific grant of discretionary authority that is subject to the

jurisdictional bar of § 1252(a)(2)(B)(ii). See Webster’s Third New International

Dictionary, Unabridged 589 (2002) (defining “deem” as “to come to view, judge,

or classify after some reflection”); id. at 392 (defining “discretion” as the “power

of free decision or choice within certain legal bounds; individual judgment”).

In sum, the decision to revoke an immigrant visa under § 1155 is an act of

discretion that Congress has withheld from federal court review.

B.

Mr. Green and Ms. Abajue make several other arguments in an attempt to

circumvent the jurisdictional bar of § 1252(a)(2)(B)(ii). None of these arguments

alter the conclusion that the district court lacks jurisdiction to review the

Secretary’s revocation decision.

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 First, the appellants claim the district court had jurisdiction to review their

constitutional due process claim under § 1252(a)(2)(D), which is listed as the sole

exception to the jurisdictional bar of § 1252(a)(2)(B). This subparagraph

provides:

Nothing in subparagraph [1252(a)(2)](B) or (C), or in any other
provision of this chapter (other than this section) which limits or
eliminates judicial review, shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals in accordance with
this section.

§ 1252(a)(2)(D). But “§ 1252(a)(2)(D) allows judicial review over constitutional

and legal challenges only when raised on appeal of a final order of removal,”

Hamilton, 485 F.3d at 568, and a petition for review of a final removal order must

be filed in the appropriate circuit court, not a district court, see § 1252(b)(2)

(“The petition for review shall be filed with the court of appeals for the judicial

circuit in which the immigration judge completed the proceedings.”). Therefore,

§ 1252(a)(2)(D) does not apply in the district courts. Jilin Pharm. USA, Inc.,

447 F.3d at 206 n.16 (concluding § 1252(a)(2)(D) did not restore jurisdiction to

review constitutional claims in district court that § 1252(a)(2)(B)(ii) had

stripped). Moreover, by itself, “a visa revocation decision is not a final order of

removal,” Hamilton, 485 F.3d at 568, so the parties could not have sought review

in this court and potentially benefitted from § 1252(a)(2)(D).

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 Second, Mr. Green and Ms. Abajue point to two cases for the proposition

that courts have general jurisdiction to review I-130 determinations: Zhao v.

Gonzales, 404 F.3d 295 (5th Cir. 2005), and Ayanbadejo v. Chertoff, 517 F.3d

273 (5th Cir. 2008). But neither case concerned a § 1155 revocation. Zhao

considered whether § 1252(a)(2)(B)(ii) barred judicial review of the denial of a

motion to reopen. 404 F.3d at 301-02. Like the Supreme Court in Kucana, the

Zhao court concluded the Attorney General’s discretion to rule on a motion to

reopen was provided by regulation, not statute, and therefore the decision did not

fall under the bar of § 1252(a)(2)(B)(ii). Id. at 302-03. Ayanbadejo simply

applied Zhao’s holding to conclude the denial of an I-130 petition under § 1154,

based on the invalidity of a marriage, was not a discretionary decision because

any discretion was conferred by an implementing regulation, not § 1154.

517 F.3d at 277-78 & n.14. 4 In contrast, the statutory language of § 1155

expressly confers the discretionary authority to revoke a visa petition for just and

sufficient cause.

Mr. Green and Ms. Abajue also ask us to consider Nakamoto v. Ashcroft,

363 F.3d 874 (9th Cir. 2004), for the proposition that courts retain jurisdiction to

review the basis for a finding of marriage fraud. But Nakamoto involved whether

4
Section 1154(c) requires the denial of an application where marriage fraud
or attempted marriage fraud is evident: “[N]o petition shall be approved if . . .
the Attorney General has determined that the alien has attempted or conspired to
enter into a marriage for the purpose of evading the immigration laws.”

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“a decision under § 1227(a)(1)(G) [relating to marriage fraud] is ‘specified’ to be

in the Attorney General’s discretion” for § 1252(a)(2)(B)(ii) purposes. Id. at 879.

The Ninth Circuit concluded it was not, relying on its own controlling precedent

that the statutory grant of authority must be “entirely discretionary” to fall within

§ 1252(a)(2)(B)(ii). Id. at 880 (citing Spencer Enters., Inc. v. United States,

345 F.3d 683, 690 (9th Cir. 2003)). Contrary to the appellants’ interpretation of

our jurisprudence, see Aplt. Br. at 4, we rejected that view in Yerkovich v.

Ashcroft, 381 F.3d 990, 994-95 (10th Cir. 2004), abrogated on other grounds by

Kucana, 130 S. Ct. at 831 (holding § 1252(a)(2)(B)(ii)’s requirement that

authority be “‘specified under this subchapter’ refers to statutory, not regulatory,

specification”).

Zhao, Ayanbadejo, and Nakamoto, as well as other cases concluding

§ 1252(a)(2)(B)(ii) does not bar jurisdiction to review marriage-validity

determinations for purposes of granting an immigrant petition under § 1154, see,

e.g., Ogbolumani v. Napolitano, 557 F.3d 729, 733 (7th Cir. 2009), concern

statutes other than § 1155. Accordingly, they do not bear on the issue before us.

Cf. id. (distinguishing its own § 1155 circuit precedent, El-Khader, 366 F.3d at

562, with regard to a denial under § 1154).

Next, Mr. Green and Ms. Abajue suggest that, notwithstanding

§ 1252(a)(2)(B)(ii), courts retain jurisdiction to consider the extent of the

Secretary’s authority under the immigration laws. They point to Zadvydas v.

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Davis, 533 U.S. 678, 688 (2001), where the Supreme Court explained that the

extent of the Attorney General’s authority under the post-removal-period

detention statute, § 1231(a)(6), is not a matter of discretion subject to

§ 1252(a)(2)(B)(ii). But this is merely a repackaging of the due-process claim we

addressed above. The appellants still fail to explain how the agency exceeded its

authority, and no ultra vires act is apparent on the face of the record before us.

On the contrary, § 1155 grants the Secretary discretionary authority to

revoke approved § 1154 petitions, and that is just what happened here, through

the Secretary’s delegate, and after Mr. Green had been afforded an opportunity to

present responsive evidence. See Abdelwahab, 578 F.3d at 821 (concluding that

“[w]hether properly delegated authority was in fact exercised by the proper

agency official . . . looks like an issue beyond our jurisdiction under

§ 1252(a)(2)(B)(ii), not a ‘predicate legal question’” that might be considered

nondiscretionary and therefore reviewable).

To the extent the appellants argue that, under Zadvydas, the district court

had jurisdiction to consider their constitutional claim, we reiterate that the only

exception to § 1252(a)(2)(B) is for constitutional claims and legal issues set out

in § 1252(a)(2)(D). See § 1252(a)(2)(B) (barring all court review of enumerated

discretionary decisions “[n]otwithstanding any other provision of law . . . except

as provided in subparagraph (D)”). As discussed above, Congress limited that

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exception to petitions for review, which renders the exception inapplicable in the

district courts.

Finally, Mr. Green and Ms. Abajue claim that courts retain jurisdiction to

clarify the “good and sufficient cause” phrase of § 1252(a)(2)(B)(ii), citing to our

decision in Schroeck v. Gonzales, 429 F.3d 947 (10th Cir. 2005). We see no

merit to this claim. In Schroeck, we held that § 1252(a)(2)(D) preserved the

judicial review of constitutional claims or questions of law despite the facial

applicability of the jurisdictional bar set forth in § 1252(a)(2)(B)(i). Id.

at 950-51. As we have already explained, § 1252(a)(2)(D) is not applicable to

this case, and we fail to see how Schroeck supports jurisdiction to clarify the

“good and sufficient cause” phrase of § 1252(a)(2)(B)(ii).

In sum, the district court correctly concluded it lacked jurisdiction to

review the Secretary’s discretionary decision to revoke Mr. Green’s § 1154

petition.

III. Conclusion

For the foregoing reasons, the judgment of the district court is AFFIRMED.

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