United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2005 Decided June 17, 2005
No. 04-5102
ZHOUQIN ZHU, ET AL.,
APPELLANTS
v.
ALBERTO GONZALES, UNITED STATES ATTORNEY GENERAL,
ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 02cv00685)
Frederic W. Schwartz, Jr. argued the cause and filed the
briefs for appellants.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellees. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.
Edith M. Shine and R. Craig Lawrence, Assistant U.S.
Attorneys, entered appearances.
Before: GINSBURG, Chief Judge, and EDWARDS and
GARLAND, Circuit Judges.
2
Opinion for the Court by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Four citizens of the People’s
Republic of China, working as medical researchers in the United
States, appeal from an order of the district court dismissing their
complaint, in which they sought review of the Attorney
General’s refusal to waive the requirement they obtain a “labor
certification” in order to petition for a work visa. The district
court held that § 242(a)(2)(B)(ii) of the Immigration and
Nationality Act (INA), as amended by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. §
1252(a)(2)(B)(ii), deprived the court of jurisdiction to entertain
the complaint. We agree and hence affirm the district court’s
dismissal of the complaint.
I. Background
The plaintiffs each petitioned for a work visa under §
203(b)(2) of the INA, which gives a preference to otherwise
“qualified immigrants who are members of the professions
holding advanced degrees.” 8 U.S.C. § 1153(b)(2)(A).
Ordinarily a § 203(b)(2) petitioner must get a certification from
the Secretary of Labor that “there are not sufficient workers” in
the field in which he works and that his employment “will not
adversely affect the wages and working conditions of workers
in the United States.” Id. § 1182(a)(5)(A). “[T]he Attorney
General may,” however, “when [he] deems it to be in the
national interest, waive the requirements of [§ 1153(b)(2)(A)]
that an alien’s services in the sciences, arts, professions, or
business be sought by an employer in the United States.” Id. §
1153(b)(2)(B)(i).
The Attorney General delegated his authority to waive the
labor certification requirement to the Commissioner of the
3
Immigration and Naturalization Service (INS), 8 C.F.R. § 2.1
(2001) – now the Bureau of Citizenship and Immigration
Services, Department of Homeland Security – who in turn
delegated it to the directors of the several INS regional service
centers, id. § 204.5(k)(ii). Each plaintiff, in his or her petition
for a work visa, requested that the appropriate regional director
waive the labor certification requirement, and each such request
was denied.
After the Office of Administrative Appeals affirmed those
denials, the plaintiffs filed this action in the district court, which
granted the Government’s motion to dismiss for lack of subject-
matter jurisdiction. Zhu v. INS, 300 F. Supp. 2d 77, 81 (2004).
Specifically, the court held judicial review of a decision to deny
a waiver of the labor certification requirement was barred by §
1252(a)(2)(B)(ii), which provides in relevant part,
Notwithstanding any other provision of law, no court shall
have jurisdiction to review –
....
(ii) any ... decision or action of the Attorney General the
authority for which is specified under [subchapter 2 of
chapter 12 of 8 U.S.C., §§ 1151-1379] to be in the
discretion of the Attorney General, other than the granting
of relief under section 1158(a) of this title
and the plaintiffs appealed.
II. Analysis
The plaintiffs argue the reference in § 1252(a)(2)(B)(ii) to
decisions “specified ... to be in the discretion of the Attorney
4
General” denotes only decisions made expressly discretionary
by the terms of the authorizing statute. The Government
defends the district court’s reading of the statute and argues in
the alternative that the Attorney General’s decision not to waive
the labor certification requirement is “committed to agency
discretion by law” and hence shielded from judicial review
under the Administrative Procedure Act, 5 U.S.C. § 701(a)(2).
Reviewing the question of statutory interpretation de novo, see
United States v. Braxtonbrown-Smith, 278 F.3d 1348, 1352
(D.C. Cir. 2002), we hold § 1252(a)(2)(B)(ii) precludes judicial
review and therefore do not reach the APA question.
In their principal brief the plaintiffs essentially contend the
exercise of the authority granted in § 1153(b)(2)(B)(i) is not
“specified ... to be in the discretion of the Attorney General”
under § 1252(a)(2)(B)(ii) because “[s]pecified ... means to
mention expressly” and the word “discretion” does not appear
in § 1153(b)(2)(B)(i). This contention is bolstered, according to
the plaintiffs, by the contrast between that section and the
numerous other sections of subchapter 2 in which the Attorney
General is expressly authorized to exercise “discretion.” See,
e.g., 8 U.S.C. § 1159(b) (“Not more than 10,000 of the refugee
admissions ... may be made available ... in the Attorney
General’s discretion”); id. § 1181(b) (“returning resident
immigrants ... may be readmitted ... by the Attorney General in
his discretion”).
The plaintiffs’ interpretation cannot be squared with the last
clause of § 1252(a)(2)(B)(ii), an exception to the rule against
judicial review for “any ... decision ... granting ... relief under
section 1158(a).” Significantly, “discretion” nowhere appears
in § 1158(a). The exception therefore establishes that a decision
may be “specified ... to be in the discretion of the Attorney
General” even if the grant of authority to make that decision
5
does not use the word “discretion.” Put otherwise, under the
plaintiffs’ interpretation the exception for decisions granting
relief under § 1158(a) would be superfluous. Because we must
“give effect, if possible, to every clause and word of a statute,”
United States v. Menasche, 348 U.S. 528, 538-39 (1955); see
also Qi-Zhuo v. Meissner, 70 F.3d 136, 139 (D.C. Cir. 1995),
and because we think it unlikely the Congress intended that,
regardless of context, no grant of authority to the Attorney
General be deemed discretionary unless it uses the word
“discretion,” cf. Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505
U.S. 88, 112 (1992) (rejecting view Congress must use “magic
words” expressly to preempt state law), we reject the plaintiffs’
rendition of the statute.
In their reply brief the plaintiffs retreat to the position that
the determinative issue is not whether a grant of authority
contains the term “discretion” but instead whether it “dictates
discretion.” The Government seems to agree generally with that
proposition but it notes a division among the circuits with
respect to the degree of discretion that must attach to a decision
of the Attorney General before it comes within the ambit of §
1252(a)(2)(B)(ii). Six circuits, by the Government’s count,
require only that a decision be “discretionary in nature,” see,
e.g., El-Khader v. Monica, 366 F.3d 562, 567 (7th Cir. 2004),
whereas the Ninth Circuit requires that to avoid judicial review
under that provision a decision be left “entirely within [the]
judgment or conscience” of the Attorney General. Spencer
Enters., Inc. v. United States, 345 F.3d 683, 690 (2003).
We need not choose between these rival approaches
because, as the Government argues, § 1153(b)(2)(B)(i) comes
within the reach of § 1252(a)(2)(B)(ii) even under the more
demanding standard used by the Ninth Circuit. That the
Attorney General has complete discretion with respect to the
6
labor certification requirement is established by the terms of the
waiver provision. First, the Attorney General in any particular
case may “deem” a waiver of the requirement to be in the
“national interest,” which determination calls upon his expertise
and judgment unfettered by any statutory standard whatsoever.
See Webster v. Doe, 486 U.S. 592, 600 (1988) (statute allowing
Director of Central Intelligence to terminate employee whenever
he “‘shall deem such termination necessary or advisable in the
interests of the United States’ ... fairly exudes deference”).
Second, even if the Attorney General deems a waiver to be in
the national interest, the statute provided that he “may” – not
that he must – then grant it. Assuming for the sake of the
argument that the “national interest” is a manageable legal
standard, but see id., this suggests not that the Congress
expected the Attorney General actually to deny a petition the
grant of which he deems to be in the national interest, but rather
that his decision under § 1153(b)(2)(B)(i) is, like “Speech or
Debate in either House [of the Congress, not to] be questioned
in any other Place,” U.S. CONST ., art. I, § 6, and certainly not in
a court. Helstoski v. Meanor, 442 U.S. 500, 506-08 (1979). It
is, in the parlance of the Ninth Circuit, “entirely discretionary.”
See Spencer Enters., 345 F.3d at 690 (instancing statute
providing “Attorney General ‘may grant asylum’ to aliens who
qualify ... but need not” as “example of the type of decisions
whose authority is specified by statute to be entirely
discretionary”).
The plaintiffs’ final argument is that the term “may” “does
not necessarily suggest unlimited discretion.” Zadvydas v.
Davis, 533 U.S. 678, 697 (2001). True enough, but the “usual
presumption” is that “‘may’ confers discretion.” Int’l Union,
United Auto., Aerospace & Agric. Implement Workers of Am. v.
Dole, 919 F.2d 753, 756 (D.C. Cir. 1990). Where there are
conflicting signals, “discerning Congress’s intent to bestow or
7
withhold discretion” may require more extended analysis; it “is
not a simple matter of tallying the ‘shalls’ and ‘mays’ and
finding that the ‘mays’ have it.” Pennsylvania v. Lynn, 501 F.2d
848, 854 (D.C. Cir. 1974). In this case, however, the plaintiffs
point to no counter-indication. Neither § 1153(b)(2)(B)(i) nor,
as far as we can tell, any other provision of the INA suggests the
Congress intended that the Attorney General be constrained
when deciding whether a waiver should be granted.
III. Conclusion
For the foregoing reasons, the judgment of the district court
is
Affirmed.