In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3387
HOLY VIRGIN PROTECTION CATHEDRAL OF
THE RUSSIAN ORTHODOX CHURCH OUTSIDE RUSSIA,
DIOCESE OF CHICAGO AND DETROIT, and
NATALIJA KALINICENKO,
Plaintiffs-Appellants,
v.
MICHAEL CHERTOFF, SECRETARY
OF HOMELAND SECURITY, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 5962—Charles R. Norgle, Sr., Judge.
____________
ARGUED FEBRUARY 6, 2007—DECIDED AUGUST 24, 2007
____________
Before KANNE, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. This case presents an unusual
variation on the many petitions and appeals this court
receives in the area of immigration law. It concerns the
ultimately unsuccessful effort of Natalija Kalinicenko to
obtain and keep a visa that would permit her to work as
a Head Sister at the Holy Virgin Protection Cathedral of
the Russian Orthodox Church Outside Russia, Diocese of
Chicago and Detroit (“the Church”). At one point,
Kalinicenko had such a visa, but the Department of
2 No. 06-3387
Homeland Security (DHS) revoked it in 2004. Both the
Church and Kalinicenko sued the Secretary, the Acting
Director of U.S. Citizenship and Immigration Services
(CIS), and the Director of the Department’s Administrative
Appeals Office, seeking various forms of relief that we
detail below. The district court dismissed the suit, find-
ing that 8 U.S.C. § 1252(a)(2)(B)(ii) stripped it of subject-
matter jurisdiction over the action. We agree with the
district court that the statute applies here, and we there-
fore affirm its judgment dismissing the case on jurisdic-
tional grounds.
I
There are few additional facts that matter on appeal.
On April 25, 2001, the Church filed an immigrant visa
petition on behalf of Kalinicenko under the “special immi-
grant” provisions of § 1101(a)(27)(C), which applies to
certain religious workers. The former Immigration and
Naturalization Service (INS) approved the petition in
August 2002. A little more than two years later, however,
the DHS (which by then had taken over the INS’s respon-
sibilities in this area) issued a Notice of Intent to Revoke
the visa. The Notice listed three reasons for the DHS’s
conclusion that the visa had been granted improperly:
first, “[t]he petitioner has failed to sufficiently demon-
strate, beyond a simple assertion, that the position of
Head Sister (Elder sister) is a traditional religious occupa-
tion or vocation within their denomination . . . [but
rather has shown only that] the position is primarily an
amalgam of secular and administrative duties”; second, the
petitioner “does not . . . appear to have followed any course
of religious training or study or entered into any formal
religious/monastic order or discipline”; and third, “the
evidence does not demonstrate that [Kalinicenko] was
continuously engaged in the offered vocation or occupation
No. 06-3387 3
for at least the two year period immediately preceding
the filing of this petition.” The Notice also implied, al-
though it did not charge, that the Church had not demon-
strated its ability to pay Kalinicenko’s proposed wages. It
gave the Church 15 days to submit evidence in opposition
to the proposed action.
On December 17, 2004, DHS formally revoked the visa.
The final notice of revocation explained the reasons for
the revocation in a bit more detail. It appears that
Kalinicenko had been working in a volunteer capacity at
the Church, but that there was some plan to convert her
position to a paid, full-time one. DHS noted that the
Church’s stated plan to do so was not credible in light of
“the petitioner’s own assertions . . . [that the job is]
normally performed by unpaid (volunteer) appointees
from among the congregation.” Coupling this admission
with “the absence of any specific religious training re-
quirements” or evidence that Kalinicenko was qualified
to perform this work, DHS believed that the position in
question had been created for purposes of obtaining an
immigration benefit. It viewed the work that she had been
doing for the Church over the two years prior to her
petition as “active membership” in her church, but it
concluded that “being an involved and devoted parishioner
does not constitute a religious occupation or vocation for
purposes of immigrant visa classification.”
The Church took an administrative appeal from this
determination, but DHS’s Administrative Appeals Office
dismissed the appeal on September 19, 2005. It, too, gave
three reasons for its decision: the lack of traditional
religious duties required by the position; the uncertainty
about how much time Kalinicenko had actually spent
performing duties as Head Sister during the two-year
period prior to the visa petition, as well as lack of clarity
about her compensation and the amount of secular
4 No. 06-3387
work she was performing; and the lack of evidence about
the Church’s ability to pay her proposed salary.
After this defeat, both the Church and Kalinicenko filed
the present suit in the district court. On December 30,
2005, the court granted the government’s motion to
dismiss. The Church filed a timely motion to vacate that
decision, because the government’s motion to dismiss
had not been served on the Church. The district court
granted that motion, took additional briefs from both
sides, and then denied the motion to vacate on August 4,
2006. This appeal followed.
II
The only question before us is whether the district court
correctly concluded that it lacked subject-matter jurisdic-
tion over this case, because of § 1252(a)(2)(B)(ii), which
addresses judicial review of orders of removal. We begin,
therefore, with the language of the statute:
(a) Applicable provisions . . .
(2) Matters not subject to judicial review . . .
(B) Denials of discretionary relief
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—
. . . (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
No. 06-3387 5
to be in the discretion of the Attorney General or the
Secretary of Homeland Security, other than the
granting of relief under section 1158(a) of this title.
This raises the immediate question whether a decision
by the Secretary of Homeland Security to revoke a previ-
ously approved visa is one that is “specified under this
subchapter to be in the discretion” of the Secretary.
In the context of a similar case in which an underlying
visa had been granted and then later revoked, this court
held that 8 U.S.C. § 1155 definitively shows that the
decision to revoke a visa is entirely in the Secretary’s
discretion. See El-Khader v. Monica, 366 F.3d 562 (7th
Cir. 2004). Section 1155 reads as follows:
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. Such revocation shall
be effective as of the date of approval of any such
petition.
8 U.S.C. § 1155. In El-Khader, we held that §§ 1252 and
1155, taken together, show that decisions to revoke visas
previously approved under § 1154 are unequivocally
committed to the discretion of the Attorney General or the
Secretary of Homeland Security. Importantly, those
statutes do not suggest any standards that judges could
use to assess exercises of that discretion. See Heckler v.
Chaney, 470 U.S. 821 (1985). The Third Circuit agreed
with our conclusion in El-Khader in Jilin Pharmaceutical
USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir. 2006).
Kalinicenko’s visa had been approved under
§ 1154(a)(1)(G)(I), which covers “[a]ny alien . . . desiring
to be classified under section 1153(b)(4) of this title, or
any person on behalf of such an alien, may file a peti-
tion with the Attorney General for such classification.”
6 No. 06-3387
Section 1153(b)(4) is the provision of the immigration act
that specifies the number of visas to be made available
for certain qualified “special immigrants,” including
religious workers. Thus, Kalinicenko’s visa, like that of the
petitioner in El-Khader, had previously been approved
under § 1154 and was subject to discretionary revocation.
The Church suggests that her appeal is different,
because “the action challenged . . . involves not the exer-
cise of discretion on an intimate set of facts, but the
application of a policy improperly adopted, not authorized
expressly or by implication by the statute creating the
classification, and a policy in conflict with the religion
clauses of the First Amendment.” It relies for this argu-
ment on U.S. Freightways Corp. v. Comm’r of Internal
Revenue, 270 F.3d 1137 (7th Cir. 2001). But U.S.
Freightways was a case in which this court had to inter-
pret regulations that had not been subject to formal notice
and comment or equivalent procedures, and thus were
entitled only to deference under Skidmore v. Swift & Co.,
323 U.S. 134 (1944). In this case, the degree of discretion
that Congress wanted the Attorney General and the
Secretary to exercise is spelled out in the statute itself.
We thus do not find U.S. Freightways to be of particular
help in resolving the question at hand.
El-Khader is the decision that governs here. That
decision used a two-step analysis. First, we looked at the
text of § 1252(a)(2)(B)(ii), which as we have indicated
above precludes judicial review for actions within the
discretion of the named officers. 366 F.3d at 566. Second,
we examined § 1155 to see whether revocation of the
visa before it was a decision within the discretion of
the named Cabinet officer. El-Khader contrasted the
broad discretion conferred by § 1155 with the strict
requirements in the agency’s regulations for the initial
issuance of a visa. Id. at 568. We concluded that while “[i]t
No. 06-3387 7
is true that the INS has regulations requiring that there
must be ‘substantial and probative’ evidence . . . to deny
a petition on these grounds . . . these regulations are
inapplicable in those instances where the INS, acting
under the authority of the Attorney General, chooses
to exercise its discretion in revoking a visa under
§ 1155. . . .” Id.
The Ninth Circuit’s decision in ANA Int’l Inc. v. Way, 393
F.3d 886 (9th Cir. 2004), may be in some tension with this
outcome, but insofar as it differs from our earlier deci-
sions, we are not persuaded to follow it. In ANA, the
Ninth Circuit concluded, based on a presumption in
favor of judicial review of agency action, that the only acts
that § 1252(a)(2)(B)(ii) insulates from review are those
“matters of pure discretion rather than discretion guided
by legal standards.” Id. at 891. Judge Tallman dissented,
noting that “[n]ot only does [the Attorney General] decide
whether such cause exists, he decides what constitutes
such cause in the first place.” Id. at 899. In Jilin, the Third
Circuit cited both this court’s El-Khader decision and
Judge Tallman’s dissent in ANA approvingly.
The only conceivable difference we see between El-
Khader and the present case is that, as a result of amend-
ments to the statute that took effect in 2005, the Secretary
of Homeland Security now has the responsibilities that
the Attorney General formerly had. See Pub. L. No. 109-
13, Div. B, § 101(f)(1). This distinction, however, does
not require a different result, as the Third Circuit held
in Jilin. See 447 F.3d at 200 n. 6. The pertinent language
of § 1252(a)(2)(B)(ii) has not changed, even though the
2005 amendments also added a new subsection (D) that
allows review of decisions within subparagraph (B) insofar
as the party is raising “constitutional claims or questions
of law.” See 8 U.S.C. § 1252(a)(2)(D), added by Pub. L. No.
109-13, Div. B, § 106(a)(1)(A)(iii). As we explain now, the
8 No. 06-3387
expansion of judicial review authorized by subpart (D) also
does not require a different result.
Section 1252(a)(2)(D) reads as follows:
Judicial Review of Certain Legal Claims—Nothing in
subparagraph (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.
8 U.S.C. § 1252(a)(2)(D) (emphasis added). This provision
“restore[s] limited judicial review of constitutional claims
and questions of law presented in petitions for review of
final removal orders.” Hamdan v. Gonzales, 425 F.3d 1051,
1057 (7th Cir. 2005).
Following our ruling, Kalinicenko may well be placed
in removal proceedings, at the conclusion of which she
may conceivably seek review in this court (not the dis-
trict court). At that time, she would be entitled to raise
any constitutional claims she has in her petition for
review. Nothing in § 1252(a)(2)(D), however, confers
authority on the district court to review discretionary
decisions by DHS, which are still governed by
§ 1252(a)(2)(B)(ii). The district court thus correctly
ruled that it lacked subject-matter jurisdiction: DHS
acted within its discretion in revoking a visa petition
that it had approved under § 1154, and § 1252(a)(2)(B)(ii)
makes that decision unreviewable.
The only question that remains is whether the ex-
istence of either party’s constitutional claims changes
this result. The Church and Kalinicenko observe that
different religious orders have different systems for
qualifying religious workers. Some may require formal
training, others may not. Courts normally do not inter-
No. 06-3387 9
fere in the internal affairs of religious institutions, see
Serbian Eastern Orthodox Diocese for the United States of
America and Canada v. Milivojevich, 426 U.S. 696 (1976).
But the U.S. government is not dictating any matter of
internal religious governance to the Church; it is only
making a decision about the secular legal consequences
of a given job and pay arrangement. Compare Employ-
ment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S.
872, 882 (1990) (refusing to hold that “when otherwise
prohibitable conduct is accompanied by religious convic-
tions, not only the convictions but the conduct itself must
be free from governmental regulation”); Tony & Susan
Alamo Fndn. v. Sec’y of Labor, 471 U.S. 290 (1985) (up-
holding application of Fair Labor Standards Act to reli-
gious foundation).
We need not decide whether there is an absolute bar
against judicial review of even the most egregious alleged
constitutional violations. It is enough to say that here,
where the Secretary and the Administrative Appeals
Office made it clear that they had concluded that the
necessary factual basis for Kalinicenko’s visa was lacking,
that there is no further review in the courts. We save for
another day, which we hope and trust will never come, the
potential case where the Secretary decides to revoke all
visas held by members of one religious group or of one
particular ethnicity.
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-24-07