USCA11 Case: 21-11984 Date Filed: 03/18/2022 Page: 1 of 9
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11984
Non-Argument Calendar
____________________
KARL JUSTA BRASIL,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
ATTORNEY GENERAL OF THE U.S.,
et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-24222-BB
____________________
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2 Opinion of the Court 21-11984
Before BRANCH, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Karl Justa Brasil appeals the district court’s grant of the de-
fendants’ motion to dismiss his complaint for lack of subject matter
jurisdiction. His complaint sought judicial review of the U.S. Citi-
zenship and Immigration Services’ (“USCIS”) denial of a national
interest waiver under 8 U.S.C. § 1153(b)(2)(B)(i). On appeal, he ar-
gues that the district court had subject matter jurisdiction over his
request for review under the Administrative Procedure Act, 5
U.S.C. § 701 (“APA”), because the agency’s precedent in Matter of
Dhanasar 1 provided a clear standard by which the court could re-
view the case. Brasil also argues that the jurisdiction-stripping pro-
vision of 8 U.S.C. § 1252(a)(2)(B)(ii) is inapplicable. Because
§ 1252(a)(2)(B)(ii) precludes judicial review of a denial of a national
interest waiver under § 1153(b)(2)(B)(i), we affirm.
I.
Brasil filed a form I-140 petition seeking classification as an
immigrant worker under 8 U.S.C. § 1153(b)(2) and seeking a na-
tional interest waiver under § 1153(b)(2)(B)(i). USCIS denied his
national interest waiver, finding that he did not meet the test laid
out in Matter of Dhanasar. Brasil appealed to USCIS’s Administra-
tive Appeals Office, which dismissed his appeal. Brasil then filed an
1 26 I & N Dec. 884 (AAO 2016).
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21-11984 Opinion of the Court 3
action in U.S. District Court arguing that USCIS erred in denying
him a national interest waiver because it improperly weighed the
evidence in finding that he did not meet the Dhanasar test. After
the defendants moved to dismiss for lack of subject matter jurisdic-
tion, the matter was referred to a magistrate judge. The magistrate
judge’s report and recommendation (“R&R”) recommended dis-
missal for lack of subject matter jurisdiction. The district court
adopted the R&R and dismissed the complaint. This appeal fol-
lowed.
II.
Under the APA, courts may “set aside agency action” that is
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). The provisions of the
APA, however, do not apply in two circumstances. See id. § 701(a).
The first is when a statute expressly “preclude[s] judicial review.”
5 U.S.C. § 701(a)(1). The second is when, even though Congress
has not explicitly precluded judicial review, the “agency action is
committed to agency discretion by law.” Id. § 701(a)(2). If a statute
precludes judicial review, federal courts lack subject matter juris-
diction. See Zhu v. Gonzales, 411 F.3d 292, 293 (D.C. Cir. 2005)
We review a dismissal for lack of subject matter jurisdiction
de novo. Canal A Media Holding, LLC v. U.S. Citizenship & Im-
migr. Servs., 964 F.3d 1250, 1255 (11th Cir. 2020). “We also review
de novo questions of law, such as the construction of a statute.”
EEOC v. STME, LLC, 938 F.3d 1305, 1313 (11th Cir. 2019) (citing
Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)).
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4 Opinion of the Court 21-11984
III.
8 U.S.C § 1252(a)(2)(B) provides that “no court shall have ju-
risdiction to review” either of the following:
(i) any judgment regarding the granting of relief un-
der section 1182(h), 1182(i), 1229b, 1229c, or 1255 of
this title, or
(ii) any other decision or action of the Attorney Gen-
eral or the Secretary of Homeland Security the au-
thority for which is specified under this subchapter 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.
The subchapter referred to in § 1252(a)(2)(B)(ii) includes the provi-
sions codified at 8 U.S.C. §§ 1151–1381. Kucana v. Holder, 558 U.S.
233, 239 n.3, 130 S. Ct. 827, 832 n.3 (2010).
Brasil’s appeal concerns a decision made under a provision
of that subchapter, 8 U.S.C. § 1153(b)(2). Section 1153(b)(2)(A) al-
lows individuals who either hold advanced degrees or have excep-
tional ability and have a job offer from an employer in the United
States to obtain a visa. The statute further provides:
The Attorney General may, when the Attorney Gen-
eral deems it to be in the national interest, waive the
requirements of subparagraph (A) that an alien’s ser-
vices in the sciences, arts, professions, or business be
sought by an employer in the United States.
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21-11984 Opinion of the Court 5
8 U.S.C. § 1153(b)(2)(B)(i). 2 Because § 1153(b)(2)(B)(i) is within the
subchapter covered by 8 U.S.C. § 1252(a)(2)(B)(ii), we must deter-
mine whether a national interest waiver under 8 U.S.C.
§ 1153(b)(2)(B)(i) is a “decision or action . . . the authority for which
is specified . . . to be in the discretion of the Attorney General.” 8
U.S.C. § 1252(a)(2)(B)(ii).
We begin with the statutory text because, for a decision to
fall within § 1252(a)(2)(B), the statute must itself confer discretion.
See Kucana, 558 U.S. at 237, 130 S. Ct. at 831. First, the “word ‘may’
customarily connotes discretion.” JAMA v. Immigr. & Customs
Enf’t, 543 U.S. 335, 346, 125 S. Ct. 694, 703 (2005). And the use of
“may” in § 1153(b)(2)(B)(i) contrasts with the statute’s use of “shall”
in § 1153(b)(2)(B)(ii)(I). See Poursina v. U.S. Citizenship & Immigr.
Servs., 936 F.3d 868, 871 (9th Cir. 2019). Section 1153(b)(2)(B)(ii)(I)
provides that “[t]he Attorney General shall grant a national interest
waiver” in certain circumstances; the use of the word “shall” sug-
gests that discretion may not be granted. In contrast,
§ 1153(b)(2)(B)(i), which provides that “the Attorney General may
. . . waive,” does indicate a grant of discretion.
Second, that the Attorney General may grant a national in-
terest waiver “when the Attorney General deems it to be in the
2 While the statute refers to the Attorney General, the authority was delegated
to the Department of Homeland Security when the agency was created and
sub-delegated to USCIS. See Poursina v. U.S. Citizenship & Immigr. Servs.,
936 F.3d 868, 869 n.1 (9th Cir. 2019). Therefore, references to the Attorney
General in this opinion apply to USCIS.
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6 Opinion of the Court 21-11984
national interest” reinforces this discretion. § 1153(b)(2)(B)(i). The
word “deem” suggests that the “determination calls upon [the At-
torney General’s] expertise and judgment.” See Zhu, 411 F.3d at
295 (citing Webster v. Doe, 486 U.S. 592, 600, 108 S. Ct. 2047, 2052
(1988)). And “the ‘national interest’ standard invokes broader eco-
nomic and national-security considerations, and such determina-
tions are firmly committed to the discretion of the Executive
Branch.” Poursina, 936 F.3d at 874 (citing Trump v. Hawaii, 138 S.
Ct. 2392, 2409 (2018)).
For the foregoing reasons, we hold that § 1153(b)(2)(B)(i)
specifies that a national interest waiver is within the discretion of
the Attorney General. Thus, the decision with respect to such na-
tional interest waivers is one the “authority for which is specified
[by § 1153(b)(2)(B)(i)] to be in the discretion of the Attorney Gen-
eral.” 8 U.S.C. § 1252(a)(2)(B)(ii). Accordingly, we hold that
§ 1252(a)(2)(B)(ii) precludes judicial review of that decision.
In so holding, we are in accord with decisions of the D.C.,
Third, and Ninth Circuits. See Zhu, 411 F.3d at 293; Poursina, 936
F.3d at 872; Mousavi v. U.S. Citizenship & Immigr. Servs., 828 F.
App’x 130, 133 (3d Cir. 2020). The published decisions of both the
D.C. Circuit and the Ninth Circuit regarding the reviewability of
decisions under § 1153(b)(2)(B)(i) bolster our conclusion here. And
we find persuasive the similar reasoning of the Third Circuit in
Mousavi.
Similarly, the reasoning of the D.C. Circuit and the Ninth
Circuit in cases regarding the reviewability of decisions under 8
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21-11984 Opinion of the Court 7
U.S.C. § 1155 reinforce our holding. 8 U.S.C. § 1155 provides that
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.” The
D.C. Circuit found that its holding in Zhu controlled its decision
regarding the reviewability of decisions under § 1155. iTech U.S.,
Inc. v. Renaud, 5 F.4th 59, 66 (D.C. Cir. 2021). The court found
that the words “may” and “deem” were sufficient to show that the
statute was discretionary. Id. at 67. Because both § 1153(b)(2)(B)(i)
and § 1155 use “may” and “deem,” the court held that they are
“specified . . . to be in the discretion of the Attorney General or the
Secretary of Homeland Security.” Id. (quoting 8 U.S.C.
§ 1252(a)(2)(B)(ii)). In contrast, prior to its decision in Poursina, the
Ninth Circuit had held that decisions under § 1155 were reviewable
because it found the grant of statutory authority was “bounded by
objective criteria.” ANA Int’l Inc. v. Way, 393 F.3d 886, 894 (9th
Cir. 2004). Specifically, it found that “good and sufficient cause”
provided a meaningful standard for judicial review. Id. In
Poursina, however, the Ninth Circuit declined to extend Way to
decisions under § 1153(b)(2)(B)(i) because, in part, it held that the
phrase “national interest” invokes the types of decisions that “are
firmly committed to the discretion of the Executive Branch.”
Poursina, 936 F.3d at 874 (citing Trump, 138 S. Ct. at 2409). Thus,
while we express no opinion on the reviewability of decisions un-
der § 1155, a national interest waiver under § 1153(b)(2)(B)(i) is
even more clearly “specified . . . to be in the discretion of the
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8 Opinion of the Court 21-11984
Attorney General or the Secretary of Homeland Security.”
§ 1252(a)(2)(B)(ii).
Finally, we want to clarify what we do not hold today. We
previously held that § 1252(a)(2)(B)(ii) did not preclude judicial re-
view of a challenge that “USCIS failed to follow the correct proce-
dure in revoking the I-140 petitions.” Kurapati v. U.S. Citizenship
& Immigr. Servs., 775 F.3d 1255, 1262 (11th Cir. 2014) (“Even when
a decision is committed to agency discretion, a court may consider
allegations that an agency failed to follow its own binding regula-
tions.” (quoting Fla. Dep’t of Bus. Regul. v. U.S. Dep’t of Interior,
768 F.2d 1249, 1257 n.11 (11th Cir. 1985))). Brasil’s challenge here
is not that USCIS failed to follow its own procedures or that USCIS
failed to apply the test set out in its precedential decision Matter of
Dhanasar. Instead, Brasil argues that USCIS erred in finding that
Brasil did not meet the Dhanasar test. Section 1252(a)(2)(B)(ii) pre-
cludes judicial review of that decision. But we express no opinion
about whether § 1252(a)(2)(B)(ii) precludes judicial review of deci-
sions made under § 1153(b)(2)(B)(i) when the issue involves the fail-
ure of USCIS to apply the Dhanasar test or the failure to follow
other agency procedures.
IV.
Based on the foregoing reasons, we hold that
§ 1153(b)(2)(B)(i) specifies that a national interest waiver is within
the discretion of the Attorney General, and therefore
§ 1252(a)(2)(B)(ii) precludes judicial review. Thus, the district
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21-11984 Opinion of the Court 9
court did not err by dismissing the complaint for lack of subject
matter jurisdiction; we affirm.
AFFIRMED.