dissenting.
It is well established that the decision to grant or deny a visa petition is discretionary. The opinion of the court filed today is the first to hold that 8 U.S.C. § 1252(a)(2)(B)(rL) does not bar federal court jurisdiction over a discretionary decision of the Attorney General. The court’s opinion improperly holds that we have jurisdiction. In doing so, the court creates an inter-circuit and intra-circuit split. In addition, the court fails to give due deference to the Executive Branch in the immigration context.
I respectfully dissent.
I
The court’s opinion relies on general federal question jurisdiction under 28 U.S.C. § 1331, and applies the Administra*695tive Procedures Act’s (APA) standards of judicial review under 5 U.S.C. § 706, to affirm the district court’s judgment.
General federal question jurisdiction under 28 U.S.C. § 1331, however, is not available where judicial review is precluded by statute. See Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). In addition, application of the APA is not appropriate where a statute precludes judicial review. 5 U.S.C. § 701(a)(1). Judicial review of this petition is precluded by statute. 8 U.S.C. § 1252(a)(2)(B)(ii). We lack jurisdiction.
II
We consider subject matter jurisdiction in every appeal to this court, even where the parties do not contest jurisdiction. Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979). “[W]e retain jurisdiction to determine our own jurisdiction.” Abreu-Reyes v. INS, 292 F.3d 1029, 1031 (9th Cir.2002).
III
The issue of jurisdiction is controlled by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009. The Illegal Immigration Reform and Immigrant Responsibility Act amended the Immigration and Nationality Act (INA) by, among other things, limiting federal court jurisdiction over certain immigration eases. The Illegal Immigration Reform and Immigrant Responsibility Act amendments to the INA were meant to exclude from judicial review the Executive Branch’s exercise of discretion. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 486, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (stating that “protecting the Executive’s discretion from the courts ... can fairly be said to be the theme of the legislation”).
In particular, the Illegal Immigration Reform and Immigrant Responsibility Act amendments contain a number of provisions eliminating judicial review of various Immigration and Naturalization Service (INS) decisions. Among these provisions is 8 U.S.C. § 1252(a)(2)(B)(ii), which states, in part: “Notwithstanding any other provision of law, no court shall have jurisdiction to review ... any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General.”1
Section 1252(a)(2)(B)(ii) is very straightforward: it deprives the courts of jurisdiction to review the Attorney General’s discretionary decisions. The court today, however, tortures the plain reading of § 1252(a)(2)(B)(ii) in an attempt to obfuscate the fact we, as well as other circuits, have held that § 1252(a) (2) (B) (ii) precludes judicial review of the Attorney General’s discretionary decisions. See Matsuk v. INS, 247 F.3d 999 (9th Cir.2001); Van Dinh v. Reno, 197 F.3d 427, 435 (10th Cir.1999); CDI Info. Servs., Inc. v. Reno, 278 F.3d 616, 620 (6th Cir.2002).
In an attempt to retain jurisdiction, the court applies linguistic gymnastics and resorts to convenient canons of statutory interpretation to hold (1) that § 1252(a)(2)(B)(ii) only applies to certain types of discretionary decisions and (2) that “the decision whether to issue an immigrant investor visa is not discretionary.” I disagree.
*696A
The types of discretionary decisions encompassed by § 1252(a)(2)(B)(ii), according to the court, are only those which are “specified by statute to be entirely discretionary.” [Court’s opinion at 690]. In doing so, the court has essentially added another word into § 1252(a) (2) (B) (ii): “no court shall have jurisdiction to review ... any other decision or action of the Attorney General the authority for which is specified under this subchapter to be ENTIRELY in the discretion of the Attorney General” (word added).
To illustrate its point, the court provides several examples of statutes which “do in fact specify that particular decisions are within the sole or unreviewable discretion of the Attorney General.” [Court’s opinion at 690] (emphasis in original). The common element in the court’s examples is the use of the words “sole” or “not ... subject to review” in describing the Attorney General’s exercise of discretion. The court’s message is that § 1252(a)(2)(B)(ii) does not reach discretionary decisions which are not specified to be entirely within the Attorney General’s discretion, as evidenced by words such as “sole” or “unreviewable.”
The narrow rule drawn by the court today conflicts with our decision in Mat-suk. In Matsuk, we addressed whether § 1252(a)(2)(B)(ii) precludes judicial review over the Attorney General’s determination whether a crime is a “particularly serious crime” under 8 U.S.C. § 1231(b)(3)(B)(ii). 247 F.3d at 1002. There is nothing in § 1231(b)(3)(B)(ii) which specifies in any way that the decision at issue is entirely within the discretion of the Attorney General.2
Instead of inquiring whether the decision was specified by statute to be entirely within the discretion of the Attorney General, in Matsuk, we recognized that the reality was that the decision at issue involved the Attorney General’s exercise of discretion. We cited a BIA decision which states that the determination of whether a crime is particularly serious “requires an individual examination of the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction.” In re S-S-, Interim Decision 3374, 1999 WL 38822 (BIA Jan. 21, 1999) (cited in Matsuk, 247 F.3d at 1002). Mat-suk does not engage in a mechanical or contrived evaluation of the text of the statute; rather, Matsuk examined the type of decision at issue and acknowledged that it involved discretion. 247 F.3d at 1002.
Like the case before us, the statute in Matsuk involved discretion by the very nature of the decision being made, not because of certain specific language used in the statute. There is nothing in the text of the statute in Matsuk that is explicitly discretionary. The court today disguises the fact that its rule creates an intra-circuit split by applying a strained hyper-textual reading of § 1252(a)(2)(B)(ii) in order to assert that Matsuk is in line with the rule.
B
The rule today redefines what constitutes a discretionary decision.3 It ignores *697that courts have consistently held that § 1252(a)(2)(B)(ii) bars judicial review of the Attorney General’s discretionary decisions, even in cases where a statute authorizing the Attorney General’s decision does not explicitly specify that the decision is entirely within the Attorney General’s discretion.4
When explicit discretionary language is not used in the INA, discretion can be implied from the statute. See Johns v. Department of Justice, 653 F.2d 884, 890 (5th Cir.1981) (“The Attorney General is given discretion by express statutory provisions, in some situations.... In other instances, as the result of implied authority, he exercises discretion nowhere granted expressly.”); see also United States ex rel. Salvetti v. Reimer, 103 F.2d 777, 779 (2nd Cir.1939) (asserting that “the exercise of a discretionary power conferred by implication” is not reviewable by the courts).
Our sister circuit has recognized that discretionary decisions that do not contain explicitly discretionary language are nevertheless barred from judicial review under § 1252(a)(2)(B)(ii). In Van Dinh v. Reno, 197 F.3d 427, 435 (10th Cir.1999), the court addressed the issue whether § 1252(a)(2)(B)(ii) precludes judicial review over the Attorney General’s power to transfer aliens from one location to another under 8 U.S.C. §§ 1231(g)(1) or 1231(i)(4)(B).
The Van Dinh court found that the Attorney General’s discretionary power under §§ 1231(g)(1) and 1231(i)(4)(B) arises from the statute, even though these sections state that the Attorney General “shall” act as instructed by the statute.5 *698The statutory sections in Van Dinh do not specify that the decision is entirely within the Attorney General’s discretion, as the court today would require; rather, the Van Dinh court recognized that use of the word “appropriate” in the statute implies the discretionary authority to determine what is appropriate. See also Avramenkov v. INS, 99 F.Supp.2d 210, 213 (D.Conn.2000) (holding that decisions under 8 U.S.C. § 1231(g)(1) are discretionary and not subject to judicial review under 8 U.S.C. § 1252(a)(2)(B)(ii)).
The court’s opinion today holds that § 1153(b)(5) is not discretionary because it not only does not specify explicitly that the decision is within the sole or unreviewable discretion of the Attorney General, but because it is phrased as a mandate in that it uses the word “shall.” This is completely at odds with Van Dinh, which also involved a statute using the word “shall.” It is also in tension with Matsuk, which did not rely on specific words to indicate that a decision was entirely within the Attorney General’s discretion, but rather holds that § 1252(a)(2)(B)(ii) precluded review based on the reality of the type of decision at issue.
C
The reality is that the decision to approve an immigrant investor visa petition is discretionary. The immigrant investor visa is an employment-based preference visa under 8 U.S.C. § 1153(b). It is established as a matter of law that the granting of visa petitions, including petitions for preference visas, is within the discretion of the Attorney General. See Black Construction Corp. v. INS, 746 F.2d 503, 504 (9th Cir.1984) (“The decision whether to grant or deny a visa petition lies within the discretion of the INS....”).6
“[Ajdmission of an alien to this country is not a right but a privilege which is granted only upon such terms as the United States prescribes.” Montgomery v. Ffrench, 299 F.2d 730, 734 (8th Cir.1962). Congress has plenary power to make policies and rules for exclusion of aliens. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977); Kleindienst v. Mandel, 408 U.S. 753, 769-60, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 97 L.Ed. 956 (1953). “Congress has explicitly delegated much of its power over immigration to the Attorney *699General.” Aguilera v. Kirkpatrick, 241 F.3d 1286, 1292 (10th Cir.2001); see also 8 U.S.C. § 1108(a)(5). When Congress has not laid down rules or has left a gap in the statutory scheme, “its power devolves on the executive branch, which may then consider factors of its own choosing.” Achacoso-Sanchez v. Immigration and Naturalization Service, 779 F.2d 1260, 1264 (7th Cir.1985). “[T]he authority of the executive branch to fill gaps is especially great in the context of immigration policy.” Gonzalez v. Reno, 212 F.3d 1338, 1349 (11th Cir.2000).
The rule that Congress has laid down with respect to immigrant investor visas is that immigrant investor visas are available to immigrants who seek to enter the United States
for the purpose of engaging in a new commercial enterprise — (i) which the alien has established, (ii) in which [the] alien has invested ... capital in [a specified] amount ... and (in) which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States.
8 U.S.C. § 1153(b)(5)(A).
Congress has explicitly given the Attorney General bounded discretionary authority to specify the amount of capital which must be invested in order to qualify for the immigrant investor visa. 8 U.S.C. § 1153(b)(5)(C).7 In addition, because Congress “[did] not lay down rules” instructing how to define ambiguous terms, the Attorney General implicitly has the authority to determine what it means, for example, to “invest capital,” what qualifies as “capital,” what constitutes “a commercial enterprise” and whether a commercial enterprise will “benefit the United States economy.” See Achacoso-Sanchez, 779 F.2d at 1264.
The Attorney General has promulgated regulations under 8 C.F.R. § 204.6 to assist in determining whether an alien is eligible for an immigrant investor visa. These regulations guide the Attorney General’s exercise of discretion. See Stellas v. Esperdy, 366 F.2d 266, 269 (2nd Cir.1966), vacated and remanded on other grounds, 388 U.S. 462, 87 S.Ct. 2121, 18 L.Ed.2d 1322 (1967) (“[T]he Attorney General may govern the exercise of his discretion by written or unwritten rules; indeed it would be remarkable if he did not. Any such decision is an application of facts to princi-píese;] regulation^] ... provide a substitute for the exercise of discretion on a ease by case basis. But there has been an exercise of discretion.”).8
When the Attorney General denies a preference visa petition because the petitioner does not satisfy the regulations the Attorney General has promulgated to guide his discretion in determining eligibil*700ity under 8 U.S.C. § 1153(b)(5) for an immigrant investor visa, the Attorney General is exercising his discretion. Because the Attorney General’s decision to grant or deny a preference visa petition is a discretionary decision, § 1252(a)(2)(B)(ii) bars judicial review.9 We lack jurisdiction to review the petition. See CDI Information Servs., Inc. v. Reno, 278 F.3d 616, 621 (6th Cir.2002) (holding that the federal courts are barred from reviewing an employee’s non-immigrant visa decision under 8 U.S.C. § 1252(a)(2)(B)(ii)); Van Dinh, 197 F.3d at 435 (holding that 8 U.S.C. § 1252(a)(2)(B)(ii) barred review of a decision related to the custody and detention of deportable aliens); Systronics Corp. v. INS, 153 F.Supp.2d 7, 10-11 (D.D.C.2001) (holding that 8 U.S.C. § 1252(a)(2)(B)(ii) deprives the court of jurisdiction to decide a challenge to an INS decision concerning an immigrant petition for an alien worker).
IV
I am troubled by the court’s opinion for another reason. The court’s opinion neglects to give due deference to the Executive Branch in the immigration context. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (acknowledging that “judicial deference to the Executive Branch is especially appropriate in the immigration context”). This circuit has been unanimously reversed recently for failing to give due deference to the Executive Branch. See INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 355-56, 154 L.Ed.2d 272 (2002) (observing that the Ninth Circuit “seriously disregarded the [INS’s] legally-mandated role” and observing that the Ninth Circuit encroached “upon the domain which Congress has exclusively entrusted to an administrative agency”). In failing to give appropriate judicial deference to the Executive Branch, the court oversteps its jurisdiction.
“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (internal citations omitted). In enacting the Illegal Immigration Reform and Immigrant Responsibility Act, Congress clearly expressed an intent to shield Executive Branch discretion in the area of immigration. The court’s opinion impermissibly attempts to maintain that federal court jurisdiction still exists, even though Congress has specifically precluded judicial review in an effort to protect Executive Branch discretion. I see no reason to engage in a charade to preserve federal court jurisdiction in an area where Congress has spoken so clearly.
V
The court’s opinion attempts to expand Ninth Circuit jurisdiction in direct defiance of § 1252(a)(2)(B)(ii). The court proposes to apply the statutory bar only to review of discretionary decisions which by statute *701are specified to be entirely within the Attorney General’s discretion. As cases such as Mats.uk and Van Dinh teach us, though, the relevant question is not whether a statute explicitly states that a decision is within the “sole” or “unreviewable” discretion of the Attorney General, but rather, whether a decision is in fact discretionary.
Our circuit and other circuits have recognized repeatedly that the Attorney General has discretion over visa petitions. See supra, n. 8. Section 1252(a)(2)(B)(ii) bars judicial review of the Attorney General’s discretionary decisions. The court’s opinion improperly holds that 8 U.S.C. § 1252(a)(2)(B)(ii) does not bar judicial review over the decision to grant or deny a visa petition.
I respectfully dissent.
. The referenced subchapter is subchapter II of Chapter 12 of Title 8, which covers sections 1151 through 1378. Sections 1153 and 1154, which govern the allocation and granting of immigrant visas in general (and the preference allocation of immigrant investor visas in particular, 8 U.S.C. § 1153(b)(5)), falls within the subchapter.
. 8 U.S.C. § 1231(b)(3) states that "the Attorney General may not remove an alien to a country if the Attorney General decide that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231 (b)(3)(B)(ii) outlines exceptions to the above rule, including instances where "the Attorney General decides that ... the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States.”
. The court’s interpretation of § 1252(a) (2) (B) (ii) draws from case law inter*697preting when application of the APA is precluded, under 5 U.S.C. § 701(a)(2), because an action is "committed to agency discretion.” The case law holds that an action is "committed to agency discretion" when a statute lacks guidelines against which to review an agency's exercise of discretion. See Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). The court’s reliance on such case law is misguided.
There is a fundamental difference between the APA and the Illegal Immigration Reform and Immigrant Responsibility Act. The APA's purpose is to give courts standards by which to review executive agency action. See Califano, 430 U.S. at 104, 97 S.Ct. 980 (noting that the APA "undoubtedly evinces Congress’ intention and understanding that judicial review should be widely available to challenge the actions of federal administrative officials”). The Illegal Immigration Reform and Immigrant Responsibility Act's purpose is to deprive courts of the ability to review executive agency action in the area of immigration. See American-Arab Anti-Discrimination Comm., 525 U.S. at 486, 119 S.Ct. 936. One statute bestows standards of judicial review, while the other prohibits judicial review. Comparing the two is akin to comparing fire to ice.
. The court deduces that the permanent rules to the Illegal Immigration Reform and Immigrant Responsibility Act do not preclude judicial review of all discretionary decisions because the Act’s transitional rules more specifically, and therefore more broadly, precluded judicial review of "discretionary decisions.” [Court's opinion at 689-690]. The court’s interpretation of the Act's scheme defies logic. As we have already noted, the Act's purpose is to deprive courts of the ability to review executive agency action in the area of immigration. See American-Arab Anti-Discrimination Comm., 525 U.S. at 486, 119 S.Ct. 936. The court’s assertion that the transitional rules more broadly precluded judicial review, while the permanent rules only narrowly preclude judicial review, flies in the face of Congress’s clear intent.
. 8 U.S.C. § 1231(g)(1) states: "The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal” (emphasis added). 8 U.S.C. § 1231 (i)(4)(B) states: "The Attorney General shall ensure that undocumented criminal aliens incarcerated in Federal facilities pursuant to this subsection are held in facilities which provide a level of security appropriate to the crimes for which they were convicted” (emphasis added).
. See also North Am. Indus. v. Feldman, 722 F.2d 893, 898 (1st Cir.1983) (''[T]he decision to grant or deny a petition to obtain a preferential immigration classification is one that is within the discretion of INS ....”); Dong Sik Kwon v. INS, 646 F.2d 909, 917 (5th Cir.1981) ("[Discretion is given to the Attorney General to admit [visa] applicants.”); Roumeliotis v. INS, 304 F.2d 453, 455 (7th Cir.1962) ("It is solely within the discretion of the Attorney General to determine whether an alien is entitled to a ... preference visa.... ”); Madany v. Smith, 696 F.2d 1008, 1012 (D.C.Cir.1983) ("There is no doubt that the authority to make preference classification decisions rests with the INS.”); Mila v. Dist. Director of Denver, Colorado Dist. of INS, 678 F.2d 123, 125 (10th Cir.1982), cert. denied, 459 U.S. 1104, 103 S.Ct. 726, 74 L.Ed.2d 952 (1983) (“A federal court may reverse an INS denial of a preferential visa petition only if the INS abused its discretion.”); Reyes v. INS, 478 F.Supp. 63, 65 (E.D.N.Y.1979) ("Granting preference visas is within the discretion of the INS.... ”); Elatos Restaurant Corp. v. Sava, 632 F.Supp. 1049, 1053 (S.D.N.Y.1986) ("[T]he INS is accorded broad discretion to grant or deny visa preference classifications.”); Lindenberg v. U.S. Dept. of Justice, 657 F.Supp. 154, 157 (D.D.C.1987) ("[T]he granting of preference visas is within the sound discretion of the INS.”); Louisiana Philharmonic Orchestra v. INS, 44 F.Supp.2d 800, 802 (E.D.La.1999) ("INS enjoys broad discretion in deciding whether to grant or deny visa preference classifications.”); Chi-Feng Chang v. Thornburgh, 719 F.Supp. 532, 535 (N.D.Tex.1989) ("The INS is accorded broad discretion in granting or denying visa preference petitions.”).
. 8 U.S.C. § 1153(b)(5)(C) states:
(i) ... The Attorney General, in consultation with the Secretary of Labor and the Secretary of State, may from time to time prescribe regulations increasing the dollar amount specified.... (ii) The Attorney General may, in the case of investment made in a targeted employment area, specify an amount of capital required [within a range], (iii) In the case of an investment made [in a high employment area] the Attorney General may specify an amount of capital required [within a range].
. Here, the regulations state that an immigrant investor’s petition must be filed with a regional Service Center. 8 C.F.R. § 204.6(b). The Attorney General’s discretion over immigrant investor visas is exercised by Service "Center directors [who] are delegated the authority to grant or deny any application or petition submitted to the Service.” 8 C.F.R. § 103. l(f)(3)(v).
. The court's opinion notes that some district courts limit 8 U.S.C. § 1252(a)(2)(B)(ii) to the removal context only and hold that discretionary decisions outside the removal context are not barred. See, e.g., Shanti, Inc. v. Reno, 36 F.Supp.2d 1151, 1158 (D.Minn.1999); Mart v. Beebe, 94 F.Supp.2d 1120, 1124 (D.Or.2000) (construing 8 U.S.C. § 1252(a)(2)(B)(i)).
These courts, however, ignore the plain language reading of the statute. Id. Every circuit court to address the scope of 8 U.S.C. § 1252(a)(2)(B)(ii) holds that the statute is not limited to the removal context. See CDI Info. Servs., Inc. v. Reno, 278 F.3d 616, 620 (6th Cir.2002); Van Dinh v. Reno, 197 F.3d at 435. I, too, would hold that 8 U.S.C. § 1252(a)(2)(B)(ii) is not limited to discretionary decisions made within the context of removal proceedings.