In the
United States Court of Appeals
For the Seventh Circuit
No. 17‐1813
BULTASA BUDDHIST TEMPLE OF
CHICAGO, et al.,
Plaintiffs‐Appellants,
v.
KIRSTJEN M. NIELSEN, Secretary of
Homeland Security, et al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 9378 — John Z. Lee, Judge.
ARGUED OCTOBER 30, 2017 — DECIDED DECEMBER 22, 2017
Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
BAUER, Circuit Judge. In October 2015, the Bultasa Buddhist
Temple of Chicago, Jung Eun Lee, and Soung Youl Cho
(collectively, “Appellants”) filed this suit against the Secretary
2 No. 17‐1813
of the Department of Homeland Security, the Attorney
General, and the Director of United States Citizenship and
Immigration Services (collectively, “Appellees”), seeking
review of various actions related to Lee’s and Cho’s immigra‐
tion status. The district court granted Appellees’ motion to
dismiss the complaint for lack of subject matter jurisdiction.
We affirm.
I. BACKGROUND
In November 2005, Cho was admitted to the United States
as a nonimmigrant student on an F‐1 visa, and Lee was
admitted as his spouse on an F‐2 visa. On March 17, 2006,
Bultasa Buddhist Temple filed an I‐129 petition with USCIS,
seeking to obtain a nonimmigrant religious worker visa (R‐1
visa) for Lee so that she could serve as the Temple’s organist.
That petition was sent to USCIS’s California Service Center
(CSC) and remained pending there for almost four years,
despite Appellants’ submission of a premium processing
request.
Finally, on October 19, 2009, a CSC representative inquired
whether the Temple was still interested in pursuing the
petition. That representative informed the Temple that USCIS
intended to approve the petition and retroactively amend Lee’s
status, such that she would have had lawful status from June 1,
2006, to May 31, 2009. The CSC representative also informed
the Temple it would be allowed to apply for an extension for
the remaining period of eligibility, which would run from
June 1, 2009, to May 31, 2011. This arrangement would have
given Lee lawful status continuously from June 1, 2006, to
May 31, 2011.
No. 17‐1813 3
The CSC then approved the Temple’s original I‐129 petition
on October 22, 2009. The approval notice, however, stated that
the R‐1 visa was valid only until May 31, 2009. The Temple
filed a petition to extend that visa on December 17, 2009, under
the impression that CSC would approve the extension and
apply it retroactively to a June 1, 2009, start date, per the
arrangement described above. The CSC approved the exten‐
sion, but only to start from May 11, 2010, and run until
October 22, 2011. As a result, on the face of the visa and
extension approvals, there was a gap in Lee’s lawful status
from June 1, 2009, to May 10, 2010.
This proved problematic when the Temple filed an I‐360
petition on Lee’s behalf seeking classification as a special
immigrant religious worker in November 2010. The application
stated that Lee had worked for the Temple since October 22,
2009. The CSC denied the application because Lee had worked
for the Temple during a period when she did not have a valid
visa (i.e., from October 22, 2009, to May 10, 2010). The Temple
appealed the denial, but the Administrative Appeals Office
dismissed the appeal on August 13, 2012.
Appellants then sought the assistance of United States
Representative Michael Quigley, and on June 12, 2013, the
Congressional Unit of the CSC agreed to amend Lee’s status to
indicate that her R‐1 visa had been valid from June 1, 2009, to
May 31, 2011, thereby eliminating the gap in her lawful status.
On September 24, 2013, the CSC approved the I‐360 petition.
On December 9, 2013, Lee filed an I‐485 application with
the CSC to adjust her status to become a lawful permanent
resident. USCIS transferred the application from the CSC to the
4 No. 17‐1813
Nebraska Service Center (NSC) in an effort to speed up the
processing time. The NSC denied Lee’s application on May 15,
2015, explaining that she had a status violation from
October 23, 2011 (the day her R‐1 visa expired), to December 8,
2013 (the day before she filed the I‐485 petition).
Then, on January 20, 2016, USCIS informed Appellants of
its intent to revoke the previous grant of the I‐360 petition
because Appellants had failed to establish that Lee had worked
continuously in a qualifying religious occupation for a full two
years immediately preceding the filing of the application. In
response, Appellants stated that Lee did not have the requisite
two years of work experience because the CSC had unreason‐
ably delayed processing the initial application for over three
and a half years. USCIS considered that response to be an
admission that Lee did not have two years of continuous work
experience and, therefore, revoked the prior approval of the
I‐360 application on March 29, 2016.
Appellants filed this suit, asserting claims under the
Administrative Procedure Act (APA), 5 U.S.C. §§ 702, 704, and
706. They sought review of the denial of Lee’s I‐485 application
and USCIS’s revocation of its prior approval of the Temple’s
I‐360 application. Appellees moved to dismiss the complaint in
its entirety under Federal Rule of Civil Procedure 12(b)(1), on
the basis that the court lacked subject matter jurisdiction to
review the agency actions at issue. The district court granted
Appellees’ motion, and Appellants timely appealed that
decision.
No. 17‐1813 5
II. DISCUSSION
A motion to dismiss under Rule 12(b)(1) tests the jurisdic‐
tional sufficiency of the complaint, accepting as true all well‐
pleaded factual allegations and drawing reasonable inferences
in favor of the plaintiffs. Ezekiel v. Michel, 66 F.3d 894, 897 (7th
Cir. 1995). We review de novo a court’s dismissal under Rule
12(b)(1). Id.
We first address Appellants’ claims regarding the denial of
Lee’s I‐485 application for lawful permanent resident status.
Despite Appellants’ arguments to the contrary, we are unable
to review the denial of that application. Adjustment of status
refers to the process, pursuant to 8 U.S.C. § 1255, by which an
alien who has been admitted to the country may become a
lawful permanent resident. Unfortunately for Appellants,
however, the statute strips the courts of jurisdiction to review
a decision made on an application under that section. Section
1252 specifically states that “no court shall have jurisdiction to
review … any judgment regarding the granting of relief under
section … 1255 of this title … .” Id. § 1252(a)(2)(B)(i). Therefore,
the district court was correct to dismiss Appellants’ claims
pertaining to the denial of Lee’s I‐485 application for want of
jurisdiction.
Appellants fare no better with their claims regarding
USCIS’s revocation of its initial approval of Lee’s I‐360 applica‐
tion. That application was made pursuant to 8 U.S.C.
§ 1154(a)(1)(G)(i), and Lee was granted a special immigrant
visa under § 1153(b)(4). USCIS revoked that visa pursuant to
its authority under § 1155, which states that “[t]he Secretary of
Homeland Security may, at any time, for what he deems to be
6 No. 17‐1813
good and sufficient cause, revoke the approval of any petition
approved by him under section 1154 of this title.”
Once again, the statute bars the courts from reviewing this
type of decision. Specifically, § 1252(a)(2)(B)(ii) states, in
relevant part, that “no court shall have jurisdiction to review
… any other decision or action of the … Secretary of Homeland
Security the authority for which is specified under this sub‐
chapter to be in the discretion of the … Secretary of Homeland
Security … .” In El‐Khader v. Monica, 366 F.3d 562, 568 (7th Cir.
2004), we held that a decision to revoke a previously approved
visa petition under § 1155 is expressly discretionary, and
therefore § 1252(a)(2)(B)(ii) precludes our review. We affirmed
that holding not long after in the case of Holy Virgin Protection
Cathedral of the Russian Orthodox Church Outside Russia v.
Chertoff, 499 F.3d 658, 661 (7th Cir. 2007).
Appellants argue that, pursuant to their claim under § 706
of the APA, we can set aside the agency’s decision because it
was arbitrary and capricious and constituted an abuse of
discretion. See 5 U.S.C. § 706(2)(A). However, Appellants
cannot avoid the jurisdictional bar established by 8 U.S.C.
§ 1252 simply by raising a claim under that section of the APA.
See El‐Khader, 366 F.3d at 565 (noting that plaintiff sought
review under 5 U.S.C. § 706). Regardless of the underlying
merits of the decision, we do not have jurisdiction to review a
discretionary revocation under § 1155. Id. at 568; see also 5
U.S.C. § 701(a)(2) (APA relief not available for actions “com‐
mitted to agency discretion by law”).
Appellants also argue that § 1155ʹs requirement of “good
and sufficient cause” for a revocation indicates that the
No. 17‐1813 7
decision is not purely discretionary. That argument, however,
is directly contrary to our holdings in El‐Khader and Holy
Virgin. We find no reason to depart from those holdings today
and we are not persuaded by Appellants’ attempts to distin‐
guish them. The revocation at issue here is precisely the type
of discretionary action that § 1252(a)(2)(B)(ii) bars from our
review. Holy Virgin, 499 F.3d at 661; El‐Khader, 366 F.3d at 568.
Although we lack jurisdiction to review the complaint in
this case, we must confess that whatever group established this
bureaucratic maze managed a new record in making life
difficult for those seeking help from the government.
III. CONCLUSION
For the foregoing reasons, the district court’s order dismiss‐
ing the complaint for lack of jurisdiction is AFFIRMED.