United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 6, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
06-10499
SANDY GHANEM; AYED GHANEM,
Plaintiffs-Appellants,
v.
EVELYN UPCHURCH, Acting Director
US Citizenship & Immigration Services
Nebraska Service Center; DR EMILIO GONZALEZ,
Director US Citizenship & Immigration Services;
MICHAEL CHERTOFF, SECRETARY,
DEPARTMENT OF HOMELAND SECURITY;
ALBERTO R GONZALES, US ATTORNEY GENERAL,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Texas, Fort Worth
Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
The sole argument raised on this appeal is whether the
decision of the Secretary of Homeland Security to revoke a visa
pursuant to 8 U.S.C. section 1155 is discretionary, thus stripping
this Court of jurisdiction to review the decision. See 8 U.S.C. §
1252(a)(2)(B)(ii). Finding that the decision is an exercise of
discretion, we affirm the district court’s dismissal for lack of
jurisdiction.
I. BACKGROUND
In 2002, Sandy Ghanem, a citizen of the United States, married
Ayed Ghanem, a citizen of Jordan. Sandy filed an immigrant visa
petition on behalf of Ayed, which was approved in 2004.
Subsequently, the United States Citizenship and Immigration
Services (CIS), a division of the Department of Homeland Security,
initiated proceedings to revoke the visa and served her with a
“Notice of Intent to Revoke.” After Sandy responded to the notice,
the CIS revoked the previously approved visa.
The Ghanems appealed the CIS’s decision to the Board of
Immigration Appeals (BIA). The BIA affirmed the decision to revoke
without an opinion. The Ghanems filed a complaint for review of
the revocation of the visa in district court. The district court
ruled that it lacked jurisdiction over the complaint and dismissed
it. Appellants now appeal.
II. ANALYSIS
This Court reviews a district court’s dismissal for lack of
subject matter jurisdiction de novo. Lee v. Gonzales, 410 F.3d
778, 780 (5th Cir. 2005). As previously set forth, the sole issue
on appeal is whether the decision to revoke a visa pursuant to 8
U.S.C. section 1155 involved the exercise of discretion, thus
stripping this Court of jurisdiction to review the decision. See
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8 U.S.C. § 1252(a)(2)(B)(ii). Section 1252(a)(2)(B)(ii) provides
that no court shall have jurisdiction to review:
any . . . decision or action of the Attorney General or
the Secretary of Homeland Security the authority 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).
(emphasis added).
To determine whether the above-quoted statute applies to
preclude jurisdiction, this Court must look to the statutory
provision governing the revocation of a visa, which is 8 U.S.C.
section 1155. Section 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.” Although this Court has
not addressed this precise question, at least three other circuits
have squarely addressed the issue and have split.
The Seventh Circuit was the first to reach the issue and
quickly concluded that “the discretionary nature of the decision is
apparent from the plain language of the statute.” El Khader v.
Monica, 366 F.3d 562, 567 (7th Cir. 2004). The Third Circuit
agreed. In Jilin Pharmaceutical v. Chertoff, 447 F.3d 196 (3d Cir.
2006), the Court relied on the following language of section 1155
to determine that the decision to revoke was discretionary. The
Secretary “may” revoke approval, recognizing that the word “may”
indicates discretion. The Court pointed out that the revocation
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may be “at any time,” which also connotes discretion.
Additionally, section 1155 allows revocation if the Secretary
“deems” there is good and sufficient cause. Finally, the Court
opined that “‘for what [the Secretary] deems to be good and
sufficient cause’ is arguably so subjective as to provide no
meaningful legal standard.” Id. at 204.
On the other hand, the Ninth Circuit, over a dissent,
concluded that it had jurisdiction because the “authority . . . to
revoke petitions is bounded by objective criteria.” ANA Int’l v.
Way, 393 F.3d 886, 894 (9th Cir. 2004). The Ninth Circuit held
that the “good and sufficient cause” language of section 1155
“constituted a legal standard the meaning of which we retain
jurisdiction to clarify.” Id. at 893.1 The Court also indicated
that to the extent there was any ambiguity in a
jurisdiction-stripping statute, it is to be resolved in favor of
jurisdiction. Id. at 894.2
Additionally, the Second Circuit has stated that “although the
1
The Ninth Circuit’s holding also relied upon another
statutory provision not at issue in the instant case.
2
This Court previously has disagreed with the Ninth
Circuit’s determination that a decision was not discretionary.
Compare Wilmore v. Gonzales, 455 F.3d 524 (5th Cir. 2006) (holding
that determination of “extreme cruelty” under 8 U.S.C. §
1229b(b)(2)(A)(i) (I) is discretionary and thus we do not have
jurisdiction pursuant to § 1252(a)(2)(B)(ii)), with Hernandez v.
Ashcroft, 345 F.3d 824, 833-35 (9th Cir. 2003) (holding that it had
jurisdiction because the determination of “extreme cruelty” under
§ 1229b(b) was a reviewable legal and factual one).
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substance of the decision that there should be a revocation is
committed to the discretion of the Attorney General, section 1155
[also] establishes mandatory notice requirements that must be met
in order for the revocation to be effective.” Firstland Int'l v.
INS, 377 F.3d 127, 131 (2d Cir. 2004). Ultimately, the Second
Circuit ruled that it had jurisdiction to review whether the
mandatory notice requirement had been met. However, that is not in
conflict with the reasoning of the Third and Seventh Circuit.
Indeed, the Third Circuit recognized the holding in Firstland Int'l
and explained that subsequent to that decision Congress had deleted
the mandatory notice requirements in section 1155. Jilin
Pharmaceutical, 447 F.3d at 203 (citing Firstland Int'l, 377 F.3d
at 132; § 5304(c), 118 Stat. at 3736). The Third Circuit correctly
reasoned that “Congress’s elimination of this [mandatory notice]
requirement strongly indicates an intent to strengthen the
discretion of the Secretary . . . to revoke approval of
petitions.” Id.
We follow the lead of the Third and Seventh Circuits. The
statutory language indicates that the decision is left to the
discretion of the Secretary. The only language that indicates that
the discretion could be limited is the “good and sufficient cause”
phrase. However, when read in context and as a whole, the statute
makes clear that Congress delegates to the Secretary the decision
to determine what constitutes good and sufficient cause: “The
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Secretary . . . may, at any time, for what he deems to be good and
sufficient cause, revoke the approval of any petition approved by
him . . . .” 8 U.S.C. § 1155 (emphasis added). Congress’s intent
is apparent: the good and sufficient cause is what the Secretary
deems it to be. The word “deem” has been defined as follows: “to
sit in judgment upon.” Webster’s New Int’l Dictionary 589 (3d ed.
1981). We interpret the phrase “for what he deems” as vesting
complete discretion in the Secretary to determine what constitutes
good and sufficient cause. To suggest otherwise and create a
judicial standard or “clarification” for good and sufficient cause
would replace the Secretary’s judgment with judicial oversight
clearly not contemplated by the statute. In sum, the district
court correctly dismissed the claim for lack of jurisdiction.
For the above reasons, the judgment of the district court is
AFFIRMED.
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