Jilin Pharmaceutical USA, Inc. v. Chertoff , 447 F.3d 196 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-10-2006
Jilin Pharm USA Inc v. Secretary Homeland
Precedential or Non-Precedential: Precedential
Docket No. 05-2788
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2788
JILIN PHARMACEUTICAL USA, INC.;
WEI ZHAO, (File #: A76 104 871)
Appellants
v.
MICHAEL CHERTOFF, Secretary of the United States
Department of Homeland Security;* ALBERTO
GONZALES, Attorney General of the United States, U.S.
Department of Justice;** EDUARDO AGUIRRE, JR.,
Director of the United States Citizenship and Immigration
Services; UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, BUREAU OF
DEPARTMENT OF HOMELAND SECURITY; UNITED
STATES OF AMERICA
*
Substituted pursuant to Rule 43(c)(2), Federal Rules of
Appellate Procedure.
**
Substituted pursuant to Rule 43(c)(2), Federal Rules of
Appellate Procedure.
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 04-cv-05678)
District Judge: Honorable Faith S. Hochberg
Argued April 3, 2006
Before: RENDELL, SMITH, and ALDISERT, Circuit Judges
(Filed: May 10, 2006)
Isaac Fromm, Esq.
Martin L. Rothstein, Esq. (ARGUED)
Barst & Mukamal, LLP
2 Park Avenue, 19th Floor
New York, New York 10016
Counsel for Appellants
Pamela Perron, Esq.
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
David V. Bernal, Esq.
Barry J. Pettinato, Esq. (ARGUED)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
2
Counsel for Appellee
OPINION
ALDISERT, Circuit Judge.
In Soltane v. United States Department of Justice, 381
F.3d 143 (3d Cir. 2004), we construed the statute governing the
denial of a visa application, 8 U.S.C. § 1153(b)(4), and held that
8 U.S.C. § 1252(a)(2)(B)(ii) did not strip the district court of
jurisdiction to review this administrative decision. This appeal
by Jilin Pharmaceutical USA, Inc. (“Jilin USA”) and Wei Zhao
from an order of the District Court for the District of New Jersey
dismissing their complaint for lack of subject matter jurisdiction
does not involve a denial of a visa application, but rather a
revocation of a visa already granted. This requires us to
compare the language of the separate statutes dealing with visa
denial and revocation, and, having done so, we conclude that a
distinction exists between the two statutes in the quanta of
discretion conferred upon the Secretary of Homeland Security.
Accordingly, we will affirm the order of the District Court
holding that we lack jurisdiction to review this discretionary
determination. We will affirm also the Court’s determination
that it lacked jurisdiction to hear Appellants’ Fifth Amendment
due process claims.
I.
3
Appellant Wei Zhao is a native and citizen of the
People’s Republic of China. Appellant Jilin USA, which was
incorporated in 1996 in the state of New Jersey, is a wholly
owned United States subsidiary of Jilin Ltd. In 1996, Jilin Ltd.
transferred Zhao, who was manager of the company’s import
and export division, from China to the United States to serve as
president and chief executive officer of Jilin USA. On July 26,
1996, in accordance with this plan, Jilin USA filed an
employment-based non-immigrant petition, Form I-129, on
behalf of Zhao to classify him as an L-1A non-immigrant
intracompany transferee. The supporting documentation
asserted that Zhao was an executive employee of Jilin Ltd. and
that he was transferring to Jilin USA in an executive and
managerial capacity, as defined at 8 U.S.C. § 1101(a)(44)(A) &
(B). The Immigration and Naturalization Service (“INS”)1
approved this request on October 29, 1996, granting Zhao L-1A
status until October 28, 1997. On November 5, 1997, the INS
approved a petition to extend Zhao’s L-1A status until October
28, 1999.
Following approval of this second petition, on August 29,
1998, Jilin USA filed a Form I-140 Immigrant Petition for Alien
Worker on behalf of Zhao and sought to classify Zhao under the
E-1-3 visa category, which permits executive and managerial
intracompany transferees to become permanent residents of the
1
On March 1, 2003, the INS ceased to exist as an independent
agency within the United States Department of Justice and the
INS’s functions were transferred to the Department of
Homeland Security. See Homeland Security Act of 2002, Pub.
L. No. 107-296, §§ 441, 451, 471, 116 Stat. 2135 (2002).
4
United States under 8 U.S.C. § 1153(b)(1)(C). On December
16, 1998, the INS approved the petition and granted the visa.
Upon that approval of the Form I-140, on July 7, 1999, Zhao
and his immediate family filed Form I-485 applications for
adjustment of status from non-immigrant to that of lawful
permanent resident.
On September 13, 2000, the INS notified Jilin USA and
Zhao that it intended to revoke its prior approval of the Form I-
140 visa petition. The INS was unconvinced that Zhao had been
and would be employed in a primarily executive or managerial
capacity. On April 5, 2001, the INS revoked Zhao’s visa, noting
that Jilin USA and Zhao had provided only a vague description
of his job and had not established that he worked in an executive
or managerial capacity.
Jilin USA appealed to the Office of Administrative
Appeals (“OAA”) and submitted a more detailed description of
Zhao’s duties. On January 30, 2003, holding that the “record
contains insufficient evidence to demonstrate that [Zhao] has
been employed in a primarily managerial or executive capacity,”
the OAA affirmed the visa revocation and dismissed the appeal.
The OAA subsequently denied Jilin and Zhao’s motion to
reopen on August 24, 2004.2
On November 15, 2004, Jilin USA and Zhao filed a
complaint for mandatory and declaratory relief in the United
2
On July 16, 2003, the INS also denied Zhao’s Form I-485
application, because the record did not indicate that he was the
beneficiary of an “approved immigrant petition.”
5
States District Court for the District of New Jersey. The
complaint “challenge[d] the legally incorrect and unjustifiable”
revocation of the approval of Zhao’s visa petition. Concerned
about its jurisdiction, the District Court ordered the parties to
file briefs detailing the statutory provision giving rise to federal
court jurisdiction to review the administrative decision to revoke
Zhao’s visa. Both parties submitted timely responses.3
Holding that it was “barred from asserting jurisdiction
over visa revocations at the discretion of the Attorney General
even when the visa holder is already in the United States,” the
District Court dismissed the complaint on February 25, 2005, for
lack of subject matter jurisdiction. In making this
determination, the District Court observed that this was a matter
of first impression in this Circuit and accepted the analysis and
conclusion of the Court of Appeals for the Seventh Circuit’s
opinion in El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004)
(holding that § 1252(a)(2)(B)(ii) precludes judicial review of the
revocation of a visa petition under § 1155).
Arguing that the Court had committed a clear error of
3
On January 12, 2005, the Court also ordered briefing upon
recent amendments made by Congress to § 1155 and the impact
of the Second Circuit’s decision in Firstland International, Inc.
v. United States INS, 377 F.3d 127 (2d Cir. 2004) (deciding
whether § 1252(a)(2)(B) prevented courts from reviewing a
decision of the Attorney General, made pursuant to § 1155, to
revoke the approval of an immigrant visa petition after the
beneficiary was inside the United States). Both parties filed
timely responses.
6
law, that the controlling law had changed, and that a manifest
injustice would result if the February 25 decision were not
reversed, Jilin USA and Zhao filed a motion for reargument with
the District Court on March 7, 2005. The primary focus in their
motion was the Court of Appeals for the Ninth Circuit’s opinion
in ANA International, Inc. v. Way, 393 F.3d 886 (9th Cir.
2004), in which the court rejected the Seventh Circuit’s logic
and held that § 1252(a)(2)(B)(ii) does not deny jurisdiction to
review a revocation decision made pursuant to § 1155. The
District Court rejected the motion on May 11, 2005, concluding
that El-Khader was more persuasive than the analysis of ANA
International. This appeal followed.4
4
Pursuant to 28 U.S.C. § 1291, we have jurisdiction to hear this
appeal of a final judgment. Because Jilin USA and Zhao are
appealing the denial of their motion for reargument, we examine
the District Court’s denial of that motion for an abuse of
discretion. Alston v. Parker, 363 F.3d 229, 233 (3d Cir. 2004).
“The purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered
evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d
Cir. 1985). We exercise plenary review over a district court’s
determination that it lacks subject matter jurisdiction, and when
“reviewing a facial challenge to this Court’s subject matter
jurisdiction, we accept all well-pleaded allegations in the
complaint as true and view them in the light most favorable to
the plaintiff. ” In re Kaiser Group Intern. Inc., 399 F.3d 558,
561 (3d Cir. 2005) (citation omitted). Finally, we review de
novo the District Court’s statutory interpretations and
conclusions of law. In re Ferandos, 402 F.3d 147, 150 (3d Cir.
2005).
7
II.
When analyzing our jurisdiction to review the
administrative decision to revoke a visa, the starting point for
our discussion is found in the text of 8 U.S.C. §
1252(a)(2)(B)(ii). Therein, Congress has dictated 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).
8 U.S.C. § 1252(a)(2)(B)(ii).5 By its terms it therefore becomes
necessary always to examine “the authority for which is
5
Since the enactment of the REAL ID Act, this jurisdiction-
stripping provision applies “regardless of whether the
[administrative] judgment, decision, or action is made in
removal proceedings.” REAL ID Act of 2005, Pub. L. No. 109-
13, Div. B., § 101(f)(2), 119 Stat. 302, 305 (2005) (codified as
amended at 8 U.S.C. § 1252(a)(2)(B)). This amendment applies
as of the date of the enactment of the REAL ID Act “to all cases
pending before any court on or after such date,” § 101(h)(4),
119 Stat. at 306, and resolved whether § 1252(a)(2)(B) applied
outside the context of removal proceedings. See ANA Int’l, 393
F.3d at 891 n.3 (describing conflicting holdings of courts on this
issue).
8
specified,” that is to say, the statute setting forth the nature of
the administrative discretion granted.
A.
We now must compare the statute that was before this
Court in Soltane with the one governing the case at bar. In
Soltane, the government contended that the following provision
deprived the district court of jurisdiction to review the denial of
a visa:
Visas shall be made available, in a number not to
exceed 7.1 percent of such worldwide level, to
qualified special immigrants described in [8
U.S.C. § 1101(a)(27)] . . . of which not more than
5,000 may be made available in any fiscal year to
special immigrants described in subclause (II) or
(III) of [8 U.S.C. § 1101(a)(27)(C)(ii)(II) or (III)],
and not more than 100 may be made available in
any fiscal year to special immigrants, excluding
spouses and children, who are described in [8
U.S.C. § 1101(a)(27)(M)].
8 U.S.C. § 1153(b)(4) (emphasis added). We held that this
language was not specific enough to vest unreviewable
discretion in the Attorney General.
We concluded that the “key to § 1252(a)(2)(B)(ii) lies in
its requirement that the discretion giving rise to the jurisdictional
bar must be ‘specified’ by statute,” and that whether such a
specification has been made is determined “by examining the
9
statute as a whole.” Id. at 146-147 (emphasis added). We
cautioned, however, that “the use of marginally ambiguous
statutory language, without more, is [inadequate] to ‘specif[y]’
that a particular action is within the Attorney General’s
discretion for the purposes of § 1252(a)(2)(B)(ii).” Id. at 147.
That an agency has “discretion” under Chevron to interpret the
statute it administers does not mean courts lack jurisdiction to
review its interpretations. Id. at 148. Such “ubiquitous”
discretion was not what Congress intended by §
1252(a)(2)(B)(ii). Id. Indeed, if the term “discretion” were
construed too broadly, “it is hard to imagine any action by the
Attorney General under the relevant title that would not be
deemed discretionary.” Id. at 148 n.3.
B.
We now turn to the discretion-vesting statute governing
the revocation of a visa. It is found in 8 U.S.C. § 1155:
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.
8 U.S.C. § 1155 (2005).6
6
Prior to December 2004, this provision vested the Attorney
General, not the Secretary of Homeland Security, with the
authority to revoke approval of a petition. Intelligence Reform
and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, §
5304(c), 118 Stat. 3638, 3736 (2004). At the same time,
10
Even by a most cursory comparison of the statutes it is
apparent that § 1155 is light-years away from the provision that
was before us in Soltane in terms of the discretion it specifies is
in the hands of the Secretary. That being so, we now address the
central question now presented in this appeal, whether §
1252(a)(2)(B)(ii) deprives courts of jurisdiction to review
administrative decisions made pursuant to 8 U.S.C. § 1155.
III.
A.
We are not the first court of appeals to address the
applicability of the jurisdictional bar of § 1252(a)(2)(B)(ii) to
administrative decisions made pursuant to § 1155. The Court of
Appeals for the Seventh Circuit first took up the visa revocation
issue in El-Khader, where the court observed that § 1155 states
that the Attorney General “may” revoke approval of a petition,
and may do so “at any time.” 366 F.3d at 567. In the court’s
view, “[t]his language plainly signifies a discretionary decision.”
Id. Accordingly, it held that the discretionary nature of a
revocation of approval “is apparent from the plain language of
Congress also streamlined the statute by striking the statute’s
notice requirement that limited the time at which the Attorney
General could revoke approval of a petition. Id. These
alterations were to apply to all revocations made under § 1155
before, on or after December 17, 2004. § 5304(d), 118 Stat. at
3736.
11
[§ 1155].”7 Id. at 567.
In ANA International, a split panel of the Court of
Appeals for the Ninth Circuit held otherwise. Basing its
analysis upon the premise that there is a “strong presumption in
favor of judicial review of administrative action,” it first
determined that it would give a narrow construction to §
1252(a)(2)(B). 393 F.3d at 891 (quoting INS v. St. Cyr, 533
U.S. 289, 298 (2001)). Accordingly, it determined that the only
acts “immunized from review by § 1252” are those constituting
“‘matters of pure discretion, rather than discretion guided by
legal standards.’” Id. (quoting Spencer Enters., Inc. v. United
States, 345 F.3d 683, 690 (9th Cir. 2003)).
Addressing § 1155, the ANA International court then
held that within this statute Congress clearly “authorize[d] some
measure of discretion” by using the phrase “may, at any time,
for what he deems to be.” Id. at 893. But, by incorporating the
“good and sufficient cause” language, the court also concluded
that Congress established a standard that restricts the discretion
7
The Court also rejected the argument that the broad statutory
language of § 1155 could be limited by INS precedent. Id. at
568. In rejecting the argument that INS precedent restricts and
redefines the discretionary nature of § 1155, the court held that
the INS regulations guiding the Attorney General in the granting
of a visa petition “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 after a
petition for that visa has already been granted.” Id. (emphasis
in original).
12
of the Attorney General. Id. After examining both Ninth
Circuit and Board of Immigration Appeals cases, the court
decided that the “good and sufficient cause” language of § 1155
furnishes a “meaningful legal standard” and that the Attorney
General’s right or power to revoke approval was not entirely
within his “judgment or conscience.” Id. (citing Tongatapu
Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir.
1984); Matter of Tawfik, 20 I. & N. Dec. 166 (BIA 1990)).
It also held that the decision to revoke the appellant’s
visa was not only governed by § 1155, but also, because the
petitioner’s initial L-1A petition and subsequent I-140 petition
sought to classify him as a manager, by the definition of
“managerial capacity” that is codified at 8 U.S.C. § 1101(a)(44).
It determined that this statutory definition further served to
restrict the Attorney General’s discretion because the
determination of what constitutes a manager is not a
discretionary decision, but rather one governed by an objective
legal standard. Id. at 895-96. Accordingly, because of the
“good and sufficient cause language” and the definition of
manager at § 1101(a)(44), the court held that § 1252(a)(2)(B)(ii)
did not strip courts of jurisdiction to review decisions made by
the Attorney General pursuant to § 1155.
In a vigorous and, in our view, persuasive dissent, Judge
Tallman rejected much of the ANA International majority’s
interpretation of § 1155 and the provision’s interaction with §
1252(a)(2)(B)(ii). He wrote that “[a] common sense reading of
the language of § 1155, in conjunction with § 1252(a)(2)(B)(ii),
leads ineluctably to the conclusion that the Attorney General’s
visa revocation decisions are discretionary.” Id. at 896
13
(Tallman, J., dissenting). Section 1155 did not limit revocations
to good and sufficient cause, he reasoned, but rather to
circumstances in which the Attorney General deems there to be
good and sufficient cause. Id. at 897 (Tallman, J., dissenting).
“If the statutory language ‘may, at any time, for what he deems
to be’ indicates a ‘purely legal and hence non-discretionary’
decision such that review of the decision is permitted . . . it is
difficult to contemplate what would be an unreviewable
discretionary act.” Id. at 897-898 (Tallman, J., dissenting).
C.
Although this is a question of first impression for this
Court, we have nevertheless established general standards to
determine when a decision is unreviewable under §
1252(a)(2)(B)(ii). In Urena-Tavarez v. Ashcroft, 367 F.3d 154
(3d Cir. 2004), we considered whether § 1252(a)(2)(B)(ii)
precluded courts from reviewing the Attorney General’s denial
of a waiver under 8 U.S.C. § 1186a(c)(4).8 Upon considering
the language of § 1186a(c)(4), we held that it “explicitly assigns
to the Attorney General the discretion to ‘remove the conditional
8
Section 1186a(c)(4) provides that “[t]he Attorney General, in
the Attorney General’s discretion, may remove the conditional
basis of the permanent resident status for an alien . . . if the alien
demonstrates” one of three qualifications for waivers that follow
in the ensuing paragraphs. 8 U.S.C. § 1186a(c)(4). Moreover,
it states that “[t]he determination of what evidence [relevant to
its application] is credible and the weight to be given that
evidence shall be within the sole discretion of the Attorney
General.” Id.
14
basis of the permanent resident status for an alien’ who
demonstrates one of the three qualifications for waivers.” Id. at
159. Significantly, unlike § 1155, which is devoid of any legal
requirements, § 1186a(c)(4) contains several. Nevertheless, in
concluding that this statute still vests unreviewable discretion in
the Attorney General, we found it significant that the provision
“states that the Attorney General may grant such a waiver, not
that the Attorney General shall grant such a waiver, making
clear that the waiver may not be granted even if the legal
requirements of the three waiver qualifications are met.” Id. at
160 (emphasis in original). Moreover, we noted that “[n]ot only
may the Attorney General make the decision [to grant a waiver]
in her or his discretion, but the Attorney General has the ‘sole
discretion’ to decide ‘what evidence is credible and the weight
to be given that evidence.’” Id. (quoting § 1186a(c)(4)).
Consequently, we concluded that § 1252(a)(2)(B)(ii) divested us
of jurisdiction to consider the denial of waivers under §
1186a(c)(4). Less than four months later, we decided Soltane.
D.
Appellants’ essential contention before us is that within
§ 1155 the phrase “good and sufficient cause” is a
nondiscretionary, reviewable “statutory standard which must be
met before the Attorney General is free to exercise his discretion
in revoking a petition.” (Jilin USA Br. at 19.) Although they
concede that § 1252(a)(2)(B)(ii) precludes review of
discretionary decisions, they argue that rather than giving the
Attorney General limitless discretion to revoke approvals, “the
language of § 1155 is intended to give the Attorney General
[only] a small degree of latitude in determining the revocability
15
of a petition.” (Id. at 19.) In this case, they contend that the
revocation was grounded on the “clear and specific
requirements [of § 1101(a)(44)(A) & (B)] that must be met in
order to qualify as an executive or managerial employee,” and
we may therefore review that underlying “statutory
determination.” (Id. at 20-21.) Absent a grant of complete
discretion pursuant to § 1155, they argue, the jurisdictional bar
of § 1252(a)(2)(B)(ii) does not apply.
Appellants’ argument ignores the plain language of §
1155. Drawing from the lessons of Urena-Tavarez and Soltane,
and examining § 1155 in its entirety, we note several clear
indications that the revocation of an approval of a petition is
committed solely to administrative discretion.
First, § 1155 states that the Secretary of Homeland
Security (and, previously, the Attorney General) may revoke
approval of a petition. Urena-Tavarez teaches that such
language is indicative of administrative discretion for purposes
of § 1252(a)(2)(B)(ii). See 367 F.3d at 160 (observing that the
word “may” vests discretion in the Attorney General); see also
Zhu v. Gonzales, 411 F.3d 292, 295 (D.C. Cir. 2005) (citations
and quotations omitted) (“[T]he usual presumption is that ‘may’
confers discretion.”); cf. Soltane, 381 F.3d at 147 (stressing that
the word “shall” in § 1153(b)(4) makes the Attorney General’s
resulting determinations nondiscretionary).
Second, § 1155 states that approval may be revoked “at
any time.” This too connotes a level of discretion. El-Khader,
366 F.3d at 567; ANA Int’l, 393 F.3d at 893; Firstland Int’l, 377
F.3d at 132. Indeed, as the Court of Appeals for the Second
16
Circuit observed in Firstland International, the discretion to
revoke “at any time” had once been restricted by the now-
defunct notice requirement. 377 F.3d at 132; § 5304(c), 118
Stat. at 3736. Congress’s elimination of this requirement
strongly indicates an intent to strengthen the discretion of the
Secretary of Homeland Security to revoke approval of petitions.
Third, § 1155 permits revocation when the Secretary
“deems” there to be good and sufficient cause. This language
indicates that Congress committed to the Secretary’s discretion
the decision of when good and sufficient cause exists to revoke
approval. Cf. Zhu, 411 F.3d at 295 (emphasis added) (holding
that § 1153(b)(2)(B)(I), which allows the Attorney General to
waive a visa issuance requirement “when the Attorney General
deems it to be in the national interest,” comes within the “reach”
of § 1252(a)(2)(B)(ii) because it grants the Attorney General the
discretion to make that determination); but see ANA Int’l, 393
F.3d at 894-895 (emphasizing the determination of what
constitutes “good and sufficient cause” at the expense of explicit
statutory language (i.e., “deems”) that grants the Secretary
discretion to judge for himself what constitutes such cause).
Tracking the Ninth Circuit’s logic in ANA International,
Appellants argue that to determine “good and sufficient cause,”
the Attorney General must consider the definitions of manager
and executive as codified at § 1101(a)(44)(A) & (B). See ANA
Int’l, 393 F.3d at 895 (stating that when the Attorney General
relies upon discrete legal factors in making a decision, the
“meaning of that particular legal classification nevertheless
remains a reviewable point of law”). They argue that these
statutory definitions constitute reviewable nondiscretionary
17
factors beyond the reach of the jurisdictional bar of §
1252(a)(2)(B)(ii).
We disagree. The phrase “for what [the Secretary]
deems to be good and sufficient cause,” cannot be modified by
judicial fiat to read the naked words, “for good and sufficient
cause.” To remove from one premise in the argument the
statutory passage “for what [the Secretary] deems to be” is to
commit what logicians describe as the fallacy of vicious
abstraction.9 The operative fact required to exercise discretion
9
William S. Sahakian & Mabel Lewis Sahakian, Ideas of the
Great Philosophers 15-16 (1966). The Sahakians describe this
fallacy as the removal of a statement from its context, which
thus changes the meaning of an argument. Id. at 15. They
illustrate this fallacy with four examples, each followed by the
correct, complete statement:
St. Paul said, “Money is the root of all evil.”
(“The love of money is the root of all evil.”)
Ralph Waldo Emerson said: “Consistency is the
hobgoblin of little minds.” (“Foolish consistency
is the hobgoblin of little minds.”) Alexander
Pope said, “Learning is a dangerous thing.” (“A
little learning is a dangerous thing; drink deep, or
taste not the Pierian spring. There shallow
draughts intoxicate the brain, and drinking largely
sobers us again.”) Francis Bacon said,
“Philosophy inclineth man’s mind to atheism.”
(“A little philosophy inclineth man’s mind to
atheism, but depth in philosophy bringeth men’s
18
under § 1155 is not merely the presence of cause for the
revocation, but the Secretary’s judgment that such cause exists.
Indeed, to quote Judge Tallman, “[n]ot only does [the Secretary]
decide whether . . . cause exists, he decides what constitutes
such cause in the first place.” ANA Int’l, 393 F.3d at 899
(Tallman, J., dissenting). Accordingly, although Congress may
have defined the roles of a “manager” and “executive” in order
to inform the Secretary’s decision, the actual application of
those definitions is solely vested in the Secretary’s discretion.10
minds about to religion.”)
Id. at 15-16.
10
One court has recently critiqued the Ninth Circuit’s approach
in ANA International by observing:
[A]ccording to the Ninth Circuit’s rule, if
Congress then spells out that classification and
clarifies it by defining a term within it, Congress
has thereby nullified the jurisdictional immunity.
Therefore, if Congress wishes that a decision of
the Attorney General regarding an alien
classification be outside the jurisdiction of the
courts, Congress cannot define the classification.
This is an absurd result.
Global Export/Import Link, Inc. v. U.S. Bureau of Citizenship
and Immigration, --- F. Supp. 2d ---, 2006 WL 752612, at *5
(E.D.Mich. March 21, 2006).
19
Fourth, “for what [the Secretary] deems to be good and
sufficient cause” is arguably so subjective as to provide no
meaningful legal standard. El-Khader, 366 F.3d at 567
(observing that a determination made by the Attorney General
pursuant to this language is “highly subjective”); Systronics
Corp. v. INS, 153 F. Supp. 2d 7, 12 (D.D.C. 2001) (concluding
that the “determination of ‘good and sufficient cause’ is
committed to the discretion of the Attorney General because it
lacks precise factual standards for this Court to review”); see
also Zhu, 411 F.3d at 295 (assuming only for the sake of
argument that what is in the “national interest” is a manageable
legal standard). Moreover, this provision, taken literally, would
require courts to test whether the Secretary genuinely deemed
the proffered cause to be “good and sufficient.” It is absurd to
think that Congress intended the courts to conduct such an
invasive inquiry into the Secretary’s subjective thought process
at the time of revocation. Where there is no meaningful
standard of review for an administrative decision within a
statute’s text, the decision is not subject to judicial review. Cf.
Heckler v. Chaney, 470 U.S. 821, 830 (1985) (noting that courts
have no jurisdiction under the Administrative Procedure Act to
review matters where “a court would have no meaningful
standard of review against which to judge the agency’s exercise
of discretion”). Here, the requirement of “for what [the
Secretary] deems good and sufficient cause” in § 1155 is so
vague as to be useless as a guide to a reviewing court.
Accordingly, we have no difficulty concluding that the
decision to revoke an approved visa petition pursuant to 8
U.S.C. § 1155 is left to the discretion of the Secretary of
Homeland Security. And so, pursuant to § 1252(a)(2)(B)(ii), the
20
District Court correctly held that it lacked jurisdiction to review
this administrative decision.11
IV.
Finally, Appellants argue that the District Court
11
Appellants argue that by affirming the District Court, we are
thereby allowing the Secretary to “approve a petition it did not
like on Monday, then revoke it on Tuesday and be fully
insulated from judicial review, whereas, had [he] denied it on
Monday, that denial would have been reviewable.” (Jilin USA
Br. at 24; Reply Br. at 3.) While this may be an inequitable
result of our present decision, it is the system Congress has
created and “we cannot legislate to correct it.” NVE Inc. v.
Dep’t of Health and Human Servs., 436 F.3d 182, 194 (3d Cir.
2006) (observing that our hands are tied to correct a curious
result of Congress’ statutory scheme). As the Supreme Court
has noted, § 1252(a)(2)(B) is one of “many provisions of
IIRIRA [that] are aimed at protecting the Executive’s discretion
from the courts – indeed, that can fairly be said to be the theme
of the legislation.” Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 486 (1999). Moreover, Congress
recently expanded administrative discretion by removing the
notice requirement under § 1155 and by establishing that §
1252(a)(2)(B)(ii) applies beyond removal proceedings. In short,
there is ample reason to believe that Congress could have
intended to bolster the discretion of the Secretary of Homeland
Security to revoke approval of petitions, even if it did so in a
strange or roundabout way.
21
committed a clear error of law by dismissing their constitutional
challenges for lack of jurisdiction.12 In their District Court
complaint, they alleged that the government’s revocation of their
previously-approved visa petition violated their Fifth
Amendment due process rights by: (1) denying them a legal
right they had relied upon for over two years; (2) discriminating
against small companies in favor of large companies; and (3)
attempting to enforce perceived United States trade policy
through the immigration laws. They asserted that jurisdiction
existed to hear these claims under 28 U.S.C. § 1331,13 28 U.S.C.
§ 220114 and 5 U.S.C. § 702.15
12
The District Court held that Appellants’ other arguments,
which would include their constitutional claims, are “without
merit because the statutory framework in question states that
federal courts cannot assert jurisdiction outside of the
framework” and that “without jurisdiction under the statutes,
this Court is precluded from asserting jurisdiction at all.” (Order
Denying Motion for Reargument, app. at A5 n.8 (finding
significant the opening statement of 8 U.S.C. §
1252(a)(2)(B)(ii), “[n]otwithstanding any other provision of law,
no court shall have jurisdiction . . .”). )
13
28 U.S.C. § 1331 provides that the “district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
14
28 U.S.C. § 2201 provides that “any court of the United
States, upon the filing of an appropriate pleading, may declare
the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or could
22
Because evaluating these constitutional claims requires
us to revisit and review the Attorney General’s exercise of
discretion made pursuant to 8 U.S.C. § 1155, we lack the
jurisdiction to consider them. The jurisdiction granted by 28
U.S.C. §§ 1331 & 2201 and 5 U.S.C. § 702 to review
constitutional questions is immediately precluded by the
opening words of 8 U.S.C. § 1252(a)(2)(B), which states that
“[n]otwithstanding any other provision of law, . . . no court
shall have jurisdiction to review . . . decision[s] . . . specified in
this subchapter to be in the discretion of the . . . Attorney
General or the Secretary of Homeland Security.” 8 U.S.C. §
1252(a)(2)(B) (emphasis added). The District Court therefore
correctly dismissed Appellants’ constitutional claims for lack of
jurisdiction.16 Cf. Van Dinh v. Reno, 197 F.3d 427, 435 (10th
be sought.”
15
5 U.S.C. § 702 provides that a “person suffering legal wrong
because of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute, is
entitled to judicial review thereof.”
16
Effective as of May 11, 2005, the REAL ID Act of 2005
added the language “(statutory or nonstatutory), including
section 2241 of title 28, United States Code, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, and
except as provided in subparagraph (D)” after “Notwithstanding
any other provision of law.” § 106(a)(1)(A)(ii), 119 Stat. at 310
(codified as amended at 8 U.S.C. § 1252(a)(2)(B)).
Accordingly, even after the enactment of the REAL ID Act,
federal courts are without jurisdiction to review constitutional
23
Cir. 1999) (holding that § 1252(a)(2)(B) precludes “direct
review of the Attorney General’s discretionary decisions in
immigration cases by means of a Bivens class action suit”).
V.
Because the District Court properly determined that the
Attorney General’s decision under 8 U.S.C. § 1155 to revoke the
prior approval of a visa petition is an act of administrative
discretion that is shielded from court review pursuant to 8 U.S.C. §
1252(a)(2)(B)(ii), and because we have no jurisdiction to review
Appellants’ constitutional claims questioning that exercise of
claims raised pursuant to 28 U.S.C. §§ 1331 & 2201 and 5
U.S.C. § 702 that question the revocation of a visa petition in an
action for mandatory and declaratory relief. Had these claims
been brought in a petition for review of a final order of removal,
then the jurisdiction stripped by § 1252(a)(2)(B) to review these
constitutional claims would have been restored by recently
enacted § 1252(a)(2)(D). See § 106(b), 119 Stat. at 311 (stating
that § 1252(a)(2)(D), which was enacted on May 11, 2005, only
applies retroactively “to cases in which [a] final order of
removal . . . was issued.”); Hernandez v. Gonzales, 437 F.3d
341, 344 (3d Cir. 2006) (stating that petitions for review are now
the “sole and exclusive means of judicial review for all orders
of removal except those issued pursuant to 8 U.S.C. §
1225(b)(1)” and that § 1252(a)(2)(D) enlarged our jurisdiction
to allow review of constitutional questions raised in those
petitions for review). Because, however, this is not a petition
for review and no final order of removal has been issued, §
1252(a)(2)(D) does not apply.
24
discretion, the District Court acted well within the bounds of its
permissible discretion in denying Appellants’ motion for
reargument.
We will affirm the judgment of the District Court.
25