John Doe v. Kevin K. McAleenan ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3521
JOHN DOE,
Plaintiff-Appellant,
v.
KEVIN K. MCALEENAN,
Acting Secretary of Homeland Security, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 4190 — John Robert Blakey, Judge.
____________________
ARGUED MARCH 28, 2019 — DECIDED JUNE 17, 2019
____________________
Before RIPPLE, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Plaintiff John Doe, an Iranian nation-
al, petitioned for conditional permanent residency in 2013.
He used the EB-5 admission category, which offers visas for
immigrants who invest in new job-creating enterprises. The
United States Citizenship and Immigration Service (“USCIS”
or “agency”) initially approved Doe’s petition but revoked
its approval roughly two years later.
2 No. 17-3521
Doe sought judicial review of the agency’s actions under
the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et
seq. But the district court concluded that Congress had
stripped its jurisdiction to review discretionary revocations
of visa petitions and dismissed Doe’s suit. See 8 U.S.C.
§ 1252(a)(2)(B)(ii).
We affirm. Doe relies on the narrow jurisdictional gate-
way offered by Musunuru v. Lynch, 831 F.3d 880 (7th Cir.
2016). In Musunuru we held that § 1252(a)(2)(B)(ii) doesn’t
preclude judicial review of purely procedural rulings during
the adjudication of a visa petition. 831 F.3d at 887–88. But the
ruling at issue here wasn’t procedural. Doe is challenging
the agency’s substantive decision-making. And he cannot
evade a jurisdiction-stripping statute by repackaging his
substantive complaints as procedural objections.
I. Background
Congress allocates visas under the EB-5 admission cate-
gory for “qualified immigrants seeking to enter the United
States for the purpose of engaging in a new commercial
enterprise.” 8 U.S.C. § 1153(b)(5)(A). To qualify, an alien
must show that he “has invested … or[] is actively in the
process of investing” the minimum amount of capital and
that his investment “will … create full-time employment for
not fewer than 10 United States citizens or aliens lawfully
admitted.” Id. The default capital requirement is $1 million,
but $500,000 suffices for a project located in a “targeted
employment area.” Id. § 1153(b)(5)(C)(ii); 8 C.F.R.
§ 204.6(f)(2).
An alien seeking an EB-5 visa must file a petition using
Form I-526. 8 C.F.R. § 204.6(a). If the petition is approved, he
No. 17-3521 3
receives a conditional form of permanent-resident status.
8 U.S.C. § 1186b(a)(1). But the USCIS “may, at any time, for
what [it] deems to be good and sufficient cause,” revoke an
approved I-526 petition after providing notice and an oppor-
tunity to respond. See id. §§ 1155, 1154(a)(1)(H); 8 C.F.R.
§ 205.2. The agency’s final revocation notice must be in
writing and “explain[] the specific reasons for the revoca-
tion.” 8 C.F.R. § 205.2(c).
John Doe submitted his petition on June 7, 2013. Doe and
23 other investors each deposited $500,000 in Golden Assist-
ed Living EB-5 Fund, LLC, a “new commercial enterprise”
under 8 C.F.R. § 204.6(j)(1). The enterprise, controlled by
Attorney Taher Kameli, loaned the pooled $12 million to
Golden Memory Care, Inc., which planned to construct an
assisted-living center in Lake Barrington, Illinois. In August
2013 the USCIS issued Doe a Request for Evidence seeking
additional information about the project. Doe’s response
notified the agency that the project had been “moved from
Lake Barrington, Illinois to Fox Lake, Illinois, … due to
several unforeseen issues.” He claims that he provided an
updated business plan and an Illinois state agency’s letter
certifying Fox Lake as a targeted employment area.
The USCIS approved Doe’s petition on May 8, 2014, and
Doe requested a visa through the United States Consulate in
Abu Dhabi. But in January 2015, the State Department
reviewed Doe’s petition and returned it to the USCIS for
review and possible revocation. The USCIS issued a Notice
of Intent to Revoke on January 11, 2016. The agency ex-
plained that revocation is appropriate where “material
changes … , if unexplained and unrebutted, would warrant a
denial of the approved visa petition.” The notice identified
4 No. 17-3521
two material changes. First, “[s]ubsequent to approving the
petition, [the] USCIS discovered information that contra-
dict[ed] evidence in the record”—namely, that the project
had moved to Fox Lake. The agency asserted that Doe hadn’t
provided a business plan or targeted employment area
certification for the new location. Second, the record con-
tained no evidence that the Fox Lake center was under
construction or would create ten jobs.
Doe disputed the agency’s characterization. He had al-
ready notified the USCIS that the project had been relocated
to Fox Lake, so the agency couldn’t have “discovered” that
fact after approving his petition. Doe claimed to have pro-
vided each piece of evidence the USCIS said was missing: an
updated business plan, a targeted employment area certifica-
tion, and a job-creation report. Finally, he challenged the
legal basis for the agency’s “material change” standard.
Unmoved, the agency issued a Notice of Revocation on
March 31, 2016. But it erroneously referenced a different
EB-5 project, also controlled by Kameli, that had relocated
from Waukegan, Illinois to West Dundee, Illinois. Doe
notified the USCIS of its error, and the agency issued a
corrected document on June 7.
The corrected Notice of Revocation explained that Doe,
as petitioner, bears the burden of establishing eligibility
under the EB-5 program. And a petitioner’s eligibility must
be assessed based on his initial I-526 petition. So if he “as-
serts eligibility under a materially different set of facts that
were not the basis for eligibility when the petition was filed,
he or she must file a new petition.” (Emphasis added.) Here,
Doe’s initial petition was based on a project in Lake Barring-
ton. The USCIS again asserted that Doe “did not provide any
No. 17-3521 5
updates to the business plan or other evidence … that re-
flected the change of the location.” 1 The agency acknowl-
edged Doe’s response to the notice, in which he provided
evidence supporting the Fox Lake project’s EB-5 qualifica-
tions. But it reiterated that “the record did not include any of
that evidence … when the petition was approved.” The
agency determined, “based on the entire record of proceed-
ing,” that Doe was ineligible for an EB-5 visa. The USCIS
advised Doe of his right to an administrative appeal under
8 C.F.R. § 205.2(d).
Rather than appeal the revocation, Doe filed a complaint
in the Northern District of Illinois seeking judicial review
under the APA on two grounds. First, he alleged that the
USCIS committed “legal error” by citing inaccurate infor-
mation and denying him “a meaningful opportunity to
respond” to the Notice of Intent to Revoke. Second, he
claimed that the USCIS “engaged in improper substantive
rule-making” by using a “material change” standard that
hadn’t undergone notice and comment.
The government moved to dismiss under Rule 12(b)(1) of
the Federal Rules of Civil Procedure, arguing that §§ 1155
and 1252(a)(2)(B)(ii) bar judicial review of the revocation.
Doe responded that his complaint challenged the agency’s
compliance with its mandatory procedures, not the sub-
stance of its decision, so the court retained jurisdiction under
Musunuru.
1 The agency failed to delete one of its erroneous references to the
Kameli-controlled project that had relocated from Waukegan to West
Dundee. In fact, the March and June documents are identical aside from
the town names.
6 No. 17-3521
The district judge granted the motion, explaining that
§ 1252(a)(2)(B)(ii) precludes judicial review of a discretionary
revocation of an approved visa petition. While Musunuru
creates a narrow exception for purely procedural challenges,
“a simple review of the complaint” revealed that Doe’s
claims were “not procedural but substantive.” Doe appeals,
again relying on Musunuru.
II. Discussion
We review a dismissal for lack of subject-matter jurisdic-
tion de novo, drawing all reasonable inferences in favor of
the plaintiff. Bultasa Buddhist Temple of Chi. v. Nielsen,
878 F.3d 570, 573 (7th Cir. 2017).
Under § 1252(a)(2)(B)(ii),
no court shall have jurisdiction to review …
any … decision or action of the Attorney Gen-
eral or the Secretary of Homeland Security the
authority for which is specified under this sub-
chapter to be in the discretion of [that official],
other than the granting of relief under section
1158(a) of this title.
In El–Khader v. Monica, we held that revocations under
§ 1155 are discretionary “decision[s] or action[s]” within the
meaning of § 1252(a)(2)(B)(ii). 366 F.3d 562, 567–68 (7th Cir.
2004).
The statute’s plain language compelled that conclusion:
The Secretary, acting through the USCIS, “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.” § 1155. It’s hard to imagine a clearer grant
of discretion. The statute says the Secretary “may” revoke a
No. 17-3521 7
previously approved visa petition “at any time” and for any
reason he “deems to be good and sufficient cause.” This
language commits the revocation decision to the agency’s
sole and unreviewable discretion; a court has no standard by
which to test “good and sufficient cause.” El–Khader,
366 F.3d at 567.
We have repeated that analysis in subsequent cases. See
Holy Virgin Prot. Cathedral of the Russian Orthodox Church
Outside Russia v. Chertoff, 499 F.3d 658, 661 (7th Cir. 2007)
(explaining “that decisions to revoke visas previously ap-
proved under § 1154 are unequivocally committed to [agen-
cy] discretion”). And we recently reiterated that a plaintiff
“cannot avoid the jurisdictional bar … simply by raising a
claim under … section [706] of the APA. Regardless of the
underlying merits of the decision, we do not have jurisdic-
tion to review a discretionary revocation under § 1155.”
Bultasa Buddhist Temple, 878 F.3d at 574 (citation omitted).
The USCIS revoked Doe’s petition under § 1155. And a
petition for conditional permanent residency under the EB-5
program is approved “under section 1154 of this title.” See
§ 1154(a)(1)(H). Doe concedes as much. So under
§ 1252(a)(2)(B)(ii) we lack jurisdiction to review the agency’s
revocation of his I-526 petition.
However, jurisdiction-stripping statutes don’t prohibit
judicial review of every dispute between the USCIS and
applicants for immigration benefits. In Calma v. Holder, we
considered § 1252(a)(2)(B)(i), which bars judicial review of a
defined set of immigration-agency actions, including remov-
al proceedings. 663 F.3d 868 (7th Cir. 2011). We explained
that “there are identifiable circumstances under which a
critical procedural step in a removal proceeding … lies within
8 No. 17-3521
our jurisdiction even though we are barred from evaluating
the [agency’s] ultimate decision.” Id. at 876–77 (emphasis
added). But we lack jurisdiction if “it is impossible to distin-
guish the challenged action from the determination on the
merits.” Id. at 877. In other words, “judicial review is fore-
closed … if the agency’s rationale for denying the procedural
request also establishes the petitioner’s inability to prevail on
the merits of his underlying claim.” Id. at 876.
Doe rests his entire case on Musunuru v. Lynch, in which
we imported Calma’s reasoning to the § 1252(a)(2)(B)(ii)
context. Srinivasa Musunuru had a temporary work authori-
zation when he sought permanent residency. 831 F.3d at
882–83. His employer, Vision Systems Group, filed a visa
petition and labor certification on his behalf. The USCIS
approved both. Id. at 884. Four years later Musunuru left
Vision Systems for Crescent Solutions, which filed a re-
placement petition. The agency approved that petition too.
But when Vision Systems’ principals pleaded guilty to
unlawfully hiring aliens, the USCIS revoked the company’s
labor certifications—including Musunuru’s. Id. at 885. The
agency mailed a Notice of Intent to Revoke to the defunct
company, so Musunuru never saw it. When Vision Systems
didn’t respond, the agency notified Crescent Solutions that
“Musunuru’s work experience with [Vision Systems] was
not genuine[,] and therefore the approval of Crescent Solu-
tions’ [visa] petition … should be revoked.” Id.
Musunuru submitted rebuttal evidence but the agency
denied his visa petition. He moved for reconsideration,
arguing that he should have received notice and an oppor-
tunity to respond to the notice mailed to Vision Systems. The
USCIS concluded that Musunuru lacked standing to bring
No. 17-3521 9
that challenge because as the beneficiary of the petition, rather
than the petitioner himself, he was not an “affected party”
entitled to notice under 8 C.F.R. § 103.3(a)(1)(iii)(B).
Musunuru brought an APA suit. The USCIS argued that
§§ 1155 and 1252(a)(2)(B)(ii) precluded judicial review. The
district court found jurisdiction but dismissed the suit on the
merits.
The agency repeated its jurisdictional argument on ap-
peal. Relying on Calma, we rejected it:
[The] USCIS’s rationale for denying Musunuru
these procedures was that he is not the peti-
tioner. That rationale, by itself, does not pre-
vent Musunuru from prevailing on the merits
of his underlying claim, which is that the I-140
petition filed on his behalf by [Vision Systems]
was not fraudulent and should not have been
revoked. Therefore, judicial review is not fore-
closed. In other words, [the] USCIS’s rationale
concerns only the regulatory procedures and
not the merits of its decision to revoke the peti-
tion. Musunuru does indeed contend that he
can prevail on the merits of his underlying
claim … , but we are not reviewing that con-
tention. On the contrary, we are reviewing
[the] USCIS’s decision to deny him the oppor-
tunity to challenge the revocation. Ergo, we
have jurisdiction to review Musunuru’s claims.
Musunuru, 831 F.3d at 887–88. Two other circuits reached
similar conclusions when confronting this specific procedur-
al issue. See Mantena v. Johnson, 809 F.3d 721, 729 (2d Cir.
10 No. 17-3521
2015); Kurapati v. U.S. Bureau of Citizenship & Immigration
Servs., 775 F.3d 1255, 1262 (11th Cir. 2014).
In sum, we’ve recognized a narrow jurisdictional path for
challenging purely procedural rulings. In Calma we asserted
jurisdiction over discrete “procedural step[s].” 663 F.3d at
877 (citing as examples “the denial of a continuance … , the
denial of a motion to reconsider, a refusal to remand, or a
refusal to reopen a case”). So we can review the immigration
agency’s resolution of a specific procedural dispute during
an administrative adjudication. See Musunuru, 831 F.3d at
888. But even then we lack jurisdiction if the rationale under-
lying the agency’s procedural ruling would also resolve the
merits of the petitioner’s application. Id. at 887 (quoting
Calma, 663 F.3d at 876).
Calma and Musunuru do not, however, open the door to
challenging discretionary revocations on nominally “proce-
dural” grounds. Courts may review identifiable procedural
rulings that don’t implicate a petition’s merits. But a plaintiff
cannot sidestep § 1252(a)(2)(B)(ii) by artfully framing a
challenge to the agency’s substantive decision as a proce-
dural claim. Imagine the USCIS asks a visa applicant to
verify a fact supporting his EB-5 petition. The applicant
responds with a self-prepared affidavit. Unconvinced, the
agency revokes the petition anyway. The alien might frame
an APA complaint in “procedural” terms, alleging that the
USCIS violated its own regulations by failing to consider his
affidavit. But at bottom that’s a substantive challenge to the
agency’s weighing of the evidence, which Congress has
immunized from judicial scrutiny.
Doe alleges that the USCIS violated several regulations
governing the revocation process. See 8 C.F.R. §§ 205.2(b)–
No. 17-3521 11
(c), 103.2(b)(16)(i). He also cites a pair of agency opinions
restating the regulatory language. See In re Arias, 19 I. & N.
Dec. 568 (BIA 1988); In re Estime, 19 I. & N. Dec. 450 (BIA
1987). The regulations address the basic notice-and-response
requirements that the USCIS must follow when deciding
whether to revoke a visa petition. Everyone agrees that the
agency formally complied with those regulations. It gave
Doe an opportunity to rebut the Notice of Intent to Revoke,
and it provided a written explanation of its reasoning in the
Notice of Revocation.
Doe concedes that the USCIS followed this procedural
framework. He maintains that his opportunity for response
was an empty formality: by incorrectly stating the facts and
the law, the agency denied him a “legitimate opportunity to
challenge” the revocation. He also argues that the language
used in the Notice of Intent to Revoke and Notice of Revoca-
tion betrays underlying procedural violations. As he sees it,
even a facial review of the agency’s papers would reveal that
the USCIS disregarded its own procedures.
But § 1252(a)(2)(B)(ii) bars us from combing the substance
of the agency’s decision in search of a lurking procedural
violation. To overcome the jurisdictional bar, Doe has re-
packaged a set of substantive complaints about the merits of
the agency’s action as a set of procedural violations. Unlike
in Musunuru where the USCIS denied the petitioner “the
opportunity to challenge the revocation,” the agency did not
“deny[] [Doe] … procedures,” such as notice, an opportunity
to respond, or an administrative appeal. See 831 F.3d at 887–
88 (emphasis added). Nor did it make an identifiable proce-
dural ruling that might arguably qualify for review under
Musunuru. The USCIS simply evaluated the “entire record of
12 No. 17-3521
proceeding” in Doe’s case and revoked his petition for what
it deemed “good and sufficient cause.”
For all his “procedural” framing, what Doe really wants is
judicial review of the revocation under the APA’s arbitrary-
and-capricious standard. See 5 U.S.C. § 706(2)(A). Indeed, his
arguments mirror the factors we consider when applying
that standard of review. See Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(examining whether the agency “offered an explanation …
that runs counter to the evidence … or is so implausible that
it could not be ascribed to a difference in view or the product
of agency expertise”). We’ve already established that courts
cannot use that standard to evaluate discretionary revoca-
tions under § 1155. See Bultasa Buddhist Temple, 878 F.3d at
574 (citing El–Khader, 366 F.3d at 565).
Taken to its logical conclusion, Doe’s approach would
eviscerate § 1252(a)(2)(B)(ii). Any petitioner dissatisfied with
a final agency decision could secure judicial review by
alleging that the agency committed a procedural violation by
overlooking favorable evidence. Musunuru doesn’t stand for
that proposition, and we won’t adopt it here. Doe’s com-
plaint challenges the agency’s substantive decision-making,
not its application of a procedural rule during administrative
adjudication. Merely citing the Code of Federal Regulations
doesn’t convert a substantive challenge into a procedural
one. The district court’s dismissal for lack of jurisdiction is
AFFIRMED.