Maria Dijamco v. Chad F. Wolf ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2689
MARIA V. DIJAMCO,
Plaintiff-Appellant,
v.
CHAD F. WOLF, Acting Secretary of the Department of Home-
land Security, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cv-3338 — Sara L. Ellis, Judge.
____________________
SUBMITTED JANUARY 23, 2020 — DECIDED JUNE 26, 2020
____________________
Before ROVNER, HAMILTON, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Maria Dijamco came to the United
States from the Philippines and sought lawful status to stay in
the country through her mother who had a green card. What
followed was a lengthy and tangled process that ultimately
proved unsuccessful. Dijamco then filed suit in the district
court, contending that the United States Citizenship and Im-
migration Service failed to follow its own laws and
2 No. 19-2689
regulations in revoking and refusing to reinstate her petition
for a visa. The district court concluded that it lacked subject
matter jurisdiction to consider any of Dijamco’s claims. We
agree and affirm.
I
A
Recognizing the importance of familial ties, our country’s
immigration laws allow citizens and lawful permanent resi-
dents to seek permission for their relatives to join them in the
United States by filing visa petitions. The United States Citi-
zenship and Immigration Service processes all types of re-
quests for visas, including those premised on family relation-
ships. USCIS’s family-based visa system is complicated, and
how it works depends in part on the precise family relation-
ship as well as the legal status of the petitioner. What matters
for purposes of this appeal is that Maria Dijamco’s mother, a
green card holder living in the United States, filed a visa peti-
tion on Dijamco’s behalf in 1992. Though the petition received
approval, Dijamco still had to wait for a visa to become avail-
able, as Congress restricts the number to be granted in a year.
The wait can be lengthy. After four years of anticipation in the
Philippines, Dijamco still had not received a visa. At that
point, she decided to join her mother in the United States an-
yway, and she used fraudulent papers to do so.
Without fully recounting the twists and turns of Dijamco’s
quest for legal status, a few key events are important to this
appeal. The first occurred in 2005, when a visa opened up and
became available to Dijamco. That development allowed her
to try to get a green card based on her pending visa petition.
In immigration parlance, Dijamco’s application for a green
No. 19-2689 3
card reflected an effort to adjust her status in the United
States. See 8 U.S.C. § 1255 (explaining the processes through
which noncitizens eligible for visas may seek long-term per-
manent residence via “adjustment of status”).
The next meaningful event came after USCIS denied Di-
jamco’s green card application and while her administrative
appeal was pending. It was then that Dijamco’s mother—
who, recall, applied for a visa on Dijamco’s behalf—passed
away. This development had the consequence of automati-
cally revoking Dijamco’s visa petition, which, although previ-
ously having been approved by USCIS, had not yet been is-
sued. See 8 C.F.R. § 205.1(a)(3)(i)(C). The revocation of the visa
petition, in turn, meant that Dijamco no longer had a basis to
seek to adjust her status to become a green card holder. Ac-
cordingly, USCIS dismissed her appeal based on the changed
circumstances.
Dijamco made many attempts to revive her visa petition,
including by seeking humanitarian reinstatement, a discre-
tionary process by which the agency may reinstate a petition
that was revoked because of the sponsor’s death. See 8 C.F.R.
§ 205.1(a)(3)(i)(C)(2). The day after USCIS denied the request
for humanitarian reinstatement, Congress enacted an amend-
ment to the immigration code providing that the death of the
petitioning family member did not automatically preclude a
beneficiary from receiving a visa. See 8 U.S.C. § 1154, as
amended by Department of Homeland Security Appropria-
tions Act of 2010, Pub. L. No. 111-83 Stat. 2142, § 568(c)(1), 123
Stat. 2142, 2186 (2009). Despite Dijamco’s attempts to take ad-
vantage of the new provision, the agency determined that it
did not apply to her because her visa petition had been re-
voked and her request for humanitarian reinstatement denied
4 No. 19-2689
before the law took effect. As part of informing Dijamco of its
decision, USCIS also stated that it would not exercise its equi-
table discretion to reopen her adjustment-of-status applica-
tion because she entered the country fraudulently and
worked without legal authorization.
The upshot of all of this came when USCIS informed Di-
jamco that she lacked lawful permission to stay in the United
States.
B
After 13 years of seeking legal status through USCIS’s ad-
ministrative processes, Dijamco turned to federal court.
Though USCIS had informed her that she lacked permission
to remain in the country, the Department of Homeland Secu-
rity had not taken any step to compel her removal. Had DHS
done so, removal proceedings would have commenced and
Dijamco would have found herself before an immigration
judge. Those removal proceedings provide a clear pathway
for judicial review because following a decision by an immi-
gration judge and review by the Board of Immigration Ap-
peals, a noncitizen like Dijamco can petition for review in a
federal circuit court. See 8 U.S.C. § 1252.
Here, though, the flipside is true: the absence of removal
proceedings against Dijamco meant that this path to judicial
review was unavailable to her. Recognizing that reality, Di-
jamco pursued a less common route to challenge USCIS’s de-
cision—affirmatively filing a lawsuit in the district court.
Dijamco brought three claims. First, she invoked the De-
claratory Judgment Act and sought an order requiring USCIS
to process and finally issue her visa. Second, Dijamco brought
a claim under the Administrative Procedure Act alleging that
No. 19-2689 5
USCIS’s decision to revoke her visa petition following her
mother’s death was arbitrary and capricious. Third, Dijamco
likewise contended that USCIS acted arbitrarily by denying
her adjustment of status (green card) application.
For its part, the government moved under Federal Rule of
Civil Procedure 12(b)(1) and 12(b)(6) to dismiss Dijamco’s
complaint for lack of subject matter jurisdiction or, in the al-
ternative, for failure to state a claim. Citing provisions of the
Immigration and Nationality Act in which Congress circum-
scribed judicial review of immigration decisions, the govern-
ment argued that Congress precluded review of each of Di-
jamco’s three claims and, regardless, they were untimely and
without merit. The district court agreed with the primary con-
tention and dismissed each of Dijamco’s claims for lack of
subject matter jurisdiction. Dijamco’s claims, the district court
reasoned, either challenged unreviewable discretionary im-
migration decisions or sought to raise questions of law that
can be heard only by a circuit court at the end of the removal
process. See 8 U.S.C. § 1252(a)(2)(B), (a)(2)(D).
Dijamco now appeals.
II
By any measure, Dijamco’s quest to achieve status in the
United States has followed a long and complex administrative
path. This appeal turns on one and only one aspect of those
efforts, and that reality simplifies our task.
Dijamco makes plain in her brief that she is appealing only
the district court’s dismissal of her claims (under the Declar-
atory Judgment Act and Administrative Procedure Act) chal-
lenging USCIS’s decision to revoke her visa petition upon her
mother’s death. Dijamco unquestionably seeks reinstatement
6 No. 19-2689
of her visa petition with the ultimate goal of receiving a green
card in the future, but she could not have been clearer in her
brief when she emphasized that “the erroneous decisions
which Defendant USCIS made with respect to Ms. Dijamco’s
Form I-485 [adjustment of status and green card] application
. . . are not the subject of the instant appeal.” Appellant’s Br.
at 14 n.3. We take her at her word.
The question, then, is whether Congress authorized judi-
cial review of Dijamco’s claims challenging USCIS’s revoca-
tion of and refusal to reinstate her visa petition. The district
court answered no, construing Dijamco’s claims as raising
only legal questions and therefore being unreviewable by the
express terms of 8 U.S.C. § 1252(a)(2)(D). That provision, the
court explained, allows judicial review of claims presenting
legal questions only in a circuit court. We agree with the dis-
trict court’s ultimate conclusion that it lacked jurisdiction but
get there by traveling a different path of reasoning.
A
The proper starting point is Dijamco’s challenge to
USCIS’s revocation of her visa petition upon her mother’s
death. Her allegations of agency error are not the easiest to
follow and seem at odds with themselves. She alternately con-
tends in her complaint and again in her brief on appeal that
USCIS wrongly revoked and should have reinstated her visa
petition and that the agency did reinstate her petition but then
arbitrarily revoked it. We see no basis for the claim that the
agency ever reinstated her visa petition, and therefore focus
on the revocation.
Dijamco’s claim runs into limitations Congress has im-
posed on our judicial review in the Immigration and
No. 19-2689 7
Nationality Act. Section 242 makes plain that courts lack the
authority to hear challenges to decisions that Congress en-
trusted to the immigration agencies’ discretion, including cer-
tain enumerated categories of relief (for example, cancellation
of removal and adjustment of status) and other decisions com-
mitted to agency discretion in other statutes. See 8 U.S.C.
§ 1252(a)(2)(B)(i) (enumerated categories of relief),
§ 1252(a)(2)(B)(ii) (any other matter of agency discretion).
This statutory state of affairs leads to a complicated patch-
work of judicial review. Noncitizen plaintiffs like Dijamco can
proceed with claims in federal court only if they can thread
the eye of the needle and challenge an agency decision not
insulated from review by Congress in the INA or another stat-
ute. See id. The jurisdictional inquiry requires closely review-
ing the statutory language to discern whether the noncitizen’s
claims raise purely legal questions, which can be reviewed, or
instead challenge decisions committed to an agency’s discre-
tion, which are unreviewable. See Ogbolumani v. Napolitano,
557 F.3d 729, 733 (7th Cir. 2009) (“The key to this jurisdictional
bar is the statutory language that governs the decision being
challenged.”).
USCIS’s authority to revoke approved visa petitions
comes from a provision of the INA. The relevant section pro-
vides that “[t]he Secretary of Homeland Security may, at any
time, for what he deems to be good and sufficient cause, re-
voke the approval of any petition approved by him.” 8 U.S.C.
§ 1155. By its terms, § 1155 covers visa petitions and vests
broad discretion in DHS, which is precisely what Congress
told us we cannot review in § 1252(a)(2)(B).
Our case law aligns with this exact conclusion. See Bultasa
Buddhist Temple of Chicago v. Nielsen, 878 F.3d 570, 573 (7th Cir.
8 No. 19-2689
2017) (explaining that § 1252(a)(2)(B) “bars the courts from re-
viewing” decisions under § 1155); El–Khader v. Monica, 366
F.3d 562, 567 (7th Cir. 2004) (making the same point); see also
Bernardo ex rel. M & K Eng'g, Inc. v. Johnson, 814 F.3d 481, 484
(1st Cir. 2016) (coming to the same conclusion and noting
agreement among eight circuits).
Perhaps recognizing the limitation Congress placed on ju-
dicial review in the INA, Dijamco sought to challenge USCIS’s
revocation decision under the Administrative Procedure Act
and, more specifically, by relying on its provision allowing
courts to set aside an agency’s decision if it is “arbitrary, ca-
pricious, an abuse of discretion or otherwise not in accord-
ance with law.” 5 U.S.C. § 706(2)(A). But the APA’s general
provision authorizing judicial review of final agency actions
must yield to the INA’s immigration-specific limitations. See
Bultasa, 878 F.3d at 574 (“Appellants cannot avoid the jurisdic-
tional bar established by 8 U.S.C. § 1252 simply by raising a
claim under [§ 706] of the APA.”); Roland v. USCIS, 850 F.3d
625, 629 n.3 (4th Cir. 2017) (explaining the same idea). Put
most simply, the APA cannot be used to sidestep the highly
specific limitations on judicial review enacted in the INA.
B
A second aspect of Dijamco’s challenge to USCIS’s revoca-
tion of her visa petition requires consideration. She asserts
that, separate and apart from our precedent addressing judi-
cial review of a revocation decision, USCIS had a duty to re-
consider and reinstate her visa petition under 8 U.S.C.
§ 1154(l), the provision Congress added to the INA in 2009.
Section 1154(l) provides that beneficiaries of pending or ap-
proved visa petitions who are living in the United States
“shall have [their petitions adjudicated] notwithstanding the
No. 19-2689 9
death of the qualifying relative, unless the Secretary of Home-
land Security determines, in the unreviewable discretion of
the Secretary, that approval would not be in the public inter-
est.” Id. § 1154(l)(1). The amendment effected a sea change for
family-based visa beneficiaries living in the United States be-
cause under prior law, USCIS automatically revoked visa pe-
titions if the sponsoring resident passed away. See 8 C.F.R.
§ 205.1(a)(3)(i)(C). Dijamco witnessed this firsthand upon her
mother’s death.
We have not yet had occasion to consider § 1154(l) and,
more specifically, whether it imposes upon USCIS nondiscre-
tionary obligations when processing visa petitions that, in
some circumstances, could be amenable to judicial review.
But we need not delve into that question because USCIS both
revoked Dijamco’s visa petition and refused to reinstate it be-
fore the amendment took effect. The statute is silent about ret-
roactive application and does not provide for reconsideration
of petitions revoked before the amendment.
Dijamco seems to acknowledge that she cannot rely on
§ 1154(l) alone and instead invokes internal policy guidance
issued by USCIS. That path fares no better, however. The
guidance explains that for noncitizens who are victims of un-
fortunate timing like Dijamco, the agency will reconsider re-
voked petitions in certain circumstances—in essence recog-
nizing its discretion to apply § 1154(l)’s relief to applications
adjudicated before the passage of the law. See USCIS,
APPROVAL OF PETITIONS AND APPLICATIONS AFTER THE DEATH
OF THE QUALIFYING RELATIVE UNDER NEW SECTION 204(L) OF
THE IMMIGRATION AND NATIONALITY ACT, PM-602-0017, at 13–
14 (Dec. 16, 2010) (providing that an officer may “exercise fa-
vorably the discretion to reopen the petition and/or
10 No. 19-2689
application(s)”). But even if those guidelines had legal force—
a doubtful proposition, see Krasilych v. Holder, 583 F.3d 962,
966 (7th Cir. 2009)—retroactive application is entirely discre-
tionary and therefore beyond the scope of our review under
the INA. See 8 U.S.C. § 1252(a)(2)(B)(ii) (precluding judicial
review for discretionary decisions).
All of this leads us to one conclusion: USCIS exercised un-
reviewable discretion in both revoking Dijamco’s petition and
refusing to reinstate it. In these circumstances, the district
court rightly concluded that it lacked jurisdiction to review
Dijamco’s claim. Because Congress has mandated this out-
come, we AFFIRM.