Walid Abdelwahab v. Denise Frazier ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1078
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Walid El-Baz Abdelwahab; Alice *
Abdelwahab, *
*
Plaintiffs - Appellants, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Denise Frazier, District Director, et al., *
*
Defendants - Appellees. *
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Submitted: May 14, 2009
Filed: August 26, 2009
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Before LOKEN, Chief Judge, EBEL* and CLEVENGER,** Circuit Judges.
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LOKEN, Chief Judge.
This immigration case illustrates how complex laws and procedures and the
overlapping jurisdiction of multiple agency offices can result in unfortunate delays in
resolving issues of great importance to individual petitioners. In the midst of
*
The HONORABLE DAVID M. EBEL, United States Circuit Judge for the
United States Court of Appeals for the Tenth Circuit, sitting by designation.
**
The HONORABLE RAYMOND C. CLEVENGER, III, United States Circuit
Judge for the United States Court of Appeals for the Federal Circuit, sitting by
designation.
protracted agency proceedings, petitioners Walid El-Baz Abdelwahab, a citizen of
Egypt, and his wife Alice, a U.S. citizen, brought this action seeking an order
compelling officials of the Department of Homeland Security (DHS) to approve
Alice’s Form I-130 spousal immigrant visa petition, then pending on appeal, and to
set aside the agency’s revocation of a previously approved Form I-140 immigrant
worker visa petition. When the district court1 heard argument on the government’s
motion to dismiss and Abdelwahab’s motion for declaratory relief, the I-130 petition
had been granted and a hearing was scheduled before the immigration judge (IJ)
presiding over pending removal proceedings. The district court dismissed the action,
concluding the I-130 issue was moot and the relief requested regarding the still-
revoked I-140 petition, though not moot, was beyond the court’s jurisdiction. The
Abdelwahabs appeal. With the appeal pending, the United States Customs and
Immigration Services (USCIS) reinstated the I-140 approval, and the IJ then granted
Abdelwahab adjustment of status. We affirm.
I.
Abdelwahab entered the United States in mid-1997. He married Alice six
months later, and she filed a Form I-130 petition in early 1998. The St. Paul District
Office of USCIS2 denied the petition, finding that the couple married for the purpose
of evading the immigration laws. DHS then commenced removal proceedings in early
2003 because Abdelwahab had remained in the United States longer than his
nonimmigrant visa permitted. See 8 U.S.C. § 1227(a)(1)(B). Four months later, a
1
The HONORABLE JOAN N. ERICKSEN, United States District Judge for the
District of Minnesota.
2
On March 1, 2003, the Department of Homeland Security absorbed the former
Immigration and Naturalization Service. See Kirong v. Mukasey, 529 F.3d 800, 802
n.1 (8th Cir. 2008). USCIS, a division of DHS, is responsible for the adjudication of
immigrant visa petitions. See 6 U.S.C. § 271(b). Several actions in this case were
taken by INS, while others were taken by USCIS or other DHS offices.
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Minnesota restaurant filed a Form I-140 employment-based petition on Abdelwahab’s
behalf with USCIS’s Nebraska Service Center. That office approved the I-140
petition in January 2004, unaware that Mrs. Abdelwahab’s Form I-130 petition had
been denied on account of marriage fraud.3 Abdelwahab then filed a petition for
adjustment of status in the removal proceeding, based on the I-140 approval.
In July 2004, the St. Paul District Office notified Abdelwahab’s employer of
its intent to exercise discretion under 8 U.S.C. § 1155 to revoke the I-140 approval on
account of marriage fraud. However, the IJ denied DHS’s motion to continue the
removal proceeding and granted Abdelwahab adjustment of status. See 8 U.S.C.
§ 1255. DHS revoked the I-140 approval and appealed the IJ’s decision to the Board
of Immigration Appeals (BIA). Meanwhile, in August 2004, the BIA dismissed
Abdelwahab’s separate administrative appeal from the I-130 denial because no appeal
issues had been identified with the notice of appeal. In September 2005, the BIA
vacated the IJ’s grant of adjustment of status, based upon the I-140 revocation. The
BIA denied a motion to reopen the I-130 appeal and remanded for consideration of
additional relief “including voluntary departure.”
The Abdelwahabs filed this action in district court in July 2006, challenging
DHS’s denial of the I-130 petition and revocation of the I-140 approval. In May
2007, responding to a motion filed by DHS, the BIA in an opinion sharply critical of
DHS’s handling of the I-130 petition vacated its order dismissing the I-130 appeal and
remanded for de novo consideration of the I-130 petition. The St. Paul District Office
approved the I-130 petition on remand. At that point, the parties’ dispositive cross
motions were argued before the district court, six weeks before a scheduled hearing
before the IJ in the related but distinct removal proceeding.
3
The Immigration and Nationality Act provides that no employment-based
petition may be granted after a determination that an alien married “for the purpose
of evading the immigration laws.” 8 U.S.C. § 1154(c).
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The Abdelwahabs argued to the district court that USCIS incorrectly denied the
I-130 petition, and that its St. Paul District Office acted ultra vires in revoking the I-
140 approval when only the Nebraska Service Center had that authority under the
applicable DHS regulations. Defendants argued that the I-130 claim was now moot
and that 8 U.S.C. § 1252(a)(2)(B)(ii) stripped the court of jurisdiction to review the
discretionary revocation of the I-140 approval. The district court granted defendants’
motion to dismiss, concluding (i) that the I-130 claim was moot because, “whatever
its flaws at whatever level, the 130 has been granted,” and (ii) that the relief sought
on the I-140 claim, though not moot, was beyond the court’s jurisdiction for a variety
of reasons. This appeal followed. With the appeal pending, USCIS reinstated its
approval of the I-140 petition, and the IJ then granted adjustment of status.
II.
On appeal, the Abdelwahabs argue the district court erred in concluding that it
lacked jurisdiction to review whether USCIS lawfully revoked its approval of the I-
140 petition. Defendants argue the appeal is moot because the I-140 approval has
been reinstated and Abdelwahab’s status adjusted to lawful permanent resident.
Abdelwahab replies that the issue is not moot because the I-140 approval was not
reinstated nunc pro tunc, which means he must wait four more years before he is
eligible to become a naturalized citizen. We put this mootness issue aside and turn to
the merits of the district court’s decision, reviewing its jurisdictional rulings on
undisputed facts de novo. State ex rel. Nixon v. Coeur D’Alene Tribe, 164 F.3d 1102,
1108 (8th Cir.), cert. denied, 527 U.S. 1039 (1999) (standard of review).
In revoking the prior I-140 approval, USCIS exercised authority granted by 8
U.S.C. § 1155, which provides, “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.” The parties briefed and
argued the appeal as though it turns on two related jurisdictional issues – whether
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Congress in 8 U.S.C. § 1252(a)(2)(B)(ii) stripped federal courts of jurisdiction to
review the agency’s exercise of its § 1155 authority, and if so, whether the agency
committed an error of law that Congress restored our jurisdiction to review in the
later-enacted 8 U.S.C. § 1252(a)(2)(D).4 The district court decided these questions,
but it based its dismissal of the action on other factors as well. We discuss them all.
1. Focusing on the plain language of § 1155 -- the Secretary “may” revoke an
I-140 approval “at any time, for what he deems to be good and sufficient cause” --
three circuits have held that § 1155 revocations are actions “specified [by statute] to
be in the discretion of . . . the Secretary” within the meaning of § 1252(a)(2)(B)(ii),
and therefore not subject to judicial review. See Ghanem v. Upchurch, 481 F.3d 222,
224 (5th Cir. 2007); Jilin Pharmaceutical USA, Inc. v. Chertoff, 447 F.3d 196, 202-05
(3d Cir. 2006); El-Khader v. Monica, 366 F.3d 562, 567-68 (7th Cir. 2004). But see
ANA Int’l, Inc. v. Way, 393 F.3d 886, 891-95 (9th Cir. 2004). Like the district court,
we agree. See also Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004).
Sidestepping this adverse precedent, the Abdelwahabs argue they raise an issue
of law that courts have jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D) --
whether the St. Paul District Office of USCIS acted ultra vires, and therefore beyond
its discretion, because the Secretary’s regulations granted exclusive authority to
4
§ 1252(a)(2)(B)(ii) provides in relevant part: “Notwithstanding any other
provision of law . . . no court shall have jurisdiction to review . . . any . . . decision or
action of . . . the Secretary of Homeland Security the authority for which is specified
under this subchapter to be in the discretion of . . . the Secretary.” By its plain
language, § 1252(a)(2)(B)(ii) applies to discretionary action not taken in a removal
proceeding. Cf. Van Dinh v. Reno, 197 F.3d 427, 431-32 (10th Cir. 1999).
§ 1252(a)(2)(D) provides in relevant part: “Nothing in [§ 1252(a)(2)(B)] . . .
shall be construed as precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals in
accordance with this section.”
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revoke I-140 approvals to DHS’s Nebraska Service Center. The Second Circuit
reviewed whether USCIS complied with a statutory notice requirement in Firstland
International, Inc. v. INS, 377 F.3d 127 (2d Cir. 2004), so there is some support for
the general principle.5 But the argument is flawed in this case.
First, § 1252(a)(2)(D) applies only to questions of law “raised upon a petition
for review filed with an appropriate court of appeals.” Thus, it does not grant
jurisdiction to review questions of law in district court cases. See Hassan v. Chertoff,
543 F.3d 564, 566 (9th Cir. 2008); Hamilton v. Gonzales, 485 F.3d 564, 568 (10th
Cir. 2007); Jilin, 447 F.3d at 206 n.16. This does not end the inquiry because, even
if § 1252(a)(2)(B) otherwise bars review of a discretionary act, we have jurisdiction
to review a “predicate legal question that amounts to a nondiscretionary determination
underlying the denial of relief.” Ibrahimi v. Holder, 566 F.3d 758, 764 (8th Cir. 2009)
(quotation omitted). But the case on which the Abdelwahabs rely for their ultra vires
contention, Zadvydas v. Davis, 533 U.S. 678 (2001), reviewed whether the agency
exceeded its statutory authority. Here, § 1155 gave the Secretary of Homeland
Security express authority to revoke the approval of I-140 petitions, and the Secretary
has discretion to delegate that authority within USCIS. See 6 U.S.C. § 271(b)(1); 8
C.F.R. § 205.2(a). Whether properly delegated authority was in fact exercised by the
proper agency official, when the agency considers the action properly taken, looks like
an issue beyond our jurisdiction under § 1252(a)(2)(B)(ii), not a “predicate legal
question.”6
5
The Abdelwahabs’ contention that we should review whether USCIS complied
with the notice requirement at issue in Firstland is without merit. Congress repealed
that requirement retroactively in the Intelligence Reform and Terrorism Prevention
Act of 2004, Pub. L. No. 108-458, § 5304, 118 Stat. 3638, 3736 (2004).
6
Though review under the Administrative Procedure Act does not apply to
actions “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), this limitation
does not bar judicial review if the agency has an established policy governing its
exercise of discretion, see INS v. Yang, 519 U.S. 26, 32 (1996). However, as the
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Second, even if we may review the issue, the Abdelwahabs failed to establish
that the St. Paul District Office had no authority to exercise the Secretary’s discretion
under the DHS regulations then in effect. The regulations provided that any USCIS
officer “authorized to approve [an I-140] petition . . . may revoke the approval of that
petition.” 8 C.F.R. § 205.2(a) (2004). The regulations further provided that Form I-
140 petitions “must be filed with the Service Center having jurisdiction over the
intended place of employment, unless specifically designated for local filing . . . .”
8 C.F.R. § 204.5(b) (2004).7 Therefore, the Abdelwahabs argue, only Service Centers
may approve or revoke I-140 petitions. We disagree. A regulation requiring that
petitions be filed in one office is not a directive that only that office may take final
action on a petition. When the I-140 petition was revoked, District Offices were
responsible for administration and enforcement of immigration laws within their
assigned geographic areas “unless any such power and authority . . . has been
exclusively delegated to another immigration official or class of immigration officer.”
8 C.F.R. § 100.2(d)(2)(ii) (2004).8 Because the power to approve or revoke I-140
Ninth Circuit explained in Spencer Enters., Inc. v. United States, 345 F.3d 683, 691
(9th Cir. 2003), § 1252(a)(2)(B)(ii) is a broader prohibition:
[U]nder the APA, even a decision that is wholly discretionary by statute
may be reviewed if regulations or agency practice provide standards by
which an agency's conduct may be judged. Under § 1252(a)(2)(B)(ii) .
. . if the statute specifies that the decision is wholly discretionary,
regulations or agency practice will not make the decision reviewable.
We have previously noted that judicial review may be circumscribed “where a
procedural rule is designed primarily to benefit the agency in carrying out its
functions.” Ngure v. Ashcroft, 367 F.3d 975, 983 (8th Cir. 2004).
7
This provision was amended this year to read: “Form I-140 . . . must be filed
in accordance with the instructions on the form.” 74 Fed. Reg. at 26,936-37.
8
This provision and others were removed from the regulations to increase
agency efficiency. See 74 Fed. Reg. 26,933 (June 5, 2009) (effective July 6, 2009).
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petitions had not been “exclusively delegated to another immigration official or class
of immigration officer,” id., the Abdelwahabs have failed to prove that the St. Paul
District Office acted ultra vires. In these circumstances, an extraordinary writ
invalidating this otherwise valid agency action may not be granted.
2. Even if judicial review is not foreclosed by § 1252(a)(2)(B)(ii), we would
affirm dismissal of the action on the record before the district court. When the district
court acted, USCIS had rescinded its marriage fraud finding and granted the I-130
petition. This removed the basis for the I-140 revocation. Although the revocation
was still in effect, a hearing was pending before the IJ on remand from the BIA, whose
prior ruling triggered the grant of I-130 relief. At this point, there were further
administrative remedies to be exhausted, even if those remedies had appeared to be
exhausted when the lawsuit was first commenced.
3. Finally, even if the I-140 revocation issue is not moot, the Abdelwahabs seek
an improper judicial remedy. They complain that the I-140 approval was not
reinstated nunc pro tunc. But that is an issue of administrative remedy that must be
raised to the agency. If the extent of the remedy is ultimately subject to judicial
review -- which is highly doubtful because the extent of an administrative remedy is
a quintessentially discretionary agency action -- it may only be reviewed after the
agency has considered the question. Instead, the Abdelwahabs seek an interlocutory
declaratory judgment that they hope will persuade the agency to grant further relief,
or a judicial order usurping the agency’s remedial authority. In either event, such
relief was clearly beyond the district court’s jurisdiction under the Immigration and
Nationality Act.
The judgment of the district court is affirmed.
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