Mohammad Poursina v. Uscis ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOHAMMAD POURSINA, No. 17-16579
Plaintiff-Appellant,
D.C. No.
v. 4:16-cv-00591-
RCC
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES; DAVID
ROARK, Director, Texas Service OPINION
Center, United States Citizenship
and Immigration Services; JAMES
MCCAMENT, Acting Director, United
States Citizenship and Immigration
Services; RON ROSENBERG, Chief,
Administrative Appeals Office,
United States Citizenship and
Immigration Services,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted February 12, 2019
San Francisco, California
Filed August 28, 2019
2 POURSINA V. USCIS
Before: Mary M. Schroeder, Diarmuid F. O’Scannlain,
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge O’Scannlain
SUMMARY *
Immigration
Affirming the district court’s dismissal for lack of
subject-matter jurisdiction of Mohammad Poursina’s suit
challenging the denial of his petition for a national-interest
waiver related to his application for a work visa, the panel
held that 8 U.S.C. § 1252(a)(2)(B)(ii) strips the federal
courts of jurisdiction to review the denial of a national-
interest waiver.
Poursina applied to the United States Citizenship and
Immigration Services (USCIS) for a permanent
employment-based visa. Generally, an immigrant seeking
such a visa must show that his services are sought by an
employer in the United States. Because Poursina could not
make that showing, he submitted a petition for a national-
interest waiver under 8 U.S.C. § 1153(b)(2)(B)(i), which
provides that USCIS “may, when [USCIS] deems it to be in
the national interest, waive” the requirement that the alien’s
services be sought by a U.S. employer. USCIS denied the
petition, and Poursina sought review in the district court,
which dismissed for lack of subject-matter jurisdiction.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
POURSINA V. USCIS 3
The panel held that 8 U.S.C. § 1252(a)(2)(B)(ii) strips
the federal courts of jurisdiction to review the denial of a
national-interest waiver. Section 1252(a)(2)(B)(ii) provides
that no court shall have jurisdiction to review “a 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.” The panel concluded
that § 1153(b)(2)(B)(i)’s plain language specifies that the
authority to grant (or to deny) a national-interest waiver is in
the discretion of the Attorney General. In so concluding, the
panel explained that the statute states that the Attorney
General may waive the requirement and explained that the
statute’s instruction that the waiver should only issue if the
Attorney General “deems it to be in the national interest”
reinforces its discretionary nature.
The panel also noted that § 1252(a)(2)(B)(ii) allows the
courts to review certain legal conclusions, but concluded that
the exception did not save Poursina’s non-constitutional
claims because they simply repacked his core grievance that
USCIS should have exercised its discretion in his favor.
Reviewing Poursina’s due process claim that he did not
receive a copy of USCIS’s request for evidence or the denial
of his second petition, the panel observed that his
constitutional claim also was not subject to
§ 1252(a)(2)(B)(ii)’s bar, but concluded that the claim failed
on the merits because notice was reasonably calculated to
reach him.
4 POURSINA V. USCIS
COUNSEL
Stacy Tolchin (argued) and Megan Brewer, Law Offices of
Stacy Tolchin, Los Angeles, California, for Plaintiff-
Appellant.
Yamileth G. Davila (argued) and Glenn Girdharry, Assistant
Directors; William C. Peachey, Director, District Court
Section; Office of Immigration Litigation, Civil Division,
United States Department of Justice; Washington, D.C., for
Defendants-Appellees.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether federal courts may review the
denial of a “national-interest waiver” by the United States
Citizenship and Immigration Services to an Iranian citizen
with advanced engineering degrees who sought a permanent
visa.
I
A
Mohammad Poursina is an Iranian citizen with two
degrees in mechanical engineering from the University of
Tehran. In 2006, he entered the United States on a student
visa to continue his studies at the Rensselaer Polytechnic
Institute in Troy, New York. Between 2006 and 2011,
Poursina’s student status authorized him to live and to work
in the United States, but his authorization lapsed after he
earned his doctoral degree. Thus, in June 2012, Poursina
asked the United States Citizenship and Immigration
POURSINA V. USCIS 5
Services (“USCIS”) to grant him a permanent employment-
based visa under 8 U.S.C. § 1153(b)(2).
1
Pursuant to such provision, USCIS may grant work visas
to immigrants holding “advanced degrees” or to those with
“exceptional ability in the sciences, arts, or business.” 1 8
U.S.C. § 1153(b)(2)(A). Generally, an immigrant seeking a
work visa must show that his “services . . . are sought by an
employer in the United States.” Id. To do so, he must obtain
a “labor certification” from the United States Department of
Labor. See 8 U.S.C. § 1182(a)(5)(A), (D); 8 C.F.R.
§ 204.5(k)(4).
But there is an exception to the labor-certification
requirement: “[USCIS] may, when [USCIS] deems it to be
in the national interest, waive the requirements of
subparagraph (A) that an alien’s services . . . be sought by an
employer in the United States.” 8 U.S.C. § 1153(b)(2)(B).
No statute defines when such a “national-interest waiver”
should be granted, but USCIS has issued “precedent[ial]
decision[s] establishing a framework for evaluating national
interest waiver petitions.” In re Dhanasar, 26 I. & N. Dec.
884, 886 (USCIS AAO 2016) (citing In re N.Y. State Dep’t
1
The statute’s text authorizes the Attorney General to grant work
visas, but Congress transferred that authority to the Secretary of
Homeland Security in the Homeland Security Act of 2002. Pub. L. No.
107-296, § 1517, 116 Stat. 2135, 2311 (codified at 6 U.S.C. § 557). In
turn, the Secretary sub-delegated it to USCIS. See 8 C.F.R. § 100.1; id.§ 204.5; see also Zhu v. Gonzales, 411 F.3d 292, 293 (D.C. Cir. 2005)
(discussing the source of USCIS’s authority); In re Dhanasar, 26 I. & N.
Dec. 884, 886 & n.2 (USCIS AAO 2016) (same). References to the
Attorney General in this opinion therefore apply to USCIS.
6 POURSINA V. USCIS
of Transp. (NYSDOT), 22 I. & N. Dec. 215 (BIA 1998),
overruled by Dhanasar, 26 I & N. Dec. at 884).
2
Poursina could not show that an employer sought his
services, so he requested a national-interest waiver when he
submitted his 2012 visa application. In 2014, USCIS denied
his request, and Poursina then appealed to USCIS’s
Administrative Appeals Office (“AAO”). The AAO
concluded that the “evidence submitted” did not “establish[]
that a waiver of the requirement of an approved labor
certification w[ould] be in the national interest of the United
States.” The AAO therefore dismissed Poursina’s appeal.
B
Poursina then brought this suit in the District of Arizona
challenging USCIS’s denial of his petition. He alleged that
USCIS’s refusal to grant a national-interest waiver violated
the Immigration and Nationality Act (“INA”), violated the
agency’s own regulations and precedential decisions, and
was arbitrary and capricious under the Administrative
Procedure Act (“APA”). Poursina therefore asked the district
court to order USCIS either to reconsider its refusal or to
grant him an employment-based visa.
The district court dismissed Poursina’s claims for lack of
subject-matter jurisdiction, reasoning that 8 U.S.C.
§ 1252(a)(2)(B)(ii) barred review. Such provision precludes
federal courts from reviewing certain decisions “the
authority for which is specified . . . to be in the discretion of
the Attorney General or the Secretary of Homeland
Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). Citing our
unpublished decision in Sodipo v. Rosenberg, the district
court concluded that USCIS’s decision to deny a national-
POURSINA V. USCIS 7
interest waiver was a discretionary decision that the court
lacked jurisdiction to review. 679 F. App’x 633, 633–34 (9th
Cir. 2017) (holding that a decision to deny a national-interest
waiver falls under § 1252(a)(2)(B)(ii)).
Poursina timely appealed.
II
Poursina contends that the district court erred in
concluding that it lacked jurisdiction to consider his claim.
He argues that 28 U.S.C. § 1331—the general federal-
question jurisdictional statute—allows the district court to
consider his APA challenge to USCIS’s denial of his request
for a national-interest waiver. By contrast, the government
urges that § 1252(a)(2)(B)(ii) strips the district court of
jurisdiction to consider Poursina’s claims. It argues that
USCIS’s refusal to issue a national-interest waiver is
“specified” by statute to be in its “discretion.”
A
Presented with these competing claims, it falls to us to
decide whether the decision to grant (or to refuse) a national-
interest waiver comes within § 1252(a)(2)(B)(ii)’s
jurisdictional bar. The Supreme Court has instructed that
such jurisdictional statutes must be “construed both with
precision and with fidelity to the terms by which Congress
has expressed its wishes.” Kucana v. Holder, 558 U.S. 233,
252 (2010) (quoting Cheng Fan Kwok v. INS, 392 U.S. 206,
212 (1968)). At the same time, challenges to administrative
action enjoy a “presumption favoring judicial review,”
which applies with particular force to “questions concerning
the preservation of federal-court jurisdiction.” Id. at 251.
These background principles inform our analysis here.
8 POURSINA V. USCIS
1
We begin with the text of § 1252(a)(2)(B)(ii)’s
jurisdictional bar:
[R]egardless of whether the judgment,
decision, or action is made in removal
proceedings, no court shall have jurisdiction
to review . . . any other 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 . . . .
8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). By its own
terms, such provision “refers not to ‘discretionary
decisions,’ . . . but to acts the authority for which is specified
under the INA to be discretionary.” Spencer Enters., Inc. v.
United States, 345 F.3d 683, 689 (9th Cir. 2003). Given such
text, our cases hold that the provision precludes review only
if a congressional statute—codified in the relevant
subchapter, see 8 U.S.C. §§ 1151–1382—vests the
government with authority to make a discretionary decision.
See ANA Int’l, Inc. v. Way, 393 F.3d 886, 891–93 (9th Cir.
2004) (“ANA International”); Spencer Enters., 345 F.3d at689–91. Stated differently, it is not enough that a decision is
discretionary, as with non-enforcement decisions under
background rules of administrative law, see, e.g., Heckler v.
Chaney, 470 U.S. 821, 832–33 (1985); instead, Congress
must state that the government has such discretion. See
Soltane v. U.S. Dept. of Justice, 381 F.3d 143, 146 (3rd Cir.
2004) (Alito, J.) (“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.”).
POURSINA V. USCIS 9
Here, Congress has “specified” that the issuance of
national-interest waivers is “discretionary.” Once again, the
statute states that “the Attorney General may, when the
Attorney General deems it to be in the national interest,
waive the requirement[] . . . that an alien’s services in the
sciences, arts, professions, or business be sought by an
employer in the United States.” 8 U.S.C. § 1153(b)(2)(B)(i)
(emphasis added). Congress’s use of “may”—rather than
“must” or “shall”—brings along the usual presumption of
discretion. See Jama v. Immigration & Customs Enf’t,
543 U.S. 335, 346 (2005). Indeed, subsection (B)(i)’s use of
“may” contrasts with subsection (B)(ii), which delineates
cases in which the Attorney General “shall grant a national
interest waiver.” 8 U.S.C. § 1153(a)(2)(B)(ii)(I) (emphasis
added).
Further, the statute’s instruction that the waiver should
issue only if the Attorney General “deems it to be in the
national interest” reinforces its discretionary nature.
Congress’s use of “deems” connotes that the Attorney
General’s determination involves some measure of
judgment. And the invocation of the “national interest” is a
core example of a consideration that lacks a judicially
manageable standard of review. Thus, in Webster v. Doe, the
Supreme Court concluded that an analogous provision
“fairly exude[d] deference” to the Executive Branch.
486 U.S. 592, 600 (1988) (discussing a statute that provided
that “the Director of Central Intelligence may, in his
discretion, terminate the employment of any officer or
employee of the Agency whenever he shall deem such
termination necessary or advisable in the interests of the
United States”)).
Indeed, the D.C. Circuit has already concluded that
review of “a decision to deny a waiver of the labor
10 POURSINA V. USCIS
certification requirement [is] barred by § 1252(a)(2)(B)(ii).”
Zhu v. Gonzales, 411 F.3d 292, 294 (D.C. Cir. 2005). Parsing
§ 1153(b)(2)(B)(i)’s text, the D.C. Circuit reasoned that
Congress’s use of “‘national interest’ . . . calls upon [the
Attorney General’s] expertise and judgment unfettered by
any statutory standard whatsoever,” and that the use of the
permissive “may” indicated that his decision is “not to be
questioned . . . in a court.” Id. at 295 (internal quotation
marks omitted). Indeed, citing our decision in Spencer
Enterprises, the D.C. Circuit held that the decision to deny a
national-interest waiver “is, in the parlance of the Ninth
Circuit, ‘entirely discretionary.’” Id. (quoting Spencer
Enters., 345 F.3d at 690).
We agree. Altogether, § 1153(b)(2)(B)(i)’s plain
language specifies that the authority to grant (or to deny) a
national-interest waiver is in the discretion of the Attorney
General.
2
Our conclusion that § 1252(a)(2)(B)(ii) bars review of
decisions under § 1153(b)(2)(B)(i) is buttressed by the
Supreme Court’s interpretation of a neighboring
jurisdictional bar: § 1252(a)(2)(B)(i). See Kucana, 558 U.S.
at 233. Section 1252(a)(2)(B)(i) precludes courts from
reviewing “any judgment regarding the granting of relief
under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this
title.” For ease of reference, we refer to § 1252(a)(2)(B)’s
two jurisdiction-stripping provisions as “clause (i)” and
“clause (ii).”
In Kucana, the Supreme Court stated that clauses (i) and
(ii) should be read “harmoniously.” 558 U.S. at 247. The
Court reasoned that clause (i) enumerates several specific
decisions that Congress “insulated from judicial review,”
POURSINA V. USCIS 11
while clause (ii) functions as a “catchall provision”
precluding review over “decisions of the same genre.” Id.
at 246. The Court based such conclusion both on the
“proximity” of the two clauses and on the “words linking
them.” Id. Specifically, after clause (i) lists the series of
statutes regarding which review is barred, clause (ii) states
that “any other decision” specified to be discretionary is also
barred. Id. (emphasis added). Under Kucana’s reasoning,
therefore, the language of the provisions enumerated in
clause (i) “is instructive in determining the meaning of the
clause (ii) catchall.” Id. at 247.
Relevant here, Congress used language similarly
authorizing the Attorney General to elect to take certain
actions under the provision governing national-interest
waivers, see § 1153(b)(2)(B)(i), and under the provisions
enumerated in clause (i), see 8 U.S.C. § 1182(h) (“The
Attorney General may, in his discretion, waive . . .”); id.§ 1182(i) (“The Attorney General may, in the discretion of
the Attorney General, waive . . .”); id. § 1229b(a) (“The
Attorney General may cancel removal in the case of an alien
who is inadmissible or deportable from the United States if
the alien . . .”); id. § 1229c(a)(1) (“The Attorney General
may permit an alien voluntarily to depart the United States
. . . if the alien is not deportable . . .”); id. § 1255 (“The status
of an alien . . . may be adjusted by the Attorney General, in
his discretion and under such regulations as he may
prescribe, to that of an alien lawfully admitted for permanent
residence if . . .”). Just like the language in the national-
interest-waiver provision, each of these provisions uses
“may” to authorize the Attorney General to take some
action—reaffirming that Congress’s inclusion of “may”
confers the kind of discretion contemplated in
§ 1252(a)(2)(B).
12 POURSINA V. USCIS
Indeed, even the variation among these clause (i)
provisions suggests that § 1153(b)(2)(B)(i) confers a similar
type of discretion. Sometimes, Congress chose expressly to
commit a decision to the Attorney General’s “discretion.”
For instance, one provision states that he “may, in his
discretion, waive” certain requirements. 8 U.S.C. § 1182(h)
(emphasis added); see also id. § 1255(a) (similar).
Elsewhere, however, Congress listed a series of conditions
that must be satisfied before the Attorney General exercises
his discretion. Another provision, for instance, states that the
Attorney General “may cancel removal,” but only if the alien
has been a “permanent residen[t]” for five years, has resided
here for seven, and has not been “convicted of any
aggravated felony.” 8 U.S.C. § 1229b(a).
These variations among the clause (i) provisions
demonstrate that Congress used a wide range of language to
commit decisions to the government’s discretion, and
§ 1153(b)(2)(B)(i)’s language is comfortably within that
range. Although it does not expressly mention “discretion,”
the condition on the Attorney General’s power (i.e., that its
exercise be “in the national interest”) is far less restrictive
than, say, those delineated in § 1229b(a). Thus,
§ 1153(b)(2)(B)(i) falls within the “genre” of “decisions . . .
made discretionary by legislation.” Kucana, 558 U.S.
at 246–47.
The Court’s reasoning in Kucana therefore supports our
conclusion that § 1252(a)(2)(B)(ii) strips federal courts of
jurisdiction to review USCIS’s decision to deny a national-
interest waiver to Poursina.
B
Poursina responds that our decision in ANA International
compels a contrary result. There, we held that
POURSINA V. USCIS 13
§ 1252(a)(2)(B)(ii) did not prevent the court from reviewing
the Attorney General’s revocation of a visa under 8 U.S.C.
§ 1155. 393 F.3d at 888–89. The statute in that case read as
follows: “the Attorney General ‘may, at any time, for what
he deems to be good and sufficient cause, revoke the
approval of any petition [for an immigrant visa].’” Id. at 893(quoting 8 U.S.C. § 1155). Although we conceded that such
language conferred “some measure of discretion,” we
nevertheless held that Congress’s use of “good and sufficient
cause” bounded the Attorney General’s discretion “by
objective criteria”—and thus rendered the claim reviewable.
Id. at 893–94. Importantly, to find such objective criteria, we
turned to “the agency’s own published interpretation of its
statute,” reasoning that it could inform how the court should
“read th[e] statute.” Id. at 893; see also id. at 894 (citing
Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d
1305 (9th Cir. 1984); Matter of Tawfik, 20 I. & N. Dec. 166(BIA 1990)).
Poursina invites us to extend ANA International’s
reasoning to the present case. He notes that both statutes bear
the same basic linguistic and logical structure: if the
Attorney General “deems” X, then he “may” do Y. And just
as an agency rule in ANA International gave determinative
content to “good or sufficient cause,” he argues, so too
agency interpretations of § 1153(b)(2)(B)(i) can inform the
meaning of “in the national interest.” See Dhanasar, 26 I. &
N. Dec. at 884; NYSDOT, 22 I. & N. Dec. at 215. Because
these interpretations impose “objective criteria” that
constrain USCIS’s exercise of discretion, Poursina
continues, the refusal to issue a national-interest waiver falls
outside of § 1252(a)(2)(B)(ii)’s jurisdictional bar.
14 POURSINA V. USCIS
1
Contrary to Poursina’s argument, this case is different
from ANA International. First, the USCIS decision that
Poursina argues imposes “objective criteria” on its discretion
does no such thing. An alien seeking a national-interest
waiver must show:
(1) that the foreign national’s proposed
endeavor has both substantial merit and
national importance; (2) that the foreign
national is well positioned to advance the
proposed endeavor; and (3) that, on balance,
it would be beneficial to the United States to
waive the requirements of a job offer and thus
of a labor certification. If these three elements
are satisfied, USCIS may approve the
national interest waiver as a matter of
discretion.
Dhanasar, 26 I. & N. Dec. at 889 (emphasis added). Such
test might flesh out the substance of the “national interest”
language, but it still calls for a series of open-ended
judgments—about “substantial merit,” “national
importance,” and “benefit[s] to the United States”—that fall
well short of an administrable “legal standard[] that will
permit review under § 1252.” ANA Int’l, 393 F.3d at 893.
Moreover, USCIS’s decision still expressly reserves the
power to issue a national-interest waiver “as a matter of
discretion.” 2
2
Poursina also cites the agency’s older precedent in NYSDOT, 22
I. & N. Dec. at 215, which Dhanasar overruled. Regardless, that decision
POURSINA V. USCIS 15
Likewise, the statute in this case differs from the one in
ANA International. In a variety of contexts, federal courts
must make findings of “good cause.” E.g., Nutraceutical
Corp. v. Lambert, 139 S. Ct. 710, 715 (2019) (collecting
examples from the Federal Rules of Appellate, Criminal, and
Civil Procedure); California v. Azar, 911 F.3d 558, 575 (9th
Cir. 2018) (discussing the “good cause” exception to the
APA’s requirement for notice-and-comment rulemaking);
Blake v. Baker, 745 F.3d 977, 980–81 (9th Cir. 2014)
(discussing, in a habeas case, “what constitutes good cause
to excuse a petitioner’s failure to exhaust”). Because good-
cause determinations often fall to federal judges, Congress’s
choice of such language might impose an administrable legal
standard on the government—and thus one that renders its
decision reviewable, despite § 1252(a)(2)(B)(ii)’s
jurisdictional bar.
By contrast, the “national interest” standard invokes
broader economic and national-security considerations, and
such determinations are firmly committed to the discretion
of the Executive Branch—not to federal courts. See Trump
v. Hawaii, 138 S. Ct. 2392, 2409 (2018) (explaining that
where the President has statutory discretion to determine if
an alien’s entry “would be detrimental to the interests of the
United States,” federal courts should not inquire “into the
persuasiveness of the President’s justifications”). We ought
not infer from Congress’s use of “national interest” that,
notwithstanding § 1252(a)(2)(B)(ii), federal courts should
review the refusal to issue a national-interest waiver. Thus,
we conclude that the statute’s use of “in the national
establishes a similarly open-ended test, see id. at 217–18, so nothing
turns on which one we evaluate.
16 POURSINA V. USCIS
interest,” rather than “for good and sufficient cause,”
distinguishes the present case from ANA International.
2
Indeed, even if the present statute resembled the one
discussed in ANA International, we would hesitate to extend
such decision beyond its narrow holding. First, doing so
could create tension with Kucana, which held that
§ 1252(a)(2)(B) applies only to “determinations made
discretionary by statute”—not to “determinations declared
discretionary . . . through regulation.” Kucana, 558 U.S. at
237. If an agency regulation cannot render a decision
discretionary (and thus forbid review), then neither should it
render it non-discretionary (and thus permit review). Cf. id.
at 252 (“By defining the various jurisdictional bars by
reference to other provisions in the INA itself, Congress
ensured that it, and only it, would limit the federal courts’
jurisdiction. To read § 1252(a)(2)(B)(ii) to apply to matters
where discretion is conferred on the Board by regulation,
rather than on the Attorney General by statute, would ignore
that congressional design.”).
Second, ANA International is an outlier among the
federal circuit courts. See Bernardo ex rel. M & K Eng’g,
Inc. v. Johnson, 814 F.3d 481, 484–85 (1st Cir. 2016);
Mehanna v. U.S. Citizenship & Immigration Servs., 677 F.3d
312, 314–15 (6th Cir. 2012); Green v. Napolitano, 627 F.3d
1341, 1345 n.3 (10th Cir. 2010); Abdelwahab v. Frazier,
578 F.3d 817, 821 (8th Cir. 2009); Jilin Pharm. USA, Inc. v.
Chertoff, 447 F.3d 196, 204 (3d Cir. 2006); Holy Virgin
Prot. Cathedral of the Russian Orthodox Church Outside
Russia v. Chertoff, 499 F.3d 658, 661–62 (7th Cir. 2007);
Ghanem v. Upchurch, 481 F.3d 222, 223–25 (5th Cir. 2007).
We are disinclined to depart further from such decisions.
POURSINA V. USCIS 17
In sum, because USCIS’s decision to deny a national-
interest waiver is specified to be in its discretion,
§ 1252(a)(2)(B)(ii) strips the federal courts of jurisdiction to
review USCIS’s refusal.
III
Next, Poursina contends that, even if the ultimate
issuance of the waiver remains discretionary, several of
USCIS’s underlying conclusions remain reviewable because
they were “purely legal” questions and thus “non-
discretionary.” He alleges, as relevant here, that the agency’s
regulations and precedential decisions misinterpret
§ 1153(b)(2)(B), that the agency failed to consider certain
evidence, and that the agency misinterpreted the evidence it
did consider. He also claims that USCIS violated his due
process rights because the agency failed to provide proper
notice when it denied a second request for a national-interest
waiver, which he filed in 2014.
A
Although § 1252(a)(2)(B)(ii) allows us to review certain
legal conclusions made on “nondiscretionary grounds,”
Mamigonian v. Biggs, 710 F.3d 936, 945 (9th Cir. 2013); see
also Kwai Fun Wong v. United States, 373 F.3d 952, 963
(9th Cir. 2004), such exception does not save his non-
constitutional claims. The essence of Poursina’s complaint
is that USCIS should have exercised its discretion to issue a
national-interest waiver, and his various claims simply
repackage that core grievance. At bottom, USCIS rejected
Poursina’s application because it concluded that Poursina
did not “establish[] that a waiver . . . w[ould] be in the
national interest of the United States.” For the reasons
expressed above, such a determination is not a “purely legal”
decision, but rather a core exercise of the discretion that the
18 POURSINA V. USCIS
statute vests in the government. Poursina’s argument
therefore fails.
B
Finally, Poursina challenges the denial of his second
request for a national-interest waiver as a deprivation of due
process. In 2014, Poursina filed another application for an
employment-based visa, and he again asked USCIS to waive
the labor-certification requirement. USCIS issued a “request
for evidence” and mailed it to Poursina’s home address.
Because Poursina did not respond, USCIS concluded that his
application had been “abandon[ed]” and therefore denied it.
Poursina claims, however, that he “never received a copy”
of the request for evidence or the denial of the second
petition. Poursina therefore argues that he “did not receive
proper notice” of USCIS’s request for evidence and the
subsequent denial of the petition.
This constitutional claim is not subject to
§ 1252(a)(2)(b)(ii)’s jurisdictional bar. See Kwai Fun Wong,
373 F.3d at 963 (“[D]ecisions that violate the Constitution
cannot be ‘discretionary,’ so claims of constitutional
violations are not barred by § 1252(a)(2)(B).”).
Nevertheless, Poursina’s claim fails on the merits because
notice was “reasonably calculated to ensure that notice
reach[ed]” him. Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.
1997) (citing Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 318 (1950)). Here, Poursina admits that the
request for evidence and the denial of his petition were sent
to his home address on June 30, 2014, and October 7, 2014,
respectively. But Poursina did not update his address with
USCIS until June 8, 2015—almost a year later. Thus, USCIS
satisfied due process because it sent notice by regular mail
“to the address given.” Id. Poursina’s constitutional
argument also fails.
POURSINA V. USCIS 19
IV
The judgment of the district court is AFFIRMED.