iTech U.S., Inc v. Tracy Renaud ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 6, 2021 Decided July 20, 2021
No. 20-5235
ITECH U.S., INC,
APPELLANT
v.
TRACY RENAUD, ACTING DIRECTOR, UNITED STATES
CITIZENSHIP AND IMMIGRATION SERVICES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-03352)
Geoffrey Forney argued the cause for appellant. With him
on the briefs was Bradley B. Banias.
Aaron S. Goldsmith, Senior Litigation Counsel, U.S.
Department of Justice, argued the cause for appellee. With him
on the brief were Brian M. Boynton, Acting Assistant Attorney
General, and Glenn M. Girdharry, Assistant Director. Kenneth
A. Adebonojo and R. Craig Lawrence, Assistant U.S. Attorneys
entered appearances.
Before: SRINIVASAN, Chief Judge, WILKINS and KATSAS,
Circuit Judges.
2
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: iTech US, Inc. (“iTech”) filed an
I-140 immigrant visa petition on behalf of Vishnu Vardhana
Reddy Katta Sai Sampoorna (“Reddy”). Approval of an I-140
petition is one step on an immigrant worker’s long path to
acquire permanent resident status. United States Citizenship
and Immigration Services (“USCIS”) approved the petition,
but revoked its approval three years later. When iTech
petitioned the District Court for review of that decision, the
District Court found that Congress placed visa revocation
decisions within the unreviewable discretion of the executive
and dismissed iTech’s suit for lack of jurisdiction. We agree.
Joining nine of our sister Circuits, we affirm.
I.
This appeal concerns two interlocking provisions of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et
seq. Some background is necessary to understand how Mr.
Reddy acquired and lost his non-immigrant status.
A.
“The INA allows for a certain number of immigrants to
receive permanent residency through employer sponsorship.”
Mantena v. Johnson, 809 F.3d 721, 724 (2d Cir. 2015); see 8
U.S.C. § 1153(b)(2)(A) (establishing the percentage of visas
available to “qualified immigrants who are members of the
professions holding advanced degrees or their equivalent . . .
and whose services in the sciences, arts, professions, or
business are sought by an employer in the United States”).
Immigrant workers and their potential employers must follow
a three-step process. First, the Department of Labor (“DOL”)
must certify that the “labor market can absorb the immigrant
without affecting other workers’ wages.” Mantena, 809 F.3d
3
at 724; see also 8 U.S.C. § 1182(a)(5)(A)(i). Once DOL
certifies the position, USCIS must approve the employer’s I-
140 immigrant visa petition. Mantena, 809 F.3d at 724–25; see
also 8 U.S.C. § 1154(b) (directing that “the Attorney General
shall, if he determines that the facts stated in the petition are
true and that the alien . . . is eligible for preference under
subsection (a) or (b) of section 1153 of this title, approve the
petition and forward one copy thereof to the Department of
State”); 1 8 C.F.R. § 204.5(a)–(c) (establishing Form I-140 as
the proper vehicle to petition the agency for classification
under section 1153(b)(2)). Once granted, an immigrant visa
petition under Form I-140 is valid indefinitely, 8 C.F.R.
§ 204.5(n)(3), though it may be revoked “at any time,” 8 U.S.C.
§ 1155.
Once USCIS grants the I-140 petition, an immigrant
worker is eligible to stand in line for an immigrant visa number
to be issued by the Department of State. United States v. Ryan-
Webster, 353 F.3d 353, 356 (4th Cir. 2003). “Because there
are limits on the number of such visas in each category and
from each country, immigrants must often wait many years for
a permanent residency visa, especially if they are from a
country, like India, that sends a large number of immigrants to
the United States.” Mantena, 809 F.3d at 725. Finally, with
visa number in hand, the immigrant worker may file a Form I-
485, his application to have his non-immigrant status adjusted
to become a permanent resident entitled to live and work in the
United States. See 8 U.S.C. § 1255(a); 8 C.F.R. § 204.5(n)(1).
At any point in this process, a USCIS officer may revoke
the approval of an I-140 immigrant visa petition “when the
1
Congress delegated to the Secretary of Homeland Security, through
USCIS, the authority to adjudicate immigrant visa petitions in 2002.
See Homeland Security Act of 2002, Pub. L. No. 107-296,
§ 451(b)(1) (Nov. 25, 2002) (6 U.S.C. § 271(b)(1)).
4
necessity for the revocation comes to [its] attention.” 8 C.F.R.
§ 205.2(a). This statutory authority stems from section 1155,
which provides that the Secretary of Homeland Security
(“Secretary”) “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,” including
immigrant visa petitions based on Form I-140. 8 U.S.C.
§ 1155. 2 If the officer ultimately decides to revoke a Form I-
140 petition, the petitioner may file an administrative appeal.
See 8 C.F.R. § 205.2(d); id. § 103.3. No party disputes those
procedures were followed here.
B.
iTech filed an I-140 immigrant visa petition on behalf of
Mr. Reddy in July 2015. J.A. 1. USCIS approved the petition
two months later. J.A. 14. In its application, iTech produced
evidence of its ability to pay the proffered wage and evidence
that Mr. Reddy had obtained a bachelor’s degree, “in the form
of a degree certificate from the University of Madras along
with transcripts from 1999 through 2002.” Appellant’s Br. at
3; J.A. 6–13, 16. A year and a half later, USCIS issued a notice
of intent to revoke the approved petition. J.A. 14. The agency
grounded its revocation in the “realization that [the] immigrant
visa petition was approved in error” and identified
“inconsistencies in the record calling into question whether the
beneficiary meets the educational requirements of the labor
certification” and whether iTech “continues to demonstrate the
ability to pay the proffered wage.” J.A. 14, 16–17.
iTech provided additional documentation in response to
the notice to revoke, J.A. 20–22, but USCIS ultimately decided
2
The Secretary has delegated his revocation authority to any USCIS
officer authorized to approve employment-based immigrant visa
petitions. 8 C.F.R. §§ 2.1, 205.2(a).
5
to revoke its approval of the I-140 petition on the basis that
iTech misrepresented Mr. Reddy’s degree-conferring
institution and employment qualifications, J.A. 39, 43–45, and
did not establish its ability to pay the proffered wage, J.A. 48–
51. On August 22, 2018, iTech filed a timely motion to reopen,
J.A. 54–62, which USCIS denied a year later, J.A. 94.
This appeal comes to us from the District Court’s July 24,
2020 grant of the agency’s motion to dismiss for lack of
jurisdiction. iTech US, Inc. v. Cuccinelli, 474 F. Supp. 3d 291,
292 (D.D.C. 2020). iTech brought suit under the
Administrative Procedure Act, alleging that USCIS’s decision
to revoke its I-140 petition was arbitrary and capricious
because the agency failed “to engage in rational decision-
making based on the evidence in the record relating to the
Company’s ability to pay and [Mr. Reddy’s] educational
credentials.” Appellant’s Br. at 8. The District Court granted
the agency’s motion to dismiss, finding that the plain text of
the INA preserves “the Secretary’s ability to revoke a I-140
petition ‘at any time’ and for any reason he ‘deems to be good
and sufficient cause’ [and] renders USCIS’s revocation
decision ‘discretionary’ under § 1155.” iTech, 474 F. Supp. 3d
at 293. A second section, section 1252(a)(2)(B)(ii), “in turn[]
deprives the Court of jurisdiction to review the decision.” Id.
These provisions are discussed in detail below.
II.
We review the District Court’s determination that section
1252(a)(2)(B)(ii) shields the decision to revoke an I-140
petition from judicial review de novo. Zhu v. Gonzales, 411
F.3d 292, 294 (D.C. Cir. 2005). We start from “the
presumption favoring judicial review of administrative action.”
Make the Road New York v. Wolf, 962 F.3d 612, 623 (D.C. Cir.
2020) (quoting Guerrero-Lasprilla v. Barr, — U.S. —, 140 S.
6
Ct. 1062, 1069 (2020)). “That ‘well-settled’ and ‘strong
presumption’ in favor of judicial review is so embedded in the
law that it applies even when determining the scope of statutory
provisions specifically designed to limit judicial review,” id. at
624 (citing Guerrero-Lasprilla, 140 S. Ct. at 1068), and when
considering immigration statutes, including section 1252(a), id.
The “presumption can be overcome only by ‘clear and
convincing evidence’ of congressional intent to preclude
judicial review.” Id.
A.
In the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208,
Div. C (Sept. 30, 1996), “Congress amended the INA
aggressively to expedite removal of aliens lacking a legal basis
to remain in the United States.” Kucana v. Holder, 558 U.S.
233, 249 (2010). “Among IIRIRA’s several proscriptions of
judicial review is the one here at issue, § 1252(a)(2)(B)(ii),
barring review of administrative decisions Congress placed
within the Attorney General’s discretion.” Id. Section
1252(a)(2)(B) is titled “Denials of discretionary relief” and
provides that “no court shall have jurisdiction to review—
(i) any judgment regarding the granting of
relief under section 1182(h), 1182(i),
1229b, 1229c, or 1255 of this title, or
(ii) 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, other than the granting of relief
under section 1158(a) of this title.
7
8 U.S.C. § 1252(a)(2)(B). “‘[T]his subchapter’ refers to Title
8, Chapter 12, Subchapter II, of the United States Code,
codified at 8 U.S.C. §§ 1151–1381 and titled ‘Immigration.’”
Kucana, 558 U.S. at 239 n.3. The question is two-fold. First
we ask whether an I-140 visa revocation made under section
1155 could fall under clause (ii)’s umbrella. If so, we ask
whether section 1155 specifies that visa revocations are in the
Secretary’s discretion. If the answer to both questions is “yes,”
these statutory provisions insulate the Secretary’s decision to
revoke an immigrant visa petition from judicial review.
We focus first on clause (ii), which shields “any other
decision or action” of the Secretary from judicial review. iTech
contends that section 1252(a)(2)(B)(ii) is limited, “as its
heading indicates, to ‘Denials of discretionary relief,’” which
the decision to revoke an I-140 petition is not. Appellant’s Br.
at 25 (quoting 8 U.S.C. § 1252(a)(2)(B)). iTech argues that the
decision to revoke an approved I-140 petition is not a denial of
relief because it “pertains only to the issue of whether a foreign
national has met a preliminary step for obtaining an immigrant
visa.” Appellant’s Br. at 25, 31. The agency does not dispute,
and we assume for the sake of argument, that revocation of an
I-140 petition is not “relief.” The agency instead argues that
the phrase “any other decision or action” in section
1252(a)(2)(B)(ii) refers “to all decisions or actions ‘the
authority for which is specified under this subchapter to be in
the discretion of the Attorney General or the Secretary of
Homeland Security,’” regardless of whether they deny relief.
Appellee’s Br. at 18–19 (citing J.A. 101–02). We read the
statute as the agency does.
“When called on to resolve a dispute over a statute’s
meaning,” we “afford the law’s terms their ordinary meaning
at the time Congress adopted them.” Niz-Chavez v. Garland,
— U.S. —, 141 S. Ct. 1474, 1480 (2021). We exhaust “all the
8
textual and structural clues” at our disposal to uncover
Congress’s intended meaning. Id. (quoting Wis. Cent. Ltd. v.
United States, — U.S. —, 138 S. Ct. 2067, 2074 (2018)). Read
in isolation, “no court shall have jurisdiction to review . . . any
other decision or action of the Attorney General or the
Secretary” could be fairly interpreted to encompass only those
decisions or actions not listed in clause (i) that concern a
decision whether to grant or deny discretionary relief. But we
do not read snippets of statutory text in a vacuum. Torres v.
Lynch, 578 U.S. —, 136 S. Ct. 1619, 1626 (2016) (“[W]e must,
as usual, ‘interpret the relevant words not in a vacuum, but with
reference to the statutory context.’” (quoting Abramski v.
United States, 573 U.S. 169, 179 (2014))). “And beyond
context and structure,” we often look to “‘history [and]
purpose’ to divine the meaning of language.” Gundy v. United
States, 588 U.S. —, 139 S. Ct. 2116, 2126 (2019) (alteration in
original) (quoting Maracich v. Spears, 570 U.S. 48, 76 (2013)).
Taking each in turn, we begin with the text. We ask
whether “any other decision or action” includes decisions left
to the Secretary’s discretion that go beyond denying
discretionary relief. “[U]se of the word ‘any’ will sometimes
indicate that Congress intended particular statutory text to
sweep broadly.” Nat’l Ass’n of Mfrs. v. Dep’t of Def., 583
U.S. —, 138 S. Ct. 617, 629 (2018) (citing Ali v. Fed. Bureau
of Prisons, 552 U.S. 214, 220 (2008)). “But whether it does so
necessarily depends on the statutory context.” Id.; see also Ali,
552 U.S. at 243–44 (Breyer, J., dissenting) (collecting cases).
The reader sees the problem, but perhaps “other” will be of
more help. “Other” means “distinct from that or those first
mentioned or implied,” or, more simply, “not the same.”
WEBSTER’S NEW COLLEGIATE DICTIONARY 823 (10th ed.
1996); see also X THE OXFORD ENGLISH DICTIONARY 981 (2d
ed. 1989) (“Existing besides, or distinct from, that already
mentioned or implied; not this, not the same, different in
9
identity; further, additional.”). But those definitions tell us
little because they do not indicate how the “other decision[s]”
referred to in clause (ii) are “distinct from” the “judgment[s]
regarding the granting of relief” referred to in clause (i). Are
the decisions referred to in clause (ii) distinct from those
referred to in clause (i) because clause (ii) sweeps broadly to
include any decision Subchapter II “specifie[s]” to fall within
the Secretary’s discretion, whether or not it involves a denial
of discretionary relief? Or are they distinct simply because
they are not made under section 1182(h), 1182(i), 1229b,
1229c, or 1255, but nonetheless concern relief from removal?
“[S]taring at, or even looking up,” Torres, 136 S. Ct. at 1626,
the words “any other” cannot answer whether section
1252(a)(2)(B) is limited to denials of discretionary relief.
We look next to the surrounding text. Section
1252(a)(2)(B)’s introduction instructs that, “[n]otwithstanding
any other provision of law (statutory or nonstatutory),
including section 2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such title, . . . and
regardless of whether the judgment, decision, or action is made
in removal proceedings, no court shall have jurisdiction to
review” the decisions specified in clauses (i) and (ii). 8 U.S.C.
§ 1252(a)(2)(B). The modifier “regardless of whether the
judgment, decision, or action is made in removal proceedings”
conveys that section 1252(a)(2)(B) is not a narrowly cabined
provision. And Congress’s choice to include the modifier
“statutory or nonstatutory” and specific call-out to Code
provisions beyond Title 8 imparts a broad reading of “any other
provision of law.” “Where, as here, Congress uses similar
statutory language and similar statutory structure in two
adjoining provisions, it normally intends similar
interpretations.” Nijhawan v. Holder, 557 U.S. 29, 39 (2009);
see also Pereira v. Sessions, 585 U.S. —, 138 S. Ct. 2105, 2115
(2018) (“[I]t is a normal rule of statutory construction that
10
identical words used in different parts of the same act are
intended to have the same meaning.” (quoting Taniguchi v.
Kan Pac. Saipan, Ltd., 566 U.S. 560, 571 (2012))).
iTech pushes an alternative structural reading. It invokes
the canons of noscitur a sociis and ejusdem generis to argue
that because a visa revocation made under section 1155 is “not
of the same type [of decision] as those specifically mentioned
in the statutory list of items withdrawn from judicial review, it
does not fall within Section 1252(a)(2)(B)(ii).” Appellant’s Br.
at 28. Under those canons, “where general words follow an
enumeration of specific items, the general words are read as
applying only to other items akin to those specifically
enumerated.” NASDAQ Stock Mkt., LLC v. SEC, 961 F.3d 421,
428 (D.C. Cir. 2020) (quoting Harrison v. PPG Indus., Inc.,
446 U.S. 578, 588 (1980)). In iTech’s reading, clause (ii)
serves as a safety net to pull in INA provisions which Congress
did not explicitly name in clause (i), but which nonetheless
allow the Attorney General or Secretary to grant or deny
discretionary relief from removal. But “we do not woodenly
apply limiting principles every time Congress includes a
specific example along with a general phrase.” Ali, 552 U.S.
at 227; see, e.g., Potomac Elec. Power Co. v. Dir., Off. of
Workers’ Comp. Programs, 449 U.S. 268, 274 (1980) (“Nor
are we free to read the subsequent words ‘all other cases’ as
though they described ‘all of the foregoing’ as well; the use of
the word ‘other’ forecloses that reading.”). 3
3
As in Ali, section 1252(a)(2)(B) is disjunctive: no court has
jurisdiction to review “any judgment regarding the granting of relief
under [enumerated sections] or,” 8 U.S.C. 1252(a)(2)(B)(i)
(emphasis added), “any other decision or action of the Attorney
General or the Secretary . . . the authority for which is specified under
this subchapter to be in [his] discretion,” id. §1252(a)(2)(B)(ii). Ali,
552 U.S. at 225 (“The phrase is disjunctive, with one specific and
11
Here, clause (i) concerns “judgment[s] regarding the
granting of relief” made under specific enumerated provisions,
and clause (ii) considers “any other decision or action of the
Attorney General.” Notably, the relevant portion of clause (ii)
does not repeat the language “regarding the granting of relief”
included in clause (i). Clause (ii) refers to the granting of relief
only when carving out a specific decision—“the granting of
relief under section 1158(a)”—from the scope of the clause’s
broad catchall. 8 U.S.C. § 1252(a)(2)(B)(ii); see also
NetCoalition v. SEC, 715 F.3d 342, 350 (D.C. Cir. 2013)
(“Where Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” (quoting
Russello v. United States, 464 U.S. 16, 23 (1983))). In other
words, if Congress intended “any other decision or action” to
be limited to those actions “regarding the granting of relief,” it
either would have said so in the relevant portion of clause (ii),
or left out the limiting language in clause (i). 4
Thus, iTech’s preferred canons come up against another,
expressio unius est exclusio alterius. That is, reading clause
(ii) as the catch-all for the specific provisions in clause (i)
creates inter-canon tension— reading clause (ii) as part of a
continuing list would require us to read the modifier “regarding
the granting of relief” across both subsections, despite the fact
that Congress specifically included that phrase only in clause
(i) and the carveout to clause (ii). We decline to do so,
one general category, not—like the clauses at issue in Keffeler and
Dolan—a list of specific items separated by commas and followed
by a general or collective term.”).
4
We can imagine the alternative version of clause (i), stripping
jurisdiction to review “any judgment under section 1182(h), 1182(i),
1229b, 1229c, or 1255 of this title.” Cf. 8 U.S.C. § 1252(a)(2)(B)(i).
12
especially where the Supreme Court has read “any other” so
broadly as to nullify the usefulness of ejusdem generis because
such “expansive language offers no indication whatever that
Congress intended the limiting construction” that iTech urges.
Harrison, 446 U.S. at 588–89.
iTech faults the District Court for concluding that the text
of section 1252(a)(2)(B) is clear, and its resulting refusal to
allow the section heading to limit the text’s plain meaning.
Appellant’s Br. at 29–30. While section headings are
instructive, section 1252(a)(2)(B)’s heading is of limited use
where the text itself admits of limited ambiguity. See 2A
SUTHERLAND STATUTORY CONSTRUCTION § 47:14 (7th ed.
2007) (“[S]ection headings and notes may be another helpful
resource to interpret an ambiguous statute, but headings and
notes are not binding, may not be used to create an ambiguity,
and do not control an act’s meaning by injecting a legislative
intent or purpose not otherwise expressed in the law’s body.”).
Nor do we find Kucana controlling on the issue at hand simply
because the Supreme Court found that “[t]he clause (i)
enumeration,” was “instructive in determining the meaning of
the clause (ii) catchall.” 558 U.S. at 247; see Appellant’s Br.
at 28–29. That observation supported the conclusion that “both
clauses convey[ed] that Congress barred court review of
discretionary decisions only when Congress itself set out the
Attorney General’s discretionary authority in the statute,” but
not when the Attorney General deemed a decision discretionary
through regulation. Id. Our ruling is not in tension with that
observation because, as shown in part B below, Congress itself
“set out the Attorney General’s discretionary authority” in
section 1155. Id.Finally, looking to IIRIRA’s purpose, we see little basis
for claiming that Congress intended to confine this jurisdiction-
stripping provision to a narrow spectrum of “relief” where
13
“many provisions of IIRIRA 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).
Because the tools of statutory interpretation and the plain text
auger a broad reading bolstered by Congress’s intent in IIRIRA
to expedite review, we find clear and convincing evidence that
Congress intended to preclude judicial review of those
decisions “specified under this subchapter to be in the
discretion of the Attorney General or the Secretary,” whether
or not those decisions grant or deny an immigrant relief from
removal.
B.
We are left to determine whether visa revocations under
section 1155 are “specified . . . to be in the discretion of the
Attorney General or the Secretary.” 8 U.S.C.
§ 1252(a)(2)(B)(ii). Section 1155 provides that
[t]he 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 5
of this title.
Id. § 1155. No statutory gymnastics are necessary here. We
analyzed an analogous INA provision in Zhu v. Gonzales, 411
5
Section 1154 directs the Attorney General to approve immigrant
visa petitions, including those based on Form I-140, “if he
determines that the facts stated in the petition are true and that the
alien . . . is eligible for [an employment-based] preference.” 8 U.S.C.
§ 1154(b).
14
F.3d 292 (D.C. Cir. 2005), and our decision there controls our
holding here.
In Zhu, four foreign citizens sought review of the Attorney
General’s refusal to waive the requirement that they obtain a
labor certification before petitioning for an I-140 immigrant
visa. Id. at 293. “[T]he Attorney General may” waive that
requirement “when [he] deems it to be in the national interest.”
Id. at 293–94 (alteration in original) (quoting 8 U.S.C.
§ 1153(b)(2)(B)(i)). We held the Attorney General’s decision
to waive, or to decline to waive, that requirement “entirely
discretionary,” id. at 295 (internal quotation omitted), and
unreviewable under section 1252(a)(2)(B)(ii), id. at 294. Like
iTech, Zhu argued that decisions “specified . . . to be in the
discretion of the Attorney General” applied only to decisions
made expressly discretionary by the terms of the authorizing
statute. Id. (quoting 8 U.S.C. § 1252(a)(2)(B)(ii)).
Laboring against our precedent, iTech argues that section
1155 cannot specify discretion where Congress did not include
the word “discretion” when it revised section 1155 in 1996 as
part of IIRIRA, nor in 2004 when it amended section 1155 to
transfer authority to revoke approved petitions from the
Attorney General to the Secretary of Homeland Security.
Appellant’s Br. at 19–20. The Zhu Court expressly rejected
this argument: we held that “a decision may be ‘specified . . .
to be in the discretion of the Attorney General’ even if the grant
of authority to make that decision does not use the word
‘discretion.’” 411 F.3d at 294–95. So too here.
iTech next argues that section 1155 does not contain
discretionary language because “good and sufficient cause”
imparts a judicially manageable standard for evaluating the
agency’s decision which the words “may” and “deem” do not
diminish. Appellant’s Br. at 31, 38–41. iTech believes that
15
because the Attorney General interpreted section 1155 to
require use of the same standards the agency uses for
determining initial eligibility for immigrant visa petitions to
revoke approved petitions, those regulations provide the
meaning of “good and sufficient cause” and import a
substantive legal standard for evaluating the agency’s decision.
Appellant’s Br. at 32–33. We need not address this argument,
since Zhu makes clear that the combination of “may” and
“deems” is sufficient to render a statutory grant of authority
like the one in section 1155 discretionary.
Zhu interpreted a provision providing that “the Attorney
General may” waive the requirement for certain DOL
certifications “when [he] deems it to be in the national
interest.” 411 F.3d at 294–95 (quoting 8 U.S.C.
§ 1153(b)(2)(B)(i)). In determining whether the Attorney
General’s refusal to waive that requirement fell within the
ambit of clause (ii)’s jurisdiction-stripping provision, the Zhu
Court assumed that “in the national interest” was a manageable
legal standard, as we assume for the sake of argument “good
and sufficient cause” is here. Id. at 295. But we found that
“may” “suggests not that the Congress expected the Attorney
General actually to deny a petition the grant of which he deems
to be in the national interest, but rather that his decision . . . is,
like ‘Speech or Debate in either House [of the Congress, not
to] be questioned in any other Place,’ U.S. CONST., art. I, § 6,
and certainly not in a court.” Id. (alterations in original).
iTech attempts to distinguish Zhu by noting that the panel
there suggested that national interest waivers are discretionary
because they are “unfettered by statutory standards,” whereas
“good and sufficient cause” imparts a judicially manageable
standard. Appellant’s Br. at 41. But iTech ignores the fact that
the Zhu Court held that even if “in the national interest” were a
manageable standard, it would still find that the provision’s
16
surrounding text—“the Attorney General may, when the
Attorney General deems it to be in the national interest,” 8
U.S.C. § 1153(b)(2)(B)(i) (emphasis added)—imparted
discretion. Zhu, 411 F.3d at 295. Because the text of section
1155 is functionally indistinguishable—“[t]he Secretary of
Homeland Security may, at any time, for what he deems to be
good and sufficient cause,” 8 U.S.C. § 1155 (emphasis
added)—we hold that the Secretary’s decision to revoke an
approved I-140 petition is similarly “specified . . . to be in the
discretion of the Attorney General or the Secretary of
Homeland Security,” id. § 1252(a)(2)(B)(ii). Stitching
together section 1155 and section 1252(a)(2)(B) at last, we
conclude that clear and convincing evidence establishes
Congress’s intent to insulate visa revocation decisions like the
one revoking approval of Mr. Reddy’s I-140 petition from
judicial review.
C.
Our holding is consistent with the conclusions of various
other circuits. Nine of our sister circuits hold that courts lack
jurisdiction to consider visa revocations made under section
1155, and one has said as much in dicta. See Bernardo ex rel.
M & K Eng’g, Inc. v. Johnson, 814 F.3d 481, 484 (1st Cir.
2016); Firstland Int’l, Inc. v. INS, 377 F.3d 127, 131 (2d Cir.
2004) (dicta); Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196,
202–05 (3d Cir. 2006); Polfliet v. Cuccinelli, 955 F.3d 377,
381–83 (4th Cir. 2020); Ghanem v. Upchurch, 481 F.3d 222,
224–25 (5th Cir. 2007); Mehanna v. USCIS, 677 F.3d 312,
314–15 (6th Cir. 2012); El-Khader v. Monica, 366 F.3d 562,
568 (7th Cir. 2004); Abdelwahab v. Frazier, 578 F.3d 817, 821
(8th Cir. 2009); Green v. Napolitano, 627 F.3d 1341, 1344–45
(10th Cir. 2010); Sands v. U.S. Dep’t of Homeland Sec., 308 F.
App’x 418, 419–20 (11th Cir. 2009) (unpublished). But see
ANA Int’l, Inc. v. Way, 393 F.3d 886, 893–95 (9th Cir. 2004).
17
Granted, in some instances the parties conceded or the
panel assumed that section 1252(a)(2)(B)(ii) encompassed any
decision or action “the authority for which is specified under
this subchapter to be in the [Secretary’s] discretion,” regardless
of whether the decision denied relief. See Bernardo, 814 F.3d
at 484; Jilin, 447 F.3d at 202–03; Ghanem, 481 F.3d at 223;
Mehanna, 677 F.3d at 314; Sands, 308 F. App’x at 419–20.
But in other instances, the court reached the issue and decided
it as we do today. See El-Khader, 366 F.3d at 566 (“[T]he plain
language of section 1252(a)(2)(B)(ii) bars courts from
reviewing any discretionary decisions of the Attorney General
made under the authority of sections 1151 through 1378 of
Title 8 of the United States Code.” (emphasis omitted) (citing
Samirah v. O’Connell, 335 F.3d 545, 548–49 (7th Cir. 2003)));
Polfliet, 955 F.3d at 381 (“On its face, § 1252(a)(2)(B)(ii) bars
judicial review of decisions ‘specified’ to be in the ‘discretion’
of the Secretary.”); Abdelwahab, 578 F.3d at 820 n.4 (“By its
plain language, § 1252(a)(2)(B)(ii) applies to discretionary
action not taken in a removal proceeding.”); Green, 627 F.3d
at 1345 (“[S]ince a visa revocation decision is a discretionary
act, our jurisdiction to review it is precluded by the plain
meaning of § 1252(a)(2)(B)[ii].” (alteration in original)
(footnote omitted) (quoting Hamilton v. Gonzales, 485 F.3d
564, 568 (10th Cir. 2007))).
III.
For the reasons above, we conclude that section
1252(a)(2)(B)(ii) precludes judicial review of all decisions the
authority for which is specified under Title 8, Chapter 12,
Subchapter II to be within the Secretary’s discretion. And we
hold that the decision to revoke an I-140 immigrant visa
petition under section 1155 is a “decision or action . . . the
authority for which is specified under” Title 8, Chapter 12,
18
Subchapter II to be within the Secretary’s discretion.
Accordingly, we affirm the judgment of the District Court.
So ordered.