Bernardo Ex Rel. M & K Engineering, Inc. v. Johnson , 814 F.3d 481 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1177
HENRY BERNARDO, on behalf of M&K Engineering, Inc.;
SAMUEL MARINHO FREITAS; RUTH LOPES FREITAS; DANIEL LOPES
FREITAS; GRACIANE LOPES FREITAS; GRAZIELA LOPES FREITAS,
Plaintiffs, Appellants,
v.
JEH C. JOHNSON, Secretary,
United States Department of Homeland Security;
LORETTA LYNCH,* Attorney General; ALEJANDRO MAYORKAS, Director,
United States Citizenship and Immigration Service; GREGORY A.
RICHARDSON, Director, Texas Service Center; RON ROSENBERG,
Acting Chief, Administrative Appeals Office, United States
Citizenship and Immigration Service,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.
Annelise Maia Jatoba de Araujo, with whom Araujo & Fisher,
LLC was on brief, for appellants.
Aaron S. Goldsmith, Senior Litigation Counsel, District Court
Section, Office of Immigration Litigation, United States
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr.
Department of Justice, with whom Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, William C. Peachey, Director,
District Court Section, Office of Immigration Litigation, and
Jeffrey S. Robins, Assistant Director, District Court Section,
Office of Immigration Litigation, were on brief, for appellees.
January 29 2016
LYNCH, Circuit Judge. This case raises a question of
first impression in our circuit: whether 8 U.S.C.
§ 1252(a)(2)(B)(ii), which precludes judicial review of the
Attorney General's and the Secretary of Homeland Security's
discretionary decisions under Title 8, Chapter 12, Subchapter II,
applies to the revocation of visa petition approvals under 8 U.S.C.
§ 1155. Taking the same view as most other circuits, we conclude
that it does and so judicial review is precluded.
Title 8, section 1252 of the U.S. Code precludes judicial
review of discretionary decisions made by the Attorney General and
the Secretary of Homeland Security under Title 8, Chapter 12,
Subchapter II. 8 U.S.C. § 1252(a)(2)(B)(ii). Decisions made under
that subchapter as to the revocation of previously approved visa
petitions are made discretionary by statute. 8 U.S.C. § 1155.
See Kucana v. Holder, 558 U.S. 233, 247 (2010) (explaining that
"Congress barred court review of discretionary decisions only when
Congress itself set out the Attorney General's discretionary
authority in the statute"). Because this statute is a clear
expression of Congressional intent, we, like seven other circuits,
conclude that Congress has barred judicial review.
I.
We confine our discussion of the facts to those necessary
to frame the issue on appeal. On February 11, 2004, M&K
Engineering, Inc. ("M&K"), through its owner and president Henry
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Bernardo, filed an Application for Employment Certification for
Samuel Freitas to work as an Assistant Delivery Supervisor. After
the Department of Labor granted the certification on October 11,
2006, M&K filed an I-140 Immigrant Petition for Alien Worker ("visa
petition") for Freitas. The United States Citizenship and
Immigration Services ("USCIS") initially approved the visa
petition on March 13, 2007.1
On September 22, 2010, the Director of the USCIS Texas
Service Center issued a Notice of Intent to Revoke ("NOIR") the
approval of the visa petition. The NOIR alleged that M&K was
"trying to circumvent Immigration Laws by committing Fraud" and
requested additional information and documents. M&K submitted
additional evidence in response. On November 15, 2010, the
Director of the USCIS Texas Service Center issued a decision
revoking the approval of the visa petition because "the evidence
does not indicate that the beneficiary had met the minimum
experience requirements prior to the filing of either labor
certification; plus, the new evidence contradicts evidence already
on the record." Bernardo, as owner of M&K, administratively
appealed the revocation decision to the USCIS Administrative
1 For a good discussion of the process of obtaining
permanent residency and the role that an I-140 Immigrant Petition
for Alien Worker, 8 U.S.C. § 1153(b), plays in that process, see
Mantena v. Johnson, No. 14-2476-cv, 2015 WL 9487867, at *2 (2d
Cir. Dec. 30, 2015). What is at issue here is the revocation of
an I-140 visa petition approval.
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Appeals Office ("AAO") on December 3, 2010. On June 28, 2013, the
AAO affirmed the revocation decision and dismissed the appeal.
In July 2013, Bernardo, as owner of M&K, filed a
complaint with the Massachusetts federal district court
challenging the revocation of the visa petition approval. On
November 12, 2013, the AAO withdrew its decision and reopened the
matter sua sponte. It requested additional evidence, which M&K
provided. After considering the evidence, on February 28, 2014,
the AAO dismissed the appeal, finding again that there were
inconsistencies in the evidence, and that M&K had failed to prove
that Freitas had the necessary work experience. On March 28, 2014,
the government filed a motion to dismiss the district court
proceeding for lack of jurisdiction. After briefing, on December
8, 2014, the district court issued a memorandum and order granting
the government's motion and dismissing the case for lack of subject
matter jurisdiction. Bernardo v. Napolitano, No. 13-11827, 2014
WL 6905107 (D. Mass. Dec. 8, 2014). This appeal followed.
II.
We review de novo a district court's order dismissing a
case for lack of subject matter jurisdiction. McCloskey v.
Mueller, 446 F.3d 262, 265-66 (1st Cir. 2006). "In doing so, [we]
accept[] the well-pleaded factual allegations of the plaintiff's
complaint and indulge[] all reasonable inferences in the
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plaintiff's favor." Dominion Energy Brayton Point, LLC v. Johnson,
443 F.3d 12, 16 (1st Cir. 2006).
Bernardo claims federal jurisdiction under, inter alia,
§ 702 of the Administrative Procedure Act ("APA"), which "confers
a general cause of action upon persons 'adversely affected or
aggrieved by agency action within the meaning of a relevant
statute.'" Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345
(1984) (quoting 5 U.S.C. § 702). However, § 701 of the APA
"withdraws that cause of action to the extent the relevant statute
'preclude[s] judicial review.'" Id. (alteration in original)
(quoting 5 U.S.C. § 701(a)(1)). Such is the case before us.2
The relevant statute, 8 U.S.C. § 1252(a)(2)(B)(ii),
removes judicial review of the Attorney General's and the Secretary
of Homeland Security's discretionary decisions made under Title 8,
Chapter 12, Subchapter II of the U.S. Code:3
Notwithstanding any other provision of law
(statutory or nonstatutory) . . . 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
2 The government states that it "is not arguing in favor
of the application of 5 U.S.C. § 701(a)(2)." Section 701(a)(2)
withdraws the § 702 cause of action where "agency action is
committed to agency discretion by law." 5 U.S.C. § 701(a)(2).
Because we decide our case under 5 U.S.C. § 701(a)(1), we do not
discuss whether 5 U.S.C. § 701(a)(2) applies.
3 Subchapter II encompasses 8 U.S.C. §§ 1151-1381.
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Security, other than the granting of relief
under section 1158(a) of this title.
8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added).
The unambiguous language of § 1252(a)(2)(B)(ii)
withdraws judicial review from decisions "the authority for which
is specified . . . to be in the discretion of the . . . Secretary
of Homeland Security." Id.4 It is not contested that such
decisions are not subject to judicial review. So we must determine
whether the decision to revoke a visa petition approval is
specified to be in the Secretary of Homeland Security's discretion.
The visa petition approval was revoked pursuant to 8
U.S.C. § 1155. Section 1155, which falls under Subchapter II,
provides in relevant part:
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.
4 We agree with Judge Tallman of the Ninth Circuit, and
the Third, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh
Circuits that this is the pertinent language to be considered.
See Mehanna v. U.S. Citizenship & Immigration Servs., 677 F.3d
312, 314 (6th Cir. 2012); Green v. Napolitano, 627 F.3d 1341, 1343–
44 (10th Cir. 2010); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th
Cir. 2009); Sands v. U.S. Dep't of Homeland Sec., 308 F. App'x
418, 419–20 (11th Cir. 2009) (per curiam); Ghanem v. Upchurch, 481
F.3d 222, 223 (5th Cir. 2007); Jilin Pharm. USA, Inc. v. Chertoff,
447 F.3d 196, 199–200 (3d Cir. 2006); ANA Int'l Inc. v. Way, 393
F.3d 886, 896 (9th Cir. 2004) (Tallman, J., dissenting); El-Khader
v. Monica, 366 F.3d 562, 566 (7th Cir. 2004).
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8 U.S.C. § 1155. We join seven of our sister circuits and conclude
that this decision is discretionary, and so not subject to judicial
review. See Mehanna v. U.S. Citizenship & Immigration Servs., 677
F.3d 312, 313 (6th Cir. 2012); Green v. Napolitano, 627 F.3d 1341,
1343 (10th Cir. 2010); Abdelwahab v. Frazier, 578 F.3d 817, 821
(8th Cir. 2009); Sands v. U.S. Dep't of Homeland Sec., 308 F. App'x
418, 419–20 (11th Cir. 2009) (per curiam); Ghanem v. Upchurch, 481
F.3d 222, 223 (5th Cir. 2007); Jilin Pharm. USA, Inc. v. Chertoff,
447 F.3d 196, 200–05 (3d Cir. 2006); El-Khader v. Monica, 366 F.3d
562, 567–68 (7th Cir. 2004).5 One panel majority in one circuit
views the issue differently. See ANA Int'l Inc. v. Way, 393 F.3d
886, 893–95 (9th Cir. 2004) (holding, with one panel member
dissenting, that under § 1155, "the authority of the Attorney
General to revoke visa petitions is bounded by objective criteria,"
5 In a recent decision, the Second Circuit held that
federal courts have subject matter jurisdiction to review whether
USCIS complied with any applicable procedural requirements in
revoking a visa petition approval. Mantena, 2015 WL 9487867, at
*6–7. This question is not before us, as Bernardo does not argue
that USCIS failed to comply with any procedural notice requirements
but rather challenges only the substantive revocation decision.
The Second Circuit did say that it had previously stated in dicta
that "the substance of the decision that there should be a
revocation is committed to the discretion of the [Secretary]," id.
at *5 (alteration in original) (quoting Firstland Int'l, Inc. v.
U.S. INS, 377 F.3d 127, 131 (2d Cir. 2004)), and noted that the
majority of circuits followed this position, id. However, because
"the actual issue" before the Second Circuit was "a different one,"
it did not reach the question of whether the substantive decision
to revoke a visa petition approval was reviewable. Id. at *6.
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id. at 894, and so § 1252(a)(2)(B)(ii) does not remove judicial
review). Our dissenting colleague also views it differently.
We acknowledge the "presumption favoring interpretations
of statutes [to] allow judicial review of administrative action."
Kucana, 558 U.S. at 237 (alteration in original) (quoting Reno v.
Catholic Soc. Servs., Inc., 509 U.S. 43, 63–64 (1993)). However,
this "presumption . . . is just that -- a presumption. . . . [L]ike
all presumptions used in interpreting statutes, [it] may be
overcome by specific language or specific legislative history that
is a reliable indicator of congressional intent." Block, 467 U.S.
at 349; see also Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651
(2015). Here we have specific language: § 1252(a)(2)(B)(ii)
withdraws judicial review from decisions committed to the
Secretary of Homeland Security's discretion, and § 1155 clearly
indicates that the decision to revoke the approval of a visa
petition is discretionary.
At least three language choices in § 1155 dictate this
conclusion: "may," "at any time," and "for what he deems to be
good and sufficient cause." See Ghanem, 481 F.3d at 224; Jilin,
447 F.3d at 203–05 (identifying four indications by separating
"deems to be" from "good and sufficient cause"). "By using the
precatory term 'may,' rather than the directory term 'shall,'
Congress indicated its intent to make [the decision]
discretionary . . . ." United States v. Aponte-Guzmán, 696 F.3d
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157, 160 (1st Cir. 2012); see also Haig v. Agee, 453 U.S. 280, 294
n.26 (1981) (explaining that "'may' expressly recognizes
substantial discretion"). But see Zadvydas v. Davis, 533 U.S.
678, 697 (2001) ("But while 'may' suggests discretion, it does not
necessarily suggest unlimited discretion.").6
Including "at any time" is also proof of Congress's
intent to withhold judicial review. See Mehanna, 677 F.3d at 315;
6 Zadvydas is clearly distinguishable from the case here.
In Zadvydas, the relevant statute provided that "An alien ordered
removed . . . may be detained beyond the removal period and, if
released, shall be subject to [certain] terms of
supervision . . . ." 533 U.S. at 682 (second alteration in
original) (quoting 8 U.S.C. § 1231(a)(6)). There, the question
was whether the word "may" suggested Congress's intent to make
this detention indefinite -- not whether the Attorney General's
decision to detain was discretionary. Id. Accordingly,
§ 1252(a)(2)(B)(ii) did not apply. See id. at 688 ("The aliens
here, however, do not seek review of the Attorney General's
exercise of discretion; rather, they challenge the extent of the
Attorney General's authority under the post-removal-period
detention statute. And the extent of that authority is not a
matter of discretion."). Further, nothing in the statute suggested
the length of the detention could be indefinite, and the only
textual support for the government's argument was the word "may,"
see 533 U.S. at 682, 697. Here, we have not only the word "may"
but also the phrases, "at any time" and "for what he deems to be
good and sufficient cause."
To be sure, although "may" is usually interpreted as
conferring discretionary authority, "[t]his common-sense principle
of statutory construction is by no means invariable . . . and can
be defeated by indications of legislative intent to the contrary
or by obvious inferences from the structure and purpose of the
statute." United States v. Rodgers, 461 U.S. 677, 706 (1983).
Here, however, there is no such indication, and the text of the
statute, which also includes "at any time" and "for what he deems
to be good and sufficient cause," further supports our conclusion
that the decision is discretionary.
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Jilin, 447 F.3d at 203; El-Khader, 366 F.3d at 567. As the Third
Circuit explained, "the discretion to revoke 'at any time' had
once been restricted by [a] now-defunct notice requirement" in the
statute. Jilin, 447 F.3d at 203 (citing Firstland Int'l, Inc. v.
U.S. INS, 377 F.3d 127, 132 (2d Cir. 2004); Intelligence Reform
and Terrorism Prevention Act of 2004, Pub. L. No. 108-458,
§ 5304(c), 118 Stat. 3638, 3736). "Congress's elimination of this
requirement strongly indicates an intent to strengthen the
discretion of the Secretary of Homeland Security to revoke approval
of petitions." Id.
Third, the language "for what [the Secretary] deems to
be good and sufficient cause" makes clear that what constitutes
"good and sufficient cause" is within the Secretary's discretion.
See Ghanem, 481 F.3d at 224–25 (quoting Webster's New Int'l
Dictionary 589 (3d ed. 1981) as defining "deem" as "to sit in
judgment upon," and interpreting "the phrase 'for what he deems'
as vesting complete discretion in the Secretary to determine what
constitutes good and sufficient cause"). Together, these phrases
in the statute determine the question of discretion. The 2010
Supreme Court case Kucana v. Holder supports this conclusion. See
558 U.S. at 246–47 (explaining that the language "any other
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decision" in § 1252(a)(2)(B)(ii) refers to decisions "made
discretionary by legislation").7
Bernardo and the dissent make much of footnote 10 of
Kucana, which says, "the statutory proscription Congress enacted,
§ 1252(a)(2)(B)(ii), speaks of authority 'specified' -- not merely
assumed or contemplated -- to be in the Attorney General's
discretion," 558 U.S. at 243 n.10 (citing Webster's New Collegiate
Dictionary 1116 (1974), which defined "specify" as "to name or
state explicitly or in detail"). We think that § 1155's language,
which includes that the Secretary "may, at any time, for what he
deems to be good and sufficient cause," does clearly specify
discretion. See Mehanna, 677 F.3d at 316 ("[S]ection 1155 'does
not merely imply or anticipate that the Secretary has discretion
to revoke' a visa petition, but explicitly 'authorizes revocation
for what the Secretary "deems to be good and sufficient cause."'"
(quoting Green, 627 F.3d at 1346)). Bernardo's argument to the
contrary -- that "Congress did not specify that visa [petition]
revocations are within the Secretary's discretion for purposes of
stripping district courts of jurisdiction under 8 U.S.C.
§ 1252(a)(2)([B])(ii)" -- seems to rest on a notion that
"specified" means that Congress must use the word "discretion" for
7 We reject the argument that the Board of Immigration
Appeals' attempt to provide regulatory assistance in interpreting
language is germane to our issue. See ANA Int'l Inc., 393 F.3d at
898 (Tallman, J., dissenting).
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a decision to be discretionary, and so not subject to judicial
review. But such a position is rejected by Kucana itself. As the
Court noted, "Congress excepted from § 1252(a)(2)(B)(ii) 'the
granting of relief under [§] 1158(a).'" Kucana, 558 U.S. at 247
n.13 (alteration in original). "Section 1158 concerns
applications for asylum." Id. Notwithstanding the absence of the
word "discretion" in the relevant provisions of § 1158, the Court
explained that "[a]bsent the exception, asylum applicants might
fall within § 1252(a)(2)(B)(ii)'s jurisdictional bar because a
statutory provision, § 1158(b)(1)(A), specifies that 'the Attorney
General may grant asylum.'" Id. (citing Zadvydas, 533 U.S. at
697, for the proposition that "'may' suggests discretion"). As
the Court suggested, and we agree, statutory language can be
"specified" even absent the use of the word "discretion." Accord
ANA Int'l Inc., 393 F.3d at 898 (Tallman, J., dissenting) ("Though
it might make our job a bit easier, we should not require our
lawmakers to recite the words 'sole and unreviewable discretion'
as some sort of talismanic incantation before we can conclude that
a statute means what it says."); Mohammad v. Napolitano, 680 F.
Supp. 2d 1, 6 (D.D.C. 2009).
Bernardo and the dissent's argument that "good and
sufficient cause" imposes a non-discretionary legal standard that
is subject to judicial review is also unavailing. Bernardo and
the dissent argue that "good and sufficient cause" constitutes a
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standard that meaningfully curtails the Secretary's discretion.
Based on some decisions from the Board of Immigration Appeals
("BIA") and the AAO, the dissent posits that "good and sufficient
cause" exists when "the evidence of record at the time the decision
is rendered . . . would warrant a denial" of the visa petition.
See, e.g., In re Ho, 19 I. & N. Dec. 582, 589-90 (BIA 1988); In re
Tawfik, 20 I. & N. Dec. 166, 167 (BIA 1990); In re [Identifying
Information Redacted by Agency], 2013 WL 5722884, at *6 (AAO Feb,
13, 2013).
We disagree with the premise that the phrase "good and
sufficient cause" destroys the Secretary's discretion. We also
demonstrate that the canons of construction do not support the
dissent. As to both points, in the years preceding the most recent
reenactment of § 1155, courts had multiple occasions to interpret
that statute, including the phrase "good and sufficient cause."
In doing so, a number of them concluded that "the determination of
whether there exists 'good and sufficient cause' . . . necessarily
is highly subjective, and there exist no strict standards for
making this determination." El-Khader, 366 F.3d at 567; see also
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 11-12 (D.D.C. 2001)
("[N]o strict standards exist to determine when 'good and
sufficient cause' is present. The standard seems highly
subjective, much like 'good moral character' and 'extreme
hardship.'"); cf. Firstland, 377 F.3d at 131 (suggesting that under
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§ 1155, "the substance of the decision that there should be a
revocation is committed to the discretion of the Attorney
General"); Pierno v. INS, 397 F.2d 949, 950 (2d Cir. 1968)
(observing that this section "is permissive; it grants the Attorney
General discretion in determining what shall constitute good and
sufficient cause and whether revocation of approval shall occur or
be withheld in those cases where there is good and sufficient cause
for revocation").8
The dissent nonetheless tries to show that the BIA had
an understanding that its decision-making was non-discretionary
and that Congress shared that understanding when it reenacted
§ 1155. The dissent invokes two related principles of statutory
construction. First the dissent argues, when Congress uses a "term
of art" in legislation, it "presumably knows and adopts the cluster
of ideas that were attached to each borrowed word in the body of
learning from which it was taken." Molzof v. United States, 502
U.S. 301, 307 (1992) (quoting Morissette v. United States, 342
U.S. 246, 253 (1952)). The dissent suggests that "good and
sufficient cause" constitutes a term of art, and that Congress
8 The Seventh Circuit issued its opinion in El-Khader on
April 29, 2004, and the Second Circuit issued its decision in
Firstland on August 2, 2004. By contrast, Pub. L. No. 108-458
(the most recent reenactment of § 1155) was not enacted until
December of that year.
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obviously intended to incorporate its supposedly well-established
meaning into § 1155 when it reenacted the statute.
However, the dissent misapplies the "term of art" canon.
Even if "good and sufficient cause" would now constitute a "term
of art" -- a proposition we do not accept -- this phrase was not
a "term of art" at the time § 1155 was enacted in 1952. As the
cases cited by the dissent make clear, we generally apply this
rule of statutory construction with respect to concepts that are
"well understood" at the time of a statute's enactment. Gustafson
v. Alloyd Co., 513 U.S. 561, 575 (1995); see also Molzof, 502 U.S.
at 307 ("Legal dictionaries in existence when the FTCA was drafted
and enacted indicate that 'punitive damages' were commonly
understood to be damages awarded to punish defendants for torts
committed with fraud, actual malice, violence, or oppression."
(emphasis added)); Sullivan v. Stroop, 496 U.S. 478, 483 (1990)
("Congress' use of 'child support' throughout Title IV shows no
intent to depart from common usage.").
This, obviously, does not apply to the case at hand.
The dissent's understanding of "good and sufficient cause" is
rooted in a handful of decisions from the BIA that have been issued
decades after the statute's enactment. The dissent does not
suggest (nor could it) that "good and sufficient cause" had a
longstanding or well-settled meaning at the time of § 1155's
enactment.
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And so the dissent next conflates the "term of art" canon
with the doctrine of legislative ratification. The Supreme Court
has explained, "Congress is presumed to be aware of an
administrative or judicial interpretation of a statute and to adopt
that interpretation when it re-enacts a statute without change."
Lorillard v. Pons, 434 U.S. 575, 580 (1978). The doctrine of
legislative ratification would, at first glance, seem to be a much
better fit for the dissent's argument: the BIA's understanding of
"good and sufficient cause," while not a term of art, is
nonetheless an administrative interpretation of a statute of which
Congress might be presumed to be aware. And indeed, Congress
reenacted § 1155 in 1996 and 2004 without disturbing the language
of "good and sufficient cause" in the years since the BIA first
set forth its interpretation of that phrase.
However, this canon of statutory interpretation is of no
help to the dissent. For the legislative ratification canon to
apply, two requirements must be met: (1) Congress must reenact the
statute without change; and (2) "[t]he supposed judicial consensus
[must be] so broad and unquestioned that we must presume Congress
knew of and endorsed it." Jama v. Immigration & Customs Enf't,
543 U.S. 335, 349 (2005). Here, the second requirement is lacking.9
9 As we explain below, the legislative ratification
doctrine can apply to administrative interpretations as well.
However, here, neither the judicial nor the administrative
interpretations are sufficient to warrant use of this cannon.
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There was certainly no "broad and unquestioned" judicial consensus
that "good and sufficient cause" had the interpretation the dissent
advocates, nor does the dissent argue as much. In fact, as we
have discussed above, a number of courts had interpreted the
determination of whether there was "good and sufficient cause" as
a decision left to the Secretary's discretion.
Instead, the dissent points to BIA and AAO decisions as
evidence Congress adopted the "agency's understanding of 'good and
sufficient cause.'" These decisions are plainly insufficient to
warrant the presumption that "Congress knew of and endorsed" such
an understanding, id., of "good and sufficient cause." Cf. id. at
350 ("decisions of two Courts of Appeals" insufficient to establish
judicial consensus); United States v. Powell, 379 U.S. 48, 55 n.13
(1964) (decisions of two district courts and two courts of appeals
"represent[ed] neither a settled judicial construction . . . nor
one which we could be justified in presuming Congress, by its
silence, impliedly approved"). By the dissent's reasoning, if
Congress is presumed to have been aware of the BIA and AAO's
treatment of § 1155, it was undoubtedly aware of the judiciary's
interpretations thereof as well. Which is to say that there was
no "broad and unquestioned" consensus as to the meaning of "good
and sufficient cause" the dissent proposes. See Jama, 543 U.S. at
349.
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To be sure, the Supreme Court has suggested that
Congressional reenactment of a statute that has been interpreted
by an agency can provide "persuasive evidence that the [agency's]
interpretation is the one intended by Congress." CFTC v. Schor,
478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co., 416
U.S. 267, 275 (1974)). However, the circumstances giving rise to
such a situation do not present themselves here. Specifically,
here we have no evidence that Congress was even aware of the
purported administrative interpretation, let alone intended to
adopt it. By contrast, in Schor, the CFTC had declared by
regulation its interpretation. Id. at 845. Further, the
subsequent legislative history provided "abundant evidence that
Congress both contemplated and authorized" the CFTC's
interpretation. Id. at 847. Similarly, in United States v. Board
of Commissioners of Sheffield, Alabama, "the Attorney General's
longstanding construction . . . was reported to Congress by Justice
Department officials," 435 U.S. 110, 132 (1978), and "the
legislative history of the re-enactment showed that Congress
agreed with that interpretation," id. at 135. The dissent
identifies nothing within the legislative history of § 1155 that
suggests Congress was aware of the BIA and AAO's interpretations
of "good and sufficient cause." Cf. Massachusetts v. FDIC, 102
F.3d 615, 620-21 (1st Cir. 1996) ("Congress is often deemed to
have adopted an agency's interpretation of a statute when, knowing
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of the agency interpretation, it reenacts the statute without
significant change." (emphasis added)).10
Instead, the dissent merely assumes that Congress was
aware of some BIA and AAO decisions when reenacting § 1155. As we
have discussed, there is no basis for making such an assumption
here. Cf. Zenith Radio Corp. v. Hazeltine Research, Inc., 401
U.S. 321, 336 n.7 (1971) ("[The respondent] can point to no direct
evidence that Congress ever considered the issue now before us or
voiced any views upon it; on the contrary, it appears that Congress
left the matter for authoritative resolution in the courts.");
Zuber v. Allen, 396 U.S. 168, 185 n.21 (1969) ("Where, as in the
case before us, there is no indication that a subsequent Congress
has addressed itself to the particular problem, we are unpersuaded
that silence is tantamount to acquiescence, let alone the approval
discerned by the dissent.").
10Indeed, the dissent's oblique attempt to suggest that
"Congress was uniquely aware of the phrase 'good and sufficient
cause' as a term of art" assumes its own conclusion. The dissent
points out that while the terms "good cause," "reasonable cause,"
and "sufficient cause" are found elsewhere in the Immigration and
Nationality Act, "good and sufficient cause" is unique to § 1155.
Ergo, the dissent argues, Congress's decision not to change the
unique phrase "good and sufficient cause" when it reenacted § 1155
"reinforces the conclusion that Congress understood 'good and
sufficient cause' as a term of art in the visa revocation context."
This reasoning, that Congress "was uniquely aware of the phrase
'good and sufficient cause' as a term of art" because "it clearly
knew how to depart from the term's uniquely associated meaning"
and did not do so, assumes its own conclusion -- that Congress
knew the phrase "good and sufficient cause" had unique meaning.
- 20 -
Absent evidence Congress was aware of the administrative
interpretations, it is significant that we lack any affirmative
indication from Congress that it intended to ratify these
interpretations. We have explained that it is generally
inappropriate to apply the doctrine of legislative ratification
without some evidence that Congress affirmatively sought to ratify
the interpretation of a statute -- particularly when, as here, an
ambiguous term lacks a widely accepted meaning and we lack any
indication that Congress was even aware of the administrative
interpretation suggested.11 In Molina v. INS, in an opinion written
by then-Chief Judge Breyer, we explained that "Congressional
reenactment of statutory language does not normally or
automatically indicate a legislative intent to freeze all pre-
existing agency interpretations of language, forever after
immunizing them from change." 981 F.2d 14, 23 (1st Cir. 1992);
see also ACLU v. Clapper, 785 F.3d 787, 819 (2d Cir. 2015) ("[I]n
the case of an administrative interpretation of a statute, for the
doctrine of legislative ratification to apply, we must first
'ascertain whether Congress has spoken clearly enough to
constitute acceptance and approval of an administrative
11 We do not hold this is a doctrinal requirement, as the
dissent suggests we do, but rather that when there is no indication
that Congress was even aware of the administrative interpretation
of a phrase, it is generally not appropriate to assume Congress
intended to ratify an interpretation absent an affirmative
indication.
- 21 -
interpretation. Mere reenactment is insufficient.'" (quoting
Isaacs v. Bowen, 865 F.2d 468, 473 (2d Cir. 1989))); Ass'n of Am.
R.R.s v. Interstate Commerce Comm'n, 564 F.2d 486, 493 (D.C. Cir.
1977) ("The Supreme Court has indicated that in order to bring
this 'doctrine of reenactment' into play, Congress must not only
have been made aware of the administrative interpretation, but
must also have given some 'affirmative indication' of such
intent."). Accordingly, given the complete lack of evidence that
Congress was aware of the BIA and AAO's interpretation of "good
and sufficient cause," let alone affirmatively intended to ratify
it, we are hard-pressed to conclude that a legislative ratification
took place.12
12 The foregoing also demonstrates why the dissent's
reliance on Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,
456 U.S. 353 (1982), is misplaced. In Curran, the Supreme Court
considered whether reenactment of a statute evinced Congressional
intent to preserve a preexisting interpretation of that statute.
Id. at 379–82. And as the dissent notes, the Court held that "the
fact that a comprehensive reexamination and significant amendment
of the [statute] left intact the statutory provisions [at issue]
. . . is itself evidence that Congress affirmatively intended to
preserve that [interpretation by an agency]." Id. at 381-82.
However, the dissent omits the critical fact that the
interpretation in question was "uniform and well understood." Id.
at 380. Similarly, as the Supreme Court noted, "it is abundantly
clear that [this interpretation] was a part of the 'contemporary
legal context' in which Congress legislated." Id. at 381.
Accordingly, the Court held, "[i]n that context," Congress's
decision to retain the relevant provisions could be taken as
evidence of its affirmative intent to preserve the interpretation.
Id. (emphasis added). Here, however, the BIA's interpretation of
"good and sufficient cause" was neither well understood nor a
widely accepted part of the contemporary legal landscape.
Congress's decision to retain "good and sufficient cause" (i.e.,
- 22 -
In sum, "good and sufficient cause" is not a term of
art, much less does it establish that the Secretary's decision is
non-discretionary. Further, there is no basis to assume that
Congress shared that understanding when it reenacted § 1155. Thus,
the dissent is incorrect to conclude that the Secretary's
discretion is bounded by "objective criteria," or a legal standard
that could be applied by a reviewing court. The statute provides
no such standard, and there is no indication that Congress intended
to so constrain the Secretary's discretion.
Moreover, Bernardo and the dissent's argument focuses on
the words "good and sufficient cause" at the expense of the words
"for what he deems to be." We are not free to do so. See Regions
Hosp. v. Shalala, 522 U.S. 448, 467 (1998) ("It is a cardinal rule
of statutory construction that significance and effect shall, if
possible, be accorded to every word." (quoting Wash. Mkt. Co. v.
Hoffman, 101 U.S. 112, 115 (1879))). As the Third Circuit
explained, "[t]he phrase 'for what [the Secretary] deems to be
good and sufficient cause,' cannot be modified by judicial fiat to
read the naked words, 'for good and sufficient cause.'" Jilin,
447 F.3d at 204 (second alteration in original). The language
"for what [the Secretary] deems to be good and sufficient cause"
even as it modified other portions of § 1155) is not affirmative
evidence of its intent to ratify the BIA's standard, let alone its
awareness of the administrative interpretation.
- 23 -
makes clear that what constitutes "good and sufficient cause" is
within the Secretary's discretion. See Ghanem, 481 F.3d at 224–
25.13
Our reading mirrors a conclusion reached by the Supreme
Court in Webster v. Doe, 486 U.S. 592 (1988). In Webster, the
Court examined § 102(c) of the National Security Act of 1947:
[T]he 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 . . . .
Id. at 594 (alterations in original) (quoting 50 U.S.C. § 403(c)
(1947)).14 The Court read that statute to remove judicial review
under APA § 701(a)(2), which precludes judicial review where agency
action is "committed to agency discretion by law." Id. at 599–
601.15 It explained:
13It is for this reason that the dissent's statement, "[i]f
'good and sufficient cause' provides a legal standard that
circumscribes the Secretary's visa revocation decision, the
decision is subject to judicial review," sets out a straw man.
14The dissent tries to distinguish Webster based on the
words "in his discretion" in the National Security Act. However,
Webster addressed the question of whether the clause "whenever he
shall deem such termination necessary or advisable in the interests
of the United States" provided criteria that could limit this
discretion -- a question the Court answered in the negative. See
486 U.S. at 600.
15Webster was decided under 5 U.S.C. § 701(a)(2), whether
"agency action is committed to agency discretion by law," while
Bernardo's case is a question of whether § 1252(a)(2)(b)(ii)
precludes judicial review under APA § 701(a)(1). See supra note
- 24 -
[Section] 102(c) allows termination of an
Agency employee whenever the Director "shall
deem such termination necessary or advisable
in the interests of the United States"
(emphasis added), not simply when the
dismissal is necessary or advisable to those
interests. This standard fairly exudes
deference to the Director, and appears to us
to foreclose the application of any meaningful
judicial standard of review.
Id. at 600 (quoting 50 U.S.C. § 403(c) (1947));16 cf. Fed. Energy
Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 561 (1976) ("In
authorizing the President to 'take such action, and for such time,
as he deems necessary to adjust the imports of [an] article and
its derivatives,' the language of [the statute] seems clearly to
grant him a measure of discretion in determining the method to be
used to adjust imports.").
Bernardo and the dissent's argument that Kucana v.
Holder changes the analysis also fails. In Kucana, the Court was
faced with a regulation that provided, in relevant part, that
"[t]he decision to grant or deny a motion to reopen . . . is within
2. However, we must still determine whether § 1155 is
discretionary because § 1252(a)(2)(B)(ii) precludes review of
discretionary decisions. Therefore, the analysis of whether under
a statute, "agency action is committed to agency discretion by
law," would apply to the question of whether § 1155 is
discretionary.
16 To the extent the dissent attempts to distinguish
Webster by saying "in the interests of the United States" is "a
policy-driven assessment," while "good and sufficient cause" is
"predicated on binary outcomes," that argument fails. As we have
previously explained, the dissent's claim that "good and
sufficient cause" has objective meaning is incorrect.
- 25 -
the discretion of the Board [of Immigration Appeals]." 558 U.S.
at 239 (second alteration in original) (quoting 8 C.F.R.
§ 1003.2(a)). Examining this regulation, the Court addressed the
question of "whether the proscription of judicial review stated in
§ 1252(a)(2)(B) applies not only to Attorney General
determinations made discretionary by statute, but also to
determinations declared discretionary by the Attorney General
himself through regulation." Id. at 237. The Court's conclusion
that § 1252(a)(2)(B)(ii)'s language "specified under this
subchapter" includes "statutory, but not . . . regulatory,
specifications," id., was based on several considerations: "the
longstanding exercise of judicial review of administrative rulings
on reopening motions," id.; "the text and context of
§ 1252(a)(2)(B)," id.; "the history of the relevant statutory
provisions," id.; "the 'presumption favoring interpretations of
statutes [to] allow judicial review of administrative action,'"
id. (alteration in original) (quoting Reno, 509 U.S. at 63–64);
and "[s]eparation-of-powers concerns, [which] caution us against
reading legislation, absent clear statement, to place in executive
hands authority to remove cases from the Judiciary's domain," id.
The dissent sua sponte focuses on the Court's second
consideration, § 1252(a)(2)(B)'s structure.17 The dissent
17 Bernardo does not develop this argument in his brief; he
raised it for the first time at oral argument. It is waived.
- 26 -
correctly points out that the Supreme Court stated, "[t]he
proximity of clauses (i) and (ii), and the words linking them --
'any other decision' -- suggests that Congress had in mind
decisions of the same genre," id. at 246. The dissent relies on
that sentence to argue that because revocation of a visa petition
approval under § 1155 is not a decision "of the same genre" as
those listed in § 1252(a)(2)(B)(i), it is not encompassed by
§ 1252(a)(2)(B)(ii) at all. However, the dissent omits the crucial
end of that sentence, "i.e., those made discretionary by
legislation." Id. at 246–47. Indeed, the Court goes on to say,
"[r]ead harmoniously, both clauses convey that Congress barred
review of discretionary decisions only when Congress itself set
out the Attorney General's discretionary authority in the
statute." Id. at 247. To the extent the Court lists the types of
decisions within "the character of the decisions Congress
enumerated in § 1252(a)(2)(B)(i)," id., it was doing so to set up
a contrast with motions to reopen, which it described as
"procedural device[s] serving to ensure 'that aliens [a]re getting
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). The
dissent is incorrect to make an argument waived by the appellants
and to which the appellees had no occasion to reply. The dissent
counters that our rule of waiver is "not so broad as to encompass
'legal theories.'" However, our case law is quite settled on this
point: "[i]t is not enough merely to mention a possible argument
in the most skeletal way, leaving the court to do counsel's work,
create the ossature for the argument, and put flesh on its bones."
Id.
- 27 -
a fair chance to have their claims heard,'" id. at 248 (second
alteration in original) (quoting Tr. of Oral Arg. 17). The
question of whether revocations of visa petition approvals are of
"a like kind" was not before the Court, nor did it purport to
address it. Id. at 246–48.18
Finally, our conclusion does not lead to a "senseless
proposition," as Bernardo and the dissent suggest. Some visa
petition approval decisions, in particular, for certain preference
visas, have been held subject to judicial review. See, e.g.,
Soltane v. U.S. Dep't of Justice, 381 F.3d 143, 146–48 (3d Cir.
2004) (holding there is judicial review of denials of visa
petitions under 8 U.S.C. § 1153(b)(4), which provides that "[v]isas
shall be made available . . . to qualified special immigrants");
Spencer Enters., Inc. v. United States, 345 F.3d 683, 692 (9th
Cir. 2003) (concluding "that § 1252(a)(2)(B)(ii) does not preclude
judicial review of the decision whether to issue a visa pursuant
to [8 U.S.C.] § 1153(b)(5)"). Our dissenting colleague argues
that if there is judicial review of the decision not to grant a
visa petition to start with, then it would be anomalous to deny
judicial review of decisions to revoke petition approvals.
However, the argument works the other way.
18 As the issue is waived, we decline to reach it. We note,
however, that this matter is far less clear-cut than the dissent
makes it out to be.
- 28 -
As an initial matter, assuming initial visa petition
denials are reviewable, the language as to the authority to grant
preference visas is substantially different than the language as
to the authority to revoke visa petition approvals. Compare, e.g.,
8 U.S.C. § 1153(b)(2)–(5) ("Visas shall be made available . . . .
(emphasis added)), and 8 U.S.C. § 1154(b) ("After an investigation
of the facts in each case, and after consultation with the
Secretary of Labor . . . the Attorney General shall . . . approve
the petition . . . . (emphasis added)),19 with 8 U.S.C. § 1155
("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.").
Indeed, "Congress' use of the permissive 'may' in [§ 1155]
contrasts with the legislators' use of a mandatory 'shall' in the"
preceding sections. Lopez v. Davis, 531 U.S. 230, 241 (2001).
The difference in these language choices supports our conclusion
that Congress intended to treat visa petition denials and
19 The language of 8 U.S.C. § 1153(b)(4) has been well
analyzed by the Third Circuit in Soltane, which concluded that the
Attorney General's action of granting preference visas was not
discretionary. 381 F.3d at 146–48. The Third Circuit thus held
that denial of a visa petition under § 1153(b)(4) was subject to
judicial review. Id.
We have not surveyed all visa approval statutes, nor
have the parties briefed the issue. There are at least seven
different types of visa petitions, including at least three
different types of employment-based visa petitions.
- 29 -
revocations of visa petition approvals differently.20 Cf. Barnhart
v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) ("[I]t is a general
principle of statutory construction that when '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 any event, the so-called "inconsistency" of allowing
judicial review of certain visa petition denials but not the
revocation of visa petition approvals does not undermine our
conclusion that that is what Congress intended. See Jilin, 447
F.3d at 205 n.11 (explaining that "§ 1252(a)(2)(B) is one of 'many
provisions of [the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 that] are aimed at protecting the
Executive's discretion from the courts -- indeed, that can fairly
be said to be the theme of the legislation,'" id. (quoting Reno v.
Am.-Arab Anti–Discrimination Comm., 525 U.S. 471, 486 (1999)); and
that "Congress [in 2004 and 2005] expanded administrative
discretion by removing the notice requirement under § 1155 and by
establishing that § 1252(a)(2)(B)(ii) applies beyond removal
20 Because of this disparate language and context, the
cases cited by the dissent do not undermine -- and if anything
support -- our conclusion.
- 30 -
proceedings," id.; and so "there is ample reason to believe that
Congress could have intended to bolster the discretion of the
Secretary of Homeland Security to revoke approval of petitions,"
id.).21 Congress has to structure and allocate the resources of
our immigration system. As such, judicial review may be thought
to be warranted in some, but not all, situations. Further, we
note that petitioners have an opportunity to respond to the NOIR,
receive an explanation of why the petition's approval was revoked,
and are afforded an administrative appeal. See 8 C.F.R. § 205.2
(requiring notice of intent to revoke, the opportunity for the
petitioner to offer evidence supporting the petition, an
explanation of "the specific reasons for the revocation," and the
opportunity for the petitioner to file an administrative appeal).
Congress could quite sensibly have concluded that is enough.22
21 We are unaware of any longstanding tradition of judicial
review of the revocation of visa petition approvals. Cf. Kucana,
558 U.S. at 237. To be sure, there may have been isolated examples
of judicial review of these decisions prior to the enactment of
§ 1252(a)(2)(B). See, e.g., Tongatapu Woodcraft Hawaii, Ltd. v.
Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984); Joseph v. Landon,
679 F.2d 113, 115–16 (7th Cir. 1982) (per curiam). However, we
have been presented with no evidence that Congress would be
changing a well-established practice by eliminating judicial
review over these decisions.
22 We note that § 1252(a)(2)(D) provides that "[n]othing in
subparagraph (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." 8 U.S.C. § 1252(a)(2)(D). Bernardo does not
argue that we have jurisdiction under § 1252(a)(2)(D).
- 31 -
III.
For the reasons set forth above, the order of the
district court is affirmed.
-Dissenting Opinion Follows-
- 32 -
LIPEZ, Circuit Judge, dissenting. The majority holds
that a decision by the Secretary of Homeland Security ("Secretary")
to revoke his prior approval of a visa petition based on objective
criteria is insulated from judicial review. In my view, the
Secretary's visa revocation decision is subject to judicial review
because the text of the pertinent statutes, the nature of the visa
revocation decisions, and the overall statutory scheme do not rebut
the presumption of judicial review applicable to immigration
statutes. Hence, I respectfully dissent.
I.
The two statutory provisions at issue are 8 U.S.C.
§§ 1252(a)(2)(B) and 1155 of the Immigration and Nationality Act
("INA"). Section 1252(a)(2)(B) 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.
The authority to revoke the approval of a visa petition is provided
under § 1155. Section 1155 -- which is not listed in §
1252(a)(2)(B)(i) -- states that "[t]he Secretary of Homeland
Security may, at any time, for what he deems to be good and
- 33 -
sufficient cause, revoke the approval of any petition approved by
him under section 1154 of this title." Id. § 1155. The approval
of a visa petition, which determines only the beneficiary's
eligibility to apply for an immigrant visa, is governed by § 1154.
Hence, the question is whether § 1252(a)(2)(B)(ii) applies to
§ 1155 -- that is, whether Congress "specified" visa revocation
decisions "to be in the discretion" of the Secretary with the use
of the words "may," "at any time," "deems," and "good and
sufficient cause."
In considering a dispute over the jurisdiction-stripping
effect of an immigration statute, we must apply "a strong
presumption in favor of judicial review of administrative action."
INS v. St. Cyr, 533 U.S. 289, 298 (2001); see also McNary v.
Haitian Refugee Ctr., Inc., 498 U.S. 479, 498 (1991). Where the
statute leaves "substantial doubt about the congressional intent,"
Block v. Comty. Nutrition Inst., 467 U.S. 340, 351 (1984), or even
"is reasonably susceptible to divergent interpretation," Gutierrez
de Martinez v. Lamagno, 515 U.S. 417, 434 (1995), the presumption
that "executive determinations generally are subject to review"
controls, id.
The Supreme Court's recent construction of
§ 1252(a)(2)(B) in Kucana v. Holder, 558 U.S. 233 (2010), further
informs our analysis. In that case, the Court observed that
§ 1252(a)(2)(B)(ii) "speaks of authority 'specified' -- not merely
- 34 -
assumed or contemplated -- to be in the [Secretary's] discretion."
Id. at 243 n.10. "Specified," according to the Court, is "not
synonymous with 'implied' or 'anticipated'"; rather, it means "to
name or state explicitly or in detail." Id. (quoting Webster's
New Collegiate Dictionary 1116 (1974)). Thus, pursuant to Kucana,
in resolving a dispute over the applicability of
§ 1252(a)(2)(B)(ii), any statutory language that falls short of
"state explicitly" -- whether an "assum[ption]" or a
"contemplat[ion]" of, or a statement that merely "implie[s]" or
"anticipate[s]," an exercise of discretion by the Secretary --
fails to overcome the presumption in favor of judicial review.
II.
Statutory interpretation begins with the text of the
provision at issue. See, e.g., Conn. Nat'l Bank v. Germain, 503
U.S. 249, 253-54 (1992). While § 1155 includes the words "may,"
"at any time," and "deems," which suggest an exercise of
discretion, the provision also cabins these words with the phrase
"good and sufficient cause." If "good and sufficient cause"
provides a legal standard that circumscribes the Secretary's visa
revocation decision, the decision is subject to judicial review.
This is so because the presence of an objective legal standard in
§ 1155 casts doubt on whether Congress "specified" the revocation
decision to be discretionary. To put it differently, where the
cumulative effect of "may," "at any time," "deems," and "good and
- 35 -
sufficient cause" is "'reasonably susceptible'" to the
interpretation that Congress merely "anticipated" visa revocation
decisions to be discretionary, rather than "state[d] [so]
explicitly," Kucana, 558 U.S. at 251, 243 n.10 (internal quotation
marks omitted), the presumption of judicial review should govern,
and the visa revocation decisions should be subject to review.
Accordingly, the Secretary's revocation decisions are subject to
judicial review if (i) "good and sufficient cause" has an
established meaning that supplies objective criteria for revoking
the prior approval of a visa petition, and (ii) the meaning of the
term withstands the surrounding language -- "may," "at any time,"
and "deems" -- in § 1155. The text and the structure of the
relevant statutory provisions demonstrate both.
A. Text
1. "Good and Sufficient Cause"
a. Objective Legal Criteria of "Good and
Sufficient Cause"
An examination of the agency's visa revocation decisions
reveals that "good and sufficient cause" has a clear objective
meaning under § 1155. In Matter of Ho, the Board of Immigration
Appeals ("BIA") ruled that "good and sufficient cause" exists under
§ 1155 when "the evidence of record at the time the decision is
rendered . . . would warrant [a] denial" of the visa petition. 19
I. & N. Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19
- 36 -
I. & N. Dec. 450, 452 (BIA 1987)); see also Matter of Tawfik, 20
I. & N. Dec. 166, 167 (BIA 1990). A denial of a visa petition is
in turn "warrant[ed]" when the petitioner has failed to show
evidence of the beneficiary's (or petitioner's) qualifications
necessary for approval. See 8 U.S.C. § 1154(b) (providing that
the Attorney General "shall" approve a visa petition when he
determines that the facts stated in the petition are true and the
eligibility criteria are met); id. § 1153(b)(3)(A) (providing that
visas "shall be made available" for a "skilled worker" upon
satisfaction of specified conditions); 8 C.F.R. § 204.5
(specifying the required qualifications for employment-based visa
petitions). Accordingly, the agency may revoke a visa petition
under § 1155 only when the evidence necessary for approval is
lacking, and hence a denial is warranted.
Such evidence consists of objective documentation. As
to employment-based visa petitions, the evidence comprises
documents substantiating the beneficiary's prior employment and
educational background, as described either in the labor
certification23 or in the agency regulations and guidance. See 8
C.F.R. § 204.5; Instructions for Petition for Alien Worker (USCIS
23The labor certification -- which is filed by the employer
and approved by the Department of Labor -- specifies, among other
things, the minimum educational and prior work experiences
required of the beneficiaries of certain employment-based visa
petitions. These minimum qualifications are pre-determined by the
employer. See ETA Form 9089, at 6-7.
- 37 -
2015) (hereinafter "I-140 Petition Manual"); see also Stewart
Infra-Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 1, 5-6
(1st Cir. 1981) (holding that, where applicable, the terms of the
labor certification are binding on the agency in terms of which
qualifications need to be shown).
For example, for a "skilled worker" visa petition, such
as the one filed on behalf of Freitas, the petitioner must submit
documents demonstrating the beneficiary's "education[], training,
or experience" as stipulated in the labor certification. 8 C.F.R.
§ 204.5(l)(3)(ii)(B); I-140 Petition Manual, at 4 (Entry 6). The
labor certification further breaks down each of the qualification
areas (roughly) into duration -- e.g., duration of the
beneficiary's highest formal education and prior work, specified
by the employer as necessary for the job -- and nature of the
experience -- e.g., description of the prior job title and work
duties, which the employer has also specified as necessary for the
requested position.24 See ETA Form 9089, at 6-8 ("J. Alien
Information" & "K. Alien Work Experience").
24
Employment visas that do not require labor certification
and are thus governed only by the criteria set forth in the agency
regulations are also approved based on similarly objective
evidence. For example, for a visa petition for "an alien of
extraordinary ability in the sciences, arts, education, business
or athletics," 8 C.F.R. § 204.5(h)(1), the agency approves the
petition upon a showing of the following evidence: (1) receipt of
"a major, international recognized award"; or (2) at least three
of the specified qualifications, including "authorship of
scholarly articles," "display of the alien's work in the field at
- 38 -
Accordingly, in assessing whether there is "good and
sufficient cause" to revoke an employment-based visa petition, the
agency examines, for instance, letters from employers and other
similar documentation to determine whether the beneficiary has the
requisite qualifications. See 8 C.F.R. § 204.5(l)(3)(ii)(A); see
also In re [Identifying Information Redacted by Agency
[hereinafter "[IIRA]"], 2014 WL 3951145, at *3-6 (AAO Jan. 3, 2014)
(finding that the record fails to support "the beneficiary's
claimed high school attendance" and "the required two years of
[prior work] experience"); In re [IIRA], 2012 WL 8526515, at *8-9
(AAO Aug. 27, 2012) (affirming the revocation, inter alia, because
"the petitioner did not submit evidence that the beneficiary has
the education required by the terms of the labor certification").
Here, similarly, the agency revoked the prior approval of the visa
petition filed on behalf of Freitas because the inconsistent
documents did not evidence the "two years of experience in the
offered position or the related occupation of
'Manager/Supervisor,'" Appellants' Add. at 10, 13-18 -- a fact
that would have "warranted [] denial" in the first place.25 Matter
of Ho, 19 I. & N. Dec. at 590.
artistic exhibitions or showcases," and "evidence of commercial
successes in the performing arts." Id. § 204.5(h)(3), (h)(3)(vi),
(vii), (x); see also I-140 Petition Manual, at 2 (Entry 1).
25 In fact, in affirming the revocation of Freitas's visa
petition, the Administrative Appeals Office explicitly relied on
the lack of "objective evidence" to corroborate his prior
- 39 -
Objective legal criteria also govern family-based visa
petitions approved under § 1154. In determining the necessary
familial relationships, the agency relies on objective
documentation, such as a marriage certificate or a birth
certificate. 8 C.F.R. § 204.2; see also Instructions for Form I-
130, Petition for Alien Relative, at 2 (USCIS 2015). Further,
where the denial of visa petitions turns on the validity of a
marriage, see 8 U.S.C. § 1154(c), the agency examines the relevant
evidence under the "substantial and probative" standard. Matter
of Tawfik, 20 I. & N. Dec. at 167. Indeed, with the benefit of
the applicable legal standard and objective factual evidence,
numerous courts have reviewed the agency's denials of visa
petitions based on marriage fraud. See Gupta v. U.S. Att'y Gen.,
No. 6:13-cv-1027-Orl-40KRS, 2015 WL 5687853, at *10-11 (M.D. Fla.
July 7, 2015) (applying Matter of Tawfik in reviewing the denial
of a visa petition based on marriage fraud); Zemeka v. Holder, 989
F. Supp. 2d 122, 129-130 (D.D.C. 2013) (applying the "substantial
and probative" standard in reviewing the denial of a petition based
employment. See Appellants' Add. at 11 ("These inconsistencies
are not resolved by independent, objective evidence, and diminish
the reliability of the evidence in support of the beneficiary's
qualifying work experience."); id. at 8 ("The AAO issued a Request
for Evidence (RFE) to the petitioner seeking additional
information relating to the beneficiary's employment, allowing the
petitioner an additional opportunity to address the outlined
inconsistencies in the record and to submit independent objective
evidence to overcome such deficiencies.").
- 40 -
on marriage fraud); Matter of Arias, 19 I. & N. Dec. 568, 569-71
(BIA 1988) (reversing a revocation decision based on marriage fraud
because, under the "good and sufficient cause" standard,
"[s]pecific, concrete facts are meaningful, not unsupported
speculation and conjecture").
b. Congress's Adoption of the Objective Legal
Criteria Established by "Good and Sufficient
Cause"
The fact that the agency has interpreted "good and
sufficient cause" as prescribing objective legal criteria is, of
course, only an antecedent to the determination that Congress
shared that interpretation of § 1155. Here, the relevant
legislative background provides the bridge. It is a "cardinal
rule of statutory construction" that, when Congress employs a term
of art, it "presumably knows and adopts the cluster of ideas that
were attached to each borrowed word in the body of learning from
which it was taken." Molzof v. United States, 502 U.S. 301, 307
(1992) (quoting Morissette v. United States, 342 U.S. 246, 263
(1952)). The "absence of contrary direction may be taken as
satisfaction with widely accepted definitions, not as a departure
from them." Morissette, 342 U.S. at 263. Where, as demonstrated
below, Congress has reenacted the relevant statute against the
backdrop of a long-standing agency interpretation of that statute,
the related canon of legislative ratification also applies. That
is, "Congress is presumed to be aware of an administrative or
- 41 -
judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change."
Lorillard v. Pons, 434 U.S. 575, 580 (1978).
The two canons of statutory interpretation apply in
tandem in this case. The "good and sufficient cause" standard, as
defined in Matter of Estime and Matter of Ho, see supra Section
II.A.1.a, has consistently been applied by the agency in decisions
involving visa petition denials and revocations. See Matter of
Tawfik, 20 I. & N. Dec. at 167; In re [IIRA], 2006 WL 5914903, at
*3 (AAO Dec. 11, 2006); In re [IIRA], 2008 WL 4968848, at *1 (AAO
July 18, 2008); In re [IIRA], 2009 WL 4873892, at *2-3 (AAO Aug.
11, 2009); In re [IIRA], 2011 WL 9082056, at *2-3 (AAO Dec. 13,
2011); In re [IIRA], 2013 WL 5722884, at *6 (AAO Feb. 13, 2013).
Since those decisions, Congress has revisited § 1155 twice, first
in 1996 when Congress enacted § 1252(a)(2)(B) as part of the
comprehensive Illegal Immigration Reform and Immigrant
Responsibility Act ("IIRIRA"), and most recently in 2004. See
Pub. L. No. 104-208, § 308(g)(3)(A), 110 Stat. 3009-622 (1996);
Pub. L. No. 108-458, § 5304(c), 118 Stat. 3638, 3736 (2004). In
the 2004 reenactment, Congress took a closer look at the language
of § 1155, removing two sentences from the section that required
prior notice to the petitioner, while keeping intact the phrase
"good and sufficient cause." See 118 Stat. at 3736.
- 42 -
The consistent agency application of "good and
sufficient cause" prior to the reenactments of § 1155 suggests
that the phrase was understood as a term of art in the immigration
context, and particularly with respect to visa petitions. Indeed,
contrary to the majority's argument, "good and sufficient cause"
need not have been rooted in "centuries of practice" to be deemed
a "term of art" in the relevant statutory context. In Sullivan v.
Stroop, 496 U.S. 478, 482 (1990), the Supreme Court held that the
phrase "child support," which appeared in a statute undefined, is
a "term of art" because it has an accepted meaning in common legal
usage and amongst "[a]ttorneys who have practiced in the area of
domestic relations law." Similarly, in Gustafson v. Alloyd Co.,
513 U.S. 561, 575-76 (1995), the Court held that the word
"prospectus" is a "term of art" because it has a "well understood"
meaning in the relevant area of law (securities law), even though
the statute in which the word appears defined the word more
generally than the particularized meaning associated with that
term of art. The Court thus adopted that term-of-art meaning of
the word. These cases indicate that, where a phrase has a unique,
well-understood meaning within the relevant statutory context, the
phrase need not have been rooted in "centuries of practice" in the
common law for Congress to understand it as a term of art.26
26
When viewed in proper context, therefore, the core of the
rule articulated in Morissette -- that Congress is presumed to be
- 43 -
Here, we have good reasons to assume that, at the
relevant points in time, Congress was aware of the particularized
meaning of "good and sufficient cause," as interpreted and applied
by the agency. First, unlike in Molina v. INS, 981 F.2d 14, 23
(1st Cir. 1992) (Breyer, C.J.), where we were hesitant to apply
the legislative ratification canon because the agency
interpretation of the statute was "unclear," the "good and
sufficient cause" standard has consistently been applied by the
agency since Matter of Estime and Matter of Ho. Second, there is
contextual evidence that Congress was uniquely aware of the phrase
"good and sufficient cause" as a term of art in § 1155.
Section 1155 is the only provision of the INA in which "good and
sufficient cause" is used, while other provisions in the statute
reference standards drawn from the term's "constituent words,"
such as "good cause," "reasonable cause," or "sufficient cause,"
aware of the meaning associated with a term of art used in a
statute, 342 U.S. at 263 -- is not the "centuries of practice,"
but the assumption that Congress is "aware of existing law when it
passes legislation," and especially when the legislation uses a
phrase that is uniquely associated with a particular, well-known
meaning. Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990);
accord Cannon v. Univ. of Chi., 441 U.S. 677, 696-97 (1979) ("It
is always appropriate to assume that our elected representatives,
like other citizens, know the law[.]"). Indeed, while the majority
criticizes the "assumption" that Congress was aware of the agency
interpretation of "good and sufficient cause," the applicable
statutory canons reflect precisely such an assumption of
congressional awareness.
- 44 -
often with repetition.27 See Sullivan, 496 U.S. at 483 ("[W]here
a phrase in a statute appears to have become a term of
art, . . . any attempt to break down the term into its constituent
words is not apt to illuminate its meaning."); see also United
States v. Graham, 169 F.3d 787, 791-93 (3d Cir. 1999) (construing
the statutory term "aggravated felony" as a "term of art" because,
inter alia, the phrase includes misdemeanors in its definitional
scope).28 The fact that Congress retained "good and sufficient
cause" in § 1155 through two reenactments, when it clearly knew
how to depart from the term's uniquely associated meaning,
reinforces the conclusion that Congress understood "good and
sufficient cause" as a term of art in the visa revocation context.
The majority contends that the legislative ratification
rule does not apply to this case because there is no evidence in
the legislative history that Congress "affirmatively sought to
ratify the agency's interpretation of a statute." But the
"affirmative indication" in legislative history is not a doctrinal
27For references to "reasonable cause" in the INA, see 8
U.S.C. §§ 1182(a)(6)(B), 1182(m)(2)(E)(ii), 1182(n)(2)(A),
1182(n)(2)(G)(i), 1182(n)(2)(G)(vii), 1182(n)(5)(C),
1182(t)(3)(A). For references to "good cause," see
§§ 1182(a)(9)(B)(iv), 1182(l)(5); §§ 1186a(c)(2)(A)(ii),
1186a(d)(2)(B); §§ 1186b(c)(2)(A)(ii), 1186b(d)(2)(B);
§ 1254a(c)(3)(C); § 1522(e)(2)(A). For a reference to "sufficient
cause," see § 1448(c).
28 For the same reason, contrary to the government's
suggestion, it is the phrase "good and sufficient cause," not only
the word "good" in that phrase, that supplies an objective legal
standard in the visa revocation decision.
- 45 -
requirement. The Supreme Court has not explicitly held so in more
than a century of articulating the legislative ratification canon.
See United States v. Cerecedo Hermanos y Compania, 209 U.S. 337,
339 (1908) ("[T]he reenactment by Congress, without change, of a
statute which had previously received long continued executive
construction, is an adoption by Congress of such construction.");
Lorillard, 433 U.S. at 580 (holding that the presumption of
legislative ratification attaches where there is "an
administrative or judicial interpretation of a statute," and
Congress "re-enacts [that] statute without change"); Commodity
Futures Trading Comm'n v. Schor, 478 U.S. 833, 846 (1986) ("It is
well established that when Congress revisits a statute giving rise
to a longstanding administrative interpretation without pertinent
change, the 'congressional failure to revise or repeal the agency's
interpretation is persuasive evidence that the interpretation is
the one intended by Congress.'") (quoting NLRB v. Bell Aerospace
Co., 416 U.S. 267, 274-75 (1974)).29
29 In characterizing "affirmative indication" as a doctrinal
requirement, the majority relies on out-of-circuit cases in which
courts refused to apply the rule of legislative ratification in
the absence of affirmative indication in legislative history. See
ACLU v. Clapper, 785 F.3d 787, 819 (2d Cir. 2015); Ass'n of Am.
R.R.s v. Interstate Commerce Comm'n, 564 F.2d 486, 493 (D.C. Cir.
1977). These cases in turn rely on a handful of Supreme Court
cases where the Court invoked some variation of the statement
expressed in United States v. Bd. of Comm'rs of Sheffield, Al.,
435 U.S. 110 (1978), that, "[w]hen a Congress that re-enacts a
statute voices its approval of an administrative or other
interpretation thereof, Congress is treated as having adopted that
- 46 -
Nor have we held that affirmative indication in
legislative history is required for the legislative ratification
canon to apply. The only case cited by the majority -- Molina,
981 F.2d at 23 -- does not suggest to the contrary. Our statement
in Molina -- "Congressional reenactment of statutory language does
not normally or automatically indicate a legislative intent to
freeze all pre-existing agency interpretations of language," id.
at 23 -- is inextricably tied to our reasoning that a court should
be cautious about inferring legislative ratification where, as in
that case, there is ambiguity in the agency's interpretations of
the relevant statutes. See id. ("The case before us presents a
particularly weak case for implying . . . Congressional intent"
because "the application of the pre-existing INS rule . . . was
interpretation, and this Court is bound thereby." Id. at 134.
The quoted language, however, does not logically yield the
conclusion that affirmative indication of congressional intent in
legislative history is doctrinally required. As one prominent
scholar has observed, in Sheffield and other cases, the Court has
used such affirmative indication as a reassurance mechanism where
the Court chooses to apply the legislative ratification canon and
as a strategy for avoiding the rule where the Court chooses not
to. See generally William N. Eskridge, Jr., Interpreting
Legislative Inaction, 87 Mich. L. Rev. 67, 79-83 (1988). The
inconsistent reliance on affirmative indication and legislative
history suggests that they are not preconditions to applying the
legislative ratification doctrine. See id. at 81 (noting that the
Court "often invokes the reenactment rule without a specific
showing that Congress was aware of the judicial [or executive]
interpretations"); Yule Kim, Cong. Research Serv., No. 97-589,
Statutory Interpretation: General Principles and Recent Trends 46
(2008) (observing that "the presumption [of congressional
awareness] comes into play in the absence of direct evidence that
Congress actually considered the issue at hand.").
- 47 -
unclear."). Indeed, we held in Molina that, where the agency has
inconsistently applied the statute, "Congressional silence does
not show a Congressional intent to prevent subsequent [agency]
clarification of [its interpretation]." Id. (emphasis added). We
have no such inconsistent application of the relevant statute here.
To the extent that some "affirmative indication" from
Congress is helpful in confirming that Congress in fact ratified
the pre-existing agency interpretation of a statute, the
circumstances of the two reenactments of § 1155 provide guidance.
In Merrill Lynch, Pierce, Fenner & Smith v. Curran, the Court held
that "the fact that a comprehensive reexamination and significant
amendment of the [statute] left intact the statutory provisions
[at issue] . . . is itself evidence that Congress affirmatively
intended to preserve [the challenged interpretation]." 456 U.S.
353, 382 (1982) (emphasis added). We have such affirmative intent
in this case. If Congress wanted to "specif[y]" the visa
revocation decisions "to be in the discretion" of the Secretary,
it could have done so in 1996, when it reenacted § 1155 with the
passage of IIRIRA, or in 2004, when it reenacted § 1155 while
removing other language from the same section. On either occasion,
Congress could have, for instance, enumerated § 1155 in
§ 1252(a)(2)(B)(i) or eliminated the phrase "good and sufficient
cause" from § 1155. Congress also could have added clearly
discretionary language in § 1155 -- a familiar tool that Congress
- 48 -
used in other provisions of the INA.30 See, e.g., 8 U.S.C.
§ 1157(c)(1) (providing that the Attorney General "may, in [his]
discretion . . . , admit any refugee . . . determined to be of
special humanitarian concern to the United States");
§ 1154(a)(1)(A)(viii) (providing that the bar on U.S. citizens
convicted of certain offenses against a minor filing a family-
based visa petition shall not apply, if the Secretary, "in [his]
sole and unreviewable discretion," waives the bar). But Congress
did none of these things. Instead, Congress did not include § 1155
in §§ 1252(a)(2)(B)(i) and kept the "good and sufficient cause"
standard in § 1155 -- the only provision of the INA in which the
phrase is used.31
30 Given these structural and textual methods of precluding
judicial review, I reject the notion, alluded to by the majority,
that to interpret § 1155 as subject to judicial review would be to
require congressional "talismanic incantation" of any particular
word or phrase.
31 The majority also suggests that the legislative
ratification canon does not apply because there was no judicial
consensus that a visa revocation decision is subject to review.
My colleagues seem to imply that the lack of such judicial
consensus matters, in turn, because it somehow vitiates the
consistent agency application of "good and sufficient cause" as a
basis for inferring congressional intent. This argument confuses
two separate grounds for positively interpreting congressional
silence. In the one case cited by the majority, judicial consensus
was a factor in inferring congressional intent because the parties
in that case disputed whether there were sufficiently consistent
judicial constructions of a statute to sustain the presumption of
congressional awareness; an agency interpretation of a statute was
simply not at issue. See Jama v. Immig. & Customs Enf't, 543 U.S.
335, 349-51 (2005). Here, rather than contending that there was
judicial consensus as to the reviewability of § 1155, I contend
only that the agency to whom the enforcement of § 1155 was
- 49 -
2. Surrounding Statutory Language
Seemingly unperturbed by the dissonance between their
construction of the statutory language and the agency's
application of it, my colleagues ignore the "good and sufficient
cause" standard because it is modified by "what he deems to be" in
§ 1155. To focus on "good and sufficient cause," according to the
majority's reasoning, would fail to give effect to the preceding
word "deems." My colleagues are not alone in this view. The Third
Circuit has observed that "[t]he phrase 'for what [the Secretary]
deems to be good and sufficient cause,' cannot be modified by
judicial fiat to read the naked words, 'for good and sufficient
cause.'" Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 204
(3d Cir. 2006) (alteration in original).
A failure to interpret "good and sufficient cause,"
however, would be just as much an act of "judicial fiat" as
ignoring the arguably discretionary words in § 1155. More
importantly, recognizing that "good and sufficient cause"
prescribes objective legal criteria that govern the revocation
decisions is not incompatible with an understanding that "may,"
entrusted had uniformly interpreted "good and sufficient cause" to
prescribe objective legal criteria that guide the courts' review.
I am not aware of case law -- nor has the majority cited any --
that says that judicial consensus on the statutory construction is
categorically required for the legislative ratification canon to
apply, or that the lack of such consensus obliterates the
consistent agency interpretation that would otherwise support the
assumption of congressional awareness.
- 50 -
"at any time," and "deems" reserve certain administrative
discretion to the Secretary. As Kucana instructs, it does not
suffice for statutory language to "contemplate[]" or
"anticipate[]" an exercise of discretion. To overcome the
presumption of judicial review, the language has to be explicit,
unencumbered by any ambiguity over Congress's intent. 558 U.S. at
243 n.10; see also INS v. Doherty, 502 U.S. 314, 330 (1992)
(Scalia, J., concurring in part, dissenting in part) ("Even
discretion, however, has limits.").
The cumulative effect of "may," "at any time," "deems,"
and "good and sufficient cause" does not evince the level of
clarity required to overcome that presumption. Of the three
language choices relied on by the majority, the only one that
qualifies the effect of "good and sufficient cause" is the word
"deems." But "deems" in the combined phrase "what he deems to be
good and sufficient cause" only allows the Secretary to determine
whether factual grounds exist to satisfy the "good and sufficient
cause" standard, i.e., to "warrant [] denial" of the visa petition,
not what the standard should mean in each individual circumstance.
See ANA Int'l, Inc. v. Way, 393 F.3d 886, 894 (9th Cir. 2004)
(holding that the Secretary has discretion to decide "the specific
factual ground upon which a particular visa is to be revoked, not
"the general principles under which individual decisions to revoke
a visa should be made").
- 51 -
The majority resorts to a sleight of hand in proposing
a contrary interpretation. Without analyzing the interplay
between the two phrases, the majority subsumes "good and sufficient
cause" under "deems," and concludes that "deems" -- defined as "to
sit in judgment upon" -- indicates that "what constitutes 'good
and sufficient cause' is within the Secretary's discretion." See
ANA Int'l, 393 F.3d at 899 (Tallman, J., dissenting) ("Not only
does [the Secretary] decide whether [good and sufficient cause]
exists, he decides what constitutes such cause in the first
place."); Jilin Pharm., 447 F.3d at 204 (quoting the dissent in
ANA Int'l). But the word "deems" cannot nullify the established
meaning of "good and sufficient cause" that the relevant agency
has applied for almost three decades, and that formed the backdrop
against which Congress reenacted § 1155.
The primary case that the majority cites in support of
this reading is inapposite. The majority argues that "deems" in
§ 1155, like "deem" in Webster v. Doe, 486 U.S. 592 (1988),
"forecloses the application of any meaningful judicial standard of
review." But the statutes at issue are not equivalent. In
Webster, the relevant statutory provision, Section 102(c) of the
National Security Act, provided that the Director of the Central
Intelligence Agency "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
- 52 -
of the United States." 486 U.S. at 594 (emphasis added). Hence,
the statute in Webster "specified," or "state[d] explicitly,"
Kucana, 558 U.S. at 243 n.10, that the decision to terminate an
employee of the agency is "in [the Director's] discretion."
Indeed, while the use of the word "discretion" in a statute is not
necessary to insulate the underlying decision from judicial
review, the presence of it is sufficient.
Moreover, the judgment call contemplated in Webster --
determining what is "in the interests of the United States" --
requires on its face a policy-driven assessment that is
categorically different from a determination of "good and
sufficient cause." With the former, a qualitative comparison of
individual circumstances produces, by necessity, a spectrum of
outcomes -- e.g., an individual's continued employment is more or
less "in the interests of the United States" according to different
considerations in play. The latter inquiry, by contrast, is
predicated on binary outcomes -- e.g., either Freitas has worked
in a managerial or supervisory capacity for two years, or he has
not.32
32A similar contrast can be drawn as to "good moral character"
and "exceptional or extremely unusual hardship" -- two of the four
statutory grounds for the Secretary's discretionary decision to
cancel a removal order. See 8 U.S.C. § 1229b(b)(1)(B), (D).
Neither phrase is amenable to objective definition. See Portillo-
Rendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011); Romero-Torres,
v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003).
- 53 -
The Webster Court's reasoning further crystallizes this
distinction. The Court observed that, "[s]hort of permitting
cross-examination of the Director concerning his views of the
Nation's security and whether the discharged employee was inimical
to those interests, we see no basis on which a reviewing court
could properly assess an Agency termination decision." 486 U.S.
at 600. Here, there is no need to "cross-examin[e]" the Secretary.
The revocation decision is based on objective evidence, such as a
letter from an employer. The Third Circuit -- one of the early
circuits to reject judicial review for visa revocation decisions
–- made a similar misstatement, noting that to allow review would
"require courts to test whether the Secretary genuinely deemed the
proffered cause to be 'good and sufficient.'" Jilin Pharm., 447
F.3d at 204. Again, where the relevant documentation is shown,
"good and sufficient cause" does not give the Secretary discretion
to revoke his prior approval, regardless of how "genuine[]" his
belief may be. In the end, it is the very rule of statutory
construction cited by the majority -- "significance and effect
shall, if possible, be accorded to every word," Wash. Mkt. Co. v.
Hoffman, 101 U.S. 112, 115 (1879) -- that dictates a different
interpretation of the interplay between "deems" and "good and
sufficient cause."33
33The other case that the majority cites in support of its
interpretation of "deems" -- Fed. Energy Admin. v. Algonquin SNG,
- 54 -
The other language choices that the majority invokes --
"may" and "at any time" -- do not suggest otherwise. The Supreme
Court has noted in a landmark immigration case that, "while 'may'
suggests discretion, it does not necessarily suggest unlimited
discretion." Zadvydas v. Davis, 533 U.S. 678, 697 (2001).34 Even
the majority acknowledges that the discretion-conferring meaning
of "may" "'is by no means invariable . . . and can be defeated by
indications of legislative intent to the contrary or by obvious
inferences from the structure and purpose of the statute.'" United
States v. Rodgers, 461 U.S. 677, 706 (1983). Here, the construct
of § 1155 makes clear that what the Secretary "may" do is
restricted by the "good and sufficient cause" standard. Cf.
Kucana, 558 U.S. at 247 n.13 (explaining that Congress explicitly
carved out § 1158 as an exception to § 1152(a)(2)(B)(ii) because
Inc., 426 U.S. 548 (1976) -- is also distinguishable because what
the President may "deem[] necessary to adjust the imports of [an]
article and its derivatives" is not anchored in any objective legal
standard. Id. at 550 (quoting 19 U.S.C. § 1862(b) (1970)).
34 The majority's attempt to distinguish Zadvydas is
unpersuasive. To be sure, Zadvydas concerned the extent of the
Attorney General's authority to hold an alien who had been ordered
removed from the country following the 90-day statutory removal
period. 533 U.S. at 682. The factual circumstances of the case,
however, do not diminish the applicability of the reasoning that
"may" does not indicate "unlimited discretion." Id. at 697. The
statement from Zadvydas quoted by the majority -- that the aliens
in that case "d[id] not seek review of the Attorney General's
exercise of discretion," id. at 688 -- is irrelevant. Bernardo
does not "seek review of [the Secretary's] exercise of discretion";
rather, he challenges the district court's threshold determination
that the Secretary's revocation decision should be deemed
discretionary under the statute.
- 55 -
§ 1158 -- which governs the granting of asylum relief -- provides
that the Attorney General "may grant asylum" without specifying
any legal standard).35 Similarly, while "at any time" affords
administrative flexibility to the Secretary in determining when to
revoke the prior approval, it does not undermine the "good and
sufficient cause" standard, nor does it frustrate the objective
nature of evaluating whether the standard has been met.
Finally, in emphasizing "may," "at any time," and
"deems," my colleagues place substantial weight on the fact that
these constitute "three language choices," as opposed to, say, one
or two. But the numerical count of the discretionary words in
§ 1155 is a red herring. Because the presumption of judicial review
applies, § 1155 need only reveal that the cumulative effect of the
four language choices -- "good and sufficient cause" included --
is "reasonably susceptible to divergent interpretation," Gutierrez
35There is an additional reason why Congress may have carved
out § 1158 from § 1252(a)(2)(B)(ii), apart from the use of the
word "may" in § 1158. Asylum is a form of "discretionary relief
from deportation [or removal]." INS v. Abudu, 485 U.S. 94, 106
(1988); see also Ticoalu v. Gonzales, 472 F.3d 8, 11 (1st Cir.
2006). The granting of asylum has the effect of admitting an alien
into the country or allowing the alien to stay -- decisions that
have long been deemed "matter[s] of grace" and thus belonging to
executive discretion. Kucana, 558 U.S. at 247 (internal quotation
marks omitted); see also INS v. St. Cyr, 533 U.S. 289, 308 (2001).
Absent clear indication to the contrary, such as the one Congress
implemented in § 1252(a)(2)(B)(ii), the nature of the relief in
§ 1158 -- reinforced by the word "may" -- would have suggested to
courts that § 1158 is precluded from review. For a discussion on
how the visa revocation decision differs in character from such
matters, see infra II.B.
- 56 -
de Martinez, 515 U.S. at 434. That is to say, while "good and
sufficient cause" is but a single phrase, it is sufficient to
sustain the presumption of judicial review, as long as it
prescribes an objective legal standard that curtails the
Secretary's discretion.
The availability of judicial review in an immigration
statute has often depended on whether there is a meaningful legal
standard that guides the administrative decision and the potential
subsequent review by courts. Even for judgments that are
enumerated in § 1252(a)(2)(B)(i) as not subject to judicial review,
courts have reviewed an agency's predicate application of a statute
where the application turns on a statutory term that has a defined,
objective meaning. See, e.g., Montero-Martinez v. Ashcroft, 277
F.3d 1137, 1144 (9th Cir. 2002) (reviewing a discretionary denial
of cancellation of removal under § 1229b, where the decision
concerned an application of a defined statutory term, "child").
By contrast, where the statutory term that provides the basis for
the agency's decision has no objective meaning, courts have
construed the decision as purely discretionary and thus precluded
from judicial review. See Portillo-Rendon v. Holder, 662 F.3d
815, 817 (7th Cir. 2011) (holding that a denial of cancellation of
removal is not reviewable because "good moral character" -- the
lack of which provided a basis for the denial -- is "not define[d]"
in the statute); Romero-Torres v. Ashcroft, 327 F.3d 887, 890-91
- 57 -
(9th Cir. 2003) (finding that a denial of cancellation of removal
based on the absence of "extreme hardship" is not subject to
judicial review because "the language [of the phrase] itself
commits the determination to the opinion of the Attorney General"
(internal quotation mark omitted)). Because "good and sufficient
cause" prescribes a meaningful legal standard, unaltered by the
surrounding words in § 1155, I conclude that the applicable
presumption of review should control, and that judicial review
should be available for visa revocation decisions.
B. Structure
The structure of § 1252(a)(2)(B) bolsters the conclusion
that I draw from the text of the relevant statutes.36 In Kucana,
36The majority argues in two footnotes that this structural
reasoning derived from Kucana is waived because Bernardo did not
raise it until the oral argument. As the Supreme Court has held,
however, "'[w]hen an issue or claim is properly before the court,
the court is not limited to the particular legal theories advanced
by the parties, but rather retains the independent power to
identify and apply the proper construction of governing law.'"
U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508
U.S. 439, 446 (1993) (quoting Kamen v. Kemper Fin. Servs., Inc.,
500 U.S. 90, 99 (1991) (alteration in original)). Here, the
central issue of whether judicial review is available under § 1155
-- which is what the structural argument based on Kucana addresses
-- is properly before this Court, as the issue was briefed by the
parties and decided by the district court. Moreover, it is not as
if either party was unaware of Kucana. Both Bernardo and the
government cited Kucana in their briefs before this Court, albeit
to support different arguments. The rule in our circuit cited by
the majority -- that "issues adverted to in a perfunctory
manner . . . are deemed waived," United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) -- is not so broad as to engulf "legal
theories" and thereby confine the Court to the universe of legal
reasoning, however small, that parties in a case identify.
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the Supreme Court noted that "[t]he proximity of clauses (i) and
(ii) [in § 1252(a)(2)(B)], and the words linking them -- 'any other
decision' -- suggest that Congress had in mind decisions of the
same genre" in both clauses. 558 U.S. at 246-47. While the Kucana
Court initially relied on the "proximity" comparison to emphasize
that both clauses encompass only decisions "made discretionary by
legislation," not by regulations, the Court immediately extended
the comparison to the decisions enumerated as discretionary in
§ 1252(a)(2)(B)(i) and the decisions rendered discretionary by the
text of § 1252(a)(2)(B)(ii). Thus, in determining what decisions
may be precluded from judicial review under § 1252(a)(2)(B)(ii),
the Court "found significant the character of the decisions
Congress enumerated in § 1252(a)(2)(B)(i)." Id. at 247. Those
decisions include "waivers of inadmissibility based on certain
criminal offenses, § 1182(h), or based on fraud or
misrepresentation, § 1182(i); cancellation of removal, § 1229b;
permission for voluntary departure, § 1229c; and adjustment of
status, § 1255." Id. at 248. They are, in other words,
"substantive decisions . . . made by the Executive . . . as a
matter of grace" -- decisions that "involve whether aliens can
stay in the country or not." Id. at 247 (quoting the government's
argument).
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A decision to revoke the approval of a visa petition is
not "of a like kind."37 Id. at 248. Approval of a visa petition
is only "a preliminary step in the visa or adjustment of status
application process." Matter of Ho, 19 I. & N. Dec. at 589. It
means only that the beneficiary is eligible to apply for an
immigrant visa (often through the adjustment of status process),
not that she is entitled to one. Id.; see also Thomas Alexander
Aleinkoff, et al., Immigration and Citizenship: Process and Policy
498-99 (7th ed. 2011); Firstland Int'l, Inc. v. INS, 377 F.3d 127,
132 n.6 (2d Cir. 2004) ("We note, however, that the INS's approval
of an immigrant visa petition does not, by itself, entitle an alien
to permanent resident status. It appears that the Attorney General
retains discretion to deny an application for adjustment of status
even where the applicant has an approved immigrant visa petition."
(citing 8 U.S.C. § 1255(a)); Tongatapu Woodcraft Haw., Ltd. v.
Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984) ("It is important to
note that a visa petition is not the same thing as a visa. . . . It
does not guarantee that a visa will be issued, nor does it grant
the alien any right to remain in the United States."). As the
37 The majority attempts to limit Kucana's structural
reasoning to the factual confines of the case, noting that "[t]he
question of whether revocations of visa petition approvals are of
a 'like kind' was not before the [Kucana] Court." It is certainly
true that the issue that we are addressing here was not before the
Court in Kucana. But Kucana announced principles of statutory
interpretation with respect to the same statute as here,
§ 1252(a)(2)(B), which are unmistakably applicable to this case.
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Kucana Court explained in characterizing the motion to reopen
removal proceedings, where a court decision reversing an agency
ruling "does not direct the Executive to afford the alien
substantive relief," the underlying decision of the agency is an
"adjunct ruling[]" subject to judicial review, not a "substantive
decision[]" insulated from court oversight. 558 U.S. at 248, 247.
A decision to revoke the prior approval of a visa
petition is precisely such an "adjunct ruling[]." Id. at 248.
Just as in Kucana, a court decision reversing the revocation ruling
"[would] not direct the Executive to afford the alien substantive
relief," as the approval of a visa petition only determines the
alien's eligibility for an immigrant visa, not her overall
admissibility. Moreover, the revocation decision stands in stark
contrast to the matters observed by the Kucana Court to be
"specified" as discretionary under § 1252(a)(2)(B)(ii). Id.
(citing § 1157(c)(a), which allows the Attorney General to admit
refugees "determined to be of special humanitarian concern to the
United States," and §§ 1181(b) and 1182(a)(3)(D)(iii), which give
the Attorney General "discretion" to waive certain inadmissibility
grounds).
A contrary interpretation would produce a broader
statutory anomaly. It is widely accepted that the Secretary's
denial of visa petitions under § 1154 is subject to judicial
review. See Soltane v. U.S. Dep't of Justice, 381 F.3d 143, 147-
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48 (3d Cir. 2004) (holding that a denial of an employment-based
visa petition is subject to court oversight despite
§ 1252(a)(2)(B)(ii) because § 1153(b)(4) states that "special
immigrant" employment-based visas "shall be made available" upon
satisfaction of certain conditions); Spencer Enters., Inc. v.
United States, 345 F.3d 683, 689 (9th Cir. 2003) (holding that a
denial of an employment-based visa petition is subject to judicial
review because § 1154(b) states that the Attorney General "shall"
approve the petition if the eligibility requirements are met); Z-
Noorani, Inc. v. Richardson, 950 F. Supp. 2d 1330, 1337-1343 (N.D.
Ga. 2013) (reviewing a denial of an employment-based visa
petition); see also Bangura v. Hansen, 434 F.3d 487, 498 (6th Cir.
2006) (presuming that denials of spousal visa petitions are
reviewable in court under the Administrative Procedure Act);
Zemeka, 989 F. Supp. 2d at 128-32 (reviewing a denial of a visa
petition based on marriage fraud).
Thus, to hold that revocation decisions are not
reviewable in court would result in an incoherent understanding of
the INA, in which judicial recourse is available if the petition
is denied but not available if the petition is revoked, even where
both the denial and revocation are based on the same factual
ground, such as a failure to satisfy the minimum prior work
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experience.38 "[I]nterpretations of a statute which would produce
absurd results are to be avoided if alternative interpretations
consistent with the legislative purpose are available." Griffin
v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (citing
United States v. Am. Trucking Ass'ns, Inc., 310 U.S. 534, 542-43
(1940)). Construing visa revocation decisions as subject to
judicial review would treat revocations and denials alike where
the same facts are involved and, hence, preserve the coherence of
the INA.
III.
In rejecting the majority's view, I recognize the split
in authority among the eight circuits that have ruled on this issue
so far. Seven of those circuits have held that a visa revocation
decision under § 1155 is insulated from judicial review. See
Mehanna v. U.S. Citizenship and Immigration Servs., 677 F.3d 312,
38 The majority insists that this structural anomaly helps
their argument because the statutes authorizing denials of visa
petitions use the word "shall," not "may," and because Congress
has to "structure and allocate resources of our immigration
system." As to the first point, I reiterate that, while Congress
used the word "may" in § 1155, it also curtailed the effect of
"may" by imposing objective legal criteria under the "good and
sufficient standard. Moreover, while I recognize the need to
allocate resources, the majority is inferring here a statutory
scheme where Congress chose to allow a judicial remedy for one
decision and not the other, even in cases where both decisions are
based on the same lack of minimum prior work experience. I would
not conclude that Congress intended such an arbitrary allocation
of resources, absent clear textual or structural indications in
the statutes.
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313 (6th Cir. 2012); Green v. Napolitano, 627 F.3d 1341, 1345-46
(10th Cir. 2010); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th
Cir. 2009); Sands v. U.S. Dep't of Homeland Sec., 308 F. App'x
418, 419-20 (11th Cir. 2009) (per curiam); Ghanem v. Upchurch, 481
F.3d 222, 224 (5th Cir. 2007); Jilin Pharm., 447 F.3d at 204; El–
Khader v. Monica, 366 F.3d 562, 567 (7th Cir. 2004). Only the
Ninth Circuit has held that a revocation decision is reviewable in
court based on the "good and sufficient cause" standard in § 1155.
See ANA Int'l., 393 F.3d at 895.
The seven circuit decisions, however, seem to reflect
what scholars have referred to as a "precedential cascade."39 The
Seventh Circuit was the first to hold that visa revocation
decisions are discretionary and thus not reviewable in court. See
El-Khader, 366 F.3d at 567. Shortly thereafter, the Ninth Circuit
created a split, holding that visa revocation decisions are subject
to judicial review. See ANA Int'l, 393 F.3d at 895. The Third
Circuit then agreed with the Seventh Circuit and further developed
the reasoning for precluding judicial review, focusing on the
"may," "any time," and "deems" language in § 1155. See Jilin
39 See Eric Talley, Precedential Cascades: An Appraisal, 73
S. Cal. L. Rev. 87 (1999) (exploring "a cascade theory of
[judicial] precedent"); Timur Kuran & Cass R. Sunstein,
Availability Cascades and Risk Regulations, 51 Stan. L. Rev. 683,
765 (1999) (observing that courts are not immune to informational,
cognitive and reputational herding effects, which the authors term
"availability cascades").
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Pharm., 447 F.3d at 203-205. In the years that followed, the
remaining five circuits sided with the Third and the Seventh
Circuits, many of them without much independent analysis. See
Ghanem, 481 F.3d at 223-224; Abdelwahab, 578 F.3d at 821; Sands,
308 F. App'x. at 419-20; Green, 627 F.3d at 1343-46; Mehanna, 677
F.3d at 314-17. Hence, while the numerical split among the
circuits is far from even, I do not accord much weight to the
precedential imbalance.
There is, moreover, another reason to question this
particular "precedential cascade." Five of the seven circuit
decisions predated Kucana.40 Kucana, in my view, has inescapably
changed the analytical landscape governing the application of the
presumption of judicial review to the interplay between §§ 1155
and 1252(a)(2)(B) of the INA. Indeed, with the benefit of Kucana's
guidance, I think it apparent that my colleagues and the courts
whose view they adopt have erroneously interpreted that interplay.
I respectfully dissent.
40Of the two circuit decisions that were decided after Kucana,
one misstated the nature of the visa revocation decision, noting
that "Section 1155, which allows the Secretary to revoke his
previous approval of a visa petition and thus conclusively
determines whether an alien can stay in the country or not, fits
squarely within the class of 'substantive decisions' described in
Kucana as warranting insulation from judicial review." Mehanna,
677 F.3d at 317 (quoting Kucana, 558 U.S. at 247). This statement
mischaracterizes the visa revocation decision. The approval of a
visa petition determines only the eligibility to apply for an
immigrant visa, not "whether an alien can stay in the country or
not."
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