Syed Khalil v. Mark Hazuda

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 12, 2016
No. 15-20461
Lyle W. Cayce
Clerk
SYED NAIYER KHALIL; SAMINA KHALIL; SYED UMAR KHALIL; SYED
HAMZA KHALIL; HERA KHALIL; HAFSA SIDRA KHALIL; SYED HASHIR
KHALIL; SYED YASIR KHALIL,
Plaintiffs–Appellants,
v.
MARK J. HAZUDA, Director of the United States Citizenship and
Immigration Services Nebraska Service Center, in his official capacity; LEON
RODRIGUEZ, Director, United States Citizenship and Immigration Services,
in his official capacity; JEH CHARLES JOHNSON, SECRETARY,
DEPARTMENT OF HOMELAND SECURITY, in his official capacity; JOHN
F. KERRY, Secretary of State, in his official capacity; THOMAS J. VAJDA,
Consul General of the Consular Section of the Consulate of the United States,
in his official capacity, Mumbai, India; HELEN LAFAVE, Consul General of
the Consular Section of the Consulate of the United States, Kolkata, India, in
her official capacity; EDWARD RAMOTOWSKI, Deputy Assistant Secretary
of Visa Services, in his official capacity,
Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Texas
Before WIENER, PRADO, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
After U.S. Citizenship and Immigration Services (USCIS) revoked Syed
Naiyer Khalil’s I-140 immigrant visa petition (I-140 petition) because Khalil’s
No. 15-20461
petitioning employer no longer had a position for him, Khalil challenged the
revocation in federal district court. The Government argued, and the district
court agreed, that judicial review was barred by a provision of the Immigration
and Nationality Act (INA) prohibiting review of discretionary USCIS
decisions. 1 Khalil appeals the district court’s dismissal for lack of
subject-matter jurisdiction. We affirm.
I
Syed Naiyer Khalil is a citizen of India who lived and worked in the
United States on an H1-B visa. An H1-B visa is a nonimmigrant visa that
allows certain foreign nationals in “specialty occupation[s]” to reside and work
temporarily in the United States for up to six years. 2 Some H1-B workers
remain in the United States indefinitely after lawfully adjusting to permanent
resident status, usually based on a family- or employment-based immigrant
visa petition filed on their behalf by a U.S.-citizen relative or a qualifying
employer. Applications to adjust status in this manner are processed and
adjudicated by USCIS, a component of the Department of Homeland Security
(DHS).
Khalil was working in the United States for Herbal Pharma, Inc. (Herbal
Pharma) as a temporary worker in H1-B status. In June 2006, Herbal Pharma
filed a Form I-140 Immigrant Petition for Alien Worker (I-140 petition) on
Khalil’s behalf. That petition, once it was approved in October 2006, allowed
Khalil to apply for an adjustment to permanent resident status when a visa
number became available. 3 Khalil submitted such an application to USCIS in
July 2007. He continued working for Herbal Pharma while his application to
1 8 U.S.C. § 1252(a)(2)(B)(ii).
2 See 8 U.S.C. §§ 1101(a)(15)(H)(i)(b), 1184(g)(4), 1184(i).
3 Employment-based immigrant visas are subject to an annual quota, and an
adjustment of status—like the issuance of an immigrant visa abroad by a U.S. embassy or
consulate—counts against that quota. See 8 U.S.C. §§ 1151(a), 1151(c), 1153(b).
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adjust status was pending. Although his authorization to live and work in the
United States expired in September or October 2009, he unlawfully worked for
Herbal Pharma until sometime in 2012.
USCIS denied Khalil’s application to adjust status in October 2011. In
support of its decision, the agency cited his unauthorized employment from
October 2009 to January 2011 and correctly noted that the INA prohibited
adjustment of status when the applicant “engaged in unauthorized
employment” for 180 days or more before the application was adjudicated.
Nevertheless, Khalil’s employer arranged for his I-140 petition to be
transferred from USCIS to the U.S. consulate in Mumbai so that Khalil could
apply for an immigrant visa there. 4 After visa interviews in April 2012 and
October 2013, officers at the U.S. consulate provisionally declined to issue
Khalil an immigrant visa pending further review and investigation. 5 During
the second interview, Khalil candidly acknowledged that he no longer had an
offer of employment from Herbal Pharma and presented instead a similar offer
from Chemquest International. The consular officer, apparently concluding
that the I-140 petition underlying Khalil’s application was invalid for lack of
an available position at the petitioning employer, returned the I-140 petition
to USCIS for possible revocation in November 2013.
In February 2014, USCIS sent Khalil notice that it intended to revoke
his I-140 petition. During Khalil’s consular interview, the notice charged, he
“stated that he no longer had qualifying employment with the petitioner in the
United States.” Without citation to authority, the notice concluded that “[i]n
view of the above, it appears that the approval of the petition should be
4 Although Khalil’s unauthorized employment made him ineligible to adjust status,
see 8 U.S.C. § 1255(k)(2)(B), it did not bar him from obtaining an immigrant visa, see id.
§ 1182(a) (listing grounds for visa ineligibility).
5 See 8 U.S.C. § 1201(g).
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revoked.” Khalil timely responded, contending that 8 U.S.C. § 1154(j),
reflecting a 2000 amendment to the INA, precluded the revocation of Khalil’s
I-140 petition due to a change in sponsoring employer. USCIS revoked Khalil’s
petition in March 2014 for substantially the same reason cited in the notice,
without addressing his argument concerning § 1154(j). The decision reads, in
relevant part, as follows: “The evidence of record indicates that the petitioned
position is no longer offered to the alien beneficiary. In view of the above, the
approval of the instant petition is revoked.” The Government contends, and
Khalil has not disputed, that Khalil did not appeal the revocation to DHS’s
Administrative Appeals Office.
Khalil and his family members brought this suit against various federal
government officials, all in their official capacities, in 2014. 6 He alleged that
consular officers refused to issue a visa, and USCIS revoked his petition, in
violation of the INA, the Administrative Procedure Act, the Due Process Clause
of the U.S. Constitution, and various DHS and Department of State guidance
documents. The Government moved to dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, arguing
that the revocation authority exercised by DHS was purely discretionary. As
a result, it contended, the district court lacked jurisdiction over the case
because 8 U.S.C. § 1252(a)(2)(B)(ii) precludes judicial review over such
exercises of discretionary authority.
The district court agreed, dismissing Khalil’s suit for lack of
subject-matter jurisdiction. It noted that in this circuit, it is well settled that
the revocation of immigrant visa petitions is a matter of discretion and judicial
6 The additional plaintiffs are Khalil’s wife and children; the complaint alleges that
they suffered various harms as a result of the revocation of the visa petition in Khalil’s favor,
but the plaintiffs do not press these claims on appeal. The defendants are various DHS and
Department of State officials. We refer to the defendants collectively as the Government.
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No. 15-20461
review of such decisions is therefore precluded by statute. It then rejected
Khalil’s argument that the 2000 amendment to the INA creates an exception
to this general rule and deprives the Secretary of Homeland Security of
discretion to revoke an I-140 due solely to a change in the applicant’s
sponsoring employer. After noting that the neither the INA nor the
Administrative Procedure Act provides a separate cause of action, the district
court dismissed Khalil’s complaint without prejudice. Khalil timely appealed.
II
A district court’s dismissal for lack of subject-matter jurisdiction is
reviewed de novo. 7 “[T]he district court ‘has the power to dismiss for lack of
subject matter jurisdiction on any one of three separate bases: (1) the
complaint alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by undisputed facts
plus the court’s resolution of disputed facts.’” 8
The INA confers the authority to revoke immigrant visa petitions upon
the Secretary of Homeland Security (the Secretary), who “may, at any time, for
what he deems to be good and sufficient cause, revoke the approval of any
petition approved by him under [8 U.S.C. § 1154].” 9 The INA also precludes
judicial review of certain decisions of the Secretary implicating his discretion.
The Act provides that “[n]otwithstanding any other provision of law . . . no
court shall have jurisdiction to review,” among other things, “any . . . decision
or action of the Attorney General or the Secretary of Homeland Security the
7 Spotts v. United States, 613 F.3d 559, 565 (5th Cir. 2010).
8 Id. at 565-66 (quoting St. Tammany Parish ex rel. Davis v. Fed. Emergency Mgmt.
Agency, 556 F.3d 307, 315 (5th Cir. 2009)).
9 8 U.S.C. § 1155.
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No. 15-20461
authority for which is specified under this subchapter to be in the discretion of
the Attorney General or the Secretary of Homeland Security.” 10
In this circuit, USCIS decisions to revoke immigrant visa petitions
generally fall within the ambit of this jurisdiction-stripping provision of the
INA and are thus not subject to judicial review. Any argument to the contrary
would be foreclosed by Ghanem v. Upchurch, which dismissed a challenge to
the Secretary’s revocation of the plaintiff’s family-based visa petition on
jurisdictional grounds. 11 The statute governing revocations of immigrant visa
petitions, we held in Ghanem, “vest[s] complete discretion in the Secretary to
determine what constitutes good and sufficient cause” to revoke such
petitions. 12
Khalil’s position rests on two arguments. First, he says, a provision of
the INA added in 2000 prohibits the revocation of an I-140 petition in cases
like his. Second, he adds, because that provision divests USCIS of discretion
to revoke his I-140 petition, his case falls outside the scope of the
jurisdiction-stripping provision of the INA and federal courts have
subject-matter jurisdiction to review the dispute.
Khalil contends that USCIS’s revocation of his I-140 petition
contravened the portability provision of the INA, which was added by the
American Competitiveness in the Twenty-First Century Act of 2000. 13 As
relevant here, the statute provides that “[a] petition . . . for an individual
10 Id. § 1252(a)(2)(B). The statute includes an exception for asylum claims, which are
subject to limited judicial review. Id.
11 481 F.3d 222, 224-25 (5th Cir. 2007). To our knowledge, all but one of the Courts of
Appeals that have addressed this issue have reached the same conclusion. See Bernardo ex
rel. M & K Eng’g, Inc. v. Johnson, 814 F.3d 481, 484 (1st Cir. 2016) (collecting cases), cert.
denied, No. 15-1138, 2016 WL 1028786 (U.S. June 20, 2016).
12 481 F.3d at 225 (citing Jilin Pharm. v. Chertoff, 447 F.3d 196 (3d Cir. 2006); El-
Khader v. Monica, 366 F.3d 562, 567 (7th Cir. 2004)).
13 Pub. L. No. 106-313, 114 Stat. 1251 (codified at 8 U.S.C. § 1154(j)).
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No. 15-20461
whose application for adjustment of status . . . has been filed and remained
unadjudicated for 180 days or more shall remain valid with respect to a new
job if the individual changes jobs or employers” if the new job is substantially
similar to the old one. 14 Khalil argues that because his application for
adjustment of status “remained unadjudicated” for more than 180 days—even
though the application had been denied by the time the petition was revoked—
USCIS was without authority to revoke his I-140 petition due to a change in
employment. Although USCIS retained the authority to revoke his petition for
fraud or other reasons, he argues, the portability provision’s mandate that the
petition “shall remain valid” with respect to new employment divested USCIS
of any discretion to revoke a petition on the ground it relied upon in the
administrative proceedings here.
We conclude that, contrary to Khalil’s assertions, he cannot benefit from
the application of the portability provision of § 1154(j), because his application
for adjustment of status was no longer pending at the time USCIS revoked his
I-140 petition. The portability provision, as its heading suggests, was enacted
to provide “[j]ob flexibility for long delayed applicants for adjustment of
status.” 15 By its terms, it governs the validity of “[a] petition . . . for an
individual whose application for adjustment of status . . . has been filed” if the
individual “changes jobs or employers.” 16 The statute’s use of the present tense
14 The full text of this provision refers to “[a] petition under subsection (a)(1)(D)” of
§ 1154. At the time this provision was enacted, subsection (a)(1)(D) of § 1154 referred to the
type of employment-based visa petition at issue here. See 8 U.S.C. § 1154(a)(1)(D) (1994 &
Supp. V 2000) (available at uscode.house.gov). Subsection (a)(1)(D) was redesignated
subsection (a)(1)(F) by the Victims of Trafficking and Violence Protection Act of 2000, Pub.
L. No. 106-386, § 1503(d)(1), 114 Stat. 1464, 1521. As a result, it appears the cross-reference
should now be to subsection (a)(1)(F), although the present version of the U.S. Code
maintains the text as originally enacted. See Herrera v. USCIS, 571 F.3d 881, 886 n.5 (9th
Cir. 2009).
15 8 U.S.C. § 1154(j).
16 Id.
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and perfect aspect here—referring to an application that “has been filed”—is
most naturally understood in this context to encompass only those applications
that remain unadjudicated. 17 Put differently, the statutory text creates two
requirements: that the application for adjustment of status (1) “has been filed”
and that it (2) has “remained unadjudicated for 180 days or more.” As a result,
the provision cannot benefit Khalil, whose application to adjust status had
been denied well before his I-140 petition was revoked.
This inference from the statutory text is supported by an analysis of its
companion provisions in the Twenty-First Century Act of 2000. 18 The
portability provision at issue here is contained in § 106(c) of the Act. In
§ 106(a) and (b), the Act contains two other provisions that plainly apply only
to nonimmigrants currently in the United States awaiting the adjudication of
their I-140 petition or application to adjust status. Section 106(a) creates an
exception to the six-year limitation on the duration of authorized stay for
certain nonimmigrants already in H1-B status whose I-140 immigrant visa
petitions or applications to adjust status have been pending for 365 days or
more. Section 106(b) requires USCIS to extend the period of authorized stay
for such non-immigrants “in one-year increments until such time as a final
decision is made on the alien’s lawful permanent residence.” Because the
six-year limitation period implicated by § 106(a) and (b) only runs against
those currently in the United States in H1-B status, those provisions have no
17 For examples of § 1154(j) being applied in this context, see Perez-Vargas v. Gonzales,
478 F.3d 191, 192-93 (4th Cir. 2007) (noting that § 1154(j) “permits an application for
adjustment of status to remain pending” in certain circumstances); Sung v. Keisler, 505 F.3d
372, 376 (5th Cir. 2007) (citing Perez-Vargas for the proposition that “based on the plain
language of this statute,” the provision “pertains to an adjustment of status application”).
18 Pub. L. No. 106-313, 114 Stat. 1251 (codified at 8 U.S.C. §1154(j)); see United States
v. Lawrence, 727 F.3d 386, 391-92 (5th Cir. 2013) (noting that statutory provisions
“necessarily derive[] meaning from the context provided by the surrounding provisions, as
well as the broader context of the statute as a whole” (quoting Khalid v. Holder, 655 F.3d
363, 367 (5th Cir. 2011))).
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effect on applicants seeking to enter the United States by obtaining an
immigrant visa from a U.S. embassy or consulate. As the Senate report
accompanying an earlier version of the bill indicated, § 106 was crafted to
“allow[] an individual on an H-1B visa whose adjustment to permanent
resident on the basis of employment has progressed far enough to stay in the
United States until a final decision is made on his or her case.” 19 Section 106(c)
of the Act—although it was added after the committee report was written 20—
is a companion provision to § 106(a) and (b), designed to avoid situations in
which “entirely unreasonable administrative delays” “forced” non-immigrant
workers in H1-B status to disrupt their work and return to their home
country. 21 There is simply no indication that any part of § 106, including the
portability provision, reaches beyond current applicants for adjustment of
status to encompass those opting instead to secure permanent resident status
by obtaining an immigrant visa from a U.S. embassy or consulate.
We note that the result here does not depend on any deference to
USCIS’s interpretation of the statute. Chevron deference 22 is only warranted
where “the agency [has] issued its interpretation in a manner that gives it the
force of law.” 23 Because we have declined to extend Chevron deference even to
a non-precedential opinion of the Board of Immigration Appeals, 24 it certainly
does not extend to the decision of a lone USCIS adjudicator. The fact that the
19 S. Rep. No. 106-260, at 23 (2000), https://www.congress.gov/106/crpt/srpt260/CRPT-
106srpt260.pdf. At that stage, what became § 106 of the final enactment was designated § 6
in the version discussed by the committee report.
20 Compare S. 2045, 106th Cong. § 6 (as reported by S. Comm. on the Judiciary, Apr.
11, 2000), https://www.gpo.gov/fdsys/pkg/BILLS-106s2045rs/pdf/BILLS-106s2045rs.pdf,
with S. 2045, 106th Cong. § 106 (as enrolled, Oct. 3, 2000),
https://www.gpo.gov/fdsys/pkg/BILLS-106s2045enr/pdf/BILLS-106s2045enr.pdf.
21 S. Rep. No. 106-260, at 23.
22 See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
23 Dhuka v. Holder, 716 F.3d 149, 155 (5th Cir. 2013).
24 Id. at 156.
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Government has adopted this interpretation of § 1154(j) as a litigating position
is of no moment. 25 As a result, the extent of our deference to the agency
depends upon the “thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade.” 26 The adjudicator’s decision here,
however, fails to address Khalil’s argument regarding the proper
interpretation of § 1154(j) and thus is entitled to no deference. 27
In sum, we conclude that USCIS’s revocation of Khalil’s I-140 petition
was not in violation of § 1154(j). As a result, we need not reach the question of
whether § 1154(j), when it applies, creates an exception to this circuit’s general
rule that USCIS’s petition revocation decisions are discretionary decisions not
subject to judicial review. Instead, the jurisdiction-stripping provision of the
INA applies with full force to Khalil’s case. We therefore AFFIRM the district
court’s order dismissing the case for lack of subject-matter jurisdiction.
25 See Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166-67 (2012)
(deference not required where government’s interpretation “is nothing more than a
‘convenient litigating position’ or a ‘post hoc rationalizatio[n]’ advanced by an agency seeking
to defend past agency action against attack” (alteration in original) (citations omitted)).
26 Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
27 We note that USCIS has published a Federal Register notice proposing revisions to
the Code of Federal Regulations implementing § 1154(j). See Retention of EB–1, EB–2, and
EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled
Nonimmigrant Workers, 80 Fed. Reg. 81,900, 81,915 (proposed Dec. 31, 2015) (describing
§ 1154(j) as “enhanc[ing] the ability of certain workers to change jobs or employers if they
have been sponsored for permanent residence by U.S. employers and have pending
applications for adjustment of status”); id. at 81,944 (setting out proposed 8 CFR § 245.25,
which addresses the adjudication of adjustment of status applications in light of § 1154(j)).
These revisions do not appear to address directly the applicability (or not) of § 1154(j) to
individuals like Khalil whose petitions are under review for possible revocation outside the
context of a currently pending application to adjust status.
10