Bernardo Ex Rel. M & K Engineering, Inc. v. Johnson
814 F.3d 481
| 1st Cir. | 2016Background
- M&K Engineering filed an I-140 immigrant petition for Samuel Freitas after a DOL labor certification; USCIS initially approved the petition in 2007.
- USCIS issued a NOIR in 2010 alleging fraud and sought additional information; M&K submitted more evidence.
- In November 2010 the Texas Service Center revoked the visa petition approval, finding lack of minimum experience and contradictions in the record.
- Bernardo, as M&K’s owner, appealed to the AAO; the AAO affirmed the revocation in 2013 and the appeal was dismissed.
- Bernardo filed suit in district court (Massachusetts) in 2013 challenging the revocation; the AAO reopened proceedings and later dismissed in 2014; the district court dismissed for lack of subject matter jurisdiction.
- The First Circuit held that §1252(a)(2)(B)(ii) precludes judicial review of the revocation decision under §1155, following a circuit split and Kucana v. Holder guidance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1252(a)(2)(B)(ii) precludes review of §1155 visa revocation decisions | Bernardo argues §1252(a)(2)(B)(ii) does not apply to §1155 revocations. | The government contends the revocation decision is discretionary and barred from review by §1252(a)(2)(B)(ii). | Yes; §1252(a)(2)(B)(ii) bars review of §1155 revocations. |
| Whether §1155’s discretionary language is enough to preclude review | Bernardo contends discretionary terms do not automatically bar review if an objective standard exists. | The majority argues the language shows discretionary authority and warrants non-review. | Discretionary language together with surrounding text supports preclusion. |
| Whether 'good and sufficient cause' provides an objective standard constraining the Secretary | Bernardo asserts 'good and sufficient cause' creates objective criteria enabling review. | The government contends it is not a fixed standard and leaves discretion with the Secretary. | No; 'good and sufficient cause' does not yield a judicially enforceable standard that defeats discretion. |
| Whether legislative ratification or Kucana analysis affects the outcome | Bernardo argues Congress reenactment did not ratify agency interpretation of §1155. | The majority relies on Kucana’s interpretation of 'specified' discretion and possible ratification. | Kucana supports applying the presumption of non-reviewability where language is explicit; here the language supports preclusion. |
| Whether allowing review of revocation would create an incoherent INA framework | Bernardo argues review of revocation aligns with review of denial in some contexts to preserve coherence. | The majority asserts revocation decisions are adjunct rather than substantive and thus non-reviewable. | Maintains preclusion of review for visa revocation under §1155. |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (2010) (clarifies 'specified' discretion under §1252(a)(2)(B)(ii))
- Mehanna v. U.S. Citizenship & Immigration Servs., 677 F.3d 312 (6th Cir.2012) (supports discretionary-bar view for §1155 revocations)
- Green v. Napolitano, 627 F.3d 1341 (10th Cir.2010) (discretionary bar to review of visa revocation decisions)
- El-Khader v. Monica, 366 F.3d 562 (7th Cir.2004) (early rejection of review for §1155 revocations)
- Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir.2006) (discusses discretionary language and reviewability under §1252(a)(2)(B)(ii))
- Webster v. Doe, 486 U.S. 592 (1988) (illustrates deference when agency discretion is stated; no meaningful judicial standard)