Canal A Media Holding LLC v. United States Citizenship and Immigration Services
964 F.3d 1250
| 11th Cir. | 2020Background:
- Canal Antigua (Guatemala) formed U.S. subsidiary Canal A Media and filed Form I-129 (L-1A) on Nov. 25, 2016 seeking to transfer its president, Erick Archila, from Guatemala to the U.S.; Archila was in the U.S. on a B-2 visa.
- DHS/USCIS denied the I-129 on July 24, 2017, concluding Canal A Media failed to show the required subsidiary relationship/capital contribution from Canal Antigua.
- After the I-129 filing, DHS initiated removal proceedings against Archila; he remains in removal proceedings with an asylum application pending.
- Canal A Media and Archila sued USCIS under the APA and for due-process violations seeking declaratory and injunctive relief to approve the I-129; defendants moved to dismiss for lack of subject-matter jurisdiction.
- The district court dismissed, holding the I-129 denial was not final agency action and that 8 U.S.C. §1252(b)(9) and (g) barred review; the Eleventh Circuit reversed and remanded.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Is USCIS's denial of the I-129 a "final agency action" under the APA? | Denial was USCIS’s final word; plaintiffs can seek APA review now. | Not final because Archila’s ongoing removal proceedings could afford relief. | Yes: denial consummated USCIS decisionmaking and determined petitioner's rights; final under Bennett/Hawkes test. |
| 2) Does 8 U.S.C. §1252(b)(9) (the "zipper clause") bar this suit? | Zipper clause only channels review of removal orders; this suit challenges a visa decision, not a removal order. | The I-129 challenge is tied to removal and should be heard in removal proceedings. | No: zipper clause is narrow and does not bar independent challenges to USCIS visa denials. |
| 3) Does 8 U.S.C. §1252(g) bar review (exclusive jurisdiction over removal-related claims)? | §1252(g) covers only three discrete actions; I-129 denial is not one of them. | Relief could moot removal proceedings, so §1252(g) applies. | No: §1252(g) does not cover challenges to an agency visa decision that is not a decision to commence/adjudicate/execute removal. |
| 4) Can the petitioner (Canal A Media) obtain review independent of beneficiary’s removal proceedings? | Canal A Media, as petitioner, cannot participate in removal proceedings to seek the visa and thus has no alternate forum. | Petitioner should wait to see if relief arises in removal proceedings. | Yes: petitioner lacks standing in removal proceedings to obtain the I-129, so its rights were finally determined by USCIS and are reviewable now. |
Key Cases Cited:
- Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (general APA review principle)
- Bennett v. Spear, 520 U.S. 154 (two-part finality test)
- U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807 (application of Bennett finality test)
- Franklin v. Massachusetts, 505 U.S. 788 (agency consummation / core finality question)
- Perez v. USCIS, 774 F.3d 960 (11th Cir.) (USCIS denial may be final even with removal proceedings)
- Ibarra v. Swacina, 628 F.3d 1269 (11th Cir.) (contrast where adjustment could be renewed in removal proceedings)
- DHS v. Regents of Univ. of Cal., 140 S. Ct. 1891 (scope of §1252(b)(9) and §1252(g) is narrow)
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (scope of §1252(g) limited to three discrete actions)