497 F. App'x 913
11th Cir.2012Background
- Bonillo and Silva are Brazilian citizens who entered the U.S. on B-2 visas and overstayed.
- Bonillo’s employer filed an alien labor certification for him; the Department of Labor approved it on November 27, 2001.
- Bonillo’s I-140 petition (Feb 2002) was approved on July 10, 2002; both Bonillo and Silva filed I-485 adjustment applications shortly thereafter.
- In July 2008, the Agency issued a notice of intent to revoke Bonillo’s I-140 petition; the notice was sent to his attorney at a former address.
- The attorney did not receive the notice until January 2, 2009; in May 2009, the Agency denied both Bonillo’s and Silva’s I-485 applications.
- Bonillo petitioned for reopening; the district court dismissed for lack of subject matter jurisdiction; on appeal, the Eleventh Circuit reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1252(a)(2)(B)(ii) precludes review of compliance with regulations | Bonillo argues review is available to ascertain regulatory compliance | Government argues the I-140 revocation decision is discretionary and not reviewable | §1252(a)(2)(B)(ii) does not strip jurisdiction to review regulatory compliance. |
| Whether Bonillo has standing to bring the claim | Bonillo has Article III standing; injury from I-140 revocation | Government contends lack of standing for beneficiaries like Bonillo | Bonillo has Article III standing; prudential standing to be decided by the district court. |
Key Cases Cited
- Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004) (agencies must follow their own regulations)
- Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000) (agencies must respect their procedural rules)
- Morton v. Ruiz, 415 U.S. 199 (1974) (procedural rules binding on agencies)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (injury in fact required for standing)
- Am. Iron & Steel Inst. v. Occupational Safety & Health Admin., 182 F.3d 1261 (11th Cir. 1999) (prudential standing considerations)
- Cone Corp. v. Fla. Dep’t of Transp., 921 F.2d 1190 (11th Cir. 1991) (standing/jurisdiction considerations in agency actions)