Flores v. Garland, 72 F.4th 85

Background

INA §1153(b)(2) creates an employment-based preference for advanced-degree or exceptional-ability aliens and permits the Attorney General to "waive" the job-offer requirement if he "deems it to be in the national interest." USCIS now exercises this authority.
USCIS’s Administrative Appeals Office articulated a three-factor Dhanasar test for national-interest waivers (substantial merit/national importance; well positioned; beneficial to waive job-offer/labor-certification), but Dhanasar confirms the waiver remains discretionary.
David Flores filed an I-140 petition relying on a national-interest waiver and concurrent I-485 adjustment applications; USCIS denied the waiver, the I-140, and therefore the I-485; a motion to reopen was also denied.
Flores sued under the APA, the Mandamus Act, and the Declaratory Judgment Act, alleging arbitrary-and-capricious denial; the Government moved to dismiss for lack of jurisdiction under 8 U.S.C. §1252(a)(2)(B)(ii).
The district court dismissed for lack of subject-matter jurisdiction; Flores appealed to the Fifth Circuit, which reviewed jurisdiction de novo.
The Fifth Circuit joined other circuits in holding that §1252(a)(2)(B)(ii) bars judicial review of national-interest waiver denials and affirmed dismissal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §1252(a)(2)(B)(ii) bars judicial review of national‑interest waiver denials under §1153(b)(2)(B)(i).	Flores: §1252(a)(2)(B)(ii) does not apply, because waiver denials are reviewable.	Government: §1153(b)(2)(B)(i) vests discretionary authority ("may" and "deems") in the Attorney General/USCIS; §1252(a)(2)(B)(ii) therefore bars review.	Held: Bar applies; waiver denials are discretionary and unreviewable.
Whether statutory language must use the word "discretion" to trigger §1252(a)(2)(B)(ii).	Flores: Only statutes that explicitly use "discretion" qualify.	Government: Congress may vest discretion using other language (e.g., "may," "deems"); Kucana and Ghanem support this construction.	Held: No "magic word" required; "may" and "deems" suffice to specify discretion.
Whether the waiver is a distinct, discretionary action separate from the (non‑discretionary) visa‑petition decision.	Flores: The waiver is not a separate adjudication; the case challenges the I-140 visa denial, which is non‑discretionary under §1154(b).	Government: The waiver decision is a discrete, antecedent discretionary determination; when eligibility depends on a discretionary waiver, §1252(a)(2)(B)(ii) bars review of that part.	Held: Waiver denial is a separate discretionary action; challenges that hinge on it are barred.
Whether USCIS’s Dhanasar standard removes discretion and makes waiver decisions reviewable.	Flores: Dhanasar creates a binding, non‑discretionary legal standard, so denials are reviewable.	Government: Dhanasar imposes evidentiary prerequisites but leaves ultimate grant/denial discretionary; statutory text controls for §1252(a)(2)(B)(ii).	Held: Dhanasar limits agency approval but does not eliminate statutory discretion; regulations/precedent cannot override the statutory jurisdictional bar.

Key Cases Cited

Kucana v. Holder, 558 U.S. 233 (2010) (§1252(a)(2)(B)(ii) looks to statutory specifications of discretion, not to agency regulations)
Ghanem v. Upchurch, 481 F.3d 222 (5th Cir. 2007) ("deems" language vests discretion; supports finding statutory discretion without the word "discretion")
Zhu v. Gonzales, 411 F.3d 292 (D.C. Cir. 2005) ("may"/"deems" combination indicates discretionary grant and supports nonreviewability)
Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (national‑interest waiver denials held unreviewable under §1252(a)(2)(B)(ii))
Brasil v. Sec'y of DHS, 28 F.4th 1189 (11th Cir. 2022) (reaffirming waiver denials are barred from judicial review)
Jama v. ICE, 543 U.S. 335 (2005) (explains that the word "may" customarily connotes discretion)
Patel v. Garland, 142 S. Ct. 1614 (2022) (discusses the presumption of reviewability and when it may be overcome)
Aviles‑Tavera v. Garland, 22 F.4th 478 (5th Cir. 2022) (articulates the textual requirement that a statute "expressly and specifically vest" discretion)
iTech U.S., Inc. v. Renaud, 5 F.4th 59 (D.C. Cir. 2021) (treats the "may"/"deems" combination as sufficient to confer discretion)