Green v. Napolitano
2010 U.S. App. LEXIS 25898
| 10th Cir. | 2010Background
- Reginald Green, a US citizen, married Njideka Abajue, a Nigerian citizen, and Green filed an I-130 petition for her relative status.
- USCIS approved the petition under § 1154 but later revoked it under § 1155 after a former spouse stated the prior marriage was fraudulent.
- The Board of Immigration Appeals affirmed the § 1155 revocation, noting insufficient evidence that the marriage was bona fide.
- Green and Abajue filed suit in district court alleging due process violations for lack of opportunity to confront the former spouse.
- Defendants moved to dismiss, arguing the § 1155 revocation decision is discretionary and thus barred from district court review under § 1252(a)(2)(B)(ii).
- The district court dismissed for lack of jurisdiction, and Green and Abajue appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1252(a)(2)(B)(ii) strips district courts of jurisdiction over § 1155 revocations | Green/Abajue argue no jurisdictional bar applies. | Defendants contend § 1155 revocations are discretionary and barred from review. | Yes; § 1252(a)(2)(B)(ii) precludes district court review of § 1155 revocations. |
| Whether any exceptions to § 1252(a)(2)(B)(ii) apply to this case | Potential exceptions for constitutional claims or other review may apply. | Exceptions do not apply in district court for this petition; final order review not present. | No applicable exceptions; jurisdiction remains barred. |
| Whether the district court had jurisdiction under other statutes (e.g., § 1331, § 2201) to review the revocation | They contend federal-question or declaratory-judgment jurisdiction exists. | Discretionary bar governs; § 1252 controls, no jurisdiction. | Jurisdiction not proper under § 1331 or § 2201. |
| Whether the claim is reviewable as a non-discretionary legal or constitutional question | Due-process concerns might be legally reviewable. | Discretionary nature of § 1155 prevents review of the revocation's legality or constitutionality in district court. | Unable to review due to discretionary-judgment bar. |
Key Cases Cited
- Hamilton v. Gonzales, 485 F.3d 564 (10th Cir. 2007) (visa revocation under § 1155 is discretionary; allows review only for final removal order or certain questions)
- El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004) (discretion to determine good and sufficient cause involves subjective judgment)
- Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir. 2006) (statutory discretion must be sufficiently specified)
- Ghanem v. Upchurch, 481 F.3d 222 (5th Cir. 2007) (interpreting discretion under § 1155 as fully vested in the agency)
- Yerkovich v. Ashcroft, 381 F.3d 990 (10th Cir. 2004) (statutory discretion must be explicit under § 1252; regulatory sources alone do not authorize review)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (regulatory discretion not barred when not statute-based; context differs from § 1155)
- Nakamoto v. Ashcroft, 363 F.3d 874 (9th Cir. 2004) (discretion must be wholly discretionary under statute for § 1252 bar)
- Kucana v. Holder, 130 S. Ct. 827 (2010) (discretionary authority must be specifically provided by statute to bar review)