847 F. Supp. 2d 1168
D. Ariz.2012Background
- Petitioners Gennady Ilyabaev, Tatiana Makarova, and Elena Ilyabaev are Uzbekistan natives and Israeli citizens; Jam Precision filed ETA-750 for Ilyabaev’s job as a precision lathe operator (3+ years experience).
- An I-140 petition for a Skilled Worker visa was approved in 1998, but CIS later learned Ilyabaev lacked the three years of experience claimed on ETA-750.
- CIS issued a Notice of Intent to Revoke the I-140 in 2003 and a Revocation in 2004, with notices mailed only to Jam Precision, not to Ilyabaev or his attorney.
- CIS then denied Ilyabaev’s 1-485 adjustment based on revocation and treated porting under ACTFCA; later motions to reopen were denied.
- ICE charged Petitioners as removable in 2009; IJ granted voluntary departure, BIA dismissed for lack of jurisdiction to review revocation of the 1-140 petition.
- Petitioners seek habeas relief arguing due process was violated by CIS failing to follow 8 C.F.R. § 103.2(b)(16)(I) and depriving them of opportunity to present evidence before revocation/denial; court granted habeas relief to require pre-revocation process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court has habeas jurisdiction over CIS revocation/denial challenges | Petitioners seek review of CIS revocation, not final removal order | REAL ID Act limits habeas relief and raises exhaustion/administrative-remedies issues | Court has subject-matter jurisdiction to review CIS revocation/denial under habeas corpus. |
| Effect of REAL ID Act on jurisdiction | REAL ID Act does not bar habeas review because challenge is to revocation process, not removal order | REAL ID Act eliminates habeas for removal orders but not all immigration claims | REAL ID Act does not deprive court of habeas jurisdiction over petition challenging revocation/portability issues. |
| Whether 8 C.F.R. § 103.2(b)(16)(I) required pre-revocation notice | Mr. Ilyabaev as an 1-485 applicant had a right to notice and opportunity to rebut derogatory information | Beneficiary alone not entitled; Jam Precision as petitioner governs notice | Petition granted; petitioner entitled to pre-revocation notice and opportunity to be heard. |
| Standing to challenge revocation | Ilyabaev (beneficiary and 1-485 applicant) has standing to challenge due-process deficiencies | Herrera suggests beneficiary lacks standing; court should defer | Standing found; challenge to revocation properly brought in habeas petition. |
| Exhaustion requirements | Administrative exhaustion not required because challenge is to revocation and not to final removal order | Exhaustion arguments may apply to administrative remedies | Exhaustion not a bar; court may hear habeas petition. |
Key Cases Cited
- Herrera v. U.S. Citizenship & Immigration Servs., 571 F.3d 881 (9th Cir. 2009) (pre-revocation notice sufficiency; beneficiary entitled to notice and opportunity to rebut where appropriate)
- Amarjeet Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007) (district court may review ineffective-assistance-type challenges without triggering removal-order review)
- Vijendra Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011) (REAL ID Act requires case-by-case analysis of habeas jurisdiction in non-removal challenges)
- Iasu v. Smith, 511 F.3d 881 (9th Cir. 2007) (REAL ID Act §1252(a)(5) does not bar habeas when not challenging removal order)
- Reno v. AADC, 525 U.S. 471 (U.S. 1999) (§1252(g) covers only three discrete prosecutorial actions; not broad jurisdictional bar)
- ANA Int’l Inc. v. Way, 393 F.3d 886 (9th Cir. 2004) (revocation of an I-140 petition not purely discretionary; jurisdiction to clarify legal standard)