474 F.Supp.3d 291
D.D.C.2020Background
- iTech U.S., Inc. filed an I-140 immigrant-petition for a prospective employee; USCIS initially approved then later revoked the petition citing discrepancies in the school name on the employee’s degree record.
- iTech sued under the Administrative Procedure Act seeking review of the revocation; the government moved to dismiss for lack of jurisdiction.
- The government relied on INA § 1155 (Secretary may revoke petition “at any time” for what he “deems to be good and sufficient cause”) and INA § 1252(a)(2)(B) (jurisdictional bar for discretionary decisions).
- It is undisputed that I-140 revocation authority is delegated to USCIS and falls within § 1155.
- The opinion surveys circuit authority: nine circuits (and multiple D.D.C. decisions) hold § 1155 revocations are discretionary and unreviewable; the Ninth Circuit is a narrow outlier.
- The Court concluded Congress vested revocation decisions in the Secretary’s discretion and dismissed iTech’s claim for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal courts have jurisdiction to review USCIS I-140 revocations under INA §§ 1155 and 1252(a)(2)(B) | iTech: §1155 does not make revocations discretionary; §1252(a)(2)(B) therefore does not bar review | Gov: §1155 vests subjective discretion in Secretary; §1252(a)(2)(B) precludes judicial review of such discretionary decisions | Court: Dismissed for lack of jurisdiction; §1155 revocations are discretionary and barred by §1252(a)(2)(B) |
| Whether the title "Denials of discretionary relief" or the term "relief" limits §1252(a)(2)(B) to only certain "relief" provisions | iTech: §1252(a)(2)(B) covers only "relief" (e.g., waivers, adjustments), not §1155 revocations | Gov: Section text applies to any decision "specified under this subchapter to be in the discretion of" the Secretary; headings don’t override text | Court: Title/heading cannot limit plain text; §1252(a)(2)(B) covers §1155 revocations |
| Whether ejusdem generis narrows §1252(a)(2)(B)(ii) to decisions similar to those enumerated in (i) | iTech: catchall should be read limited to same genre as (i) | Gov: Supreme Court precedent construes the clause to cover discretionary decisions identified by statute, which includes §1155 | Court: Ejusdem generis inapplicable; statute plainly covers discretionary decisions like §1155 revocations |
| Whether the BIA’s interpretation of "good and sufficient cause" creates a judicially manageable standard that cabins Secretary’s discretion | iTech: BIA developed standards that constrain Secretary and permit review | Gov: §1155’s text vests subjective discretion; BIA standards do not override statute’s "for what he deems to be" language | Court: BIA interpretation cannot read out the statutory grant of discretion; no judicial-standard exists and BIA does not bind to create reviewability |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (2010) (construing scope of §1252(a)(2)(B) and when statutory discretion bars review)
- Bernardo ex rel. M & K Eng’g, Inc. v. Johnson, 814 F.3d 481 (1st Cir. 2016) (holding petition revocation discretionary and unreviewable)
- ANA Int’l Inc. v. Way, 393 F.3d 886 (9th Cir. 2004) (outlier holding §1155 allows judicial review under a "good and sufficient cause" standard)
- Polfliet v. Cuccinelli, 955 F.3d 377 (4th Cir. 2020) (finding §1155 revocations discretionary and barred by §1252)
- Ghanem v. Upchurch, 481 F.3d 222 (5th Cir. 2007) (concluding §1155 vests discretion and precludes review)
- Mehanna v. USCIS, 677 F.3d 312 (6th Cir. 2012) (holding revocation decisions nonreviewable)
- Zhu v. Gonzales, 411 F.3d 292 (D.C. Cir. 2005) (noting Congress need not use the word "discretion" to vest discretion)
- Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984) (presumption of review rebutted where Congress clearly intends to preclude it)