926 F.3d 910
7th Cir.2019Background
- John Doe, an Iranian national, filed an EB-5 I-526 petition in 2013 based on an assisted‑living project originally in Lake Barrington, Illinois; he and other investors each contributed $500,000.
- USCIS approved Doe’s I-526 in May 2014; the State Department later returned the file and USCIS issued a Notice of Intent to Revoke in January 2016 citing material changes (project relocation to Fox Lake and lack of evidence of job creation or updated documents).
- Doe responded, asserting he had notified USCIS of the Fox Lake move and submitted an updated business plan, TEA certification, and job‑creation report; USCIS issued a corrected Notice of Revocation in June 2016 and stated eligibility must be judged based on the petition as filed.
- Instead of administratively appealing, Doe sued under the APA claiming (1) procedural violations (denied meaningful opportunity to respond; inaccurate factual basis) and (2) unlawful substantive rule‑making (use of a "material change" standard without notice‑and‑comment).
- The government moved to dismiss for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii) (discretionary revocations); the district court dismissed and the Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether courts have jurisdiction under §1252(a)(2)(B)(ii) to review USCIS revocation of an approved I-526 petition | Doe: Musunuru permits review of procedural defects; his claims are procedural so jurisdiction exists | Govt: Revocation under §1155 is discretionary and §1252(a)(2)(B)(ii) strips jurisdiction over such decisions | Held: §1252(a)(2)(B)(ii) bars review of discretionary revocations under §1155; no jurisdiction to review the revocation itself |
| Whether Musunuru’s narrow procedural‑challenge exception applies here | Doe: his complaint challenges procedural compliance (notice, opportunity to respond, factual errors) so Musunuru controls | Govt: Doe’s claims are disguised substantive attacks on adjudication and therefore barred | Held: Musunuru allows review only of discrete procedural rulings that do not overlap merits; Doe’s claims are substantively aimed at the revocation and cannot evade the jurisdictional bar |
| Whether USCIS failed to follow mandatory notice‑and‑response regulations (8 C.F.R. §§205.2, 103.2) | Doe: USCIS misstated facts and law, rendering the response opportunity illusory and violating procedures | Govt: USCIS complied with regulatory notice and response requirements; substantive weighing of evidence is discretionary | Held: Formal procedural requirements were met; alleged procedural defects are effectively substantive challenges and not reviewable |
| Whether USCIS engaged in unlawful substantive rule‑making by using a "material change" standard | Doe: the agency applied a substantive standard without notice‑and‑comment rulemaking | Govt: Using a material‑change assessment in adjudication is part of discretionary §1155 revocation authority | Held: Challenge to the substantive standard is barred by §1252(a)(2)(B)(ii); court cannot reach APA rule‑making claim that attacks the substance of the revocation |
Key Cases Cited
- Musunuru v. Lynch, 831 F.3d 880 (7th Cir. 2016) (narrowly permitting review of discrete procedural denials that do not resolve the merits)
- El‑Khader v. Monica, 366 F.3d 562 (7th Cir. 2004) (revocation under §1155 is committed to agency discretion and not judicially reviewable)
- Holy Virgin Prot. Cathedral of the Russian Orthodox Church Outside Russia v. Chertoff, 499 F.3d 658 (7th Cir. 2007) (decisions to revoke approvals under §1154/§1155 are discretionary)
- Bultasa Buddhist Temple of Chi. v. Nielsen, 878 F.3d 570 (7th Cir. 2017) (courts lack jurisdiction to review discretionary revocations under §1155 despite APA claims)
- Calma v. Holder, 663 F.3d 868 (9th Cir. 2011) (identifies circumstances where courts may review isolated procedural steps even when merits are unreviewable)
- Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015) (recognized similar procedural‑challenge review in revocation context)
- Kurapati v. U.S. Bureau of Citizenship & Immigration Servs., 775 F.3d 1255 (11th Cir. 2014) (similar to Musunuru on procedural notice issues)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (standard for arbitrary and capricious review under the APA)