Karl Justa Brasil v. Secretary, Department of Homeland Security, 28 F.4th 1189

Brasil filed an I-140 petition seeking classification under 8 U.S.C. § 1153(b)(2) and a national interest waiver (NIW) under § 1153(b)(2)(B)(i).
USCIS denied the NIW, finding Brasil did not satisfy the Matter of Dhanasar standard; the Administrative Appeals Office dismissed his appeal.
Brasil sued in district court under the Administrative Procedure Act (APA), alleging USCIS improperly weighed evidence and misapplied Dhanasar.
Defendants moved to dismiss for lack of subject-matter jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii); the magistrate and district court agreed and dismissed.
On appeal, Brasil argued the Dhanasar precedent supplies a reviewable standard under the APA and that § 1252(a)(2)(B)(ii) does not apply; the Eleventh Circuit affirmed dismissal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1252(a)(2)(B)(ii) bars judicial review of USCIS denials of NIWs under § 1153(b)(2)(B)(i)	Brasil: APA review available because Matter of Dhanasar creates a clear, reviewable standard	Defendants: § 1153(b)(2)(B)(i) confers discretion (uses “may” and “deem”), so § 1252(a)(2)(B)(ii) strips courts of jurisdiction	The statute confers discretion; § 1252(a)(2)(B)(ii) precludes judicial review of NIW denials; dismissal affirmed
Whether procedural/failure-to-apply claims remain reviewable	Brasil: argued misapplication of Dhanasar (merits)	Defendants: jurisdictional bar prevents merits review but not necessarily procedural claims	Court limited its holding to merits; left open whether USCIS’s failure to follow agency procedures or to apply Dhanasar could be judicially reviewed

Zhu v. Gonzales, 411 F.3d 292 (D.C. Cir. 2005) (holds discretionary statutory language can preclude APA review)
Kucana v. Holder, 558 U.S. 233 (2010) (statute must itself confer discretion for § 1252(a)(2)(B) to apply)
JAMA v. Immigration & Customs Enforcement, 543 U.S. 335 (2005) (interpretation that “may” connotes discretion)
Poursina v. U.S. Citizenship & Immigration Servs., 936 F.3d 868 (9th Cir. 2019) (NIW decisions committed to executive discretion; “national interest” invokes executive judgment)
Mousavi v. U.S. Citizenship & Immigration Servs., [citation="828 F. App'x 130"] (3d Cir. 2020) (third-circuit reasoning supporting nonreviewability of NIW denials)
iTech U.S., Inc. v. Renaud, 5 F.4th 59 (D.C. Cir. 2021) (statutory use of “may” and “deem” supports discretion under § 1252(a)(2)(B)(ii))
Kurapati v. U.S. Citizenship & Immigration Servs., 775 F.3d 1255 (11th Cir. 2014) (agency procedural failures may remain reviewable even when decision is discretionary)
ANA Int’l Inc. v. Way, 393 F.3d 886 (9th Cir. 2004) (earlier Ninth Circuit case holding some statutory phrases can furnish judicially manageable standards)
Trump v. Hawaii, 138 S. Ct. 2392 (2018) (national-security/national-interest determinations are committed to executive discretion)