432 F. App'x 919
11th Cir.2011Background
- Plaintiffs are foreign amateur athletes (primarily swimmers) whose I-140 petitions for extraordinary ability were initially approved but later revoked.
- Revocations occurred because Plaintiffs allegedly failed to show income source in the US from sports or national/international acclaim for their sport.
- USCIS revoked approvals under 8 U.S.C. § 1155, giving broad discretionary authority to revoke approved petitions.
- Plaintiffs filed a putative class action in district court challenging the revocation decisions and seeking relief under various statutes (INA, Mandamus Act, APA) and Bivens claims.
- District court initially dismissed for lack of subject matter jurisdiction; Plaintiffs then sought leave to file a third amended complaint; district court denied, finding futility; Plaintiffs appealed.
- Court affirms district court, holding no INA-based jurisdiction to review visa revocation and that proposed Bivens claim fails to state a claim; amendment deemed futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether INA §1252(a)(2)(B) precludes jurisdiction over visa revocation review | Plaintiffs seek federal review of revocation of I-140 petitions under §1331 | Defendants argue §1252(a)(2)(B) precludes review of discretionary DHS decisions | Precluded; no jurisdiction to review revocation under INA |
| Whether Bivens claim against officials states a due process claim | Plaintiffs allege retaliation/irrational targeting of I-140 revocations | Discretionary immigration decisions do not create constitutional liberty interest; proper safeguards exist | No Bivens claim; due process not stated for discretionary immigration decisions |
| Whether the proposed third amended complaint would be legally viable | Proposed amendment would state a proper Bivens claim and jurisdiction | Amendment futile; no jurisdiction and no cognizable Bivens claim | Amendment futile; district court correctly denied leave to amend |
Key Cases Cited
- Kucana v. Holder, 130 S. Ct. 827 (2010) (preclusion by §1252(a)(2)(B) applies to discretionary DHS decisions)
- Green v. Napolitano, 627 F.3d 1341 (10th Cir. 2010) (preclusion of review of visa revocation under §1252(a)(2)(B))
- Abdelwahab v. Frazier, 578 F.3d 817 (8th Cir. 2009) (§1252(a)(2)(B) precludes review of discretionary immigration actions)
- Ghanem v. Upchurch, 481 F.3d 222 (5th Cir. 2007) (jurisdiction limits on immigration decision review)
- Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir. 2006) (statutory discretion in visa adjudication; review limits)