962 F.3d 999
7th Cir.2020Background
- Maria Dijamco: beneficiary of a family‑based visa petition filed by her lawful permanent‑resident mother in 1992; petition approved but visa not immediately available.
- Dijamco entered the U.S. using fraudulent papers; in 2005 a visa became available and she sought adjustment of status; USCIS denied the adjustment and dismissed her appeal after her mother died.
- The mother’s death caused automatic revocation of the approved petition under then‑existing regulations; Dijamco sought humanitarian reinstatement, which USCIS denied.
- Congress amended the INA in 2009 (adding 8 U.S.C. §1154(l)) to allow adjudication of some petitions despite the petitioner’s death, but USCIS refused to apply the amendment retroactively to Dijamco’s revoked petition and declined to exercise discretion to reopen her file.
- Dijamco sued in district court under the Declaratory Judgment Act and the APA seeking reinstatement; the district court dismissed for lack of subject matter jurisdiction; the Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court has jurisdiction to review USCIS revocation of an approved petition under 8 U.S.C. §1155 | Dijamco: USCIS unlawfully revoked the petition and district court may review that decision | Government: §1155 vests discretionary revocation power and §1252(a)(2)(B) precludes judicial review of such discretionary immigration decisions | Held: Jurisdiction barred; revocation under §1155 is discretionary and unreviewable under §1252(a)(2)(B) |
| Whether an APA arbitrary/capricious claim can circumvent the INA jurisdictional bar | Dijamco: APA §706 allows courts to set aside agency action that is arbitrary or capricious | Government: APA cannot be used to evade INA's specific limits on judicial review | Held: APA claim is barred to the extent it seeks review of discretionary revocation decisions covered by §1252(a)(2)(B) |
| Whether 8 U.S.C. §1154(l) (2009 amendment) required USCIS to reinstate petitions revoked before the amendment | Dijamco: The amendment and USCIS guidance create a duty to reconsider/reinstate revoked petitions like hers | Government: The statute is silent on retroactivity; any reopening under USCIS guidance is discretionary | Held: §1154(l) did not obligate USCIS to reinstate petitions revoked before enactment; reconsideration is discretionary and unreviewable |
| Whether district court could review denial of adjustment of status (procedural) | Dijamco: sought review of adjustment denial in district court | Government: Adjustment and related relief raise questions reviewable only through removal proceedings and circuit review under §1252 | Held: District court lacked jurisdiction to entertain those immigration claims (procedural bar) |
Key Cases Cited
- Bultasa Buddhist Temple of Chicago v. Nielsen, 878 F.3d 570 (7th Cir. 2017) (§1252(a)(2)(B) bars judicial review of revocations under §1155)
- El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004) (courts cannot review discretionary immigration decisions committed to agency)
- Ogbolumani v. Napolitano, 557 F.3d 729 (7th Cir. 2009) (statutory language controls scope of review under INA)
- Bernardo ex rel. M & K Eng'g, Inc. v. Johnson, 814 F.3d 481 (1st Cir. 2016) (agreement among circuits that §1155 revocations are nonreviewable)
- Roland v. USCIS, 850 F.3d 625 (4th Cir. 2017) (APA claims cannot evade INA jurisdictional bars)
- Krasilych v. Holder, 583 F.3d 962 (7th Cir. 2009) (agency guidance generally lacks independent legal force)