Mohammad Poursina v. Uscis, 936 F.3d 868

Background

Mohammad Poursina, an Iranian citizen with advanced engineering degrees, applied in 2012 for an employment-based permanent visa and requested a national-interest waiver of the labor-certification requirement under 8 U.S.C. § 1153(b)(2)(B)(i).
USCIS denied the waiver in 2014; the AAO dismissed Poursina’s appeal, concluding he did not show the waiver would be in the national interest.
Poursina sued in district court alleging statutory, regulatory, APA, and due-process violations and asked the court to order USCIS to reconsider or grant the visa.
The district court dismissed for lack of subject-matter jurisdiction, relying on 8 U.S.C. § 1252(a)(2)(B)(ii) as barring judicial review of discretionary immigration decisions.
On appeal, the Ninth Circuit considered whether § 1252(a)(2)(B)(ii)’s jurisdictional bar covers denials of national-interest waivers and whether any legal or constitutional claims remain reviewable.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1252(a)(2)(B)(ii) bars judicial review of USCIS denials of national-interest waivers	Poursina: waiver-denial is reviewable under § 1331 and the APA; agency standards (e.g., Dhanasar) create reviewable, objective criteria	Gov: statute’s use of “may” and “deems it to be in the national interest” specifies discretionary authority, so § 1252(a)(2)(B)(ii) strips jurisdiction	Held: Jurisdiction barred. § 1153(b)(2)(B)(i) specifies discretionary authority; Kucana harmonizes clauses and the waiver denial falls within clause (ii)’s catchall
Whether agency precedent (Dhanasar) renders waiver decisions non-discretionary and therefore reviewable	Poursina: Dhanasar supplies objective legal criteria that constrain USCIS discretion and permit review	Gov: Dhanasar still leaves open-ended judgments (substantial merit, national importance, balance) and expressly preserves discretion	Held: Not persuasive. Dhanasar provides standards but they are open-ended and expressly discretionary; does not remove § 1252(a)(2)(B)(ii) bar
Whether any legal (purely statutory/regulatory) questions are reviewable despite clause (ii)	Poursina: agency misinterpreted statute/regulations and failed to consider evidence—these are legal/non-discretionary questions	Gov: Core decision is discretionary; alleged legal claims are essentially challenges to discretionary exercise	Held: Denied. Claims repackaged the request for discretionary relief and are not "purely legal" for jurisdictional exception
Whether denial of second petition for lack of response (and alleged failure to receive RFE/denial) violated due process and is reviewable	Poursina: He never received the RFE/denial so USCIS’s abandonment/denial deprived him of due process	Gov: Notices were mailed to address on file; sending to address given satisfies due-process notice standard	Held: Due-process claim reviewable but fails on the merits—notice was reasonably calculated to reach him; he had not updated address until later

Key Cases Cited

Kucana v. Holder, 558 U.S. 233 (harmonizing §1252(a)(2)(B) clauses; statutory discretion bars review)
Heckler v. Chaney, 470 U.S. 821 (discretion not to act is generally unreviewable)
Zhu v. Gonzales, 411 F.3d 292 (D.C. Cir. holding that denial of a labor-certification waiver is barred by §1252 clause)
ANA Int’l, Inc. v. Way, 393 F.3d 886 (9th Cir. decision distinguishing revocation under §1155 as reviewable due to "good and sufficient cause")
Webster v. Doe, 486 U.S. 592 (deference where statute confers executive discretion to act "when he shall deem" it necessary)
Trump v. Hawaii, 138 S. Ct. 2392 (courts defer where statute commits national-interest judgments to the executive)
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (due-process notice standard: notice reasonably calculated to reach interested parties)

Decision: The Ninth Circuit affirmed the district court’s dismissal for lack of jurisdiction and rejected Poursina’s substantive and procedural claims.