81 F. Supp. 3d 721
E.D. Wis.2015Background
- Petitioner (Indian national on an employment visa) had an employer (VSG) obtain a labor certification (Feb 2004) and an approved I-140; petitioner later applied to adjust status and began working for Crescent Solutions, which filed and obtained an I-140 in March 2011 while petitioner retained the 2004 priority date.
- In May 2011 VSG was found to have unlawfully hired noncitizen workers; VSG officers pled guilty and VSG was debarred from the labor certification program.
- USCIS issued a notice of intent to revoke VSG’s I-140; VSG (now out of business) did not respond, USCIS revoked the I-140 and invalidated the underlying labor certification without notifying petitioner.
- USCIS then amended approval of Crescent Solutions’s I-140 to assign petitioner a January 28, 2011 priority date (losing the Feb 2004 date); USCIS declined to allow petitioner (the beneficiary) to administratively appeal the revocation.
- Petitioner sued under the Administrative Procedure Act, alleging USCIS violated its own regulations and due process by failing to give him pre-revocation notice and by denying him administrative appeal; respondents moved to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1252(a)(2)(B) bars review of petitioner’s claim that USCIS failed to follow required procedures in revoking the I-140 | Adelman argues the claim challenges procedural violations (failure to give notice/opportunity to rebut) which are reviewable, not the discretionary revocation itself | Respondents argue revocation is a discretionary act committed to agency discretion and thus unreviewable | Court: Jurisdiction exists to review petitioner’s procedural claim; Congress did not strip courts of review of failure-to-follow-regulation claims |
| Article III standing (injury-in-fact, traceability, redressability) | Petitioner: loss of original priority date and resulting delay to permanent residency is a concrete injury caused by USCIS and redressable | Respondents: (implicitly) challenge standing | Court: Petitioner has Article III standing—loss of priority date is concrete, traceable, and redressable |
| Prudential standing / APA zone-of-interests | Petitioner: beneficiary’s interest in employment-based immigration falls within the INA’s zone of interests and APA review | Respondents: beneficiary is not the statutory petitioner and lacks prudential interest | Court: Petitioner’s interests are not so marginal; within the zone of interests to permit APA review |
| Whether regulations or due process entitle beneficiary to pre-revocation notice or administrative appeal | Petitioner: 8 C.F.R. §103.2(b)(16)(i) and related rules give an “applicant” right to notice; due process requires meaningful hearing because revocation causes serious loss | Respondents: Regulations and INA refer to the employer/petitioner, not the beneficiary; only petitioners/affected parties may appeal; revocation is discretionary so no protected property interest | Court: Beneficiary is not an “applicant or petitioner” under the regulation and has no right to pre-revocation notice or administrative appeal; because revocation is discretionary petitioner has no constitutionally protected property/liberty interest, so due process claim fails |
Key Cases Cited
- El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004) (revocation of approved I-140 is a discretionary agency decision)
- Kurapati v. U.S. Bureau of Citizenship & Immigration Servs., 775 F.3d 1255 (11th Cir. 2014) (beneficiary who attempted to port may challenge denial of I-140 based on procedural rights)
- Patel v. U.S. Citizenship & Immigration Servs., 732 F.3d 633 (6th Cir. 2013) (loss of priority date is a concrete injury supporting standing)
- U.S. v. P.H. Glatfelter Co., 768 F.3d 662 (7th Cir. 2014) (agency’s interpretation of its own regulation is controlling absent plain error)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to an agency’s interpretation of its own regulation)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (framework for evaluating procedural due process claims)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires concrete, particularized, actual or imminent injury)