Nouritajer v. Jaddou
18f4th85
| 2d Cir. | 2021Background
- Simin Nouritajer, an Iranian national, was sponsored by the Razi School; DOL labor certification was filed in 2004 (approved 2007) and an I-140 was filed in 2007 and approved in 2013.
- USCIS issued a Notice of Intent to Revoke on July 11, 2017 and revoked the I-140 on August 18, 2017, finding the school had not shown ability to pay the proffered wage and Nouritajer lacked required teaching qualifications.
- The Razi School appealed to the USCIS AAO; the AAO affirmed the revocation on August 1, 2018 and denied a motion to reopen on May 29, 2019.
- Plaintiffs alleged the revocation was pretextual, tied to FBI interactions with Nouritajer’s family, and brought five APA claims in district court seeking review of the revocation, AAO decision, and denial to reopen.
- The district court dismissed the Second Amended Complaint for lack of subject-matter jurisdiction under 8 U.S.C. § 1155 and § 1252(a)(2)(B); the Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review USCIS revocation of I-140 | Nouritajer: revocation raised legal/procedural errors subject to judicial review | Government: §1155 and §1252(a)(2)(B) strip courts of review over substantive discretionary revocations | Held: No jurisdiction — revocation is a discretionary substantive decision barred from district-court review |
| Pretext (FBI influence) allegation | Revocation was arbitrary/capricious and pretextual due to FBI coercion, so reviewable under APA | Pretext challenges attack the substantive reasons for revocation and are therefore unreviewable | Held: Pretext claim is substantively focused and barred |
| Reviewability of AAO decision and denial to reopen | AAO’s merits determination and denial of reopening are reviewable | AAO affirmed a discretionary revocation; related AAO and reopening decisions are tied to the unreviewable discretionary action | Held: AAO decision and denial to reopen are not reviewable in district court |
| Challenges to regulatory interpretation and ability-to-pay finding | Plaintiffs: regulation conflicts with INA or, alternatively, factual compliance shown | Government: these are merits challenges to the revocation rationale, not procedural defects | Held: Claims amount to merits challenges to the revocation and are barred |
| Constitutional or pure legal questions exception under §1252(a)(2)(D) | Plaintiffs contend legal errors/constitutional issues are preserved for review | Government: statutory exception requires a petition for review in an appropriate court of appeals, not a district-court action | Held: Exception not available in district court absent petition for review in court of appeals |
Key Cases Cited
- Mastafa v. Chevron Corp., 770 F.3d 170 (2d Cir. 2014) (standard of review for jurisdictional rulings: legal de novo, factual for clear error)
- Makarova v. United States, 201 F.3d 110 (2d Cir. 2000) (plaintiff bears preponderance burden to establish jurisdiction)
- Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015) (§1252 strips jurisdiction over substantive discretionary decisions)
- Firstland Int'l, Inc. v. U.S. I.N.S., 377 F.3d 127 (2d Cir. 2004) (§1155 allows revocation but requires certain procedural notice; courts may review procedural compliance)
- Ottey v. Barr, 965 F.3d 84 (2d Cir. 2020) (labels of "procedural" do not control when claims effectively challenge discretionary merits)
- Proyecto San Pablo v. I.N.S., 189 F.3d 1130 (9th Cir. 1999) (pretext challenges to discretionary denials are unreviewable)
- Durant v. U.S. I.N.S., 393 F.3d 113 (2d Cir. 2004) (jurisdictional bar can apply to denials of motions to reopen sufficiently connected to unreviewable orders)
- Shabaj v. Holder, 718 F.3d 48 (2d Cir. 2013) (§1252(a)(2)(D) preserves review of constitutional/questions of law only via petition for review in court of appeals)