Srinivasa Musunuru v. Loretta E. Lynch
2016 U.S. App. LEXIS 14188
| 7th Cir. | 2016Background
- Srinivasa Musunuru, an Indian national, had an approved I-140 filed by his original employer VSG (priority date Feb 17, 2004) and later ported under AC21 to Crescent Solutions after his I-485 was pending >180 days.
- Crescent relied on VSG’s I-140 (and its priority date) while later filing its own I-140 (EB-2) that USCIS initially approved but then amended to a later priority date (Jan 28, 2011).
- USCIS revoked VSG’s I-140 after VSG owners pled guilty to unrelated immigration fraud; notice of intent to revoke was sent only to VSG (which had dissolved), not to Musunuru or Crescent.
- Musunuru and Crescent later rebutted USCIS’s assertions as to his qualifications, but USCIS maintained the amended (later) priority date and denied adjudication of his I-485 for lack of available visas.
- USCIS refused to permit Musunuru (the beneficiary) to administratively challenge the revocation, relying on regulations that afford notice and reconsideration rights to the petitioner/affected party, not the beneficiary.
- The district court dismissed Musunuru’s claims; the Seventh Circuit reversed and remanded, holding that USCIS’s application of its notice/challenge regulations was inconsistent with AC21 and that the successor employer (Crescent) should have been treated as de facto petitioner entitled to notice and an opportunity to respond.
Issues
| Issue | Musunuru's Argument | USCIS's Argument | Held |
|---|---|---|---|
| Whether court has jurisdiction to review denial of procedural protections | Agency denial of procedural rights is reviewable because it concerns procedures, not the discretionary revocation itself | Revocation is discretionary under 8 U.S.C. §1155 and §1252 bars review | Jurisdiction exists to review whether USCIS followed nondiscretionary procedural rules because the regulatory rationale does not foreclose the underlying merits |
| Whether beneficiary (or successor employer) must receive pre-revocation notice/opportunity to rebut after AC21 porting | AC21 made ported petitions protect beneficiaries; beneficiaries should be ‘affected parties’ entitled to notice/rebuttal | Regulations unambiguously give notice/rebuttal rights to the petitioner/self-petitioner and exclude beneficiaries; Auer deference applies | AC21 requires treating the successor employer as de facto petitioner; USCIS must give the successor employer (Crescent) notice and opportunity to respond; beneficiary himself was not held to be entitled to those rights |
| Whether beneficiary may administratively appeal or move to reconsider revocation | Beneficiary argued he should have standing to administratively challenge revocation because AC21 vested him in the petition’s continued validity | Regulations define "affected party" excluding beneficiaries; thus beneficiary lacks standing for motions/appeals | Beneficiary lacked regulatory standing, but successor employer qualifies as affected party and may move to reconsider; USCIS misapplied regulations by not treating successor employer as petitioner |
| Whether Fifth Amendment due process protects beneficiary from revocation without notice | Beneficiary contended AC21 created a property interest (non-discretionary right) in ported petition such that due process applies | Revocation of I-140 is discretionary under §1155; no protected property or liberty interest arises from discretionary approval | No due process violation: AC21 does not eliminate USCIS’s discretionary revocation power and does not create a protected property interest in a ported petition |
Key Cases Cited
- El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004) (revocation of I-140 is within agency discretion)
- Calma v. Holder, 663 F.3d 868 (7th Cir. 2011) (procedural challenges separable from merits; review may be available)
- Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015) (USCIS inconsistent with AC21 by providing no notice to successor employer or beneficiary)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (agency must follow unambiguous congressional intent; Chevron framework)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of its own regulations)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (respect accorded agency interpretations depends on persuasiveness)
- Dave v. Ashcroft, 363 F.3d 649 (7th Cir. 2004) (no property or liberty interest in discretionary immigration relief)
- Joseph v. Landon, 679 F.2d 111 (7th Cir. 1982) (no vested right upon approval of visa petition)