Susan Mousavi v. USCIS, 19-1476

Susan Mousavi, an Iranian national with a Ph.D. in mechanical engineering, had pending USCIS petitions in 2016: an I-140 seeking a national-interest waiver (NIW), an I-485, and advance parole (I-131); she traveled to Iran and USCIS denied her petitions while she was abroad.
USCIS found she had not shown the NIW would be in the national interest; she was repeatedly denied reentry.
Mousavi sued USCIS in the District Court seeking review of the NIW denial and asserted due-process and national-origin discrimination claims; the District Court dismissed for lack of subject-matter jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(ii) and denied leave to amend.
The Third Circuit heard the appeal and reviewed the jurisdictional dismissal de novo and the denial of leave to amend for abuse of discretion.
The central legal question: whether denial of an NIW under 8 U.S.C. § 1153(b)(2)(B)(i) is committed to agency discretion (and thus unreviewable under § 1252(a)(2)(B)(ii)), and whether Mousavi’s constitutional claims or amendment could overcome that bar.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1252(a)(2)(B)(ii) bars judicial review of USCIS denial of a national-interest waiver under § 1153(b)(2)(B)(i)	Mousavi argued the denial is reviewable by courts	Government argued the statute vests discretion in the Attorney General/Secretary, making denials unreviewable	Held: § 1153(b)(2)(B)(i) gives discretionary authority (uses “may” and “deems”) and lacks statutory guideposts; § 1252(a)(2)(B)(ii) bars review of NIW denials
Whether Mousavi’s constitutional claims or § 1252(a)(2)(D) carve-out permit review	Mousavi claimed due-process and national-origin discrimination claims are reviewable as constitutional	Government argued the § 1252(a)(2)(D) exception applies only to petitions for review of removal in courts of appeals and that her constitutional claims would require reviewing the Agency’s discretionary decision	Held: Exception inapplicable (this is a district-court civil suit, not a petition for review of removal); constitutional claims cannot be separated from the discretionary NIW decision and are therefore barred
Whether denial of leave to amend to add discrimination claim was an abuse of discretion	Mousavi sought to amend to add national-origin discrimination	Government argued amendment would be futile because court lacks jurisdiction to hear that claim	Held: District Court did not abuse its discretion; amendment would be futile given jurisdictional bar

Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (NIW denial is committed to agency discretion)
Zhu v. Gonzales, 411 F.3d 292 (D.C. Cir. 2005) (same)
Soltane v. U.S. Dep’t of Justice, 381 F.3d 143 (3d Cir. 2004) (statute must supply discretionary authority in text to bar review)
Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir. 2006) (interpretation of statutory language like “may” and “deem” and limits to review)
Urena-Tavarez v. Ashcroft, 367 F.3d 154 (3d Cir. 2004) (standard for de novo review of jurisdictional dismissal)
Webster v. Doe, 486 U.S. 592 (U.S. 1988) (similar “deem” language supports deference to executive discretion)
Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289 (2d Cir. 1988) (standard for denying leave to amend as futile)