Syed Khalil v. Mark Hazuda, 833 F.3d 463

Background

Khalil, an Indian national in the U.S. on H-1B status, had an employer-filed I-140 approved in 2006 and later filed an adjustment-of-status application in 2007.
Khalil worked without authorization past his work authorization expiry, and USCIS denied his adjustment application in October 2011 for unauthorized employment.
Khalil pursued consular processing; consular officers provisionally declined a visa after interviews in 2012 and 2013, and returned the I-140 to USCIS when Khalil acknowledged he no longer had a job with the petitioning employer.
USCIS issued notice of intent to revoke the I-140 in Feb 2014 and revoked it in March 2014, stating the petitioned position was no longer offered; Khalil did not administratively appeal to the AAO.
Khalil sued in district court claiming violations of the INA, APA, and Due Process; the government moved to dismiss for lack of subject-matter jurisdiction under the INA’s jurisdiction-stripping provision for discretionary DHS decisions.
The district court dismissed for lack of jurisdiction; the Fifth Circuit affirmed, holding the revocation was not protected by the §1154(j) portability rule and revocation decisions remained nonreviewable discretionary actions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §1154(j) (portability) barred USCIS from revoking Khalil’s I-140 after he changed employers	Khalil: §1154(j) mandates that an I-140 remain valid for a new, substantially similar job if the adjustment application had been filed and remained unadjudicated for 180+ days, so USCIS lacked authority to revoke for employer change	Government: §1154(j) does not apply because Khalil’s adjustment application was denied before revocation; revocation authority remains with DHS	Held: §1154(j) did not apply because the adjustment application was no longer pending when USCIS revoked the petition; revocation did not violate §1154(j)
Whether USCIS’s revocation decision is subject to judicial review despite §1252(a)(2)(B)(ii)	Khalil: If §1154(j) removes DHS discretion in these circumstances, the jurisdiction-stripping provision does not bar review	Government: Revocation authority under §1155 is discretionary and thus unreviewable under §1252(a)(2)(B)(ii)	Held: Because §1154(j) did not apply, revocation remained discretionary and §1252(a)(2)(B)(ii) barred judicial review; district court dismissal affirmed
Whether the court should defer to USCIS’s interpretation of §1154(j)	Khalil: (implicitly) agency interpretation supports portability application to his situation	Government: agency view supports non-applicability	Held: No Chevron deference owed; agency adjudicator’s unexplained stance gets no weight, but the statutory text independently forecloses Khalil’s claim
Whether procedural remedies (AAO) affect jurisdiction	Khalil: challenged revocation in district court after not administratively appealing	Government: lack of administrative appeal does not create jurisdiction	Held: Court did not reach merits and affirmed dismissal for lack of jurisdiction; Khalil did not exhaust/obtain relief administratively but jurisdictional bar was dispositive

Key Cases Cited

Ghanem v. Upchurch, 481 F.3d 222 (5th Cir.) (revocation of immigrant petition is discretionary and generally unreviewable)
Jilin Pharm. v. Chertoff, 447 F.3d 196 (3d Cir.) (statute vests complete discretion in Secretary to revoke petitions)
El-Khader v. Monica, 366 F.3d 562 (7th Cir.) (revocation of petition treated as discretionary agency action)
Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir.) (discussing §1154(j) as pertaining to pending adjustment applications)
Sung v. Keisler, 505 F.3d 372 (5th Cir.) (treating §1154(j) as applying to pending adjustment applications)
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (framework for judicial deference to reasonable agency statutory interpretations)
Skidmore v. Swift & Co., 323 U.S. 134 (1944) (agency interpretations merit respect to the extent they are persuasive)