123 F.4th 68
1st Cir.2024Background
- Janine Viana Guedes and her family entered the U.S. on B-2 visas, later changing her status to F-1 student, though she did not attend classes or acquire English proficiency.
- She filed an I-140 petition for EB-2 status, seeking a National Interest Waiver (NIW) without a job offer, claiming exceptional ability as a physical therapist.
- USCIS initially approved her I-140 and NIW, but later denied her I-485 adjustment of status after determining she misrepresented information and did not qualify for the benefits sought.
- The denial cited failures to lawfully maintain nonimmigrant status, noncompliance with her F-1 visa, and lack of intent to work as a physical therapist in the U.S.
- Viana Guedes and her husband challenged the denial and alleged revocation of the I-140/NIW in federal district court.
- The district court dismissed the case for lack of subject-matter jurisdiction under 8 U.S.C. § 1252(a)(2)(B), holding there was no judicial review over these discretionary immigration decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial review of adjustment of status denial | District court has jurisdiction to review denial | Adjustments are discretionary and barred from review | No jurisdiction; barred under § 1252(a)(2)(B)(i) |
| Judicial review of I-140 and NIW revocations | Revocations reviewable by the district court | Revocations are discretionary, unreviewable | No jurisdiction; barred under § 1252(a)(2)(B)(ii) |
| Effect of § 1252 title on jurisdictional bar | Title only covers removal proceedings | Bar applies regardless of removal proceedings | Title does not limit bar; text controls |
| Proper procedure in agency's revocation/denial decision | USCIS did not follow proper process | USCIS followed notice and response procedure | Proper procedures followed; claim fails |
Key Cases Cited
- Patel v. Garland, 596 U.S. 328 (2022) (section 1252 bars judicial review of discretionary adjustment of status decisions)
- Bernardo ex rel. M & K Eng'g, Inc. v. Johnson, 814 F.3d 481 (1st Cir. 2016) (revocation of I-140 petition is discretionary and unreviewable)
- Zhu v. Gonzales, 411 F.3d 292 (D.C. Cir. 2005) (national interest waiver decisions are discretionary and unreviewable)
- Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (NIW revocations unreviewable)
- Brasil v. Sec'y, Dep't of Homeland Sec., 28 F.4th 1189 (11th Cir. 2022) (discretionary immigration actions unreviewable)
- Flores v. Garland, 72 F.4th 85 (5th Cir. 2023) (same holding as above)
- Mousavi v. USCIS, 828 Fed. Appx. 130 (3d Cir. 2020) (discretion precludes review)