Abdelhamid v. IlchertAbdelhamid v. Ilchert
I. Background.
Abdelhamid, a citizen of Egypt, a medical doctor employed by the Egyptian Ministry of Health, entered the United States as a nonimmigrant exchange visitor on a J-1 visa under
Section 1182(e) of Title 8 U.S.C. provides that a person admitted under
While in the United States, Abdelhamid married a United States citizen and applied for a waiver of the
Immigration and Naturalization Service District Director Ilchert, to whom the Attorney General‘s authority to grant waivers had been delegated, determined that “exceptional hardship would be encountered by subject‘s wife if he were forced to return to Egypt.” Ilchert submitted this finding of hardship to USIA Director Wick for his recommendation. See
Abdelhamid sued Ilchert and Wick in the district court, alleging jurisdiction under
II. Discussion.
As we have seen,
This case does not involve a challenge to an INS determination that there would be no hardship. Director Ilchert found hardship. Abdelhamid‘s complaint against Wick and Ilchert refers only to the second and third requirements of Section 1182(e) noted above.
A. Wick‘s Failure to Make a Favorable Recommendation.
Abdelhamid alleged before the district court that Wick‘s failure to make a favorable waiver recommendation under Section 1182(e), based upon the preliminary INS hardship determination, was arbitrary and capricious and an abuse of discretion. We hold that the district court lacked subject matter jurisdiction to review these portions of Abdelhamid‘s complaint.
Section 701 of the Administrative Procedure Act provides for judicial review of agency action, but there is an exception where “agency action is committed to agency discretion by law,”
In deciding whether agency action is required by law, we review the statute granting agency discretion in the context of a particular complaint.
Every statute ... has limits which are capable of being exceeded. Thus, even under statutes granting an official the broadest discretion, there will be some (albeit fewer), cases capable of arising under the statute which will present issues to which the court will, in the terms of the Overton Park test, “have law to apply.” However, the test in Overton Park of when a reviewing court lacks jurisdiction due to the provisions of Sec. 701(a)(2), is not whether a statute viewed in the abstract lacks law to be applied, but rather, whether “in a given case ” there is no law to be applied. When a court is asked to review agency action in instances where considerable discretion is committed by statute to an official, the court lacks jurisdiction due to the provisions of Sec. 701(a)(2) only when the agency action of which plaintiff complains fails to raise a legal issue which can be reviewed by the court by reference to statutory standards and legislative intent. (emphasis in original)
Strickland v. Morton, 9 Cir., 1975, 519 F.2d 467, 470 (footnotes omitted). See also Rank v. Nimmo, 9 Cir., 1982, 677 F.2d 692, 699-701; City of Santa Clara v. Andrus, 9 Cir., 1978, 572 F.2d 660, 666-68; Arizona Power Authority v. Morton, 9 Cir., 1977, 549 F.2d 1231, 1239-41.
While this court will find jurisdiction to review allegations “that an agency has abused its discretion by exceeding its legal authority or by failing to comply with its own regulations, [it] has not been quick to approve review of allegations that an agency abused its discretion merely by deciding an issue, involving agency expertise, adversely to a complaining party.” Strickland, supra, 519 F.2d at 471, quoting Ness Investment Corp. v. United States Department of Agriculture, 9 Cir., 1975, 512 F.2d 706, 714. Where an agency action in a given case is found to have been committed to agency discretion, federal courts have jurisdiction to review that action “when the alleged abuse of discretion involves violation by the agency of constitutional, statutory, regulatory or other legal mandates or restrictions” but do not have jurisdiction to review such an action “when the alleged abuse of discretion consists only of the making of an informed judgment by the agency.” Strickland, supra, 519 F.2d at 471, quoting Ness, supra, at 715.
Once the USIA Director receives an INS waiver request based on a finding of hardship, Section 1182(e) does not expressly limit his discretion in deciding whether or not to make a favorable recommendation. In the present case, Abdelhamid does not challenge the Director‘s determination on constitutional grounds. He fails to raise a legal issue with respect to this determination which can be reviewed by this court by reference to statutory standards or legislative intent. We note that
B. INS Statement of Reasons.
Abdelhamid‘s complaint alleged that INS’ Ilchert abused his discretion by failing to state the reasons for the denial of his waiver application. The essence of this claim is that the INS failed to comply with its own regulations. The district court therefore properly ruled that it had subject matter jurisdiction with respect to this issue.
Its brevity notwithstanding, Ilchert‘s statement clearly explained that Abdelhamid‘s waiver application was denied because the USIA did not provide the requisite favorable recommendation under Section 1182(e). We hold that Ilchert sufficiently “notified [Abdelhamid] of the decision and the reasons therefor ...,”
III. Conclusion.
The district court did not have jurisdiction to review Abdelhamid‘s claim that USIA Director Wick abused his discretion in failing to make a favorable waiver recommendation under
Vacated in Part and Affirmed in Part.