DOUGLAS BOURDON, Plaintiff-Appellant, versus UNITED STATES DEPARTMENT OF HOMELAND SECURITY (DHS), JEH CHARLES JOHNSON, Secretary of DHS, LORETTA LYNCH, Attorney General of the United States, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (USCIS), LEON RODRIGUEZ, Director of the USCIS, TONY BRYSON, District Director, District 10, USCIS, LAURA CASTILLO, Acting Field Office Director, West Palm Beach Field Office, USCIS, Defendants-Appellees.
No. 17-15787
United States Court of Appeals, Eleventh Circuit
October 3, 2019
D.C. Docket No. 9:17-cv-80207-RLR; [PUBLISH]
Appeal from the United States District Court for the Southern District of Florida
Before JORDAN, GRANT, and BALDOCK,* Circuit Judges.
Douglas Bourdon, a United States citizen, sought to bring his wife, a Vietnamese citizen, here to the United States under a program that allows sponsorship of close relatives. But a problem presented itself: Bourdon had been convicted of possession of child pornography, which put him outside the bounds of the visa-sponsorship program unless he could show that he posed no risk to his wife. This he could not do—at least not according to United States Citizenship and Immigration Services, which under a statute known as the Adam Walsh Act has “sole and unreviewable discretion” to determine if citizens like Bourdon pose “no risk” to their foreign relatives. Bourdon sued, alleging that Immigration Services violated the Administrative Procedure Act in two ways: when it used a beyond-a-reasonable-doubt standard rather than a preponderance-of-the-evidence standard to evaluate his petition, and when it did not allow him to offer rebuttal evidence. The district court dismissed the suit, concluding that it had no jurisdiction to review Bourdon’s administrative objections to the process behind the no-risk decision. We affirm; courts lack jurisdiction to review either the process or the outcome of the no-risk decision.
I.
We begin by providing a brief background of the immigration procedures and rules at issue. Generally, by filing an I-130 petition, “any citizen of the United States” can request that the Attorney General recognize a foreign national family member,
But Congress created an exception to that allowance in 2006 when it passed the Adam Walsh Child Protection and Safety Act. According to that Act, the general rule permitting a U.S. citizen to petition for foreign family members to receive immediate-relative status does “not apply to a citizen of the United States who has been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the citizen poses no risk to the alien.”
Whether the Secretary—or the Secretary’s delegate, Immigration Services—will act in favor of the convicted citizens, in turn, is committed to the Secretary’s “sole and unreviewable discretion.”
Turning to the facts here, Bourdon was convicted of possession of child pornography in 2003. Five years later, he married Thi Thuan Tran, a Vietnamese citizen. Shortly after their marriage, Bourdon filed an I-130 petition to establish Tran as his immediate relative so that she could join him in the United States as a legal permanent resident. But Immigration Services told Bourdon that his child pornography conviction prevented him from filing an I-130 petition—unless he could prove that he posed no risk to his wife. Immigration Services also sent Bourdon a request for evidence regarding his offense and rehabilitation. Bourdon eventually submitted several documents in support of his petition, including an affidavit from his wife; reports from a psychologist and social worker/forensic examiner; and evidence of trips to Vietnam and Thailand to visit his wife.
Immigration Services ultimately denied Bourdon’s petition in a written opinion. That opinion—which Immigration Services had no duty to issue—explained that Bourdon had failed to prove “beyond any reasonable doubt” that he posed no risk to his wife. The opinion also stated that Immigration Services found the records that Bourdon submitted of trips to Vietnam and Thailand “disturbing.” According to Immigration Services, the records showed that Bourdon repeatedly visited “countries that have literally no child protection laws and where child pornography, child prostitution, and child sex tourism are sources of national income and are tolerated by their respective governments.” To support those assertions, the opinion cited to “[c]ountry reports by U.S. Department of State, UNHCR, World Relief, UNICEF, UN-ACT etc.”
After receiving the opinion denying his petition, Bourdon brought this action. Bourdon alleges that Immigration Services violated the APA in two distinct ways
First, Bourdon argues that Immigration Services violated the APA when it applied a beyond-a-reasonable-doubt standard to weigh the evidence that he submitted in support of his petition, rather than the preponderance-of-the-evidence standard that he contends is required under In re Chawathe, 25 I. & N. Dec. 369, 375 (USCIS Admin. Appeals Office 2010). According to Chawathe, “[e]xcept where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit sought.” Id. Because the Secretary of Homeland Security designated that decision as precedent, Bourdon argues, Immigration Services is required to abide by it. See
Second, Bourdon alleges that the agency violated the APA because it did not give him the opportunity to inspect and rebut the country reports that the agency cited when it found his travels to Vietnam and Thailand “disturbing.” According to Bourdon,
These two alleged APA violations, Bourdon argues, survive the Adam Walsh Act’s apparent bar on court review because they challenge Immigration Services’ compliance with mandatory administrative procedures rather than the agency’s ultimate conclusion, which even Bourdon concedes cannot be reviewed. The district court disagreed, and thus dismissed Bourdon’s APA claim for lack of subject-matter jurisdiction. Bourdon v. Sessions, No. 9:17-CV-80207, 2017 WL 5187833, at *4–5 (S.D. Fla. Nov. 9, 2017). In explaining its decision, the court stated that the statutory scheme shields from judicial review “not only the ultimate determination of whether a petitioner has met his burden of proving ‘no risk’ to the petition’s beneficiary, but also the agency’s decision-making process, including what evidence to consider and how to weigh such evidence.” Id. at *4. The court decided that it was therefore powerless to review the burden of proof that the agency used to weigh the evidence when determining if Bourdon posed no risk to his wife. Id. at *4–5. Likewise, the court concluded that the agency’s “unreviewable discretion” over the decision-making process included the agency’s failure to allow Bourdon to rebut the country reports that it relied on in denying his petition. Id. at *4. In sum, the court reasoned that Bourdon’s attack on the agency’s “assessment of the evidence is no less a challenge to”
II.
We repeat: the Adam Walsh Act gives the Secretary of Homeland Security “sole and unreviewable discretion” to determine whether a citizen like Bourdon poses no risk to his foreign relative.
A.
The Adam Walsh Act provides, full stop, that a citizen like Bourdon cannot petition for immediate-relative status “unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the citizen poses no risk to the alien.”
To identify the boundaries of the Secretary’s discretion, we begin with the words Congress chose to describe it. The Act gives the Secretary sole and unreviewable discretion to determine if a citizen poses a risk, and determine means “establish or ascertain definitely, as after consideration, investigation, or calculation.” The American Heritage Dictionary of the English Language 494 (5th ed. 2011); see also Webster’s New World College Dictionary 402 (5th ed. 2014) (“to reach a decision about after thought and investigation; decide upon”); New Oxford American Dictionary 474 (3d ed. 2010) (“ascertain or establish exactly, typically as a result of research or calculation”). These definitions show that “determine” encompasses making a final decision—and the method for reaching that final decision (or, as the dictionaries put it, the thought, consideration, research, investigation, or calculation). So Congress, by choosing the verb “determine”—rather than a noun like “decision” that refers only to the final conclusion—extended the Secretary’s discretion to the action of determining rather than only to the final determination.2 Moreover, there “is no stark use
Even allowing for any definitional ambiguity, both the grammar and the structure of the statute also indicate that the Act prevents courts from reviewing not only the Secretary’s final decision but also his decision-making process. We start with grammar. Congress chose a grammatical order that makes the Secretary’s exercise of his discretion over the decision-making process unreviewable. “Sole and unreviewable” modifies the word “discretion”—as opposed to “decision” or any other word that would mark the conclusion of the process rather than the process itself. Using common principles of grammar—which we look to because we presume that Congress, in drafting the statute, applied ordinary grammar rules—we can see that the Act is written in a way that makes the Secretary’s exercise of his discretion over the decision-making process itself unreviewable. See Antonin Scalia & Bryan A. Garner, Reading Law 140 (2012) (“Words are to be given the meaning that proper grammar and usage would assign them.”); BellSouth Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169, 1187–88 (11th Cir. 2001).
The statute’s structure reinforces this conclusion. Cf. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1333–34 (11th Cir. 2003) (looking to a statute’s structure to ascertain its meaning). The Act’s very starting point demonstrates that the status quo forecloses relief: It entirely bars citizens convicted of specified offenses against a minor from petitioning for immediate-relative recognition. See
One other factor informs our view of the statute’s meaning: the Adam Walsh Act’s history, which confirms that the Act bars judicial review of the Secretary’s decision-making process. Statutory history sheds light on “the context of the statute.” Scalia & Garner, supra, at 256.
Here, the relevant statutory history shows that all U.S. citizens could petition the government to recognize certain family members as immediate relatives until 2006, when Congress passed the Adam Walsh Act. See
But that is not what Congress did. Instead of making the no-risk decision unreviewable, Congress made the exercise of discretion itself unreviewable by reserving to the Secretary “sole and unreviewable discretion” to determine whether a citizen posed any risk. The Adam Walsh Act’s language establishes a different meaning than § 1252: Congress went beyond the existing provision that bars review of all discretionary decisions and instead shielded the Secretary’s decision-making process from judicial review. A more limited interpretation would render the “sole and unreviewable discretion” language entirely duplicative of § 1252(a)(2)(B)(ii).3
We note, finally, that our interpretation of the Act aligns with that of every circuit court to have considered the same question—five of our sister circuits have also concluded that courts lack authority to review challenges to the processes that the Secretary uses to determine if a citizen poses no risk. See Bakran v. Sec’y, U.S. Dep’t of Homeland Sec., 894 F.3d 557, 563 (3d Cir. 2018); Gebhardt v. Nielsen, 879 F.3d 980, 987 (9th Cir. 2018); Privett v. Sec’y, Dep’t of Homeland Sec., 865 F.3d 375, 380–82 (6th Cir. 2017); Roland v. U.S. Citizenship & Immigration Servs., 850 F.3d 625, 628–30 (4th Cir. 2017); Bremer v. Johnson, 834 F.3d 925, 930–31 (8th Cir. 2016). Some of these courts reach this conclusion on the basis of the Adam Walsh Act alone, while others consider that Act in combination with § 1252(a)(2)(B)(ii). But none concludes that the Secretary’s decisional process is anything but unreviewable—the same conclusion we adopt here.
B.
Applying this understanding of the Act to the facts here, we consider Bourdon’s arguments. Bourdon asked the district court to review (1) the Secretary’s use of the beyond-a-reasonable-doubt standard to weigh the evidence and (2) the Secretary’s refusal to provide Bourdon with an opportunity to respond to the country reports referenced in the opinion rejecting his petition. He argues that both of those challenges
As the Board of Immigration Appeals has explained, the “application of the appropriate standard of proof is part and parcel of the ultimate exercise of discretion delegated” to the Secretary. In re Aceijas-Quiroz, 26 I. & N. Dec. 294, 299 (B.I.A. 2014). And the Secretary’s decision not to provide Bourdon with the opportunity to respond to the country reports also falls directly within the Secretary’s discretion. If a court can dictate which arguments the Secretary must entertain or how the Secretary weighs the evidence, then the Secretary can hardly be said to have “sole and unreviewable discretion” to determine if a citizen poses no risk. That reasoning, plain as it is, shows why both of the challenged processes—the Secretary’s preferred burden of proof and the Secretary’s refusal to offer an interactive decision-making process—are bound up in the Secretary’s “sole and unreviewable discretion.”
Just how inextricably Bourdon’s demands are intertwined with the Secretary’s discretion becomes more apparent when his claims are contrasted against Adam Walsh Act claims that other circuits have noted do not involve the Secretary’s discretion. One of the courts that refused to review the beyond-a-reasonable-doubt standard still reasoned that the Secretary’s discretion would not be implicated by deciding whether a petitioner’s offense actually constituted a “specified offense against a minor.” See Privett, 865 F.3d at 379. And others have likewise stated that a citizen does not challenge the Secretary’s discretion when he contends that the Adam Walsh Act does not apply to petitions filed before the Act took effect, or to claims that the Act is impermissibly retroactive. See Gebhardt, 879 F.3d at 985–86 (concluding that courts may decide whether the Act applies to already-filed petitions); Bremer, 834 F.3d at 929 (whether the Act “is inapplicable” is a legal question “over which the district court has jurisdiction”); see also Bakran, 894 F.3d at 564 n.5 (“[W]e are not holding that a court lacks jurisdiction to review an action beyond the authority Congress granted to the agency . . . .”). These are all conditions precedent to the Secretary’s discretionary process. We too could conjure up legal claims relating to the Adam Walsh Act that would not imperil its grant of discretion. But Bourdon’s challenges go to the heart of the Secretary’s decisional process. The district court was therefore correct when it held that the Adam Walsh Act prevented it from reviewing those challenges. So too for this Court.
In reaching this conclusion, we do “not lightly interpret a statute to confer unreviewable power on an administrative agency,” Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 454 (1979), and indeed we “recognize the ‘strong presumption’ in favor of judicial review that we apply when we interpret statutes.” Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2140 (2016). At the same time, this presumption “is just that—a presumption.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984). And, like all other presumptions used in interpreting statutes, it “may be overcome by ‘clear and convincing’ indications, drawn from ‘specific language’” in the statute showing “that Congress intended to bar review.” Cuozzo Speed Techs., 136 S. Ct. at 2140 (quoting Block, 467 U.S. at 349–50). When Congress commands that we refrain from reviewing a particular administrative decision, we are obligated to follow that statutory limitation
We are, after all, a court of limited jurisdiction whose power to hear cases is defined by Congress: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
It is thus no surprise that the Supreme Court has regularly construed statutes to prohibit judicial review of administrative actions—even when the statute lacks any explicit jurisdiction-stripping language and context is the primary indicator of congressional intent to bar judicial review. See, e.g., Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994) (Federal Mine Safety and Health Amendments Act of 1977 bars judicial review of preenforcement challenges to the Act); Block, 467 U.S. at 352 (“structure” of the Agricultural Marketing Agreement Act of 1937 “implies that Congress intended to preclude” judicial review of challenges to the Secretary of Agriculture’s milk-market orders brought by dairy-product consumers); S. Ry. Co., 442 U.S. at 454–55 (statute barred judicial review of the Interstate Commerce Commission’s decision not to investigate a proposed rate increase); Morris v. Gressette, 432 U.S. 491, 501 (1977) (under the Voting Rights Act of 1965, courts lack jurisdiction to review Attorney General’s failure to object to a change in voting procedures). In passing the Adam Walsh Act, Congress explicitly rendered unreviewable the kind of administrative processes that Bourdon challenges here when it gave the Secretary “sole and unreviewable discretion” to determine if a citizen poses “no risk.” Moreover, that express congressional judgment overcomes the “presumption of judicial review” emphasized by the dissent; the command of Congress outweighs a background principle developed by courts to aid in our decisionmaking.4 As a court of limited jurisdiction, we have no ability to second-guess that judgment.5
Bourdon’s arguments against this conclusion do not persuade us. The first is that he challenges only the agency’s deviation from its own regulations governing the process for adjudicating immigration petitions—not the agency’s ultimate conclusion that he failed to prove that he posed no risk to his wife. He insists that the district court had jurisdiction to review his process-based claim because he does not directly challenge Immigration Services’ denial of his petition. But as we have said, that argument conflicts with the plain text of the Adam Walsh Act: The Act’s jurisdiction-stripping language embraces both the process and the ultimate no-risk conclusion. Bourdon cannot overcome the straightforward reading of the Act that its text, grammar, structure, and history demand.
What Bourdon really argues for is an exception to the Secretary’s “sole and unreviewable discretion” where a claim alleges that the Secretary violated an administrative regulation. But the Act does not contain any such exception. Nor does the statute carve out any limits to the Secretary’s absolute discretion (at least as to non-constitutional issues) over how he determines whether a citizen poses “no risk.”6 No matter how much he urges us to, “we may not engraft our own exceptions onto the statutory text.” Henry Schein, Inc. v. Archer & White Sales, Inc., No. 17-1272, slip op. at 7 (U.S. Jan. 8, 2019).
Bourdon counters that Congress’s use of the expansive language in the Adam Walsh Act was merely an attempt to bar the Board of Immigration Appeals, in addition to Article III courts, from reviewing the Secretary’s no-risk decision. We agree that the Act bars both administrative and court review: “Unreviewable” means that the issue is “[n]ot subject to legal or judicial review.” Black’s Law Dictionary 1772 (10th ed. 2009); see also Aceijas-Quiroz, 26 I. & N. Dec. at 300 (explaining that the Adam Walsh Act “precludes” the Board of Immigration Appeals from reviewing “both the legal and discretionary aspects of the ‘no
Finally, Bourdon appeals to precedent. He argues that a different outcome is mandated by our previous decision in Kurapati v. U.S. Bureau of Citizenship & Immigration Services, where we stated: “Even when a decision is committed to agency discretion, a court may consider allegations that an agency failed to follow its own binding regulations.” 775 F.3d 1255, 1262 (11th Cir. 2014) (per curiam) (emphasis added) (citation omitted). Bourdon argues that under Kurapati, we should review his allegations that the Secretary failed to comply with administrative regulations when it denied his I-130 petition. But that would require us to extend Kurapati’s holding to a different statutory provision with different jurisdiction-stripping language. Given what we understand about the meaning of the Adam Walsh Act after our extensive consideration of its text, we cannot supplant our conclusions with an earlier interpretation of a different statute as applied to yet another statute.
And that is, after all, what Kurapati interpreted. As the Second Circuit correctly pointed out, Kurapati concerned whether courts may review the Secretary’s compliance with various administrative regulations when the Secretary revokes an I-140 petition for a work visa under the authority of
As we have already described, the general jurisdiction-stripping provision of the INA, § 1252, provides that “no court shall have jurisdiction to review” any “decision or action” of the Secretary “the authority for which is specified under this subchapter to be in the discretion” of the Secretary.
Kurapati did not make any mention of the provision of the Adam Walsh Act at issue here (which, as we have seen, contains its own jurisdiction-stripping provision separate from § 1252), and for good reason—the Adam Walsh Act was not at issue. Because Kurapati concerned the application of § 1252—and only § 1252—to a different statute, our holding there does not control the outcome here. See Bryan A. Garner et al., The Law of Judicial Precedent 343 (2016).
If Kurapati did apply, we would of course be bound by its outcome. But “[o]ne important thing to remember is that stare decisis doesn’t apply to statutory interpretation unless the statute being interpreted is the same one that was being interpreted in the earlier case.” Id. Nor is a case “binding precedent” on points that were “not there raised in briefs or argument nor discussed in the opinion.” United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952); cf. In re Bradford, 830 F.3d 1273, 1278 (11th Cir. 2016) (per curiam) (“[W]hen it comes to questions of jurisdiction, we are bound only by explicit holdings.”); Rosenberg v. DVI Receivables XIV, LLC, 818 F.3d 1283, 1289 (11th Cir. 2016) (rejecting an out-of-circuit opinion because “there is no indication that the parties urged or that
the court even considered” the question presented). Because Kurapati did not interpret the statute at issue here, it comes as no surprise that it is not binding here. So while
So too for the cases cited by the dissent. See Service v. Dulles, 354 U.S. 363 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 262–63 (1954). Neither of the Supreme Court cases relied on by the dissent involve a statute containing any jurisdiction-stripping language—much less the strong language in the Adam Walsh Act—but instead simply involved review of statutes that provide discretion. See Service, 354 U.S. at 373 (reviewing action taken, in part, under a statutory grant of “absolute discretion” to terminate employment); Accardi, 347 U.S. at 262–63 (reviewing action taken under a statute providing, in relevant part, that the “the Attorney General may suspend deportation of such alien”). The key word missing from these statutes is “unreviewable.” Supreme Court cases reviewing the discretion of Executive Branch officials cannot guide us in cases, like this one, where we are told by Congress not to review that discretion in the first place.
* * *
In sum, the Secretary enjoys “sole and unreviewable discretion” to set the burden of proof and to give—or not give—citizens the opportunity to rebut derogatory information. The Adam Walsh Act prevents us from reviewing how the Secretary chooses to exercise his discretion, and nothing in Kurapati mandates a different result.
The district court correctly held that the Adam Walsh Act prevented it from exercising jurisdiction over Bourdon’s APA claim. We therefore AFFIRM its judgment.
JORDAN, Circuit Judge, dissenting:
In Kurapati v. U.S. Bureau of Citizenship & Immigration Servs., 775 F.3d 1255, 1262 (11th Cir. 2014) (on rehearing), the plaintiff filed a complaint challenging USCIS’ revocation of an I-140 immigrant work visa petition that had been filed on his behalf. The government argued that subject-matter jurisdiction did not exist because the revocation decision was committed to the discretion of the Secretary of Homeland Security, see
We rejected the government’s jurisdictional argument because the plaintiff’s challenge was not to the revocation itself, but rather to USCIS’ failure to comply with the applicable administrative procedures in revoking the petition. Adopting the reasoning of Bonillo v. Secretary, U.S. Dep’t of Homeland Security, 497 F. App’x 913, 915–16 (11th Cir. 2012), we explained that there is a difference between “judicial review of the I-140 revocation and judicial review of whether the agency complied with the applicable administrative procedure in revoking the I-140,” and held that
In this case, USCIS determined that Mr. Bourdon had not shown beyond a reasonable doubt that he posed “no risk” to his Vietnamese wife, whom he sought to sponsor and bring to the United States. Based upon that determination, it denied his I-130 petition. Mr. Bourdon alleges in his complaint that USCIS improperly applied a beyond-a-reasonable-doubt standard when its own rules and precedent mandate a preponderance-of-the-evidence standard. In other words, like the plaintiff in Kurapati, Mr. Bourdon is challenging USCIS’ failure to comply with the applicable administrative procedures, and not its ultimate factual determination. The government, as it did in Kurapati, argues that there is no subject-matter jurisdiction because the “no risk” determination is committed to the “sole and unreviewable discretion” of the Secretary of Homeland Security under
The result here, as in Kurapati, should be that jurisdiction exists notwithstanding
Our analysis about subject-matter jurisdiction should begin and end with Kurapati. Because “the law of precedent teaches that like cases should generally be treated alike,” Epic Systems Corp. v. Lewis, 138 S. Ct. 1612, 1623 (2018), I respectfully dissent from the majority’s effort to avoid the reach of Kurapati (and, as I explain, Supreme Court cases like it).
I
To succeed on his I-130 petition, Mr. Bourdon—who was convicted of possessing child pornography in 2003—had to show that he posed “no risk” to his wife. But
Here, as noted,
II
In Kurapati, 775 F.3d at 1262, we rejected the government’s argument that
A
Fla. Dep’t of Bus. Regulation, 768 F.2d at 1256–57, involved a challenge to a decision by the Secretary of the Interior to acquire land in trust for the Seminole Indian Tribe, and his alleged failure to follow certain regulations establishing several factors that normally would guide his decision. The statute at issue, the former
Even if we focus on immigration, this principle of judicial review applies in that sphere as well. Here is what we said as an en banc court more than three decades ago: “That the authority of the political branches in this area [of immigration] is plenary does not mean that it is wholly immune from judicial review. . . . [T]he Executive’s discretionary authority concerning parole decisions [for aliens] is ‘broad but not unlimited. It may be subjected to judicial scrutiny on a charge that discretion was arbitrarily exercised or withheld.’” Jean v. Nelson, 727 F.2d 957, 975 (11th Cir. 1984) (en banc) (internal quotations marks and citation omitted), aff’d, 472 U.S. 846 (1985).
B
The majority concludes that
In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 261 (1954), the Supreme Court addressed the Attorney General’s discretion to suspend the deportation of certain immigrants who had “proved good moral character.” The Court acknowledged that the relevant statute granted broad discretion to the Attorney General, which he had delegated to a board. Id. at 267. But the Attorney General had set forth certain procedures for the exercise of that discretion, and having done so, he could not claw back that discretion unilaterally in particular cases. Id. at 268. The Court emphasized (as we did in Fla. Dep’t of Bus. Regulation and Kurapati many decades later) the difference between judicial review to ensure that an agency has complied with its own rules (which is appropriate) and judicial review of the substance of a decision committed to agency discretion (which is generally not permitted): “It is important to emphasize that we are not here reviewing and reversing the manner in which discretion was exercised. . . . Rather, we object to the Board’s alleged failure to exercise its own discretion, contrary to existing valid regulations.” Id. at 268 (emphasis in original).
Three years after Accardi, the Supreme Court decided Service v. Dulles, 354 U.S. 363 (1957). That case involved the termination of a State Department employee by the Secretary of State under a statute (the so-called McCarran Rider) which stated that, “[n]otwithstanding the provisions of . . . any other law, the Secretary of State may, in his absolute discretion, . . . terminate the employment of any officer or employee of the Department of State or of the Foreign Service . . . whenever he shall deem such
The employee had received a favorable decision from a State Department administrative board, which found that (a) reasonable grounds did not exist to believe that he was disloyal to the United States, and (b) he did not constitute a security risk. See id. at 366. These finding were approved by the Deputy Under Secretary of State pursuant to the authority delegated to him by the Secretary. See id. On a “post-audit,” however, the Civil Service Commission Loyalty Review Board remanded the case to the State Department administrative board. But the result was the same: the administrative board again ruled in favor of the employee, and the Deputy Under Secretary of State again approved that determination. See id. On a further “post-audit,” the Loyalty Review Board decided to conduct a new hearing itself, after which it found that there was reasonable doubt about the employee’s loyalty. The Loyalty Review Board advised the Secretary that in its opinion the employee should be removed from the Department of State. Id. at 366–67.
The Secretary then discharged the employee. In his affidavit, the Secretary stated that, pursuant to the McCarran Rider and other regulations and executive orders, he had “made a determination to terminate the services” of the employee. He also explained that he had acted solely as the result of the finding of the Loyalty Review Board, which he considered to be “merely an advisory recommendation”; that he had not made any independent determination on his own as to whether the evidence demonstrated a reasonable doubt about the employee’s loyalty and had made no independent judgment on the record; and that he had been “legally free to exercise [his] own judgment as to whether [the employee] should be terminated and [he] did so exercise that judgment.” Id. at 369.1
Despite the “in his absolute discretion” language in the McCarran Rider, the Supreme Court applied Accardi and addressed the employee’s contention that the Secretary, in reaching his decision, had violated applicable State Department regulations. The Court explained that it was “not . . . concerned in any wise with the merits of the Secretary’s action in terminating the [employee’s] employment,” and was reviewing only “the manner of [the employee’s] discharge.” Id. at 373, 382. It then set aside the termination decision because the Secretary had indeed violated the applicable 1949 and 1951 regulations.
As the Supreme Court read the 1949 regulations, the Secretary would only have opportunity to act if a board and the Deputy Under Secretary of State ruled against the employee and the employee then appealed to the Secretary. If the board ruled for the employee and the Deputy Under Secretary of State agreed with that favorable decision, the matter did not reach the Secretary. See id. at 383–85 (discussing and explaining the 1949 regulations). In the case before it, the employee had prevailed before both the administrative board and the Deputy Under Secretary of State, and as a result the Secretary could not render his own termination decision: “So here when the Deputy Under
With respect to the 1951 regulations, the Court also found a violation. Those regulations required the Secretary to base his decision on all of the evidence and after consideration of the complete file, arguments, briefs, and testimony presented. See id. at 388. In other words, the “Secretary’s decision was required to be on the merits.” Id. As long as those regulations “remained unchanged,” the Secretary could not “proceed without regard to them.” Id. Because the Secretary had not made an independent judgment based on the full record, he had acted in violation of the regulations. See id.
If the “in his absolute discretion” language did not bar review of the Secretary’s failure to follow applicable regulations in Service, the “sole and unreviewable discretion” language here does not bar Mr. Bourdon’s claim that USCIS failed to follow the BIA’s binding decision in Chawathe.
C
Under the majority’s theory of “sole and unreviewable” discretion, federal courts are barred from reviewing anything that touches on “the heart of the Secretary’s decisional process.” But if the majority is right, then USCIS can decide to deny all I-130 applications that are filed on a given day of a week, or all that are filed by persons with last names that begin with the letter “M,” or all that are filed by persons who make minimum wage, or all those that are filed by persons with red hair, or all that are filed by persons who are from certain states. Or it can make its “no risk” decisions by tossing a coin. After all, each of those bases—no matter how arbitrary and illegitimate—would undoubtedly be part of USCIS’ “decisional process.” The majority’s rationale—which does not explain how such arbitrary determinations would be reviewable—is as untenable as it is unwise.
Apparently recognizing this problem, the government made a number of fatal concessions at oral argument. First, the government conceded that USCIS’ decision is reviewable to ensure that the proper process was followed:
The Court: Sole and unreviewable means sole and unreviewable . . . only when—finish the sentence.
Government: Only when, well I think—it’s sole and unreviewable when all the procedures are complied with.
Second, the government conceded that if a statute set out preponderance of the evidence as the governing standard for I-130 applications, then USCIS’ use of a beyond-a-reasonable-doubt standard would be reviewable. Third, the government conceded that if USCIS chose to deny all I-130 applications that were filed on Tuesdays, those arbitrary denials would be reviewable. These concessions doom the government’s jurisdictional position, for if the scenarios summarized above permit judicial
The majority correctly notes that we do not have to accept the government’s concessions, but it fails to explain why those concessions are not appropriate. If the majority’s analysis and holding are correct, any “no risk” determination by USCIS—no matter how arbitrary the underlying basis—is unreviewable. The majority refuses to acknowledge this undeniable point, calling such consequences “outlandish” and taking comfort in Mr. Bourdon’s failure to advance any constitutional claims on appeal. That comfort, in my view, is misplaced. First, under our prior panel precedent rule, a statutory interpretation decision like this one constitutes binding authority even if certain arguments were not made or considered by the panel. See, e.g., Tippit v. Reliance Standard Life Ins. Co., 457 F.3d 1227, 1234 (11th Cir. 2006); Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001). As a result, the majority’s statutory ruling—which does not contain any limiting principle—will be binding on future panels even if the litigants in subsequent cases advance constitutional arguments. Second, “[i]t is . . . well established that it is a denial of due process for any government agency to fail to follow its own regulations providing for procedural safeguards to persons involved in adjudicative processes before it.” Government of Canal Zone v. Brooks, 427 F.2d 346, 347 (5th Cir. 1970). If the majority’s holding means that arbitrary I-130 “no risk” determinations would be unreviewable, then the canon of constitutional avoidance should kick in. See generally Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018) (discussing the canon of constitutional avoidance).
III
Even if cases like Kurapati and Service did not exist, we would still have jurisdiction to address Mr. Bourdon’s claim that USCIS applied a standard of proof which was higher than, and which contravened, governing BIA precedent. The Secretary undeniably has “sole and unreviewable discretion . . . [to] determine[ ] that the citizen poses no risk to the alien.”
The majority builds its statutory argument on the supposed distinction between the words “determine” and “decide.” The syllogism goes something like this: (1) “determine” refers to the entire decision-making process; (2) “decide” only refers to the final conclusion; and (3) as a result, Congress’ choice of the word “determines” in
Many respected dictionaries circa 2006 provide the same (or very similar) definitions of “decide” and “determine” and use the words interchangeably to mean the adjudication of a disputed matter. Here are a few of them. See 2 Shorter Oxford Dictionary of the English Language 615, 659 (5th ed. 2002) (defining “decide” as to “[s]ettle a question in a dispute; pronounce judgment,” and “determine” as to “[s]ettle or decide (a dispute, controversy, etc., or a sentence, conclusion, issue, etc.) as a judge or arbiter”); Webster’s Third New International Dictionary 585, 616 (2002) (defining “decide” as “to make a
So, if “determine” encompasses the entire decisional process, then so does “decide.” The words are synonyms, and they both mean “to come to a decision.” American Heritage Dictionary of the English Language 359 (4th ed. 2009). And, contrary to the majority’s assertion, the meaning of these words does not change when they are used as nouns or verbs. Tellingly, the majority fails to cite a single case (or other authority) to support its assertion that Congress uses the noun “decision” in some artificially narrow sense to refer to the final outcome, but that the verb “determine” means more than its dictionary definition. In fact, to the extent that the words have different meanings, the difference between them is the opposite of what the majority suggests. As it turns out, “decide” is broader than “determine.” See id. (“Decide is the least specific: ‘If two laws conflict with each other, the courts must decide on the operation of each[.]’ Determine often involves somewhat narrower issues: A jury will determine the verdict.”) (emphases in original).
Moreover, the Supreme Court analyzed the meaning of “determination” in a similar context and came to the opposite conclusion as the majority. In McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), the Supreme Court held that a statutory bar on judicial review “of a determination respecting an application” did not foreclose review of “collateral challenges” to an agency’s procedures. Id. at 492. The Court observed that “a determination” referenced “a single act rather than a group of decisions or a practice or procedure employed in making decisions.” Id.
Once we understand that “determine” refers to an ultimate adjudication, the use of that word in
It would excite some surprise if, in a government of laws and of principle, furnished with a department whose appropriate duty it is to decide questions of right, not only between individuals, but between the government and individuals; a ministerial officer might, at his discretion, issue this powerful process . . . leaving to the debtor no remedy, no appeal to the laws of his country, if he should believe the claim to be unjust. But this anomaly does not exist; this imputation cannot be cast on the legislature of the United States.
The government has not presented clear and convincing evidence to completely overcome the presumption of judicial review, and today’s decision unfortunately creates the anomaly Chief Justice Marshall once thought was impossible.
IV
The majority notes that its decision is consistent with cases decided by a number of other circuits. That is undeniably true, but those other cases do not provide the majority much support.
Let’s start with Roland v. U.S. Bureau of Citizenship & Immigration Servs., 850 F.3d 625 (4th Cir. 2017), Privett v. Secretary, 865 F.3d 375 (6th Cir. 2017), and Bakran v. Secretary, 894 F.3d 557 (3d Cir. 2018). In those cases, the Fourth, Sixth, and Third Circuits held that USCIS’ use of the beyond-a-reasonable-doubt standard was not subject to judicial review, but they relied on
Gebhardt, moreover, did not address the BIA’s decision in Chawathe, 25 I. & N. Dec. at 375. Although Bremer acknowledged Chawathe, it did so in addressing the merits, holding that Chawathe did not apply because
V
Because