Flores v. GarlandFlores v. Garland
USDC No. 4:21-CV-3505
STEPHEN A. HIGGINSON, Circuit Judge:
The Immigration and Nationality Act (INA) gives priority to visa petitioners who have advanced degrees or exceptional ability. See
I.
Section 1153(b)(2)(A) of the INA gives priority to visa petitioners who “are members of the professions holding advanced degrees” or who have “exceptional ability in the sciences, arts, or business.”
In 2016, the Administrative Appeals Office of USCIS adopted “a new framework for adjudicating national interest waiver petitions” in In re Dhanasar, 26 I. & N. Dec. 884 (USCIS Admin. Appeals Office 2016). Under Dhanasar, “USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence” that three factors are met.2 Id. at 889. However, even if a petitioner meets her burden, USCIS can exercise its discretion to deny the waiver. Id. at 889 n.9 (“Because the national interest waiver is ‘purely discretionary,’ the petitioner also must show that the foreign national otherwise merits a favorable exercise of discretion.” (citation omitted)).
In 2019, David Flores filed a Form I-140 petition for a work visa under
On November 9, 2020, USCIS declined to grant Flores a national-interest waiver and denied his I-140 petition. On January 4, 2021, Flores moved USCIS to reopen or reconsider its decision. USCIS denied the motion. Because Flores‘s I-485 application relied on his I-140 petition, USCIS also denied his I-485 application.
Flores then sued the Department of Homeland Security, the United States, and USCIS (collectively, the Government) in federal district court challenging the denials of his I-140 petition, his motion for reopening or reconsideration, and his I-485 applications.3 Relevant here, the complaint alleges that USCIS acted arbitrarily and capriciously in denying Flores‘s I-140 petition because USCIS “ignored the preponderance of the evidence standard” set by Dhanasar and ignored “voluminous evidence and expert testimony.” Flores sought relief under the Administrative Procedure Act (APA),
The Government moved to dismiss Flores‘s complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that the jurisdictional bar in
Flores timely appealed.
II.
Flores‘s sole issue on appeal is that the district court erred in concluding that
The Ninth, Eleventh, and D.C. Circuits have decided that national-interest waiver denials are unreviewable. See Brasil v. Sec‘y of DHS, 28 F.4th 1189, 1194 (11th Cir. 2022) (per curiam); Poursina, 936 F.3d at 875; Zhu v. Gonzales, 411 F.3d 292, 294-96 (D.C. Cir. 2005). And the Third Circuit has reached the same conclusion in an unpublished opinion. See Mousavi v. USCIS, 828 F. App‘x 130 (3d Cir. 2020). “We are always chary to create a circuit split,” Gahagan v. USCIS, 911 F.3d 298, 304 (5th Cir. 2018) (citation omitted), and Flores has given us no reason to do so here. Accordingly, we join our fellow circuits in holding that a jurisdictional bar applies to national-interest waiver denials.
A.
Under
Section 1252(a)(2)(B)(ii) bars jurisdiction where Congress “set out the Attorney General‘s discretionary authority in the statute.” Kucana, 558 U.S. at 247. In other words, “a statutory provision must expressly and specifically vest discretion in the Attorney General” for the
B.
There are two ways that the text of
First,
Statutory context signals that the “may” in
Second,
In Ghanem v. Upchurch, we concluded that a similar instance of “deems” in a different immigration provision triggered the jurisdictional bar. 481 F.3d 222 (5th Cir. 2007). Ghanem concerned whether
These features of
C.
Flores has three principal counterarguments. None is persuasive.
1.
To start, Flores argues that only statutes that use the word “discretion” can trigger the jurisdictional bar in
Flores‘s magic words rule is also inconsistent with the logic of Kucana v. Holder, 558 U.S. 233 (2010). The petitioner in Kucana sought review of the BIA‘s denial of his motion to reopen his removal proceedings, and the court of appeals dismissed his petition for lack of jurisdiction. Id. at 240. No statute specifies that the Attorney General has discretion to deny a motion to reopen. Id. at 243. Instead, only a regulation promulgated by the Attorney General specifies that the BIA has discretionary authority to act on a motion to reopen. Id. at 243-44. The Court reversed the dismissal of Kucana‘s petition, holding that
The problem for Flores is that some provisions listed in clause (i) do not use the word “discretion” and yet are “of the same genre” as the decisions covered by clause (ii). Id. To give a couple of examples,
If Flores were right, the last phrase of
Finally, quoting Kucana, Flores invokes “the presumption favoring judicial review of administrative action.” See Kucana, 558 U.S. at 251. But this presumption only kicks in “[w]hen a statute is reasonably susceptible to divergent interpretation.” Id. (internal quotation mark omitted) (quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995)); see Patel v. Garland, 142 S. Ct. 1614, 1627 (2022) (explaining that the presumption of reviewability “may be overcome by specific language in a provision or evidence drawn from the statutory scheme as a whole” (internal quotation marks omitted) (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984))). For the reasons stated above,
2.
Next, Flores raises two arguments premised on a distinction between the national-interest waiver and the visa petition. Neither is convincing.
First, Flores argues that because “[t]here is no specific adjudication” of a national-interest waiver in the process of approving or denying a visa petition, “there is no unreviewable discretion” and
Second, in Flores‘s reply, he argues that “this case is about the denial of the . . . I-140 visa petition” and not “about the denial of a discretionary waiver.” Read generously, the reply contends that Flores‘s complaint challenges the visa denial, the visa denial statute is non-discretionary, see
Even if this argument were not forfeited, it‘s only half right. Ordinarily, visa petition decisions are non-discretionary. If the Attorney General determines that the noncitizen “is eligible for preference under [§ 1153(b)],” the Attorney General “shall . . . approve the petition.”
Flores‘s complaint proves the point. Although the complaint includes a header stating that “the decision denying . . . Flores‘s I-140 petition is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law,” Flores‘s only alleged basis for relief is that USCIS arbitrarily and capriciously denied the national-interest waiver. The complaint asserts no other ground to remand the visa petition denial to the agency. So his challenge to the visa petition denial is a challenge to the agency‘s adverse waiver decision by another name.
Flores also insists that “the issuance of [a] . . . waiver is not a separate process or decision” from the denial of his visa petition. But the denial of the national-interest waiver and the denial of the visa petition are distinct agency actions, even if memorialized on the same piece of paperwork and even if USCIS does not require the petitioner to file a separate waiver form. Consider the structure of the statute. Section 1153(b)(2)(A) describes the eligibility requirements for a type of work visa. Section 1153(b)(2)(B)(i) gives the Attorney General the discretionary authority to waive those requirements. Section 1154(b) requires the Attorney General to approve visa petitions if the petitioner is eligible. Given the relationships among these provisions, the agency‘s decision to make a petitioner eligible by waiving eligibility requirements is prior to and distinct from the agency‘s decision about whether a petitioner is eligible.
In sum, a court may have jurisdiction to review the agency‘s non-discretionary decision to deny a visa petition but no jurisdiction to review the agency‘s decision to deny a waiver of eligibility requirements. This conclusion follows from the visa petition scheme in
3.
Last, Flores argues that Dhanasar sets a “binding legal standard” that “contains no discretion.” Flores‘s premise is flawed and the implication of his statement—that Dhanasar made national-interest waivers reviewable—is incorrect.
Dhanasar embraces agency discretion to deny national-interest waivers. The decision sets forth a necessary condition for a petitioner to obtain a national-interest waiver. For USCIS to grant a waiver, a petitioner must establish by a preponderance of the evidence that his “proposed endeavor has both substantial merit and national importance,” that the petitioner “is well positioned to advance the proposed endeavor” and “that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.” 26 I. & N. Dec. at 889. But this condition is not sufficient for USCIS to grant a waiver. Even if the petitioner makes the necessary showing, USCIS can still exercise its discretion to deny a waiver because waivers are “purely discretionary.” Id. at 889 n.9 (citation omitted). Thus, Dhanasar limits USCIS‘s discretion to approve waivers because a waiver can only be approved if the petitioner meets her evidentiary burden. Dhanasar has no effect, though, on USCIS‘s discretion to deny waivers.
Regardless, agency law limiting the agency‘s statutorily authorized discretion cannot lift the
III.
For those reasons, we hold that review of national-interest waiver denials is jurisdictionally barred by