iTech U.S., Inc v. Tracy RenaudiTech U.S., Inc v. Tracy Renaud
WILKINS, Circuit Judge: iTech US, Inc. (“iTech“) filed an I-140 immigrant visa petition on behalf of Vishnu Vardhana Reddy Katta Sai Sampoorna (“Reddy“). Approval of an I-140 petition is one step on an immigrant worker‘s long path to acquire permanent resident status. United States Citizenship and Immigration Services (“USCIS“) approved the petition, but revoked its approval three years later. When iTech petitioned the District Court for review of that decision, the District Court found that Congress placed visa revocation decisions within the unreviewable discretion of the executive and dismissed iTech‘s suit for lack of jurisdiction. We agree. Joining nine of our sister Circuits, we affirm.
I.
This appeal concerns two interlocking provisions of the Immigration and Nationality Act (“INA“),
A.
“The INA allows for a certain number of immigrants to receive permanent residency through employer sponsorship.” Mantena v. Johnson, 809 F.3d 721, 724 (2d Cir. 2015); see
Once USCIS grants the I-140 petition, an immigrant worker is eligible to stand in line for an immigrant visa number to be issued by the Department of State. United States v. Ryan-Webster, 353 F.3d 353, 356 (4th Cir. 2003). “Because there are limits on the number of such visas in each category and from each country, immigrants must often wait many years for a permanent residency visa, especially if they are from a country, like India, that sends a large number of immigrants to the United States.” Mantena, 809 F.3d at 725. Finally, with visa number in hand, the immigrant worker may file a Form I-485, his application to have his non-immigrant status adjusted to become a permanent resident entitled to live and work in the United States. See
At any point in this process, a USCIS officer may revoke the approval of an I-140 immigrant visa petition “when the
B.
iTech filed an I-140 immigrant visa petition on behalf of Mr. Reddy in July 2015. J.A. 1. USCIS approved the petition two months later. J.A. 14. In its application, iTech produced evidence of its ability to pay the proffered wage and evidence that Mr. Reddy had obtained a bachelor‘s degree, “in the form of a degree certificate from the University of Madras along with transcripts from 1999 through 2002.” Appellant‘s Br. at 3; J.A. 6–13, 16. A year and a half later, USCIS issued a notice of intent to revoke the approved petition. J.A. 14. The agency grounded its revocation in the “realization that [the] immigrant visa petition was approved in error” and identified “inconsistencies in the record calling into question whether the beneficiary meets the educational requirements of the labor certification” and whether iTech “continues to demonstrate the ability to pay the proffered wage.” J.A. 14, 16–17.
iTech provided additional documentation in response to the notice to revoke, J.A. 20–22, but USCIS ultimately decided
This appeal comes to us from the District Court‘s July 24, 2020 grant of the agency‘s motion to dismiss for lack of jurisdiction. iTech US, Inc. v. Cuccinelli, 474 F. Supp. 3d 291, 292 (D.D.C. 2020). iTech brought suit under the Administrative Procedure Act, alleging that USCIS‘s decision to revoke its I-140 petition was arbitrary and capricious because the agency failed “to engage in rational decision-making based on the evidence in the record relating to the Company‘s ability to pay and [Mr. Reddy‘s] educational credentials.” Appellant‘s Br. at 8. The District Court granted the agency‘s motion to dismiss, finding that the plain text of the INA preserves “the Secretary‘s ability to revoke a I-140 petition ‘at any time’ and for any reason he ‘deems to be good and sufficient cause’ [and] renders USCIS‘s revocation decision ‘discretionary’ under § 1155.” iTech, 474 F. Supp. 3d at 293. A second section, section 1252(a)(2)(B)(ii), “in turn[] deprives the Court of jurisdiction to review the decision.” Id. These provisions are discussed in detail below.
II.
We review the District Court‘s determination that section 1252(a)(2)(B)(ii) shields the decision to revoke an I-140 petition from judicial review de novo. Zhu v. Gonzales, 411 F.3d 292, 294 (D.C. Cir. 2005). We start from “the presumption favoring judicial review of administrative action.” Make the Road New York v. Wolf, 962 F.3d 612, 623 (D.C. Cir. 2020) (quoting Guerrero-Lasprilla v. Barr, — U.S. —, 140 S. Ct. 1062, 1069 (2020)). “That ‘well-settled’ and ‘strong presumption’ in favor of judicial review is so embedded in the law that it applies even when determining the scope of statutory provisions specifically designed to limit judicial review,” id. at 624 (citing Guerrero-Lasprilla, 140 S. Ct. at 1068), and when considering immigration statutes, including section 1252(a), id. The “presumption can be overcome only by ‘clear and convincing evidence’ of congressional intent to preclude judicial review.” Id.
A.
In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA“), Pub. L. No. 104-208, Div. C (Sept. 30, 1996), “Congress amended the INA aggressively to expedite removal of aliens lacking a legal basis to remain in the United States.” Kucana v. Holder, 558 U.S. 233, 249 (2010). “Among IIRIRA‘s several proscriptions of judicial review is the one here at issue, § 1252(a)(2)(B)(ii), barring review of administrative decisions Congress placed within the Attorney General‘s discretion.” Id. Section 1252(a)(2)(B) is titled “Denials of discretionary relief” and provides that “no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
We focus first on clause (ii), which shields “any other decision or action” of the Secretary from judicial review. iTech contends that section 1252(a)(2)(B)(ii) is limited, “as its heading indicates, to ‘Denials of discretionary relief,‘” which the decision to revoke an I-140 petition is not. Appellant‘s Br. at 25 (quoting
“When called on to resolve a dispute over a statute‘s meaning,” we “afford the law‘s terms their ordinary meaning at the time Congress adopted them.” Niz-Chavez v. Garland, — U.S. —, 141 S. Ct. 1474, 1480 (2021). We exhaust “all the
Taking each in turn, we begin with the text. We ask whether “any other decision or action” includes decisions left to the Secretary‘s discretion that go beyond denying discretionary relief. “[U]se of the word ‘any’ will sometimes indicate that Congress intended particular statutory text to sweep broadly.” Nat‘l Ass‘n of Mfrs. v. Dep‘t of Def., 583 U.S. —, 138 S. Ct. 617, 629 (2018) (citing Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 220 (2008)). “But whether it does so necessarily depends on the statutory context.” Id.; see also Ali, 552 U.S. at 243–44 (Breyer, J., dissenting) (collecting cases). The reader sees the problem, but perhaps “other” will be of more help. “Other” means “distinct from that or those first mentioned or implied,” or, more simply, “not the same.” WEBSTER‘S NEW COLLEGIATE DICTIONARY 823 (10th ed. 1996); see also X THE OXFORD ENGLISH DICTIONARY 981 (2d ed. 1989) (“Existing besides, or distinct from, that already mentioned or implied; not this, not the same, different in
We look next to the surrounding text. Section 1252(a)(2)(B)‘s introduction instructs that, “[n]otwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, . . . and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review” the decisions specified in clauses (i) and (ii).
iTech pushes an alternative structural reading. It invokes the canons of noscitur a sociis and ejusdem generis to argue that because a visa revocation made under section 1155 is “not of the same type [of decision] as those specifically mentioned in the statutory list of items withdrawn from judicial review, it does not fall within Section 1252(a)(2)(B)(ii).” Appellant‘s Br. at 28. Under those canons, “where general words follow an enumeration of specific items, the general words are read as applying only to other items akin to those specifically enumerated.” NASDAQ Stock Mkt., LLC v. SEC, 961 F.3d 421, 428 (D.C. Cir. 2020) (quoting Harrison v. PPG Indus., Inc., 446 U.S. 578, 588 (1980)). In iTech‘s reading, clause (ii) serves as a safety net to pull in INA provisions which Congress did not explicitly name in clause (i), but which nonetheless allow the Attorney General or Secretary to grant or deny discretionary relief from removal. But “we do not woodenly apply limiting principles every time Congress includes a specific example along with a general phrase.” Ali, 552 U.S. at 227; see, e.g., Potomac Elec. Power Co. v. Dir., Off. of Workers’ Comp. Programs, 449 U.S. 268, 274 (1980) (“Nor are we free to read the subsequent words ‘all other cases’ as though they described ‘all of the foregoing’ as well; the use of the word ‘other’ forecloses that reading.“).3
Here, clause (i) concerns “judgment[s] regarding the granting of relief” made under specific enumerated provisions, and clause (ii) considers “any other decision or action of the Attorney General.” Notably, the relevant portion of clause (ii) does not repeat the language “regarding the granting of relief” included in clause (i). Clause (ii) refers to the granting of relief only when carving out a specific decision—“the granting of relief under section 1158(a)“—from the scope of the clause‘s broad catchall.
Thus, iTech‘s preferred canons come up against another, expressio unius est exclusio alterius. That is, reading clause (ii) as the catch-all for the specific provisions in clause (i) creates inter-canon tension—reading clause (ii) as part of a continuing list would require us to read the modifier “regarding the granting of relief” across both subsections, despite the fact that Congress specifically included that phrase only in clause (i) and the carveout to clause (ii). We decline to do so,
iTech faults the District Court for concluding that the text of section 1252(a)(2)(B) is clear, and its resulting refusal to allow the section heading to limit the text‘s plain meaning. Appellant‘s Br. at 29–30. While section headings are instructive, section 1252(a)(2)(B)‘s heading is of limited use where the text itself admits of limited ambiguity. See 2A SUTHERLAND STATUTORY CONSTRUCTION § 47:14 (7th ed. 2007) (“[S]ection headings and notes may be another helpful resource to interpret an ambiguous statute, but headings and notes are not binding, may not be used to create an ambiguity, and do not control an act‘s meaning by injecting a legislative intent or purpose not otherwise expressed in the law‘s body.“). Nor do we find Kucana controlling on the issue at hand simply because the Supreme Court found that “[t]he clause (i) enumeration,” was “instructive in determining the meaning of the clause (ii) catchall.” 558 U.S. at 247; see Appellant‘s Br. at 28–29. That observation supported the conclusion that “both clauses convey[ed] that Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General‘s discretionary authority in the statute,” but not when the Attorney General deemed a decision discretionary through regulation. Id. Our ruling is not in tension with that observation because, as shown in part B below, Congress itself “set out the Attorney General‘s discretionary authority” in section 1155. Id.
Finally, looking to IIRIRA‘s purpose, we see little basis for claiming that Congress intended to confine this jurisdiction-stripping provision to a narrow spectrum of “relief” where
B.
We are left to determine whether visa revocations under section 1155 are “specified . . . to be in the discretion of the Attorney General or the Secretary.”
[t]he Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 11545 of this title.
In Zhu, four foreign citizens sought review of the Attorney General‘s refusal to waive the requirement that they obtain a labor certification before petitioning for an I-140 immigrant visa. Id. at 293. “[T]he Attorney General may” waive that requirement “when [he] deems it to be in the national interest.” Id. at 293–94 (alteration in original) (quoting
Laboring against our precedent, iTech argues that section 1155 cannot specify discretion where Congress did not include the word “discretion” when it revised section 1155 in 1996 as part of IIRIRA, nor in 2004 when it amended section 1155 to transfer authority to revoke approved petitions from the Attorney General to the Secretary of Homeland Security. Appellant‘s Br. at 19–20. The Zhu Court expressly rejected this argument: we held that “a decision may be ‘specified . . . to be in the discretion of the Attorney General’ even if the grant of authority to make that decision does not use the word ‘discretion.‘” 411 F.3d at 294–95. So too here.
iTech next argues that section 1155 does not contain discretionary language because “good and sufficient cause” imparts a judicially manageable standard for evaluating the agency‘s decision which the words “may” and “deem” do not diminish. Appellant‘s Br. at 31, 38–41. iTech believes that
Zhu interpreted a provision providing that “the Attorney General may” waive the requirement for certain DOL certifications “when [he] deems it to be in the national interest.” 411 F.3d at 294–95 (quoting
iTech attempts to distinguish Zhu by noting that the panel there suggested that national interest waivers are discretionary because they are “unfettered by statutory standards,” whereas “good and sufficient cause” imparts a judicially manageable standard. Appellant‘s Br. at 41. But iTech ignores the fact that the Zhu Court held that even if “in the national interest” were a manageable standard, it would still find that the provision‘s
C.
Our holding is consistent with the conclusions of various other circuits. Nine of our sister circuits hold that courts lack jurisdiction to consider visa revocations made under section 1155, and one has said as much in dicta. See Bernardo ex rel. M & K Eng‘g, Inc. v. Johnson, 814 F.3d 481, 484 (1st Cir. 2016); Firstland Int‘l, Inc. v. INS, 377 F.3d 127, 131 (2d Cir. 2004) (dicta); Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 202–05 (3d Cir. 2006); Polfliet v. Cuccinelli, 955 F.3d 377, 381–83 (4th Cir. 2020); Ghanem v. Upchurch, 481 F.3d 222, 224–25 (5th Cir. 2007); Mehanna v. USCIS, 677 F.3d 312, 314–15 (6th Cir. 2012); El-Khader v. Monica, 366 F.3d 562, 568 (7th Cir. 2004); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009); Green v. Napolitano, 627 F.3d 1341, 1344–45 (10th Cir. 2010); Sands v. U.S. Dep‘t of Homeland Sec., 308 F. App‘x 418, 419–20 (11th Cir. 2009) (unpublished). But see ANA Int‘l, Inc. v. Way, 393 F.3d 886, 893–95 (9th Cir. 2004).
Granted, in some instances the parties conceded or the panel assumed that section 1252(a)(2)(B)(ii) encompassed any decision or action “the authority for which is specified under this subchapter to be in the [Secretary‘s] discretion,” regardless of whether the decision denied relief. See Bernardo, 814 F.3d at 484; Jilin, 447 F.3d at 202–03; Ghanem, 481 F.3d at 223; Mehanna, 677 F.3d at 314; Sands, 308 F. App‘x at 419–20. But in other instances, the court reached the issue and decided it as we do today. See El-Khader, 366 F.3d at 566 (“[T]he plain language of section 1252(a)(2)(B)(ii) bars courts from reviewing any discretionary decisions of the Attorney General made under the authority of sections 1151 through 1378 of Title 8 of the United States Code.” (emphasis omitted) (citing Samirah v. O‘Connell, 335 F.3d 545, 548–49 (7th Cir. 2003))); Polfliet, 955 F.3d at 381 (“On its face, § 1252(a)(2)(B)(ii) bars judicial review of decisions ‘specified’ to be in the ‘discretion’ of the Secretary.“); Abdelwahab, 578 F.3d at 820 n.4 (“By its plain language, § 1252(a)(2)(B)(ii) applies to discretionary action not taken in a removal proceeding.“); Green, 627 F.3d at 1345 (“[S]ince a visa revocation decision is a discretionary act, our jurisdiction to review it is precluded by the plain meaning of § 1252(a)(2)(B)[ii].” (alteration in original) (footnote omitted) (quoting Hamilton v. Gonzales, 485 F.3d 564, 568 (10th Cir. 2007))).
III.
For the reasons above, we conclude that section 1252(a)(2)(B)(ii) precludes judicial review of all decisions the authority for which is specified under Title 8, Chapter 12, Subchapter II to be within the Secretary‘s discretion. And we hold that the decision to revoke an I-140 immigrant visa petition under section 1155 is a “decision or action . . . the authority for which is specified under” Title 8, Chapter 12,
So ordered.