KRISHNA KISHORE GEDA; CHAYA DURGA SRUTHI KEERTHI NUNNA, Appellants v. DIRECTOR UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES
No. 23-2195
United States Court of Appeals for the Third Circuit
January 23, 2025
PRECEDENTIAL.
Before: RESTREPO, MATEY, and MCKEE, Circuit Judges
Brad Banias [ARGUED]
BANIAS LAW, LLC
602 Rutledge Avenue
Charleston, SC 29403
Counsel for Appellants
Brian M. Boynton, Principal Deputy Assistant Attorney
William C. Peachey, Director, District Court Section
Aaron Goldsmith, Senior Litigation Counsel
Jordan K. Hummel, Trial Attorney [ARGUED]
U.S. DEPARTMENT OF JUSTICE
OFFICE OF IMMIGRATION LITIGATION
DISTRICT COURT SECTION
P.O. Box 868
Ben Franklin
Washington, DC 20044
Counsel for Appellees
Hope Lu
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellees
OPINION OF THE COURT
RESTREPO, Circuit Judge.
Appellants Krishna Kishore Geda and Chaya Durga Sruthi Keerthi Nunna (collectively, the “Gedas“) are married Indian nationals lawfully residing in the United States on employment-based nonimmigrant visas.1 They have filed and await approval of their I-485 “green card” applications seeking an adjustment of status to lawful permanent residents. After waiting in line for almost eight years, the Gedas thought they reached the front and filed their applications—only to be told two years later that their applications were put on hold because
the required immigrant visa was not available. Frustrated by the delay, they sued the United States Citizenship and Immigration Services and its Director in her official capacity (“USCIS“) bringing claims for unlawful withholding and unreasonable delay under the Administrative Procedure Act,
I. BACKGROUND
A. Adjustment of Status Under the INA
The Immigration and Nationality Act (INA), codified as
As relevant here, Section 1255(a) of the INA provides:
The status of an alien who was inspected and admitted or paroled into the United States or the status
of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien
is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
Upon approval of a green card application, USCIS records the noncitizen‘s lawful admission for permanent residence “as of the [approval] date,” and the DOS “reduce[s] by one the number of the preference [immigrant] visas authorized to be issued under sections 1152 and 1153 . . . for the fiscal year then current.”
must be available both when the green card application is filed (per
B. Visa Availability and the Adjudication Hold Policy
A noncitizen seeking an immigrant preference visa—the ones subject to the statutory caps—must be sponsored by a relative or employer. A noncitizen seeking lawful permanent status through employer sponsorship must receive an employment-based preference visa (“EB visa“). For EB visas, a sponsoring employer files an immigrant visa petition on the noncitizen‘s behalf. See
The Department of State allocates EB visas on a “first-come, first-served” basis. Scialabba v. Cuellar de Osorio, 573 U.S. 41, 48 (2014) (plurality opinion). Petitions for EB visas receive a “priority date” marking a noncitizen‘s spot in line. For EB-2 and EB-3 visas, the priority date is usually the date that the Department of Labor accepts for filing the sponsoring
employer‘s application
For countries like India that have more petitions than available visas, the Department of State projects a cutoff date for each preference category and publishes its projections in a monthly Visa Bulletin. Once an applicant‘s priority date becomes “current“—that is, it falls before the published cutoff date—a visa is considered “immediately available,” and the applicant may file a green card application. See
C. The Gedas
Mr. Geda‘s employer filed for a permanent labor certification on December 18, 2012, setting that date as the Gedas’ priority date. That same day, the Department of Labor issued the
labor certification, and Mr. Geda‘s employer filed an immigrant visa petition with USCIS. Mr. Geda‘s petition was later approved as an EB-2 visa petition for foreign nationals with advanced degrees or exceptional ability. For almost eight years, Mr. Geda and Mrs. Nunna waited in line as USCIS worked through the backlog of approved petitions.
In October 2020, the Gedas—still waiting in line for an EB-2 visa—realized their priority date would be current for an EB-3 visa, which Mr. Geda also qualified for. Mr. Geda‘s employer then concurrently filed a petition for an EB-3 visa along with green card applications for Mr. Geda and Mrs. Nunna. USCIS subsequently approved Mr. Geda‘s petition for an EB-3 visa. While the green card applications were pending, the wait time for EB-2 visas once again became shorter than the EB-3 wait time. Under USCIS policy,8 Mr. Geda requested a “transfer of underlying basis” for the pending green card applications to his previously approved EB-2 petition. App. 2.
According to the September 2022 Visa Bulletin, the Final Action date for EB-2 applicants was December 1, 2014—making the Gedas’ priority date “current” and rendering them eligible to receive EB-2 visas and have their green card applications adjudicated.
The Gedas claim that the last time USCIS applied this policy, similarly situated applicants waited eight to nine years for final adjudication. Understandably frustrated, the Gedas sued to compel USCIS to promptly adjudicate their green card applications and allocate EB visas, arguing that the Adjudication Hold Policy violates congressional intent. In their amended complaint, the Gedas asserted two unlawful withholding claims and one unreasonable delay claim under the APA. Section 706(1) of the APA allows courts to compel agency action if it is “unlawfully withheld or unreasonably delayed.”
II. STANDARD OF REVIEW
We have jurisdiction over this appeal under
III. JURISDICTION
We first address the issue of subject-matter jurisdiction, as the Supreme Court has instructed that “[w]ithout jurisdiction the court cannot proceed at all in any cause.” Sinochem Int‘l Co. v. Malaysia Int‘l Shipping Corp., 549 U.S. 422, 431 (2007) (quoting Steel Co. v. Citizens for Better Env‘t, 523 U.S. 83, 94 (1998)). This Court has an “independent obligation to determine whether subject-matter jurisdiction exists[.]” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
The District Court explained the Gedas’ claims “lack[ed] subject matter jurisdiction because the APA does not confer jurisdiction under
A. Preclusion of Review Under 8 U.S.C. § 1252(a)(2)(B)(ii)
“District courts have jurisdiction to review agency action under
Notwithstanding 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 except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, 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.
B. Judicial Review of the Adjudication Hold Policy
The Gedas challenge the USCIS‘s reliance on the Adjudication Hold Policy to delay a decision on their applications. But
Congress thus “specified,” as required by
The Gedas’ challenge to the Adjudication Hold Policy is an issue of first impression for this Court. That said, we have addressed the reviewability of procedures set forth to exercise statutorily granted discretion. In Bakran, we considered an INA provision barring citizens convicted of a “specified offense against a minor” from filing a visa petition on behalf of a relative “unless the Secretary of Homeland Security, in the Secretary‘s sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition . . . is filed.” 894 F.3d at 560 (quoting
The jurisdictional bar is even more straightforward here. We are presented with a discretion-granting statute that explicitly provides the Secretary the discretion to “prescribe” the regulations that guide its exercise of the discretionary authority.
Two of our sister circuits have squarely addressed this question in a precedential opinion and reached the same conclusion. In Thigulla, the appellants sued to compel USCIS to adjudicate their green card applications, arguing that the decision to delay adjudication violated congressional intent. 94 F.4th at 773. The Eighth Circuit considered the subject-matter jurisdiction issue sua sponte. Id. at 773-74. In holding that it lacked jurisdiction, the Thigulla court identified “[t]he text of
To be clear, we do not reach the issue of whether Gedas’ substantive argument—that the Government‘s reading of
Congress left such a policy to the discretion of the [Secretary].” Id. at 777.
The Fifth Circuit followed suit in Cheejati v. Blinken, explaining:
Section 1255(a) expressly leaves not only the ultimate decision to adjust an applicant‘s immigration status but also actions taken in the course of the decision-making process—including the pace at which that process is undertaken—to the discretion of the Attorney General: applications for adjustment of status are adjudicated “in [the Attorney General‘s] discretion and under such regulations as
he may prescribe.” 8 U.S.C. § 1255(a) . And we recently held, albeit in an unpublished case, that the pace of USCIS‘s adjudication is left to its discretion, with “no clear mandate” requiring USCIS to act within a certain timeframe. Li v. Jaddou, No. 22-50756, 2023 WL 3431237, at *1 (5th Cir. May 12, 2023). Accordingly, the discrete acts undertaken to render an adjustment decision and the timing of those acts are determined by the Attorney General in his discretion, and that discretionary action cannot be reviewed by federal courts.8 U.S.C. §§ 1252(a)(2)(B)(ii) ,1255 .
106 F.4th 388, 394 (5th Cir. 2024).
Faced with the same issue, two other sister circuits rejected the APA claims without addressing the threshold issue of subject matter jurisdiction. The First Circuit proceeded directly to the merits “assum[ing] there [were] no statutory bars to the exercise of jurisdiction” because it “resolve[d] the merits in the
defendants’ favor.” Gupta v. Jaddou, 118 F.4th 475, 482 (1st Cir. 2024). Similarly, the Ninth Circuit affirmed the district court‘s denial of injunctive relief without addressing any jurisdictional defects. See Babaria, 87 F.4th at 972. Because both our Court and the District Court lack subject-matter jurisdiction under
C. The Gedas’ Counterarguments
The Gedas offer four arguments against this jurisdictional bar, none of which persuade us against our holding. First, they suggest that
Statutory history confirms this reading. As originally enacted, § 1252(a)(2)(B) provided that “[n]otwithstanding any other provision of law, no court shall have jurisdiction to review” any judgment, action or decision listed in subsections (i) and (ii). See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-607;
in the REAL ID Act of 2005, adding the language “regardless of whether the judgment, decision, or action is made in removal proceedings.” Pub. L. No. 109-13, 119 Stat. 302, 305.
It seems clear that Congress added that clause to confirm that, despite the section‘s title, § 1252(a)(2)(B)‘s jurisdiction limitation
Second, the Gedas argue that
Third, the Gedas point to the presumption in favor of judicial review of “agency action” under Kucana. 558 U.S. at 251. The Gedas are correct that we should only read a statute to limit
jurisdiction if there is “clear and convincing evidence” of congressional intent. Id. at 252 (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 64 (1993)). “But that presumption ‘may be overcome by specific language’ in a provision or evidence ‘drawn from the statutory scheme as a whole.‘” Patel, 596 U.S. at 347 (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984)). Only “when a statute is silent[,]” does the presumption apply. Id. at 346. If “the statute is clear, we have no reason to resort to the presumption of reviewability.” Id. at 347; see also Bouarfa, 2024 WL 5048700, at *7 (refusing to apply the presumption in analyzing whether
The statutes here are clear. The “specific language” of
Finally, the Gedas contend that
The Adjudication Hold Policy reflects a decision by USCIS about how to exercise its discretion to adjust a noncitizen‘s
status to lawful permanent resident. Whether the Adjudication Hold Policy is the most sensible approach to managing pending green card applications and a visa backlog is not up to this Court. In
When jurisdiction is lacking, “the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for Better Env‘t, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. 506, 514 (1868)). The District Court lacked subject-matter jurisdiction, and so does this Court. Only the executive and legislative branches can provide the relief the Gedas seek.
IV. CONCLUSION
The order of the District Court will be affirmed.