MOHAMMAD POURSINA, Plaintiff-Appellant, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; DAVID ROARK, Director, Texas Service Center, United States Citizenship and Immigration Services; JAMES MCCAMENT, Acting Director, United States Citizenship and Immigration Services; RON ROSENBERG, Chief, Administrative Appeals Office, United States Citizenship and Immigration Services, Defendants-Appellees.
No. 17-16579
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 28, 2019
D.C. No. 4:16-cv-00591-RCC
Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding
Argued and Submitted February 12, 2019 San Francisco, California
Filed August 28, 2019
Before: Mary M. Schroeder, Diarmuid F. O’Scannlain, and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge O’Scannlain
SUMMARY*
Immigration
Affirming the district court’s dismissal for lack of subject-matter jurisdiction of Mohammad Poursina’s suit challenging the denial of his petition for a national-interest waiver related to his application for a work visa, the panel held that
Poursina applied to the United States Citizenship and Immigration Services (USCIS) for a permanent employment-based visa. Generally, an immigrant seeking such a visa must show that his services are sought by an employer in the United States. Because Poursina could not make that showing, he submitted a petition for a national-interest waiver under
The panel held that
The panel also noted that
COUNSEL
Stacy Tolchin (argued) and Megan Brewer, Law Offices of Stacy Tolchin, Los Angeles, California, for Plaintiff-Appellant.
Yamileth G. Davila (argued) and Glenn Girdharry, Assistant Directors; William C. Peachey, Director, District Court Section; Office of Immigration Litigation, Civil Division, United States Department of Justice; Washington, D.C., for Defendants-Appellees.
O’SCANNLAIN, Circuit Judge:
We must decide whether federal courts may review the denial of a “national-interest waiver” by the United States Citizenship and Immigration Services to an Iranian citizen with advanced engineering degrees who sought a permanent visa.
I
A
Mohammad Poursina is an Iranian citizen with two degrees in mechanical engineering from the University of Tehran. In 2006, he entered the United States on a student visa to continue his studies at the Rensselaer Polytechnic Institute in Troy, New York. Between 2006 and 2011, Poursina’s student status authorized him to live and to work in the United States, but his authorization lapsed after he earned his doctoral degree. Thus, in June 2012, Poursina asked the United States Citizenship and Immigration Services (“USCIS”) to grant him a permanent employment-based visa under
1
Pursuant to such provision, USCIS may grant work visas to immigrants holding “advanced degrees” or to those with “exceptional ability in the sciences, arts, or business.”1
But there is an exception to the labor-certification requirement: “[USCIS] may, when [USCIS] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services . . . be sought by an employer in the United States.”
of Transp. (NYSDOT), 22 I. & N. Dec. 215 (BIA 1998), overruled by Dhanasar, 26 I. & N. Dec. at 884).
2
Poursina could not show that an employer sought his services, so he requested a national-interest waiver when he submitted his 2012 visa application. In 2014, USCIS denied his request, and Poursina then appealed to USCIS’s Administrative Appeals Office (“AAO”). The AAO concluded that the “evidence submitted” did not “establish[] that a waiver of the requirement of an approved labor certification w[ould] be in the national interest of the United States.” The AAO therefore dismissed Poursina’s appeal.
B
Poursina then brought this suit in the District of Arizona challenging USCIS’s denial of his petition. He alleged that USCIS’s refusal to grant a national-interest waiver violated the Immigration and Nationality Act (“INA”), violated the agency’s own regulations and precedential decisions, and was arbitrary and capricious under the Administrative Procedure Act (“APA”). Poursina therefore asked the district court to order USCIS either to reconsider its refusal or to grant him an employment-based visa.
The district court dismissed Poursina’s claims for lack of subject-matter jurisdiction, reasoning that
Poursina timely appealed.
II
Poursina contends that the district court erred in concluding that it lacked jurisdiction to consider his claim. He argues that
A
Presented with these competing claims, it falls to us to decide whether the decision to grant (or to refuse) a national-interest waiver comes within
1
We begin with the text of
[R]egardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review . . . 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 . . . .
Here, Congress has “specified” that the issuance of national-interest waivers is “discretionary.” Once again, the statute states that “the Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirement[] that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”
Further, the statute’s instruction that the waiver should issue only if the Attorney General “deems it to be in the national interest” reinforces its discretionary nature. Congress’s use of “deems” connotes that the Attorney General’s determination involves some measure of judgment. And the invocation of the “national interest” is a core example of a consideration that lacks a judicially manageable standard of review. Thus, in Webster v. Doe, the Supreme
Indeed, the D.C. Circuit has already concluded that review of “a decision to deny a waiver of the labor
certification requirement [is] barred by
We agree. Altogether,
2
Our conclusion that
In Kucana, the Supreme Court stated that clauses (i) and (ii) should be read “harmoniously.” 558 U.S. at 247. The Court reasoned that clause (i) enumerates several specific decisions that Congress “insulated from judicial review,”
while clause (ii) functions as a “catchall provision” precluding review over “decisions of the same genre.” Id. at 246. The Court based such conclusion both on the “proximity” of the two clauses and on the “words linking them.” Id. Specifically, after clause (i) lists the series of statutes regarding which review is barred, clause (ii) states that “any other decision” specified to be discretionary is also barred. Id. (emphasis added). Under Kucana’s reasoning, therefore, the language of the provisions enumerated in clause (i) “is instructive in determining the meaning of the clause (ii) catchall.” Id. at 247.
Relevant here, Congress used language similarly authorizing the Attorney General to elect to take certain actions under the provision governing national-interest waivers, see
Indeed, even the variation among these clause (i) provisions suggests that
These variations among the clause (i) provisions demonstrate that Congress used a wide range of language to commit decisions to the government’s discretion, and
The Court’s reasoning in Kucana therefore supports our conclusion that
B
Poursina responds that our decision in ANA International compels a contrary result. There, we held that
Poursina invites us to extend ANA International’s reasoning to the present case. He notes that both statutes bear the same basic linguistic and logical structure: if the Attorney General “deems” X, then he “may” do Y. And just as an agency rule in ANA International gave determinative content to “good or sufficient cause,” he
1
Contrary to Poursina’s argument, this case is different from ANA International. First, the USCIS decision that Poursina argues imposes “objective criteria” on its discretion does no such thing. An alien seeking a national-interest waiver must show:
(1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) 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. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.
Dhanasar, 26 I. & N. Dec. at 889 (emphasis added). Such test might flesh out the substance of the “national interest” language, but it still calls for a series of open-ended judgments—about “substantial merit,” “national importance,” and “benefit[s] to the United States”—that fall well short of an administrable “legal standard[] that will permit review under
Likewise, the statute in this case differs from the one in ANA International. In a variety of contexts, federal courts must make findings of “good cause.” E.g., Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 715 (2019) (collecting examples from the Federal Rules of Appellate, Criminal, and Civil Procedure); California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018) (discussing the “good cause” exception to the APA’s requirement for notice-and-comment rulemaking); Blake v. Baker, 745 F.3d 977, 980–81 (9th Cir. 2014) (discussing, in a habeas case, “what constitutes good cause to excuse a petitioner’s failure to exhaust”). Because good-cause determinations often fall to federal judges, Congress’s choice of such language might impose an administrable legal standard on the government—and thus one that renders its decision reviewable, despite
By contrast, the “national interest” standard invokes broader economic and national-security considerations, and such determinations are firmly committed to the discretion of the Executive Branch—not to federal courts. See Trump v. Hawaii, 138 S. Ct. 2392, 2409 (2018) (explaining that where the President has statutory discretion to determine if an alien’s entry “would be detrimental to the interests of the United States,” federal courts should not inquire “into the persuasiveness of the President’s justifications”). We ought not infer from Congress’s use of “national interest” that, notwithstanding
2
Indeed, even if the present statute resembled the one discussed in ANA International, we would hesitate to extend such decision beyond its narrow holding. First, doing so could create tension with Kucana, which held that
Second, ANA International is an outlier among the federal circuit courts. See Bernardo ex rel. M & K Eng’g, Inc. v. Johnson, 814 F.3d 481, 484–85 (1st Cir. 2016); Mehanna v. U.S. Citizenship & Immigration Servs., 677 F.3d 312, 314–15 (6th Cir. 2012); Green v. Napolitano, 627 F.3d 1341, 1345 n.3 (10th Cir. 2010); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009); Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 204 (3d Cir. 2006); Holy Virgin Prot. Cathedral of the Russian Orthodox Church Outside Russia v. Chertoff, 499 F.3d 658, 661-62 (7th Cir. 2007); Ghanem v. Upchurch, 481 F.3d 222, 223–25 (5th Cir. 2007). We are disinclined to depart further from such decisions.
In sum, because USCIS’s decision to deny a national-interest waiver is specified to be in its discretion,
III
Next, Poursina contends that, even if the ultimate issuance of the waiver remains discretionary, several of USCIS’s underlying conclusions remain reviewable because they were “purely legal” questions and thus “non-discretionary.” He alleges, as relevant here, that the agency’s regulations and precedential decisions misinterpret
A
Although
B
Finally, Poursina challenges the denial of his second request for a national-interest waiver as a deprivation of due process. In 2014, Poursina filed another application for an employment-based visa, and he again asked USCIS to waive the labor-certification requirement. USCIS issued a “request for evidence” and mailed it to Poursina’s home address. Because Poursina did not respond, USCIS concluded that his application had been “abandon[ed]” and therefore denied it. Poursina claims, however, that he “never received a copy” of the request for evidence or the denial of the second petition. Poursina therefore argues that he “did not receive proper notice” of USCIS’s request for evidence and the subsequent denial of the petition.
This constitutional claim is not subject to
IV
The judgment of the district court is AFFIRMED.