Spencer Enterprises, Inc. Li-Hui Chang, and Chung-Chuan Sun Jerry Chien-Hua Raan Ping Fu Lu v. United States of America United States Department of Justice Immigration and Naturalization ServiceSpencer Enterprises, Inc. Li-Hui Chang, and Chung-Chuan Sun Jerry Chien-Hua Raan Ping Fu Lu v. United States of America United States Department of Justice Immigration and Naturalization Service
D.W. NELSON, Senior Circuit Judge.
Appellants Spencer Enterprises, Inc. (“Spencer“), and Li-Hui Chang brought suit in the district court to challenge the denial of an immigrant investor visa to Chang by the Immigration and Naturalization Service (“INS“).1 In applying for the visa, Chang had submitted a business plan developed in cooperation with Spencer, but INS determined that the application lacked credibility and consequently denied the visa petition. We write primarily to confirm the unchallenged assumption of the parties that the district court had jurisdiction in this matter.
I. FACTUAL AND PROCEDURAL BACKGROUND
The immigrant investor program, or EB-5 program, established by the Immigration and Nationality Act (“INA“), allows aliens to receive permanent resident status upon the investment of a specified amount of capital and the creation of at least ten full-time jobs in the United States.
In applying for an EB-5 visa, an alien entrepreneur must submit an I-526 petition and supporting documentation demonstrating that the required capital has been committed; that the investment is made from the alien‘s own lawfully acquired funds; and, if applicable, that the investment is being made in a targeted employment area with a high unemployment rate. If the ten full-time jobs have not been created at the time of the petition, a comprehensive business plan demonstrating the need for such jobs within two years must also be submitted.
In 1998, in response to concerns about approvals of questionable investment plans, INS published four “precedent decisions” governing the handling of I-526 petitions. These decisions were designed to govern all future petitions, and clarified several requirements of the EB-5 program.
Chang is a citizen of Taiwan who seeks immigrant investor status. She incorporated FMA Enterprises, Inc., in California in December 1997. Her business plan involves an agreement with Spencer, a Fresno real estate developer. Spencer has used similar plans with seventeen previous aliens whose I-526 petitions were approved. According to the plan, FMA would place $500,000 in an escrow account, to be used to buy several lots2 once Chang‘s I-526 petition was approved. The remainder of the money would be paid to Spencer for a “construction trust account“; FMA would then hire employees to build houses on these lots, although the employees would be managed by Spencer, which has been appointed general manager of FMA.
On May 4, 1998, Chang filed her first I 526 petition. Chang‘s petition was placed on hold because INS determined that it involved “elements that [were] under review” and that would be addressed in the precedent decisions. In September 1998, after the issuance of the precedent decisions, Chang filed a second I-526 petition. On October 15, 1998, INS sent Chang a request for additional information, noting that her business plan was not comprehensive, detаiled, and credible, as required by the precedent decision In re Ho, 22 I. & N. Dec. 206, 1998 BIA LEXIS 29 at *17-18, 1998 WL 483979 (B.I.A.1998), and that there was insufficient evidence documenting the source of Chang‘s income. Chang submitted a new business plan and a variety of other documents in response.
Chang‘s petition was denied on January 27, 1999, and she appealed to the Administrative Appeals Office (“AAO“). The AAO denied her appeal on April 26, 1999, finding that Chang‘s credibility, and that of her business plan, was questionable; the source of the money deposited in the escrow account was unproven; Chang had failed to show that her investment would create permanent, full-time, continuous employment for ten employees within two years; Chang had failed to prove that Fresno was a targeted employment area and thus had not invested enough capital; and even if Chang was only required to invest $500,000, she had not placed this amount of money at risk.
After her motion to rеconsider was denied, Chang filed suit in district court to challenge INS‘s action. On cross-motions for summary judgment, the district court held, in a decision dated March 27, 2001, that the AAO‘s decision was not arbitrary and capricious, and was supported by substantial evidence. The district court found that any one of the AAO‘s stated reasons for the denial of Chang‘s petition would be sufficient, and found that each one was supported by substantial evidence, based on a permissible interpretation of the law and regulations. The appellants filed an appeal with this Court.
Although not raised by the parties, the issue of jurisdiction came to this Court‘s attention in the course of considering the merits of the appeal. At oral argument, both parties agreed that this Court has jurisdiction over this matter. On January 10, 2003, this Court issued an order directing the parties to file supplemental briefs addressing the applicability of
II. JURISDICTION
This Court has the duty to consider subject matter jurisdiction sua sponte in every case, whether the issue is raised by the parties or not. “[E]very federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,’ even though the parties are prepared to concede it.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934)); see also
The district court‘s jurisdiction is a more complex question. We first note that agency actions are generally reviewable under federal question jurisdiction, pursuant to
A. The Administrative Procedure Act
The Administrative Procedure Act (“APA“), which generally provides the standards of review for agency action, also withdraws jurisdiction to review agency decisions that are “committed to agency discretion by law.”
In this case, we need not look to regulations or agency practice because the statutory framework provides meaningful stаndards by which to review INS‘s action. Although
B. The Illegal Immigration Reform and Immigrant Responsibility Act
In 1996, Congress added
Notwithstanding any other provision of law, no court shall have jurisdiction to review ... any other decision or action of the Attorney General the authority for which is specified under [8 U.S.C. §§ 1151-1378] to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title [relating to asylum].
At first glance, it is not immediately obvious what is meant by a decision “the authority for which is specified under [8 U.S.C. §§ 1151-1378] to be in the discretion of the Attornеy General.”
In IIRIRA‘s transitional rules, which govern cases pending at the time IIRIRA was enacted, Congress withdrew jurisdiction over “any discretionary decision” made pursuant to several enumerated sections of the INA.
The language of
We find that the language of
The second significant difference is the requirement that the ”authority ... be in the discretion of the Attorney General.”
Support for this interpretation is found in the fact that many of the other provisions of IIRIRA, the act that created
Another example of the type of decisions whose authority is specified by statute to be entirely discretionary, and would therefore be covered by
This interpretation of
We recognize that our interpretation of
Applying
The appellants also suggest an alternate basis for the inapplicability of
There is a split in authority as to the applicability of
Other courts have determined that
Because we hold that the decision whether to issue an immigrant investor visa is not discretionary, we need not decide whether
III. STANDARD OF REVIEW
This Court reviews the district court‘s grant of summary judgment de novo. McDade v. West, 223 F.3d 1135, 1139 (9th Cir.2000). Under the Administrative Procedure Act, which guides our review of agency actions, an agency decision or finding of fact may be reversed if it is “arbitrary, capricious, [or] an abuse of discretion,” or “unsupported by substantial evidenсe.”
IV. MERITS OF THE APPEAL
As noted above, INS rejected Chang‘s petition on several different grounds, relying primarily upon the 1998 precedent decisions. We first consider the applicability of the precedent decisions to Chang‘s petition. Having determined that the precedent decisions do apply here, we examine the grounds on which the petition was denied. As the district court correctly noted, any one of these grounds would be sufficient to reject the petition. We first consider INS‘s adverse credibility determination, and, finding merit in this basis for denial of Chang‘s petition, need not reach the other grounds.
A. Applicability of INS precedent decisions
The appellants argue that the 1998 INS precedent decisions should not have been applied to Chang‘s petition because her investment was made prior to the issuance of the decisions. In R.L. Investment Limited Partners v. INS, 86 F.Supp.2d 1014 (D.Haw.2000) (”RLILP“), the district court held that the same precedent decisions could be applied to an I-526 petition filed prior to the issuance of the decisions, because the decisions did not effect a change in existing law. Id. at 1018, 1024-1025. That decision was subsequently adopted by this Court, and is binding precedent. See 273 F.3d 874 (9th Cir. 2001).
We distinguished RLILP in Chang v. United States, 327 F.3d 911 (9th Cir.2003). The immigrant investors in that case were not similarly situated to the RLILP plaintiffs because, prior to the issuance of the precedent decisions, their I-526 petitions had already been approved. Id. at 926. They had made significant commitments in reliance on the approval of their petitions, and we ultimately concluded that retroactive application of the precedent decisions to this class of immigrants was impermissible. Id. at 929.
We see no comparable basis on which to distinguish RLILP here. Chang withdrew her first petition after being notified that it contained problematic features, and her current petition was not even filed, let alone approved, before the precedent decisions were issued. Even if the current petitiоn could be said to “relate back” to the original petition, however, under RLILP the precedent decisions can be applied to petitions that were filed before the issuance of the decisions. RLILP, 86 F.Supp.2d at 1024-25.
Appellants argue that Chang‘s situation is different from that of the RLILP plaintiffs because her investment was made prior to the issuance of the precedent decisions. But the “investment” in RLILP was of exactly the same character as the investment here — $500,000 placed in an escrow account to be paid out only on approval of the I-526 petition — and this question is therefore squarely controlled by RLILP. Id. at 1027 n. 2. INS did not act improperly in applying the precedent decisions.
B. Credibility of Chang‘s petition
The regulations for the EB-5 program require that, if the alien entrepreneur has not actually created ten full-time jobs at the time of application, the I-526 petition must be accompanied by “a comprehensive business plan showing that ... the need for not fewer than ten (10) qualifying employees will result ... within the next two years.”
Although the appellants assert that the credibility determination was based only on a typographical error in one document, the AAO decision details numerous findings that raise questions about the business plan, including: (1) that Chang initially submitted only a four-page “business plan” with her petition;6 (2) that Chang twice claimed to plan to purchase a lot from Spencer that had already been sold to another corporation; (3) discrepancies between two sales and construction agreements between FMA and Spencer; (4) discrepancies between the number-of-workers — to — sales-volume ratio proposed by FMA versus Spencer‘s actual number-of-workers — to — sales-volume ratio; (5) that FMA would be operated out of Spencer‘s offices; (6) that all of the funds from Spencer‘s numerous immigrant investors are in one escrow account; (7) that the escrow instructions allow Spencer to begin construction on the lots promised to FMA prior to the close of escrow; (8) discrepancies as to who the escrow agent is; (9) concerns that some of the Chinese language translations provided by Chang were inaccurate; and (10) that monies were deposited in escrow on behalf of FMA before FMA was incorporated.
A few errors or minor discrepancies are not reason to question an alien‘s credibility. See, e.g., Shah v. INS, 220 F.3d 1062, 1068 (9th Cir.2000). Numerous errors and discrepancies, however — especially where INS is evaluating the credibility of a business plan — raise serious concerns about the viability of the enterprise. In this case, the findings catalogued above constitute substantial evidence for the AAO‘s determination that Chang‘s business plan was not credible enough to demonstrate the need for ten full-time workers. The denial of the petition on this basis was not arbitrary, capricious, or an abuse of discretion.
V. CONCLUSION
The district court‘s judgment is therefore AFFIRMED. Each party shall bear its own costs.
AFFIRMED.
It is well established that the decision to grant or deny a visa petition is discretionary. The opinion of the court filed today is the first to hold that
I respectfully dissent.
I
The court‘s opinion relies on gеneral federal question jurisdiction under
General federal question jurisdiction under
II
We consider subject matter jurisdiction in every appeal to this court, even where the parties do not contest jurisdiction. Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979). “[W]e retain jurisdiction to determine our own jurisdiction.” Abreu-Reyes v. INS, 292 F.3d 1029, 1031 (9th Cir.2002).
III
The issue of jurisdiction is controlled by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
In particular, the Illegal Immigration Reform and Immigrant Responsibility Act amendments contain a number of provisions eliminating judicial review of various Immigration and Naturalization Service (INS) decisions. Among these provisions is
Section 1252(a)(2)(B)(ii) is very straightforward: it deprives the courts of jurisdiction to review the Attorney General‘s discretionary decisions. The court today, however, tortures the plain reading of
In an attempt to retain jurisdiction, the court applies linguistic gymnastics and resorts to convenient canons of statutory interpretation to hold (1) that
A
The types of discretionary decisions encompassed by
To illustrate its point, the court provides several examples of statutes which “do in fact spеcify that particular decisions are within the sole or unreviewable discretion of the Attorney General.” [Court‘s opinion at 690] (emphasis in original). The common element in the court‘s examples is the use of the words “sole” or “not ... subject to review” in describing the Attorney General‘s exercise of discretion. The court‘s message is that
The narrow rule drawn by the court today conflicts with our decision in Matsuk. In Matsuk, we addressed whether
Instead of inquiring whether the decision was specified by statute to be entirely within the discretion of the Attorney Gеneral, in Matsuk, we recognized that the reality was that the decision at issue involved the Attorney General‘s exercise of discretion. We cited a BIA decision which states that the determination of whether a crime is particularly serious “requires an individual examination of the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction.” In re S-S-, Interim Decision 3374, 1999 WL 38822 (BIA Jan. 21, 1999) (cited in Matsuk, 247 F.3d at 1002). Matsuk does not engage in a mechanical or contrived evaluation of the text of the statute; rather, Matsuk examined the type of decision at issue and acknowledged that it involved discretion. 247 F.3d at 1002.
Like the case before us, the statute in Matsuk involved discretion by the very nature of the decision being made, not because of certain specific language used in the statute. There is nothing in the text of the statute in Matsuk that is explicitly discretionary. The court today disguises the fact that its rule creates an intra-circuit split by applying a strained hyрer-textual reading of
B
The rule today redefines what constitutes a discretionary decision.3-1 It ignores that courts have consistently held that
When explicit discretionary language is not used in the INA, discretion can be implied from the statute. See Johns v. Department of Justice, 653 F.2d 884, 890 (5th Cir.1981) (“The Attorney General is given discretion by express statutory provisions, in some situations.... In other instances, as the result of implied authority, he exercises discretion nowhere granted expressly.“); see also United States ex rel. Salvetti v. Reimer, 103 F.2d 777, 779 (2nd Cir.1939) (asserting that “the exercise of a discretionary power conferred by implication” is not reviewable by the courts).
Our sister circuit has recognized that discretionary decisions that do not contain explicitly discretionary language arе nevertheless barred from judicial review under
The Van Dinh court found that the Attorney General‘s discretionary power under §§ 1231(g)(1) and 1231(i)(4)(B) arises from the statute, even though these sections state that the Attorney General ”shall” act as instructed by the statute.5-1 The statutory sections in Van Dinh do not specify that the decision is entirely within the Attorney General‘s discretion, as the court today would require; rather, the Van Dinh court recognized that use of the word “appropriate” in the statute implies the discretionary authority to determine what is appropriate. See also Avramenkov v. INS, 99 F.Supp.2d 210, 213 (D.Conn.2000) (holding that decisions under
The court‘s opinion today holds that
C
The reality is that the decision to approve an immigrant investor visa petition is discretionary. The immigrant investor visa is an employment-based preference visa under
“[A]dmission of an alien to this country is not a right but a privilege which is granted only upon such terms as the United States prescribes.” Montgomery v. Ffrench, 299 F.2d 730, 734 (8th Cir.1962). Congress has plenary power to make policies and rules for exclusion of aliens. See Fiallo v. Bell, 430 U.S. 787, 792 (1977); Kleindienst v. Mandel, 408 U.S. 753, 769-60 (1972); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953). “Congress has explicitly delegated much of its power over immigration to the Attorney General.” Aguilera v. Kirkpatrick, 241 F.3d 1286, 1292 (10th Cir.2001); see also
The rule that Congress has laid down with respect to immigrant investor visas is that immigrant investor visas are available to immigrants who seek to enter the United States
for the purpose of engaging in a new commercial enterprise — (i) which the alien has established, (ii) in which [the] alien has invested ... capital in [a specified] amount ... and (iii) which will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States.
Congress has explicitly given the Attorney General bounded discretionary authority to specify the amount of capital which must be invested in order to qualify for the immigrant investor visa.
The Attorney General has promulgated regulations under
When the Attorney General denies a preference visa petition because the petitioner does not satisfy the regulations the Attorney General has promulgated to guide his discretion in determining eligibility under
IV
I am troubled by the court‘s opinion for another reason. The court‘s opinion neglects to give due deference to the Executive Branch in the immigration context. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (acknowledging that “judicial deference to the Executive Branch is especially appropriate in the immigration context“). This circuit has been unanimously reversed recently for failing to give due deference to the Executive Branch. See INS v. Ventura, 537 U.S. 12 (2002), 123 S.Ct. 353, 355-56 (2002) (observing that the Ninth Circuit “seriously disregarded the [INS‘s] legally-mandated role” and observing that the Ninth Circuit encroached “upon the domain which Congress has exclusively entrusted to an administrative agency“). In failing to give appropriate judicial deference to the Executive Branch, the court oversteps its jurisdiction.
“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitutiоn and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). In enacting the Illegal Immigration Reform and Immigrant Responsibility Act, Congress clearly expressed an intent to shield Executive Branch discretion in the area of immigration. The court‘s opinion impermissibly attempts to maintain that federal court jurisdiction still exists, even though Congress has specifically precluded judicial review in an effort to protect Executive Branch discretion. I see no reason to engage in a charade to preserve federal court jurisdiction in an area where Congress has spoken so clearly.
V
The court‘s opinion attempts to expand Ninth Circuit jurisdiction in direct defiance of
Our circuit and other circuits have recognized repeatedly that the Attorney General has discretion over visa petitions. See supra, n. 8. Section 1252(a)(2)(B)(ii) bars judicial review of the Attorney General‘s discretionary decisions. The court‘s opinion improperly holds that
I respectfully dissent.
Notes
There is a fundamental difference between the APA and the Illegal Immigration Reform and Immigrant Responsibility Act. The APA‘s purpose is to give courts standards by which to review executive agency action. See Califano, 430 U.S. at 104 (noting that the APA “undоubtedly evinces Congress’ intention and understanding that judicial review should be widely available to challenge the actions of federal administrative officials“). The Illegal Immigration Reform and Immigrant Responsibility Act‘s purpose is to deprive courts of the ability to review executive agency action in the area of immigration. See American-Arab Anti-Discrimination Comm., 525 U.S. at 486. One statute bestows standards of judicial review, while the other prohibits judicial review. Comparing the two is akin to comparing fire to ice.
(i) ... The Attorney General, in consultation with the Secretary of Labor and the Secretаry of State, may from time to time prescribe regulations increasing the dollar amount specified.... (ii) The Attorney General may, in the case of investment made in a targeted employment area, specify an amount of capital required [within a range]. (iii) In the case of an investment made [in a high employment area] the Attorney General may specify an amount of capital required [within a range].
These courts, however, ignore the plain language reading of the statute. Id. Every circuit court to address the scope of