Susan Mousavi v. USCISSusan Mousavi v. USCIS
BIBAS, Circuit Judge.
Courts have jurisdiction to review immigration decisions only if a statute grants it. But Congress can limit what it grants. No court can review “any decision or actiоn” that is left, by statute, to the Attorney General‘s or Secretary of Homeland Security‘s discretion.
I. BACKGROUND
In allocating worker visas, the Immigration and Nationality Act gives priority to aliens with advanced degrees or exceptional talents.
Mousavi sought one of these national-interest waivers. A citizen of Iran, she got her Ph.D. in mechanical engineering from New York University and lived lawfully in New Jersey with her family for several years. In 2016, Mousavi went to visit her sick mother in Iran. When she left, she had several petitions pending with the Agency: an I-140 petitiоn for a national-interest waiver, an I-485 petition to become a lawful permanent resident, and an I-131 application for advance parole.
While Mousavi was in Iran, the Agency denied her pending petitions. It said she had not shown that a waiver would be in the national interest. She rеpeatedly challenged that decision, and the Agency repeatedly reaffirmed it. She has not been let back into the country.
II. THE DISTRICT COURT LACKED JURISDICTION
Federal-question jurisdiction is a creature of statute:
A. 8 U.S.C. § 1252(a)(2)(B)(ii) bars judicial review of the denial of a national-interest waiver
Under
Does this subparagraph give the Attorney General, and by extension the Agency, discretion to grant national-interest waivers? Two of our sister cirсuits have held that it does.
We start, and end, with the subparagraph‘s text. For as then-Judge Alito explained, the statute “must provide the discretionary authоrity” in the text itself. Soltane v. U.S. Dep‘t of Justice, 381 F.3d 143, 146 (3d Cir. 2004) (quoting Spencer Enters., Inc. v. United States, 345 F.3d 683, 689 (9th Cir. 2003)). The subparagraph does not use the word “discretion.” But we require no such magic words. Zhu, 411 F.3d at 295. Three textual cues make the Attorney General‘s discretion clear.
First, the Attorney General “may” grant these national-interest waivers.
Second, the Attorney General may do so when he “deems it to be in the national interest.”
Finally, the subparagraph puts no limits on the Attorney General‘s discretion. It does not define “the national interest” or set fоrth any guideposts. See Jilin, 447 F.3d at 204–05; see also Webster v. Doe, 486 U.S. 592, 600 (1988) (reading an analogous statute‘s use of “deem” and “the interests of the United States” as mandating deference to the Executive Branch). Mousavi cites the Agency‘s internal guidelines as limiting its discretion. See In
Nothing in the statute itself limits the Attorney General‘s discretion. So we lack jurisdiction to review it.
B. Mousavi‘s constitutional claims do not overcome this jurisdictional bar
Though Mousavi acknowledges the jurisdictional bar, she argues that her due-process and discrimination claims are exempt from it because they are constitutional. Not so.
First, Mousavi relies on an exception to the jurisdictional bar that does not apply. She points to
Second, Mousavi cannot separate her constitutional сlaims from the Attorney General‘s exercise of discretion. She claims that the Agency denied her due process by not “properly” assessing hеr case under its own internal guidelines. Pet‘r‘s Br. 10–11. And she vaguely claims, in her proposed amended complaint, that the Agency discriminated against her bаsed on her national origin. But we lack jurisdiction to consider constitutional claims that
III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY NOT LETTING MOUSAVI AMEND HER COMPLAINT
Mousavi moved to amend her complaint to add her discrimination claim. The District Court properly denied that motion as futile. We review for abuse of discretion. Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988).
Parties may amend their pleadings once as of right. After that, they may do so “when justice so requires.”
Mousavi sought to add a claim that the Agency had discriminated against her based on her national origin. But even with that amendment, the District Court would still havе lacked jurisdiction. As the District Court explained, quoting Jilin: “[B]ecause evaluating these constitutional claims [would] require[] [the court] to revisit and review the Attorney General‘s exercise of discretion ..., we lack the jurisdiction to consider them.” Mousavi v. USCIS, No. 17-cv-870, 2018 WL 6837966, at *3 (D.N.J. Dec. 31, 2018) (quoting 447 F.3d at 206). So it did not abuse its discretion in denying leave to amend.
Mousavi asks us to second-guess the Agency‘s denial of her national-interest waiver. Congress has told us that we cannot. So we will аffirm the District Court‘s dismissal for lack of jurisdiction and its denial of her leave to amend.