114 F.3d 879 (9th Cir. 1997), 96-16663, Young v. Reno

Docket Nº96-16663.
Citation114 F.3d 879
Party NameD.A.R. 7064 Karen Yuen Fong YOUNG, Plaintiff-Appellant, v. Janet RENO, Attorney General of the United States, Defendant-Appellee.
Case DateJune 04, 1997
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 879

114 F.3d 879 (9th Cir. 1997)

D.A.R. 7064

Karen Yuen Fong YOUNG, Plaintiff-Appellant,

v.

Janet RENO, Attorney General of the United States, Defendant-Appellee.

No. 96-16663.

United States Court of Appeals, Ninth Circuit.

June 4, 1997

Argued and Submitted April 14, 1997.

Page 880

Donald L. Ungar, Simmons, Ungar, Helbush, Steinberg & Bright, San Francisco, CA, for plaintiff-appellant.

Mary Reiko Osaka, United States Department of Justice, Honolulu, HI, and Donald A. Couvillon, United States Department of Justice, Washington, DC, for defendant-appellee.

Appeal from the United States District Court for the District of Hawaii, David A. Ezra, District Judge, Presiding. D.C. No. CV-95-00871-DAE.

Before: WIGGINS, TROTT, Circuit Judges, and ZAPATA, [*] District Judge.

Page 881

TROTT, Circuit Judge.

Overview

Karen Yuen Fong Young, a native of Hong Kong, immigrated to the United States as a child with her adoptive parents. She later petitioned the United States Government for immigration preferences on behalf of her natural siblings, who reside in Hong Kong. Although the Immigration and Naturalization Service ("INS") originally approved the petitions, it subsequently revoked them because it determined that Young was no longer legally related to her natural siblings for immigration purposes. The question presented for our review is whether the INS abused its discretion by interpreting sections 203(a)(4) and 101(b)(1)(E) of the Immigration and Nationality Act ("INA") to preclude Young from successfully petitioning for immigration preferences on behalf of her biological siblings on the ground that her adoption severed their legal relationship. Undertaking a Chevron analysis of the agency's interpretation of the relevant provisions of the INA, we conclude (1) that Congress did not expressly address this question, and (2) that the INS's construction is permissible.

Anticipating that the INS's construction might be upheld, Young next contends that this interpretation of the statute constitutes a new rule, which the Board of Immigration Appeals ("BIA") announced in Matter of Li, 20 I. & N. Dec. 700 (BIA 1993). Young argues that the INS should not have made this new rule in an adjudicative forum, and that the INS should not have retroactively applied this rule--announced nine years after she filed her petitions--to revoke her petitions. Because we conclude that the BIA did not announce a new rule in Matter of Li, we reject these contentions. We affirm the district court's grant of summary judgment in favor of the Government.

Background

Karen Yuen Fong Young was adopted as a child by a paternal aunt in Hong Kong and was permitted to immigrate to the United States because of this adoptive parent-child relationship. In 1984, she filed petitions seeking to confer preferential immigration status on her four biological siblings, pursuant to section 203(a)(4) of the INA, 8 U.S.C. § 1153(a)(4). 1 The INS approved the petitions and forwarded them to the U.S. State Department consulate in Hong Kong for processing as visas became available. Young's siblings applied for immigration visas in 1994, when visas first became available to fourth-preference individuals with 1984 priority dates. However, the consulate returned Young's petitions to the INS for visa-revocation proceedings, explaining that the petitions should not have been approved because Young's adoption had severed her legal relationship to her natural siblings. Young filed this action for a declaratory judgment in district court, before the INS revoked the petitions. The INS subsequently revoked three of the four petitions. Young challenged the revocation of these three petitions in the district court, and the district court granted summary judgment in favor of the INS.

Exhaustion of Administrative Remedies

As a threshold matter, we must determine whether Young must exhaust her administrative remedies by appealing the INS's petition-revocation decision to the BIA before seeking judicial review. Although INS regulations allow a petitioner to appeal the revocation of preferential visas to the BIA, Young opted not to pursue this avenue of relief. Instead, she immediately sought redress in the district court. We conclude that an appeal to the BIA is not mandatory in these circumstances and that the district court properly exercised jurisdiction over this case without imposing any exhaustion requirements.

Under the doctrine of exhaustion of administrative remedies, a party may not seek judicial review of an adverse administrative decision until the party first pursues all possible relief within the agency. Howell v. INS, 72 F.3d 288, 291 (2d Cir.1995). There are, however, established exceptions to the exhaustion requirement. One such exception applies where an appeal within the

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agency is futile. The Supreme Court has recognized that, in cases governed by the Administrative Procedures Act ("APA"), section 10(c) of the APA, 5 U.S.C. § 704, 2 further limits the discretion of courts to impose exhaustion requirements. Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993).

Section 10(c) explicitly requires exhaustion of all intra-agency appeals mandated either by statute or by agency rule; it would be inconsistent with the plain language of § 10(c) for courts to require litigants to exhaust optional appeals as well.

Id. at 147, 113 S.Ct. at 2545. Thus, "where the APA applies, an appeal to 'superior agency authority' is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review." Id. at 154, 113 S.Ct. at 2548.

We turn to the statute and the agency rules to determine whether appeal of a visa revocation to the BIA is a prerequisite to judicial review. If it is, then Young must exhaust her administrative remedies before seeking judicial review. If, on the other hand, appeal is optional, then she may properly seek redress in the federal courts at this time.

The INA grants jurisdiction to district courts over the revocation of a visa petition. 8 U.S.C. § 1329 (1996) ("The district courts of the United States shall have jurisdiction of all causes, civil and criminal, arising under any of the provisions of this subchapter."). As correctly noted by the district court, the statute "imparts jurisdiction on this court without an accompanying exhaustion requirement." Young v. Reno, 931 F.Supp. 1495 1498 n. 7 (D.Haw.1996).

The regulations provide that a petitioner may appeal a revocation of visa petitions to the BIA. Under 8 C.F.R. § 205.2, which outlines the procedure for revocation, "[t]he petitioner may appeal the decision within fifteen days after the service of notice.... [I]f the petition was approved for a preference under section 203(a) ... (4) of the Act ... the petitioner must file the appeal as provided in part 3 of this chapter." Part 3 provides that "[a]ppeals shall lie to the Board of Immigration Appeals from ... [d]ecisions on petitions filed in accordance with section 204 of the act ... and decisions revoking the approval of such petitions." 8 C.F.R. § 3.1(b)(5).

These regulations allow a petitioner to seek intra-agency review of a revocation decision and direct that such review will be by the BIA (rather than by the Commissioner or any other superior agency authority). But they provide that the appeal itself is optional. We recognize that the regulations provide that the agency will not execute a decision being appealed to the BIA, 8 C.F.R. § 3.6(a), a feature that the Supreme Court specifically required of mandatory appeals. Nonetheless, we conclude that, because the regulations do not explicitly require a petitioner to appeal to the BIA prior to seeking judicial review, such intra-agency review is optional. See II Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 15.3, at 318 (3d ed. 1994) ("If the agency simply makes [an intra-agency review] procedure available, however, a party can obtain judicial review of an otherwise final action without first pursuing the available intra-agency review procedure except in the relatively unusual case in which a statute makes exhaustion of the intra-agency review procedure a prerequisite to the availability of judicial review."). The Government, by conceding at oral argument that Young need not have exhausted her administrative remedies under Darby, apparently agrees with our interpretation. Therefore, we conclude that Young need not have sought review by the

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BIA prior to bringing her action in the district court.

Standard of Review

The Attorney General may revoke an approved visa petition at any time for "good and sufficient cause." INA § 205, 8 U.S.C. § 1155; see 8 C.F.R. § 205.2. "A court may review the denial of the INS of a preferential visa petition to determine if the denial was an abuse of discretion." Kaliski v. District Director of INS, 620 F.2d 214, 216 n. 1 (9th Cir.1980). The INS abuses its discretion if it bases its decision upon an improper understanding of the law. Id.

In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court set forth the two-step process for reviewing an agency's construction of a statute that it administers:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous, the question for the court is whether...

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    ...review thereof." Id. [section] 702. (576) E.g., id [section] 704 (stating the challenged agency action must be final); Young v. Reno, 114 F.3d 879, 881 (9th Cir. 1997) (holding all administrative remedies must have been exhausted before court review is allowed). (577) 520 U.S. 154 (199......
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    ...v. Mead , 533 U.S. 218, 228 (2001) (explaining that agency inconsistency is an indication of unpersuasiveness); see also Young v. Reno , 114 F.3d 879, 883 (9th Cir. 1997) (ascribing considerably less deference to an agency interpretation which conflicts with that same agency's earlier inter......
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    ...is not an issue. See 8 C.F.R. § 236.1(d) (allowing, but not requiring, intra-agency appeals of INS custody determinations); Young v. Reno, 114 F.3d 879, 882 (9th Cir.1997) ("because the regulations do not explicitly require a petitioner to appeal to the BIA prior to seeking judicial re......
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2 books & journal articles
  • The National Historic Preservation Act: An Inadequate Attempt to Protect the Cultural and Religious Sites of Native Nations
    • United States
    • Iowa Law Review Nbr. 103-4, May 2018
    • May 1, 2018
    ...that “a party generally cannot seek court review until all administrative remedies have been exhausted” (citing Young v. Reno, 114 F.3d 879, 881 (9th Cir. 1997))). 116. San Carlos Apache Tribe, 417 F.3d at 1092–93 (affirming the district court ruling that section 106 of the NHPA does not co......
  • Case summaries.
    • United States
    • Environmental Law Vol. 36 Nbr. 3, June 2006
    • June 22, 2006
    ...review thereof." Id. [section] 702. (576) E.g., id [section] 704 (stating the challenged agency action must be final); Young v. Reno, 114 F.3d 879, 881 (9th Cir. 1997) (holding all administrative remedies must have been exhausted before court review is allowed). (577) 520 U.S. 154 (199......
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