El-Khader v. Monica

• Citation: 366 F.3d 562
• Decision Date: 29 April 2004
• Docket Number: No. 03-2178.,03-2178.
• Parties: Hani EL-KHADER, Plaintiff-Appellant, v. Donald MONICA, Interim District Director, Bureau of Citizenship and Immigration Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

366 F.3d 562

Hani EL-KHADER, Plaintiff-Appellant, v. Donald MONICA, Interim District Director, Bureau of Citizenship and Immigration Services, Defendant-Appellee.

No. 03-2178.

United States Court of Appeals, Seventh Circuit.

Argued November 7, 2003.

Decided April 29, 2004.

David Rubman (argued), Rubman & Compernolle, Chicago, IL, for Plaintiff-Appellant.

Jeffrey A. Wadsworth (argued), Department of Justice, Washington, DC, for Defendant-Appellee.

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

On November 1, 2002, the Immigration and Naturalization Service ("INS")¹ issued a decision revoking a previously approved visa petition, which had been filed by Hani El-Khader's employer on his behalf, on the basis that El-Khader's former marriage was a "sham," in violation of 8 U.S.C. § 1154(c).² El-Khader immediately filed a complaint in the district court seeking review of the INS's final decision, but the district court dismissed the action by ruling that it lacked subject matter jurisdiction over his claim under section 242(a)(2)(B)(ii) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1252(a)(2)(B)(ii).³ El-Khader appeals, challenging the district court's ruling granting the INS's motion to dismiss for lack of subject matter jurisdiction. We conclude, consonant with our recent decision in Samirah v. O'Connell, 335 F.3d 545 (7th Cir.2003), petition for reh'g en banc denied, petition for cert. filed (U.S. Jan. 27, 2004) (No. 03-1085), that "[section] 1252(a)(2)(B)(ii) is not limited to discretionary decisions made within the context of removal proceedings." Id. at 549. We also hold that the revocation of a previously approved visa petition under 8 U.S.C. § 1155 is a discretionary decision, precluded from judicial review pursuant to § 1252(a)(2)(B)(ii). We affirm.

I. BACKGROUND

Hani El-Khader, an alien with Jordanian citizenship, legally entered the United States on December 27, 1988, on a non-immigrant student visa. In anticipation of his student visa's expiration upon the completion of his formal education in the United States, El-Khader filed a petition in 1991 requesting political asylum in the United States, which was denied, and in 1995 the INS proceeded to institute deportation proceedings.⁴ While these proceedings were pending, El-Khader filed for and was granted a non-immigrant worker visa, and he worked for the employer-sponsor of his visa, Amcore Financial, until December 1997.

On May 9, 1997, El-Khader married Nadia Muna, a United States citizen. According to El-Khader, irreconcilable personal conflicts between the couple led to their divorce on October 27, 1998. During the couple's brief marriage, El-Khader filed an application for adjustment of his immigration status to that of lawful permanent resident concurrent with his then-wife's filing of a Petition for Alien Relative. At the time the couple's husband and wife relationship was terminated by divorce, the INS denied El-Khader's adjustment status application as well as his former wife's pending visa petition.

On April 1, 1998, Ameritrust Mortgage Corporation, El-Khader's prospective employer, filed an Immigrant Petition for Alien Worker classification on El-Khader's behalf and sought permanent resident status for him pursuant to the INA.⁵ On August 18, 1998, the INS approved Ameritrust's petition on behalf of El-Khader. Shortly thereafter, on September 17, 1998, El-Khader filed a new application for permanent resident status, which was premised on the INS's recent acceptance of Ameritrust's approved visa petition for El-Khader's alien worker classification.

In order to process this application, the INS commenced an investigation of El-Khader to assess whether he was qualified for a permanent resident visa. When undertaking this investigation, the agency looked into El-Khader's marriage with Nadia Muna and discovered some problems — namely, that he never cohabited with his former wife, and, thus, they never consummated their marriage, and, further, that they possessed no joint, marital assets. Relying on this information, the INS concluded that El-Khader's marriage to Muna was a sham, undertaken for the purpose of evading immigration laws. See 8 U.S.C. § 1154(c). Accordingly, on December 5, 2001, the INS informed Ameritrust of its intent to revoke the approved Immigrant Petition for Alien Worker, stating that, "[a]ccording to the Service's investigation, the marriage between Mr. El-Khader and Ms. Muna was a sham and was entered into for the purpose of procuring an immigration benefit." (R.1.) On May 14, 2002, Ameritrust and El-Khader responded to the INS's notice of its intent to revoke his visa petition, arguing that his marriage was legitimate. El-Khader maintained that, as an arranged marriage under the Islamic faith, it was perfectly proper for the consummation of his marriage to be delayed and for him not to live immediately with his wife. Furthermore, he argued that the marriage was genuine and that his wife was not pressured into filing the immigration petition on his behalf. He offered affidavits from himself, his former wife's parents, his friends, and experts on the Islamic religion testifying to this effect, although no affidavit was presented from his former wife.

On November 1, 2002, the INS issued a decision formally revoking El-Khader's previously approved worker's visa because, based on its review of all the evidence submitted, it found that the plaintiff failed to establish a bona fide commitment to his wife during the entire course of their marriage. In particular, the INS noted that "[e]ven though the marriage was an arranged marriage, Mr. El-Khader failed to establish any commitment to his marital union other than filing for adjustment of status." (R.16.) That same day, the INS also denied his accompanying adjustment of status application on the basis that, once his worker's visa petition was revoked, there existed no basis upon which to adjust his status. The INS's authority to revoke the plaintiff's approved visa petition resides in 8 U.S.C. § 1155, which states that "[t]he Attorney General may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 1154 of this title" (emphasis added), including visa petitions provided for under 8 U.S.C. § 1154(b).

El-Khader was prepared for this adverse decision. On the same day that the INS revoked Ameritrust's visa petition and denied El-Khader's adjustment of status petition, he filed a Third Amended Complaint in the district court⁶ and, thus, decided to forego any administrative appeal of the INS's decision. His complaint sought reversal of the INS's revocation of his approved visa petition. He claimed that the decision was not based on substantial evidence, was arbitrary and capricious, and was otherwise not in accordance with the law. In response, the INS filed a motion to dismiss the complaint based upon, among other reasons, (1) the fact that, pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), the district court lacked jurisdiction to review the Attorney General's decision to revoke an approved visa petition, and (2) the plaintiff's failure to exhaust administrative remedies prior to seeking judicial review.

On April 1, 2003, the district court granted the INS motion to dismiss after determining that § 1252(a)(2)(B)(ii) deprived it of subject matter jurisdiction over El-Khader's claim. The court based this ruling on its conclusions that this provision is not limited to the context of removal and deportation proceedings and that the INS's decision to revoke a visa petition is a discretionary decision. On April 30, 2003, the plaintiff filed a notice of appeal, seeking review of the INS's decision under the Administrative Procedure Act, 5 U.S.C. § 706.

II. ANALYSIS

El-Khader challenges the district court's dismissal, arguing that 8 U.S.C. § 1252(a)(2)(B)(ii) applies only in the context of removal and deportation determinations and, in the alternative, that the decision to revoke a previously approved visa petition is not a discretionary decision when the basis for that decision is a finding that a marriage fraud has occurred. In addition, he asserts that jurisdiction was proper in the district court because he exhausted all of his mandatory administrative remedies prior to seeking judicial review. We have appellate jurisdiction under 28 U.S.C. § 1291 and review de novo the district court's dismissal for want of subject matter jurisdiction. Fedorca v. Perryman, 197 F.3d 236, 239 (7th Cir.1999); see also Samirah v. O'Connell, 335 F.3d 545, 548 (7th Cir.2003); Iddir v. INS, 301 F.3d 492, 496 (7th Cir.2002).

Initially, we turn to the issue of whether the district court properly granted the INS's motion to dismiss El-Khader's complaint on the basis that the court was without subject matter jurisdiction over the claim. The district court based its decision on its interpretation of 8 U.S.C. § 1252(a)(2)(B)(ii), which provides:

Notwithstanding any other provision of law, no court shall have jurisdiction to review ... any ... decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of [asylum].

In El-Khader's initial brief with the Court, he advanced the argument that § 1252(a)(2)(B)(ii) applies only in the context of removal and deportation determinations and does not preclude judicial review of the INS's decision to revoke a visa petition. After the filing of El-Khader's initial brief, this Circuit decided Samirah v. O'Connell, 335 F.3d 545 (7th Cir.2003), which addressed this precise argument raised by El-Khader regarding § 1252(a)(2)(B)(ii)'s scope. Id. at 548.

Samirah involved an alien who filed a habeas corpus petition seeking district court review of the INS's decision to revoke his advance parole pursuant to section 212(d)(5) of the INA, 8...