393 F.3d 886 (9th Cir. 2004), 03-35130, Ana Intern., Inc. v. Way

Docket Nº:03-35130.
Citation:393 F.3d 886
Party Name:ANA INTERNATIONAL INC., an Oregon corporation; Honggang Yu, an individual, Plaintiffs-Appellants, v. Terry E. WAY, Nebraska Service Center Regional Director, United States Immigration and Naturalization Service, Portland, Oregon; James Ziglar, United States Immigration and Naturalization Service Commissioner; John Ashcroft, Attorney General, Defend
Case Date:December 16, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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393 F.3d 886 (9th Cir. 2004)

ANA INTERNATIONAL INC., an Oregon corporation; Honggang Yu, an individual, Plaintiffs-Appellants,

v.

Terry E. WAY, Nebraska Service Center Regional Director, United States Immigration and Naturalization Service, Portland, Oregon; James Ziglar, United States Immigration and Naturalization Service Commissioner; John Ashcroft, Attorney General, Defendants-Appellees.

No. 03-35130.

United States Court of Appeals, Ninth Circuit

December 16, 2004

Argued and Submitted July 13, 2004

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[Copyrighted Material Omitted]

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Baolin Chen, Chen & Mu, Portland, OR, for the plaintiffs-appellants.

Jacqueline R. Dryden (Argued), Peter D. Keisler, Margaret J. Perry (On the Briefs) Office of Immigration Litigation, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Anna J. Brown, District Judge, Presiding. D.C. No. CV-02-00479-BR.

Before: GOODWIN, FLETCHER, and TALLMAN, Circuit Judges.

GOODWIN, Circuit Judge:

This appeal presents the question whether the Attorney General's decision to revoke a visa pursuant to 8 U.S.C. § 1155 is barred from judicial review by a jurisdiction-stripping provision added to the Immigration and Nationality Act ("INA") by the Illegal Immigration Reform and

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Immigrant Responsibility Act ("IIRIRA") and codified at 8 U.S.C. § 1252(a) (2) (B) (ii). We hold that the statute does not bar judicial review of a visa revocation decision authorized by § 1155. We therefore reverse the district court's dismissal of this case for want of jurisdiction and remand for a decision whether the Attorney General's order to revoke the petitioner's visa was supported by substantial evidence.

I. FACTS AND ADMINISTRATIVE HISTORY

Honggang Yu ("Yu") is a citizen of China who currently resides in the United States. Yu was a senior executive with Anshan AEC Group Corporation ("Anshan") when he entered the United States legally on a non-immigrant business visitor visa in June 1994. Yu's purpose in coming to the United States was to investigate business opportunities for Anshan.1

As a result of Yu's investigations, Anshan decided to expand its operations to the United States in April 1995. To this end, Yu incorporated ANA in Oregon as a wholly owned subsidiary of Anshan. ANA's primary business is importing and exporting electronic and magnetic materials.

In May 1995, ANA filed a non-immigrant L1-A visa petition with the Immigration and Naturalization Service ("INS"),2 seeking approval for Yu's stay as a "new office intracompany multinational executive or manager transferee." See 8 U.S.C. § 1101(a) (15) (L) (establishing this visa category); 8 C.F.R. § 214.2(l) (2003) (regulations for admission within the category). The INS approved Yu's L-1A petition on June 10, 1995. On May 28, 1996, ANA applied to extend Yu's L-1A visa. The INS approved the application and extended the visa for two years, until June 10, 1998. On March 27, 1997, ANA filed an I-140 visa petition--an "Immigrant Worker" petition--on Yu's behalf. ANA requested that Yu, as President of ANA, be classified as a multinational executive or manager under 8 U.S.C. §§ 1101(a) (44) and 1153(b) (1) (C). The INS approved this petition on July 31, 1997.

On December 31, 1997, Yu--seeking his "green card"--filed an I-485 application to adjust his status to lawful permanent resident. After a lengthy delay, the INS notified Yu and ANA on March 13, 2001 that it intended to revoke its previous approval of the I-140 petition. The notice of intent to revoke stated that "[t]he record contains insufficient evidence to demonstrate that the beneficiary will be employed in a primarily managerial capacity." ANA responded with rebuttal documents. On April 26, 2001, the INS nevertheless affirmed its decision to revoke its prior approval of the I-140 petition, stating that "it appears that the beneficiary will be involved in the performance of routine operational activities of the company rather than in the management of a function of the business."

ANA appealed to the Administrative Appeals Unit ("AAU") of the INS. The AAU upheld the adjudication officer's determination that ANA had failed to establish

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that Yu was to be employed in a primarily managerial or executive capacity as defined in 8 U.S.C. § 1101(a) (44). The AAU also stated that there was no evidence that Yu had been employed in a managerial or executive capacity for at least one year prior to his entry into the United States, as required by 8 C.F.R § 204.5(j) (3) (i) (B), and that there was conflicting evidence about whether ANA was genuinely a 100-percent owned subsidiary of a Chinese company, as required by 8 C.F.R. § 204.5(j) (3) (i) (C).

Yu and ANA filed the present action in district court, challenging the AAU's final revocation decision as unsupported by substantial evidence. The government argued that the district court lacked subject matter jurisdiction on the grounds that the revocation decision is committed to agency discretion under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701(a) (2), and that, in the alternative, review was barred by 8 U.S.C. § 1252(a) (2) (B) (ii).

The district court agreed that 8 U.S.C. § 1252(a) (2) (B) (ii) precluded judicial review and dismissed the action in a published opinion. ANA Int'l, Inc. v. Way, 242 F.Supp.2d 906 (D.Or.2002). Yu and ANA timely appeal. Whether we have jurisdiction is a question of law that we review de novo. See Luong v. Circuit City Stores, Inc., 368 F.3d 1109, 1111 n. 2 (9th Cir. 2004).

II. DISCUSSION

The default rule is that agency actions are reviewable under federal question jurisdiction, pursuant to 28 U.S.C. 17049 § 1331 and reinforced by the enactment of the Administrative Procedure Act ("APA"), even if no statute specifically authorizes judicial review. Reno v. Catholic Soc. Serv., Inc., 509 U.S. 43, 56-57, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). This general rule applies in the post-IIRIRA immigration context. See Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 687-88 (9th Cir. 2003).

The government raises two considerations in support of its contention that the default rule does not apply here and that the district court lacks jurisdiction to review the Attorney General's decision to revoke a visa. First, the government argues that the Attorney General's decision is unreviewable because it is "committed to agency discretion by law" within the meaning of the APA. 5 U.S.C. § 701(a) (2). Second, the government argues that judicial review of the Attorney General's decision is precluded by 8 U.S.C. § 1252(a) (2) (B) (ii), which provides in relevant part that "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[.]"

Because the jurisdiction-stripping provision of IIRIRA that is at issue supersedes the jurisdiction-limiting provision in the APA, we decline to reach the question whether the APA precludes judicial review of visa revocation decisions. The operation of § 701(a) (2) of the APA is narrowly limited to "rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply." Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (internal quotations omitted) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). Moreover, the applicable law may be derived from agency practice, unlike under the IIRIRA rule, thereby narrowing the class of disputes rendered unreviewable. See Spencer, 345 F.3d at 691. Thus, any decision that is precluded from review by § 701(a) (2) of the APA is also precluded from review by the more powerful

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jurisdiction-stripping provision of IIRIRA. Conversely, any determination that passes the more stringent IIRIRA test, remaining subject to judicial review, also passes the lower bar of the APA test. As a result, we need analyze only the operation of IIRIRA rule.

A. Applicability of § 1252(a) (2) (B) (ii)

The ultimate question presented is whether the jurisdiction-stripping power of § 1252(a) (2) (B) (ii) is triggered. We assume for the purposes of this case the applicability of the provision, i.e., we assume that we must pose and answer the question at the heart of § 1252(a) (2) (B) (ii): is the authority for the visa revocation decision specified by the statute to be "in the discretion of the Attorney General"? The Ninth Circuit has never squarely decided whether § 1252(a) (2) (B) (ii) in fact applies outside the context of removal proceedings, and other circuits do not agree whether the section applies to visa revocation.3 We also decline to resolve that question here, because our holding that visa revocation decisions are not specified by the statute to be in the discretion of the Attorney General under the meaning of § 1252(a) (2) (B) (ii) is sufficient to decide the case.

B. Background Interpretive Principle

Our analysis is informed by the interpretive principle that there is a "strong presumption in favor of judicial review of administrative action" governing the construction of jurisdiction-stripping provisions of IIRIRA, as articulated by INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Even where the ultimate result is to limit judicial review, the Court cautions that as a matter of the interpretive enterprise itself, the narrower construction of a jurisdiction-stripping provision is favored over the broader one. See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 480-482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (rejecting the Ninth...

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