447 F.3d 196 (3rd Cir. 2006), 05-2788, Jilin Pharmaceutical USA, Inc. v. Chertoff

Docket Nº:05-2788.
Citation:447 F.3d 196
Party Name:JILIN PHARMACEUTICAL USA, INC.; Wei Zhao, (File # : A76 104 871) Appellants v. Michael CHERTOFF, Secretary of the United States Department of Homeland Security; [*] Alberto Gonzales, Attorney General of the United States, U.S. Department of Justice; [**] Eduardo Aguirre, Jr., Director of the United States Citizenship and Immigration Services; Unite
Case Date:May 10, 2006
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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447 F.3d 196 (3rd Cir. 2006)

JILIN PHARMACEUTICAL USA, INC.; Wei Zhao, (File # : A76 104 871) Appellants

v.

Michael CHERTOFF, Secretary of the United States Department of Homeland Security; [*] Alberto Gonzales, Attorney General of the United States, U.S. Department of Justice; [**] Eduardo Aguirre, Jr., Director of the United States Citizenship and Immigration Services; United States Citizenship and Immigration Services, Bureau of Department of Homeland Security; United States of America.

No. 05-2788.

United States Court of Appeals, Third Circuit.

May 10, 2006

Argued April 3, 2006.

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 04-cv-05678) District Judge: Honorable Faith S. Hochberg

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Isaac Fromm, Martin L. Rothstein, (Argued), Barst & Mukamal, LLP, New York, New York, for Appellants.

Pamela Perron, Office of United States Attorney, Newark, NJ, David V. Bernal, Barry J. Pettinato, (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Appellee.

Before RENDELL, SMITH, and ALDISERT, Circuit Judges.

OPINION

ALDISERT, Circuit Judge.

In Soltane v. United States Department of Justice, 381 F.3d 143 (3d Cir. 2004), we construed the statute governing the denial of a visa application, 8 U.S.C. § 1153(b)(4), and held that 8 U.S.C. § 1252(a)(2)(B)(ii) did not strip the district court of jurisdiction to review this administrative decision. This appeal by Jilin Pharmaceutical USA, Inc. ("Jilin USA") and Wei Zhao from an order of the District Court for the District of New Jersey dismissing their complaint for lack of subject matter jurisdiction does not involve a denial of a visa application, but rather a revocation of a visa already granted. This requires us to compare the language of the separate statutes dealing with visa denial and revocation, and, having done so, we conclude that a distinction exists between the two statutes in the quanta of discretion conferred upon the Secretary of Homeland Security. Accordingly, we will affirm the order of the District Court holding that we lack jurisdiction to review this discretionary determination. We will affirm also the Court's determination that it lacked jurisdiction to hear Appellants' Fifth Amendment due process claims.

I.

Appellant Wei Zhao is a native and citizen of the People's Republic of China. Appellant Jilin USA, which was incorporated in 1996 in the state of New Jersey, is a wholly owned United States subsidiary of Jilin Ltd. In 1996, Jilin Ltd. transferred

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Zhao, who was manager of the company's import and export division, from China to the United States to serve as president and chief executive officer of Jilin USA. On July 26, 1996, in accordance with this plan, Jilin USA filed an employment-based non-immigrant petition, Form I-129, on behalf of Zhao to classify him as an L-1A non-immigrant intracompany transferee. The supporting documentation asserted that Zhao was an executive employee of Jilin Ltd. and that he was transferring to Jilin USA in an executive and managerial capacity, as defined at 8 U.S.C. § 1101(a)(44)(A) & (B). The Immigration and Naturalization Service ("INS")1approved this request on October 29, 1996, granting Zhao L-1A status until October 28, 1997. On November 5, 1997, the INS approved a petition to extend Zhao's L-1A status until October 28, 1999.

Following approval of this second petition, on August 29, 1998, Jilin USA filed a Form I-140 Immigrant Petition for Alien Worker on behalf of Zhao and sought to classify Zhao under the E-1-3 visa category, which permits executive and managerial intracompany transferees to become permanent residents of the United States under 8 U.S.C. § 1153(b)(1)(C). On December 16, 1998, the INS approved the petition and granted the visa. Upon that approval of the Form I-140, on July 7, 1999, Zhao and his immediate family filed Form I-485 applications for adjustment of status from non-immigrant to that of lawful permanent resident.

On September 13, 2000, the INS notified Jilin USA and Zhao that it intended to revoke its prior approval of the Form I-140 visa petition. The INS was unconvinced that Zhao had been and would be employed in a primarily executive or managerial capacity. On April 5, 2001, the INS revoked Zhao's visa, noting that Jilin USA and Zhao had provided only a vague description of his job and had not established that he worked in an executive or managerial capacity.

Jilin USA appealed to the Office of Administrative Appeals ("OAA") and submitted a more detailed description of Zhao's duties. On January 30, 2003, holding that the "record contains insufficient evidence to demonstrate that [Zhao] has been employed in a primarily managerial or executive capacity," the OAA affirmed the visa revocation and dismissed the appeal. The OAA subsequently denied Jilin and Zhao's motion to reopen on August 24, 2004.2

On November 15, 2004, Jilin USA and Zhao filed a complaint for mandatory and declaratory relief in the United States District Court for the District of New Jersey. The complaint "challenge[d] the legally incorrect and unjustifiable" revocation of the approval of Zhao's visa petition. Concerned about its jurisdiction, the District Court ordered the parties to file briefs detailing the statutory provision giving rise to federal court jurisdiction to review the administrative decision to revoke Zhao's visa. Both parties submitted timely responses.3

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Holding that it was "barred from asserting jurisdiction over visa revocations at the discretion of the Attorney General even when the visa holder is already in the United States," the District Court dismissed the complaint on February 25, 2005, for lack of subject matter jurisdiction. In making this determination, the District Court observed that this was a matter of first impression in this Circuit and accepted the analysis and conclusion of the Court of Appeals for the Seventh Circuit's opinion in El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004) (holding that § 1252(a)(2)(B)(ii) precludes judicial review of the revocation of a visa petition under § 1155).

Arguing that the Court had committed a clear error of law, that the controlling law had changed, and that a manifest injustice would result if the February 25 decision were not reversed, Jilin USA and Zhao filed a motion for reargument with the District Court on March 7, 2005. The primary focus in their motion was the Court of Appeals for the Ninth Circuit's opinion in ANA International, Inc. v. Way, 393 F.3d 886 (9th Cir. 2004), in which the court rejected the Seventh Circuit's logic and held that § 1252(a)(2)(B)(ii) does not deny jurisdiction to review a revocation decision made pursuant to § 1155. The District Court rejected the motion on May 11, 2005, concluding that El-Khader was more persuasive than the analysis of ANA International. This appeal followed.4

II.

When analyzing our jurisdiction to review the administrative decision to revoke a visa, the starting point for our discussion is found in the text of 8 U.S.C. § 1252(a)(2)(B)(ii). Therein, Congress has dictated that no court shall have jurisdiction to review:

any . . . decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a).

8 U.S.C. § 1252(a)(2)(B)(ii).5 By its terms it therefore becomes necessary always to e

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examine "the authority for which is specified," that is to say, the statute setting forth the nature of the administrative discretion granted.

A.

We now must compare the statute that was before this Court in Soltane with the one governing the case at bar. In Soltane, the government contended that the following provision deprived the district court of jurisdiction to review the denial of a visa:

Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified special immigrants described in [8 U.S.C. § 1101(a)(27)] . . . of which not more than 5,000 may be made available in any fiscal year to special immigrants described in subclause (II) or (III) of [8 U.S.C. § 1101(a)(27)(C)(ii)(II) or (III)], and not more than 100 may be made available in any fiscal year to special immigrants, excluding spouses and children, who are described in [8 U.S.C. § 1101(a)(27)(M)].

8 U.S.C. § 1153(b)(4) (emphasis added). We held that this language was not specific enough to vest unreviewable discretion in the Attorney General.

We concluded that the "key to § 1252(a)(2)(B)(ii) lies in its requirement that the discretion giving rise to the jurisdictional bar must be 'specified' by statute," and that whether such a specification has been made is determined "by examining the statute as a whole." Id. at 146-147 (emphasis added). We cautioned, however, that "the use of marginally ambiguous statutory language, without more, is [inadequate] to 'specif[y]' that a particular action is within the Attorney General's discretion for the purposes of § 1252(a)(2)(B)(ii)." Id. at 147. That an agency has "discretion" under Chevron to interpret the statute it administers does not mean courts lack jurisdiction to review its interpretations. Id. at 148. Such "ubiquitous" discretion was not what Congress intended by § 1252(a)(2)(B)(ii). Id. Indeed, if the term "discretion" were construed too broadly, "it is hard to imagine any action by the Attorney General under the relevant title that would not be deemed discretionary." Id. at 148 n.3.

B.

We now turn to the discretion-vesting statute governing the revocation of a visa. It is found in 8 U.S.C. § 1155:

The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition...

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