Poursina v. U.S. Citizenship & Immigration Servs.

• Citation: 936 F.3d 868
• Decision Date: 28 August 2019
• Docket Number: No. 17-16579,17-16579
• Parties: Mohammad POURSINA, Plaintiff-Appellant, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; David Roark, Director, Texas Service Center, United States Citizenship and Immigration Services; James McCament, Acting Director, United States Citizenship and Immigration Services; Ron Rosenberg, Chief, Administrative Appeals Office, United States Citizenship and Immigration Services, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

936 F.3d 868

Mohammad POURSINA, Plaintiff-Appellant,

v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; David Roark, Director, Texas Service Center, United States Citizenship and Immigration Services; James McCament, Acting Director, United States Citizenship and Immigration Services; Ron Rosenberg, Chief, Administrative Appeals Office, United States Citizenship and Immigration Services, Defendants-Appellees.

No. 17-16579

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2019, San Francisco, California

Filed August 28, 2019

Stacy Tolchin (argued) and Megan Brewer, Law Offices of Stacy Tolchin, Los Angeles, California, for Plaintiff-Appellant.

Yamileth G. Davila (argued) and Glenn Girdharry, Assistant Directors; William C. Peachey, Director, District Court Section; Office of Immigration Litigation, Civil Division, United States Department of Justice; Washington, D.C., for Defendants-Appellees.

Before: Mary M. Schroeder, Diarmuid F. O’Scannlain, and Johnnie B. Rawlinson, Circuit Judges.

O’SCANNLAIN, Circuit Judge:

We must decide whether federal courts may review the denial of a "national-interest waiver" by the United States Citizenship and Immigration Services to an Iranian citizen with advanced engineering degrees who sought a permanent visa.

I

A

Mohammad Poursina is an Iranian citizen with two degrees in mechanical engineering from the University of Tehran. In 2006, he entered the United States on a student visa to continue his studies at the Rensselaer Polytechnic Institute in Troy, New York. Between 2006 and 2011, Poursina’s student status authorized him to live and to work in the United States, but his authorization lapsed after he earned his doctoral degree. Thus, in June 2012, Poursina asked the United States Citizenship and Immigration Services ("USCIS") to grant him a permanent employment-based visa under 8 U.S.C. § 1153(b)(2).

Pursuant to such provision, USCIS may grant work visas to immigrants holding "advanced degrees" or to those with "exceptional ability in the sciences, arts, or business."¹ 8 U.S.C. § 1153(b)(2)(A). Generally, an immigrant seeking a work visa must show that his "services ... are sought by an employer in the United States." Id. To do so, he must obtain a "labor certification" from the United States Department of Labor. See 8 U.S.C. § 1182(a)(5)(A), (D) ; 8 C.F.R. § 204.5(k)(4).

But there is an exception to the labor-certification requirement: "[USCIS] may, when [USCIS] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien’s services ... be sought by an employer in the United States." 8 U.S.C. § 1153(b)(2)(B). No statute defines when such a "national-interest waiver" should be granted, but USCIS has issued "precedent[ial] decision[s] establishing a framework for evaluating national interest waiver petitions." In re Dhanasar , 26 I. & N. Dec. 884, 886 (USCIS AAO 2016) (citing In re N.Y. State Dep’t of Transp. (NYSDOT ), 22 I. & N. Dec. 215 (BIA 1998), overruled by Dhanasar , 26 I & N. Dec. at 884 ).

Poursina could not show that an employer sought his services, so he requested a national-interest waiver when he submitted his 2012 visa application. In 2014, USCIS denied his request, and Poursina then appealed to USCIS’s Administrative Appeals Office ("AAO"). The AAO concluded that the "evidence submitted" did not "establish[ ] that a waiver of the requirement of an approved labor certification w[ould] be in the national interest of the United States." The AAO therefore dismissed Poursina’s appeal.

B

Poursina then brought this suit in the District of Arizona challenging USCIS’s denial of his petition. He alleged that USCIS’s refusal to grant a national-interest waiver violated the Immigration and Nationality Act ("INA"), violated the agency’s own regulations and precedential decisions, and was arbitrary and capricious under the Administrative Procedure Act ("APA"). Poursina therefore asked the district court to order USCIS either to reconsider its refusal or to grant him an employment-based visa.

The district court dismissed Poursina’s claims for lack of subject-matter jurisdiction, reasoning that 8 U.S.C. § 1252(a)(2)(B)(ii) barred review. Such provision precludes federal courts from reviewing certain decisions "the authority for which is specified ... to be in the discretion of the Attorney General or the Secretary of Homeland Security." 8 U.S.C. § 1252(a)(2)(B)(ii). Citing our unpublished decision in Sodipo v. Rosenberg , the district court concluded that USCIS’s decision to deny a national-interest waiver was a discretionary decision that the court lacked jurisdiction to review. 679 F. App'x 633, 633–34 (9th Cir. 2017) (holding that a decision to deny a national-interest waiver falls under § 1252(a)(2)(B)(ii) ).

Poursina timely appealed.

II

Poursina contends that the district court erred in concluding that it lacked jurisdiction to consider his claim. He argues that 28 U.S.C. § 1331 —the general federal-question jurisdictional statute—allows the district court to consider his APA challenge to USCIS’s denial of his request for a national-interest waiver. By contrast, the government urges that § 1252(a)(2)(B)(ii) strips the district court of jurisdiction to consider Poursina’s claims. It argues that USCIS’s refusal to issue a national-interest waiver is "specified" by statute to be in its "discretion."

A

Presented with these competing claims, it falls to us to decide whether the decision to grant (or to refuse) a national-interest waiver comes within § 1252(a)(2)(B)(ii) ’s jurisdictional bar. The Supreme Court has instructed that such jurisdictional statutes must be "construed both with precision and with fidelity to the terms by which Congress has expressed its wishes." Kucana v. Holder , 558 U.S. 233, 252, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (quoting Cheng Fan Kwok v. INS , 392 U.S. 206, 212, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968) ). At the same time, challenges to administrative action enjoy a "presumption favoring judicial review," which applies with particular force to "questions concerning the preservation of federal-court jurisdiction." Id . at 251, 130 S.Ct. 827. These background principles inform our analysis here.

We begin with the text of § 1252(a)(2)(B)(ii) ’s jurisdictional bar:

[R]egardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review ... any other 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 ....

8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). By its own terms, such provision "refers not to ‘discretionary decisions,’ ... but to acts the authority for which is specified under the INA to be discretionary." Spencer Enters., Inc. v. United States , 345 F.3d 683, 689 (9th Cir. 2003). Given such text, our cases hold that the provision precludes review only if a congressional statute—codified in the relevant subchapter, see 8 U.S.C. §§ 1151 – 1382 —vests the government with authority to make a discretionary decision. See ANA Int’l, Inc. v. Way , 393 F.3d 886, 891–93 (9th Cir. 2004) (" ANA International "); Spencer Enters. , 345 F.3d at 689–91. Stated differently, it is not enough that a decision is discretionary, as with non-enforcement decisions under background rules of administrative law, see, e.g. , Heckler v. Chaney , 470 U.S. 821, 832–33, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) ; instead, Congress must state that the government has such discretion. See Soltane v. U.S. Dept. of Justice , 381 F.3d 143, 146 (3rd Cir. 2004) (Alito, J.) ("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.").

Here, Congress has "specified" that the issuance of national-interest waivers is "discretionary." Once again, the statute states that "the Attorney General may , when the Attorney General deems it to be in the national interest, waive the requirement[ ] ... that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States." 8 U.S.C. § 1153(b)(2)(B)(i) (emphasis added). Congress’s use of "may"—rather than "must" or "shall"—brings along the usual presumption of discretion. See Jama v. Immigration & Customs Enf’t , 543 U.S. 335, 346, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005). Indeed, subsection (B)(i)’s use of "may" contrasts with subsection (B)(ii), which delineates cases in which the Attorney General "shall grant a national interest waiver." 8 U.S.C. § 1153(a)(2)(B)(ii)(I) (emphasis added).

Further, the statute’s instruction that the waiver should issue only if the Attorney General "deems it to be in the national interest" reinforces its discretionary nature. Congress’s use of "deems" connotes that the Attorney General’s determination involves some measure of judgment. And the invocation of the "national interest" is a core example of a consideration that lacks a judicially manageable standard of review. Thus, in Webster v. Doe , the Supreme Court concluded that an analogous provision "fairly exude[d] deference" to the Executive Branch. 486 U.S. 592, 600, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (discussing a statute that provided that "the Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States")).

Indeed, the D.C. Circuit has already concluded that review of "a decision to deny a waiver of the labor certification requirement [is] barred by § 1252(a)(2)(B)(ii)." Zhu v. Gonzales , 411 F.3d 292, 294 (D.C. Cir. 2005). Parsing § 1153(b)(2)(B)(i) ’s text, the D.C. Circuit reasoned that Congress’s use of " ‘national interest’ ... calls upon [the Attorney General’s]...