Abdelwahab v. Frazier

• Decision Date: 26 August 2009
• Docket Number: No. 08-1078.,08-1078.
• Citation: 578 F.3d 817
• Parties: Walid El-Baz ABDELWAHAB; Alice Abdelwahab, Plaintiffs-Appellants, v. Denise FRAZIER, District Director, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

578 F.3d 817

Walid El-Baz ABDELWAHAB; Alice Abdelwahab, Plaintiffs-Appellants, v. Denise FRAZIER, District Director, et al., Defendants-Appellees.

No. 08-1078.

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2009.

Filed: August 26, 2009.

Herbert Igbanugo, argued, Dyan Williams, on the brief, Minneapolis, MN, for appellant.

Samuel P. Go, USDOJ, argued, Washington, DC, Robyn A. Millenacker, AUSA, on the brief, Minneapolis, MN, for appellee.

Before LOKEN, Chief Judge, EBEL^* and CLEVENGER,^** Circuit Judges.

LOKEN, Chief Judge.

This immigration case illustrates how complex laws and procedures and the overlapping jurisdiction of multiple agency offices can result in unfortunate delays in resolving issues of great importance to individual petitioners. In the midst of protracted agency proceedings, petitioners Walid El-Baz Abdelwahab, a citizen of Egypt, and his wife Alice, a U.S. citizen, brought this action seeking an order compelling officials of the Department of Homeland Security (DHS) to approve Alice's Form I-130 spousal immigrant visa petition, then pending on appeal, and to set aside the agency's revocation of a previously approved Form I-140 immigrant worker visa petition. When the district court¹ heard argument on the government's motion to dismiss and Abdelwahab's motion for declaratory relief, the I-130 petition had been granted and a hearing was scheduled before the immigration judge (IJ) presiding over pending removal proceedings. The district court dismissed the action, concluding the I-130 issue was moot and the relief requested regarding the still-revoked I-140 petition, though not moot, was beyond the court's jurisdiction. The Abdelwahabs appeal. With the appeal pending, the United States Customs and Immigration Services (USCIS) reinstated the I-140 approval, and the IJ then granted Abdelwahab adjustment of status. We affirm.

I.

Abdelwahab entered the United States in mid-1997. He married Alice six months later, and she filed a Form I-130 petition in early 1998. The St. Paul District Office of USCIS² denied the petition, finding that the couple married for the purpose of evading the immigration laws. DHS then commenced removal proceedings in early 2003 because Abdelwahab had remained in the United States longer than his nonimmigrant visa permitted. See 8 U.S.C. § 1227(a)(1)(B). Four months later, a Minnesota restaurant filed a Form I-140 employment-based petition on Abdelwahab's behalf with USCIS's Nebraska Service Center. That office approved the I-140 petition in January 2004, unaware that Mrs. Abdelwahab's Form I-130 petition had been denied on account of marriage fraud.³ Abdelwahab then filed a petition for adjustment of status in the removal proceeding, based on the I-140 approval.

In July 2004, the St. Paul District Office notified Abdelwahab's employer of its intent to exercise discretion under 8 U.S.C. § 1155 to revoke the I-140 approval on account of marriage fraud. However, the IJ denied DHS's motion to continue the removal proceeding and granted Abdelwahab adjustment of status. See 8 U.S.C. § 1255. DHS revoked the I-140 approval and appealed the IJ's decision to the Board of Immigration Appeals (BIA). Meanwhile, in August 2004, the BIA dismissed Abdelwahab's separate administrative appeal from the I-130 denial because no appeal issues had been identified with the notice of appeal. In September 2005, the BIA vacated the IJ's grant of adjustment of status, based upon the I-140 revocation. The BIA denied a motion to reopen the I-130 appeal and remanded for consideration of additional relief "including voluntary departure."

The Abdelwahabs filed this action in district court in July 2006, challenging DHS's denial of the I-130 petition and revocation of the I-140 approval. In May 2007, responding to a motion filed by DHS, the BIA in an opinion sharply critical of DHS's handling of the I-130 petition vacated its order dismissing the I-130 appeal and remanded for de novo consideration of the I-130 petition. The St. Paul District Office approved the I-130 petition on remand. At that point, the parties' dispositive cross motions were argued before the district court, six weeks before a scheduled hearing before the IJ in the related but distinct removal proceeding.

The Abdelwahabs argued to the district court that USCIS incorrectly denied the I-130 petition, and that its St. Paul District Office acted ultra vires in revoking the I-140 approval when only the Nebraska Service Center had that authority under the applicable DHS regulations. Defendants argued that the I-130 claim was now moot and that 8 U.S.C. § 1252(a)(2)(B)(ii) stripped the court of jurisdiction to review the discretionary revocation of the I-140 approval. The district court granted defendants' motion to dismiss, concluding (i) that the I-130 claim was moot because, "whatever its flaws at whatever level, the 130 has been granted," and (ii) that the relief sought on the I-140 claim, though not moot, was beyond the court's jurisdiction for a variety of reasons. This appeal followed. With the appeal pending, USCIS reinstated its approval of the I-140 petition, and the IJ then granted adjustment of status.

II.

On appeal, the Abdelwahabs argue the district court erred in concluding that it lacked jurisdiction to review whether USCIS lawfully revoked its approval of the I-140 petition. Defendants argue the appeal is moot because the I-140 approval has been reinstated and Abdelwahab's status adjusted to lawful permanent resident. Abdelwahab replies that the issue is not moot because the I-140 approval was not reinstated nunc pro tunc, which means he must wait four more years before he is eligible to become a naturalized citizen. We put this mootness issue aside and turn to the merits of the district court's decision, reviewing its jurisdictional rulings on undisputed facts de novo. State ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1108 (8th Cir.), cert. denied, 527 U.S. 1039, 119 S.Ct. 2400, 144 L.Ed.2d 799 (1999) (standard of review).

In revoking the prior I-140 approval, USCIS exercised authority granted by 8 U.S.C. § 1155, which provides, "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 approved by him under section 1154 of this title." The parties briefed and argued the appeal as though it turns on two related jurisdictional issues—whether Congress in 8 U.S.C. § 1252(a)(2)(B)(ii) stripped federal courts of jurisdiction to review the agency's exercise of its § 1155 authority, and if so, whether the agency committed an error of law that Congress restored our jurisdiction to review in the later-enacted 8 U.S.C. § 1252(a)(2)(D).⁴ The district court decided these questions, but it based its dismissal of the action on other factors as well. We discuss them all.

1. Focusing on the plain language of § 1155—the Secretary "may" revoke an I-140 approval "at any time, for what he deems to be good and sufficient cause"— three circuits have held that § 1155 revocations are actions "specified [by statute] to be in the discretion of ... the Secretary" within the meaning of § 1252(a)(2)(B)(ii), and therefore not subject to judicial review. See Ghanem v. Upchurch, 481 F.3d 222, 224 (5th Cir. 2007); Jilin Pharmaceutical USA, Inc. v. Chertoff, 447 F.3d 196, 202-05 (3d Cir. 2006); El-Khader v. Monica, 366 F.3d 562, 567-68 (7th Cir.2004). But see ANA Int'l, Inc. v. Way, 393 F.3d 886, 891-95 (9th Cir.2004). Like the district court, we agree. See also Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir.2004).

Sidestepping this adverse precedent, the Abdelwahabs argue they raise an issue of law that courts have jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D)—whether the St. Paul District Office of USCIS acted ultra vires, and therefore beyond its discretion, because the Secretary's regulations granted exclusive authority to revoke I-140 approvals to DHS's Nebraska Service Center. The Second Circuit reviewed whether USCIS complied with a statutory notice requirement in Firstland International, Inc. v. INS, 377 F.3d 127 (2d Cir. 2004), so there is some support for the general principle.⁵ But the argument is flawed in this case.

First, § 1252(a)(2)(D) applies only to questions of law "raised upon a petition for review filed with an appropriate court of appeals." Thus, it does not grant jurisdiction to review questions of law in district court cases. See Hassan v. Chertoff, 543 F.3d 564, 566 (9th Cir.2008); Hamilton v. Gonzales, 485 F.3d 564, 568 (10th Cir.2007); Jilin, 447 F.3d at 206 n. 16. This does not end the inquiry because, even if § 1252(a)(2)(B) otherwise bars review of a discretionary act, we have jurisdiction to review a "predicate legal question that amounts to a nondiscretionary determination underlying the denial of relief." Ibrahimi v. Holder, 566 F.3d 758, 764 (8th Cir.2009) (quotation omitted). But the case on which the Abdelwahabs rely for their ultra vires contention, Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), reviewed whether the agency exceeded its statutory authority. Here, § 1155 gave the Secretary of Homeland Security express authority to revoke the approval of I-140 petitions, and the Secretary has discretion to delegate that authority within USCIS. See 6 U.S.C. § 271(b)(1); 8 C.F.R. § 205.2(a). Whether properly delegated authority was in fact exercised by the proper agency official, when the agency considers the action properly taken, looks like an issue beyond our jurisdiction under § 1252(a)(2)(B)(ii), not a "predicate legal question."⁶

Second, even if we may review the issue, the Abdelwahabs failed to establish that the St. Paul District Office had no authority to exercise the Secretary's discretion under the DHS regulations then in effect. The regulations provided that any USCIS officer "authorized to approve [an I-140] petition ... may revoke the approval of...