Bernardo ex rel. M & K Eng'g, Inc. v. Johnson

Citation814 F.3d 481
Decision Date29 January 2016
Docket NumberNo. 15–1177.,15–1177.
Parties Henry BERNARDO, on behalf of M & K ENGINEERING, INC.; Samuel Marinho Freitas; Ruth Lopes Freitas; Daniel Lopes Freitas; Graciane Lopes Freitas; Graziela Lopes Freitas, Plaintiffs, Appellants, v. Jeh C. JOHNSON, Secretary, United States Department of Homeland Security; Loretta Lynch, Attorney General; Alejandro Mayorkas, Director, United States Citizenship and Immigration Service; Gregory A. Richardson, Director, Texas Service Center; Ron Rosenberg, Acting Chief, Administrative Appeals Office, United States Citizenship and Immigration Service, Defendants, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Annelise Maia Jatoba de Araujo, with whom Araujo & Fisher, LLC was on brief, for appellants.

Aaron S. Goldsmith, Senior Litigation Counsel, District Court Section, Office of Immigration Litigation, United States District Court Section, Office of Immigration Litigation, and Jeffrey S. Robins, Assistant Director, District Court Section, Office of Immigration Litigation, were on brief, for appellees.

Before HOWARD, Chief Judge, LYNCH and LIPEZ, Circuit Judges.

LYNCH

, Circuit Judge.

This case raises a question of first impression in our circuit: whether 8 U.S.C. § 1252(a)(2)(B)(ii)

, which precludes judicial review of the Attorney General's and the Secretary of Homeland Security's discretionary decisions under Title 8, Chapter 12, Subchapter II, applies to the revocation of visa petition approvals under 8 U.S.C. § 1155. Taking the same view as most other circuits, we conclude that it does and so judicial review is precluded.

Title 8, section 1252 of the U.S.Code

precludes judicial review of discretionary decisions made by the Attorney General and the Secretary of Homeland Security under Title 8, Chapter 12, Subchapter II. 8 U.S.C. § 1252(a)(2)(B)(ii). Decisions made under that subchapter as to the revocation of previously approved visa petitions are made discretionary by statute. 8 U.S.C. § 1155. See Kucana v. Holder, 558 U.S. 233, 247, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (explaining that "Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General's discretionary authority in the statute"). Because this statute is a clear expression of Congressional intent, we, like seven other circuits, conclude that Congress has barred judicial review.

I.

We confine our discussion of the facts to those necessary to frame the issue on appeal.

On February 11, 2004, M & K Engineering, Inc. ("M & K"), through its owner and president Henry Bernardo, filed an Application for Employment Certification for Samuel Freitas to work as an Assistant Delivery Supervisor. After the Department of Labor granted the certification on October 11, 2006, M & K filed an I–140 Immigrant Petition for Alien Worker ("visa petition") for Freitas. The United States Citizenship and Immigration Services ("USCIS") initially approved the visa petition on March 13, 2007.1

On September 22, 2010, the Director of the USCIS Texas Service Center issued a Notice of Intent to Revoke ("NOIR") the approval of the visa petition. The NOIR alleged that M & K was "trying to circumvent Immigration Laws by committing Fraud" and requested additional information and documents. M & K submitted additional evidence in response. On November 15, 2010, the Director of the USCIS Texas Service Center issued a decision revoking the approval of the visa petition because "the evidence does not indicate that the beneficiary had met the minimum experience requirements prior to the filing of either labor certification; plus, the new evidence contradicts evidence already on the record." Bernardo, as owner of M & K, administratively appealed the revocation decision to the USCIS Administrative Appeals Office ("AAO") on December 3, 2010. On June 28, 2013, the AAO affirmed the revocation decision and dismissed the appeal.

In July 2013, Bernardo, as owner of M & K, filed a complaint with the Massachusetts federal district court challenging the revocation of the visa petition approval. On November 12, 2013, the AAO withdrew its decision and reopened the matter sua sponte. It requested additional evidence, which M & K provided. After considering the evidence, on February 28, 2014, the AAO dismissed the appeal, finding again that there were inconsistencies in the evidence, and that M & K had failed to prove that Freitas had the necessary work experience. On March 28, 2014, the government filed a motion to dismiss the district court proceeding for lack of jurisdiction. After briefing, on December 8, 2014, the district court issued a memorandum and order granting the government's motion and dismissing the case for lack of subject matter jurisdiction. Bernardo v. Napolitano, No. 13–11827, 2014 WL 6905107 (D.Mass. Dec. 8, 2014)

. This appeal followed.

II.

We review de novo a district court's order dismissing a case for lack of subject matter jurisdiction. McCloskey v. Mueller, 446 F.3d 262, 265–66 (1st Cir.2006)

. "In doing so, [we] accept [ ] the well-pleaded factual allegations of the plaintiff's complaint and indulge[ ] all reasonable inferences in the plaintiff's favor." Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12, 16 (1st Cir.2006).

Bernardo claims federal jurisdiction under, inter alia, § 702 of the Administrative Procedure Act ("APA"), which "confers a general cause of action upon persons ‘adversely affected or aggrieved by agency action within the meaning of a relevant statute.’ " Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984)

(quoting 5 U.S.C. § 702 ). However, § 701 of the APA "withdraws that cause of action to the extent the relevant statute ‘preclude[s] judicial review.’ " Id. (alteration in original) (quoting 5 U.S.C. § 701(a)(1)

). Such is the case before us.2

The relevant statute, 8 U.S.C. § 1252(a)(2)(B)(ii)

, removes judicial review of the Attorney General's and the Secretary of Homeland Security's discretionary decisions made under Title 8, Chapter 12, Subchapter II of the U.S.Code:3

Notwithstanding any other provision of law (statutory or nonstatutory) ... 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, other than the granting of relief under section 1158(a) of this title.

8 U.S.C. § 1252(a)(2)(B)(ii)

(emphasis added).

The unambiguous language of § 1252(a)(2)(B)(ii)

withdraws judicial review from decisions "the authority for which is specified ... to be in the discretion of the ... Secretary of Homeland Security." Id.4 It is not contested that such decisions are not subject to judicial review. So we must determine whether the decision to revoke a visa petition approval is specified to be in the Secretary of Homeland Security's discretion.

The visa petition approval was revoked pursuant to 8 U.S.C. § 1155

. Section 1155, which falls under Subchapter II, provides in relevant part:

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.

8 U.S.C. § 1155

. We join seven of our sister circuits and conclude that this decision is discretionary, and so not subject to judicial review. See Mehanna v. U.S. Citizenship & Immigration Servs., 677 F.3d 312, 313 (6th Cir.2012) ; Green v. Napolitano, 627 F.3d 1341, 1343 (10th Cir.2010) ; Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir.2009) ; Sands v. U.S. Dep't of Homeland Sec., 308 Fed.Appx. 418, 419–20 (11th Cir.2009) (per curiam); Ghanem v. Upchurch, 481 F.3d 222, 223 (5th Cir.2007) ; Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 200–05 (3d Cir.2006) ; El–Khader v. Monica, 366 F.3d 562, 567–68 (7th Cir.2004).5 One panel majority in one circuit views the issue differently. See ANA Int'l Inc. v. Way, 393 F.3d 886, 893–95 (9th Cir.2004)

(holding, with one panel member dissenting, that under § 1155, "the authority of the Attorney General to revoke visa petitions is bounded by objective criteria," id. at 894, and so § 1252(a)(2)(B)(ii) does not remove judicial review). Our dissenting colleague also views it differently.

We acknowledge the "presumption favoring interpretations of statutes [to] allow judicial review of administrative action." Kucana, 558 U.S. at 237, 130 S.Ct. 827

(alteration in original) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63–64, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) ). However, this "presumption ... is just that—a presumption.... [L]ike all presumptions used in interpreting statutes, [it] may be overcome by specific language or specific legislative history that is a reliable indicator of congressional intent." Block, 467 U.S. at 349, 104 S.Ct. 2450 ; see also Mach Mining, LLC v. EEOC, ––– U.S. ––––, 135 S.Ct. 1645, 1651, 191 L.Ed.2d 607 (2015). Here we have specific language: § 1252(a)(2)(B)(ii) withdraws judicial review from decisions committed to the Secretary of Homeland Security's discretion, and § 1155 clearly indicates that the decision to revoke the approval of a visa petition is discretionary.

At least three language choices in § 1155

dictate this conclusion: "may," "at any time," and "for what he deems to be good and sufficient cause." See Ghanem, 481 F.3d at 224 ; Jilin, 447 F.3d at 203–05 (identifying four indications by separating "deems to be" from "good and sufficient cause"). "By using the precatory term ‘may,’ rather than the directory term ‘shall,’ Congress indicated its intent to make [the decision] discretionary...." United States v. Aponte–Guzmán, 696 F.3d 157, 160 (1st Cir.2012) ; see also Haig v. Agee, 453 U.S. 280, 294 n. 26, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (explaining that " ‘may’ expressly recognizes substantial discretion"). But see Zadvydas v. Davis, 533 U.S. 678, 697, 121 S.Ct....

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