Firstland Intern., Inc. v. U.S. I.N.S., No. 03-6139.
| Court | U.S. Court of Appeals — Second Circuit |
| Writing for the Court | José A. Cabranes |
| Citation | 377 F.3d 127 |
| Docket Number | No. 03-6139. |
| Decision Date | 02 August 2004 |
| Parties | FIRSTLAND INTERNATIONAL, INC. and Shao Zeng Chai, Plaintiffs-Appellants, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee. |
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of New York, Allyne R. Ross, J.
Page 128
Alan Lee, New York, NY, for Plaintiffs-Appellants.
F. Franklin Amanat, Assistant United States Attorney (Varuni Nelson, Assistant United States Attorney, Steven J. Kim, Assistant United States Attorney, Dione M. Enea, Special Assistant United States Attorney, of counsel; Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, on the brief), United States Attorney's Office for the Eastern District of New York, Brooklyn, NY, for Defendant-Appellee.
Ronald Y. Wada, Berry, Appleman & Leiden LLP, San Francisco, CA, for Amicus Curiae American Immigration Lawyers Association.
Colleen L. Caden (John A. Quinn, of counsel), Fragomen, Del Rey, Bernsen & Loewy, P.C., New York, NY, for Amici Curiae American Council on International Personnel and The Chamber of Commerce of the United States of America.
Before: KEARSE, CABRANES, and KATZMANN, Circuit Judges.
JOSÉ A. CABRANES, Circuit Judge.
Plaintiffs Firstland International, Inc. ("Firstland") and Shao Zeng Chai ("Chai") appeal from an order of the United States District Court for the Eastern District of New York (Allyne R. Ross, Judge), dismissing plaintiffs' action for lack of subject matter jurisdiction. The question presented on appeal is whether 8 U.S.C. § 1252(a)(2)(B)(ii) ("Section 1252"), which precludes judicial review of certain decisions that are "in the discretion of the Attorney General," thereby precluded the District Court from reviewing the decision of the Attorney General's delegate, defendant Immigration and Naturalization Service ("INS")1, to revoke its approval of an
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immigrant visa petition that had been filed by Firstland on behalf of Chai. The INS purported to revoke its approval of Chai's visa petition ("Section 1155"). No court of appeals has addressed the argument raised by plaintiffs — that Section 1155, by its terms, does not permit revocation of a previously approved visa petition where the beneficiary is already inside the United States.
Because we hold that Section 1155 did not authorize the INS's decision to revoke Chai's visa petition after Chai had entered the United States, we conclude that that decision was not "in the discretion of the Attorney General," and that Section 1252 therefore did not divest the District Court of jurisdiction to hear plaintiffs' claims.
Firstland is a wholly-owned subsidiary of the Shanghai Yangzhang Shiguang Lighter Co., Ltd., a company headquartered in China. Chai, the president of Firstland, came to the United States in March 1997 on an L-1A nonimmigrant visa as an intracompany managerial or executive transferee, an alien who "seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge," 8 U.S.C. § 1101(a)(15)(L).
In August 1999, over two years after Chai had entered the United States on the L-1A nonimmigrant visa, Firstland filed with the INS an immigrant visa petition, known as an I-140 petition, seeking an employment-based immigrant visa for Chai as a "multinational executive or manager," pursuant to 8 U.S.C. § 1153(b)(1)(C).2 The INS approved the I-140 petition in March 2000.
The INS's approval of an immigrant visa petition is one step toward obtaining permanent resident status.3 Accordingly, on the basis of the INS's approval of Chai's immigrant visa petition, in April 2000 Chai filed a petition with the INS, known as an I-485 petition, to adjust his status to that of lawful permanent resident.
In October 2000, while the I-485 petition remained unadjudicated, the INS informed Firstland of its intention to revoke its approval of the I-140 visa petition, explaining that further review revealed that "the evidence of record [did] not clearly demonstrate that [Chai] ha[d] been and [would] be employed in a primarily managerial or executive capacity." In response, Firstland submitted additional documentation to the INS, which, unconvinced, issued a decision on January 22, 2001, revoking its
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approval of the petition.4 Firstland appealed this decision to the INS's Administrative Appeals Office, which denied the appeal on June 21, 2002.
On July 17, 2002, Firstland and Chai then brought an action in the District Court challenging the INS's revocation of the visa petition. In a decision dated May 16, 2003, the District Court dismissed the action, holding that Section 1252 divested the courts of subject matter jurisdiction over the action. This appeal followed.
We review the District Court's dismissal for lack of subject matter jurisdiction de novo. See, e.g., Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996).
Section 1252, entitled "Judicial Review of Orders of Removal," strips the federal courts of jurisdiction to review certain discretionary decisions of the Attorney General. It provides in relevant part:
Notwithstanding any other provision of law, no court shall have jurisdiction to review —
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) any other 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, other than the granting of relief under section 1158(a) of this title.
8 U.S.C. § 1252(a)(2)(B) (emphasis added).
Section 1155, found within the same subchapter of the United States Code as Section 1252, provides that the Attorney General may revoke his approval of a visa petition, but only under certain circumstances. In order for revocation to be effective, the beneficiary of the petition must receive notice of the revocation, before beginning his journey to the United States, from the Secretary of State. Section 1155 provides in full:
The Attorney General 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. Such revocation shall be effective as of the date of approval of any such petition. In no case, however, shall such revocation have effect unless there is mailed to the petitioner's last known address a notice of the revocation and unless notice of the revocation is communicated through the Secretary of State to the beneficiary of the petition before such beneficiary commences his journey to the United States. If notice of revocation is not so given, and the beneficiary...
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Sharkey v. Quarantillo, Docket No. 06-1397-cv.
...compel an officer of an United States agency to perform a duty owed to her. She further asserted that under Firstland Int'l, Inc. v. INS, 377 F.3d 127, 130-31 (2d Cir.2004), the district court had jurisdiction to review her claim that the USCIS attempted to rescind her LPR status without fo......
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Ana Intern., Inc. v. Way, No. 03-35130.
...(7th Cir.2004) (searching for legal standards governing visa revocation decisions in the language of § 1155); Firstland Int'l Inc. v. INS, 377 F.3d 127, 131 (2nd Cir.2004) (stating that "courts retain jurisdiction to review" whether the mandatory notice requirements contained in §......
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Patel v. Johnson, Civil Action No. 12–12317–WGY.
...requirements associated with that revocation have been met. Firstland Int'l, Inc. v. United States Immigration & Naturalization Serv., 377 F.3d 127, 130–31 (2d Cir.2004). 10. In the memorandum accompanying the 2009 appeal, Patel reports that the business closed in November 2008. AR 200.......
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Bernardo ex rel. M & K Eng'g, Inc. v. Johnson, No. 15–1177.
...restricted by [a] now-defunct notice requirement" in the statute. Jilin, 447 F.3d at 203 (citing Firstland Int'l, Inc. v. U.S. INS, 377 F.3d 127, 132 (2d Cir.2004) ; Intelligence Reform and Terrorism Prevention Act of 2004, Pub.L. No. 108–458, § 5304(c), 118 Stat. 3638, 3736). "Co......
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Sharkey v. Quarantillo, Docket No. 06-1397-cv.
...compel an officer of an United States agency to perform a duty owed to her. She further asserted that under Firstland Int'l, Inc. v. INS, 377 F.3d 127, 130-31 (2d Cir.2004), the district court had jurisdiction to review her claim that the USCIS attempted to rescind her LPR status without fo......
-
Ana Intern., Inc. v. Way, No. 03-35130.
...(7th Cir.2004) (searching for legal standards governing visa revocation decisions in the language of § 1155); Firstland Int'l Inc. v. INS, 377 F.3d 127, 131 (2nd Cir.2004) (stating that "courts retain jurisdiction to review" whether the mandatory notice requirements contained in §......
-
Patel v. Johnson, Civil Action No. 12–12317–WGY.
...requirements associated with that revocation have been met. Firstland Int'l, Inc. v. United States Immigration & Naturalization Serv., 377 F.3d 127, 130–31 (2d Cir.2004). 10. In the memorandum accompanying the 2009 appeal, Patel reports that the business closed in November 2008. AR 200.......
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Bernardo ex rel. M & K Eng'g, Inc. v. Johnson, No. 15–1177.
...restricted by [a] now-defunct notice requirement" in the statute. Jilin, 447 F.3d at 203 (citing Firstland Int'l, Inc. v. U.S. INS, 377 F.3d 127, 132 (2d Cir.2004) ; Intelligence Reform and Terrorism Prevention Act of 2004, Pub.L. No. 108–458, § 5304(c), 118 Stat. 3638, 3736). "Co......