Ghanem v. Upchurch

• Citation: 481 F.3d 222
• Decision Date: 06 March 2007
• Docket Number: No. 06-10499.,06-10499.
• Parties: Sandy GHANEM; Ayed Ghanem, Plaintiffs-Appellants, v. Evelyn UPCHURCH, Acting Director, U.S. Citizenship & Immigration Services, Nebraska Service Center; Dr. Emilio Gonzalez, Director, U.S. Citizenship & Immigration Services; Michael Chertoff, Secretary, Department of Homeland Security; Alberto R. Gonzales, U.S. Attorney General, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

481 F.3d 222

Sandy GHANEM; Ayed Ghanem, Plaintiffs-Appellants, v. Evelyn UPCHURCH, Acting Director, U.S. Citizenship & Immigration Services, Nebraska Service Center; Dr. Emilio Gonzalez, Director, U.S. Citizenship & Immigration Services; Michael Chertoff, Secretary, Department of Homeland Security; Alberto R. Gonzales, U.S. Attorney General, Defendants-Appellees.

No. 06-10499.

United States Court of Appeals, Fifth Circuit.

March 6, 2007.

Sandy Ghanem, Weatherford, TX, pro se.

Joshua Turin, Turin, Turin & Olinger, Dallas, TX, for Ayed Ghanem.

Barry Joseph Pettinato, David V. Bernal, U.S. Dept. of Justice, Civil Div., Immigration Litigation, Washington, DC, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, DeMOSS and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

The sole argument raised on this appeal is whether the decision of the Secretary of Homeland Security to revoke a visa pursuant to 8 U.S.C. section 1155 is discretionary, thus stripping this Court of jurisdiction to review the decision. See 8 U.S.C. § 1252(a)(2)(B)(ii). Finding that the decision is an exercise of discretion, we affirm the district court's dismissal for lack of jurisdiction.

I. BACKGROUND

In 2002, Sandy Ghanem, a citizen of the United States, married Ayed Ghanem, a citizen of Jordan. Sandy filed an immigrant visa petition on behalf of Ayed, which was approved in 2004. Subsequently, the United States Citizenship and Immigration Services (CIS), a division of the Department of Homeland Security, initiated proceedings to revoke the visa and served her with a "Notice of Intent to Revoke." After Sandy responded to the notice, the CIS revoked the previously approved visa.

The Ghanems appealed the CIS's decision to the Board of Immigration Appeals (BIA). The BIA affirmed the decision to revoke without an opinion. The Ghanems filed a complaint for review of the revocation of the visa in district court. The district court ruled that it lacked jurisdiction over the complaint and dismissed it. Appellants now appeal.

II. ANALYSIS

This Court reviews a district court's dismissal for lack of subject matter jurisdiction de novo. Lee v. Gonzales, 410 F.3d 778, 780 (5th Cir.2005). As previously set forth, the sole issue on appeal is whether the decision to revoke a visa pursuant to 8 U.S.C. section 1155 involved the exercise of discretion, thus stripping this Court of jurisdiction to review the decision. See 8 U.S.C. § 1252(a)(2)(B)(ii). Section 1252(a)(2)(B)(ii) provides 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).

(emphasis added).

To determine whether the above-quoted statute applies to preclude jurisdiction, this Court must look to the statutory provision governing the revocation of a visa, which is 8 U.S.C. section 1155. Section 1155 provides that: "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." Although this Court has not addressed this precise question, at least three other circuits have squarely addressed the issue and have split.

The Seventh Circuit was the first to reach the issue and quickly concluded that "the discretionary nature of the decision is apparent from the plain language of the statute." El-Khader v. Monica, 366 F.3d 562, 567 (7th Cir.2004). The Third Circuit agreed. In Jilin Pharmaceutical v. Chertoff, 447 F.3d 196 (3d Cir.2006), the Court relied on the following language of section 1155 to determine that the decision to revoke was discretionary. The Secretary "may" revoke approval, recognizing that the word "may" indicates discretion. The Court pointed out that the revocation may be "at any time," which also connotes discretion. Additionally, section 1155 allows revocation if the Secretary "deems" there is good and sufficient cause. Finally, the Court opined that "`for what [the Secretary] deems to be good and sufficient cause' is arguably so subjective as to provide no meaningful legal standard." Id. at 204.

On the other hand, the Ninth Circuit, over a dissent, concluded that it had jurisdiction because the "authority . . . to revoke petitions is bounded by objective criteria." ANA Int'l v. Way, 393 F.3d 886, 894 (9th Cir.2004). The Ninth Circuit held that the "good and sufficient cause" language of section 1155 "constituted a legal standard the meaning of which we retain jurisdiction to clarify." Id. at 893.¹ The Court also indicated that to the extent there was any ambiguity in a jurisdiction-stripping statute, it is to be resolved in favor of jurisdiction. Id. at 894.²

Additionally, the Second Circuit has stated that "although the substance of the decision that there should be a revocation is committed to the discretion of the Attorney General, section 1155 [also] establishes mandatory notice requirements that must be met in order for the revocation to be effective." Firstland Int'l v. INS, 377 F.3d 127, 131 (2d Cir.2004). Ultimately, the Second Circuit ruled that it had jurisdiction to review whether the mandatory notice requirement had been met. However, that is not in conflict with the reasoning of the Third and Seventh Circuit. Indeed, the Third Circuit recognized the holding in Firstland Int'l and explained that subsequent to that decision Congress had deleted the mandatory notice requirements in section 1155. Jilin Pharmaceutical, 447 F.3d at 203 (citing Firstland Int'l, 377 F.3d at 132; § 5304(c), 118 Stat. at 3736). The Third Circuit correctly reasoned that "Congress's elimination of this [mandatory notice] requirement strongly indicates an intent to strengthen the discretion of the Secretary . . . to revoke approval of petitions." Id.

We follow the lead of the Third and Seventh Circuits. The statutory language indicates that the decision is left to the discretion of the Secretary. The only language that indicates that the discretion could be limited is the "good and sufficient cause" phrase. However,...