Green v. Napolitano

• Decision Date: 21 December 2010
• Docket Number: No. 10-1156,10-1156
• Citation: 627 F.3d 1341
• Parties: Reginald GREEN; Njideka Frances Abajue, Plaintiffs-Appellants, v. Janet NAPOLITANO, Secretary of Homeland Security; District Director Denver District Office of the United States Citizenship and Immigration Services; United States Citizenship and Immigration Services; Immigration and Customs Enforcement, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

627 F.3d 1341

Reginald GREEN; Njideka Frances Abajue, Plaintiffs-Appellants,

v.Janet NAPOLITANO, Secretary of Homeland Security; District Director Denver District Office of the United States Citizenship and Immigration Services; United States Citizenship and Immigration Services; Immigration and Customs Enforcement, Defendants-Appellees.

No. 10-1156.

United States Court of Appeals,Tenth Circuit.

Dec. 21, 2010.

Submitted on the briefs: ^*

Olusegun Asekun, The Law Office of Olu Asekun, Arlington, TX, for Plaintiffs-Appellants.

Tony West, Assistant Attorney General, Civil Division, Samuel P. Go, Senior Litigation Counsel, Flor M. Suarez, Trial Attorney, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and GORSUCH, Circuit Judge.

TYMKOVICH, Circuit Judge.

In this immigration appeal, we are asked to determine whether a decision under 8 U.S.C. § 1155 to revoke a petition for immigrant status is discretionary. If so, the decision is unreviewable in district court, because 8 U.S.C. § 1252(a)(2)(B)(ii) strips courts of the jurisdiction to review certain discretionary decisions.¹ Like the parties, the district court believed that this was a question of first impression in this circuit; it predicted we would follow those courts that have concluded a § 1155 revocation is discretionary and hence not subject to judicial review. In fact, we already have addressed whether a § 1155 revocation is a discretionary decision, albeit in a slightly different jurisdictional context. In Hamilton v. Gonzales, 485 F.3d 564, 568 (10th Cir.2007), we concluded that a § 1155 "revocation decision is a discretionary act" for purposes of § 1252(a)(2)(B)(ii) and that, absent a final order of removal, we lacked jurisdiction to review constitutional and legal questions related to it.

Here, we apply Hamilton to the question of the district court's jurisdiction. We conclude that § 1252(a)(2)(B)(ii) strips a district court of jurisdiction to review a § 1155 revocation. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court's judgment dismissing the case for lack of jurisdiction.

I. Background

Reginald Green is a United States citizen married to Njideka Frances Abajue, a Nigerian citizen. Mr. Green filed a form I-130 Petition for Alien Relative with the United States Citizenship and Immigration Services (USCIS) on behalf of his wife. The petition was approved under § 1154 but later revoked under § 1155, after Ms. Abajue's former spouse stated during an immigration interview that their prior marriage was fraudulent and entered into solely for immigration purposes. Section 1155 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."

Mr. Green appealed, but the Board of Immigration Appeals affirmed the revocation, noting that Ms. Abajue's former spouse made his statement in connection with the withdrawal of an I-130 petition he had filed for her benefit. The Board concluded that, in responding to a notice of intent to revoke his petition, Mr. Green failed to submit sufficient evidence that Ms. Abajue's prior marriage was bona fide.

Ms. Abajue filed a petition for review of the Board's decision with this court, but later withdrew it. Meanwhile, she and Mr. Green filed a complaint in the district court, claiming the revocation of the I-130 petition violated their constitutional due process rights because they never had the opportunity to confront or cross-examine Ms. Abajue's former spouse. They contend the former spouse moved out of the house he shared with Ms. Abajue on the day of his statement and apparently could not be located after the notice of intent to revoke the I-130 petition was issued.

The government moved to dismiss for lack of jurisdiction based on § 1252(a)(2)(B)(ii). Section 1252(a)(2)(B) bars judicial review of certain discretionary decisions of the Attorney General or the Secretary of Homeland Security, as follows:

Notwithstanding any other provision of law (statutory or nonstatutory), includingsection 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, 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 or the Secretary of Homeland Security the authority for which is specified under this subchapter [including § 1155] to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of [asylum] relief under section 1158(a) of this title.

§ 1252(a)(2)(B)(ii) (emphasis added). Concluding that the Secretary's revocation under § 1155 was discretionary, the district court held it lacked jurisdiction and dismissed the complaint. This appeal followed.

II. Discussion

We review the district court's dismissal for lack of subject matter jurisdiction de novo. Trackwell v. U.S. Gov't, 472 F.3d 1242, 1243 (10th Cir.2007). The party invoking a court's jurisdiction bears the burden of establishing it. Marcus v. Kan. Dep't of Revenue, 170 F.3d 1305, 1309 (10th Cir.1999). We also review de novo the district court's interpretation of § 1155. See United States v. Manning, 526 F.3d 611, 614 (10th Cir.2008).

A.

Mr. Green and Ms. Abajue make two arguments in support of federal court jurisdiction. First, they contend the district court had jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 2201 (declaratory judgment act), and nothing in § 1252(a)(2)(B)(ii) strips federal jurisdiction with respect to a revocation decision. Second, they contend several exceptions to § 1252's jurisdiction-stripping provision apply to them. We disagree on all points.

The parties agree the revocation of Mr. Green's I-130 petition was based on § 1155. The statute 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." § 1155 (emphasis added). The question is whether this language, for purposes of the discretionary-decision bar of § 1252(a)(2)(B)(ii), vests discretionary authority in the Secretary of Homeland Security, as exercised through a designee, the Acting District Director of the USCIS.

We answered this question affirmatively in Hamilton v. Gonzales. In that case, the jurisdictional question arose in the context of a decision to revoke a visa in the absence of a final order of removal. 485 F.3d at 566. As part of our analysis, we examined the text of § 1155 and determined that revocation is a discretionary decision:

A visa revocation decision "may" be made by the Secretary of Homeland Security (or his designee) "at any time, for what he deems to be good and sufficient cause." 8 U.S.C. § 1155. Employing conditional terms such as "may" and "at any time," the statute uses language that is "indicative of administrative discretion." Jilin Pharmaceutical USA, Inc. v. Chertoff, 447 F.3d 196, 203 (3d Cir.2006). See also id. at 204 (by authorizing visa revocation for "good and sufficient cause," the statute requires theagency to make a judgment call); El-Khader v. Monica, 366 F.3d 562, 567 (7th Cir.2004) ("[T]he determination of whether there exists 'good and sufficient cause' [ ] necessarily is highly subjective, and there exist no strict standards for making this determination.").

Hamilton, 485 F.3d at 567 n. 6 (alterations in Hamilton ). We went on to conclude that "since a visa revocation decision is a discretionary act, our jurisdiction to review it is precluded by the plain meaning of § 1252(a)(2)(B)[ii ²] except when (1) the decision implicates constitutional or legal questions, and (2) there is a final order of removal." Id. at 568.

We are guided here by the controlling statements in Hamilton: a visa revocation under § 1155 is a discretionary decision subject to the jurisdiction-stripping provisions of § 1252(a)(2)(B)(ii). In Hamilton, we were concerned only with our own jurisdiction, not a district court's, but by its plain language, § 1252(a)(2)(B)(ii) applies to any federal court. The statute provides that " no court shall have jurisdiction to review" the specified sort of discretionary decisions-including a decision pursuant to § 1155. § 1252(a)(2)(B)(ii) (emphasis added).

This position is shared by most circuit courts. In addition to the Seventh and Third Circuit cases we relied on in Hamilton, at least three other circuits have also concluded that § 1155 revocations are discretionary and cannot be reviewed by district courts. See Sands v. U.S. Dep't of Homeland Sec., 308 Fed.Appx. 418, 419-20 (11th Cir.2009) (concluding that § 1252(a)(2)(B)(ii) strips courts of jurisdiction under 28 U.S.C. § 1361, "the mandamus statute," to review a § 1155 revocation decision); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir.2009) (concluding that § 1252(a)(2)(B)(ii) precludes judicial review of § 1155 revocations but noting an exception "to review a predicate legal question that amounts to a nondiscretionary determination underlying the denial of relief") (quotation marks omitted); Ghanem v. Upchurch, 481 F.3d 222, 225 (5th Cir.2007) ( "interpret[ing] the phrase 'for what he deems to be' as vesting complete discretion in the Secretary to determine what constitutes good and sufficient cause").

The Second Circuit, in dictum, also appears to agree. See Firstland Int'l, Inc. v. U.S. INS, 377 F.3d 127, 131-32 (2d Cir.2004) (stating "the substance of the decision that there should be a revocation is committed to the discretion of the Attorney General" by § 1155, but concluding the failure to...