Itech US, Inc. v. Cuccinelli

• Decision Date: 24 July 2020
• Docket Number: Case No. 19-cv-3352 (CRC)
• Citation: 474 F.Supp.3d 291
• Parties: ITECH US, INC., Plaintiff, v. Kenneth T. CUCCINELLI, II, Acting Director, United States Citizenship and Immigration Services, Defendant.
• Court: U.S. District Court — District of Columbia

474 F.Supp.3d 291

ITECH US, INC., Plaintiff,

v.Kenneth T. CUCCINELLI, II, Acting Director, United States Citizenship and Immigration Services, Defendant.

Case No. 19-cv-3352 (CRC)

United States District Court, District of Columbia.

Signed July 24, 2020

Geoffrey Forney, Wasden Banias LLC, Philadelphia, PA, Bradley Bruce Banias, Wasden Banias LLC, Mount Pleasant, SC, for Plaintiff.

Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

Vermont-based information technology company iTech U.S., Inc. filed a form I-140 "Immigration Petition for Alien Worker" with U.S. Citizenship and Immigration Services ("USCIS") in the hopes of obtaining a visa for a prospective employee. USCIS initially approved the petition but later revoked it, citing purported discrepancies in the name of the school that granted the employee's engineering degree. Decrying the seemingly picayune grounds for the agency's about face, iTech now seeks judicial review of the revocation under the Administrative Procedure Act. In so doing, however, iTech swims against a tide of authority from no fewer than nine circuits and four fellow courts in this district holding that Congress placed visa revocation decisions like this one within the unreviewable discretion of the executive branch. Going with the (considerable) flow, the Court will grant the government's motion to dismiss the case for lack of jurisdiction.

* * *

As the government argues in its motion, the Court lacks jurisdiction to consider iTech's claim because two interlocking sections of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., preclude judicial review. The first, § 1252(a)(2), provides:

(B) Denials of discretionary relief

Notwithstanding any other provision of law (statutory or nonstatutory) ... 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 to be in the discretion of the Attorney General or the Secretary of Homeland Security ....

The second, § 1155, states:

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.

It is undisputed that I-140 petitions are among the petitions that fall within the Secretary's § 1155 revocation authority and that the Secretary has delegated that authority to USCIS. See 6 U.S.C. § 271(b)(1) ; 8 C.F.R. § 205.2(a). Under the plain text of the above provisions, the Secretary's ability to revoke a I-140 petition "at any time" and for any reason he "deems to be good and sufficient cause" renders USCIS's revocation decision "discretionary" under § 1155. Section 1252(a)(2)(B)(ii), in turn, deprives the Court of jurisdiction to review the decision.

The Court is far from alone in reaching this conclusion. Although one could say there is a "split" among the circuits as to whether these INA provisions deprive courts of jurisdiction to consider challenges to petition-revocation decisions, "the balance of authority is so heavily weighted to one side as to almost tip over the scale." Karakenyan v. USCIS, No. CV 20-346 (JEB), 468 F.Supp.3d 50, 55–56, (D.D.C. June 22, 2020). On one side of the balance, nine federal courts of appeals have held (and a tenth has said in dicta ) that courts lack jurisdiction to consider such claims. See Bernardo ex rel. M & K Eng'g, Inc. v. Johnson, 814 F.3d 481, 484 (1st Cir. 2016) (concluding that a revocation decision "is discretionary, and so not subject to judicial review"); Firstland Int'l Inc. v. INS, 377 F.3d 127, 131 (2d Cir. 2004) (observing in dicta that "the substance of the decision that there should be a revocation is committed to the discretion of the Attorney General"); Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 205 (3d Cir. 2006) (concluding that the revocation of an approved petition at the Secretary's discretion and affirming that "the District Court ... lacked jurisdiction to review"); Polfliet v. Cuccinelli, 955 F.3d 377, 381, 383, (4th Cir. 2020) (holding that the analysis "begins and ends with the plain language of the statute" which makes it clear that § 1155 is discretionary and thus "barred by § 1252(a)(2)(B)(ii)" from judicial review); Ghanem v. Upchurch, 481 F.3d 222, 224 (5th Cir. 2007) (finding the statutory language to indicate that § 1155 was discretionary and courts were stripped of jurisdiction to review it); Mehanna v. USCIS, 677 F.3d 312, 315 (6th Cir. 2012) (holding "that the Secretary's decision to revoke a visa petition under § 1155 is an act of discretion that Congress has removed from our review"); El-Khader v. Monica, 366 F.3d 562, 567-68 (7th Cir. 2004) (holding that revocation of a visa petition under § 1155 is precluded, so long as that discretion is discretionary in nature" (emphasis in original)); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009) (agreeing with sister circuits that § 1155 revocations are discretionary and not subject to judicial review); Green v. Napolitano, 627 F.3d 1341, 1345 (10th Cir. 2010) (holding a "visa revocation under § 1155 is a discretionary decision subject to the jurisdiction-stripping provisions of § 1252(a)(2)(B)(ii)"); Sands v. U.S. Dep't of Homeland Sec., 308 Fed. App'x 418, 419-20 (11th Cir. 2009) (per curiam) (explaining the phrase "this subchapter" in § 1252(a)(2)(B) includes § 1155, and that the district court was thus stripped of jurisdiction).

Alone on the other side sits the Ninth Circuit, which sixteen years ago concluded in a divided panel opinion that § 1155's reference to "good and sufficient cause" provides a justiciable standard for reviewing petition-revocation decisions. ANA Int'l Inc. v. Way, 393 F.3d 886, 893-95 (9th Cir. 2004). But even it has recently expressed misgivings about that conclusion. See Poursina v. USCIS, 936 F.3d 868, 875 (9th Cir. 2019) (describing the Circuit's position as "an outlier among the federal circuit courts" and declining to "extend such decision beyond its narrow holding").

While the D.C. Circuit has yet to weigh in, the four district courts in this Circuit that have addressed this question have all concluded that courts lack jurisdiction to consider challenges to USCIS's petition-revocation decisions. See Karakenyan, 468 F.Supp.3d at 56, (determining "that a decision made pursuant to § 1155 qualifies as ‘discretionary’ under the INA" and is "not reviewable [as] compelled by the text of the provision."); Raval v. USCIS, 369 F. Supp. 3d 205, 212 (D.D.C. 2019) (holding that "Congress has stripped courts of jurisdiction to hear plaintiff's challenge to the revocation of ... [the] I-140 petition"); Mohammad v. Napolitano, 680 F. Supp. 2d 1, 6 (D.D.C. 2009) (concluding that upon a "review[ ] [of] the plain language of § 1155 ... the terms ‘may,’ ‘at any time,’ and ‘deems,’ [meant] Congress specified that the authority to make revocation decisions was within the discretion of defendants, and therefore outside the scope of this Court's review"); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 12 (D.D.C. 2001) (finding the language of § 1155 "clear and unambiguous" that the revocation was "in the discretion of the Attorney General and unreviewable").

Laboring gamely against this weight of authority, iTech insists that § 1155 revocations are in fact not discretionary and urges the Court to exercise jurisdiction over its claim. It raises four points in support of its position: two relying on the statutory construction of § 1252(a)(2)(B), one based on the express language of § 1155, and one resting on an interpretation of the phrase "good and sufficient cause" by the Board of Immigration Appeals ("BIA") that iTech says cabins USCIS's discretion. The Court takes each point in turn.

First, iTech maintains that the heading of § 1252(a)(2)(B), "Denials of discretionary relief ," shows that the statute does not cover § 1155 revocations, because revocation of an I-140 petition is not a form of "relief." iTech notes, furthermore, that unlike petition revocations, the actions specifically delineated in § 1252(a)(2)(B)(i)—waivers of inadmissibility under §§ 1182(h) and (i), cancellations of removal under § 1229b, voluntary departures under § 1229c, and adjustments of status under § 1255—are all properly considered forms of relief. Perhaps. The rub, however, is that "the heading of a Section cannot limit the plain meaning of the text." Bhd. Of R.R. Trainmen v. Baltimore & Ohio Ry. Co., 331 U.S. 519, 529, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947). And § 1252(a)(2)(B)(ii) plainly states that the jurisdictional bar applies to any decision "under this subchapter to be in the discretion of the Attorney General or the Secretary." (emphasis added). Of course, "this subchapter" includes § 1155. See Sands, 308 Fed. App'x at 420 ("The phrase ‘this subchapter’ includes ... § 1155."). Section 1252(a)(2)(B)(ii)’s jurisdictional bar thus applies to § 1155 revocations, notwithstanding the section's title.

iTech next invokes the canon ejusdem generis , the principle that "when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration." Norfolk & Western Ry. Co. v. Train Dispatchers, 499 U.S. 117, 129, 111 S.Ct. 1156, 113 L.Ed.2d 95 (1991). iTech contends that, read in context, § 1252(a)(2)(B)(ii), which applies to "any other decision or action ... the authority for which is specified under this subchapter to be in the discretion of [USCIS]," is limited to "decisions or actions" that are similar to those explicitly listed in § 1252(a)(2)(B)(i)—again, waivers of inadmissibility under §§ 1182(h) and (i), cancellations of removal under §...