Jomaa v. United States

• Citation: 940 F.3d 291
• Decision Date: 09 October 2019
• Docket Number: No. 19-1156,19-1156
• Parties: Diana JOMAA; Georgina Rizk, Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

940 F.3d 291

Diana JOMAA; Georgina Rizk, Plaintiffs-Appellants,

v.UNITED STATES of America, et al., Defendants-Appellees.

No. 19-1156

United States Court of Appeals, Sixth Circuit.

Decided and Filed: October 9, 2019

ON BRIEF: Nabih H. Ayad, AYAD LAW, PLLC, Detroit, Michigan, for Appellants. Gladys M. Steffens Guzmán, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Before: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.

GRIFFIN, Circuit Judge.

In this immigration case, Georgina Rizk and her daughter appeal the revocation of Rizk’s visa petition. The United States Citizenship and Immigration Services ("USCIS") initially granted the petition without taking into account a previous finding that Rizk had entered into a sham marriage, making her ineligible for a future visa pursuant to § 204(c) of the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1154(c). Once USCIS discovered the error, it revoked Rizk’s visa petition and explained that it never should have granted the petition in the first place. After an unsuccessful appeal to the Board of Immigration Appeals ("BIA" or "the Board"), plaintiffs challenged the revocation in the district court, which dismissed their complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). We affirm.

I.

Plaintiff Georgina Rizk is from Lebanon. In 1996, she received deferred admission to the United States as the fiancée of a United States citizen, Mohamed Derbass. Rizk and Derbass married in 1998, and USCIS granted Rizk conditional permanent resident status. When the two divorced in 2001, Rizk "requested a waiver of the requirement to file a joint petition to remove the conditions on residence, Form I-751, based upon the claim that although she had entered the marriage in good faith, the marriage was terminated through divorce or annulment." An immigration officer interviewed Rizk under oath and gave her the opportunity to submit evidence in support of her request for a waiver. Several statements made by Rizk in that interview—concerning the fatherhood of her children and the whereabouts of her alleged first ex-husband, Mohamed Jomaa—conflicted with previous statements she had made in connection with her divorce proceedings. Additionally,

Ms. Rizk provided no evidence to establish a shared residence with the alleged husband, Mr. Derbass. There also was no evidence presented regarding the commitment of the couple to the marriage, no documentation relating to the degree to which the financial assets and liabilities were combined, and no documentation to establish the length of time of cohabitation.

Based on this lack of evidence and the discrepancies discussed above, USCIS determined that the marriage between Rizk and Derbass "was a sham marriage entered into for the primary purpose of enabling [Rizk] to evade immigration laws and to obtain immigration benefits fraudulently." USCIS denied Rizk’s petition with a finding of fraud. Around the same time, Rizk left the United States and returned to Lebanon.

Several subsequent attempts to secure a visa for Rizk followed. First, Mohamed Jomaa filed an I-130 petition on her behalf. USCIS denied that petition "based on the fact that [Rizk] entered into her prior marriage to Mohamed Derbass for the sole purpose of obtaining an immigration benefit and she was permanently barred from being the beneficiary of an approved immigrant visa based on section 204(c) of the INA." See 8 U.S.C. § 1154(c). Mohamed Jomaa filed a second I-130 petition several years later. During its consideration of that petition, USCIS took additional evidence and conducted interviews with Rizk and Jomaa, who stated under oath that they had divorced in 1994 and Rizk "met another person by the name of Mohamed Derbass in a family setup deal so she could come to the United States because her brother lived here at the time." USCIS found inconsistencies in the evidence they submitted, however, and found that "Rizk was married to Mohamed Derbass on November 13, 1998 while still married to Mohamed Jomaa." Because the additional evidence indicated that Rizk had married Derbass "for the sole purpose of obtaining an immigration benefits [sic]" and that she had "provided false testimony to an immigration officer while under oath," USCIS denied the petition.

In 2015, Plaintiff Diana Mohamed Jomaa—Rizk’s daughter and a United States citizen—filed a new I-130 petition on Rizk’s behalf, "seeking to classify Georgina Rizk as the parent of a United States citizen under 201(b) of [the] INA." See 8 U.S.C. § 1151(b). USCIS approved that petition without conducting interviews, and "the previous finding of fraud was not taken into consideration and not included in the decision." USCIS soon discovered its mistake, however, and revoked the visa petition. Plaintiffs appealed that decision to the BIA, arguing that 8 U.S.C. § 1154(c) did not apply to Rizk and should not have been used as a basis to revoke her visa. The Board disagreed, finding that USCIS had correctly determined that Rizk was ineligible for a visa under § 1154(c).

Plaintiffs then filed a complaint in the district court, alleging that the Board’s decision violated the Administrative Procedure Act ("APA"), the due process clause of the Fifth Amendment, and the INA. The government moved to dismiss the complaint for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(1) & (6). The district court determined that it had jurisdiction but then held that USCIS’s application of § 1154(c) was not arbitrary and capricious and dismissed the complaint. Jomaa v. United States , No. 18-CV-12526, 2019 WL 316527, at *3 (E.D. Mich. Jan. 24, 2019) ; see 5 U.S.C. § 706(2)(A). The court also denied plaintiffs’ motion to file supplemental briefing. Id. at *4. Plaintiffs timely appealed.

II.

We begin with jurisdiction. "We review a district court’s findings as to whether it had subject matter jurisdiction de novo." Mehanna v. USCIS , 677 F.3d 312, 314 (6th Cir. 2012) (citation omitted).

The INA contains a jurisdiction-stripping provision stating 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) of this title." 8 U.S.C. § 1252(a)(2)(B). The government argues that this provision applies to USCIS’s decision to revoke Rizk’s visa petition, divesting us (and the district court) of subject-matter jurisdiction.

The Supreme Court has "admonishe[d] the courts to read the [INA’s] jurisdiction-stripping provisions narrowly—in ‘accord[ ] with [the] traditional understanding ... that executive determinations generally are subject to judicial review.’ " Berhane v. Holder , 606 F.3d 819, 822 (6th Cir. 2010) (quoting Kucana v. Holder , 558 U.S. 233, 251, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) ) (third and fourth alterations and omission in original). It takes clear and convincing evidence to dislodge the well-settled presumption in favor of judicial review. Kucana , 558 U.S. at 251–52, 130 S.Ct. 827. Moreover, the Supreme Court has made clear that § 1252(a)(2)(B) applies "only to Attorney General determinations made discretionary by statute" and not "to determinations declared discretionary by the Attorney General himself through regulation." Id. at 237, 130 S.Ct. 827.

One such discretionary determination comes from 8 U.S.C. § 1155 : "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." In Mehanna v. USCIS , we held that "the Secretary’s decision to revoke a visa petition under section 1155 is an act of discretion that Congress has removed from our review" under § 1252(a)(2)(B)(ii). 677 F.3d at 315. We reached that conclusion by looking to the plain language of § 1155, observing that "may," "at any time," and "deem" all "suggest[ ] discretion." 677 F.3d at 315. And "the statute leaves it to the Secretary’s opinion, judgment, or thought, whether there exists ‘good and sufficient cause’ to revoke a petition." Id. This language indicates that "Congress committed the decision of whether to revoke a visa petition to the discretion of the Secretary." Id.

But § 1155 is not the only relevant provision here. In its letter explaining the visa revocation decision, USCIS specified that it "began this revocation action based on INA 204(c)" (which is codified as 8 U.S.C. § 1154(c) ). That section provides that

Notwithstanding the provisions of subsection (b), no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

8 U.S.C. § 1154(c). Unlike § 1155, this section does not contain the same discretion-indicating language that we highlighted in Mehanna . Quite the opposite. Section 1154(c) contains the word "shall," and "Congress’ use of the term ‘ "shall" ’ indicates an intent to ‘impose discretionless obligations.’ " Fed. Exp. Corp. v. Holowecki , 552 U.S. 389, 400, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008) (quoting Lopez v. Davis , 531 U.S. 230, 241, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001) ).

Several circuits "have found the courts retain jurisdiction to review denials of I-130 petitions." Ginters v. Frazier , 614 F.3d 822, 827–28 (8th Cir. 2010) (citing Ogbolumani v. Napolitano , 557 F.3d...