Khalil v. Hazuda

• Decision Date: 22 July 2015
• Docket Number: CIVIL ACTION NO. H-14-2483
• Citation: Khalil v. Hazuda, CIVIL ACTION NO. H-14-2483 (S.D. Tex. Jul 22, 2015)
• Parties: SYED NAIYER KHALIL, et al., Plaintiffs, v. MARK J. HAZUDA, Director, United States Citizenship and Immigration Services, Nebraska Service Center; LEON RODRIGUEZ, Director, United States Citizenship and Immigration Services; JEN JOHNSON, Secretary of the Department of Homeland Security; JOHN F. KERRY, United States Secretary of State; THOMAS L. VAJDA, Consul General, United States Consulate, Kolkata, India; and EDWARD RAMOTOWSKI, Deputy Assistant Secretary of State for Visa Services, Defendants.
• Court: U.S. District Court — Southern District of Texas

SYED NAIYER KHALIL, et al., Plaintiffs, v. MARK J. HAZUDA, Director, United States Citizenship and Immigration Services,Nebraska Service Center; LEON RODRIGUEZ, Director,United States Citizenship and Immigration Services; JEN JOHNSON,Secretary of the Department of Homeland Security; JOHN F. KERRY,United States Secretary of State; THOMAS L. VAJDA, Consul General,United States Consulate, Kolkata, India; and EDWARD RAMOTOWSKI,Deputy Assistant Secretary of State for Visa Services, Defendants.

CIVIL ACTION NO. H-14-2483

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

July 22, 2015

MEMORANDUM AND OPINION

I. Background

Syed Naiyer Khalil is a citizen of India, where he currently lives. Khalil has never had immigrant or permanent status in the United States. (Docket Entry No. 1, No. 26). The record does not reveal when Khalil began working for Herbal Pharma in the United States on an authorized H-1B visa,¹ but in May 2006, Herbal Pharma sought and obtained approval for a Form ETA-9089² Application for Permanent Employment Certification for Khalil. (Docket Entry No.1, No. 26). In June 2006, Herbal Pharma filed a Form I-140³ Visa Petition for Alien Worker ("I-140") on Khalil's behalf. That petition was approved in October 2006. (Docket Entry No. 1, No. 26). In July 2007, Khalil filed a Form I-485⁴ Application to Register Permanent Residence or Adjust Status.

In September 2009, Khalil's visa expired. He continued working for Herbal Pharma without an approved H-1B petition or an Employment Authorization Document. (Docket Entry No. 1). Three years later, in October 2011, his I-485 application was denied because he had worked without authorization for more than 180 days. (Docket Entry No. 1, No. 26).

In June 2011, Herbal Pharma filed an application to transfer its Form I-140 petition to the U.S. Consulate in Mumbai, India. The United States Citizenship and Immigration Services ("USCIS") granted the application on October 14, 2011. (Docket Entry No. 1). In early 2012, Khalil stopped working for Herbal Pharma. He left the United States for India in late March 2012. (Docket Entry No. 1, No. 26). On April 9, 2012, Khalil applied for an immigrant visa under 8 U.S.C. §§ 1201-1202 before a consular officer at the United States consulate in Mumbai, India.(Docket Entry No. 1, No. 26). At his immigrant visa interview, Khalil presented an offer of same or similar employment from Chemquest International. (Docket Entry Nos.1, 26). The consulate refused to issue a visa under 8 U.S.C. § 1201(g), which provides that "[n]o visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law, (2) the application fails to comply with the provisions of this chapter, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law." 8 U.S.C. § 1201(g). (Docket Entry No. 1, No. 26).

In August 2013, Khalil interviewed at the American consulate in Mumbai. He presented a letter with an updated employment offer from Chemquest International. (Docket Entry No. 1, No. 26). The consulate again refused to issue a visa under 8 U.S.C. § 1201(g). The consular officer returned the I-140 visa petition to the USCIS to consider revocation under 8 U.S.C. § 1155, which provides that "[t]he 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." (Docket Entry No. 1, No. 26).

On February 10, 2014, the USCIS issued a notice of intent to revoke the I-140 petition approval under 8 U.S.C. § 1155, and did so on March 26, 2014. (Docket Entry No. 1, No. 26). On November 28, 2014, a consular officer refused the visa application Khalil and his family membersfiled under 8 U.S.C. § 1182(a)(5)⁵ because the USCIS had revoked the underlying I-140 petition approval. (Docket Entry No. 26, Ex. 1, Ex. 2).

On August 27, 2014, Khalil and his family members filed this action, alleging that the I-140 revocation and the refusal to adjudicate their immigrant visa application violated the Immigration and Nationality Act ("INA"), the INA's implementing memoranda, the Administrative Procedure Act ("APA"), and the Due Process Clause of the United States Constitution. (Docket Entry No. 1). On December 10, 2014, the government moved to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6) for failure to state a claim. (Docket Entry No. 26). The plaintiffs responded, the government replied, and the court heard oral argument. (Docket Entry No. 29, 33, 34).

II. The Legal Standard

Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court's subject-matter jurisdiction. "A case is properly dismissed, for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Masidon, 143 F.3d 1006, 1010 (5th Cir. 1998). "Courts may dismiss for lack ofsubject matter jurisdiction on any one of three bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). When examining a factual challenge to subject-matter jurisdiction under Rule 12(b)(1), which does not implicate the merits of plaintiff's cause of action, the district court has substantial authority "to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997); see also Clark, 798 F.2d at 741. When a party challenges the allegations supporting subject-matter jurisdiction, the court has wide discretion to allow affidavits, other documents, and to hold a limited evidentiary hearing to resolve disputed jurisdictional facts. The court may consider matters outside the pleadings, such as testimony and affidavits, to resolve a factual challenge to subject-matter jurisdiction, without converting the motion to dismiss to one for summary judgment. See Garcia, 104 F.3d at 1261. The plaintiff bears the burden of demonstrating that subject-matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).

III. Analysis

Section 1252(a)(2)(B)(ii) states that no court has 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)." 8 U.S.C. § 1252(a)(2)(B)(ii). The statutory provision governing visa petition revocations, 8 U.S.C. §1155, states that "[t]he Secretary of Homeland Security may, at any time, for what he deems to be goodand sufficient cause, revoke the approval of any petition approved by him under section 1154 of this title [which includes an I-140 petition]." 8 U.S.C. § 1155. Though the circuits are split on the issue,⁶ the Fifth Circuit has held that the Secretary's revocation of an I-140 petition approval under §1155 is discretionary and therefore not subject to judicial review. See Ghanem v. Upchurch, 481 F.3d 222 (5th Cir. 2007).

In Ghanem, the USCIS had approved an immigrant visa petition for Ms. Ghanem's Jordanian husband but subsequently "revoked the previously approved visa." Id. at 223. After the Ghanems unsuccessfully sought review in the Board of Immigration Appeals, they "filed a complaint for review of the revocation of the visa in [the] district court." Id. After "[t]he district court ruled that it lacked jurisdiction over the complaint and dismissed it," the Fifth Circuit considered "whether the decision of the Secretary of Homeland Security to revoke a visa pursuant to 8 U.S.C. [§] 1155 is discretionary, thus stripping this Court of jurisdiction to review the decision." Id. The court concluded that the decision was discretionary and affirmed the district court's dismissal. The Fifth Circuit declined to follow the Ninth Circuit's approach and instead "followed the lead of the Third and Seventh Circuits" in holding that the phrase "for what he deems" vested "complete discretion in the Secretary to determine what constitutes good and sufficient cause." Id. at 225.

The plaintiffs argue that when all the conditions of the portability provision (§1154(j)) apply, the Secretary's revocation of an I-140 petition approval is not discretionary and the court has jurisdiction. (Docket Entry No. 33). Section 1154(j) states that "an individual whose application for adjustment of status pursuant to § 1255 of this title has been filed and remained unajudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or similar occupational classification as the job for which the petition was filed." 8 U.S.C. § 1154(j). The plaintiffs argue that the mandatory language of the statute, "shall remain valid," bars the Secretary from subsequently revoking a visa petition approval under § 1155, making his decision to do so reviewable. (Docket Entry No. 33). The plaintiffs also argue that § 1154(j)'s specific and mandatory language should trump § 1155's general grant of discretion because Congress enacted § 1154(j) in 2000, after § 1252(a)(2)(B)(ii) became law and after § 1155 was included in the INA. The plaintiffs contend...