Royal Siam Corp. v. Chertoff

Decision Date27 April 2007
Docket NumberNo. 06-1947.,06-1947.
Citation484 F.3d 139
PartiesROYAL SIAM CORP. and Surasak Srisang, Plaintiffs, Appellants, v. Michael CHERTOFF, Secretary of the Department of Homeland Security,<SMALL><SUP>*</SUP></SMALL> et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Patrick D. O'Neill, with whom O'Neill & Gilmore, P.S.C. was on brief, for appellants.

Sheldon Gisser, Office of Chief Counsel, United States Citizenship and Immigration Services, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney (Chief, Appellate Division), and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellees.

Before TORRUELLA, Circuit Judge, SELYA, Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Senior Circuit Judge.

After the Department of Homeland Security (DHS), through its division of Citizenship and Immigration Services (CIS), denied a petition for renewal of a nonimmigrant specialty occupation visa, the petitioner, Royal Siam Corporation (RSC), together with the affected worker, Surasak Srisang, brought a civil action in the United States District Court for the District of Puerto Rico in hopes of reversing CIS's decision. Those hopes were never realized. After some procedural backing and filling, the district court granted summary judgment in favor of the defendants (all government agencies or actors). See Royal Siam Corp. v. Ridge, 424 F.Supp.2d 338 (D.P.R.2006). Upon careful consideration of the plaintiffs' appeal, we affirm.

I. BACKGROUND

We assume the reader's familiarity with the district court's opinion and, thus, content ourselves with a sketch of the pertinent facts and travel of the case.

RSC owns and operates an upscale Thai restaurant in Carolina, Puerto Rico. On a petition filed by RSC's predecessor in interest in 1999, Srisang — a Thai national who purportedly possessed the equivalent of a bachelor's degree in business administration — received a specialty occupation visa (colloquially known as an H-1B visa). This nonimmigrant visa allowed him to enter the United States for a three-year period in order to work as a restaurant manager. Srisang availed himself of the opportunity.

In 2002, with Srisang's visa due to expire, RSC sought its renewal. During the course of its review, CIS advised RSC of its doubts about the petition. On October 24, 2002, the agency issued a request for additional proof, noting that the "evidence submitted is not sufficient to establish that the job is specialty in scope." Although RSC made a supplemental submission, CIS eventually denied the petition. On administrative review, CIS's appeals office upheld the denial.1

RSC and Srisang thereupon commenced this action, posturing it as a request for review of a final agency decision under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706. In their complaint, they sought declaratory and injunctive relief. The district court stayed removal proceedings against Srisang. In due course, the court, while retaining jurisdiction, remanded the case to CIS for a fuller explanation of its decision. The district court found the cryptic quality of the original decision especially troubling in light of the agency's 1999 approval of an H-1B visa petition for what the court deemed to be an "equivalent position."

On remand, CIS reaffirmed its previous denial of the 2002 petition. In explaining its decision, CIS observed that it now regarded its grant of the 1999 petition (which rested on similar data) as plainly erroneous because the job, as described by RSC's predecessor in interest, did not qualify as a specialty occupation. See 8 U.S.C. §§ 1101(a)(15)(H)(i)(b), 1184(i); 8 C.F.R. § 214.2(h)(4)(iii)(A). A job does not qualify as a specialty occupation unless it satisfies an amalgam of criteria that relate to educational requirements, complexity of the work, the specialized nature of the duties to be performed, and the like. See 8 C.F.R. § 214.2(h)(4)(iii)(A). In this case, the agency concluded that the proof submitted did not establish that the restaurant manager position — either in 1999 or in 2002 — constituted a specialty occupation within the purview of these criteria.

CIS's explanation did not stop there. The agency noted that its approval of the earlier petition had been erroneous for another reason as well. In 1998, CIS had found Srisang's marriage to a United States citizen fraudulent, that is, entered into for the purpose of circumventing the immigration laws. Citing 8 U.S.C. § 1154(c), CIS expressed the view that because Srisang had engaged in marriage fraud, he was "statutorily ineligible" for a specialty occupation visa.

The circumstances attendant to this alternate ground of decision are not in dispute. The marriage occurred in 1995. As a result, Srisang was conditionally granted lawful permanent resident status. In 1997, Srisang sought to make that status unconditional. Following an investigation, however, CIS found the marriage fraudulent (a finding that Srisang does not now contest). Withal, the government's left hand obviously did not appreciate what the right hand was doing. Although the marriage fraud finding was brought to CIS's attention in connection with the 1999 specialty occupation visa petition, the agency had, in an apparent oversight, approved that petition.2

With CIS's detailed amplification of the binary grounds for rejection of the 2002 visa petition in hand, the district court ruled that the denial was neither arbitrary nor capricious. See Royal Siam, 424 F.Supp.2d at 343. Accordingly, the court entered summary judgment in the defendants' favor. This timely appeal ensued.

II. DISCUSSION

On appeal, RSC and Srisang attack both of the reasons advanced by CIS in support of its decision. First, they maintain that the restaurant manager position qualifies as a specialty occupation and that CIS, in failing to reach this conclusion, acted arbitrarily. Second, they posit that the marriage fraud bar does not apply in cases involving nonimmigrant visas. As a fallback, they exhort us to find that the government forfeited any right to invoke either rationale by approving the 1999 visa petition notwithstanding full disclosure, at that time, of both the job description and the marriage fraud.

The government rejoins that we lack jurisdiction to entertain this appeal under the Immigration and Nationality Act (INA), as amended by the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(B)(ii). Its second line of defense is that both grounds of decision were well-taken; that neither was waived; and that, therefore, the district court's decision is bulletproof on the merits.

Given the sprawling nature of this asseverational array, we begin at the beginning and address the jurisdictional question. We then move to the merits.

A. The Jurisdictional Question.

Under 28 U.S.C. § 1291, we have jurisdiction over appeals from final decisions and orders of the district courts within this circuit. The case before us comprises an appeal from a decision of one such district court — a decision that is final inasmuch as it ends the litigation pending in that court, leaving nothing to be done but to execute the judgment. Consequently, we have jurisdiction over this appeal. See Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 199 n. 4 (3d Cir.2006); El-Khader v. Monica, 366 F.3d 562, 565-66 (7th Cir. 2004).

That is not the end of the jurisdictional issue. The real import of the government's jurisdictional exegesis relates to whether the district court had subject-matter jurisdiction. We must consider that aspect of the argument despite the government's awkward phrasing of it. After all, it normally is incumbent upon an appellate court to satisfy itself both of its own subject-matter jurisdiction and of the subject-matter jurisdiction of the trial court before proceeding further. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986); Irving v. United States, 162 F.3d 154, 160 (1st Cir.1998) (en banc).

In this instance, there may be reason to think that the jurisdiction of the district court seems suspect. The INA, in its current iteration, is littered with jurisdiction-stripping provisions. Of particular pertinence here, the law provides (with exceptions not relevant to this case) that:

Notwithstanding any other provision of law (statutory or nonstatutory) . . . and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review —

. . . .

(ii) any . . . decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under [8 U.S.C. §§ 1151-1381] to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under [certain asylum provisions].

8 U.S.C. § 1252(a)(2)(B)(ii). The government suggests that, under this provision, no court has jurisdiction to review CIS's denial of an H-1B visa petition because such a determination is fully committed to agency discretion. See id. § 1184(a)(1) (stating that "[t]he admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe").

The cogency of this argument is not self-evident. Even though the jurisdiction-stripping provisions of section 1252 apply outside the removal context, see Zhu v. Gonzales, 411 F.3d 292, 294 (D.C.Cir.2005); El-Khader, 366 F.3d at 567; CDI Info. Servs., Inc. v. Reno, 278 F.3d 616, 620 (6th Cir.2002); Van Dinh v. Reno, 197 F.3d 427, 432 (10th Cir.1999), the question remains whether the statutory scheme places the authority to grant H-1B visa petitions sufficiently within CIS's discretion as to engage the gears of the jurisdictional bar.

The answer to this question is freighted with uncertainty, in part because the courts of appeals have...

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