Zhu v. Gonzales, 04-5102.
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
| Citation | 411 F.3d 292 |
| Docket Number | No. 04-5102.,04-5102. |
| Parties | Zhouqin ZHU, et al., Appellants v. Alberto GONZALES, United States Attorney General, et al., Appellees |
| Decision Date | 17 June 2005 |
v.
Alberto GONZALES, United States Attorney General, et al., Appellees
Page 293
Appeal from the United States District Court for the District of Columbia (No. 02cv00685).
Frederic W. Schwartz, Jr. argued the cause and filed the briefs for appellants.
Alan Burch, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. Edith M. Shine and R. Craig Lawrence, Assistant U.S. Attorneys, entered appearances.
Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND, Circuit Judges.
GINSBURG, Chief Judge.
Four citizens of the People's Republic of China, working as medical researchers in the United States, appeal from an order of the district court dismissing their complaint, in which they sought review of the Attorney General's refusal to waive the requirement they obtain a "labor certification" in order to petition for a work visa. The district court held that § 242(a)(2)(B)(ii) of the Immigration and Nationality Act (INA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1252(a)(2)(B)(ii), deprived the court of jurisdiction to entertain the complaint. We agree and hence affirm the district court's dismissal of the complaint.
The plaintiffs each petitioned for a work visa under § 203(b)(2) of the INA, which gives a preference to otherwise "qualified immigrants who are members of the professions holding advanced degrees." 8 U.S.C. § 1153(b)(2)(A). Ordinarily a § 203(b)(2) petitioner must get a certification from the Secretary of Labor that "there are not sufficient workers" in the field in which he works and that his employment "will not adversely affect the wages and working conditions of workers in the United States." Id. § 1182(a)(5)(A). "[T]he Attorney General may," however, "when [he] deems it to be in the national interest, waive the requirements of [§ 1153(b)(2)(A)] that an alien's services in the sciences, arts, professions, or business
Page 294
be sought by an employer in the United States." Id. § 1153(b)(2)(B)(i).
The Attorney General delegated his authority to waive the labor certification requirement to the Commissioner of the Immigration and Naturalization Service (INS), 8 C.F.R. § 2.1 (2001) — now the Bureau of Citizenship and Immigration Services, Department of Homeland Security — who in turn delegated it to the directors of the several INS regional service centers, id. § 204.5(k)(ii). Each plaintiff, in his or her petition for a work visa, requested that the appropriate regional director waive the labor certification requirement, and each such request was denied.
After the Office of Administrative Appeals affirmed those denials, the plaintiffs filed this action in the district court, which granted the Government's motion to dismiss for lack of subject-matter jurisdiction. Zhu v. INS, 300 F.Supp.2d 77, 81 (2004). Specifically, the court held judicial review of a decision to deny a waiver of the labor certification requirement was barred by § 1252(a)(2)(B)(ii), which provides in relevant part,
Notwithstanding any other provision of law, no court shall have jurisdiction to review —
....
(ii) any ... decision or action of the Attorney General the authority for which is specified under [subchapter 2 of chapter 12 of 8 U.S.C., §§ 1151-1379] to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title
and the plaintiffs appealed.
The plaintiffs argue the reference in § 1252(a)(2)(B)(ii) to decisions "specified ... to be in the discretion of the Attorney General" denotes only decisions made expressly discretionary by the terms of the authorizing statute. The Government defends the district court's reading of the statute and argues in the alternative that the Attorney General's decision not to waive the labor certification requirement is "committed to agency discretion by law" and hence shielded from judicial review under the Administrative Procedure Act, 5 U.S.C. § 701(a)(2). Reviewing the question of statutory interpretation de novo, see...
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...of the term "national interest" and did not "set forth any guideposts" for applying the term. Id. at 133 ; see also Zhu v. Gonzales , 411 F.3d 292, 295 (D.C. Cir. 2005) (reaching the same conclusion).This Court is persuaded by the reasoning of Uranga , Gonzalez , and these other cases. Ther......
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Qiu v. Chertoff, Civil Action No. 07-123 (SRC).
...USA, Inc. v. Chertoff, 447 F.3d 196, 203 (3d Cir.2006) ("The usual presumption is that `may' confers discretion" (quoting Zhu v. Gonzales, 411 F.3d 292, 295 (D.C.Cir. The regulation that speaks most directly to the Defendants' discretion to withhold adjudication is 8 C.F.R. § 103.2(b)(18), ......
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Liu v. Novak, Civil Action No. 07-263 (EGS).
...provision only bars review of "matters of pure discretion, rather than discretion guided by legal standards"); see also Zhu v. Gonzales, 411 F.3d 292, 295 (D.C.Cir. 2005) (declining to decide how discretionary a decision must be to be barred from review). Within the subchapter referred to, ......
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Itech U.S., Inc. v. Renaud, 20-5235
...that section 1252(a)(2)(B)(ii) shields the decision to revoke an I-140 petition from judicial review de novo . Zhu v. Gonzales , 411 F.3d 292, 294 (D.C. Cir. 2005). We start from "the presumption favoring judicial review of administrative action." Make the Road New York v. Wolf , 962 F.3d 6......
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N-N v. Mayorkas, 19-CV-5295(EK)
...of the term "national interest" and did not "set forth any guideposts" for applying the term. Id. at 133 ; see also Zhu v. Gonzales , 411 F.3d 292, 295 (D.C. Cir. 2005) (reaching the same conclusion).This Court is persuaded by the reasoning of Uranga , Gonzalez , and these other cases. Ther......
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Qiu v. Chertoff, Civil Action No. 07-123 (SRC).
...USA, Inc. v. Chertoff, 447 F.3d 196, 203 (3d Cir.2006) ("The usual presumption is that `may' confers discretion" (quoting Zhu v. Gonzales, 411 F.3d 292, 295 (D.C.Cir. The regulation that speaks most directly to the Defendants' discretion to withhold adjudication is 8 C.F.R. § 103.2(b)(18), ......
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Liu v. Novak, Civil Action No. 07-263 (EGS).
...provision only bars review of "matters of pure discretion, rather than discretion guided by legal standards"); see also Zhu v. Gonzales, 411 F.3d 292, 295 (D.C.Cir. 2005) (declining to decide how discretionary a decision must be to be barred from review). Within the subchapter referred to, ......
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Itech U.S., Inc. v. Renaud, 20-5235
...that section 1252(a)(2)(B)(ii) shields the decision to revoke an I-140 petition from judicial review de novo . Zhu v. Gonzales , 411 F.3d 292, 294 (D.C. Cir. 2005). We start from "the presumption favoring judicial review of administrative action." Make the Road New York v. Wolf , 962 F.3d 6......