Jilin Pharmaceutical USA, Inc. v. Chertoff

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

5-10-2006

Jilin Pharm USA Inc v. Secretary Homeland

Precedential or Non-Precedential: Precedential

Docket No. 05-2788

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-2788

JILIN PHARMACEUTICAL USA, INC.;

WEI ZHAO, (File #: A76 104 871)

Appellants

v.

MICHAEL CHERTOFF, Secretary of the United States

Department of Homeland Security;* ALBERTO

GONZALES, Attorney General of the United States, U.S.

Department of Justice;** EDUARDO AGUIRRE, JR.,

Director of the United States Citizenship and Immigration

Services; UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES, BUREAU OF

DEPARTMENT OF HOMELAND SECURITY; UNITED

STATES OF AMERICA

*

Substituted pursuant to Rule 43(c)(2), Federal Rules of

Appellate Procedure.

**

Substituted pursuant to Rule 43(c)(2), Federal Rules of

Appellate Procedure.

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 04-cv-05678)

District Judge: Honorable Faith S. Hochberg

Argued April 3, 2006

Before: RENDELL, SMITH, and ALDISERT, Circuit Judges

(Filed: May 10, 2006)

Isaac Fromm, Esq.

Martin L. Rothstein, Esq. (ARGUED)

Barst & Mukamal, LLP

2 Park Avenue, 19th Floor

New York, New York 10016

Counsel for Appellants

Pamela Perron, Esq.

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

David V. Bernal, Esq.

Barry J. Pettinato, Esq. (ARGUED)

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

2

Counsel for Appellee

OPINION

ALDISERT, Circuit Judge.

In Soltane v. United States Department of Justice, 381

F.3d 143 (3d Cir. 2004), we construed the statute governing the

denial of a visa application, 8 U.S.C. § 1153(b)(4), and held that

8 U.S.C. § 1252(a)(2)(B)(ii) did not strip the district court of

jurisdiction to review this administrative decision. This appeal

by Jilin Pharmaceutical USA, Inc. (“Jilin USA”) and Wei Zhao

from an order of the District Court for the District of New Jersey

dismissing their complaint for lack of subject matter jurisdiction

does not involve a denial of a visa application, but rather a

revocation of a visa already granted. This requires us to

compare the language of the separate statutes dealing with visa

denial and revocation, and, having done so, we conclude that a

distinction exists between the two statutes in the quanta of

discretion conferred upon the Secretary of Homeland Security.

Accordingly, we will affirm the order of the District Court

holding that we lack jurisdiction to review this discretionary

determination. We will affirm also the Court’s determination

that it lacked jurisdiction to hear Appellants’ Fifth Amendment

due process claims.

I.

3

Appellant Wei Zhao is a native and citizen of the

People’s Republic of China. Appellant Jilin USA, which was

incorporated in 1996 in the state of New Jersey, is a wholly

owned United States subsidiary of Jilin Ltd. In 1996, Jilin Ltd.

transferred Zhao, who was manager of the company’s import

and export division, from China to the United States to serve as

president and chief executive officer of Jilin USA. On July 26,

1996, in accordance with this plan, Jilin USA filed an

employment-based non-immigrant petition, Form I-129, on

behalf of Zhao to classify him as an L-1A non-immigrant

intracompany transferee. The supporting documentation

asserted that Zhao was an executive employee of Jilin Ltd. and

that he was transferring to Jilin USA in an executive and

managerial capacity, as defined at 8 U.S.C. § 1101(a)(44)(A) &

(B). The Immigration and Naturalization Service (“INS”)1

approved this request on October 29, 1996, granting Zhao L-1A

status until October 28, 1997. On November 5, 1997, the INS

approved a petition to extend Zhao’s L-1A status until October

28, 1999.

Following approval of this second petition, on August 29,

1998, Jilin USA filed a Form I-140 Immigrant Petition for Alien

Worker on behalf of Zhao and sought to classify Zhao under the

E-1-3 visa category, which permits executive and managerial

intracompany transferees to become permanent residents of the

1

On March 1, 2003, the INS ceased to exist as an independent

agency within the United States Department of Justice and the

INS’s functions were transferred to the Department of

Homeland Security. See Homeland Security Act of 2002, Pub.

L. No. 107-296, §§ 441, 451, 471, 116 Stat. 2135 (2002).

4

United States under 8 U.S.C. § 1153(b)(1)(C). On December

16, 1998, the INS approved the petition and granted the visa.

Upon that approval of the Form I-140, on July 7, 1999, Zhao

and his immediate family filed Form I-485 applications for

adjustment of status from non-immigrant to that of lawful

permanent resident.

On September 13, 2000, the INS notified Jilin USA and

Zhao that it intended to revoke its prior approval of the Form I-

140 visa petition. The INS was unconvinced that Zhao had been

and would be employed in a primarily executive or managerial

capacity. On April 5, 2001, the INS revoked Zhao’s visa, noting

that Jilin USA and Zhao had provided only a vague description

of his job and had not established that he worked in an executive

or managerial capacity.

Jilin USA appealed to the Office of Administrative

Appeals (“OAA”) and submitted a more detailed description of

Zhao’s duties. On January 30, 2003, holding that the “record

contains insufficient evidence to demonstrate that [Zhao] has

been employed in a primarily managerial or executive capacity,”

the OAA affirmed the visa revocation and dismissed the appeal.

The OAA subsequently denied Jilin and Zhao’s motion to

reopen on August 24, 2004.2

On November 15, 2004, Jilin USA and Zhao filed a

complaint for mandatory and declaratory relief in the United

2

On July 16, 2003, the INS also denied Zhao’s Form I-485

application, because the record did not indicate that he was the

beneficiary of an “approved immigrant petition.”

5

States District Court for the District of New Jersey. The

complaint “challenge[d] the legally incorrect and unjustifiable”

revocation of the approval of Zhao’s visa petition. Concerned

about its jurisdiction, the District Court ordered the parties to

file briefs detailing the statutory provision giving rise to federal

court jurisdiction to review the administrative decision to revoke

Zhao’s visa. Both parties submitted timely responses.3

Holding that it was “barred from asserting jurisdiction

over visa revocations at the discretion of the Attorney General

even when the visa holder is already in the United States,” the

District Court dismissed the complaint on February 25, 2005, for

lack of subject matter jurisdiction. In making this

determination, the District Court observed that this was a matter

of first impression in this Circuit and accepted the analysis and

conclusion of the Court of Appeals for the Seventh Circuit’s

opinion in El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004)

(holding that § 1252(a)(2)(B)(ii) precludes judicial review of the

revocation of a visa petition under § 1155).

Arguing that the Court had committed a clear error of

3

On January 12, 2005, the Court also ordered briefing upon

recent amendments made by Congress to § 1155 and the impact

of the Second Circuit’s decision in Firstland International, Inc.

v. United States INS, 377 F.3d 127 (2d Cir. 2004) (deciding

whether § 1252(a)(2)(B) prevented courts from reviewing a

decision of the Attorney General, made pursuant to § 1155, to

revoke the approval of an immigrant visa petition after the

beneficiary was inside the United States). Both parties filed

timely responses.

6

law, that the controlling law had changed, and that a manifest

injustice would result if the February 25 decision were not

reversed, Jilin USA and Zhao filed a motion for reargument with

the District Court on March 7, 2005. The primary focus in their

motion was the Court of Appeals for the Ninth Circuit’s opinion

in ANA International, Inc. v. Way, 393 F.3d 886 (9th Cir.

2004), in which the court rejected the Seventh Circuit’s logic

and held that § 1252(a)(2)(B)(ii) does not deny jurisdiction to

review a revocation decision made pursuant to § 1155. The

District Court rejected the motion on May 11, 2005, concluding

that El-Khader was more persuasive than the analysis of ANA

International. This appeal followed.4

4

Pursuant to 28 U.S.C. § 1291, we have jurisdiction to hear this

appeal of a final judgment. Because Jilin USA and Zhao are

appealing the denial of their motion for reargument, we examine

the District Court’s denial of that motion for an abuse of

discretion. Alston v. Parker, 363 F.3d 229, 233 (3d Cir. 2004).

“The purpose of a motion for reconsideration is to correct

manifest errors of law or fact or to present newly discovered

evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d

Cir. 1985). We exercise plenary review over a district court’s

determination that it lacks subject matter jurisdiction, and when

“reviewing a facial challenge to this Court’s subject matter

jurisdiction, we accept all well-pleaded allegations in the

complaint as true and view them in the light most favorable to

the plaintiff. ” In re Kaiser Group Intern. Inc., 399 F.3d 558,

561 (3d Cir. 2005) (citation omitted). Finally, we review de

novo the District Court’s statutory interpretations and

conclusions of law. In re Ferandos, 402 F.3d 147, 150 (3d Cir.

2005).

7

II.

When analyzing our jurisdiction to review the

administrative decision to revoke a visa, the starting point for

our discussion is found in the text of 8 U.S.C. §

1252(a)(2)(B)(ii). Therein, Congress has dictated 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).

8 U.S.C. § 1252(a)(2)(B)(ii).5 By its terms it therefore becomes

necessary always to examine “the authority for which is

5

Since the enactment of the REAL ID Act, this jurisdiction-

stripping provision applies “regardless of whether the

[administrative] judgment, decision, or action is made in

removal proceedings.” REAL ID Act of 2005, Pub. L. No. 109-

13, Div. B., § 101(f)(2), 119 Stat. 302, 305 (2005) (codified as

amended at 8 U.S.C. § 1252(a)(2)(B)). This amendment applies

as of the date of the enactment of the REAL ID Act “to all cases

pending before any court on or after such date,” § 101(h)(4),

119 Stat. at 306, and resolved whether § 1252(a)(2)(B) applied

outside the context of removal proceedings. See ANA Int’l, 393

F.3d at 891 n.3 (describing conflicting holdings of courts on this

issue).

8

specified,” that is to say, the statute setting forth the nature of

the administrative discretion granted.

A.

We now must compare the statute that was before this

Court in Soltane with the one governing the case at bar. In

Soltane, the government contended that the following provision

deprived the district court of jurisdiction to review the denial of

a visa:

Visas shall be made available, in a number not to

exceed 7.1 percent of such worldwide level, to

qualified special immigrants described in [8

U.S.C. § 1101(a)(27)] . . . of which not more than

5,000 may be made available in any fiscal year to

special immigrants described in subclause (II) or

(III) of [8 U.S.C. § 1101(a)(27)(C)(ii)(II) or (III)],

and not more than 100 may be made available in

any fiscal year to special immigrants, excluding

spouses and children, who are described in [8

U.S.C. § 1101(a)(27)(M)].

8 U.S.C. § 1153(b)(4) (emphasis added). We held that this

language was not specific enough to vest unreviewable

discretion in the Attorney General.

We concluded that the “key to § 1252(a)(2)(B)(ii) lies in

its requirement that the discretion giving rise to the jurisdictional

bar must be ‘specified’ by statute,” and that whether such a

specification has been made is determined “by examining the

9

statute as a whole.” Id. at 146-147 (emphasis added). We

cautioned, however, that “the use of marginally ambiguous

statutory language, without more, is [inadequate] to ‘specif[y]’

that a particular action is within the Attorney General’s

discretion for the purposes of § 1252(a)(2)(B)(ii).” Id. at 147.

That an agency has “discretion” under Chevron to interpret the

statute it administers does not mean courts lack jurisdiction to

review its interpretations. Id. at 148. Such “ubiquitous”

discretion was not what Congress intended by §

1252(a)(2)(B)(ii). Id. Indeed, if the term “discretion” were

construed too broadly, “it is hard to imagine any action by the

Attorney General under the relevant title that would not be

deemed discretionary.” Id. at 148 n.3.

B.

We now turn to the discretion-vesting statute governing

the revocation of a visa. It is found in 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.

8 U.S.C. § 1155 (2005).6

6

Prior to December 2004, this provision vested the Attorney

General, not the Secretary of Homeland Security, with the

authority to revoke approval of a petition. Intelligence Reform

and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, §

5304(c), 118 Stat. 3638, 3736 (2004). At the same time,

10

Even by a most cursory comparison of the statutes it is

apparent that § 1155 is light-years away from the provision that

was before us in Soltane in terms of the discretion it specifies is

in the hands of the Secretary. That being so, we now address the

central question now presented in this appeal, whether §

1252(a)(2)(B)(ii) deprives courts of jurisdiction to review

administrative decisions made pursuant to 8 U.S.C. § 1155.

III.

A.

We are not the first court of appeals to address the

applicability of the jurisdictional bar of § 1252(a)(2)(B)(ii) to

administrative decisions made pursuant to § 1155. The Court of

Appeals for the Seventh Circuit first took up the visa revocation

issue in El-Khader, where the court observed that § 1155 states

that the Attorney General “may” revoke approval of a petition,

and may do so “at any time.” 366 F.3d at 567. In the court’s

view, “[t]his language plainly signifies a discretionary decision.”

Id. Accordingly, it held that the discretionary nature of a

revocation of approval “is apparent from the plain language of

Congress also streamlined the statute by striking the statute’s

notice requirement that limited the time at which the Attorney

General could revoke approval of a petition. Id. These

alterations were to apply to all revocations made under § 1155

before, on or after December 17, 2004. § 5304(d), 118 Stat. at

3736.

11

[§ 1155].”7 Id. at 567.

In ANA International, a split panel of the Court of

Appeals for the Ninth Circuit held otherwise. Basing its

analysis upon the premise that there is a “strong presumption in

favor of judicial review of administrative action,” it first

determined that it would give a narrow construction to §

1252(a)(2)(B). 393 F.3d at 891 (quoting INS v. St. Cyr, 533

U.S. 289, 298 (2001)). Accordingly, it determined that the only

acts “immunized from review by § 1252” are those constituting

“‘matters of pure discretion, rather than discretion guided by

legal standards.’” Id. (quoting Spencer Enters., Inc. v. United

States, 345 F.3d 683, 690 (9th Cir. 2003)).

Addressing § 1155, the ANA International court then

held that within this statute Congress clearly “authorize[d] some

measure of discretion” by using the phrase “may, at any time,

for what he deems to be.” Id. at 893. But, by incorporating the

“good and sufficient cause” language, the court also concluded

that Congress established a standard that restricts the discretion

7

The Court also rejected the argument that the broad statutory

language of § 1155 could be limited by INS precedent. Id. at

568. In rejecting the argument that INS precedent restricts and

redefines the discretionary nature of § 1155, the court held that

the INS regulations guiding the Attorney General in the granting

of a visa petition “are inapplicable in those instances where the

INS, acting under the authority of the Attorney General, chooses

to exercise its discretion in revoking a visa under § 1155 after a

petition for that visa has already been granted.” Id. (emphasis

in original).

12

of the Attorney General. Id. After examining both Ninth

Circuit and Board of Immigration Appeals cases, the court

decided that the “good and sufficient cause” language of § 1155

furnishes a “meaningful legal standard” and that the Attorney

General’s right or power to revoke approval was not entirely

within his “judgment or conscience.” Id. (citing Tongatapu

Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir.

1984); Matter of Tawfik, 20 I. & N. Dec. 166 (BIA 1990)).

It also held that the decision to revoke the appellant’s

visa was not only governed by § 1155, but also, because the

petitioner’s initial L-1A petition and subsequent I-140 petition

sought to classify him as a manager, by the definition of

“managerial capacity” that is codified at 8 U.S.C. § 1101(a)(44).

It determined that this statutory definition further served to

restrict the Attorney General’s discretion because the

determination of what constitutes a manager is not a

discretionary decision, but rather one governed by an objective

legal standard. Id. at 895-96. Accordingly, because of the

“good and sufficient cause language” and the definition of

manager at § 1101(a)(44), the court held that § 1252(a)(2)(B)(ii)

did not strip courts of jurisdiction to review decisions made by

the Attorney General pursuant to § 1155.

In a vigorous and, in our view, persuasive dissent, Judge

Tallman rejected much of the ANA International majority’s

interpretation of § 1155 and the provision’s interaction with §

1252(a)(2)(B)(ii). He wrote that “[a] common sense reading of

the language of § 1155, in conjunction with § 1252(a)(2)(B)(ii),

leads ineluctably to the conclusion that the Attorney General’s

visa revocation decisions are discretionary.” Id. at 896

13

(Tallman, J., dissenting). Section 1155 did not limit revocations

to good and sufficient cause, he reasoned, but rather to

circumstances in which the Attorney General deems there to be

good and sufficient cause. Id. at 897 (Tallman, J., dissenting).

“If the statutory language ‘may, at any time, for what he deems

to be’ indicates a ‘purely legal and hence non-discretionary’

decision such that review of the decision is permitted . . . it is

difficult to contemplate what would be an unreviewable

discretionary act.” Id. at 897-898 (Tallman, J., dissenting).

C.

Although this is a question of first impression for this

Court, we have nevertheless established general standards to

determine when a decision is unreviewable under §

1252(a)(2)(B)(ii). In Urena-Tavarez v. Ashcroft, 367 F.3d 154

(3d Cir. 2004), we considered whether § 1252(a)(2)(B)(ii)

precluded courts from reviewing the Attorney General’s denial

of a waiver under 8 U.S.C. § 1186a(c)(4).8 Upon considering

the language of § 1186a(c)(4), we held that it “explicitly assigns

to the Attorney General the discretion to ‘remove the conditional

8

Section 1186a(c)(4) provides that “[t]he Attorney General, in

the Attorney General’s discretion, may remove the conditional

basis of the permanent resident status for an alien . . . if the alien

demonstrates” one of three qualifications for waivers that follow

in the ensuing paragraphs. 8 U.S.C. § 1186a(c)(4). Moreover,

it states that “[t]he determination of what evidence [relevant to

its application] is credible and the weight to be given that

evidence shall be within the sole discretion of the Attorney

General.” Id.

14

basis of the permanent resident status for an alien’ who

demonstrates one of the three qualifications for waivers.” Id. at

159. Significantly, unlike § 1155, which is devoid of any legal

requirements, § 1186a(c)(4) contains several. Nevertheless, in

concluding that this statute still vests unreviewable discretion in

the Attorney General, we found it significant that the provision

“states that the Attorney General may grant such a waiver, not

that the Attorney General shall grant such a waiver, making

clear that the waiver may not be granted even if the legal

requirements of the three waiver qualifications are met.” Id. at

160 (emphasis in original). Moreover, we noted that “[n]ot only

may the Attorney General make the decision [to grant a waiver]

in her or his discretion, but the Attorney General has the ‘sole

discretion’ to decide ‘what evidence is credible and the weight

to be given that evidence.’” Id. (quoting § 1186a(c)(4)).

Consequently, we concluded that § 1252(a)(2)(B)(ii) divested us

of jurisdiction to consider the denial of waivers under §

1186a(c)(4). Less than four months later, we decided Soltane.

D.

Appellants’ essential contention before us is that within

§ 1155 the phrase “good and sufficient cause” is a

nondiscretionary, reviewable “statutory standard which must be

met before the Attorney General is free to exercise his discretion

in revoking a petition.” (Jilin USA Br. at 19.) Although they

concede that § 1252(a)(2)(B)(ii) precludes review of

discretionary decisions, they argue that rather than giving the

Attorney General limitless discretion to revoke approvals, “the

language of § 1155 is intended to give the Attorney General

[only] a small degree of latitude in determining the revocability

15

of a petition.” (Id. at 19.) In this case, they contend that the

revocation was grounded on the “clear and specific

requirements [of § 1101(a)(44)(A) & (B)] that must be met in

order to qualify as an executive or managerial employee,” and

we may therefore review that underlying “statutory

determination.” (Id. at 20-21.) Absent a grant of complete

discretion pursuant to § 1155, they argue, the jurisdictional bar

of § 1252(a)(2)(B)(ii) does not apply.

Appellants’ argument ignores the plain language of §

1155. Drawing from the lessons of Urena-Tavarez and Soltane,

and examining § 1155 in its entirety, we note several clear

indications that the revocation of an approval of a petition is

committed solely to administrative discretion.

First, § 1155 states that the Secretary of Homeland

Security (and, previously, the Attorney General) may revoke

approval of a petition. Urena-Tavarez teaches that such

language is indicative of administrative discretion for purposes

of § 1252(a)(2)(B)(ii). See 367 F.3d at 160 (observing that the

word “may” vests discretion in the Attorney General); see also

Zhu v. Gonzales, 411 F.3d 292, 295 (D.C. Cir. 2005) (citations

and quotations omitted) (“[T]he usual presumption is that ‘may’

confers discretion.”); cf. Soltane, 381 F.3d at 147 (stressing that

the word “shall” in § 1153(b)(4) makes the Attorney General’s

resulting determinations nondiscretionary).

Second, § 1155 states that approval may be revoked “at

any time.” This too connotes a level of discretion. El-Khader,

366 F.3d at 567; ANA Int’l, 393 F.3d at 893; Firstland Int’l, 377

F.3d at 132. Indeed, as the Court of Appeals for the Second

16

Circuit observed in Firstland International, the discretion to

revoke “at any time” had once been restricted by the now-

defunct notice requirement. 377 F.3d at 132; § 5304(c), 118

Stat. at 3736. Congress’s elimination of this requirement

strongly indicates an intent to strengthen the discretion of the

Secretary of Homeland Security to revoke approval of petitions.

Third, § 1155 permits revocation when the Secretary

“deems” there to be good and sufficient cause. This language

indicates that Congress committed to the Secretary’s discretion

the decision of when good and sufficient cause exists to revoke

approval. Cf. Zhu, 411 F.3d at 295 (emphasis added) (holding

that § 1153(b)(2)(B)(I), which allows the Attorney General to

waive a visa issuance requirement “when the Attorney General

deems it to be in the national interest,” comes within the “reach”

of § 1252(a)(2)(B)(ii) because it grants the Attorney General the

discretion to make that determination); but see ANA Int’l, 393

F.3d at 894-895 (emphasizing the determination of what

constitutes “good and sufficient cause” at the expense of explicit

statutory language (i.e., “deems”) that grants the Secretary

discretion to judge for himself what constitutes such cause).

Tracking the Ninth Circuit’s logic in ANA International,

Appellants argue that to determine “good and sufficient cause,”

the Attorney General must consider the definitions of manager

and executive as codified at § 1101(a)(44)(A) & (B). See ANA

Int’l, 393 F.3d at 895 (stating that when the Attorney General

relies upon discrete legal factors in making a decision, the

“meaning of that particular legal classification nevertheless

remains a reviewable point of law”). They argue that these

statutory definitions constitute reviewable nondiscretionary

17

factors beyond the reach of the jurisdictional bar of §

1252(a)(2)(B)(ii).

We disagree. The phrase “for what [the Secretary]

deems to be good and sufficient cause,” cannot be modified by

judicial fiat to read the naked words, “for good and sufficient

cause.” To remove from one premise in the argument the

statutory passage “for what [the Secretary] deems to be” is to

commit what logicians describe as the fallacy of vicious

abstraction.9 The operative fact required to exercise discretion

9

William S. Sahakian & Mabel Lewis Sahakian, Ideas of the

Great Philosophers 15-16 (1966). The Sahakians describe this

fallacy as the removal of a statement from its context, which

thus changes the meaning of an argument. Id. at 15. They

illustrate this fallacy with four examples, each followed by the

correct, complete statement:

St. Paul said, “Money is the root of all evil.”

(“The love of money is the root of all evil.”)

Ralph Waldo Emerson said: “Consistency is the

hobgoblin of little minds.” (“Foolish consistency

is the hobgoblin of little minds.”) Alexander

Pope said, “Learning is a dangerous thing.” (“A

little learning is a dangerous thing; drink deep, or

taste not the Pierian spring. There shallow

draughts intoxicate the brain, and drinking largely

sobers us again.”) Francis Bacon said,

“Philosophy inclineth man’s mind to atheism.”

(“A little philosophy inclineth man’s mind to

atheism, but depth in philosophy bringeth men’s

18

under § 1155 is not merely the presence of cause for the

revocation, but the Secretary’s judgment that such cause exists.

Indeed, to quote Judge Tallman, “[n]ot only does [the Secretary]

decide whether . . . cause exists, he decides what constitutes

such cause in the first place.” ANA Int’l, 393 F.3d at 899

(Tallman, J., dissenting). Accordingly, although Congress may

have defined the roles of a “manager” and “executive” in order

to inform the Secretary’s decision, the actual application of

those definitions is solely vested in the Secretary’s discretion.10

minds about to religion.”)

Id. at 15-16.

10

One court has recently critiqued the Ninth Circuit’s approach

in ANA International by observing:

[A]ccording to the Ninth Circuit’s rule, if

Congress then spells out that classification and

clarifies it by defining a term within it, Congress

has thereby nullified the jurisdictional immunity.

Therefore, if Congress wishes that a decision of

the Attorney General regarding an alien

classification be outside the jurisdiction of the

courts, Congress cannot define the classification.

This is an absurd result.

Global Export/Import Link, Inc. v. U.S. Bureau of Citizenship

and Immigration, --- F. Supp. 2d ---, 2006 WL 752612, at *5

(E.D.Mich. March 21, 2006).

19

Fourth, “for what [the Secretary] deems to be good and

sufficient cause” is arguably so subjective as to provide no

meaningful legal standard. El-Khader, 366 F.3d at 567

(observing that a determination made by the Attorney General

pursuant to this language is “highly subjective”); Systronics

Corp. v. INS, 153 F. Supp. 2d 7, 12 (D.D.C. 2001) (concluding

that the “determination of ‘good and sufficient cause’ is

committed to the discretion of the Attorney General because it

lacks precise factual standards for this Court to review”); see

also Zhu, 411 F.3d at 295 (assuming only for the sake of

argument that what is in the “national interest” is a manageable

legal standard). Moreover, this provision, taken literally, would

require courts to test whether the Secretary genuinely deemed

the proffered cause to be “good and sufficient.” It is absurd to

think that Congress intended the courts to conduct such an

invasive inquiry into the Secretary’s subjective thought process

at the time of revocation. Where there is no meaningful

standard of review for an administrative decision within a

statute’s text, the decision is not subject to judicial review. Cf.

Heckler v. Chaney, 470 U.S. 821, 830 (1985) (noting that courts

have no jurisdiction under the Administrative Procedure Act to

review matters where “a court would have no meaningful

standard of review against which to judge the agency’s exercise

of discretion”). Here, the requirement of “for what [the

Secretary] deems good and sufficient cause” in § 1155 is so

vague as to be useless as a guide to a reviewing court.

Accordingly, we have no difficulty concluding that the

decision to revoke an approved visa petition pursuant to 8

U.S.C. § 1155 is left to the discretion of the Secretary of

Homeland Security. And so, pursuant to § 1252(a)(2)(B)(ii), the

20

District Court correctly held that it lacked jurisdiction to review

this administrative decision.11

IV.

Finally, Appellants argue that the District Court

11

Appellants argue that by affirming the District Court, we are

thereby allowing the Secretary to “approve a petition it did not

like on Monday, then revoke it on Tuesday and be fully

insulated from judicial review, whereas, had [he] denied it on

Monday, that denial would have been reviewable.” (Jilin USA

Br. at 24; Reply Br. at 3.) While this may be an inequitable

result of our present decision, it is the system Congress has

created and “we cannot legislate to correct it.” NVE Inc. v.

Dep’t of Health and Human Servs., 436 F.3d 182, 194 (3d Cir.

2006) (observing that our hands are tied to correct a curious

result of Congress’ statutory scheme). As the Supreme Court

has noted, § 1252(a)(2)(B) is one of “many provisions of

IIRIRA [that] are aimed at protecting the Executive’s discretion

from the courts – indeed, that can fairly be said to be the theme

of the legislation.” Reno v. Am.-Arab Anti-Discrimination

Comm., 525 U.S. 471, 486 (1999). Moreover, Congress

recently expanded administrative discretion by removing the

notice requirement under § 1155 and by establishing that §

1252(a)(2)(B)(ii) applies beyond removal proceedings. In short,

there is ample reason to believe that Congress could have

intended to bolster the discretion of the Secretary of Homeland

Security to revoke approval of petitions, even if it did so in a

strange or roundabout way.

21

committed a clear error of law by dismissing their constitutional

challenges for lack of jurisdiction.12 In their District Court

complaint, they alleged that the government’s revocation of their

previously-approved visa petition violated their Fifth

Amendment due process rights by: (1) denying them a legal

right they had relied upon for over two years; (2) discriminating

against small companies in favor of large companies; and (3)

attempting to enforce perceived United States trade policy

through the immigration laws. They asserted that jurisdiction

existed to hear these claims under 28 U.S.C. § 1331,13 28 U.S.C.

§ 220114 and 5 U.S.C. § 702.15

12

The District Court held that Appellants’ other arguments,

which would include their constitutional claims, are “without

merit because the statutory framework in question states that

federal courts cannot assert jurisdiction outside of the

framework” and that “without jurisdiction under the statutes,

this Court is precluded from asserting jurisdiction at all.” (Order

Denying Motion for Reargument, app. at A5 n.8 (finding

significant the opening statement of 8 U.S.C. §

1252(a)(2)(B)(ii), “[n]otwithstanding any other provision of law,

no court shall have jurisdiction . . .”). )

13

28 U.S.C. § 1331 provides that the “district courts shall have

original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.”

14

28 U.S.C. § 2201 provides that “any court of the United

States, upon the filing of an appropriate pleading, may declare

the rights and other legal relations of any interested party

seeking such declaration, whether or not further relief is or could

22

Because evaluating these constitutional claims requires

us to revisit and review the Attorney General’s exercise of

discretion made pursuant to 8 U.S.C. § 1155, we lack the

jurisdiction to consider them. The jurisdiction granted by 28

U.S.C. §§ 1331 & 2201 and 5 U.S.C. § 702 to review

constitutional questions is immediately precluded by the

opening words of 8 U.S.C. § 1252(a)(2)(B), which states that

“[n]otwithstanding any other provision of law, . . . no court

shall have jurisdiction to review . . . decision[s] . . . specified in

this subchapter to be in the discretion of the . . . Attorney

General or the Secretary of Homeland Security.” 8 U.S.C. §

1252(a)(2)(B) (emphasis added). The District Court therefore

correctly dismissed Appellants’ constitutional claims for lack of

jurisdiction.16 Cf. Van Dinh v. Reno, 197 F.3d 427, 435 (10th

be sought.”

15

5 U.S.C. § 702 provides that a “person suffering legal wrong

because of agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant statute, is

entitled to judicial review thereof.”

16

Effective as of May 11, 2005, the REAL ID Act of 2005

added the language “(statutory or nonstatutory), including

section 2241 of title 28, United States Code, or any other habeas

corpus provision, and sections 1361 and 1651 of such title, and

except as provided in subparagraph (D)” after “Notwithstanding

any other provision of law.” § 106(a)(1)(A)(ii), 119 Stat. at 310

(codified as amended at 8 U.S.C. § 1252(a)(2)(B)).

Accordingly, even after the enactment of the REAL ID Act,

federal courts are without jurisdiction to review constitutional

23

Cir. 1999) (holding that § 1252(a)(2)(B) precludes “direct

review of the Attorney General’s discretionary decisions in

immigration cases by means of a Bivens class action suit”).

V.

Because the District Court properly determined that the

Attorney General’s decision under 8 U.S.C. § 1155 to revoke the

prior approval of a visa petition is an act of administrative

discretion that is shielded from court review pursuant to 8 U.S.C. §

1252(a)(2)(B)(ii), and because we have no jurisdiction to review

Appellants’ constitutional claims questioning that exercise of

claims raised pursuant to 28 U.S.C. §§ 1331 & 2201 and 5

U.S.C. § 702 that question the revocation of a visa petition in an

action for mandatory and declaratory relief. Had these claims

been brought in a petition for review of a final order of removal,

then the jurisdiction stripped by § 1252(a)(2)(B) to review these

constitutional claims would have been restored by recently

enacted § 1252(a)(2)(D). See § 106(b), 119 Stat. at 311 (stating

that § 1252(a)(2)(D), which was enacted on May 11, 2005, only

applies retroactively “to cases in which [a] final order of

removal . . . was issued.”); Hernandez v. Gonzales, 437 F.3d

341, 344 (3d Cir. 2006) (stating that petitions for review are now

the “sole and exclusive means of judicial review for all orders

of removal except those issued pursuant to 8 U.S.C. §

1225(b)(1)” and that § 1252(a)(2)(D) enlarged our jurisdiction

to allow review of constitutional questions raised in those

petitions for review). Because, however, this is not a petition

for review and no final order of removal has been issued, §

1252(a)(2)(D) does not apply.

24

discretion, the District Court acted well within the bounds of its

permissible discretion in denying Appellants’ motion for

reargument.

We will affirm the judgment of the District Court.

25