John Doe v. Kevin K. McAleenan

In the

United States Court of Appeals

For the Seventh Circuit

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No. 17-3521

JOHN DOE,

Plaintiff-Appellant,

v.

KEVIN K. MCALEENAN,

Acting Secretary of Homeland Security, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 17 C 4190 — John Robert Blakey, Judge.

____________________

ARGUED MARCH 28, 2019 — DECIDED JUNE 17, 2019

____________________

Before RIPPLE, MANION, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Plaintiff John Doe, an Iranian nation-

al, petitioned for conditional permanent residency in 2013.

He used the EB-5 admission category, which offers visas for

immigrants who invest in new job-creating enterprises. The

United States Citizenship and Immigration Service (“USCIS”

or “agency”) initially approved Doe’s petition but revoked

its approval roughly two years later.

2 No. 17-3521

Doe sought judicial review of the agency’s actions under

the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et

seq. But the district court concluded that Congress had

stripped its jurisdiction to review discretionary revocations

of visa petitions and dismissed Doe’s suit. See 8 U.S.C.

§ 1252(a)(2)(B)(ii).

We affirm. Doe relies on the narrow jurisdictional gate-

way offered by Musunuru v. Lynch, 831 F.3d 880 (7th Cir.

2016). In Musunuru we held that § 1252(a)(2)(B)(ii) doesn’t

preclude judicial review of purely procedural rulings during

the adjudication of a visa petition. 831 F.3d at 887–88. But the

ruling at issue here wasn’t procedural. Doe is challenging

the agency’s substantive decision-making. And he cannot

evade a jurisdiction-stripping statute by repackaging his

substantive complaints as procedural objections.

I. Background

Congress allocates visas under the EB-5 admission cate-

gory for “qualified immigrants seeking to enter the United

States for the purpose of engaging in a new commercial

enterprise.” 8 U.S.C. § 1153(b)(5)(A). To qualify, an alien

must show that he “has invested … or[] is actively in the

process of investing” the minimum amount of capital and

that his investment “will … create full-time employment for

not fewer than 10 United States citizens or aliens lawfully

admitted.” Id. The default capital requirement is $1 million,

but $500,000 suffices for a project located in a “targeted

employment area.” Id. § 1153(b)(5)(C)(ii); 8 C.F.R.

§ 204.6(f)(2).

An alien seeking an EB-5 visa must file a petition using

Form I-526. 8 C.F.R. § 204.6(a). If the petition is approved, he

No. 17-3521 3

receives a conditional form of permanent-resident status.

8 U.S.C. § 1186b(a)(1). But the USCIS “may, at any time, for

what [it] deems to be good and sufficient cause,” revoke an

approved I-526 petition after providing notice and an oppor-

tunity to respond. See id. §§ 1155, 1154(a)(1)(H); 8 C.F.R.

§ 205.2. The agency’s final revocation notice must be in

writing and “explain[] the specific reasons for the revoca-

tion.” 8 C.F.R. § 205.2(c).

John Doe submitted his petition on June 7, 2013. Doe and

23 other investors each deposited $500,000 in Golden Assist-

ed Living EB-5 Fund, LLC, a “new commercial enterprise”

under 8 C.F.R. § 204.6(j)(1). The enterprise, controlled by

Attorney Taher Kameli, loaned the pooled $12 million to

Golden Memory Care, Inc., which planned to construct an

assisted-living center in Lake Barrington, Illinois. In August

2013 the USCIS issued Doe a Request for Evidence seeking

additional information about the project. Doe’s response

notified the agency that the project had been “moved from

Lake Barrington, Illinois to Fox Lake, Illinois, … due to

several unforeseen issues.” He claims that he provided an

updated business plan and an Illinois state agency’s letter

certifying Fox Lake as a targeted employment area.

The USCIS approved Doe’s petition on May 8, 2014, and

Doe requested a visa through the United States Consulate in

Abu Dhabi. But in January 2015, the State Department

reviewed Doe’s petition and returned it to the USCIS for

review and possible revocation. The USCIS issued a Notice

of Intent to Revoke on January 11, 2016. The agency ex-

plained that revocation is appropriate where “material

changes … , if unexplained and unrebutted, would warrant a

denial of the approved visa petition.” The notice identified

4 No. 17-3521

two material changes. First, “[s]ubsequent to approving the

petition, [the] USCIS discovered information that contra-

dict[ed] evidence in the record”—namely, that the project

had moved to Fox Lake. The agency asserted that Doe hadn’t

provided a business plan or targeted employment area

certification for the new location. Second, the record con-

tained no evidence that the Fox Lake center was under

construction or would create ten jobs.

Doe disputed the agency’s characterization. He had al-

ready notified the USCIS that the project had been relocated

to Fox Lake, so the agency couldn’t have “discovered” that

fact after approving his petition. Doe claimed to have pro-

vided each piece of evidence the USCIS said was missing: an

updated business plan, a targeted employment area certifica-

tion, and a job-creation report. Finally, he challenged the

legal basis for the agency’s “material change” standard.

Unmoved, the agency issued a Notice of Revocation on

March 31, 2016. But it erroneously referenced a different

EB-5 project, also controlled by Kameli, that had relocated

from Waukegan, Illinois to West Dundee, Illinois. Doe

notified the USCIS of its error, and the agency issued a

corrected document on June 7.

The corrected Notice of Revocation explained that Doe,

as petitioner, bears the burden of establishing eligibility

under the EB-5 program. And a petitioner’s eligibility must

be assessed based on his initial I-526 petition. So if he “as-

serts eligibility under a materially different set of facts that

were not the basis for eligibility when the petition was filed,

he or she must file a new petition.” (Emphasis added.) Here,

Doe’s initial petition was based on a project in Lake Barring-

ton. The USCIS again asserted that Doe “did not provide any

No. 17-3521 5

updates to the business plan or other evidence … that re-

flected the change of the location.” 1 The agency acknowl-

edged Doe’s response to the notice, in which he provided

evidence supporting the Fox Lake project’s EB-5 qualifica-

tions. But it reiterated that “the record did not include any of

that evidence … when the petition was approved.” The

agency determined, “based on the entire record of proceed-

ing,” that Doe was ineligible for an EB-5 visa. The USCIS

advised Doe of his right to an administrative appeal under

8 C.F.R. § 205.2(d).

Rather than appeal the revocation, Doe filed a complaint

in the Northern District of Illinois seeking judicial review

under the APA on two grounds. First, he alleged that the

USCIS committed “legal error” by citing inaccurate infor-

mation and denying him “a meaningful opportunity to

respond” to the Notice of Intent to Revoke. Second, he

claimed that the USCIS “engaged in improper substantive

rule-making” by using a “material change” standard that

hadn’t undergone notice and comment.

The government moved to dismiss under Rule 12(b)(1) of

the Federal Rules of Civil Procedure, arguing that §§ 1155

and 1252(a)(2)(B)(ii) bar judicial review of the revocation.

Doe responded that his complaint challenged the agency’s

compliance with its mandatory procedures, not the sub-

stance of its decision, so the court retained jurisdiction under

Musunuru.

1 The agency failed to delete one of its erroneous references to the

Kameli-controlled project that had relocated from Waukegan to West

Dundee. In fact, the March and June documents are identical aside from

the town names.

6 No. 17-3521

The district judge granted the motion, explaining that

§ 1252(a)(2)(B)(ii) precludes judicial review of a discretionary

revocation of an approved visa petition. While Musunuru

creates a narrow exception for purely procedural challenges,

“a simple review of the complaint” revealed that Doe’s

claims were “not procedural but substantive.” Doe appeals,

again relying on Musunuru.

II. Discussion

We review a dismissal for lack of subject-matter jurisdic-

tion de novo, drawing all reasonable inferences in favor of

the plaintiff. Bultasa Buddhist Temple of Chi. v. Nielsen,

878 F.3d 570, 573 (7th Cir. 2017).

Under § 1252(a)(2)(B)(ii),

no court shall have jurisdiction to review …

any … decision or action of the Attorney Gen-

eral or the Secretary of Homeland Security the

authority for which is specified under this sub-

chapter to be in the discretion of [that official],

other than the granting of relief under section

1158(a) of this title.

In El–Khader v. Monica, we held that revocations under

§ 1155 are discretionary “decision[s] or action[s]” within the

meaning of § 1252(a)(2)(B)(ii). 366 F.3d 562, 567–68 (7th Cir.

2004).

The statute’s plain language compelled that conclusion:

The Secretary, acting through the USCIS, “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.” § 1155. It’s hard to imagine a clearer grant

of discretion. The statute says the Secretary “may” revoke a

No. 17-3521 7

previously approved visa petition “at any time” and for any

reason he “deems to be good and sufficient cause.” This

language commits the revocation decision to the agency’s

sole and unreviewable discretion; a court has no standard by

which to test “good and sufficient cause.” El–Khader,

366 F.3d at 567.

We have repeated that analysis in subsequent cases. See

Holy Virgin Prot. Cathedral of the Russian Orthodox Church

Outside Russia v. Chertoff, 499 F.3d 658, 661 (7th Cir. 2007)

(explaining “that decisions to revoke visas previously ap-

proved under § 1154 are unequivocally committed to [agen-

cy] discretion”). And we recently reiterated that a plaintiff

“cannot avoid the jurisdictional bar … simply by raising a

claim under … section [706] of the APA. Regardless of the

underlying merits of the decision, we do not have jurisdic-

tion to review a discretionary revocation under § 1155.”

Bultasa Buddhist Temple, 878 F.3d at 574 (citation omitted).

The USCIS revoked Doe’s petition under § 1155. And a

petition for conditional permanent residency under the EB-5

program is approved “under section 1154 of this title.” See

§ 1154(a)(1)(H). Doe concedes as much. So under

§ 1252(a)(2)(B)(ii) we lack jurisdiction to review the agency’s

revocation of his I-526 petition.

However, jurisdiction-stripping statutes don’t prohibit

judicial review of every dispute between the USCIS and

applicants for immigration benefits. In Calma v. Holder, we

considered § 1252(a)(2)(B)(i), which bars judicial review of a

defined set of immigration-agency actions, including remov-

al proceedings. 663 F.3d 868 (7th Cir. 2011). We explained

that “there are identifiable circumstances under which a

critical procedural step in a removal proceeding … lies within

8 No. 17-3521

our jurisdiction even though we are barred from evaluating

the [agency’s] ultimate decision.” Id. at 876–77 (emphasis

added). But we lack jurisdiction if “it is impossible to distin-

guish the challenged action from the determination on the

merits.” Id. at 877. In other words, “judicial review is fore-

closed … if the agency’s rationale for denying the procedural

request also establishes the petitioner’s inability to prevail on

the merits of his underlying claim.” Id. at 876.

Doe rests his entire case on Musunuru v. Lynch, in which

we imported Calma’s reasoning to the § 1252(a)(2)(B)(ii)

context. Srinivasa Musunuru had a temporary work authori-

zation when he sought permanent residency. 831 F.3d at

882–83. His employer, Vision Systems Group, filed a visa

petition and labor certification on his behalf. The USCIS

approved both. Id. at 884. Four years later Musunuru left

Vision Systems for Crescent Solutions, which filed a re-

placement petition. The agency approved that petition too.

But when Vision Systems’ principals pleaded guilty to

unlawfully hiring aliens, the USCIS revoked the company’s

labor certifications—including Musunuru’s. Id. at 885. The

agency mailed a Notice of Intent to Revoke to the defunct

company, so Musunuru never saw it. When Vision Systems

didn’t respond, the agency notified Crescent Solutions that

“Musunuru’s work experience with [Vision Systems] was

not genuine[,] and therefore the approval of Crescent Solu-

tions’ [visa] petition … should be revoked.” Id.

Musunuru submitted rebuttal evidence but the agency

denied his visa petition. He moved for reconsideration,

arguing that he should have received notice and an oppor-

tunity to respond to the notice mailed to Vision Systems. The

USCIS concluded that Musunuru lacked standing to bring

No. 17-3521 9

that challenge because as the beneficiary of the petition, rather

than the petitioner himself, he was not an “affected party”

entitled to notice under 8 C.F.R. § 103.3(a)(1)(iii)(B).

Musunuru brought an APA suit. The USCIS argued that

§§ 1155 and 1252(a)(2)(B)(ii) precluded judicial review. The

district court found jurisdiction but dismissed the suit on the

merits.

The agency repeated its jurisdictional argument on ap-

peal. Relying on Calma, we rejected it:

[The] USCIS’s rationale for denying Musunuru

these procedures was that he is not the peti-

tioner. That rationale, by itself, does not pre-

vent Musunuru from prevailing on the merits

of his underlying claim, which is that the I-140

petition filed on his behalf by [Vision Systems]

was not fraudulent and should not have been

revoked. Therefore, judicial review is not fore-

closed. In other words, [the] USCIS’s rationale

concerns only the regulatory procedures and

not the merits of its decision to revoke the peti-

tion. Musunuru does indeed contend that he

can prevail on the merits of his underlying

claim … , but we are not reviewing that con-

tention. On the contrary, we are reviewing

[the] USCIS’s decision to deny him the oppor-

tunity to challenge the revocation. Ergo, we

have jurisdiction to review Musunuru’s claims.

Musunuru, 831 F.3d at 887–88. Two other circuits reached

similar conclusions when confronting this specific procedur-

al issue. See Mantena v. Johnson, 809 F.3d 721, 729 (2d Cir.

10 No. 17-3521

2015); Kurapati v. U.S. Bureau of Citizenship & Immigration

Servs., 775 F.3d 1255, 1262 (11th Cir. 2014).

In sum, we’ve recognized a narrow jurisdictional path for

challenging purely procedural rulings. In Calma we asserted

jurisdiction over discrete “procedural step[s].” 663 F.3d at

877 (citing as examples “the denial of a continuance … , the

denial of a motion to reconsider, a refusal to remand, or a

refusal to reopen a case”). So we can review the immigration

agency’s resolution of a specific procedural dispute during

an administrative adjudication. See Musunuru, 831 F.3d at

888. But even then we lack jurisdiction if the rationale under-

lying the agency’s procedural ruling would also resolve the

merits of the petitioner’s application. Id. at 887 (quoting

Calma, 663 F.3d at 876).

Calma and Musunuru do not, however, open the door to

challenging discretionary revocations on nominally “proce-

dural” grounds. Courts may review identifiable procedural

rulings that don’t implicate a petition’s merits. But a plaintiff

cannot sidestep § 1252(a)(2)(B)(ii) by artfully framing a

challenge to the agency’s substantive decision as a proce-

dural claim. Imagine the USCIS asks a visa applicant to

verify a fact supporting his EB-5 petition. The applicant

responds with a self-prepared affidavit. Unconvinced, the

agency revokes the petition anyway. The alien might frame

an APA complaint in “procedural” terms, alleging that the

USCIS violated its own regulations by failing to consider his

affidavit. But at bottom that’s a substantive challenge to the

agency’s weighing of the evidence, which Congress has

immunized from judicial scrutiny.

Doe alleges that the USCIS violated several regulations

governing the revocation process. See 8 C.F.R. §§ 205.2(b)–

No. 17-3521 11

(c), 103.2(b)(16)(i). He also cites a pair of agency opinions

restating the regulatory language. See In re Arias, 19 I. & N.

Dec. 568 (BIA 1988); In re Estime, 19 I. & N. Dec. 450 (BIA

1987). The regulations address the basic notice-and-response

requirements that the USCIS must follow when deciding

whether to revoke a visa petition. Everyone agrees that the

agency formally complied with those regulations. It gave

Doe an opportunity to rebut the Notice of Intent to Revoke,

and it provided a written explanation of its reasoning in the

Notice of Revocation.

Doe concedes that the USCIS followed this procedural

framework. He maintains that his opportunity for response

was an empty formality: by incorrectly stating the facts and

the law, the agency denied him a “legitimate opportunity to

challenge” the revocation. He also argues that the language

used in the Notice of Intent to Revoke and Notice of Revoca-

tion betrays underlying procedural violations. As he sees it,

even a facial review of the agency’s papers would reveal that

the USCIS disregarded its own procedures.

But § 1252(a)(2)(B)(ii) bars us from combing the substance

of the agency’s decision in search of a lurking procedural

violation. To overcome the jurisdictional bar, Doe has re-

packaged a set of substantive complaints about the merits of

the agency’s action as a set of procedural violations. Unlike

in Musunuru where the USCIS denied the petitioner “the

opportunity to challenge the revocation,” the agency did not

“deny[] [Doe] … procedures,” such as notice, an opportunity

to respond, or an administrative appeal. See 831 F.3d at 887–

88 (emphasis added). Nor did it make an identifiable proce-

dural ruling that might arguably qualify for review under

Musunuru. The USCIS simply evaluated the “entire record of

12 No. 17-3521

proceeding” in Doe’s case and revoked his petition for what

it deemed “good and sufficient cause.”

For all his “procedural” framing, what Doe really wants is

judicial review of the revocation under the APA’s arbitrary-

and-capricious standard. See 5 U.S.C. § 706(2)(A). Indeed, his

arguments mirror the factors we consider when applying

that standard of review. See Motor Vehicle Mfrs. Ass’n of U.S.,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(examining whether the agency “offered an explanation …

that runs counter to the evidence … or is so implausible that

it could not be ascribed to a difference in view or the product

of agency expertise”). We’ve already established that courts

cannot use that standard to evaluate discretionary revoca-

tions under § 1155. See Bultasa Buddhist Temple, 878 F.3d at

574 (citing El–Khader, 366 F.3d at 565).

Taken to its logical conclusion, Doe’s approach would

eviscerate § 1252(a)(2)(B)(ii). Any petitioner dissatisfied with

a final agency decision could secure judicial review by

alleging that the agency committed a procedural violation by

overlooking favorable evidence. Musunuru doesn’t stand for

that proposition, and we won’t adopt it here. Doe’s com-

plaint challenges the agency’s substantive decision-making,

not its application of a procedural rule during administrative

adjudication. Merely citing the Code of Federal Regulations

doesn’t convert a substantive challenge into a procedural

one. The district court’s dismissal for lack of jurisdiction is

AFFIRMED.