Itech U.S., Inc. v. Renaud

5 F.4th 59

ITECH U.S., INC., Appellant

v.Tracy RENAUD, Acting Director, United States Citizenship and Immigration Services, Appellee

No. 20-5235

United States Court of Appeals, District of Columbia Circuit.

Argued May 6, 2021

Decided July 20, 2021

Geoffrey Forney argued the cause for appellant. With him on the briefs was Bradley B. Banias.

Aaron S. Goldsmith, Senior Litigation Counsel, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Brian M. Boynton, Acting Assistant Attorney General, and Glenn M. Girdharry, Assistant Director. Kenneth A. Adebonojo and R. Craig Lawrence, Assistant U.S. Attorneys entered appearances.

Before: Srinivasan, Chief Judge, Wilkins and Katsas, Circuit Judges.

Wilkins, Circuit Judge:

iTech US, Inc. ("iTech") filed an I-140 immigrant visa petition on behalf of Vishnu Vardhana Reddy Katta Sai Sampoorna ("Reddy"). Approval of an I-140 petition is one step on an immigrant worker's long path to acquire permanent resident status. United States Citizenship and Immigration Services ("USCIS") approved the petition, but revoked its approval three years later. When iTech petitioned the District Court for review of that decision, the District Court found that Congress placed visa revocation decisions within the unreviewable discretion of the executive and dismissed iTech's suit for lack of jurisdiction. We agree. Joining nine of our sister Circuits, we affirm.

I.

This appeal concerns two interlocking provisions of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. Some background is necessary to understand how Mr. Reddy acquired and lost his non-immigrant status.

A.

"The INA allows for a certain number of immigrants to receive permanent residency through employer sponsorship." Mantena v. Johnson , 809 F.3d 721, 724 (2d Cir. 2015) ; see 8 U.S.C. § 1153(b)(2)(A) (establishing the percentage of visas available to "qualified immigrants who are members of the professions holding advanced degrees or their equivalent ... and whose services in the sciences, arts, professions, or business are sought by an employer in the United States"). Immigrant workers and their potential employers must follow a three-step process. First, the Department of Labor ("DOL") must certify that the "labor market can absorb the immigrant without affecting other workers’ wages." Mantena , 809 F.3d at 724 ; see also 8 U.S.C. § 1182(a)(5)(A)(i). Once DOL certifies the position, USCIS must approve the employer's I-140 immigrant visa petition. Mantena , 809 F.3d at 724–25 ; see also 8 U.S.C. § 1154(b) (directing that "the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien ... is eligible for preference under subsection (a) or (b) of section 1153 of this title, approve the petition and forward one copy thereof to the Department of State");¹ 8 C.F.R. § 204.5(a) – (c) (establishing Form I-140 as the proper vehicle to petition the agency for classification under section 1153(b)(2) ). Once granted, an immigrant visa petition under Form I-140 is valid indefinitely, 8 C.F.R. § 204.5(n)(3), though it may be revoked "at any time," 8 U.S.C. § 1155.

Once USCIS grants the I-140 petition, an immigrant worker is eligible to stand in line for an immigrant visa number to be issued by the Department of State. United States v. Ryan-Webster , 353 F.3d 353, 356 (4th Cir. 2003). "Because there are limits on the number of such visas in each category and from each country, immigrants must often wait many years for a permanent residency visa, especially if they are from a country, like India, that sends a large number of immigrants to the United States." Mantena , 809 F.3d at 725. Finally, with visa number in hand, the immigrant worker may file a Form I-485, his application to have his non-immigrant status adjusted to become a permanent resident entitled to live and work in the United States. See 8 U.S.C. § 1255(a) ; 8 C.F.R. § 204.5(n)(1).

At any point in this process, a USCIS officer may revoke the approval of an I-140 immigrant visa petition "when the necessity for the revocation comes to [its] attention." 8 C.F.R. § 205.2(a). This statutory authority stems from section 1155, which provides that the Secretary of Homeland Security ("Secretary") "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," including immigrant visa petitions based on Form I-140. 8 U.S.C. § 1155.² If the officer ultimately decides to revoke a Form I-140 petition, the petitioner may file an administrative appeal. See 8 C.F.R. § 205.2(d) ; id. § 103.3. No party disputes those procedures were followed here.

B.

iTech filed an I-140 immigrant visa petition on behalf of Mr. Reddy in July 2015. J.A. 1. USCIS approved the petition two months later. J.A. 14. In its application, iTech produced evidence of its ability to pay the proffered wage and evidence that Mr. Reddy had obtained a bachelor's degree, "in the form of a degree certificate from the University of Madras along with transcripts from 1999 through 2002." Appellant's Br. at 3; J.A. 6–13, 16. A year and a half later, USCIS issued a notice of intent to revoke the approved petition. J.A. 14. The agency grounded its revocation in the "realization that [the] immigrant visa petition was approved in error" and identified "inconsistencies in the record calling into question whether the beneficiary meets the educational requirements of the labor certification" and whether iTech "continues to demonstrate the ability to pay the proffered wage." J.A. 14, 16–17.

iTech provided additional documentation in response to the notice to revoke, J.A. 20–22, but USCIS ultimately decided to revoke its approval of the I-140 petition on the basis that iTech misrepresented Mr. Reddy's degree-conferring institution and employment qualifications, J.A. 39, 43–45, and did not establish its ability to pay the proffered wage, J.A. 48–51. On August 22, 2018, iTech filed a timely motion to reopen, J.A. 54–62, which USCIS denied a year later, J.A. 94.

This appeal comes to us from the District Court's July 24, 2020 grant of the agency's motion to dismiss for lack of jurisdiction. iTech US, Inc. v. Cuccinelli , 474 F. Supp. 3d 291, 292 (D.D.C. 2020). iTech brought suit under the Administrative Procedure Act, alleging that USCIS's decision to revoke its I-140 petition was arbitrary and capricious because the agency failed "to engage in rational decision-making based on the evidence in the record relating to the Company's ability to pay and [Mr. Reddy's] educational credentials." Appellant's Br. at 8. The District Court granted the agency's motion to dismiss, finding that the plain text of the INA preserves "the Secretary's ability to revoke a I-140 petition ‘at any time’ and for any reason he ‘deems to be good and sufficient cause’ [and] renders USCIS's revocation decision ‘discretionary’ under § 1155." iTech , 474 F. Supp. 3d at 293. A second section, section 1252(a)(2)(B)(ii), "in turn[ ] deprives the Court of jurisdiction to review the decision." Id. These provisions are discussed in detail below.

II.

We review the District Court's determination 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 612, 623 (D.C. Cir. 2020) (quoting Guerrero-Lasprilla v. Barr , ––– U.S. ––––, 140 S. Ct. 1062, 1069, 206 L.Ed.2d 271 (2020) ). "That ‘well-settled’ and ‘strong presumption’ in favor of judicial review is so embedded in the law that it applies even when determining the scope of statutory provisions specifically designed to limit judicial review," id. at 624 (citing Guerrero-Lasprilla , 140 S. Ct. at 1068 ), and when considering immigration statutes, including section 1252(a), id. The "presumption can be overcome only by ‘clear and convincing evidence’ of congressional intent to preclude judicial review." Id.

A.

In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, Div. C (Sept. 30, 1996), "Congress amended the INA aggressively to expedite removal of aliens lacking a legal basis to remain in the United States." Kucana v. Holder , 558 U.S. 233, 249, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). "Among IIRIRA's several proscriptions of judicial review is the one here at issue, § 1252(a)(2)(B)(ii), barring review of administrative decisions Congress placed within the Attorney General's discretion." Id. Section 1252(a)(2)(B) is titled "Denials of discretionary relief" and provides that "no court shall have jurisdiction to review—

(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or

(ii) any other 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) of this title.

8 U.S.C. § 1252(a)(2)(B). " ‘[T]his subchapter’ refers to Title 8, Chapter 12, Subchapter II, of the United States Code, codified at 8 U.S.C. §§ 1151 – 1381 and titled ‘Immigration.’ " Kucana , 558 U.S. at 239 n.3, 130 S.Ct. 827. The question is two-fold. First we ask whether an I-140 visa revocation made under section 1155 could fall under clause (ii)’s umbrella. If so, we ask whether section 1155 specifies that visa revocations are in the Secretary's discretion. If the answer to both questions is "yes," these statutory provisions insulate the Secretary's decision to revoke an immigrant visa petition from judicial review.

We focus first on clause (ii), which shields "any other decision or action" of the Secretary from judicial review. iTech contends...