Opinion
No. C 04-0904 FMS.
October 1, 2004
ORDER ON MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
INTRODUCTION
Defendant United States Citizenship and Immigration Services ("CIS") moves the court to dismiss plaintiff Gennadi Mikhailik's ("Mikhailik") action requesting the court to overturn the CIS's denial of an employment-based immigrant visa based on a "national interest waiver." CIS argues that the Court lacks subject matter jurisdiction to review its decision in Mikhailik's case because a section of immigration code added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") acts as a jurisdictional bar. For the reasons set forth below, this Court has determined that it does have subject matter jurisdiction over the case and therefore DENIES CIS's motion to dismiss.
FACTUAL BACKGROUND
Mikhailik is a citizen of the Ukraine who resides in San Francisco and is an employee of the corporate office of Wells Fargo Bank. (Compl. at 4.) Mikhailik filed a petition with the CIS for an employment-based immigrant visa under 8 U.S.C. § 1153. Specifically, he sought to obtain an immigrant visa as a member of the category of "aliens who are members of the professions holding advanced degrees or aliens of exceptional ability." 8 U.S.C. § 1153(b)(2). In general, applicants under this provision must show not only that they are members of this category of aliens, but also that their "services in the sciences, arts, professions, or business are sought by an employer in the United States" (commonly referred to as a "labor certification"). 8 U.S.C. § 1153(b)(2)(A). Under 8 U.S.C. § 1153(b)(2)(B), however, the "Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirement of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States." In his petition to the CIS, Mikhailik sought such a "national interest waiver" under 8 U.S.C. § 1153(b)(2)(B) to avoid becoming part of the backlog of cases involving labor certifications. (Pl.'s Opp'n at 2.)
While unclear, it seems that by the time of the AAO decision on February 6, 2004, Mikhailik was no longer employed at Wells Fargo Bank but rather was seeking employment.
Mikhailik's employment-based immigrant visa petition was denied by the California Service Center of the CIS on January 9, 2003. Mikhailik appealed to the Administrative Appeals Office (AAO), which denied his petition on February 6, 2004. Mikhailik filed this action requesting the Court to overturn the decision of the AAO and grant his petition on March 5, 2004. He alleged, inter alia, that the CIS failed to address all the evidence submitted in support of his petition and that the CIS applied the incorrect legal standard in adjudicating his petition. CIS filed the present Motion to Dismiss for Lack of Subject Matter Jurisdiction on August 25, 2004.
DISCUSSION
A plaintiff who seeks to invoke the district court's jurisdiction bears the burden of establishing that the court possesses subject matter jurisdiction over his action. Ass'n of Am. Med. Coll. v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000). When a defendant moves to dismiss a complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) based on a facial challenge to the sufficiency of the allegations of the complaint, the court must accept as true all well-pleaded facts and draw all reasonable inferences in favor of the plaintiff. Id.
Plaintiff contends that the Court has jurisdiction to review the denial of his visa application pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. The APA provides that federal courts shall have jurisdiction to review agency action "made reviewable by statute and final agency action for which there is no other adequate remedy in court." 5 U.S.C § 704,see Califano v. Sanders, 430 U.S. 99, 107 (1977). The APA operates in conjunction with 28 U.S.C. § 1331, which provides that district courts have "federal question" jurisdiction over civil actions arising under the laws and Constitution of the United States. However, the APA does not apply if either (A) judicial review is precluded by another statute or if (B) "agency action is committed to agency discretion by law." 5 U.S.C. § 701 (a)(1) and (2). In order to determine whether the Court has subject matter jurisdiction over this controversy, each of these issues is analyzed in turn.
A. Is Judicial Review precluded by 8 U.S.C. § 1252(a)(2)(B)(ii)? 8 U.S.C. § 1252(a)(2)(B)(ii) replaced an affirmative grant of jurisdiction under former 8 U.S.C. § 1105a and stripped the federal courts of jurisdiction to review certain INS decisions. The statute reads, in relevant part:
Notwithstanding any other provision of law, no court shall have jurisdiction to review . . . (ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title [relating to asylum]. 8 U.S.C. § 1252(a)(2)(B)(ii).
The Court must decide whether judicial review in this case is precluded by § 1252(a)(2)(B)(ii).
Mikhailik argues that § 1252(a)(2)(B)(ii) only applies to removal proceedings and not to other decisions of the Attorney General such as the one in this case. As noted by the Ninth Circuit in Spencer Enters. v. United States, 345 F.3d 683, 692 (9th Cir. 2003), there is a split of authority as to the applicability of § 1252(a)(2)(B)(ii) outside the context of removal proceedings. Spencer, supra, at 692. In Spencer, the court did not reach the issue because it found that the Attorney General's decision in that case, whether to issue a visa under the immigrant investor program, was not discretionary. Id.
The split arises because of a mismatch between the title of § 1252 and the text of § 1252(a)(2)(B)(ii). § 1252 is entitled "Judicial review of orders of removals." However, § 1252(a)(2)(B)(ii) by its plain language applies to the entire subchapter of which it forms part, encompassing 8 U.S.C. §§ 1151- 1378. The statute that sets forth the national interest waiver is § 1153(b)(2)(B), which is part of this subchapter. TheSpencer court described the split in authority as follows:
Several district courts, after examining § 1252 as a whole, have determined that Congress only intended this section to apply to decisions made in the context of removal proceedings. See Talwar v. INS, 2001 U.S. Dist. LEXIS 9248 at *12 (S.D.N.Y. July 9, 2001); Mart v. Beebe, 94 F. Supp. 2d 1120, 1123-24 (D. Or. 2000); Burger v. McElroy, 1999 U.S. Dist. LEXIS 4854 at *4 (S.D.N.Y. Apr. 12, 1999); Shanti v. Reno, 36 F. Supp. 2d 1151, 1157-60 (D. Minn. 1999). These cases hold that § 1252(a)(2)(B)(ii) should be read in the context of the entirety of § 1252, which generally concerns orders of removal or actions taken in the removal process; the title of § 1252 is "Judicial review of orders of removal." See, e.g., Mart, 94 F. Supp. 2d at 1123-24. This interpretation is bolstered by the fact that the former 8 U.S.C. § 1105a, which § 1252 replaced, was concerned solely with judicial review of orders of deportation and exclusion, and is consistent with our caselaw holding that, in interpreting IIRIRA, "we should construe narrowly restrictions on jurisdiction." Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 (9th Cir. 2002). [footnote omitted]
Other courts have determined that § 1252(a)(2)(B)(ii) applies to all decisions made under §§ 1151-1378; the leading case in this camp is the Sixth Circuit's decision in CDI Information Services, Inc. v. Reno, 278 F.3d 616, 618-20 (6th Cir. 2002). This position relies primarily on the plain language of the statute, and the principle that "the title of a statute and the heading of a section cannot limit the plain meaning of the text." Bhd. of R.R. Trainmen v. Baltimore Ohio R.R., 331 U.S. 519, 528-29, 91 L.Ed. 1646, 67 S. Ct. 1387 (1947). Spencer, supra, at 692.
There are strong legal arguments on both sides. In holding that § 1252(a)(2)(B)(ii) does not apply outside the context of removal proceedings, the district court in Evangelical Lutheran Church v. INS, 288 F.Supp.2d 32 (D.D.C 2003), found that the relevant parts of House Conference Reports made specific reference to removal proceedings and not to other types of proceedings. Id. at 24-25, see also Talwar v. INS, 2001 U.S. Dist. LEXIS 9248 (S.D.N.Y. 2001). Adopting the same interpretation, the district court in Mart v. Beebe (D.Or 2000) found compelling the fact that the Immigration and Nationality Act provides an alternative avenue for judicial review of final decisions in removal proceedings but not for final decisions in other types of proceedings. In particular, 8 USC § 1252(b)(2) provides that the courts of appeal may review an order of removal. Mart, supra, at 1124; see also Talwar, supra, at 13. The Mart court concludes, "It is doubtful that Congress intended to divest every court from jurisdiction to review final INS decisions not involving a removal order." Mart, supra, at 1124.
Both the Sixth and the Seventh Circuits have held that § 1252(a)(2)(B)(ii) applies outside the context of removal based on the unambiguous plain language of the section and the canon of statutory construction that states that the title of a statute or statutory section cannot limit plain language. CDI Information Services, Inc., v. Reno (6th Cir. 2002) (court lacked jurisdiction to review the attorney general's denial of plaintiff's extension of a non-immigrant visa); El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004) (court lacked jurisdiction to review of the Attorney General's decision to revoke a previously-approved visa petition). The district court in ANA International Inc. v. Way et al., 242 F.Supp.2d 906 (D. Or 2002) similarly relied on the "plain and unambiguous" statutory language of § 1252(a)(2)(B)(ii), explaining that "the Court must give due consideration to the fact that federal courts are courts of limited jurisdiction and can decide only those cases that the Constitution or Congress authorizes them to adjudicate. Id. at 921, citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
While the Ninth Circuit has not decided this issue, its caselaw weighs in favor of a holding that § 1252(a)(2)(B)(ii) does not apply outside the context of removal proceedings. The Spencer court suggested that its decision in Abboud v. INS, 140 F.3d 843 (9th Cir. 1998) might be controlling. In Abboud, the court observed that "district courts have jurisdiction over final orders of INS that do not involve deportation itself." Id. at 846. The Spencer court declined to reach the "difficult question" of whether Abboud was controlling because Abboud relied on pre-IRIIRA caselaw and did not cite specifically to § 1252(a)(2)(B)(ii). Spencer, supra, at 692, n. 5. More generally, the Ninth Circuit has followed its own determination that "we should construe narrowly restrictions on jurisdiction," in applying § 1252(a)(2)(B)(ii) within the context of removal proceedings. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 (9th Cir. 2002). The Ninth Circuit has construed § 1252(a)(2)(B)(ii) narrowly by holding that it applies not to all "discretionary decisions. . . . but to acts the authority for which is specified under the INA to be discretionary."Spencer, supra, at 689 (emphasis in original). As such, § 1252(a)(2)(B)(ii) precludes judicial review only of "matters of pure discretion, rather than discretion guided by legal standards." Nakamoto v. Ashcroft, 363 F.3d 874, 878 (9th Cir. 2004), citing Spencer, supra, at 690. The Ninth Circuit has acknowledged that its narrow interpretation of § 1252(a)(2)(B)(ii) is "in tension" with that of the Tenth Circuit. Spencer, supra, at 691.
If § 1252(a)(2)(B)(ii) were interpreted to cover decisions of the Attorney General outside the context of removal proceedings, a wide range of final INS decisions would be barred from judicial review. Yet, as recently affirmed by the Supreme Court in the context of immigration law, there is a "strong presumption in favor of judicial review of administrative action." INS v. St. Cyr, 533 U.S. 289, 298 (2001). This Court agrees with the court in Evangelical Lutheran Church when it stated, "Congress would have made its intent plain" if it "intended to strip from federal courts the power to review all discretionary decisions of the Attorney General regarding immigration matters." Evangelical Lutheran Church, supra, at 42. The position that § 1252(a)(2)(B)(ii) does not cover decisions outside the context of removal proceedings to be more persuasive and more consistent with Ninth Circuit law.
B. Is the agency action committed to agency discretion by law under the APA?
The APA withdraws jurisdiction to review agency decisions that are "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The Supreme Court, however, has held that this provision applies only where "the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion," Heckler v. Chaney, 470 U.S. 821, 830 (1985).
In INS v. Yang, 519 U.S. 26 (1996), the Supreme Court set forth the circumstances in which decisions that are left by statute to agency discretion may still be reviewed under the APA:
Though the agency's discretion is unfettered at the outset, if it announces and follows — by rule or by settled course of adjudication — a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as "arbitrary, capricious, [or] an abuse of discretion" within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Yang, supra, at 32.
The Ninth Circuit also explicitly acknowledged this potential for jurisdiction under the APA in Spencer. As the court stated, "Even where statutory language grants an agency `unfettered discretion,' its decision may nonetheless be reviewed if regulations or agency practice provide a `meaningful standard' by which this court may review its exercise of discretion."Spencer, supra, at 688, quoting Socop-Gonzalez v. INS, 208 F.3d 838, 844 (9th Cir. 2000) (internal quotation marks omitted).
The national interest waiver provision contained in § 1153(b)(2)(B) undoubtedly confers broad discretion on the Attorney General:
The Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirement of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States." § 1153(b)(2)(B)
The statute itself provides no legal standard or guidelines regarding the meaning of "the national interest" that would assist a court in reviewing an administrative decision. Notably, the Supreme Court found that similar language appeared to "foreclose the application of any meaningful judicial standard of review" under the APA. Webster v. Doe, 486 U.S. 592, 600 (1988). In Webster, the plaintiff sought judicial review of a decision under a statute that allowed the Central Intelligence Agency (CIA) director to terminate an employee whenever the Director "shall deem such termination necessary or advisable in the interests of the United States." Id. The regulations promulgated under the national interest waiver provision similarly lack guidelines that would assist a court in reviewing a decision of the CIS. See Talwar, supra, at 17-18 (discussing the applicable regulation, 8 C.F.R. § 204.5(k)(4)(ii)).
Mikhailik argues, however, that there is a meaningful standard by which courts can review national interest waiver cases. He cites the decision of the CIS's Administrative Appeals Office (AAO) in the case of In re New York State Dept of Transportation, 1998 BIA LEXIS 26, Interim Decision No. 3363 (Aug. 7, 1998) (hereinafter, "NYDOT"). This decision has been designated as "precedent" for other CIS decisions on national interest waivers. (Pl.'s Opp'n at 4.) Talwar, supra, at 18. In this decision, the AAO adopted the following standards:
Several factors must be considered when evaluating a request for a national interest waiver. First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit . . . Next, it must be shown that the proposed benefit will be national in scope . . . The final threshold is . . . specific to the alien. The petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien. Id. at 5-6.
With this decision, the INS announced "a general policy by which its exercise of discretion will be governed," in the terms of Yang, supra, at 32. In Socop, supra, the Ninth Circuit similarly relied on decisions of the Board of Immigration Appeals (BIA) to provide the standard by which to review the INS's decision. The Ninth Circuit stated, "We see no reason to distinguish a legal standard established by the BIA, an administrative court, from regulations or policies promulgated by the same agency." Id. at 845. The NYDOT decision constitutes agency practice that provides a "meaningful standard" by which a court may review the Attorney General's exercise of discretion. Because there is a meaningful standard for review of the Attorney General's decision to deny a national interest waiver, the agency action is not committed to agency discretion by law under the APA.
While courts have jurisdiction to review the Attorney General's decisions in national interest waiver case, the judicial bar for a plaintiff to prevail on the merits is very high. As set forth in Yang, supra, courts have jurisdiction to determine whether the agency departed irrationally from its own policy such that its action was "arbitrary, capricious, [or] an abuse of discretion" within the meaning of the APA, 5 U.S.C. § 706(2)(A). The Court's decision regarding jurisdiction is in no way an expression of the probability of Mikhailik's success on the merits.
CONCLUSION
Since judicial review of the Attorney General's decision denying a national interest waiver under 8 U.S.C. § 1153(b)(2)(B) is neither precluded by statute nor committed to agency discretion by law, the Court has subject matter jurisdiction pursuant to the APA and 28 USC § 1331. CIS's motion to dismiss is DENIED. The hearing set for September 30, 2004 is VACATED. The matter will be continued at the Case Management Conference on January 20, 2005 at 2:00 p.m.
IT IS SO ORDERED.