Bernardo, et al v. Napolitano, et al

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Sandra L. Lynch, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [15-1177]

Case: 15-1177

Document: 00116952143

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Date Filed: 01/29/2016

Entry ID: 5973372

United States Court of Appeals
For the First Circuit
No. 15-1177
HENRY BERNARDO, on behalf of M&K Engineering, Inc.;
SAMUEL MARINHO FREITAS; RUTH LOPES FREITAS; DANIEL LOPES
FREITAS; GRACIANE LOPES FREITAS; GRAZIELA LOPES FREITAS,
Plaintiffs, Appellants,
v.
JEH C. JOHNSON, Secretary,
United States Department of Homeland Security;
LORETTA LYNCH,* Attorney General; ALEJANDRO MAYORKAS, Director,
United States Citizenship and Immigration Service; GREGORY A.
RICHARDSON, Director, Texas Service Center; RON ROSENBERG,
Acting Chief, Administrative Appeals Office, United States
Citizenship and Immigration Service,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]

Before
Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.

Annelise Maia Jatoba de Araujo, with whom Araujo & Fisher,
LLC was on brief, for appellants.
Aaron S. Goldsmith, Senior Litigation Counsel, District Court
Section, Office of Immigration Litigation, United States
*

Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr.

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Department of Justice, with whom Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, William C. Peachey, Director,
District Court Section, Office of Immigration Litigation, and
Jeffrey S. Robins, Assistant Director, District Court Section,
Office of Immigration Litigation, were on brief, for appellees.

January 29 2016

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LYNCH, Circuit Judge.
first
§

impression

in

1252(a)(2)(B)(ii),

Attorney

General's

and

circuit:

precludes

the

Entry ID: 5973372

This case raises a question of

our

which

Date Filed: 01/29/2016

Secretary

whether

judicial
of

8

review

Homeland

U.S.C.
of

the

Security's

discretionary decisions under Title 8, Chapter 12, Subchapter II,
applies to the revocation of visa petition approvals under 8 U.S.C.
§ 1155.

Taking the same view as most other circuits, we conclude

that it does and so judicial review is precluded.
Title 8, section 1252 of the U.S. Code precludes judicial
review of discretionary decisions made by the Attorney General and
the Secretary of Homeland Security under Title 8, Chapter 12,
Subchapter II. 8 U.S.C. § 1252(a)(2)(B)(ii). Decisions made under
that subchapter as to the revocation of previously approved visa
petitions are made discretionary by statute.

8 U.S.C. § 1155.

See Kucana v. Holder, 558 U.S. 233, 247 (2010) (explaining that
"Congress barred court review of discretionary decisions only when
Congress

itself

set

out

the

authority in the statute").

Attorney

General's

discretionary

Because this statute is a clear

expression of Congressional intent, we, like seven other circuits,
conclude that Congress has barred judicial review.
I.
We confine our discussion of the facts to those necessary
to

frame

the

issue

on

appeal.

On

February

11,

2004,

M&K

Engineering, Inc. ("M&K"), through its owner and president Henry

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Bernardo, filed an Application for Employment Certification for
Samuel Freitas to work as an Assistant Delivery Supervisor.

After

the Department of Labor granted the certification on October 11,
2006, M&K filed an I-140 Immigrant Petition for Alien Worker ("visa
petition")

for

Immigration

Freitas.

Services

The

United

("USCIS")

States

initially

Citizenship

approved

the

and
visa

petition on March 13, 2007.1
On September 22, 2010, the Director of the USCIS Texas
Service Center issued a Notice of Intent to Revoke ("NOIR") the
approval of the visa petition.

The NOIR alleged that M&K was

"trying to circumvent Immigration Laws by committing Fraud" and
requested additional information and documents.
additional evidence in response.

M&K submitted

On November 15, 2010, the

Director of the USCIS Texas Service Center issued a decision
revoking the approval of the visa petition because "the evidence
does

not

indicate

experience

that

requirements

the

beneficiary

prior

to

the

had

filing

met
of

the

minimum

either

labor

certification; plus, the new evidence contradicts evidence already
on the record."
appealed

the

Bernardo, as owner of M&K, administratively

revocation

decision

1

to

the

USCIS

Administrative

For a good discussion of the process of obtaining
permanent residency and the role that an I-140 Immigrant Petition
for Alien Worker, 8 U.S.C. § 1153(b), plays in that process, see
Mantena v. Johnson, No. 14-2476-cv, 2015 WL 9487867, at *2 (2d
Cir. Dec. 30, 2015). What is at issue here is the revocation of
an I-140 visa petition approval.
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Appeals Office ("AAO") on December 3, 2010.

Entry ID: 5973372

On June 28, 2013, the

AAO affirmed the revocation decision and dismissed the appeal.
In
complaint

July

with

2013,
the

Bernardo,

as

Massachusetts

owner

of

federal

M&K,

filed

district

a

court

challenging the revocation of the visa petition approval. On
November 12, 2013, the AAO withdrew its decision and reopened the
matter sua sponte.
provided.

It requested additional evidence, which M&K

After considering the evidence, on February 28, 2014,

the AAO dismissed the appeal, finding again that there were
inconsistencies in the evidence, and that M&K had failed to prove
that Freitas had the necessary work experience. On March 28, 2014,
the government filed a motion to dismiss the district court
proceeding for lack of jurisdiction.

After briefing, on December

8, 2014, the district court issued a memorandum and order granting
the government's motion and dismissing the case for lack of subject
matter jurisdiction.

Bernardo v. Napolitano, No. 13-11827, 2014

WL 6905107 (D. Mass. Dec. 8, 2014).

This appeal followed.

II.
We review de novo a district court's order dismissing a
case for lack of subject matter jurisdiction.
Mueller, 446 F.3d 262, 265-66 (1st Cir. 2006).

McCloskey v.

"In doing so, [we]

accept[] the well-pleaded factual allegations of the plaintiff's
complaint

and

indulge[]

all

reasonable

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inferences

in

the

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plaintiff's favor." Dominion Energy Brayton Point, LLC v. Johnson,
443 F.3d 12, 16 (1st Cir. 2006).
Bernardo claims federal jurisdiction under, inter alia,
§ 702 of the Administrative Procedure Act ("APA"), which "confers
a general cause of action upon persons 'adversely affected or
aggrieved by agency action within the meaning of a relevant
statute.'"

Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345

(1984) (quoting 5 U.S.C. § 702).

However, § 701 of the APA

"withdraws that cause of action to the extent the relevant statute
'preclude[s] judicial review.'"
(quoting 5 U.S.C. § 701(a)(1)).

Id. (alteration in original)
Such is the case before us.2

The relevant statute, 8 U.S.C. § 1252(a)(2)(B)(ii),
removes judicial review of the Attorney General's and the Secretary
of Homeland Security's discretionary decisions made under Title 8,
Chapter 12, Subchapter II of the U.S. Code:3
Notwithstanding any other provision of law
(statutory or nonstatutory) . . . no court
shall have jurisdiction to review . . . 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
2

The government states that it "is not arguing in favor
of the application of 5 U.S.C. § 701(a)(2)." Section 701(a)(2)
withdraws the § 702 cause of action where "agency action is
committed to agency discretion by law."
5 U.S.C. § 701(a)(2).
Because we decide our case under 5 U.S.C. § 701(a)(1), we do not
discuss whether 5 U.S.C. § 701(a)(2) applies.
3

Subchapter II encompasses 8 U.S.C. §§ 1151-1381.
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Security, other than the granting of relief
under section 1158(a) of this title.
8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added).
The

unambiguous

language

of

§

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

withdraws judicial review from decisions "the authority for which
is specified . . . to be in the discretion of the . . . Secretary
Id.4

of Homeland Security."

It is not contested that such

decisions are not subject to judicial review. So we must determine
whether

the

decision

to

revoke

a

visa

petition

approval

is

specified to be in the Secretary of Homeland Security's discretion.
The visa petition approval was revoked pursuant to 8
U.S.C. § 1155.

Section 1155, which falls under Subchapter II,

provides in relevant part:
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.

4

We agree with Judge Tallman of the Ninth Circuit, and
the Third, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh
Circuits that this is the pertinent language to be considered.
See Mehanna v. U.S. Citizenship & Immigration Servs., 677 F.3d
312, 314 (6th Cir. 2012); Green v. Napolitano, 627 F.3d 1341, 1343–
44 (10th Cir. 2010); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th
Cir. 2009); Sands v. U.S. Dep't of Homeland Sec., 308 F. App'x
418, 419–20 (11th Cir. 2009) (per curiam); Ghanem v. Upchurch, 481
F.3d 222, 223 (5th Cir. 2007); Jilin Pharm. USA, Inc. v. Chertoff,
447 F.3d 196, 199–200 (3d Cir. 2006); ANA Int'l Inc. v. Way, 393
F.3d 886, 896 (9th Cir. 2004) (Tallman, J., dissenting); El-Khader
v. Monica, 366 F.3d 562, 566 (7th Cir. 2004).
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8 U.S.C. § 1155.

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We join seven of our sister circuits and conclude

that this decision is discretionary, and so not subject to judicial
review.

See Mehanna v. U.S. Citizenship & Immigration Servs., 677

F.3d 312, 313 (6th Cir. 2012); Green v. Napolitano, 627 F.3d 1341,
1343 (10th Cir. 2010); Abdelwahab v. Frazier, 578 F.3d 817, 821
(8th Cir. 2009); Sands v. U.S. Dep't of Homeland Sec., 308 F. App'x
418, 419–20 (11th Cir. 2009) (per curiam); Ghanem v. Upchurch, 481
F.3d 222, 223 (5th Cir. 2007); Jilin Pharm. USA, Inc. v. Chertoff,
447 F.3d 196, 200–05 (3d Cir. 2006); El-Khader v. Monica, 366 F.3d
562, 567–68 (7th Cir. 2004).5
views the issue differently.

One panel majority in one circuit
See ANA Int'l Inc. v. Way, 393 F.3d

886, 893–95 (9th Cir. 2004) (holding, with one panel member
dissenting, that under § 1155, "the authority of the Attorney
General to revoke visa petitions is bounded by objective criteria,"

5

In a recent decision, the Second Circuit held that
federal courts have subject matter jurisdiction to review whether
USCIS complied with any applicable procedural requirements in
revoking a visa petition approval. Mantena, 2015 WL 9487867, at
*6–7. This question is not before us, as Bernardo does not argue
that USCIS failed to comply with any procedural notice requirements
but rather challenges only the substantive revocation decision.
The Second Circuit did say that it had previously stated in dicta
that "the substance of the decision that there should be a
revocation is committed to the discretion of the [Secretary]," id.
at *5 (alteration in original) (quoting Firstland Int'l, Inc. v.
U.S. INS, 377 F.3d 127, 131 (2d Cir. 2004)), and noted that the
majority of circuits followed this position, id. However, because
"the actual issue" before the Second Circuit was "a different one,"
it did not reach the question of whether the substantive decision
to revoke a visa petition approval was reviewable. Id. at *6.
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id. at 894, and so § 1252(a)(2)(B)(ii) does not remove judicial
review).

Our dissenting colleague also views it differently.
We acknowledge the "presumption favoring interpretations

of statutes [to] allow judicial review of administrative action."
Kucana, 558 U.S. at 237 (alteration in original) (quoting Reno v.
Catholic Soc. Servs., Inc., 509 U.S. 43, 63–64 (1993)).

However,

this "presumption . . . is just that -- a presumption. . . . [L]ike
all

presumptions

used

in

interpreting

statutes,

[it]

may

be

overcome by specific language or specific legislative history that
is a reliable indicator of congressional intent."

Block, 467 U.S.

at 349; see also Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651
(2015).
withdraws

Here we have specific language: § 1252(a)(2)(B)(ii)
judicial

review

from

decisions

committed

to

the

Secretary of Homeland Security's discretion, and § 1155 clearly
indicates that the decision to revoke the approval of a visa
petition is discretionary.
At least three language choices in § 1155 dictate this
conclusion: "may," "at any time," and "for what he deems to be
good and sufficient cause."

See Ghanem, 481 F.3d at 224; Jilin,

447 F.3d at 203–05 (identifying four indications by separating
"deems to be" from "good and sufficient cause").

"By using the

precatory term 'may,' rather than the directory term 'shall,'
Congress

indicated

discretionary . . . ."

its

intent

to

make

[the

decision]

United States v. Aponte-Guzmán, 696 F.3d

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157, 160 (1st Cir. 2012); see also Haig v. Agee, 453 U.S. 280, 294
n.26

(1981)

(explaining

substantial discretion").

that

"'may'

expressly

recognizes

But see Zadvydas v. Davis, 533 U.S.

678, 697 (2001) ("But while 'may' suggests discretion, it does not
necessarily suggest unlimited discretion.").6
Including "at any time" is also proof of Congress's
intent to withhold judicial review.

6

See Mehanna, 677 F.3d at 315;

Zadvydas is clearly distinguishable from the case here.
In Zadvydas, the relevant statute provided that "An alien ordered
removed . . . may be detained beyond the removal period and, if
released,
shall
be
subject
to
[certain]
terms
of
supervision . . . ."
533 U.S. at 682 (second alteration in
original) (quoting 8 U.S.C. § 1231(a)(6)). There, the question
was whether the word "may" suggested Congress's intent to make
this detention indefinite -- not whether the Attorney General's
decision to detain was discretionary.
Id.
Accordingly,
§ 1252(a)(2)(B)(ii) did not apply. See id. at 688 ("The aliens
here, however, do not seek review of the Attorney General's
exercise of discretion; rather, they challenge the extent of the
Attorney General's authority under the post-removal-period
detention statute.
And the extent of that authority is not a
matter of discretion."). Further, nothing in the statute suggested
the length of the detention could be indefinite, and the only
textual support for the government's argument was the word "may,"
see 533 U.S. at 682, 697.
Here, we have not only the word "may"
but also the phrases, "at any time" and "for what he deems to be
good and sufficient cause."
To be sure, although "may" is usually interpreted as
conferring discretionary authority, "[t]his common-sense principle
of statutory construction is by no means invariable . . . and can
be defeated by indications of legislative intent to the contrary
or by obvious inferences from the structure and purpose of the
statute."
United States v. Rodgers, 461 U.S. 677, 706 (1983).
Here, however, there is no such indication, and the text of the
statute, which also includes "at any time" and "for what he deems
to be good and sufficient cause," further supports our conclusion
that the decision is discretionary.

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Jilin, 447 F.3d at 203; El-Khader, 366 F.3d at 567.

Entry ID: 5973372

As the Third

Circuit explained, "the discretion to revoke 'at any time' had
once been restricted by [a] now-defunct notice requirement" in the
statute.

Jilin, 447 F.3d at 203 (citing Firstland Int'l, Inc. v.

U.S. INS, 377 F.3d 127, 132 (2d Cir. 2004); Intelligence Reform
and

Terrorism

Prevention

Act

of

2004,

Pub.

L.

No.

108-458,

§ 5304(c), 118 Stat. 3638, 3736).

"Congress's elimination of this

requirement

an

strongly

indicates

intent

to

strengthen

the

discretion of the Secretary of Homeland Security to revoke approval
of petitions."

Id.

Third, the language "for what [the Secretary] deems to
be good and sufficient cause" makes clear that what constitutes
"good and sufficient cause" is within the Secretary's discretion.
See Ghanem, 481 F.3d at 224–25 (quoting Webster's New Int'l
Dictionary 589 (3d ed. 1981) as defining "deem" as "to sit in
judgment upon," and interpreting "the phrase 'for what he deems'
as vesting complete discretion in the Secretary to determine what
constitutes good and sufficient cause").

Together, these phrases

in the statute determine the question of discretion.

The 2010

Supreme Court case Kucana v. Holder supports this conclusion.

See

558 U.S. at 246–47 (explaining that the language "any other

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in

§

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Date Filed: 01/29/2016

refers

to

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decisions

"made

discretionary by legislation").7
Bernardo and the dissent make much of footnote 10 of
Kucana, which says, "the statutory proscription Congress enacted,
§ 1252(a)(2)(B)(ii), speaks of authority 'specified' -- not merely
assumed

or

contemplated

--

to

be

in

the

Attorney

General's

discretion," 558 U.S. at 243 n.10 (citing Webster's New Collegiate
Dictionary 1116 (1974), which defined "specify" as "to name or
state explicitly or in detail").

We think that § 1155's language,

which includes that the Secretary "may, at any time, for what he
deems to be good and sufficient cause," does clearly specify
discretion.

See Mehanna, 677 F.3d at 316 ("[S]ection 1155 'does

not merely imply or anticipate that the Secretary has discretion
to revoke' a visa petition, but explicitly 'authorizes revocation
for what the Secretary "deems to be good and sufficient cause."'"
(quoting Green, 627 F.3d at 1346)).

Bernardo's argument to the

contrary -- that "Congress did not specify that visa [petition]
revocations are within the Secretary's discretion for purposes of
stripping
§

district

courts

1252(a)(2)([B])(ii)"

--

of

jurisdiction

seems

to

rest

on

under
a

8

notion

U.S.C.
that

"specified" means that Congress must use the word "discretion" for

7

We reject the argument that the Board of Immigration
Appeals' attempt to provide regulatory assistance in interpreting
language is germane to our issue. See ANA Int'l Inc., 393 F.3d at
898 (Tallman, J., dissenting).
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a decision to be discretionary, and so not subject to judicial
review.

But such a position is rejected by Kucana itself.

As the

Court noted, "Congress excepted from § 1252(a)(2)(B)(ii) 'the
granting of relief under [§] 1158(a).'"
n.13

(alteration

in

original).

applications for asylum."

Id.

Kucana, 558 U.S. at 247
"Section

1158

concerns

Notwithstanding the absence of the

word "discretion" in the relevant provisions of § 1158, the Court
explained that "[a]bsent the exception, asylum applicants might
fall within § 1252(a)(2)(B)(ii)'s jurisdictional bar because a
statutory provision, § 1158(b)(1)(A), specifies that 'the Attorney
General may grant asylum.'"

Id. (citing Zadvydas, 533 U.S. at

697, for the proposition that "'may' suggests discretion").

As

the Court suggested, and we agree, statutory language can be
"specified" even absent the use of the word "discretion."

Accord

ANA Int'l Inc., 393 F.3d at 898 (Tallman, J., dissenting) ("Though
it might make our job a bit easier, we should not require our
lawmakers to recite the words 'sole and unreviewable discretion'
as some sort of talismanic incantation before we can conclude that
a statute means what it says."); Mohammad v. Napolitano, 680 F.
Supp. 2d 1, 6 (D.D.C. 2009).
Bernardo

and

the

dissent's

argument

that

"good

and

sufficient cause" imposes a non-discretionary legal standard that
is subject to judicial review is also unavailing.

Bernardo and

the dissent argue that "good and sufficient cause" constitutes a

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standard that meaningfully curtails the Secretary's discretion.
Based on some decisions from the Board of Immigration Appeals
("BIA") and the AAO, the dissent posits that "good and sufficient
cause" exists when "the evidence of record at the time the decision
is rendered . . . would warrant a denial" of the visa petition.
See, e.g., In re Ho, 19 I. & N. Dec. 582, 589-90 (BIA 1988); In re
Tawfik, 20 I. & N. Dec. 166, 167 (BIA 1990); In re [Identifying
Information Redacted by Agency], 2013 WL 5722884, at *6 (AAO Feb,
13, 2013).
We disagree with the premise that the phrase "good and
sufficient cause" destroys the Secretary's discretion.

We also

demonstrate that the canons of construction do not support the
dissent. As to both points, in the years preceding the most recent
reenactment of § 1155, courts had multiple occasions to interpret
that statute, including the phrase "good and sufficient cause."
In doing so, a number of them concluded that "the determination of
whether there exists 'good and sufficient cause' . . . necessarily
is highly subjective, and there exist no strict standards for
making this determination."

El-Khader, 366 F.3d at 567; see also

Systronics Corp. v. INS, 153 F. Supp. 2d 7, 11-12 (D.D.C. 2001)
("[N]o

strict

sufficient
subjective,

standards

exist

cause'

is

present.

much

like

'good

to

determine
The

moral

when

standard
character'

'good

seems
and

and

highly
'extreme

hardship.'"); cf. Firstland, 377 F.3d at 131 (suggesting that under

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§ 1155, "the substance of the decision that there should be a
revocation

is

committed

General");

Pierno

v.

to

INS,

the

397

discretion

F.2d

949,

950

of

the

(2d

Attorney

Cir.

1968)

(observing that this section "is permissive; it grants the Attorney
General discretion in determining what shall constitute good and
sufficient cause and whether revocation of approval shall occur or
be withheld in those cases where there is good and sufficient cause
for revocation").8
The dissent nonetheless tries to show that the BIA had
an understanding that its decision-making was non-discretionary
and that Congress shared that understanding when it reenacted
§ 1155.

The dissent invokes two related principles of statutory

construction. First the dissent argues, when Congress uses a "term
of art" in legislation, it "presumably knows and adopts the cluster
of ideas that were attached to each borrowed word in the body of
learning from which it was taken."

Molzof v. United States, 502

U.S. 301, 307 (1992) (quoting Morissette v. United States, 342
U.S. 246, 253 (1952)).

The dissent suggests that "good and

sufficient cause" constitutes a term of art, and that Congress

8

The Seventh Circuit issued its opinion in El-Khader on
April 29, 2004, and the Second Circuit issued its decision in
Firstland on August 2, 2004.
By contrast, Pub. L. No. 108-458
(the most recent reenactment of § 1155) was not enacted until
December of that year.
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obviously intended to incorporate its supposedly well-established
meaning into § 1155 when it reenacted the statute.
However, the dissent misapplies the "term of art" canon.
Even if "good and sufficient cause" would now constitute a "term
of art" -- a proposition we do not accept -- this phrase was not
a "term of art" at the time § 1155 was enacted in 1952.

As the

cases cited by the dissent make clear, we generally apply this
rule of statutory construction with respect to concepts that are
"well understood" at the time of a statute's enactment.

Gustafson

v. Alloyd Co., 513 U.S. 561, 575 (1995); see also Molzof, 502 U.S.
at 307 ("Legal dictionaries in existence when the FTCA was drafted
and

enacted

indicate

that

'punitive

damages'

were

commonly

understood to be damages awarded to punish defendants for torts
committed with fraud, actual malice, violence, or oppression."
(emphasis added)); Sullivan v. Stroop, 496 U.S. 478, 483 (1990)
("Congress' use of 'child support' throughout Title IV shows no
intent to depart from common usage.").
This, obviously, does not apply to the case at hand.
The dissent's understanding of "good and sufficient cause" is
rooted in a handful of decisions from the BIA that have been issued
decades after the statute's enactment.

The dissent does not

suggest (nor could it) that "good and sufficient cause" had a
longstanding or well-settled meaning at the time of § 1155's
enactment.

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And so the dissent next conflates the "term of art" canon
with the doctrine of legislative ratification.
has

explained,

"Congress

is

presumed

to

The Supreme Court
be

aware

of

an

administrative or judicial interpretation of a statute and to adopt
that interpretation when it re-enacts a statute without change."
Lorillard v. Pons, 434 U.S. 575, 580 (1978).

The doctrine of

legislative ratification would, at first glance, seem to be a much
better fit for the dissent's argument: the BIA's understanding of
"good

and

sufficient

cause,"

while

not

a

term

of

art,

is

nonetheless an administrative interpretation of a statute of which
Congress might be presumed to be aware.

And indeed, Congress

reenacted § 1155 in 1996 and 2004 without disturbing the language
of "good and sufficient cause" in the years since the BIA first
set forth its interpretation of that phrase.
However, this canon of statutory interpretation is of no
help to the dissent.

For the legislative ratification canon to

apply, two requirements must be met: (1) Congress must reenact the
statute without change; and (2) "[t]he supposed judicial consensus
[must be] so broad and unquestioned that we must presume Congress
knew of and endorsed it."

Jama v. Immigration & Customs Enf't,

543 U.S. 335, 349 (2005). Here, the second requirement is lacking.9

9

As we explain below, the legislative ratification
doctrine can apply to administrative interpretations as well.
However, here, neither the judicial nor the administrative
interpretations are sufficient to warrant use of this cannon.
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There was certainly no "broad and unquestioned" judicial consensus
that "good and sufficient cause" had the interpretation the dissent
advocates, nor does the dissent argue as much.

In fact, as we

have discussed above, a number of courts had interpreted the
determination of whether there was "good and sufficient cause" as
a decision left to the Secretary's discretion.
Instead, the dissent points to BIA and AAO decisions as
evidence Congress adopted the "agency's understanding of 'good and
sufficient cause.'"

These decisions are plainly insufficient to

warrant the presumption that "Congress knew of and endorsed" such
an understanding, id., of "good and sufficient cause."

Cf. id. at

350 ("decisions of two Courts of Appeals" insufficient to establish
judicial consensus); United States v. Powell, 379 U.S. 48, 55 n.13
(1964) (decisions of two district courts and two courts of appeals
"represent[ed] neither a settled judicial construction . . . nor
one which we could be justified in presuming Congress, by its
silence, impliedly approved").

By the dissent's reasoning, if

Congress is presumed to have been aware of the BIA and AAO's
treatment of § 1155, it was undoubtedly aware of the judiciary's
interpretations thereof as well.

Which is to say that there was

no "broad and unquestioned" consensus as to the meaning of "good
and sufficient cause" the dissent proposes.
349.

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To

be

sure,

the

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Supreme

Court

has

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suggested

that

Congressional reenactment of a statute that has been interpreted
by an agency can provide "persuasive evidence that the [agency's]
interpretation is the one intended by Congress."

CFTC v. Schor,

478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co., 416
U.S. 267, 275 (1974)).

However, the circumstances giving rise to

such a situation do not present themselves here.

Specifically,

here we have no evidence that Congress was even aware of the
purported administrative interpretation, let alone intended to
adopt it.

By contrast, in Schor, the CFTC had declared by

regulation

its

interpretation.

Id.

at

845.

Further,

the

subsequent legislative history provided "abundant evidence that
Congress

both

interpretation.

contemplated
Id. at 847.

and

authorized"

the

CFTC's

Similarly, in United States v. Board

of Commissioners of Sheffield, Alabama, "the Attorney General's
longstanding construction . . . was reported to Congress by Justice
Department
legislative
agreed

with

officials,"
history
that

of

435

U.S.

110,

the

re-enactment

interpretation,"

id.

132

(1978),

showed
at

135.

and

that
The

"the

Congress
dissent

identifies nothing within the legislative history of § 1155 that
suggests Congress was aware of the BIA and AAO's interpretations
of "good and sufficient cause."

Cf. Massachusetts v. FDIC, 102

F.3d 615, 620-21 (1st Cir. 1996) ("Congress is often deemed to
have adopted an agency's interpretation of a statute when, knowing

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of the agency interpretation, it reenacts the statute without
significant change." (emphasis added)).10
Instead, the dissent merely assumes that Congress was
aware of some BIA and AAO decisions when reenacting § 1155.

As we

have discussed, there is no basis for making such an assumption
here.

Cf. Zenith Radio Corp. v. Hazeltine Research, Inc., 401

U.S. 321, 336 n.7 (1971) ("[The respondent] can point to no direct
evidence that Congress ever considered the issue now before us or
voiced any views upon it; on the contrary, it appears that Congress
left the matter for authoritative resolution in the courts.");
Zuber v. Allen, 396 U.S. 168, 185 n.21 (1969) ("Where, as in the
case before us, there is no indication that a subsequent Congress
has addressed itself to the particular problem, we are unpersuaded
that silence is tantamount to acquiescence, let alone the approval
discerned by the dissent.").

10

Indeed, the dissent's oblique attempt to suggest that
"Congress was uniquely aware of the phrase 'good and sufficient
cause' as a term of art" assumes its own conclusion. The dissent
points out that while the terms "good cause," "reasonable cause,"
and "sufficient cause" are found elsewhere in the Immigration and
Nationality Act, "good and sufficient cause" is unique to § 1155.
Ergo, the dissent argues, Congress's decision not to change the
unique phrase "good and sufficient cause" when it reenacted § 1155
"reinforces the conclusion that Congress understood 'good and
sufficient cause' as a term of art in the visa revocation context."
This reasoning, that Congress "was uniquely aware of the phrase
'good and sufficient cause' as a term of art" because "it clearly
knew how to depart from the term's uniquely associated meaning"
and did not do so, assumes its own conclusion -- that Congress
knew the phrase "good and sufficient cause" had unique meaning.
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Absent evidence Congress was aware of the administrative
interpretations, it is significant that we lack any affirmative
indication

from

Congress

interpretations.

We

that

have

it

intended

explained

that

to

ratify

it

is

these

generally

inappropriate to apply the doctrine of legislative ratification
without some evidence that Congress affirmatively sought to ratify
the interpretation of a statute -- particularly when, as here, an
ambiguous term lacks a widely accepted meaning and we lack any
indication that Congress was even aware of the administrative
interpretation suggested.11 In Molina v. INS, in an opinion written
by

then-Chief

reenactment

Judge

of

Breyer,

we

statutory

explained

language

does

that
not

"Congressional
normally

or

automatically indicate a legislative intent to freeze all preexisting

agency

interpretations

immunizing them from change."

of

language,

forever

after

981 F.2d 14, 23 (1st Cir. 1992);

see also ACLU v. Clapper, 785 F.3d 787, 819 (2d Cir. 2015) ("[I]n
the case of an administrative interpretation of a statute, for the
doctrine of legislative ratification to apply, we must first
'ascertain

whether

Congress

constitute

acceptance

and

has

spoken

approval

11

of

clearly
an

enough

to

administrative

We do not hold this is a doctrinal requirement, as the
dissent suggests we do, but rather that when there is no indication
that Congress was even aware of the administrative interpretation
of a phrase, it is generally not appropriate to assume Congress
intended to ratify an interpretation absent an affirmative
indication.
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interpretation.

Mere

Page: 22

reenactment

Date Filed: 01/29/2016

is

insufficient.'"

Entry ID: 5973372

(quoting

Isaacs v. Bowen, 865 F.2d 468, 473 (2d Cir. 1989))); Ass'n of Am.
R.R.s v. Interstate Commerce Comm'n, 564 F.2d 486, 493 (D.C. Cir.
1977) ("The Supreme Court has indicated that in order to bring
this 'doctrine of reenactment' into play, Congress must not only
have been made aware of the administrative interpretation, but
must

also

intent.").

have

given

some

'affirmative

indication'

of

such

Accordingly, given the complete lack of evidence that

Congress was aware of the BIA and AAO's interpretation of "good
and sufficient cause," let alone affirmatively intended to ratify
it, we are hard-pressed to conclude that a legislative ratification
took place.12

12

The foregoing also demonstrates why the dissent's
reliance on Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,
456 U.S. 353 (1982), is misplaced. In Curran, the Supreme Court
considered whether reenactment of a statute evinced Congressional
intent to preserve a preexisting interpretation of that statute.
Id. at 379–82. And as the dissent notes, the Court held that "the
fact that a comprehensive reexamination and significant amendment
of the [statute] left intact the statutory provisions [at issue]
. . . is itself evidence that Congress affirmatively intended to
preserve that [interpretation by an agency]."
Id. at 381-82.
However, the dissent omits the critical fact that the
interpretation in question was "uniform and well understood." Id.
at 380. Similarly, as the Supreme Court noted, "it is abundantly
clear that [this interpretation] was a part of the 'contemporary
legal context' in which Congress legislated."
Id. at 381.
Accordingly, the Court held, "[i]n that context," Congress's
decision to retain the relevant provisions could be taken as
evidence of its affirmative intent to preserve the interpretation.
Id. (emphasis added). Here, however, the BIA's interpretation of
"good and sufficient cause" was neither well understood nor a
widely accepted part of the contemporary legal landscape.
Congress's decision to retain "good and sufficient cause" (i.e.,
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In sum, "good and sufficient cause" is not a term of
art, much less does it establish that the Secretary's decision is
non-discretionary.

Further, there is no basis to assume that

Congress shared that understanding when it reenacted § 1155. Thus,
the

dissent

is

incorrect

to

conclude

that

the

Secretary's

discretion is bounded by "objective criteria," or a legal standard
that could be applied by a reviewing court.

The statute provides

no such standard, and there is no indication that Congress intended
to so constrain the Secretary's discretion.
Moreover, Bernardo and the dissent's argument focuses on
the words "good and sufficient cause" at the expense of the words
"for what he deems to be."

We are not free to do so.

See Regions

Hosp. v. Shalala, 522 U.S. 448, 467 (1998) ("It is a cardinal rule
of statutory construction that significance and effect shall, if
possible, be accorded to every word." (quoting Wash. Mkt. Co. v.
Hoffman,

101

U.S.

112,

115

(1879))).

As

the

Third

Circuit

explained, "[t]he 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.'"
447 F.3d at 204 (second alteration in original).

Jilin,

The language

"for what [the Secretary] deems to be good and sufficient cause"

even as it modified other portions of § 1155) is not affirmative
evidence of its intent to ratify the BIA's standard, let alone its
awareness of the administrative interpretation.
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makes clear that what constitutes "good and sufficient cause" is
within the Secretary's discretion.

See Ghanem, 481 F.3d at 224–

25.13
Our reading mirrors a conclusion reached by the Supreme
Court in Webster v. Doe, 486 U.S. 592 (1988).

In Webster, the

Court examined § 102(c) of the National Security Act of 1947:
[T]he Director of Central Intelligence may, in
his discretion, terminate the employment of
any officer or employee of the Agency whenever
he shall deem such termination necessary or
advisable in the interests of the United
States . . . .
Id. at 594 (alterations in original) (quoting 50 U.S.C. § 403(c)
(1947)).14

The Court read that statute to remove judicial review

under APA § 701(a)(2), which precludes judicial review where agency
action is "committed to agency discretion by law."
601.15

Id. at 599–

It explained:

13

It is for this reason that the dissent's statement, "[i]f
'good and sufficient cause' provides a legal standard that
circumscribes the Secretary's visa revocation decision, the
decision is subject to judicial review," sets out a straw man.
14

The dissent tries to distinguish Webster based on the
words "in his discretion" in the National Security Act. However,
Webster addressed the question of whether the clause "whenever he
shall deem such termination necessary or advisable in the interests
of the United States" provided criteria that could limit this
discretion -- a question the Court answered in the negative. See
486 U.S. at 600.
15

Webster was decided under 5 U.S.C. § 701(a)(2), whether
"agency action is committed to agency discretion by law," while
Bernardo's case is a question of whether § 1252(a)(2)(b)(ii)
precludes judicial review under APA § 701(a)(1). See supra note
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[Section] 102(c) allows termination of an
Agency employee whenever the Director "shall
deem such termination necessary or advisable
in the interests of the United States"
(emphasis
added),
not
simply
when
the
dismissal is necessary or advisable to those
interests.
This standard fairly exudes
deference to the Director, and appears to us
to foreclose the application of any meaningful
judicial standard of review.
Id. at 600 (quoting 50 U.S.C. § 403(c) (1947));16 cf. Fed. Energy
Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 561 (1976) ("In
authorizing the President to 'take such action, and for such time,
as he deems necessary to adjust the imports of [an] article and
its derivatives,' the language of [the statute] seems clearly to
grant him a measure of discretion in determining the method to be
used to adjust imports.").
Bernardo

and

the

dissent's

Holder changes the analysis also fails.

argument

that

Kucana

v.

In Kucana, the Court was

faced with a regulation that provided, in relevant part, that
"[t]he decision to grant or deny a motion to reopen . . . is within

2.
However, we must still determine whether § 1155 is
discretionary because § 1252(a)(2)(B)(ii) precludes review of
discretionary decisions. Therefore, the analysis of whether under
a statute, "agency action is committed to agency discretion by
law," would apply to the question of whether § 1155 is
discretionary.
16

To the extent the dissent attempts to distinguish
Webster by saying "in the interests of the United States" is "a
policy-driven assessment," while "good and sufficient cause" is
"predicated on binary outcomes," that argument fails. As we have
previously explained, the dissent's claim that "good and
sufficient cause" has objective meaning is incorrect.
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the discretion of the Board [of Immigration Appeals]."
at

239

(second

§ 1003.2(a)).

alteration

in

original)

(quoting

558 U.S.
8

C.F.R.

Examining this regulation, the Court addressed the

question of "whether the proscription of judicial review stated in
§

1252(a)(2)(B)

determinations

applies

made

not

only

discretionary

to

by

Attorney

statute,

but

General
also

to

determinations declared discretionary by the Attorney General
himself through regulation."
that

§

1252(a)(2)(B)(ii)'s

subchapter"

includes

Id. at 237.
language

"statutory,

but

The Court's conclusion
"specified

not

.

.

.

under

this

regulatory,

specifications," id., was based on several considerations: "the
longstanding exercise of judicial review of administrative rulings
on

reopening

motions,"

id.;

"the

text

and

context

of

§ 1252(a)(2)(B)," id.; "the history of the relevant statutory
provisions," id.; "the 'presumption favoring interpretations of
statutes [to] allow judicial review of administrative action,'"
id. (alteration in original) (quoting Reno, 509 U.S. at 63–64);
and "[s]eparation-of-powers concerns, [which] caution us against
reading legislation, absent clear statement, to place in executive
hands authority to remove cases from the Judiciary's domain," id.
The dissent sua sponte focuses on the Court's second
consideration,

§

1252(a)(2)(B)'s

17

structure.17

The

dissent

Bernardo does not develop this argument in his brief; he
raised it for the first time at oral argument.
It is waived.
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points

out

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the

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stated,

"[t]he

proximity of clauses (i) and (ii), and the words linking them -'any

other

decision'

--

suggests

that

Congress

decisions of the same genre," id. at 246.

had

in

mind

The dissent relies on

that sentence to argue that because revocation of a visa petition
approval under § 1155 is not a decision "of the same genre" as
those listed in § 1252(a)(2)(B)(i), it is not encompassed by
§ 1252(a)(2)(B)(ii) at all. However, the dissent omits the crucial
end

of

that

legislation."

sentence,

"i.e.,

Id. at 246–47.

those

made

discretionary

by

Indeed, the Court goes on to say,

"[r]ead harmoniously, both clauses convey that Congress barred
review of discretionary decisions only when Congress itself set
out

the

Attorney

General's

statute."

Id. at 247.

decisions

within

"the

discretionary

authority

in

the

To the extent the Court lists the types of
character

of

the

decisions

Congress

enumerated in § 1252(a)(2)(B)(i)," id., it was doing so to set up
a

contrast

with

motions

to

reopen,

which

it

described

as

"procedural device[s] serving to ensure 'that aliens [a]re getting

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). The
dissent is incorrect to make an argument waived by the appellants
and to which the appellees had no occasion to reply. The dissent
counters that our rule of waiver is "not so broad as to encompass
'legal theories.'" However, our case law is quite settled on this
point: "[i]t is not enough merely to mention a possible argument
in the most skeletal way, leaving the court to do counsel's work,
create the ossature for the argument, and put flesh on its bones."
Id.

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a fair chance to have their claims heard,'" id. at 248 (second
alteration in original) (quoting Tr. of Oral Arg. 17).

The

question of whether revocations of visa petition approvals are of
"a like kind" was not before the Court, nor did it purport to
address it.

Id. at 246–48.18

Finally, our conclusion does not lead to a "senseless
proposition," as Bernardo and the dissent suggest.

Some visa

petition approval decisions, in particular, for certain preference
visas, have been held subject to judicial review.

See, e.g.,

Soltane v. U.S. Dep't of Justice, 381 F.3d 143, 146–48 (3d Cir.
2004)

(holding

there

is

judicial

review

of

denials

of

visa

petitions under 8 U.S.C. § 1153(b)(4), which provides that "[v]isas
shall be made available . . . to qualified special immigrants");
Spencer Enters., Inc. v. United States, 345 F.3d 683, 692 (9th
Cir. 2003) (concluding "that § 1252(a)(2)(B)(ii) does not preclude
judicial review of the decision whether to issue a visa pursuant
to [8 U.S.C.] § 1153(b)(5)").

Our dissenting colleague argues

that if there is judicial review of the decision not to grant a
visa petition to start with, then it would be anomalous to deny
judicial

review

of

decisions

to

revoke

petition

approvals.

However, the argument works the other way.

18

As the issue is waived, we decline to reach it. We note,
however, that this matter is far less clear-cut than the dissent
makes it out to be.
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As an initial matter, assuming initial visa petition
denials are reviewable, the language as to the authority to grant
preference visas is substantially different than the language as
to the authority to revoke visa petition approvals. Compare, e.g.,
8 U.S.C. § 1153(b)(2)–(5) ("Visas shall be made available . . . .
(emphasis added)), and 8 U.S.C. § 1154(b) ("After an investigation
of

the

facts

in

each

case,

and

after

consultation

with

the

Secretary of Labor . . . the Attorney General shall . . . approve
the petition . . . . (emphasis added)),19 with 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.").
Indeed,

"Congress'

use

of

the

permissive

'may'

in

[§

1155]

contrasts with the legislators' use of a mandatory 'shall' in the"
preceding sections.

Lopez v. Davis, 531 U.S. 230, 241 (2001).

The difference in these language choices supports our conclusion
that

Congress

intended

to

treat

19

visa

petition

denials

and

The language of 8 U.S.C. § 1153(b)(4) has been well
analyzed by the Third Circuit in Soltane, which concluded that the
Attorney General's action of granting preference visas was not
discretionary. 381 F.3d at 146–48. The Third Circuit thus held
that denial of a visa petition under § 1153(b)(4) was subject to
judicial review. Id.
We have not surveyed all visa approval statutes, nor
have the parties briefed the issue.
There are at least seven
different types of visa petitions, including at least three
different types of employment-based visa petitions.
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revocations of visa petition approvals differently.20

Entry ID: 5973372

Cf. Barnhart

v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) ("[I]t is a general
principle of statutory construction that when 'Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress

acts

intentionally

and

purposely

in

the

disparate

inclusion or exclusion.'" (quoting Russello v. United States, 464
U.S. 16, 23 (1983))).
In any event, the so-called "inconsistency" of allowing
judicial review of certain visa petition denials but not the
revocation of visa petition approvals does not undermine our
conclusion that that is what Congress intended.

See Jilin, 447

F.3d at 205 n.11 (explaining that "§ 1252(a)(2)(B) is one of 'many
provisions

of

[the

Illegal

Immigration

Reform

and

Immigrant

Responsibility Act of 1996 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,'" id. (quoting Reno v.
Am.-Arab Anti–Discrimination Comm., 525 U.S. 471, 486 (1999)); and
that

"Congress

[in

2004

and

2005]

expanded

administrative

discretion by removing the notice requirement under § 1155 and by
establishing

that

§

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

20

applies

beyond

removal

Because of this disparate language and context, the
cases cited by the dissent do not undermine -- and if anything
support -- our conclusion.
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proceedings," id.; and so "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,"
id.).21

Congress has to structure and allocate the resources of

our immigration system.

As such, judicial review may be thought

to be warranted in some, but not all, situations.

Further, we

note that petitioners have an opportunity to respond to the NOIR,
receive an explanation of why the petition's approval was revoked,
and are afforded an administrative appeal.

See 8 C.F.R. § 205.2

(requiring notice of intent to revoke, the opportunity for the
petitioner

to

offer

evidence

supporting

the

petition,

an

explanation of "the specific reasons for the revocation," and the
opportunity for the petitioner to file an administrative appeal).
Congress could quite sensibly have concluded that is enough.22

21

We are unaware of any longstanding tradition of judicial
review of the revocation of visa petition approvals. Cf. Kucana,
558 U.S. at 237. To be sure, there may have been isolated examples
of judicial review of these decisions prior to the enactment of
§ 1252(a)(2)(B). See, e.g., Tongatapu Woodcraft Hawaii, Ltd. v.
Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984); Joseph v. Landon,
679 F.2d 113, 115–16 (7th Cir. 1982) (per curiam). However, we
have been presented with no evidence that Congress would be
changing a well-established practice by eliminating judicial
review over these decisions.
22

We note that § 1252(a)(2)(D) provides that "[n]othing in
subparagraph (B) . . . shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition
for review filed with an appropriate court of appeals in accordance
with this section." 8 U.S.C. § 1252(a)(2)(D). Bernardo does not
argue that we have jurisdiction under § 1252(a)(2)(D).
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III.
For the reasons set forth above, the order of the
district court is affirmed.

-Dissenting Opinion Follows-

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LIPEZ, Circuit Judge, dissenting.

Entry ID: 5973372

The majority holds

that a decision by the Secretary of Homeland Security ("Secretary")
to revoke his prior approval of a visa petition based on objective
criteria is insulated from judicial review.

In my view, the

Secretary's visa revocation decision is subject to judicial review
because the text of the pertinent statutes, the nature of the visa
revocation decisions, and the overall statutory scheme do not rebut
the

presumption

statutes.

of

judicial

review

applicable

to

immigration

Hence, I respectfully dissent.
I.
The two statutory provisions at issue are 8 U.S.C.

§§ 1252(a)(2)(B) and 1155 of the Immigration and Nationality Act
("INA").

Section 1252(a)(2)(B) 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.
The authority to revoke the approval of a visa petition is provided
under

§

1155.

1252(a)(2)(B)(i)

Section
--

1155

states

--

that

which

"[t]he

is

not

Secretary

listed
of

in

§

Homeland

Security may, at any time, for what he deems to be good and

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sufficient cause, revoke the approval of any petition approved by
him under section 1154 of this title."
of

a

visa

petition,

which

Id. § 1155.

determines

only

the

The approval
beneficiary's

eligibility to apply for an immigrant visa, is governed by § 1154.
Hence, the question is whether § 1252(a)(2)(B)(ii) applies to
§ 1155 -- that is, whether Congress "specified" visa revocation
decisions "to be in the discretion" of the Secretary with the use
of

the

words

"may,"

"at

any

time,"

"deems,"

and

"good

and

sufficient cause."
In considering a dispute over the jurisdiction-stripping
effect

of

an

immigration

statute,

we

must

apply

"a

strong

presumption in favor of judicial review of administrative action."
INS v. St. Cyr, 533 U.S. 289, 298 (2001); see also McNary v.
Haitian Refugee Ctr., Inc., 498 U.S. 479, 498 (1991).

Where the

statute leaves "substantial doubt about the congressional intent,"
Block v. Comty. Nutrition Inst., 467 U.S. 340, 351 (1984), or even
"is reasonably susceptible to divergent interpretation," Gutierrez
de Martinez v. Lamagno, 515 U.S. 417, 434 (1995), the presumption
that "executive determinations generally are subject to review"
controls, id.
The

Supreme

Court's

recent

construction

of

§ 1252(a)(2)(B) in Kucana v. Holder, 558 U.S. 233 (2010), further
informs our analysis.

In that case, the Court observed that

§ 1252(a)(2)(B)(ii) "speaks of authority 'specified' -- not merely

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assumed or contemplated -- to be in the [Secretary's] discretion."
Id. at 243 n.10.

"Specified," according to the Court, is "not

synonymous with 'implied' or 'anticipated'"; rather, it means "to
name or state explicitly or in detail."

Id. (quoting Webster's

New Collegiate Dictionary 1116 (1974)).

Thus, pursuant to Kucana,

in

the

resolving

a

dispute

over

applicability

of

§ 1252(a)(2)(B)(ii), any statutory language that falls short of
"state

explicitly"

--

whether

an

"assum[ption]"

or

a

"contemplat[ion]" of, or a statement that merely "implie[s]" or
"anticipate[s]," an exercise of discretion by the Secretary -fails to overcome the presumption in favor of judicial review.
II.
Statutory interpretation begins with the text of the
provision at issue.

See, e.g., Conn. Nat'l Bank v. Germain, 503

U.S. 249, 253-54 (1992).
"at

any

time,"

and

While § 1155 includes the words "may,"

"deems,"

which

suggest

an

exercise

of

discretion, the provision also cabins these words with the phrase
"good and sufficient cause."

If "good and sufficient cause"

provides a legal standard that circumscribes the Secretary's visa
revocation decision, the decision is subject to judicial review.
This is so because the presence of an objective legal standard in
§ 1155 casts doubt on whether Congress "specified" the revocation
decision to be discretionary.

To put it differently, where the

cumulative effect of "may," "at any time," "deems," and "good and

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sufficient

cause"

is

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"'reasonably

Entry ID: 5973372

susceptible'"

to

the

interpretation that Congress merely "anticipated" visa revocation
decisions

to

be

discretionary,

rather

than

"state[d]

[so]

explicitly," Kucana, 558 U.S. at 251, 243 n.10 (internal quotation
marks omitted), the presumption of judicial review should govern,
and the visa revocation decisions should be subject to review.
Accordingly, the Secretary's revocation decisions are subject to
judicial

review

if

(i)

"good

and

sufficient

cause"

has

an

established meaning that supplies objective criteria for revoking
the prior approval of a visa petition, and (ii) the meaning of the
term withstands the surrounding language -- "may," "at any time,"
and "deems" -- in § 1155.

The text and the structure of the

relevant statutory provisions demonstrate both.
A.

Text
1.

"Good and Sufficient Cause"
a.

Objective Legal
Sufficient Cause"

Criteria

of

"Good

and

An examination of the agency's visa revocation decisions
reveals that "good and sufficient cause" has a clear objective
meaning under § 1155.

In Matter of Ho, the Board of Immigration

Appeals ("BIA") ruled that "good and sufficient cause" exists under
§ 1155 when "the evidence of record at the time the decision is
rendered . . . would warrant [a] denial" of the visa petition.

19

I. & N. Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19

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I. & N. Dec. 450, 452 (BIA 1987)); see also Matter of Tawfik, 20
I. & N. Dec. 166, 167 (BIA 1990).

A denial of a visa petition is

in turn "warrant[ed]" when the petitioner has failed to show
evidence of the beneficiary's (or petitioner's) qualifications
necessary for approval.

See 8 U.S.C. § 1154(b) (providing that

the Attorney General "shall" approve a visa petition when he
determines that the facts stated in the petition are true and the
eligibility criteria are met); id. § 1153(b)(3)(A) (providing that
visas "shall be made available" for a "skilled worker" upon
satisfaction

of

specified

conditions);

8

C.F.R.

§

204.5

(specifying the required qualifications for employment-based visa
petitions).

Accordingly, the agency may revoke a visa petition

under § 1155 only when the evidence necessary for approval is
lacking, and hence a denial is warranted.
Such evidence consists of objective documentation.
to

employment-based

visa

petitions,

the

evidence

As

comprises

documents substantiating the beneficiary's prior employment and
educational

background,

as

described

either

in

the

labor

certification23 or in the agency regulations and guidance.

See 8

C.F.R. § 204.5; Instructions for Petition for Alien Worker (USCIS

23

The labor certification -- which is filed by the employer
and approved by the Department of Labor -- specifies, among other
things, the minimum educational and prior work experiences
required of the beneficiaries of certain employment-based visa
petitions. These minimum qualifications are pre-determined by the
employer. See ETA Form 9089, at 6-7.
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2015) (hereinafter "I-140 Petition Manual"); see also Stewart
Infra-Red Commissary of Mass., Inc. v. Coomey, 661 F.2d 1, 5-6
(1st Cir. 1981) (holding that, where applicable, the terms of the
labor certification are binding on the agency in terms of which
qualifications need to be shown).
For example, for a "skilled worker" visa petition, such
as the one filed on behalf of Freitas, the petitioner must submit
documents demonstrating the beneficiary's "education[], training,
or experience" as stipulated in the labor certification.

8 C.F.R.

§ 204.5(l)(3)(ii)(B); I-140 Petition Manual, at 4 (Entry 6).

The

labor certification further breaks down each of the qualification
areas

(roughly)

into

duration

--

e.g.,

duration

of

the

beneficiary's highest formal education and prior work, specified
by the employer as necessary for the job -- and nature of the
experience -- e.g., description of the prior job title and work
duties, which the employer has also specified as necessary for the
requested position.24

See ETA Form 9089, at 6-8 ("J. Alien

Information" & "K. Alien Work Experience").

24

Employment visas that do not require labor certification
and are thus governed only by the criteria set forth in the agency
regulations are also approved based on similarly objective
evidence.
For example, for a visa petition for "an alien of
extraordinary ability in the sciences, arts, education, business
or athletics," 8 C.F.R. § 204.5(h)(1), the agency approves the
petition upon a showing of the following evidence: (1) receipt of
"a major, international recognized award"; or (2) at least three
of the specified qualifications, including "authorship of
scholarly articles," "display of the alien's work in the field at
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Accordingly, in assessing whether there is "good and
sufficient cause" to revoke an employment-based visa petition, the
agency examines, for instance, letters from employers and other
similar documentation to determine whether the beneficiary has the
requisite qualifications.
also

In

re

See 8 C.F.R. § 204.5(l)(3)(ii)(A); see

[Identifying

Information

Redacted

by

Agency

[hereinafter "[IIRA]"], 2014 WL 3951145, at *3-6 (AAO Jan. 3, 2014)
(finding that the record fails to support "the beneficiary's
claimed high school attendance" and "the required two years of
[prior work] experience"); In re [IIRA], 2012 WL 8526515, at *8-9
(AAO Aug. 27, 2012) (affirming the revocation, inter alia, because
"the petitioner did not submit evidence that the beneficiary has
the education required by the terms of the labor certification").
Here, similarly, the agency revoked the prior approval of the visa
petition filed on behalf of Freitas because the inconsistent
documents did not evidence the "two years of experience in the
offered

position

or

the

related

occupation

of

'Manager/Supervisor,'" Appellants' Add. at 10, 13-18 -- a fact
that would have "warranted [] denial" in the first place.25

Matter

of Ho, 19 I. & N. Dec. at 590.

artistic exhibitions or showcases," and "evidence of commercial
successes in the performing arts." Id. § 204.5(h)(3), (h)(3)(vi),
(vii), (x); see also I-140 Petition Manual, at 2 (Entry 1).
25 In fact, in affirming the revocation of Freitas's visa
petition, the Administrative Appeals Office explicitly relied on
the lack of "objective evidence" to corroborate his prior
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Objective legal criteria also govern family-based visa
petitions approved under § 1154.
familial

relationships,

documentation,
certificate.

such

as

the
a

In determining the necessary
agency

marriage

relies
certificate

on

objective

or

a

birth

8 C.F.R. § 204.2; see also Instructions for Form I-

130, Petition for Alien Relative, at 2 (USCIS 2015).

Further,

where the denial of visa petitions turns on the validity of a
marriage, see 8 U.S.C. § 1154(c), the agency examines the relevant
evidence under the "substantial and probative" standard.
of Tawfik, 20 I. & N. Dec. at 167.

Matter

Indeed, with the benefit of

the applicable legal standard and objective factual evidence,
numerous

courts

have

reviewed

the

petitions based on marriage fraud.

agency's

denials

of

visa

See Gupta v. U.S. Att'y Gen.,

No. 6:13-cv-1027-Orl-40KRS, 2015 WL 5687853, at *10-11 (M.D. Fla.
July 7, 2015) (applying Matter of Tawfik in reviewing the denial
of a visa petition based on marriage fraud); Zemeka v. Holder, 989
F. Supp. 2d 122, 129-130 (D.D.C. 2013) (applying the "substantial
and probative" standard in reviewing the denial of a petition based

employment. See Appellants' Add. at 11 ("These inconsistencies
are not resolved by independent, objective evidence, and diminish
the reliability of the evidence in support of the beneficiary's
qualifying work experience."); id. at 8 ("The AAO issued a Request
for Evidence (RFE) to the petitioner seeking additional
information relating to the beneficiary's employment, allowing the
petitioner an additional opportunity to address the outlined
inconsistencies in the record and to submit independent objective
evidence to overcome such deficiencies.").
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on marriage fraud); Matter of Arias, 19 I. & N. Dec. 568, 569-71
(BIA 1988) (reversing a revocation decision based on marriage fraud
because,

under

"[s]pecific,

the

concrete

"good
facts

and

sufficient

are

cause"

meaningful,

not

standard,
unsupported

speculation and conjecture").
b.

Congress's Adoption of the Objective Legal
Criteria Established by "Good and Sufficient
Cause"

The fact that the agency has interpreted "good and
sufficient cause" as prescribing objective legal criteria is, of
course, only an antecedent to the determination that Congress
shared

that

interpretation

of

§

1155.

Here,

legislative background provides the bridge.

the

relevant

It is a "cardinal

rule of statutory construction" that, when Congress employs a term
of art, it "presumably knows and adopts the cluster of ideas that
were attached to each borrowed word in the body of learning from
which it was taken."

Molzof v. United States, 502 U.S. 301, 307

(1992) (quoting Morissette v. United States, 342 U.S. 246, 263
(1952)).

The "absence of contrary direction may be taken as

satisfaction with widely accepted definitions, not as a departure
from them."

Morissette, 342 U.S. at 263.

Where, as demonstrated

below, Congress has reenacted the relevant statute against the
backdrop of a long-standing agency interpretation of that statute,
the related canon of legislative ratification also applies.

That

is, "Congress is presumed to be aware of an administrative or

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judicial

interpretation

interpretation

when

it

Page: 42

of

a

Date Filed: 01/29/2016

statute

re-enacts

a

and

statute

to

Entry ID: 5973372

adopt

without

that

change."

Lorillard v. Pons, 434 U.S. 575, 580 (1978).
The two canons of statutory interpretation apply in
tandem in this case.

The "good and sufficient cause" standard, as

defined in Matter of Estime and Matter of Ho, see supra Section
II.A.1.a, has consistently been applied by the agency in decisions
involving visa petition denials and revocations.

See Matter of

Tawfik, 20 I. & N. Dec. at 167; In re [IIRA], 2006 WL 5914903, at
*3 (AAO Dec. 11, 2006); In re [IIRA], 2008 WL 4968848, at *1 (AAO
July 18, 2008); In re [IIRA], 2009 WL 4873892, at *2-3 (AAO Aug.
11, 2009); In re [IIRA], 2011 WL 9082056, at *2-3 (AAO Dec. 13,
2011); In re [IIRA], 2013 WL 5722884, at *6 (AAO Feb. 13, 2013).
Since those decisions, Congress has revisited § 1155 twice, first
in 1996 when Congress enacted § 1252(a)(2)(B) as part of the
comprehensive

Illegal

Immigration

Reform

and

Immigrant

Responsibility Act ("IIRIRA"), and most recently in 2004.

See

Pub. L. No. 104-208, § 308(g)(3)(A), 110 Stat. 3009-622 (1996);
Pub. L. No. 108-458, § 5304(c), 118 Stat. 3638, 3736 (2004).

In

the 2004 reenactment, Congress took a closer look at the language
of § 1155, removing two sentences from the section that required
prior notice to the petitioner, while keeping intact the phrase
"good and sufficient cause."

See 118 Stat. at 3736.

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The

consistent

Page: 43

agency

Date Filed: 01/29/2016

application

of

Entry ID: 5973372

"good

and

sufficient cause" prior to the reenactments of § 1155 suggests
that the phrase was understood as a term of art in the immigration
context, and particularly with respect to visa petitions.

Indeed,

contrary to the majority's argument, "good and sufficient cause"
need not have been rooted in "centuries of practice" to be deemed
a "term of art" in the relevant statutory context.

In Sullivan v.

Stroop, 496 U.S. 478, 482 (1990), the Supreme Court held that the
phrase "child support," which appeared in a statute undefined, is
a "term of art" because it has an accepted meaning in common legal
usage and amongst "[a]ttorneys who have practiced in the area of
domestic relations law."
513

U.S.

561,

575-76

Similarly, in Gustafson v. Alloyd Co.,

(1995),

the

Court

held

that

the

word

"prospectus" is a "term of art" because it has a "well understood"
meaning in the relevant area of law (securities law), even though
the statute in which the word appears defined the word more
generally than the particularized meaning associated with that
term of art.
the word.

The Court thus adopted that term-of-art meaning of

These cases indicate that, where a phrase has a unique,

well-understood meaning within the relevant statutory context, the
phrase need not have been rooted in "centuries of practice" in the
common law for Congress to understand it as a term of art.26

26

When viewed in proper context, therefore, the core of the
rule articulated in Morissette -- that Congress is presumed to be
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Here, we have good reasons to assume that, at the
relevant points in time, Congress was aware of the particularized
meaning of "good and sufficient cause," as interpreted and applied
by the agency.

First, unlike in Molina v. INS, 981 F.2d 14, 23

(1st Cir. 1992) (Breyer, C.J.), where we were hesitant to apply
the

legislative

interpretation

of

ratification
the

statute

canon
was

because

"unclear,"

the
the

agency

"good

and

sufficient cause" standard has consistently been applied by the
agency since Matter of Estime and Matter of Ho.

Second, there is

contextual evidence that Congress was uniquely aware of the phrase
"good

and

sufficient

cause"

as

a

term

of

art

in

§

1155.

Section 1155 is the only provision of the INA in which "good and
sufficient cause" is used, while other provisions in the statute
reference standards drawn from the term's "constituent words,"
such as "good cause," "reasonable cause," or "sufficient cause,"

aware of the meaning associated with a term of art used in a
statute, 342 U.S. at 263 -- is not the "centuries of practice,"
but the assumption that Congress is "aware of existing law when it
passes legislation," and especially when the legislation uses a
phrase that is uniquely associated with a particular, well-known
meaning.
Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990);
accord Cannon v. Univ. of Chi., 441 U.S. 677, 696-97 (1979) ("It
is always appropriate to assume that our elected representatives,
like other citizens, know the law[.]"). Indeed, while the majority
criticizes the "assumption" that Congress was aware of the agency
interpretation of "good and sufficient cause," the applicable
statutory canons reflect precisely such an assumption of
congressional awareness.
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often with repetition.27
a

phrase

in

a

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Entry ID: 5973372

See Sullivan, 496 U.S. at 483 ("[W]here

statute

appears

to

have

become

a

term

of

art, . . . any attempt to break down the term into its constituent
words is not apt to illuminate its meaning."); see also United
States v. Graham, 169 F.3d 787, 791-93 (3d Cir. 1999) (construing
the statutory term "aggravated felony" as a "term of art" because,
inter alia, the phrase includes misdemeanors in its definitional
scope).28

The fact that Congress retained "good and sufficient

cause" in § 1155 through two reenactments, when it clearly knew
how

to

depart

reinforces

the

from

the

conclusion

term's
that

uniquely
Congress

associated
understood

meaning,
"good

and

sufficient cause" as a term of art in the visa revocation context.
The majority contends that the legislative ratification
rule does not apply to this case because there is no evidence in
the legislative history that Congress "affirmatively sought to
ratify

the

agency's

interpretation

of

a

statute."

But

the

"affirmative indication" in legislative history is not a doctrinal

27

For references to "reasonable cause" in the INA, see 8
U.S.C.
§§
1182(a)(6)(B),
1182(m)(2)(E)(ii),
1182(n)(2)(A),
1182(n)(2)(G)(i),
1182(n)(2)(G)(vii),
1182(n)(5)(C),
1182(t)(3)(A).
For
references
to
"good
cause,"
see
§§
1182(a)(9)(B)(iv),
1182(l)(5);
§§
1186a(c)(2)(A)(ii),
1186a(d)(2)(B);
§§
1186b(c)(2)(A)(ii),
1186b(d)(2)(B);
§ 1254a(c)(3)(C); § 1522(e)(2)(A). For a reference to "sufficient
cause," see § 1448(c).
28
For the same reason, contrary to the government's
suggestion, it is the phrase "good and sufficient cause," not only
the word "good" in that phrase, that supplies an objective legal
standard in the visa revocation decision.
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requirement.

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The Supreme Court has not explicitly held so in more

than a century of articulating the legislative ratification canon.
See United States v. Cerecedo Hermanos y Compania, 209 U.S. 337,
339 (1908) ("[T]he reenactment by Congress, without change, of a
statute which had previously received long continued executive
construction, is an adoption by Congress of such construction.");
Lorillard, 433 U.S. at 580 (holding that the presumption of
legislative
administrative

ratification
or

judicial

attaches

where

interpretation

of

there
a

is

statute,"

"an
and

Congress "re-enacts [that] statute without change"); Commodity
Futures Trading Comm'n v. Schor, 478 U.S. 833, 846 (1986) ("It is
well established that when Congress revisits a statute giving rise
to a longstanding administrative interpretation without pertinent
change, the 'congressional failure to revise or repeal the agency's
interpretation is persuasive evidence that the interpretation is
the one intended by Congress.'") (quoting NLRB v. Bell Aerospace
Co., 416 U.S. 267, 274-75 (1974)).29

29

In characterizing "affirmative indication" as a doctrinal
requirement, the majority relies on out-of-circuit cases in which
courts refused to apply the rule of legislative ratification in
the absence of affirmative indication in legislative history. See
ACLU v. Clapper, 785 F.3d 787, 819 (2d Cir. 2015); Ass'n of Am.
R.R.s v. Interstate Commerce Comm'n, 564 F.2d 486, 493 (D.C. Cir.
1977). These cases in turn rely on a handful of Supreme Court
cases where the Court invoked some variation of the statement
expressed in United States v. Bd. of Comm'rs of Sheffield, Al.,
435 U.S. 110 (1978), that, "[w]hen a Congress that re-enacts a
statute voices its approval of an administrative or other
interpretation thereof, Congress is treated as having adopted that
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Nor

have

we

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held

that

Date Filed: 01/29/2016

affirmative

Entry ID: 5973372

indication

in

legislative history is required for the legislative ratification
canon to apply.

The only case cited by the majority -- Molina,

981 F.2d at 23 -- does not suggest to the contrary.

Our statement

in Molina -- "Congressional reenactment of statutory language does
not normally or automatically indicate a legislative intent to
freeze all pre-existing agency interpretations of language," id.
at 23 -- is inextricably tied to our reasoning that a court should
be cautious about inferring legislative ratification where, as in
that case, there is ambiguity in the agency's interpretations of
the relevant statutes.

See id. ("The case before us presents a

particularly weak case for implying . . . Congressional intent"
because "the application of the pre-existing INS rule . . . was

interpretation, and this Court is bound thereby."
Id. at 134.
The quoted language, however, does not logically yield the
conclusion that affirmative indication of congressional intent in
legislative history is doctrinally required.
As one prominent
scholar has observed, in Sheffield and other cases, the Court has
used such affirmative indication as a reassurance mechanism where
the Court chooses to apply the legislative ratification canon and
as a strategy for avoiding the rule where the Court chooses not
to.
See generally William N. Eskridge, Jr., Interpreting
Legislative Inaction, 87 Mich. L. Rev. 67, 79-83 (1988).
The
inconsistent reliance on affirmative indication and legislative
history suggests that they are not preconditions to applying the
legislative ratification doctrine. See id. at 81 (noting that the
Court "often invokes the reenactment rule without a specific
showing that Congress was aware of the judicial [or executive]
interpretations"); Yule Kim, Cong. Research Serv., No. 97-589,
Statutory Interpretation: General Principles and Recent Trends 46
(2008) (observing that "the presumption [of congressional
awareness] comes into play in the absence of direct evidence that
Congress actually considered the issue at hand.").
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unclear.").

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Indeed, we held in Molina that, where the agency has

inconsistently applied the statute, "Congressional silence does
not show a Congressional intent to prevent subsequent [agency]
clarification of [its interpretation]."

Id. (emphasis added).

We

have no such inconsistent application of the relevant statute here.
To the extent that some "affirmative indication" from
Congress is helpful in confirming that Congress in fact ratified
the

pre-existing

agency

interpretation

of

a

statute,

the

circumstances of the two reenactments of § 1155 provide guidance.
In Merrill Lynch, Pierce, Fenner & Smith v. Curran, the Court held
that "the fact that a comprehensive reexamination and significant
amendment of the [statute] left intact the statutory provisions
[at issue] . . . is itself evidence that Congress affirmatively
intended to preserve [the challenged interpretation]."
353, 382 (1982) (emphasis added).
in

this

case.

If

Congress

456 U.S.

We have such affirmative intent

wanted

to

"specif[y]"

the

visa

revocation decisions "to be in the discretion" of the Secretary,
it could have done so in 1996, when it reenacted § 1155 with the
passage of IIRIRA, or in 2004, when it reenacted § 1155 while
removing other language from the same section. On either occasion,
Congress

could

have,

for

instance,

enumerated

§

1155

in

§ 1252(a)(2)(B)(i) or eliminated the phrase "good and sufficient
cause" from § 1155.

Congress also could have added clearly

discretionary language in § 1155 -- a familiar tool that Congress

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used in other provisions of the INA.30

Entry ID: 5973372

See, e.g., 8 U.S.C.

§ 1157(c)(1) (providing that the Attorney General "may, in [his]
discretion . . . , admit any refugee . . . determined to be of
special

humanitarian

concern

to

the

United

States");

§ 1154(a)(1)(A)(viii) (providing that the bar on U.S. citizens
convicted of certain offenses against a minor filing a familybased visa petition shall not apply, if the Secretary, "in [his]
sole and unreviewable discretion," waives the bar).

But Congress

did none of these things. Instead, Congress did not include § 1155
in §§ 1252(a)(2)(B)(i) and kept the "good and sufficient cause"
standard in § 1155 -- the only provision of the INA in which the
phrase is used.31

30

Given these structural and textual methods of precluding
judicial review, I reject the notion, alluded to by the majority,
that to interpret § 1155 as subject to judicial review would be to
require congressional "talismanic incantation" of any particular
word or phrase.
31
The
majority
also
suggests
that
the
legislative
ratification canon does not apply because there was no judicial
consensus that a visa revocation decision is subject to review.
My colleagues seem to imply that the lack of such judicial
consensus matters, in turn, because it somehow vitiates the
consistent agency application of "good and sufficient cause" as a
basis for inferring congressional intent. This argument confuses
two separate grounds for positively interpreting congressional
silence. In the one case cited by the majority, judicial consensus
was a factor in inferring congressional intent because the parties
in that case disputed whether there were sufficiently consistent
judicial constructions of a statute to sustain the presumption of
congressional awareness; an agency interpretation of a statute was
simply not at issue. See Jama v. Immig. & Customs Enf't, 543 U.S.
335, 349-51 (2005). Here, rather than contending that there was
judicial consensus as to the reviewability of § 1155, I contend
only that the agency to whom the enforcement of § 1155 was
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Surrounding Statutory Language

Seemingly unperturbed by the dissonance between their
construction

of

the

statutory

language

and

the

agency's

application of it, my colleagues ignore the "good and sufficient
cause" standard because it is modified by "what he deems to be" in
§ 1155.

To focus on "good and sufficient cause," according to the

majority's reasoning, would fail to give effect to the preceding
word "deems."

My colleagues are not alone in this view.

The Third

Circuit has observed that "[t]he 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.'"

Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 204

(3d Cir. 2006) (alteration in original).
A failure to interpret "good and sufficient cause,"
however, would be just as much an act of "judicial fiat" as
ignoring

the

importantly,

arguably

discretionary

recognizing

that

"good

words
and

in

§

1155.

sufficient

More
cause"

prescribes objective legal criteria that govern the revocation
decisions is not incompatible with an understanding that "may,"

entrusted had uniformly interpreted "good and sufficient cause" to
prescribe objective legal criteria that guide the courts' review.
I am not aware of case law -- nor has the majority cited any -that says that judicial consensus on the statutory construction is
categorically required for the legislative ratification canon to
apply, or that the lack of such consensus obliterates the
consistent agency interpretation that would otherwise support the
assumption of congressional awareness.
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"at

Document: 00116952143

any

time,"

and

Page: 51

"deems"

discretion to the Secretary.
suffice

for

"anticipate[]"

statutory
an

reserve

certain

Entry ID: 5973372

administrative

As Kucana instructs, it does not

language

exercise

Date Filed: 01/29/2016

of

to

"contemplate[]"

discretion.

To

overcome

or
the

presumption of judicial review, the language has to be explicit,
unencumbered by any ambiguity over Congress's intent.

558 U.S. at

243 n.10; see also INS v. Doherty, 502 U.S. 314, 330 (1992)
(Scalia,

J.,

concurring

in

part,

dissenting

in

part)

("Even

discretion, however, has limits.").
The cumulative effect of "may," "at any time," "deems,"
and "good and sufficient cause" does not evince the level of
clarity required to overcome that presumption.

Of the three

language choices relied on by the majority, the only one that
qualifies the effect of "good and sufficient cause" is the word
"deems."

But "deems" in the combined phrase "what he deems to be

good and sufficient cause" only allows the Secretary to determine
whether factual grounds exist to satisfy the "good and sufficient
cause" standard, i.e., to "warrant [] denial" of the visa petition,
not what the standard should mean in each individual circumstance.
See ANA Int'l, Inc. v. Way, 393 F.3d 886, 894 (9th Cir. 2004)
(holding that the Secretary has discretion to decide "the specific
factual ground upon which a particular visa is to be revoked, not
"the general principles under which individual decisions to revoke
a visa should be made").

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The majority resorts to a sleight of hand in proposing
a

contrary

interpretation.

Without

analyzing

the

interplay

between the two phrases, the majority subsumes "good and sufficient
cause" under "deems," and concludes that "deems" -- defined as "to
sit in judgment upon" -- indicates that "what constitutes 'good
and sufficient cause' is within the Secretary's discretion."

See

ANA Int'l, 393 F.3d at 899 (Tallman, J., dissenting) ("Not only
does [the Secretary] decide whether [good and sufficient cause]
exists, he decides what constitutes such cause in the first
place."); Jilin Pharm., 447 F.3d at 204 (quoting the dissent in
ANA Int'l).

But the word "deems" cannot nullify the established

meaning of "good and sufficient cause" that the relevant agency
has applied for almost three decades, and that formed the backdrop
against which Congress reenacted § 1155.
The primary case that the majority cites in support of
this reading is inapposite.

The majority argues that "deems" in

§ 1155, like "deem" in Webster v. Doe, 486 U.S. 592 (1988),
"forecloses the application of any meaningful judicial standard of
review."

But the statutes at issue are not equivalent.

In

Webster, the relevant statutory provision, Section 102(c) of the
National Security Act, provided that the Director of the Central
Intelligence

Agency

"may,

in

his

discretion,

terminate

the

employment of any officer or employee of the Agency whenever he
shall deem such termination necessary or advisable in the interests

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486 U.S. at 594 (emphasis added).

Hence,

the statute in Webster "specified," or "state[d] explicitly,"
Kucana, 558 U.S. at 243 n.10, that the decision to terminate an
employee

of

the

agency

is

"in

[the

Director's]

discretion."

Indeed, while the use of the word "discretion" in a statute is not
necessary

to

insulate

the

underlying

decision

from

judicial

review, the presence of it is sufficient.
Moreover, the judgment call contemplated in Webster -determining what is "in the interests of the United States" -requires

on

categorically

its

face

different

sufficient cause."

a

policy-driven

from

a

assessment

determination

of

that
"good

is
and

With the former, a qualitative comparison of

individual circumstances produces, by necessity, a spectrum of
outcomes -- e.g., an individual's continued employment is more or
less "in the interests of the United States" according to different
considerations in play.

The latter inquiry, by contrast, is

predicated on binary outcomes -- e.g., either Freitas has worked
in a managerial or supervisory capacity for two years, or he has
not.32

32

A similar contrast can be drawn as to "good moral character"
and "exceptional or extremely unusual hardship" -- two of the four
statutory grounds for the Secretary's discretionary decision to
cancel a removal order.
See 8 U.S.C. § 1229b(b)(1)(B), (D).
Neither phrase is amenable to objective definition. See PortilloRendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011); Romero-Torres,
v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003).
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The Webster Court's reasoning further crystallizes this
distinction.

The Court observed that, "[s]hort of permitting

cross-examination of the Director concerning his views of the
Nation's security and whether the discharged employee was inimical
to those interests, we see no basis on which a reviewing court
could properly assess an Agency termination decision."

486 U.S.

at 600. Here, there is no need to "cross-examin[e]" the Secretary.
The revocation decision is based on objective evidence, such as a
letter from an employer.

The Third Circuit -- one of the early

circuits to reject judicial review for visa revocation decisions
–- made a similar misstatement, noting that to allow review would
"require courts to test whether the Secretary genuinely deemed the
proffered cause to be 'good and sufficient.'"
F.3d at 204.

Jilin Pharm., 447

Again, where the relevant documentation is shown,

"good and sufficient cause" does not give the Secretary discretion
to revoke his prior approval, regardless of how "genuine[]" his
belief may be.

In the end, it is the very rule of statutory

construction cited by the majority -- "significance and effect
shall, if possible, be accorded to every word," Wash. Mkt. Co. v.
Hoffman, 101 U.S. 112, 115 (1879) -- that dictates a different
interpretation of the interplay between "deems" and "good and
sufficient cause."33

33

The other case that the majority cites in support of its
interpretation of "deems" -- Fed. Energy Admin. v. Algonquin SNG,
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The other language choices that the majority invokes -"may" and "at any time" -- do not suggest otherwise.

The Supreme

Court has noted in a landmark immigration case that, "while 'may'
suggests discretion, it does not necessarily suggest unlimited
discretion."

Zadvydas v. Davis, 533 U.S. 678, 697 (2001).34

Even

the majority acknowledges that the discretion-conferring meaning
of "may" "'is by no means invariable . . . and can be defeated by
indications of legislative intent to the contrary or by obvious
inferences from the structure and purpose of the statute.'" United
States v. Rodgers, 461 U.S. 677, 706 (1983).
of

§

1155

makes

clear

that

what

the

Here, the construct

Secretary

"may"

restricted by the "good and sufficient cause" standard.

do

is
Cf.

Kucana, 558 U.S. at 247 n.13 (explaining that Congress explicitly
carved out § 1158 as an exception to § 1152(a)(2)(B)(ii) because

Inc., 426 U.S. 548 (1976) -- is also distinguishable because what
the President may "deem[] necessary to adjust the imports of [an]
article and its derivatives" is not anchored in any objective legal
standard. Id. at 550 (quoting 19 U.S.C. § 1862(b) (1970)).
34
The majority's attempt to distinguish Zadvydas is
unpersuasive. To be sure, Zadvydas concerned the extent of the
Attorney General's authority to hold an alien who had been ordered
removed from the country following the 90-day statutory removal
period. 533 U.S. at 682. The factual circumstances of the case,
however, do not diminish the applicability of the reasoning that
"may" does not indicate "unlimited discretion." Id. at 697. The
statement from Zadvydas quoted by the majority -- that the aliens
in that case "d[id] not seek review of the Attorney General's
exercise of discretion," id. at 688 -- is irrelevant. Bernardo
does not "seek review of [the Secretary's] exercise of discretion";
rather, he challenges the district court's threshold determination
that the Secretary's revocation decision should be deemed
discretionary under the statute.
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§ 1158 -- which governs the granting of asylum relief -- provides
that the Attorney General "may grant asylum" without specifying
any legal standard).35

Similarly, while "at any time" affords

administrative flexibility to the Secretary in determining when to
revoke the prior approval, it does not undermine the "good and
sufficient cause" standard, nor does it frustrate the objective
nature of evaluating whether the standard has been met.
Finally,

in

emphasizing

"may,"

"at

any

time,"

and

"deems," my colleagues place substantial weight on the fact that
these constitute "three language choices," as opposed to, say, one
or two.

But the numerical count of the discretionary words in

§ 1155 is a red herring. Because the presumption of judicial review
applies, § 1155 need only reveal that the cumulative effect of the
four language choices -- "good and sufficient cause" included -is "reasonably susceptible to divergent interpretation," Gutierrez

35

There is an additional reason why Congress may have carved
out § 1158 from § 1252(a)(2)(B)(ii), apart from the use of the
word "may" in § 1158. Asylum is a form of "discretionary relief
from deportation [or removal]." INS v. Abudu, 485 U.S. 94, 106
(1988); see also Ticoalu v. Gonzales, 472 F.3d 8, 11 (1st Cir.
2006). The granting of asylum has the effect of admitting an alien
into the country or allowing the alien to stay -- decisions that
have long been deemed "matter[s] of grace" and thus belonging to
executive discretion. Kucana, 558 U.S. at 247 (internal quotation
marks omitted); see also INS v. St. Cyr, 533 U.S. 289, 308 (2001).
Absent clear indication to the contrary, such as the one Congress
implemented in § 1252(a)(2)(B)(ii), the nature of the relief in
§ 1158 -- reinforced by the word "may" -- would have suggested to
courts that § 1158 is precluded from review. For a discussion on
how the visa revocation decision differs in character from such
matters, see infra II.B.
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de Martinez, 515 U.S. at 434.

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That is to say, while "good and

sufficient cause" is but a single phrase, it is sufficient to
sustain

the

prescribes

presumption
an

of

objective

judicial

legal

review,

standard

as

that

long

as

curtails

it
the

Secretary's discretion.
The availability of judicial review in an immigration
statute has often depended on whether there is a meaningful legal
standard that guides the administrative decision and the potential
subsequent

review

by

courts.

Even

for

judgments

that

are

enumerated in § 1252(a)(2)(B)(i) as not subject to judicial review,
courts have reviewed an agency's predicate application of a statute
where the application turns on a statutory term that has a defined,
objective meaning.

See, e.g., Montero-Martinez v. Ashcroft, 277

F.3d 1137, 1144 (9th Cir. 2002) (reviewing a discretionary denial
of cancellation of removal under § 1229b, where the decision
concerned an application of a defined statutory term, "child").
By contrast, where the statutory term that provides the basis for
the

agency's

decision

has

no

objective

meaning,

courts

have

construed the decision as purely discretionary and thus precluded
from judicial review.

See Portillo-Rendon v. Holder, 662 F.3d

815, 817 (7th Cir. 2011) (holding that a denial of cancellation of
removal is not reviewable because "good moral character" -- the
lack of which provided a basis for the denial -- is "not define[d]"
in the statute); Romero-Torres v. Ashcroft, 327 F.3d 887, 890-91

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(9th Cir. 2003) (finding that a denial of cancellation of removal
based on the absence of "extreme hardship" is not subject to
judicial review because "the language [of the phrase] itself
commits the determination to the opinion of the Attorney General"
(internal quotation mark omitted)).

Because "good and sufficient

cause" prescribes a meaningful legal standard, unaltered by the
surrounding words in § 1155, I conclude that the applicable
presumption of review should control, and that judicial review
should be available for visa revocation decisions.
B.

Structure
The structure of § 1252(a)(2)(B) bolsters the conclusion

that I draw from the text of the relevant statutes.36

36

In Kucana,

The majority argues in two footnotes that this structural
reasoning derived from Kucana is waived because Bernardo did not
raise it until the oral argument. As the Supreme Court has held,
however, "'[w]hen an issue or claim is properly before the court,
the court is not limited to the particular legal theories advanced
by the parties, but rather retains the independent power to
identify and apply the proper construction of governing law.'"
U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508
U.S. 439, 446 (1993) (quoting Kamen v. Kemper Fin. Servs., Inc.,
500 U.S. 90, 99 (1991) (alteration in original)).
Here, the
central issue of whether judicial review is available under § 1155
-- which is what the structural argument based on Kucana addresses
-- is properly before this Court, as the issue was briefed by the
parties and decided by the district court. Moreover, it is not as
if either party was unaware of Kucana.
Both Bernardo and the
government cited Kucana in their briefs before this Court, albeit
to support different arguments. The rule in our circuit cited by
the majority -- that "issues adverted to in a perfunctory
manner . . . are deemed waived," United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) -- is not so broad as to engulf "legal
theories" and thereby confine the Court to the universe of legal
reasoning, however small, that parties in a case identify.
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the Supreme Court noted that "[t]he proximity of clauses (i) and
(ii) [in § 1252(a)(2)(B)], and the words linking them -- 'any other
decision' -- suggest that Congress had in mind decisions of the
same genre" in both clauses.

558 U.S. at 246-47.

While the Kucana

Court initially relied on the "proximity" comparison to emphasize
that both clauses encompass only decisions "made discretionary by
legislation," not by regulations, the Court immediately extended
the comparison to the decisions enumerated as discretionary in
§ 1252(a)(2)(B)(i) and the decisions rendered discretionary by the
text of § 1252(a)(2)(B)(ii).

Thus, in determining what decisions

may be precluded from judicial review under § 1252(a)(2)(B)(ii),
the

Court

"found

significant

the

character

Congress enumerated in § 1252(a)(2)(B)(i)."

of

the

decisions

Id. at 247.

Those

decisions include "waivers of inadmissibility based on certain
criminal

offenses,

§

1182(h),

or

based

on

fraud

or

misrepresentation, § 1182(i); cancellation of removal, § 1229b;
permission for voluntary departure, § 1229c; and adjustment of
status,

§

1255."

Id.

at

248.

They

are,

in

other

words,

"substantive decisions . . . made by the Executive . . . as a
matter of grace" -- decisions that "involve whether aliens can
stay in the country or not."

Id. at 247 (quoting the government's

argument).

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A decision to revoke the approval of a visa petition is
not "of a like kind."37

Id. at 248.

Approval of a visa petition

is only "a preliminary step in the visa or adjustment of status
application process."

Matter of Ho, 19 I. & N. Dec. at 589. It

means only that the beneficiary is eligible to apply for an
immigrant visa (often through the adjustment of status process),
not that she is entitled to one. Id.; see also Thomas Alexander
Aleinkoff, et al., Immigration and Citizenship: Process and Policy
498-99 (7th ed. 2011); Firstland Int'l, Inc. v. INS, 377 F.3d 127,
132 n.6 (2d Cir. 2004) ("We note, however, that the INS's approval
of an immigrant visa petition does not, by itself, entitle an alien
to permanent resident status. It appears that the Attorney General
retains discretion to deny an application for adjustment of status
even where the applicant has an approved immigrant visa petition."
(citing 8 U.S.C. § 1255(a)); Tongatapu Woodcraft Haw., Ltd. v.
Feldman, 736 F.2d 1305, 1308 (9th Cir. 1984) ("It is important to
note that a visa petition is not the same thing as a visa. . . . It
does not guarantee that a visa will be issued, nor does it grant
the alien any right to remain in the United States.").

37

As the

The majority attempts to limit Kucana's structural
reasoning to the factual confines of the case, noting that "[t]he
question of whether revocations of visa petition approvals are of
a 'like kind' was not before the [Kucana] Court." It is certainly
true that the issue that we are addressing here was not before the
Court in Kucana.
But Kucana announced principles of statutory
interpretation with respect to the same statute as here,
§ 1252(a)(2)(B), which are unmistakably applicable to this case.
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Kucana Court explained in characterizing the motion to reopen
removal proceedings, where a court decision reversing an agency
ruling

"does

not

direct

the

Executive

to

afford

the

alien

substantive relief," the underlying decision of the agency is an
"adjunct ruling[]" subject to judicial review, not a "substantive
decision[]" insulated from court oversight.

558 U.S. at 248, 247.

A decision to revoke the prior approval of a visa
petition is precisely such an "adjunct ruling[]."

Id. at 248.

Just as in Kucana, a court decision reversing the revocation ruling
"[would] not direct the Executive to afford the alien substantive
relief," as the approval of a visa petition only determines the
alien's

eligibility

admissibility.
contrast

to

"specified"

an

immigrant

visa,

not

her

overall

Moreover, the revocation decision stands in stark

the
as

for

matters

observed

discretionary

by

under

§

the

Kucana

Court

to

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

be
Id.

(citing § 1157(c)(a), which allows the Attorney General to admit
refugees "determined to be of special humanitarian concern to the
United States," and §§ 1181(b) and 1182(a)(3)(D)(iii), which give
the Attorney General "discretion" to waive certain inadmissibility
grounds).
A

contrary

statutory anomaly.

interpretation

would

produce

a

broader

It is widely accepted that the Secretary's

denial of visa petitions under § 1154 is subject to judicial
review.

See Soltane v. U.S. Dep't of Justice, 381 F.3d 143, 147-

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48 (3d Cir. 2004) (holding that a denial of an employment-based
visa

petition

is

subject

to

court

oversight

despite

§ 1252(a)(2)(B)(ii) because § 1153(b)(4) states that "special
immigrant" employment-based visas "shall be made available" upon
satisfaction of certain conditions); Spencer Enters., Inc. v.
United States, 345 F.3d 683, 689 (9th Cir. 2003) (holding that a
denial of an employment-based visa petition is subject to judicial
review because § 1154(b) states that the Attorney General "shall"
approve the petition if the eligibility requirements are met); ZNoorani, Inc. v. Richardson, 950 F. Supp. 2d 1330, 1337-1343 (N.D.
Ga.

2013)

(reviewing

a

denial

of

an

employment-based

visa

petition); see also Bangura v. Hansen, 434 F.3d 487, 498 (6th Cir.
2006)

(presuming

reviewable

in

that

court

denials

under

the

of

spousal

visa

Administrative

petitions

Procedure

are

Act);

Zemeka, 989 F. Supp. 2d at 128-32 (reviewing a denial of a visa
petition based on marriage fraud).
Thus,

to

hold

that

revocation

decisions

are

not

reviewable in court would result in an incoherent understanding of
the INA, in which judicial recourse is available if the petition
is denied but not available if the petition is revoked, even where
both the denial and revocation are based on the same factual
ground, such as a failure to satisfy the minimum prior work

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"[I]nterpretations of a statute which would produce

absurd results are to be avoided if alternative interpretations
consistent with the legislative purpose are available."

Griffin

v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982) (citing
United States v. Am. Trucking Ass'ns, Inc., 310 U.S. 534, 542-43
(1940)).

Construing visa revocation decisions as subject to

judicial review would treat revocations and denials alike where
the same facts are involved and, hence, preserve the coherence of
the INA.
III.
In rejecting the majority's view, I recognize the split
in authority among the eight circuits that have ruled on this issue
so far.

Seven of those circuits have held that a visa revocation

decision under § 1155 is insulated from judicial review.

See

Mehanna v. U.S. Citizenship and Immigration Servs., 677 F.3d 312,

38

The majority insists that this structural anomaly helps
their argument because the statutes authorizing denials of visa
petitions use the word "shall," not "may," and because Congress
has to "structure and allocate resources of our immigration
system." As to the first point, I reiterate that, while Congress
used the word "may" in § 1155, it also curtailed the effect of
"may" by imposing objective legal criteria under the "good and
sufficient standard.
Moreover, while I recognize the need to
allocate resources, the majority is inferring here a statutory
scheme where Congress chose to allow a judicial remedy for one
decision and not the other, even in cases where both decisions are
based on the same lack of minimum prior work experience. I would
not conclude that Congress intended such an arbitrary allocation
of resources, absent clear textual or structural indications in
the statutes.
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Case: 15-1177

Document: 00116952143

Page: 64

Date Filed: 01/29/2016

Entry ID: 5973372

313 (6th Cir. 2012); Green v. Napolitano, 627 F.3d 1341, 1345-46
(10th Cir. 2010); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th
Cir. 2009); Sands v. U.S. Dep't of Homeland Sec., 308 F. App'x
418, 419-20 (11th Cir. 2009) (per curiam); Ghanem v. Upchurch, 481
F.3d 222, 224 (5th Cir. 2007); Jilin Pharm., 447 F.3d at 204; El–
Khader v. Monica, 366 F.3d 562, 567 (7th Cir. 2004).

Only the

Ninth Circuit has held that a revocation decision is reviewable in
court based on the "good and sufficient cause" standard in § 1155.
See ANA Int'l., 393 F.3d at 895.
The seven circuit decisions, however, seem to reflect
what scholars have referred to as a "precedential cascade."39
Seventh

Circuit

was

the

first

to

hold

that

visa

revocation

decisions are discretionary and thus not reviewable in court.
El-Khader, 366 F.3d at 567.

The

See

Shortly thereafter, the Ninth Circuit

created a split, holding that visa revocation decisions are subject
to judicial review.

See ANA Int'l, 393 F.3d at 895.

The Third

Circuit then agreed with the Seventh Circuit and further developed
the reasoning for precluding judicial review, focusing on the
"may," "any time," and "deems" language in § 1155.

39

See Jilin

See Eric Talley, Precedential Cascades: An Appraisal, 73
S. Cal. L. Rev. 87 (1999) (exploring "a cascade theory of
[judicial] precedent"); Timur Kuran & Cass R. Sunstein,
Availability Cascades and Risk Regulations, 51 Stan. L. Rev. 683,
765 (1999) (observing that courts are not immune to informational,
cognitive and reputational herding effects, which the authors term
"availability cascades").
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Case: 15-1177

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Pharm., 447 F.3d at 203-205.

Date Filed: 01/29/2016

Entry ID: 5973372

In the years that followed, the

remaining five circuits sided with the Third and the Seventh
Circuits, many of them without much independent analysis.

See

Ghanem, 481 F.3d at 223-224; Abdelwahab, 578 F.3d at 821; Sands,
308 F. App'x. at 419-20; Green, 627 F.3d at 1343-46; Mehanna, 677
F.3d at 314-17.

Hence, while the numerical split among the

circuits is far from even, I do not accord much weight to the
precedential imbalance.
There is, moreover, another reason to question this
particular "precedential cascade."
decisions predated Kucana.40

Five of the seven circuit

Kucana, in my view, has inescapably

changed the analytical landscape governing the application of the
presumption of judicial review to the interplay between §§ 1155
and 1252(a)(2)(B) of the INA. Indeed, with the benefit of Kucana's
guidance, I think it apparent that my colleagues and the courts
whose view they adopt have erroneously interpreted that interplay.
I respectfully dissent.

40

Of the two circuit decisions that were decided after Kucana,
one misstated the nature of the visa revocation decision, noting
that "Section 1155, which allows the Secretary to revoke his
previous approval of a visa petition and thus conclusively
determines whether an alien can stay in the country or not, fits
squarely within the class of 'substantive decisions' described in
Kucana as warranting insulation from judicial review." Mehanna,
677 F.3d at 317 (quoting Kucana, 558 U.S. at 247). This statement
mischaracterizes the visa revocation decision. The approval of a
visa petition determines only the eligibility to apply for an
immigrant visa, not "whether an alien can stay in the country or
not."
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