Sriram Rajasekaran, et al v. Mark Hazuda, et al

Filing

OPINION FILED - THE COURT: James B. Loken, Duane Benton and Bobby E. Shepherd AUTHORING JUDGE:Duane Benton (PUBLISHED) [4361354] [14-3623] This court's prior opinion of December 1, 2015, is hereby vacated and this opinion substituted for it.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3623
___________________________
Sriram Rajasekaran; Kasthuri Sriramvenugopal; Mughil Sriramvenugopal
lllllllllllllllllllll Plaintiffs - Appellants
v.
Mark Hazuda, Director, Nebraska Service Center, U.S. Citizenship and
Immigration Services; Leon Rodriguez, Director, United States Citizenship and
Immigration Services; Eric H. Holder, Jr., Attorney General of the United States;
Jeh Johnson, Secretary, Department of Homeland Security
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: September 22, 2015
Filed: January 29, 2016
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Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
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BENTON, Circuit Judge
The U.S. Citizenship and Immigration Services (“USCIS”) revoked an I-140
petition and then denied Sriram Rajasekaran’s I-485 adjustment-of-status application.

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Rajasekaran sought judicial review. The district court1 dismissed for lack of subjectmatter jurisdiction. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.2
I.
To hire an immigrant-worker, an employer must file an I-140 petition with
USCIS. INA § 203(b)(2). Once approved, the immigrant can file an I-485
adjustment-of-status application. 8 U.S.C. § 1255. The American Competitiveness
in the Twenty-First Century Act of 2000 (“AC21”) creates a job-portability
mechanism: if an I-485 application is not adjudicated within 180 days, the underlying
I-140 petition remains valid if the immigrant changes jobs (“ports”), so long as the
immigrant stays in the same or similar occupational classification.
8 U.S.C. § 1154(j). Porting eliminates the need for the new employer to file an I-140
petition on the immigrant’s behalf. Id.
The Attorney General may revoke an approved I-140 petition “at any time, for
what he deems to be good and sufficient cause. . . .” 8 U.S.C. § 1155. Notice of an
intent to revoke must be sent to the employer-petitioner. 8 C.F.R. § 205.2(b). USCIS
must allow the employer to examine evidence “which constitutes the basis for the
decision. . . .” § 103.2(b)(16). The employer may submit evidence to support the
petition, and if revoked, may appeal. Id.; § 205.2(c), (d). The beneficiary of a
petition—the immigrant-worker—has no standing to appeal to the agency for review
of an I-140 revocation. § 103.3(a)(1)(iii)(B).

1

The Honorable Richard G. Kopf, Senior United States District Judge for the
District of Nebraska.
2

This court’s prior opinion of December 1, 2015, is hereby vacated and this
opinion substituted for it. The pending Petition for Panel Rehearing is denied as
moot.
-2-

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Rajasekaran is a native and citizen of India. In 2006, Pacific West Corporation
filed an I-140 petition on his behalf. USCIS approved it. Rajasekaran and his family
filed I-485 adjustment-of-status applications, which remained unadjudicated for more
than 180 days. Rajasekaran ported twice to new employers. Neither filed an I-140
petition on his behalf. In 2012, Pacific West closed. Later that year, USCIS issued
a Notice of Intent to Revoke the I-140 petition by Pacific West on behalf of
Rajasekaran. The Notice was sent to Pacific West and its lawyer, alleging the I-140
petition was fraudulently filed. Pacific West did not respond.
Rajasekaran learned of the Notice through Pacific West’s lawyer (who also
represented Rajasekaran). He responded, requesting more specific information about
the allegations. USCIS provided nothing further. Instead, it revoked the I-140
petition for cause, denied Rajasekaran’s motion to reopen/reconsider, and denied his
I-485 application. Rajasekaran sought judicial review. He argued that USCIS had
revoked the I-140 petition without fully disclosing the basis for the revocation as
required by 8 C.F.R. § 103.2(b)(16). He also contested the I-485 denial.
On a motion for summary judgment, the district court dismissed the action
without prejudice for lack of subject-matter jurisdiction. This court reviews de novo
questions of law, jurisdictional questions, and decisions on summary judgment
motions. Abdelwahab v. Frazier, 578 F.3d 817, 820 (8th Cir. 2009); Rochling v.
Dep’t of Veterans Affairs, 725 F.3d 927, 937 (8th Cir. 2013); Bernal-Rendon v.
Gonzales, 419 F.3d 877, 880 (8th Cir. 2005).
II.
Rajasekaran challenges the I-140 revocation, alleging USCIS did not comply
with the disclosure requirements in 8 C.F.R. § 103.2(b)(16). Courts lack jurisdiction
to review any “decision or action of the Attorney General or the Secretary of
Homeland Security the authority for which is . . . in the discretion of the Attorney
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General or the Secretary of Homeland Security. . . .” 8 U.S.C. § 1252(a)(2)(B)(ii).
“If the statute specifies that the decision is wholly discretionary, regulations or agency
practice will not make the decision reviewable.”Abdelwahab, 578 F.3d at 821 n.6,
quoting Spencer Enters., Inc. v. United States, 345 F.3d 683, 691 (9th Cir. 2003)
(internal citations omitted). Accordingly, an I-140 revocation is generally
unreviewable. See Id. at 821; Mantena v. Johnson, 2015 WL 9487867, at *5 (2d Cir.
Dec. 30, 2015) (and cases cited within). However, still reviewable is “a predicate
legal question that amounts to a nondiscretionary determination underlying the denial
of relief.” Abdelwahab, 578 F.3d at 821, quoting Ibrahimi v. Holder, 566 F.3d 758,
764 (8th Cir. 2009). Accord Mejia Rodriguez v. U.S. Dept. of Homeland Sec., 562
F.3d 1137, 1144-45 (11th Cir. 2009) (holding that despite § 1252(a)(2)(B)(ii), the
court had jurisdiction over statutory eligibility determinations underlying a Temporary
Protected Status application).
Whether an agency exceeds its statutory authority is necessarily a predicate
legal question; whether an agency exceeds its regulatory authority is not necessarily
a predicate legal question. Compare Ibrahimi, 566 F.3d at 764 (reviewing whether
the BIA correctly found an alien statutorily ineligible for a good-faith-marriage
waiver), with Abdelwahab, 578 F.3d at 821 (holding no jurisdiction to review
whether the proper USCIS office revoked an I-140 petition under 8 C.F.R. § 205.5(a)).
Courts review an agency’s compliance with its own regulations when, for example,
the rules were “intended primarily to confer important procedural benefits upon
individuals in the face of otherwise unfettered discretion. . . .” American Farm Lines
v. Black Ball Freight Serv., 397 U.S. 532, 538-39 (1970). However, “where a
procedural rule is designed primarily to benefit the agency in carrying out its
functions, judicial review may be circumscribed.” Ngure v. Ashcroft, 367 F.3d 975,
983 (8th Cir. 2004) (holding the court lacked jurisdiction to review the BIA’s decision
to affirm-without-opinion the denial of an asylum application). Also, courts consider
whether “it is not possible to devise an adequate standard of review for an agency
action.” Id. at 982, citing ICC v. Brotherhood of Locomotive Engineers, 482 U.S.
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270, 282 (1987).
USCIS notified the lawyer for both Rajasekaran and Pacific West of the reasons
for revoking the I-140 petition. Rajasekaran complains that the notice was
insufficiently detailed and not addressed to him directly, and that USCIS then revoked
Pacific West’s I-140 without giving him adequate opportunity to respond to the fraud
charges. These complaints do not overcome Congress’s broad prohibition of judicial
review in § 1252(a)(2)(B)(ii), nor “the tradition of agency discretion over internal
procedures.” Id. at 983. This court therefore lacks jurisdiction to review the agency’s
discretionary procedural decisions, such as how to respond to discovery demands by
those asserting an interest in the proceedings.
The district court properly dismissed this claim for lack of subject-matter
jurisdiction.
III.
Rajasekaran argued that he was statutorily eligible for adjustment-of-status
under the job-portability provision of AC21. To be eligible, an immigrant must
satisfy three requirements: (1) the immigrant must submit an I-485 application,
(2) the immigrant must be eligible to receive an immigrant visa and be admissible for
permanent residence, and (3) the visa must be immediately available. 8 U.S.C.
§ 1255(a).
A valid I-140 petition satisfies the second requirement for adjustment-of-status.
Under AC21’s job-portability provision, an I-140 “shall remain valid” if an immigrant
changes jobs. 8 U.S.C. § 1154(j) (emphasis added). That is, an I-140 petition is valid
after porting if it was valid to begin with. See Matter of Al Wazzan, 25 I & N Dec.
359, 365-67 (Admin. App. Off. 2010) (noting that porting occurs only if the I-140
petition was “‘valid’ to begin with,” that is “filed for an alien who is ‘entitled’ to the
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requested classification”).
Here, Rajasekaran could not port his I-140 because the I-140 was not valid to
begin with: USCIS found numerous petition deficiencies in its investigation of Pacific
West’s fraud. Rajasekaran is not statutorily eligible to adjust status.3

*******
The dismissal is affirmed.
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3

The district court ruled it could not review this question, citing 8 U.S.C.
§ 1252(a)(2)(B)(i) (courts lack jurisdiction to review “any judgment regarding the
granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of [the
INA]”). Rajasekaran challenges this ruling.
The circuits disagree whether courts can review questions of statutory eligibility
for § 1255 relief. Compare Mamigonian v. Biggs, 710 F.3d 936, 945 (9th Cir. 2013)
(“[D]istrict courts have jurisdiction to hear cases challenging final agency
determinations respecting eligibility for the immigration benefits enumerated in
8 U.S.C. § 1252(a)(2)(B)(i) made on nondiscretionary grounds, provided there is no
pending removal proceeding in which an alien could apply for such benefits.”); Pinho
v. Gonzales, 432 F.3d 193, 204 (3d Cir. 2005) (“Determination of eligibility for
adjustment of status—unlike the granting of adjustment itself—is a purely legal
question and does not implicate agency discretion.”), with Lee v. USCIS, 592 F.3d
612, 618-20 (4th Cir. 2010) (“[T]he denial of an application for adjustment of status
under § 1255(i) is not amenable to judicial review.”).
This question of statutory interpretation need not be addressed here. See
Lukowski v. I.N.S., 279 F.3d 644, 647 n.1 (8th Cir. 2002), citing Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 95-104 (1998).
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