Seol et al v. Holder et al

Filing 19

Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 7/24/2013. Mailed notice (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JUNG OK SEOL and CHANG SOO SEOL,
Plaintiffs,
v.
ERIC H. HOLDER, JR.,
Attorney General, et. al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

No. 13-cv-1379

Memorandum Opinion and Order
On February 21, 2013, Chang Soo Seol and Jung Ok Seol
(“Plaintiffs”) filed a complaint for declaratory and injunctive
relief and petition for review of an administrative agency
action.

Specifically, they challenge the revocation of a

previously approved Form I-130 Petition for Alien Relative (“Form
I-130”) under the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 701, et. seq.

The Government has moved to dismiss Plaintiffs’

complaint for lack of subject matter jurisdiction under Fed. R.
Civ. P. (“Rule”) 12(b)(1).

For the reasons that follow, I grant

the Government’s motion and dismiss Plaintiffs’ complaint.
II.
Plaintiff Jung Ok Seol, a United States citizen, filed the
Form I-130 petition on behalf of Plaintiff Chang Soo Seol (“Chang
Seol”), claiming Chang Seol was her unmarried son.

Change Seol

is a native and citizen of Korea who entered the United States on
a B-2 Visitor visa on November 24, 1992.

The Form I-130 petition

for Chang Seol was approved by the United States Citizenship and
Immigration Services (“USCIS”) on June 15, 1998 under 8 U.S.C. §
1154(a)(1)(A)(I), and he was classified as an unmarried adult son
of a United States citizen, eligible for visa under 8 U.S.C. §
1151(a)(1).
On May 27, 2010, USCIS issued a Notice of Intent to Revoke
(“NOIR”) Chang Seol’s 1998 Form I-130 because of its findings
that Chang Seol engaged in a “sham” divorce from his ex-wife Jim
Hee Kim, which thus made him ineligible for citizenship status
based on his being the unmarried son of an adult citizen.

In

support of its intention to revoke Change Seol’s approved Form I130, the USCIS cited an extensive list of evidence supporting its
conclusion that Chang Seol’s divorce was obtained solely to
obtain immigration benefits. On July 7, 2010, the USCIS issued a
final decision revoking Chang Seol’s approved 1998 Form I-130
petition.

Chang Seol appealed the decision to revoke his Form I-

130 to the Board of Immigration Appeals, which upheld the
conclusion of the USCIS.

Chang Seol and Jung Seol challenge that

decision before this court.
II.
“It is axiomatic that a federal court must assure itself
that it possesses jurisdiction over the subject matter of an
action before it can proceed to take any action respecting the
merits of the claim.” Cook v. Winfrey, 141 F.3d 322, 325 (7th
Cir. 1998).

The Government argues that 8 U.S.C. §1252

(a)(2)(B)(ii) strips federal courts of jurisdiction to review any
“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
[asylum.]” 8 U.S.C. §

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

The USCIS revoked Chang Seol’s visa under 8 U.S.C. § 1155,
which states that “[t]he 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.”

The Seventh Circuit has held that a decision to revoke a

previously approved petition pursuant to 8 U.S.C. § 1155 is a
discretionary decision within the meaning of 8 U.S.C.
1252(a)(2)(B), which therefore deprives district courts of
jurisdiction to review those decisions.

El-Khader v. Monica, 366

F.3d 562, 567 (7th Cir. 2004) (“[T]he discretionary nature of the
decision is apparent from the plain language of the statute.”) As
explained in El-Khader, Congress employed the “permissive ‘may’
and a temporal reference to ‘at any time’... and “[t]his language
plainly signifies a discretionary decision.” Id. at 567.
Plaintiffs argue, however, that this Court nevertheless has
jurisdiction because they urge that the revocation process under
8 U.S.C. § 1155 involves two steps that include (1) the decision
about when to take action to revoke the visa, and (2) the final
decision that actually revokes the approved petition.

They argue

that the Secretary’s decision regarding when to take action under
8 U.S.C. § 1155 is discretionary, but once the Secretary acts to
revoke an approved visa, she has exercised her power according to
a prescribed legal standard in the substantive statute that the
court may then review.

Plaintiffs’ argument is precluded by El-

Khader. 366 F.3d at 567.
Plaintiffs also argue that because the statute requires the
Secretary to review the evidence at the time the Notice of Intent
to Revoke is issued and to determine that if evidence went
“unexplained and unrebutted, would [it] warrant a denial of the
visa petition based on the petitioner’s failure to meet his
burden of proof,” it is not discretionary. Plt’s Resp. [#12] at 6
(citing Matter of Tafwik, 20 I&N Dec. 166, 167 (BIA 1990)).

They

argue that because the Secretary must use the underlying legal
standard governing marriage fraud determinations to revoke a
petition, the Secretary is not given unfettered discretion to
revoke petitions without a legal basis to do so.
This argument was foreclosed in Holy Virgin Protection
Cathedral of the Russian Orthodox Church Outside Russia, et al.
v. Chertoff, 499 F.3d 658, 661 (7th Cir. 2007), where the Seventh
Circuit reiterated that the broad discretion of 8 U.S.C. § 1155
meant that the Attorney General’s discretion to revoke a
previously approved visa was not subject to the same regulations
and strict requirements that govern its decision about whether to
issue a visa in the first instance.

The Seventh Circuit relied

on the language of 8 U.S.C. § 1155, and unequivocally stated that
“the degree of discretion that Congress wanted the Attorney
General and the Secretary to exercise is spelled out in the
statute itself.” Holy Virgin, 499 F.3d at 661. There, as here,
El-Kader “is the decision that governs” and that decision says
that the revocation of a previously approved Form I-130 petition
is discretionary. Id.
Plaintiffs also argue that Kucana v. Holder, 558 U.S. 233
(2010), stands for the proposition that 8 U.S.C. § 1252(a)(2)(B)
does not preclude judicial review of an administrative
proceeding, because Kucana holds that the statute must indicate
that the agency’s discretion was explicitly specified and not
just “implied” or “anticipated.” In short, they argue that if
Congress had intended for 8 U.S.C. § 1155 to be wholly
discretionary, it would have written that explicitly into the
language of the statute.

That argument, however, fails because

the Seventh Circuit has already analyzed the language and
determined that the permissive “may” and the “at any time,”
clearly signifies Congress’ intent that the action be committed
to the discretion of the Attorney. See El-Kader, 366 F.3d at 567
(“Nevertheless, in our opinion, the discretionary nature of the
decision is apparent from the plain language of the statute.”)
Courts that have considered the language following Kucana have
agreed that the Supreme Court’s decision does not change this
result. E.g., Green v. Napolitano, 627 F.3d 1341, 1345-46 (10th

Cir. 2010).
In the alternative, Plaintiffs argue that this Court may
issue declaratory relief through the Declaratory Judgment Act, 28
U.S.C. § 2201(a), because they urge that there is an actual
controversy between the parties.

The Declaratory Judgment Act,

however, does not enlarge the jurisdiction of the federal courts;
it is procedural only. See GNB Battery Techs, Inc. v. Gould,
Inc., 65 F.3d 616, 619 (7th Cir. 1995) (“[B]ecause the
Declaratory Judgment Act is not an independent source of federal
subject matter jurisdiction ... the district court must possess
an independent basis for jurisdiction.”)
Finally, Plaintiffs urge this Court to enjoin the
commencement of the removal proceedings against Chang Seol.

The

Government argues that 8 U.S.C. § 1252(g) prevents my review of
that claim since the statute explicitly precludes it.

In 8

U.S.C. § 1252(g), Congress provided that “no court shall have
jurisdiction to hear any cause or claim by or on behalf of any
alien arising from the decision or action by the Attorney General
to commence proceedings, adjudicate cases, or execute removal
orders against any alien under this chapter.”

Plaintiffs’

attempts to make an end-run around the limitations of 8 U.S.C. §
1252(g) by claiming the proceedings have not commenced fails
because judicial action would impermissibly interfere with the
Attorney General’s ability to exercise his discretion to commence
proceedings.

“[I]n each instance, the determination to withhold

or terminate deportation is confined to administrative
discretion.” Reno v. American-Arab Anti-Discrimination Comm., 525
U.S. 471, 484-85 (1999)(internal citation omitted).

And while 8

U.S.C. § 1252(g) does not prohibit review of all agency action,
it does prohibit the judicial review of the decision to commence
removal proceedings. Id. at 482.

Thus, this Court may not enjoin

the commencement of removal proceedings against Chang Seol.

III.

For the foregoing reasons, the Government’s motion to
dismiss for lack of subject matter jurisdiction is granted.

ENTER ORDER:
Dated: July 24, 2013
____________________________
Elaine E. Bucklo
United States District Judge