Nouritajer v. Jaddou ( 2021 )

21-632-cv
Nouritajer v. Jaddou
United States Court of Appeals
for the Second Circuit
_____________________________________
August Term 2021
(Argued: November 1, 2021 Decided: November 15, 2021)
No. 21-632-cv
_____________________________________
SIMIN NOURITAJER, THE RAZI SCHOOL,
Plaintiffs-Appellants,
— v. —
UR M. JADDOU, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES,
Defendants-Appellees. *
_____________________________________
Before: BIANCO, PARK, NARDINI, Circuit Judges.
Plaintiffs-Appellants Simin Nouritajer and the Razi School (together,
“Plaintiffs”) appeal from the United States District Court for the Eastern District
of New York’s (Matsumoto, J.) order and judgment dismissing without prejudice
their Second Amended Complaint (the “SAC”) for lack of subject matter
*
The Clerk of Court is respectfully instructed to amend the caption as set forth above.
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Director Ur M. Jaddou has been
automatically substituted for Director L. Francis Cissna of the United States Citizenship
and Immigration Services.
jurisdiction. Plaintiffs’ SAC sought review of the following: (1) the August 18, 2017
revocation by the United States Citizenship and Immigration Services (“USCIS”)
of Nouritajer’s previously-approved Form I-140, Immigrant Petition for Alien
Worker (“I-140”); (2) the USCIS Administrative Appeals Office’s (“AAO”) denial
of Nouritajer’s revocation appeal on August 1, 2018; and (3) the May 29, 2019
denial of Plaintiffs’ motion to reopen and reconsider the revocation.
In dismissing the SAC under Federal Rule of Civil Procedure 12(b)(1), the
district court correctly analyzed the relevant jurisdiction-stripping statutes—8
U.S.C. § 1155, which governs revocation of approved immigration petitions, and 8
U.S.C. § 1252(a)(2)(B), which limits judicial review of certain discretionary
decisions. We agree with the district court that the jurisdictional bar to a
substantive challenge to a discretionary decision by the Secretary of Homeland
Security applies here, as Plaintiffs do not assert a procedural challenge to the
revocation decision, but rather assert several arguments which, in sum and
substance, challenge the underlying reasons for the revocation of the immigration
petition.
Accordingly, we AFFIRM the district court’s order and judgment
dismissing the action for lack of subject matter jurisdiction.
THOMAS E. MOSELEY, Law Offices of
Thomas E. Moseley, Newark, NJ, for
Plaintiffs-Appellants.
ALEX S. WEINBERG (Varuni Nelson
and Rachel G. Balaban, on the brief),
Assistant United States Attorneys, for
Breon Peace, United States Attorney
for the Eastern District of New York,
Brooklyn, NY, for Defendants-
Appellees.
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_____________________________________
PER CURIAM:
Plaintiffs-Appellants Simin Nouritajer and the Razi School (together,
“Plaintiffs”) appeal from the United States District Court for the Eastern District
of New York’s (Matsumoto, J.) order and judgment dismissing without prejudice
their Second Amended Complaint (the “SAC”) for lack of subject matter
jurisdiction. Plaintiffs’ SAC sought review of the following: (1) the August 18, 2017
revocation by the United States Citizenship and Immigration Services (“USCIS”)
of Nouritajer’s previously-approved Form I-140, Immigrant Petition for Alien
Worker (“I-140”); (2) the USCIS Administrative Appeals Office’s (“AAO”) denial
of Nouritajer’s revocation appeal on August 1, 2018; and (3) the May 29, 2019
denial of Plaintiffs’ motion to reopen and reconsider the revocation.
In dismissing the SAC under Federal Rule of Civil Procedure 12(b)(1), the
district court correctly analyzed the relevant jurisdiction-stripping statutes—8
U.S.C. § 1155, which governs revocation of approved immigration petitions, and 8
U.S.C. § 1252(a)(2)(B), which limits judicial review of certain discretionary
decisions. We agree with the district court that the jurisdictional bar to a
substantive challenge to a discretionary decision by the Secretary of Homeland
Security applies here, as Plaintiffs do not assert a procedural challenge to the
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revocation decision, but rather assert several arguments which, in sum and
substance, challenge the underlying reasons for the revocation of the immigration
petition.
Accordingly, we AFFIRM the district court’s order and judgment
dismissing the action for lack of subject matter jurisdiction.
I. BACKGROUND
Nouritajer, who resides in the Eastern District of New York with her family,
is a native and citizen of Iran. Since 2002, Nouritajer has taught at the Razi School,
which provides education in an Islamic environment for students from pre-
kindergarten through the twelfth grade. On December 28, 2004, the Razi School
filed a labor certification with the Department of Labor (“DOL”) for Nouritajer as
a teacher, which DOL approved on January 18, 2007. On May 7, 2007, the Razi
School filed a Form I-140 on behalf of Nouritajer, seeking to classify her as an
Employment-Based Third Preference category (“EB-3”) professional, which USCIS
approved on November 19, 2013.
On July 11, 2017, USCIS issued a Notice of Intent to Revoke the I-140, finding
the initial approval had been in error. The Razi School was provided the
opportunity to oppose the revocation, and it did. On August 18, 2017, USCIS
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revoked the I-140, finding the previous grant was in error, as the Razi School had
not established its ability to pay the proffered wage, nor had Nouritajer established
her qualifications for the offered teaching position. The Razi School appealed the
revocation to the USCIS AAO, and the appeal was dismissed on August 1, 2018.
In its decision, the AAO agreed with USCIS’s conclusion that Plaintiffs had failed
to demonstrate Nouritajer’s requisite experience for the job offered by the Razi
School. The AAO explained that, among other things, although Nouritajer
established that she had experience teaching mathematics and limited part-time
experience teaching English, she did not have any previous experience in teaching
language arts and Islamic literature, as the position at the Razi School required.
The AAO also agreed with USCIS’s finding that the Razi School did not
demonstrate its financial ability to pay the proffered wage. Relying on two
additional pending petitions by the Razi School, the AAO noted that it lacked
sufficient information to determine whether it would be able to pay the combined
proffered wages of the pending petitioners, including Nouritajer. The Razi School
filed a motion to reopen and reconsider with the AAO, which was denied on May
29, 2019.
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Plaintiffs commenced the district court action on November 15, 2018 and
filed the SAC on October 7, 2019. The SAC asserted five claims for relief under the
Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., based upon “several
legal errors committed in revoking a previously approved immigrant petition and
in denying a motion to reopen the revocation,” Joint App’x at 7. The SAC centered
upon the allegation that the revocation of Nouritajer’s I-140 was pretextual. In
particular, Plaintiffs allege that, from approximately 2010 to 2015, Nouritajer and
her family were surveilled and questioned by agents of the Federal Bureau of
Investigation (“FBI”) and told that their immigration status would be in jeopardy
unless they cooperated and offered information about Iran’s relationship with the
United States. They allege that Nouritajer and her family did not possess such
information and therefore could not offer such cooperation.
The district court dismissed the SAC for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1). More specifically, the district court
concluded that subject matter jurisdiction was foreclosed by two statutes – namely,
8 U.S.C. § 1155, which governs revocation of approved immigration petitions, and
8 U.S.C. § 1252(a)(2)(B), which limits judicial review of certain discretionary
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decisions. Because the district court concluded that it lacked subject matter
jurisdiction, it dismissed Plaintiffs’ claims without prejudice.
II. DISCUSSION
On appeal, Plaintiffs argue that their challenge to USCIS’s revocation of the
I-140 was based on USCIS’s flawed legal conclusions and procedural errors.
Accordingly, they say the district court erred in holding that it lacked subject
matter jurisdiction over their action. We disagree with Plaintiffs’ characterization
of their claims, and agree with the district court’s conclusion that it lacked
jurisdiction.
A. Standard of Review
In reviewing a district court’s determination of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1), we review legal conclusions de novo
and factual findings for clear error. See Mastafa v. Chevron Corp., 770 F.3d 170, 177
(2d Cir. 2014). Although we draw all inferences in favor of Plaintiffs, they must
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prove by a preponderance of the evidence that subject matter jurisdiction exists.
See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
B. Subject Matter Jurisdiction
Under 8 U.S.C. § 1252(a)(2)(B), “no court shall have jurisdiction to review –
any . . . decision or action of the . . . Secretary of Homeland Security . . . which is
specified . . . to be in the discretion of . . . the Secretary of Homeland Security,”
and, pursuant to 8 U.S.C. § 1155, “[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.” Therefore, these statutes operate to strip federal
courts of jurisdiction to review a substantive discretionary decision revoking the
approval of an I-140 visa petition. See Mantena v. Johnson, 809 F.3d 721, 728 (2d Cir.
2015) (noting that Section 1252 “strips jurisdiction over a substantive discretionary
decision”); accord Firstland Int’l, Inc. v. U.S. I.N.S., 377 F.3d 127, 131 (2d Cir. 2004).
In the instant case, the district court correctly concluded that the “gravamen” of
all of Plaintiffs’ claims challenge the agency’s substantive discretionary decision
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to revoke Nouritajer’s I-140, thereby leaving the district court with no jurisdiction
to review Plaintiffs’ claims. Joint App’x at 66.
Although Plaintiffs attempt to avoid this jurisdictional bar by characterizing
their claims as “procedural” challenges on appeal, the use of that label does not
control the jurisdictional question. See, e.g., Ottey v. Barr, 965 F.3d 84, 91–92 (2d
Cir. 2020) (“Regardless of the rhetoric and labels used in the petition for review, a
challenge that merely quarrels over the correctness of the factual findings or
justification for the discretionary choices is not reviewable.” (internal quotation
marks and citation omitted)). To be sure, we have emphasized that “although the
substance of the decision that there should be a revocation is committed to the
discretion of the Attorney General [or Secretary of Homeland Security], Section
1155 establishes mandatory notice requirements that must be met in order for the
revocation to be effective, and courts retain jurisdiction to review whether those
requirements have been met.” Firstland Int’l, Inc., 377 F.3d at 131; see also Mantena,
809 F.3d at 728 (“Although the statute strips jurisdiction over a substantive
discretionary decision, [S]ection 1252 does not strip jurisdiction over procedural
challenges.”). However, the SAC makes no allegation that the agency failed to
comply with any of the requisite procedures prior to revoking an approved visa
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petition, which are set forth in 8 C.F.R. § 205.2. In fact, Plaintiffs do not dispute
that they timely received USCIS’s notice of intent to revoke the I-140, offered
evidence in opposition to the notice of intent to revoke, and received a written
notification of the decision explaining why the agency revoked approval of the
petition. Contrary to Plaintiffs’ characterization of their claims as “procedural,”
the relief they seek is judicial review of USCIS’s substantive revocation decision,
which is clearly precluded by the plain text of Section 1252(a)(2)(B)(ii). Plaintiffs
cannot end-run this jurisdictional bar “by artfully framing a challenge to the
agency’s substantive decision as a procedural claim.” Doe v. McAleenan, 926 F.3d
910, 915 (7th Cir. 2019) (recognizing that “[c]ourts may review identifiable
procedural rulings that don’t implicate a petition’s merits” but not challenges to
“discretionary revocations on nominally ‘procedural’ grounds”). Thus, where, as
here, there are no alleged violations of statutory procedural requirements for
revocation, and where, in any event, the gravamen of Plaintiffs’ claims challenges
the Secretary of Homeland Security’s exercise of discretion in making a revocation
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decision, subject matter jurisdiction is lacking. We address each of Plaintiffs’
arguments in turn.
First, the claim of pretext in Count Four – that is, that the revocation of the
I-140 and the subsequent denial of the reopening was done in response to
communications from the FBI – is an inherently substantive challenge. In other
words, Plaintiffs make no challenge to the procedures utilized for the revocation,
but rather challenge the reasons for the revocation, which is an inquiry into the
discretionary decision that is precluded by Section 1252’s jurisdictional bar. An
applicant’s argument “that a denial was pretextual is no different from arguing
that it was wrong” as “[b]oth arguments challenge the validity of the grounds for
denial,” not the procedures used. Proyecto San Pablo v. I.N.S., 189 F.3d 1130, 1141
(9th Cir. 1999) (concluding that the relevant statute’s “jurisdictional scheme
precludes district court review of such claims”). Thus, Plaintiffs’ claim that the
discretionary revocation decision was arbitrary and capricious under the APA
because it was pretextual, as well as the related claims based on the pretext
allegation, are not subject to judicial review because such revocation
determinations are committed to agency discretion by law under Section 1252, and
review is precluded by statute under Section 1155. See 5 U.S.C. § 701(a)(1)–(2)
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(judicial review under the APA is limited “to the extent that – (1) statutes preclude
judicial review; or (2) agency action is committed to agency discretion by law”).
Plaintiffs’ related argument, that the AAO’s decision denying the appeal
was a non-discretionary eligibility determination on the merits that is subject to
judicial review, is similarly flawed. The AAO decision, in addition to outlining
the eligibility requirements for an employment-based visa, makes clear that
“USCIS may revoke a petition’s approval for ‘good and sufficient cause,’” Joint
App’x at 37 (quoting 8 U.S.C. § 1155), which confers discretion on USCIS to revoke
a previously approved petition. The fact that the AAO reviewed USCIS’s
discretionary decision de novo, and affirmed the revocation, does not subject this
discretionary decision to judicial review. In short, subject matter jurisdiction is
lacking to review the underlying discretionary revocation decision by USCIS, so
jurisdiction is similarly lacking to review the AAO decision affirming that
revocation on the same grounds, as well as to review the denial of the motion to
reopen. See generally Durant v. U.S. I.N.S, 393 F.3d 113, 115 (2d Cir. 2004) (holding
that the jurisdictional bar under 8 U.S.C. § 1252(a)(2)(C) applies to orders denying
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motions to reopen removal proceedings that were “sufficiently connected” to final
orders of removal).
For the same reasons, each of Plaintiffs’ additional challenges are essentially
challenges to USCIS’s substantive decision to revoke the I-140 and are therefore
barred because they fall within the unreviewable discretion of the Secretary. In
Counts One and Two, Plaintiffs allege that the requirement that a sponsoring
employer “be able to pay the beneficiary’s salary from the time the labor
certification is filed until the beneficiary becomes a permanent resident is contrary
to the [INA],” and they challenge “the regulations purportedly imposing this
requirement.” Joint App’x at 12. They also argue in the alternative that, even if
the regulation is valid, they satisfied it as a factual matter. Again, Plaintiffs seek
to litigate the substantive basis for USCIS’s decision to revoke the I-140, not a
failure to comply with statutorily mandated procedures.
Similarly, Plaintiffs raise two claims effectively arguing that USCIS was
bound by prior decisions – by DOL or by itself – to reach a different decision. In
Count Three, Plaintiffs complain of USCIS’s “failure to give effect to the prior
determination by [the] DOL that . . . Nouritajer had the required qualifications,”
Plaintiffs Br. at 22; see also Joint App’x at 12. And in Count Five, Plaintiffs argue
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that USCIS should be estopped from revoking the I-140 because the revocation and
denial of reopening “constituted an impermissible re-adjudication of the petition
over three years after approval.” Joint App’x at 14. Both amount to claims that
USCIS should not have exercised its discretion for the reasons it cited. But simply
framing those questions reveals that they are essentially challenges to the
substance of a revocation decision that is committed to the agency’s unreviewable
discretion. 1
III. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s order and
judgment dismissing Plaintiffs’ claims for lack of subject matter jurisdiction.
1 The district court also held that “[t]o the extent that plaintiffs claim legal errors or a
constitutional violation, their claim is not cognizable in this court,” because the statutory
exception to the jurisdiction-stripping provision preserves judicial review over such claims only
through a very limited procedure – namely, “a petition for review filed with an appropriate court
of appeals.” Joint App’x at 70. The district court relied upon 8 U.S.C. § 1252(a)(2)(D) (“Nothing
in [§ 1252(a)(2)(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 . . . .”), as well as our decision in Shabaj v. Holder, 718 F.3d 48, 51 (2d Cir. 2013) (“Thus,
while this court would have jurisdiction to review any constitutional claims or questions of law
properly raised in a petition for review, the district court did not have jurisdiction to review
[plaintiff's] challenge [under § 1252(a)(2)(D)].”). In the present case, of course, we are not
presented with a “petition for review” over a final order of removal, and so the statutory
exception set forth in § 1252(a)(2)(D) does not apply.
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