El-Khader, Hani v. Monica, Donald J. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2178
HANI EL-KHADER,
Plaintiff-Appellant,
v.
DONALD MONICA, Interim District Director,
Bureau of Citizenship and Immigration Services,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 984—Amy J. St. Eve, Judge.
____________
ARGUED NOVEMBER 7, 2003—DECIDED APRIL 29, 2004
____________
Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
COFFEY, Circuit Judge. On November 1, 2002, the
Immigration and Naturalization Service (“INS”)1 issued
1
Effective March 1, 2003, the Immigration and Naturalization
Service ceased to exist. The Service’s functions relating to adju-
dication of immigrant visa petitions were transferred to the jur-
isdiction of the Director of the Bureau of Citizenship and Immi-
(continued...)
2 No. 03-2178
a decision revoking a previously approved visa petition,
which had been filed by Hani El-Khader’s employer on his
behalf, on the basis that El-Khader’s former marriage was
a “sham,” in violation of 8 U.S.C. § 1154(c).2 El-Khader
immediately filed a complaint in the district court seeking
review of the INS’s final decision, but the district court
dismissed the action by ruling that it lacked subject matter
jurisdiction over his claim under section 242(a)(2)(B)(ii) of
the Immigration and Nationality Act (“INA”), codified at 8
U.S.C. § 1252(a)(2)(B)(ii).3 El-Khader appeals, challenging
the district court’s ruling granting the INS’s motion to dis-
miss for lack of subject matter jurisdiction. We conclude,
consonant with our recent decision in Samirah v. O’Connell,
335 F.3d 545 (7th Cir. 2003), petition for reh’g en banc
(...continued)
gration Services (“BCIS”), a newly created division of the Depart-
ment of Homeland Security. Homeland Security Act, Pub. L. 107-
296, Title IV, Subtitle E, section 451; 116 Stat. 2135, 2195 (Nov.
25, 2002).
2
8 U.S.C. § 1154(c) provides:
[N]o petition shall be approved if (1) the alien has previously
been accorded, or has sought to be accorded, an immediate
relative or preference status as the spouse of a citizen of the
United States or the spouse of an alien lawfully admitted for
permanent residence, by reason of a marriage determined by
the Attorney General to have been entered into for the pur-
pose of evading the immigration laws, or (2) the Attorney
General has determined that the alien has attempted or con-
spired to enter into a marriage for the purpose of evading the
immigration laws.
3
Section 1252(a)(2)(B)(ii) provides, in its relevant portions:
Notwithstanding any other provision of law, no court shall
have jurisdiction to review . . . any . . . decision or action of
the Attorney General the authority for which is specified
under this subchapter to be in the discretion of the Attorney
General, other than the granting of [asylum].
No. 03-2178 3
denied, petition for cert. filed (U.S. Jan. 27, 2004) (No.
03-1085), that “[section] 1252(a)(2)(B)(ii) is not limited to
discretionary decisions made within the context of removal
proceedings.” Id. at 549. We also hold that the revocation of
a previously approved visa petition under 8 U.S.C. § 1155is a discretionary decision, precluded from judicial review
pursuant to § 1252(a)(2)(B)(ii). We affirm.
I. BACKGROUND
Hani El-Khader, an alien with Jordanian citizenship,
legally entered the United States on December 27, 1988, on
a non-immigrant student visa. In anticipation of his student
visa’s expiration upon the completion of his formal educa-
tion in the United States, El-Khader filed a petition in 1991
requesting political asylum in the United States, which was
denied, and in 1995 the INS proceeded to institute deporta-
tion proceedings.4 While these proceedings were pending,
El-Khader filed for and was granted a non-immigrant
worker visa, and he worked for the employer-sponsor of his
visa, Amcore Financial, until December 1997.
On May 9, 1997, El-Khader married Nadia Muna, a
United States citizen. According to El-Khader, irrecon-
cilable personal conflicts between the couple led to their
divorce on October 27, 1998. During the couple’s brief
marriage, El-Khader filed an application for adjustment of
his immigration status to that of lawful permanent resident
concurrent with his then-wife’s filing of a Petition for Alien
Relative. At the time the couple’s husband and wife rela-
tionship was terminated by divorce, the INS denied El-
Khader’s adjustment status application as well as his
former wife’s pending visa petition.
4
El-Khader had received work permits allowing him to remain
in the United States while his asylum application was pending.
4 No. 03-2178
On April 1, 1998, Ameritrust Mortgage Corporation, El-
Khader’s prospective employer, filed an Immigrant Petition
for Alien Worker classification on El-Khader’s behalf and
sought permanent resident status for him pursuant to the
INA.5 On August 18, 1998, the INS approved Ameritrust’s
petition on behalf of El-Khader. Shortly thereafter, on
September 17, 1998, El-Khader filed a new application for
permanent resident status, which was premised on the
INS’s recent acceptance of Ameritrust’s approved visa
petition for El-Khader’s alien worker classification.
In order to process this application, the INS commenced
an investigation of El-Khader to assess whether he was
qualified for a permanent resident visa. When undertaking
this investigation, the agency looked into El-Khader’s
marriage with Nadia Muna and discovered some prob-
lems—namely, that he never cohabited with his former
wife, and, thus, they never consummated their marriage,
and, further, that they possessed no joint, marital assets.
Relying on this information, the INS concluded that El-
Khader’s marriage to Muna was a sham, undertaken for the
purpose of evading immigration laws. See 8 U.S.C.
§ 1154(c). Accordingly, on December 5, 2001, the INS
informed Ameritrust of its intent to revoke the approved
Immigrant Petition for Alien Worker, stating that,
“[a]ccording to the Service’s investigation, the marriage
between Mr. El-Khader and Ms. Muna was a sham and was
entered into for the purpose of procuring an immigration
benefit.” (R.1.) On May 14, 2002, Ameritrust and El-Khader
responded to the INS’s notice of its intent to revoke his visa
petition, arguing that his marriage was legitimate. El-
Khader maintained that, as an arranged marriage under
5
Section 203(b)(3)(A)(i) of the Immigration and Nationality
Act mandates the availability of a number of visas for aliens
who qualify as “skilled” and “professional” workers. 8 U.S.C.
§§ 1153(b)(3)(A)(i), (ii).
No. 03-2178 5
the Islamic faith, it was perfectly proper for the consumma-
tion of his marriage to be delayed and for him not to live
immediately with his wife. Furthermore, he argued that the
marriage was genuine and that his wife was not pressured
into filing the immigration petition on his behalf. He offered
affidavits from himself, his former wife’s parents, his
friends, and experts on the Islamic religion testifying to this
effect, although no affidavit was presented from his former
wife.
On November 1, 2002, the INS issued a decision formally
revoking El-Khader’s previously approved worker’s visa
because, based on its review of all the evidence submitted,
it found that the plaintiff failed to establish a bona fide
commitment to his wife during the entire course of their
marriage. In particular, the INS noted that “[e]ven though
the marriage was an arranged marriage, Mr. El-Khader
failed to establish any commitment to his marital union
other than filing for adjustment of status.” (R.16.) That
same day, the INS also denied his accompanying adjust-
ment of status application on the basis that, once his work-
er’s visa petition was revoked, there existed no basis upon
which to adjust his status. The INS’s authority to revoke
the plaintiff’s approved visa petition resides in 8 U.S.C.
§ 1155, which states that “[t]he Attorney General 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” (emphasis added), including
visa petitions provided for under 8 U.S.C. § 1154(b).
El-Khader was prepared for this adverse decision. On the
same day that the INS revoked Ameritrust’s visa petition
and denied El-Khader’s adjustment of status petition, he
filed a Third Amended Complaint in the district court6 and,
6
El-Khader had filed three earlier complaints that are not rel-
evant to this appeal on February 8, 2002 (his original Complaint),
(continued...)
6 No. 03-2178
thus, decided to forego any administrative appeal of the
INS’s decision. His complaint sought reversal of the INS’s
revocation of his approved visa petition. He claimed that
the decision was not based on substantial evidence, was
arbitrary and capricious, and was otherwise not in accor-
dance with the law. In response, the INS filed a motion to
dismiss the complaint based upon, among other reasons, (1)
the fact that, pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), the
district court lacked jurisdiction to review the Attorney
General’s decision to revoke an approved visa petition, and
(2) the plaintiff’s failure to exhaust administrative remedies
prior to seeking judicial review.
On April 1, 2003, the district court granted the INS
motion to dismiss after determining that § 1252(a)(2)(B)(ii)
deprived it of subject matter jurisdiction over El-Khader’s
claim. The court based this ruling on its conclusions that
this provision is not limited to the context of removal and
deportation proceedings and that the INS’s decision to re-
voke a visa petition is a discretionary decision. On April 30,
2003, the plaintiff filed a notice of appeal, seeking review of
the INS’s decision under the Administrative Procedure Act,
5 U.S.C. § 706.
II. ANALYSIS
El-Khader challenges the district court’s dismissal,
arguing that 8 U.S.C. § 1252(a)(2)(B)(ii) applies only in the
context of removal and deportation determinations and,
in the alternative, that the decision to revoke a previously
approved visa petition is not a discretionary decision when
the basis for that decision is a finding that a marriage fraud
(...continued)
June 7, 2002 (the First Amended Complaint), and September 30,
2002 (the Second Amended Complaint).
No. 03-2178 7
has occurred. In addition, he asserts that jurisdiction was
proper in the district court because he exhausted all of his
mandatory administrative remedies prior to seeking judicial
review. We have appellate jurisdiction under 28 U.S.C.
§ 1291 and review de novo the district court’s dismissal for
want of subject matter jurisdiction. Fedorca v. Perryman,
197 F.3d 236, 239 (7th Cir. 1999); see also Samirah v.
O’Connell, 335 F.3d 545, 548 (7th Cir. 2003); Iddir v. INS,
301 F.3d 492, 496 (7th Cir. 2002).
Initially, we turn to the issue of whether the district court
properly granted the INS’s motion to dismiss El-Khader’s
complaint on the basis that the court was without subject
matter jurisdiction over the claim. The district court based
its decision on its interpretation of 8 U.S.C.
§ 1252(a)(2)(B)(ii), which provides:
Notwithstanding any other provision of law, no court
shall have jurisdiction to review . . . any . . . decision or
action of the Attorney General the authority for which
is specified under this subchapter to be in the discretion
of the Attorney General, other than the granting of
[asylum].
In El-Khader’s initial brief with the Court, he advanced
the argument that § 1252(a)(2)(B)(ii) applies only in the
context of removal and deportation determinations and does
not preclude judicial review of the INS’s decision to revoke
a visa petition. After the filing of El-Khader’s initial brief,
this Circuit decided Samirah v. O’Connell, 335 F.3d 545(7th Cir. 2003), which addressed this precise argument
raised by El-Khader regarding § 1252(a)(2)(B)(ii)’s scope. Id.
at 548.
Samirah involved an alien who filed a habeas corpus
petition seeking district court review of the INS’s decision
to revoke his advance parole pursuant to section 212(d)(5)
of the INA, 8 U.S.C. § 1182(d)(5). After the district court
ruled that the government must allow the alien to return to
8 No. 03-2178
the United States, this Court reversed on the grounds that
the district court lacked subject matter jurisdiction over the
petition under § 1252(a)(2)(B)(ii). We held that the scope of
Ҥ 1252(a)(2)(B)(ii) is not limited to discretionary decisions
made within the context of removal proceedings.” Samirah,
335 F.3d at 549 (internal quotation marks omitted).7
Rather, the plain language of § 1252(a)(2)(B)(ii) bars courts
from reviewing any discretionary decisions of the Attorney
General made under the authority of sections 1151 through
1378 of Title 8 of the United States Code, which collectively
constitute the subchapter that § 1252(a)(2)(B)(ii) references.
Id. at 548-49. Only discretionary decisions by the Attorney
General to grant asylum under § 1158(a) are expressly
excepted from the force and effect of § 1252(a)(2)(B)(ii).
Samirah also rejected El-Khader’s argument that the
heading of section 1252, entitled “Judicial review of orders
of removal,” limited the scope of section 1252 to discretion-
ary determinations made in the context of removal proceed-
ings. Id. at 548. While Samirah involved the Attorney
General’s discretion to revoke advance parole pursuant to
8 U.S.C. § 1182(d)(5)(A), we cannot conceive of a material
difference (nor has the appellant present us with one), with
respect to the issue of § 1252(a)(2)(B)(ii)’s scope, between
that provision and the Attorney General’s power to revoke
a visa petition under 8 U.S.C. § 1155. Just as
§ 1182(d)(5)(A) is “a provision that is ‘specified under’ the
‘subchapter’ mentioned in § 1252(a)(2)(B)(ii),” Samirah, 335
F.3d at 548, so too is § 1155.
7
In so holding, we agreed with the decisions of two other circuits
that have reached the same conclusion. Samirah, 335 F.3d at 549
(citing CDI Information Servs. Inc. v. Reno, 278 F.3d 616, 620 (6th
Cir. 2002); Van Dinh v. Reno, 197 F.3d 427, 434 (10th Cir. 1999);
El-Khader v. Perryman, 264 F. Supp. 2d 645 (N.D. Ill. 2003);
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 11 (D.D.C. 2001);
Avramenkov v. INS, 99 F. Supp. 2d 210, 214 (D. Conn. 2000)).
No. 03-2178 9
During oral argument, El-Khader’s counsel acknowledged
that Samirah constitutes binding precedent on the issue of
whether section 1252 applies beyond the context of removal
and deportation determinations. Nevertheless, counsel goes
on to contend that neither the Samirah decision nor any
other Court of Appeals decision has addressed whether the
effective date provision of 8 U.S.C. § 1252(a) limits the
applicability of the statute to removal and deportation
proceedings. This provision, set forth in § 306(c)(1) of the
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRAIRA”), states that “amendments made by
subsections (a) and (b) [which included § 1252(a)(2)(B)(ii)]
shall apply to all final orders of deportation or removal and
motions to reopen filed on or after the date of the enactment
of this Act.” Pub.L. 104-208 Div. C, Sept. 30, 1996, 110 Stat.
3009, 546. El-Khader posits that this language mandates
that the provisions in section 1252 are related only to
removal or deportation proceedings. We are not persuaded.
As counsel for El-Khader noted during oral argument, El-
Khader failed to raise any argument in the district court
that the effective date provision of the IIRAIRA affects
section 1252’s scope. Because of the failure to raise the
issue, the district judge was denied the benefit of having the
argument before it when making its decision. Thus, the
argument is deemed to be waived on appeal. See Schoenfeld
v. Apfel, 237 F.3d 788, 793 (7th Cir. 2001) (“issues that a
claimant fails to raise before the district court are waived
on appeal”). In any event, the language of § 306(c)(1),
contains no exclusionary language that specifically limits
the applicability of § 1252(a) only to deportation and
removal proceedings. Thus, the plaintiff’s effective-date
argument, even if not waived, is without merit.
This Court’s decision in Samirah controls the issue of the
scope of § 1252(a)(2)(B)(ii). Since we agree with Samirah’s
holding that the scope of § 1252(a)(2)(B)(ii) extends beyond
10 No. 03-2178
removal and deportation proceedings, we hold that judicial
review of the revocation of a visa petition under 8 U.S.C.
§ 1155 is precluded, so long as that decision is discretionary
in nature.
We next turn to the issue of whether the INS’s decision to
revoke a visa petition previously granted on behalf of El-
Khader is a discretionary decision. According to § 1155,
“[t]he Attorney General 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.” 8 U.S.C. § 1155 (emphasis added). The appellant has
failed to present us any case law from any Circuit, nor have
we located any, that has expressly ruled on whether a
decision under § 1155 is discretionary. Nevertheless, in our
opinion, the discretionary nature of the decision is apparent
from the plain language of the statute. Initially, we cannot
help but repeat the actual words employed by the statute,
which involve the permissive “may” and a temporal refer-
ence to “at any time.” This language plainly signifies a
discretionary decision. Furthermore, the determination of
whether there exists “good and sufficient cause” to revoke
a petition approved under § 1154 (including vias petitions)
necessarily is highly subjective, and there exist no strict
standards for making this determination. See Systronics
Corp. v. INS, 153 F. Supp. 2d 7, 11-12 (D.D.C. 2001); accord
ANA Int’l, Inc. v. Way, 242 F. Supp. 2d 906 (D. Or. 2002)
El-Khader argues only that the broad statutory language
of § 1155 is limited by INS precedent establishing that
revocation of a visa petition is only appropriate when the
petition should not have been approved in the first place,
which, he contends, is not a discretionary decision. See
Matter of Tawfik, 20 I. & N. Dec. 166 (BIA 1990); Matter of
Estime, 19 I. & N. Dec. 450 (BIA 1987). Moreover, he notes
that 8 U.S.C. § 1154(c) dictates that “no petition shall be
approved if” the petitioning alien has previously committed
a marriage fraud in an attempt to secure an immigration
benefit. El-Khader argues that the INS’s decision was not
No. 03-2178 11
discretionary because the INS revoked his visa petition
based on its finding that he committed a marriage fraud
by entering into a marriage for purposes of procuring an
immigration benefit. El-Khader contends that this finding
nullifies the INS’s discretion because the INS is prohibited
from issuing a visa petition to anyone who has committed
a marriage fraud for immigration purposes.
El-Khader’s argument is misguided. It is true that the
INS has regulations requiring that there must be “substan-
tial and probative” evidence of marriage fraud to deny a
petition on these grounds. See Ghaly v. INS, 48 F.3d 1426,
1436 (7th Cir. 1995) (Posner, C.J., concurring) (citing 8
C.F.R. § 204.2(a)(1)(ii)). Nevertheless, these regulations are
inapplicable in those instances where the INS, acting under
the authority of the Attorney General, chooses to exercise
its discretion in revoking a visa under § 1155 after a
petition for that visa has already been granted. Likewise,
the fact that the INS is required to deny petitions to those
who have committed marriage fraud for immigration
purposes in no way limits the discretionary status of the
Attorney General’s subsequent revocation under § 1155 of
a granted petition that, it turns out, should have never been
made in the first instance. No statutory or regulatory
mandate exists requiring the Attorney General to revoke
visas in instances where he finds that marriage fraud had
occurred. In fact, we know of no factual predicates for find-
ing “good and sufficient cause” in the context of decisions
made under § 1155.
For the foregoing reasons, we reject the plaintiff’s con-
tention that the INS’s decision to revoke a previously
granted visa petition is not a discretionary decision in those
circumstances where the revocation is based on the alleged
commission of a marriage fraud undertaken for immigration
purposes. Instead, we hold that the decision to revoke a
previously approved visa petition pursuant to 8 U.S.C.
§ 1155 is expressly left to the discretion of the Attorney
12 No. 03-2178
General.8 Therefore, 8 U.S.C. § 1252(a)(2)(B)(ii) precludes
judicial review of such decisions.
III. CONCLUSION
We agree with the district court’s ruling that it lacked
jurisdiction to review the Attorney General’s discretionary
decision to revoke the plaintiff’s approved visa petition.9
AFFIRMED
8
We note that our conclusion that the Attorney General’s revo-
cation decisions under § 1155 are discretionary is in agreement
with decisions from at least two district courts. See Systronics
Corp. v. INS, 153 F. Supp. 2d 7, 11 (D.D.C. 2001) (“The language
[of 8 U.S.C. § 1155] is clear and unambiguous; the Attorney
General has discretion to revoke a petition at any time. No per se
factual standards exist for the court to review.”); ANA Int’l, Inc.
v. Way, 242 F. Supp. 2d 906 (D. Or. 2002); cf. Ghaly v. INS, 48
F.3d 1426, 1430-31 (7th Cir. 1995) (noting that “[w]e review the
revocation of an alien visa petition . . . under an abuse of discre-
tion standard”); Joseph v. Landon, 679 F.2d 113, 116 (7th Cir.
1982) (same). El-Khader does not cite, nor have we located, any
authority to the contrary.
9
Because we conclude that § 1252(a)(2)(B)(ii) denies district
courts jurisdiction to review a decision made by the Attorney
General under the authority of § 1155, which, as we have held, is
a discretionary decision, we need not address the INS’s alter-
native argument that El-Khader’s failure to pursue and exhaust
remedies through an administrative appeal also precludes juris-
diction.
No. 03-2178 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-29-04