Abiodun Sodipo v. Ron Rosenberg , 679 F. App'x 633 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABIODUN M. SODIPO, No. 15-15464
Plaintiff-Appellant, D.C. No. 3:13-cv-04856-JD
v.
MEMORANDUM*
RON ROSENBERG, Chief, Administrative
Appeals Office; UNITED STATES
CITIZENSHIP AND IMMIGRATION
SERVICES,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
James Donato, District Judge, Presiding
Submitted February 17, 2017**
San Francisco, California
Before: TASHIMA and HURWITZ, Circuit Judges, and ADELMAN,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lynn S. Adelman, United States District Judge for the Eastern
District of Wisconsin, sitting by designation.
Abiodun Sodipo applied for an employment-based visa, but did not satisfy the
statutory requirements of a job offer, see 8 U.S.C. § 1153(b)(2)(A), or a Department
of Labor certification of a labor shortage, see 8 U.S.C. § 1182(a)(5)(A)(i). The
United States Citizenship and Immigration Services declined Sodipo’s request to
waive these requirements “in the national interest,” 8 U.S.C. § 1153(b)(2)(B)(i); 8
C.F.R. § 204.5(k)(4)(ii), and denied his visa application. Sodipo then filed this
action under the Administrative Procedure Act challenging the denial of the national
interest waiver. The district court granted summary judgment to the government
defendants, and Sodipo timely appealed.
The Immigration and Nationality Act provides that “no court shall have
jurisdiction to review . . . any . . . decision . . . of the Attorney General . . . the
authority for which is specified under this subchapter to be in the discretion of the
Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(ii). The decision to deny a national
interest waiver is one such decision. See 8 U.S.C. § 1153(b)(2)(B)(i) (“[T]he
Attorney General may, when the Attorney General deems it to be in the national
interest, waive the requirements . . . .”); Schneider v. Chertoff, 450 F.3d 944, 948
(9th Cir. 2006) (describing national interest waiver as “purely discretionary”). Thus,
the district court lacked jurisdiction to review the denial of the waiver.
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We therefore vacate the judgment below and remand for entry of an order
dismissing Sodipo’s action for lack of jurisdiction. Each party is to bear its own
costs.
VACATED AND REMANDED WITH DIRECTIONS.
3