Bombay Mahal Restaurant, Inc. v. Holder
Bombay Mahal Restaurant, Inc. v. Holder
Opinion of the Court
ORDER ON PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiffs appeal from a decision of the Administrative Appeals Office (“AAO”) of the United States Citizenship and Immigration Services (“USCIS”) revoking a previously issued visa petition. The US-CIS asserts that the Court lacks subject matter jurisdiction over this challenge. More specifically, the USCIS points the Court to 8 U.S.C. § 1252(a)(2)(B), which provides:
(B) Denials of discretionary relief Notwithstanding any other provision of law (statutory or nonstatutory), ... and except as provided in subparagraph (D), ... no court shall have jurisdiction to review—
(ii) any other 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 relief under section 1158(a) of this title.
8 U.S.C. § 1252(a)(2)(B).
The question before the Court is not a matter of first impression, generally, though the First Circuit has not spoken on the issue. Seven of the eight circuits which have addressed the specific question before the Court determined that the statute commits this visa revocation decision to the discretion of the Secretary, and, accordingly, found subject matter jurisdiction for judicial review wanting. See, e.g., Mehanna v. U.S. Citizenship & Immigration Servs., 677 F.3d 312 (6th Cir. 2012); Green v. Napolitano, 627 F.3d 1341 (10th Cir. 2010); Abdelwahab v. Frazier, 578 F.3d 817 (8th Cir. 2009); Sands v. U.S. Dep’t of Homeland Sec., 308 Fed.Appx. 418 (11th Cir. 2009); Ghanem v. Upchurch, 481 F.3d 222 (5th Cir. 2007); Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir. 2006); El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004). Only the Ninth Circuit, in 2004, rejected the foregoing view, over a dissent, finding instead that the
For the following reasons, I find the statute commits the question to the Secretary’s discretion. First, the language “may, at any time,” commits the decision whether and when to act to the discretion of the Secretary. Second, the language “good and sufficient cause,” cannot be read without considering the language which precedes this phrase — “for what he deems to be good and sufficient cause.” By defining good and sufficient cause” in terms of the Secretary’s judgment, Congress committed the revocation standard to the Secretary’s discretion. Third, the persuasive weight of the circuit and district court decisions supports the conclusion that the Secretary’s decisioii is discretionary.
Accordingly, the Defendants’ Cross-Motion for Summary Judgment (Docket # 36) is ALLOWED, the Plaintiffs’ Motion for Summary Judgment (Docket # 34) is DENIED, and this case is DISMISSED for lack of subject matter jurisdiction.
SO ORDERED.
. Subsection D states:
(D) Judicial review of certain legal claims Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as pre-eluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.
8 U.S.C. § 1252(a)(2)(D).
. El-Khader, supra, was decided before ANA Int’l, Inc., supra, and Sands, supra, simply did not mention ANA.
. Although Judge Young "conclude[d] that the arguments that section 1155 commits the revocation decision to the discretion of the agency are more persuasive[,]” he nonetheless proceeded to reach the merits based on "both an inter-circuit and intra-circuit split.” Patel, 2 F.Supp.3d at 119.
Reference
- Full Case Name
- BOMBAY MAHAL RESTAURANT, INC. v. Eric, HOLDER, Jr.
- Status
- Published