United States Court of Appeals For the First Circuit

No. 24-1228

JANINE CAVALCANTI VIANA GUEDES; JOSE MAURICIO OLIVEIRA GUEDES, JR.,

Plaintiffs, Appellants,

v.

ALEJANDRO MAYORKAS, Secretary of U.S. Department of Homeland Security; UR M. JADDOU, Director of U.S. Citizenship and Immigration Services (USCIS); TERRI A. ROBINSON, Boston District Director of U.S. Citizenship and Immigration Services; EMILY ROSE F. COSTA, Director of USCIS Boston Field Office,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Rikelman, Selya, and Lynch, Circuit Judges.

Felipe Alexandre for appellants.

Aneesa Ahmed, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation -- District Court Section, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, William C. Peachey, Director, Office of Immigration Litigation, William C. Silvis, Assistant Director, Office of Immigration Litigation, and Cara E. Alsterberg, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for appellees. December 16, 2024 LYNCH, Circuit Judge. In this case, appellants attempt

to challenge the USCIS denial of their applications for adjustment

of status and alleged revocation of Viana Guedes' I-140 petition

and National Interest Waiver. The district court dismissed the

action for lack of subject-matter jurisdiction. Because 8 U.S.C

§ 1252(a)(2)(B) and Patel v. Garland,

(2022) preclude

judicial review of all these asserted claims, we affirm.

I.

On November 27, 2017, Janine Cavalcanti Galvao Viana

Guedes and her husband Jose Mauricio Oliveira Guedes Jr. and their

three children, of Brazil, entered the United States on B-2

nonimmigrant six-month visas. USCIS originally modified Viana

Guedes' visa status on her application to that of F-1 international

student, and her husband was granted derivative beneficiary

status.1 As a nonresident seeking permanent resident status, on

October 23, 2019, Viana Guedes filed an I-140 petition representing

that she was a "member[] of the professions holding advanced

degrees or their equivalent or . . . [her] exceptional ability in

the sciences, arts, or business[] will substantially benefit

prospectively the national economy, cultural or educational

interests, or welfare of the United States . . ." ("EB-2"). 8

1 Because Viana Guedes' husband is a derivative beneficiary of Viana Guedes, his claim turns on the adjudication of Viana Guedes' USCIS filings, which are the only filings we discuss.

- 3 - U.S.C. § 1153(b)(2)(A). Rather than provide evidence of a job

offer for her services in the United States, as is generally

required for an EB-2 classification, see

(b)(2)(A),

she sought an NIW, under which the Attorney General "may,

when . . . deem[ed] . . . to be in the national

interest . . . waive the requirement[] . . . that an alien's

services in the sciences, arts, professions, or business be sought

by an employer in the United States,"

(b)(2)(B)(i)

(emphasis added); see

(k)(4)(ii) (USCIS "may

exempt the requirement of a job offer, and thus of a labor

certification, for aliens of exceptional ability in the sciences,

arts, or business if exemption would be in the national interest."

(emphasis added)). On September 22, 2021, based on Viana Guedes'

representations but without the benefit of an interview, USCIS

approved both the I-140 petition and the NIW.

On the same day that she filed her I-140 petition, Viana

Guedes also filed an I-485 adjustment of status application. See

(a) (allowing, in the "discretion" of the Attorney

General, the adjustment of an alien's status to that of "an alien

lawfully admitted for permanent residence"). She appeared for an

interview at the USCIS Boston office on August 11, 2022.

Based on that interview and documents that Viana Guedes

submitted in connection with her application, USCIS found she had

made numerous misrepresentations to gain entry, adjust her status

- 4 - and obtain work classification, and gain an NIW. Among other

findings made by the agency, Viana Guedes had failed, inter alia,

to comply with her F-1 student visa, including that she never

attended classes at the school she said she attended and she had

not acquired English proficiency. As to her work classification,

she had not worked as a physiotherapist for years and had not since

moving to the United States even attempted to qualify or apply for

a physical therapy license. She had not demonstrated an intent to

work in the United States as a physical therapist. She had not

lawfully maintained her B-2 visitor status or her F-1 visa status

and did not qualify for an E-26.2 In its discretion, USCIS denied

her application for adjustment of status. In doing so, USCIS

stated that she "d[id] not qualify as an E-26" and "[was] not

eligible for, and d[id] not merit, a national interest waiver as

a matter of discretion."

On May 11, 2023, appellants filed a federal court

complaint challenging appellees' denial of their applications for

adjustment of status and "re-adjudicat[ion]" of Viana Guedes'

I-140 petition and NIW. On November 21, 2023, USCIS served Viana

Guedes and her husband with notices to appear for removal

proceedings. Appellees moved to dismiss on December 1, 2023,

2 E-26 is the lawful permanent resident category for EB-2 professionals with advanced degrees whose adjustment of status applications are granted. See U.S. DEPT. OF HOMELAND SEC., Immigrant Classes of Admission, https://perma.cc/63JN-Y36M.

- 5 - arguing that the court lacked subject-matter jurisdiction over all

of appellants' claims under

(a)(2)(B) and Patel v.

Garland,

(2022). The district court entered an order

dismissing the case for lack of subject-matter jurisdiction.

II.

We have appellate jurisdiction and review de novo the

order dismissing for lack of subject-matter jurisdiction.

Bernardo ex rel. M & K Eng'g, Inc. v. Johnson,

(1st Cir. 2016).

Appellants frame their argument as challenging the

district court's dismissal of two separate claims: (1) a claim

challenging USCIS' denial of their adjustment of status

applications and (2) a claim challenging USCIS' alleged revocation

of Viana Guedes' I-140 and underlying NIW.

The district court plainly lacked jurisdiction under

(a)(2)(B)(i) to hear appellants' claims challenging

USCIS' denial of their adjustment of status applications.

(a)(2)(B)(i) states: "regardless of whether the judgment,

decision, or action is made in removal proceedings, no court shall

have jurisdiction to review . . . any judgment regarding the

granting of relief under section . . . 1255 of this title."

(Emphasis added). Section 1255 of that title in turn states: "The

status of an alien who was inspected and admitted or paroled into

the United States . . . may be adjusted by the Attorney General,

- 6 - in his discretion."

(a).

Appellants argue that the title of section 1252,

"Judicial review of orders of removal," supersedes the subsequent

language in subsection (B), which applies "regardless of whether

the judgment, decision, or action is made in removal proceedings."

(Emphasis added). This argument fails. The more specific language

in subsection (B) trumps the general language in the title of

section 1252. See E. Mountain Platform Tennis, Inc. v. Sherwin-

Williams Co.,

, 499 (1st Cir. 1994) ("Because we find

no ambiguity in the plain language of the statute, we need not

consider the title of the Act in determining the correct

construction."). Were there any doubt, the Supreme Court in Patel

stated, albeit in dicta, that section 1252's jurisdictional bar

"expressly extend[s] . . . to judgments made outside of removal

proceedings." See Patel,

.3

The district court correctly dismissed claims

challenging USCIS' alleged revocation of Viana Guedes' I-140 and

NIW. We assume without deciding that appellants are correct that

3 Not surprisingly, the DHS has instituted removal proceedings against appellants. During these proceedings, appellants may seek adjustment of status before the immigration judge. See

(a)(1)(i) ("In the case of any alien who has been placed in . . . removal proceedings . . ., the immigration judge hearing the proceeding has exclusive jurisdiction to adjudicate any application for adjustment of status the alien may file.").

- 7 - Viana Guedes' I-140 petition and NIW were each revoked4 and hold

that both revocations are unreviewable under section

1252(a)(2)(B)(ii), which states that "no court shall have

jurisdiction to review . . . 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."

On its face, appellants' complaint alleges that Viana

Guedes was provided notice and an opportunity to respond to the

agency's concerns about her I-140 petition and NIW, which is

precisely what

requires. Accordingly, appellants

all but concede that the agency followed the proper procedure, and

so the question -- again, assuming appellants are correct that

these approvals were in fact revoked -- is simply whether those

revocations are reviewable. The Supreme Court recently held that

a USCIS decision to revoke an approved visa petition under

, which governs the revocation of an I-140 petition, is

unreviewable under section 1252(a)(2)(B)(ii). See Bouarfa v.

Mayorkas, __ S. Ct. __,

, at *8 (Dec. 10, 2024)

("Where § 1252(a)(2)(B)(ii) applies . . . it bars judicial review

4 Appellees argue that "[w]hile USCIS determined that [Viana Guedes] was ineligible for the I-140 and national-interest waiver, the agency did not revoke either." We need not reach this argument.

- 8 - of the Secretary’s revocation under § 1155."). We held the same

in an earlier case. See Bernardo ex rel. M & K Eng., Inc.,

. And, given that section 1153(b)(2)(B)(i) also vests

the Attorney General with broad discretion, an NIW revocation is

unreviewable under substantially the same reasoning. See Bouarfa,

, at *5-6; Bernardo ex rel. M & K Eng., Inc.,

; see also Zhu v. Gonzales,

(D.C.

Cir. 2005)("That the Attorney General has complete discretion with

respect to the labor certification requirement is established by

the terms of the waiver provision [under section

1153(b)(2)(B)(i)]."); Poursina v. USCIS,

, 872 (9th

Cir. 2019); Brasil v. Sec'y, Dep't of Homeland Sec.,

(11th Cir. 2022); Flores v. Garland,

(5th

Cir. 2023); Mousavi v. USCIS,

, 133 (3d Cir.

2020).

The judgment of the district court is affirmed.

- 9 -