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

(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.

2 _____________________________________

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

(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

3 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

4 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.

5 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”),

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,

, which governs revocation of approved immigration petitions, and

(a)(2)(B), which limits judicial review of certain discretionary

6 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.,

(2d Cir. 2014). Although we draw all inferences in favor of Plaintiffs, they must

7 prove by a preponderance of the evidence that subject matter jurisdiction exists.

See Makarova v. United States,

(2d Cir. 2000).

B. Subject Matter Jurisdiction

Under

(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

, “[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,

(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.,

(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

8 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,

, 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.,

; see also Mantena,

(“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

9 petition, which are set forth in

. 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,

(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

10 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.,

, 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

(a)(1)–(2)

11 (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

), 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,

(2d Cir. 2004) (holding

that the jurisdictional bar under

(a)(2)(C) applies to orders denying

12 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

13 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

(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,

(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. 14