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81 NO. 35 Interpreter Releases 1213

Interpreter Releases
Report and analysis of immigration and nationality law

Copyright © 2004, West Group

September 13, 2004


Resolving an issue of first impression, the U.S. Court of Appeals for the Second Circuit vacated a decision by the U.S. District Court for the Eastern District of New York dismissing the plaintiff's appeal on jurisdictional grounds, and held that a decision by the Attorney General to revoke an approved visa petition without prior notice to the beneficiary who had already been admitted to the U.S. is ineffective under the terms of 8 USCA § 1155. Firstland International, Inc. v. INS, 377 F.3d 127 (2d Cir. 2004).
Firstland International (Firstland) is a wholly owned subsidiary of the Shanghai Yangzhang Shiguang Lighter Company, headquartered in China. Shao Zeng Chai, the beneficiary in this case, is the president of Firstland. Firstland filed an immigrant petition on behalf of Mr. Chai, which was approved in March 2000. Mr. Chai had been admitted to the U.S. in 1997 pursuant to an L-1A visa (as an intracompany managerial or executive transferee). Mr. Chai filed for adjustment of status in April 2000, following approval of the immigrant petition, but that application remained unadjudicated in October 2000 when the INS [FN1] informed Firstland of its intention to revoke its approval of the visa petition. According to the Second Circuit , the INS based its proposed revocation on evidence in the record that "'[did] not clearly demonstrate that [Chai] ha[d] been and [would] be employed in a primarily managerial or executive capacity."' (Quoting INS; alteration in original.)
*1214 In response to the INS's notice of its intention to revoke the approved petition, Firstland submitted additional documentation, but the INS remained unconvinced and issued the revocation on January 21, 2001. In addition, Mr. Chai's adjustment of status application was denied on April 12, 2001. Firstland appealed the INS's decision to the Administrative Appeals Office, which denied its appeal in June 2002.
In July 2002, Firstland and Mr. Chai filed suit in district court challenging the INS's revocation of the visa petition. In a decision issued on May 16, 2003, Judge Allyne R. Ross dismissed the case, holding that 8 USCA § 1252(a)(2)(B)(ii), which precludes judicial review of certain decisions that are "in the discretion of the Attorney General," precluded judicial review of the decision of the INS [FN2] to revoke a previously approved immigrant visa petition, thereby divesting the district court of subject matter jurisdiction over the case.
The court of appeals said the question on appeal was whether § 1252(a)(2)(B)(ii) precluded the district court from reviewing the INS's decision, and conducted its review of the district court's decision de novo. The court of appeals reasoned that the INS purported to revoke its approval of the immigrant petition under authority granted by 8 USCA § 1155, but that section did not authorize the INS's decision to revoke the visa petition after Mr. Chai had entered the U.S. Hence, the court concluded that the INS's decision was not "in the discretion of the Attorney General," and therefore, § 1252(A)(2)(b)(ii) did not divest the district court of jurisdiction to review the plaintiffs' claims. The Second Circuit noted that no court of appeals has addressed the argument raised by the plaintiffs--that § 1155, by its terms, does not permit revocation of a previously approved visa petition where the beneficiary is already inside the U.S.
Turning to its analysis of § 1252(a)(2)(B)(ii), the court of appeals found that the statute limits the judicial review of certain discretionary decisions of the Attorney General. The court of appeals noted that § 1155, found within the same subchapter of the U.S. Code as § 1252(a)(2)(B)(ii), provides that "the Attorney General may revoke his approval of a visa petition, but only under certain circumstances." [FN3] The Second Circuit continued, "[i]n order for revocation to be effective, the beneficiary of the petition must receive notice of the revocation, before beginning his journey to the United States, from the Secretary of State." The court of appeals pointed out that the third sentence of § 1155 "unequivocally limits" the Attorney General's authority to revoke an approved visa petition. Thus, the court of appeals reasoned, although the substance of the decision that there should be a revocation is committed to the discretion of the Attorney General, § 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."
The court of appeals found that under the plain language of § 1155, a decision by the INS shall not "have effect" unless certain conditions are met: (1) the alien receives notice of the revocation from the Secretary of State and (2) before commencing the journey to the U.S. In this case, the court of appeals noted, it is undisputed that Mr. Chai did not receive notice of the revocation from the Secretary of State or any other party before he left for the U.S. because he was already in the U.S. when the approved petition was revoked. Therefore, the Second Circuit stated, under the terms of § 1155, the revocation of his petition was not effective.
The court of appeals dismissed the INS's argument that the notice requirement in the third sentence of § 1155 does not apply to aliens like Mr. Chai, who already have been admitted to the U.S. at the time of revocation. In support of its argument, the INS relied on Matter of Vilos, 12 I&N Dec. 61 (BIA 1967), [FN4] wherein the Board of Immigration Appeals (BIA) interpreted the predecessor of § 1155 and explained:
If [the statute] were to be interpreted as counsel [for the alien] urges, it would make petitions filed on behalf of persons already in the United States virtually irrevocable, even when the relationship or status required for the preference no longer existed. We cannot believe[ ] that it was the intention of Congress to create a class of beneficiaries so privileged. [Quoting id. at 64; alteration in original.]
*1215 The court of appeals pointed out that the BIA's opinion in Matter of Vilos did not undertake an analysis of the statutory language, and stated that it would defer to the Board's interpretation under the principles of Evangelista v. Ashcroft, 359 F.3d 145 (2d Cir. 2004), unless it found that interpretation to be "arbitrary, capricious, or manifestly contrary to the statute." Id. at 150 (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)). Likewise, if the court of appeals determined that § 1155 is ambiguous, it would defer to the BIA's interpretation under the statutory interpretation principles of Chevron. By contrast, the Second Circuit said, if the congressional intent is clear, Chevron directs that it is "the end of the matter." Chevron, 467 U.S. at 842. The court of appeals also pointed out that no court of appeals has addressed the issue before it, and the only district court to do so deferred to the BIA's interpretation in Matter of Vilos, "upon finding that the text of Section 1155 was 'ambiguous on its face."' (Quoting ANA Int'l, Inc. v. Way, 242 F. Supp. 2d 906, 916 (D. Or. 2002).)
The Second Circuit concluded that there was no ambiguity in § 1155's notice requirement. The court of appeals reasoned that although the first sentence of § 1155 clearly states that the Attorney General may revoke an approved petition, "the third sentence just as clearly restricts that grant of authority." The court of appeals further reasoned that the plain statutory language does not exempt beneficiaries who are already in the U.S. from the notice requirement.
The court of appeals concluded that in this case, the INS did not comply with the notice requirements of § 1155, and therefore, the revocation of the visa petition on behalf of Mr. Chai was not authorized. Further, because the INS had no statutory basis for its revocation decision, the court of appeals found that the decision was not "specified...to be in the discretion of the Attorney General." (Quoting § 1252(a)(2)(B)(ii).) Hence, the court of appeals concluded, § 1252(a)(2)(B)(ii) did not divest the district court of jurisdiction to hear the plaintiff's challenge to the revocation and the district court erred in so ruling. [FN5]
Circuit Judge José A. Cabranes wrote the decision for the three-judge panel, which included Judges Amalya L. Kearse and Robert A. Katzmann.
Alan Lee, of New York, New York, represented the plaintiffs. F. Franklin Amanat, Varuni Nelson, Steven J. Kim, Assistant U.S. Attorneys, Dione M. Enea, Special Assistant U.S. Attorney (of counsel), and Roslynn R. Mauskopf, U.S. Attorney for the Eastern District of New York (on the brief), represented the government.
Ronald Y. Wada, of San Francisco, California, filed an amicus curiae brief on behalf of the American Immigration Lawyers Association, and Colleen L. Caden, of New York, New York, filed amici curiae briefs on behalf of the American Council on International Personnel and the Chamber of Commerce of the United States of America.

[FN1]. On March 1, 2003, the INS's administrative, service, and enforcement functions were transferred to the newly created the Department of Homeland Security (DHS). The reorganization was required by the Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135, codified primarily at 6 USCA § 101 et seq. See 80 Interpreter Releases 305 (Mar. 3, 2003) (reporting on and reproducing final rule facilitating the transfer); 68 Fed. Reg. 9824-46 (Feb. 28, 2003) (implementing transfer). Throughout this article, to be consistent with the court of appeals's written opinion, "the INS" will be used to refer to the defendant.

[FN2]. The parties did not dispute that the INS was exercising powers delegated by the Attorney General.

[FN3]. Section 1252(a)(2)(B)(ii) provides in full:
The 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. Such revocation shall be effective as of the date of approval of any such petition. In no case, however, shall such revocation have effect unless there is mailed to the petitioner's last known address a notice of the revocation and unless notice of the revocation is communicated through the Secretary of State to the beneficiary of the petition before such beneficiary commences his journey to the United States. If notice of revocation is not so given, and the beneficiary applies for admission to the United States, his admissibility shall be determined in the manner provided for by sections 1225 and 1229a of this title.

[FN4]. Discussed in 44 Interpreter Releases 105 (May 1, 1967).

[FN5]. In a footnote, the court of appeals noted that § 1155 contemplates that the INS may seek to remove or exclude aliens whose visa petitions have been "irrevocably approved." The court pointed out that the statute provides that individual admissibility shall be determined in the manner provided for by 8 USCA §§ 1225 and 1229, when notice of revocation has not been given to the beneficiary prior to the commencement of his or her journey to the U.S. The court further pointed out that if its interpretation of § 1155 places a significant administrative burden on the INS, the agency could petition Congress to amend the statute.
Copr. (C) 2004 West. No Claim to Orig. U.S. Govt. Works.

This article appeared in Interpreter Releases, Vol. 81, No. 35 (Sept. 13, 2004) and is reprinted by permission of West, a Thomson Business. Interpreter Release is the leading weekly immigration law periodical featuring in-depth, comprehensive analysis and authoritative coverage of legislation and regulations, cases, and agency guidance. To subscribe call 1-800-344-5009 on go online at West.Thomson.com. Interpreter Releases is also available on Westlaw, West's online legal research service which provides quick, easy access to West's vast collection of statutes, case law materials, public records, and other legal resources, along with current news articles and business information. For more information, go to www.Westlaw.com (database ID: INTERREL).

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