|
WEB VERSION
Print
Version
81 NO. 35 Interpreter Releases 1213
Interpreter Releases
Report and analysis of immigration and nationality law
Copyright © 2004, West Group
September 13, 2004
*1213 SECOND CIRCUIT ISSUES FIRST RULING ON VISA
REVOCATION FOR PERSONS IN THE U.S.
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.
END OF DOCUMENT
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).
If you have a Westlaw
account, you could go to the database directly by clicking here:
http://web2.westlaw.com/scope/default.wl?RS=WLW4.09&VR=2.0&FN=_top&SV=Split&MT=GeneralNews&UTid=%7bE41A0DA5-3D0B-41F9-B688-BE63880DF129%7d&RP=%2fscope%2fdefault.wl&DB=INTERREL
|
