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Jilin Pharmaceutical USA, Inc. v. Chertoff

May 10, 2006

JILIN PHARMACEUTICAL USA, INC.; WEI ZHAO, (FILE #: A76 104 871) APPELLANTS
v.
MICHAEL CHERTOFF, SECRETARY OF THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY;*FN1 ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE;*FN2 EDUARDO AGUIRRE, JR., DIRECTOR OF THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, BUREAU OF DEPARTMENT OF HOMELAND SECURITY; UNITED STATES OF AMERICA



On Appeal from the United States District Court for the District of New Jersey (D.C. No. 04-cv-05678). District Judge: Honorable Faith S. Hochberg.

The opinion of the court was delivered by: Aldisert, Circuit Judge

PRECEDENTIAL

Argued April 3, 2006

Before: RENDELL, SMITH, and ALDISERT, Circuit Judges

OPINION

In Soltane v. United States Department of Justice, 381 F.3d 143 (3d Cir. 2004), we construed the statute governing the denial of a visa application, 8 U.S.C. § 1153(b)(4), and held that 8 U.S.C. § 1252(a)(2)(B)(ii) did not strip the district court of jurisdiction to review this administrative decision. This appeal by Jilin Pharmaceutical USA, Inc. ("Jilin USA") and Wei Zhao from an order of the District Court for the District of New Jersey dismissing their complaint for lack of subject matter jurisdiction does not involve a denial of a visa application, but rather a revocation of a visa already granted. This requires us to compare the language of the separate statutes dealing with visa denial and revocation, and, having done so, we conclude that a distinction exists between the two statutes in the quanta of discretion conferred upon the Secretary of Homeland Security. Accordingly, we will affirm the order of the District Court holding that we lack jurisdiction to review this discretionary determination. We will affirm also the Court's determination that it lacked jurisdiction to hear Appellants' Fifth Amendment due process claims.

I.

Appellant Wei Zhao is a native and citizen of the People's Republic of China. Appellant Jilin USA, which was incorporated in 1996 in the state of New Jersey, is a wholly owned United States subsidiary of Jilin Ltd. In 1996, Jilin Ltd. transferred Zhao, who was manager of the company's import and export division, from China to the United States to serve as president and chief executive officer of Jilin USA. On July 26, 1996, in accordance with this plan, Jilin USA filed an employment-based non-immigrant petition, Form I-129, on behalf of Zhao to classify him as an L-1A non-immigrant intracompany transferee. The supporting documentation asserted that Zhao was an executive employee of Jilin Ltd. and that he was transferring to Jilin USA in an executive and managerial capacity, as defined at 8 U.S.C. § 1101(a)(44)(A) & (B). The Immigration and Naturalization Service ("INS")*fn3 approved this request on October 29, 1996, granting Zhao L-1A status until October 28, 1997. On November 5, 1997, the INS approved a petition to extend Zhao's L-1A status until October 28, 1999.

Following approval of this second petition, on August 29, 1998, Jilin USA filed a Form I-140 Immigrant Petition for Alien Worker on behalf of Zhao and sought to classify Zhao under the E-1-3 visa category, which permits executive and managerial intracompany transferees to become permanent residents of the United States under 8 U.S.C. § 1153(b)(1)(C). On December 16, 1998, the INS approved the petition and granted the visa. Upon that approval of the Form I-140, on July 7, 1999, Zhao and his immediate family filed Form I-485 applications for adjustment of status from non-immigrant to that of lawful permanent resident.

On September 13, 2000, the INS notified Jilin USA and Zhao that it intended to revoke its prior approval of the Form I-140 visa petition. The INS was unconvinced that Zhao had been and would be employed in a primarily executive or managerial capacity. On April 5, 2001, the INS revoked Zhao's visa, noting that Jilin USA and Zhao had provided only a vague description of his job and had not established that he worked in an executive or managerial capacity.

Jilin USA appealed to the Office of Administrative Appeals ("OAA") and submitted a more detailed description of Zhao's duties. On January 30, 2003, holding that the "record contains insufficient evidence to demonstrate that [Zhao] has been employed in a primarily managerial or executive capacity," the OAA affirmed the visa revocation and dismissed the appeal. The OAA subsequently denied Jilin and Zhao's motion to reopen on August 24, 2004.*fn4

On November 15, 2004, Jilin USA and Zhao filed a complaint for mandatory and declaratory relief in the United States District Court for the District of New Jersey. The complaint "challenge[d] the legally incorrect and unjustifiable" revocation of the approval of Zhao's visa petition. Concerned about its jurisdiction, the District Court ordered the parties to file briefs detailing the statutory provision giving rise to federal court jurisdiction to review the administrative decision to revoke Zhao's visa. Both parties submitted timely responses.*fn5

Holding that it was "barred from asserting jurisdiction over visa revocations at the discretion of the Attorney General even when the visa holder is already in the United States," the District Court dismissed the complaint on February 25, 2005, for lack of subject matter jurisdiction. In making this determination, the District Court observed that this was a matter of first impression in this Circuit and accepted the analysis and conclusion of the Court of Appeals for the Seventh Circuit's opinion in El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004) (holding that § 1252(a)(2)(B)(ii) precludes judicial review of the revocation of a visa petition under § 1155).

Arguing that the Court had committed a clear error of law, that the controlling law had changed, and that a manifest injustice would result if the February 25 decision were not reversed, Jilin USA and Zhao filed a motion for reargument with the District Court on March 7, 2005. The primary focus in their motion was the Court of Appeals for the Ninth Circuit's opinion in ANA International, Inc. v. Way, 393 F.3d 886 (9th Cir. 2004), in which the court rejected the Seventh Circuit's logic and held that § 1252(a)(2)(B)(ii) does not deny jurisdiction to review a revocation decision made pursuant to § 1155. The District Court rejected the motion on May 11, 2005, concluding that El-Khader was more persuasive than the analysis of ANA International. This appeal followed.*fn6

II.

When analyzing our jurisdiction to review the administrative decision to revoke a visa, the starting point for our discussion is found in the text of 8 U.S.C. ยง 1252(a)(2)(B)(ii). Therein, Congress has ...


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