3.15.2007

Fifth Circuit Discusses Split Re: Power of Circuit Courts to Review Visa Revocations

Per Ghanem v. Upchurch, 2007 WL 666091 (5th Cir. Mar. 06, 2007):

As previously set forth, the sole issue on appeal is whether the decision to revoke a visa pursuant to 8 U.S.C. section 1155 involved the exercise of discretion, thus stripping this Court of jurisdiction to review the decision. See 8 U.S.C. § 1252(a)(2)(B)(ii). . . . Although this Court has not addressed this precise question, at least three other circuits have squarely addressed the issue and have split.The Seventh Circuit was the first to reach the issue and quickly concluded that “the discretionary nature of the decision is apparent from the plain language of the statute.” El-Khader v. Monica, 366 F.3d 562, 567 (7th Cir.2004). The Third Circuit agreed. In Jilin Pharmaceutical v. Chertoff, 447 F.3d 196 (3d Cir.2006), the Court relied on the following language of section 1155 to determine that the decision to revoke was discretionary. . . .
On the other hand, the Ninth Circuit, over a dissent, concluded that it had jurisdiction because the “authority ... to revoke petitions is bounded by objective criteria.” ANA Int'l v. Way, 393 F.3d 886, 894 (9th Cir.2004). The Ninth Circuit held that the “good and sufficient cause” language of section 1155 “constituted a legal standard the meaning of which we retain jurisdiction to clarify.” Id. at 893.FN1 The Court also indicated that to the extent there was any ambiguity in a jurisdiction-stripping statute, it is to be resolved in favor of jurisdiction. Id. at 894.

Additionally, the Second Circuit has stated that “although the substance of the decision that there should be a revocation is committed to the discretion of the Attorney General, section 1155 [also] establishes mandatory notice requirements that must be met in order for the revocation to be effective.” Firstland Int'l v. INS, 377 F.3d 127, 131 (2d Cir.2004). Ultimately, the Second Circuit ruled that it had jurisdiction to review whether the mandatory notice requirement had been met. However, that is not in conflict with the reasoning of the Third and Seventh Circuit. . . .

We follow the lead of the Third and Seventh Circuits. The statutory language indicates that the decision is left to the discretion of the Secretary.

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