UNITED STATES DISTRICT COURT F I L E D
FOR THE DISTRICT OF COLUMBIA

MAR 20 2019

ABHISHEK FAMANLAL RAVAL, efal.» ) c‘f,'$'§f"¢;?ih‘l‘%‘i";¥§.§§?%t'.t?.§§¥a

Plaintiffs, §

v. § Civil Case No. 17-2358 (RJL)

UNITED STATES CITIZENSHIP AND §
IMMIGRATION SERVICES, et al., )

Defendants. §

MEMORANDUM OPINION

 

(March Q, 2019) [D_kt. # 10]

In 2001, KPS Investment Company (“KPS”), a business owned by Pete Patel
(“Patel”), sought authorization for Abhishek Ramanlal Raval (“Raval”) to work for KPS
in the United States. KPS filed a labor certification with the United States Department of
Labor and an l-l40 visa petition with the United States Citizenship and lmmigration
Service (“USCIS”), listing Raval as the beneficiary of both. The requested work
authorization was initially granted. But in 2004, USCIS invalidated KPS’s labor
certification and revoked its l-l4() petition due in part to a finding that Raval had willfully
misrepresented his work experience on KPS’s applications The decision left Raval
ineligible for permanent residency in the United States, which he had been seeking at the
time his work authorization was revoked.

KPS, Patel, and Raval (collectively, “plaintiffs”) filed this lawsuit against nine

governmental entities and officials1 to challenge USCIS’s decision, alleging that it was
arbitrary, capricious, and unlawful. The Government responded with a motion to dismiss
plaintiffs’ complaint for lack of subject matter jurisdiction, and the motion is now pending
before me. Upon consideration of the pleadings and the relevant law, the Government’s
motion must be GRANTED.
BACKGROUND

Raval is an alien seeking legal authorization to work and permanently reside in the
United States through a three-step process administered by the Department of Labor and
USCIS. The process begins when a United States employer

names an available alien worker for an open and advertised position and asks

the Secretary of Labor to certify that (l) the employer attempted to recruit

U.S. workers in good faith; (2) no U.S. worker is qualified, able, willing, or

available for such employment; and (3) employing the alien worker will not
adversely affect U.S. wages or working conditions

IQ Sys., Inc. v. Mayorkas, 667 F. Supp. 2d 105, 107 (D.D.C. 2009) (citing 8 U.S.C.
§ 1182(a)(5) and 20 C.F.R. § 656.10(a) & (c)). Ifthe Department ofLabor issues a “labor
certification” in response, the employer “may file with USCIS a Form l-l40 Immigrant

Worker Visa Petition” that attaches the certification Ia’. (citing 8 U.S.C. § 1153(b)(3)(C)

 

l The defendants named in the complaint are the United States of America; William P. Barr, U.S. Attorney
General; Kirstjen M. Nielsen, Secretary, U.S. Department of Homeland Security; U.S. Citizenship and
lmmigration Services; L. Francis Cissna, Director, U.S. Citizenship and Immigration Services; U.S.
Citizenship and lmmigration Services’ Texas Service Center; Gregory A. Richardson, Director, U.S.
Citizenship and lmmigration Services’ Texas Service Center; U.S. Citizenship and lmmigration Services’
Administrative Appeals Office; and Barbara Q. Velarde, Chief`, U.S. Citizenship and lmmigration Services’
Administrative Appeals Office (collectively, “the Government” or “defendants”). All individual
defendants are being sued in their official capacities, and several individual defendants have been
substituted for predecessors named in the complaint pursuant to Federal Rule ofCivil Procedure 25(d).

2

and 8 C.F.R. § 204.5(1)(3)(i)). “Upon approval of [t`he] l~l40 Petition,” the alien receives
authorization to work for the employer-applicant and may proceed to the final step in the
process, a “petition for adjustment of his status to that of permanent resident, through Form
l-485.” Ia’. at 107 & n.2 (citing 8 U.S.C. § 1255 and 8 C.F.R. § 204.5(n)).

Raval’s application process began on April 27, 2001, when KPS applied for a labor
certification on his behalf. See Compl. il 14 [Dkt. # l]. The Department of Labor issued
the requested certification, and on April 28, 2003, USCIS’s predecessor agency approved
KPS’s associated I-l40 petition, authorizing Raval to work for KPS in the United States.
See id.

The work authorization lasted about eighteen months. On October 5, 2004, USCIS
noticed its intent to revoke KPS’s l-l40, explaining that the agency had obtained evidence
that Raval falsified his work history on the labor certification See Compl. 11 l4. Raval
timely responded to the notice, but unconvinced by his submission, USCIS revoked the I-
l40 petition on October 27, 2004, based in part on a finding of fraud against him. See id.
M 15, 22. USCIS then determined that the fraud finding rendered the labor certification
invalid. See id. il 22. And because the l-l40 revocation left Raval without work
authorization, his pending I-485 application, through which Raval was seeking permanent
residency, was denied a few days later. See id. 11 l6.

Raval continued pressing his case before USCIS but never persuaded the agency to
reverse its fraud finding. See id. W l7-29. On January 5, 20l7, USCIS’s Administrative

Appeals Office upheld the decision to revoke KPS’s I-l40 petition. See id. 1111 27-29. The

Appeals Office affirmed both USCIS’s finding that Raval had “willfully misrepresented
his qualifying experience” on the labor certification and USCIS’s two additional bases for
revoking the 1-140_Raval did not “possess[] . . . the experience required for the offered
position,” and KPS did not have the “ability to pay the proffered wage.” Compl. Ex. 2 at
10 [Dkt. # 1-4].

On November 8, 2017, plaintiffs filed this lawsuit to challenge the administrative
actions revoking KPS’s I-140 petition, invalidating the associated labor certification, and
denying Raval’s 1-485 application.

STANDARD OF REVIEW

“Under Rule 12(b)(1), ‘the plaintiff bears the burden of establishing the factual
predicates of jurisdiction by a preponderance of the evidence.”’ Hunter v. FERC, 569 F.
Supp. 2d 12, 15 (D.D.C. 2008) (quoting Ll`na’sey v. United States, 448 F.Supp.2d 37, 42
(D.D.C.2006)). “[T]he Court ‘must accept as true all well-pleaded factual allegations and
draw all reasonable inferences in favor of the plaintiffs.”’ L0gan v. Dep’t of Vez‘emns
Ajj“airs, 357 F. Supp. 2d 149, 153 (D.D.C. 2004) (quoting Fz'tts v. FederalNat’l Mortgage
Ass ’n, 44 F.Supp.2d 317, 321 (D.D.C.l999)). But ajurisdictional “inquiry focuses on the
Court’s power to hear the claim,” so “the Court may give the plaintiff‘s factual allegations
closer scrutiny and may consider materials outside the pleadings.” Id. “lf the court
determines at any time that it lacks subject-matter jurisdiction, [it] must dismiss the action.”

Fed. R. Civ. P. iz(h)(z).

ANALYSIS

The Government is correct that this Court lacks jurisdiction to review USCIS’s
decision to revoke KPS’S I-140 petition Two provisions of the lmmigration and
Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., operate together to preclude judicial
review. First, 8 U.S.C. § l252(a)(2)(B)(ii) provides, with one inapplicable exception, that
“no court shall have jurisdiction to review . .. any. .. decision or action of . .. the
Secretary of Homeland Security the authority for which is specified under this subchapter
to be in the discretion of. . . the Secretary of Homeland Security.” Second, 8 U.S.C.
§ 1155, USCIS’s statutory basis for revoking KPS’s 1-140 petition, see Compl. Ex. 2 at 2,
grants exactly the sort of discretionary authority that Section l252(a)(2)(B)(ii) places
outside the ambit of courts’ jurisdiction Section 1155 provides, “The Secretary of
Homeland Security may, at any time, for what he deems to be good and sufficient cause,
revoke the approval of" an l-140 petition 8 U.S.C. § 1155.

The text of Section 1155 makes clear that it is a grant of discretionary authority.
Congress used the permissive “may,” establishing that the Secretary’s revocation authority
is to be exercised at her election lt used the expansive “at any time,” removing any
temporal limits on exercises of the authority. And Congress modified the good and

sufficient cause requirement in the statute to apply to anything the Secretary “deems” good

 

2 The Secretary of Homeland Security has delegated the authority to revoke l-140 petitions to USCIS. See
6 U.S.C. § 27l(b)(l); 8 C.F.R. § 205.2(a); see also De Souza v. Napolitano, 62 F. Supp. 3d 175, 176 (D.
l\/Iass. 2014) (“The Secretary of Homeland Security . . . has delegated to USCIS the authority to accept,
reject and/or adjudicate immigrant visa petitions. . . . [R]evocation authority has also been delegated to
USCIS.”).

and sufficient, making the Secretary arbiter of what substantively justifies an 1-140
revocation These “three language choices” all “indicate[] that the decision to revoke the
approval of a visa petition is discretionary.” Ber_nam’o ex rel. M & K Eng’g, Inc. v.
Johnson, 814 F.3d 481, 485 (1st Cir. 2016) (“At least three language choices in § 1155
dictate this conclusion: ‘may,’ ‘at any time,’ and ‘for what he deems to be good and
sufficient cause.”’).

To date, eight federal courts of appeals agree that 8 U.S.C. §§ 1155 and
1252(a)(2)(B)(ii) preclude judicial review of I-140 revocations. See Bernardo, 814 F.3d
at 483-91; Rajasekaran v. Hazuda, 815 F.3d 1095, 1098-99 (8th Cir. 2016); Khall`l v.
Hazua’a, 833 F.3d 463, 467 (5th Cir. 2016); Mehanna v. USCIS, 677 F.3d 312, 313, 315
(6th Cir. 2012); Green v. Napolitano, 627 F.3d 1341, 1343, 1346 (10th Cir. 2010);
Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009); Sands v. U.S. Dep’t of
Homeland Security, 308 Fed. App’x. 418, 419-20 (11th Cir. 2009) (per curiam); thmem
v. Upchurch, 481 F.3d 222, 223-25 (5th Cir. 2007); Jl`lz`n Pharm. USA, Inc. v. Chertojj', 447
F.3d 196, 200-05 (3d Cir. 2006); El-Khader v. Monz`ca, 366 F.3d 562, 567-68 (7th Cir.
2004). In addition, two district courts in this Circuit have arrived at the same conclusion
by analyzing the same statutory text. See Mohammad v. Napolitano, 680 F. Supp. 2d l, 6-
7 (D.D.C. 2009) (Sullivan, J.); Systrom`cs Corp. v. INS, 153 F. Supp. 2d 7, 10-12 (D.D.C.
2001) (Lamberth, J.). While our Circuit Court has not addressed this question directly, the
straightforward reading of Sections 1155 and l252(a)(2)(B)(ii) applied in these numerous

authorities accords with our Circuit’s interpretation of other, similarly worded provisions

of the INA. See Zhu v. Gonzales, 411 F.3d 292, 295 (D.C. Cir. 2005) (pointing to
Congress’s use of“may” and “deem” in 8 U.S.C. § 1153(b)(2)(B)(i) when determining that
Congress committed a decision to the Attorney General’s discretion).

Against this weight of authority, plaintiffs argue that 1 should follow the Ninth
Circuit, the one court of appeals that has adopted a competing interpretation of Section
1155. That court held over a thoroughly convincing dissent by Judge Tallman “that the
‘ good and sufficient cause’ language contained in § 1155 . . . constitutes a legal standard
the meaning of which [courts] retain jurisdiction to clarify.” ANA lnt’l, lnc. v. Way, 393
F.3d 886, 893 (9th Cir. 2004). But focusing narrowly on the words “good and sufficient
cause” is, to say the least, not a persuasive reading of the statute. See Mohammad, 680 F.
Supp. 2d at 6 (“[T]he Court finds the dissenting opinion in ANA International much more
persuasive . . . .”). Those words do not appear in isolation The phrase at issue is “what
[the Secretary] deems to be good and sufficient cause.” 8 U.S.C. § 1 155. And as numerous
other circuits have recognized, “when read in [that] context and as a whole, the statute
makes clear that Congress delegates to the Secretary the decision to determine what
constitutes good and sufficient cause.” Ghanem, 481 F.3d at 224; see also Bemam’o, 814
F.3d at 486; Jz`lz`n Pharm., 447 F.3d at 203.

By delegating the authority to make that substantive determination, Congress
committed to the Secretary’s discretion decisions about when and why 1-140 petitions
should be revoked. Under Section 1252(a)(2)(B)(ii), such decisions are not subject to

judicial review, so plaintiffs’ challenge to the revocation of KPS’s 1-140 petition must be

dismissed for lack of jurisdiction

Undaunted, plaintiffs also challenge the denial of Raval’s 1-485 application and the
invalidation of KPS’s labor certification But with no possibility of obtaining an approved
1-140 petition, plaintiffs lack standing to bring these claims. After all, standing requires a
showing that it is “1ikely, as opposed to merely speculative, that the injury [alleged in the
complaint] will be redressed by a favorable decision.” Lujan v. Defs. of Wz`ldlz`fe, 504 U.S.
555, 561 (1992) (quotation marks omitted). And plaintiffs’ alleged injuries cannot be cured
so long as KPS’s 1-140 petition remains revoked. How so?

To redress injuries caused by USCIS’s decision to deny Raval’s 1-485 application,
plaintiffs must show that a favorable judgment in this case allows Raval to pursue an 1-485
application that has, at least, some chance of being granted. But my dismissal of plaintiffs’
1-140 claims rules this out. An “approved 1-140 Petition” is “requz`rea’ for the processing
ofa[n]1-485 Application.” George v. Napolz`tano, 693 F. Supp. 2d 125, 131 (D.D.C. 2010)
(emphasis added). Since Raval cannot obtain the prerequisite 1-140 approval, he cannot
obtain relief that permits the possibility of a successful 1-485 application See Vemurz` v.
Nap0litan0, 845 F. Supp. 2d 125, 134 (D.D.C. 2012) (“Any injury Plaintiffmight attribute
to the denial of his [1-485] application[] could only be redressed by an order requiring
Defendants to re-open and ultimately approve Real Technologies’ 1-140 petition.”).
Plaintiffs, therefore, lack standing to challenge the denial of that application

Similarly, a reinstated labor certification offers no relief to plaintiffs when the

associated 1-140 petition is foreclosed “A labor certification involving a specificjob offer

is valid only for the particular job opportunity” identified and only for “the alien for whom
certification was granted.” 20 C.F.R. § 656.30(0)(2) (2004);3 see also Compl. Ex. 2 at 9.
Even if approved, the certification on its own does not authorize the beneficiary to work
for the employer who sought it_work authorization requires an 1-140 petition, too. See
George, 693 F. Supp. 2d at 128 (“An alien cannot work in the United States without the
appropriate authority from USCIS to do so. . . . Upon approval of an 1-140 Petz'tz`on, the
named alien receives a visa which allows him to work for the named employer.” (emphasis
added)). Because a labor certification is the first step in a multi-step process for securing
a specific individual’s work authorization, injuries caused by a certification’s invalidation
are not remedied when the beneficiary’s work authorization remains out of reach. Rather,
invalidated or denied labor certifications can be redressed through a lawsuit when the “offer
of employment” at issue “remains open” ana’ “[US]CIS could grant [the associated 1-140]
petition.” Patel v. USC[S, 732 F.3d 633, 638 (6th Cir. 2013). Plaintiffs fail at the second
step. KPS’s 1-140 has been revoked, and the revocation cannot be reversed or vacated

through this suit.4 A reinstated labor certification would, therefore, leave the parties as

 

3 KPS’s labor certification was filed before l\/larch 28, 2005, so it is governed by the Department of Labor
regulations that were in force in 2004. See lmplementation of New Labor Certification System, 69 Fed.
Reg. 77,325, 77,326 (Dec. 27, 2004); see also Compl. Ex. 2 at 9 n.10.

4 There is no suggestion in the pleadings that USCIS’s revocation ofthe 1-140 petition was without prejudice
to KPS and Raval renewing their applications The Eighth Circuit permitted a challenge to the invalidation
of a labor certification where the invalidation “triggered the automatic revocation of the [petitioner’s]
previously[] approved I-140” and the I-l40 “revocation was without prejudice to [the petitioner] filing . . .
a new . . . petition.” Sugule v. Frazier, 639 F.3d 406, 410 (8th Cir. 2011). ln those circumstances_where
the non-prejudicial denial meant USCIS still “could grant [a refiled l-l40] petition,” Patel, 732 F.3d at
63 8_a court order reinstating the labor certification would allow the petitioner to continue his pursuit of
the work visa at issue. But plaintiffs allege different circumstances here, and their allegations make clear
that a reinstated labor certification will not make them eligible for a renewed visa petition. According to

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they now stand: KPS would remain unauthorized to employ Raval and unable to secure an
approved 1-140 petition Just like with the 1-485 application, plaintiffs’ inability to obtain
relief on their 1-140 claims prevents them from obtaining relief that redresses the
invalidation of KPS’s labor certification

Accordingly, plaintiffs’ complaint must be dismissed in its entirety. Congress has
stripped courts of jurisdiction to hear plaintiffs’ challenge to the revocation of KPS’s I- 140
petition, and plaintiffs consequently lack standing t_o challenge the invalidation of KPS’s
labor certification and the denial of Raval’s 1-485 application

CONCLUSION

For the foregoing reasons, the Government’s motion to dismiss is GRANTED. An

Order consistent with this decision accompanies this Memorandum Opinion.

 

RICHARIQ .l. j,L"ON
United States District Judge

 

plaintiffs’ complaint, USCIS determined that Raval Willfully misstated his work experience and, based on
the resulting fraud finding, revoked both KPS’s 1-140 petition and labor certification See Compl. 1111 22-
25. According to the exhibits attached to the complaint, USCIS also provided two independent reasons for
revoking KPS’s 1-140_fraud aside, Raval did not meet the experience requirements listed on KPS’s labor
ceitification, and KPS did not establish its ability to pay the wage identified on the certification See Compl.
Ex. l at 12 [Dkt. # 1-3]; see also Compl. 11 25 (describing USCIS’s two additional bases for revoking KPS’s
I-140 petition and labor certification). So, here, USCIS provided three discrete bases for revoking KPS’s
1-140 petition, and none were the automatic result of the labor certification invalidation Resolving
plaintiffs’ claims about the labor certification in their favor would not mean “[US]CIS could grant [KPS’s
associated 1-140] petition.” Patel, 732 F.3d at 638.

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