                         REVISED May 8, 2008

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                            United States Court of Appeals
                                                                     Fifth Circuit

                                                                 FILED
                                                             February 8, 2008
                                 No. 06-20866
                                                           Charles R. Fulbruge III
                                                                   Clerk
JOHN AYANBADEJO; FELICIA AYANBADEJO

                                           Plaintiffs - Appellants
v.

MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY ET AL.

                                           Defendants - Appellees



                Appeal from the United States District Court
                     for the Southern District of Texas


Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:
      Plaintiffs-Appellants John Ayanbadejo and Felicia Malveaux Ayanbadejo
filed this action against Defendants-Appellees Michael Chertoff, in his official
capacity as Secretary of the Department of Homeland Security (“DHS”), and
District Director Sharon A. Hudson of the United States Citizenship and
Immigration Services (“USCIS”), which is part of DHS, and that agency, seeking
declaratory, injunctive, and mandamus relief from adverse immigration
decisions by these officials. As the district court incorrectly concluded that it
lacked subject matter jurisdiction to review the denial of Felicia’s I-130 visa
                                        No. 06-20866

petition, we reverse the decision of the district court granting the government’s
motion to dismiss and remand for a new trial.
                              I. Facts and Proceedings
       John, a citizen of Nigeria, met Felicia, a United States citizen residing in
Beaumont, Texas, during a visit to the United States on a tourist visa in
December 1996. The couple married on February 10, 1997. Less than a month
after their marriage, Felicia filed a Form I-130 “Petition for Alien Relative” to
have John classified as an “immediate relative.”1 John subsequently filed a
Form I-485 “Application to Register Permanent Residence or Adjust Status” to
become a lawful permanent resident.2
       On December 5, 2000, after an investigation by the USCIS raised doubts
about the validity of the Ayanbadejos’ marriage, the USCIS issued a notice of
intent to deny Felicia’s I-130 petition and John’s I-485 application.3 On April 17,
2001, Felicia filed a second I-130 petition seeking an immediate relative visa for
John, and John filed a second I-485 application requesting adjustment of his
status. On June 26, 2002, the USCIS issued a notice of intent to deny Felicia’s
second I-130 petition on the same ground as its previous notice of intent to deny
— that the Ayanbadejos’ union was not bona fide but was a sham marriage,
entered into solely for immigration purposes. Felicia filed a response to USCIS’s
notice with additional documentation. Unpersuaded, on October 9, 2002, the

       1
        See 8 U.S.C. § 1154(a)(1)(A)(i) (providing that “any citizen of the United States
claiming that an alien is entitled to . . . an immediate relative status . . . may file a petition
with the Attorney General for such classification”); 8 U.S.C. § 1151(b)(2)(A)(i) (defining
“immediate relative” to include citizen’s spouse).
       2
         See 8 U.S.C. § 1255(a) (providing that Attorney General may, “in his discretion,”
adjust alien’s status to legal permanent resident).
       3
        In its notice, USCIS stated that Felicia acknowledged that she lived in Beaumont,
Texas while John lived in New York and New Jersey, and that she had not visited John. John
provided evidence that he had flown to Houston, Texas, where some of his relatives live, but
provided no evidence that he had visited Felicia. The couple also failed to provide sufficient
documentation that they shared financial accounts.

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                                          No. 06-20866

USCIS issued a notice of denial of the Felicia’s I-130 petition and John’s I-485
application.
      When the USCIS denied the Ayanbadejos’ I-130 petition and I-485
application based on its finding that their marriage was entered into for the
purposes of circumventing immigration laws, the Ayanbadejos filed an appeal
with the Board of Immigration Appeals (“BIA”) of the United States Department
of Justice. On June 16, 2005, the BIA affirmed the USCIS’s decision without a
written order. John subsequently filed a petition for review of the BIA’s decision
with us, which we dismissed for lack of jurisdiction.
      The Ayanbadejos then filed a complaint in district court. The government
filed a motion to dismiss for lack of subject matter jurisdiction,4 arguing that the
REAL ID Act of 2005, codified at 8 U.S.C. § 1252(a)(2)(B), eliminated the district
court’s right to review the Ayanbadejos’ I-130 petition and I-485 application.
      The Ayanbadejos filed a motion to amend their complaint, in which they
alleged that: (1) their constitutional rights had been violated when they were
denied a full and fair hearing before the USCIS and BIA; (2) their rights under
the Freedom of Information Act (“FOIA”) had been violated when they
requested, but did not receive, their immigration records within 30 days of filing
a request, as required by FOIA; and (3) their rights under the International
Covenant on Civil and Political Rights (“ICCPR”) were violated by the errors and
omissions of the USCIS and BIA.
      The district court held that: (1) the immigration decisions involving the
Ayanbadejos did not violate their constitutional rights because the correct
standards were employed in determining that the couple failed to provide
sufficient evidence that their marriage was bona fide; (2) the USCIS’s denials of
Felicia’s I-130 petition and John’s I-485 application were within its discretion



      4
          See FED. R. CIV. P. 12(b)(1).

                                               3
                                        No. 06-20866

and therefore not subject to judicial review; (3) the Ayanbadejos’ FOIA claim was
moot because the records they requested had been produced; and (4) their claim
under the ICCPR did not present a cognizable cause of action. For these
reasons, the court denied the Ayanbadejos’ motion to amend their complaint to
present their FOIA and ICCPR claims, and granted the government’s motion to
dismiss for lack of subject matter jurisdiction. The Ayanbadejos filed a motion
for new trial, which the district court denied. The Ayanbadejos then timely filed
a notice of appeal.
                                II. Standard of Review
      We review de novo the district court’s grant of a motion to dismiss under
Rule 12(b)(1).5 We review the district court’s decision to grant or deny a motion
to amend for abuse of discretion.6
                                        III. Analysis
      The Ayanbadejos raise three issues on appeal: (1) whether the district
court erred in granting the government’s motion to dismiss for lack of subject
matter jurisdiction because § 1252(a)(2)(B) precluded its review of the
Ayanbadejos’ I-130 petition and I-485 application; (2) whether the court erred in
denying the Ayanbadejos’ motion to amend their complaint to include their FOIA
and ICCPR claims; and (3) whether the court erred in denying the Ayanbadejos’
motion for a new trial. Issues Two and Three are without merit, but our
analysis of Issue One, which presents a matter of first impression, leads us to
conclude that the district court did, in fact, have subject matter jurisdiction to
review Felicia’s I-130 petition, requiring us to reverse the district court’s ruling
and remand to the district court for a new trial.
A. Subject Matter Jurisdiction

      5
        Premiere Network Servs., Inc. v. SBC Commc’ns, Inc., 440 F.3d 683, 687 (5th Cir.
2006); Crockett v. R.J. Reynolds Tobacco, 436 F.3d 529 (5th Cir. 2006).
      6
          Briddle v. Scott, 63 F.3d 364, 379 (5th Cir. 1995).

                                                4
                                           No. 06-20866

       The Ayanbadejos contend that the district court incorrectly concluded that
§ 1252(a)(2)(B) divested it of the jurisdiction to hear their claims. We agree with
the Ayanbadejos, at least in part. Our decision in Zhao v. Gonzales,7 which
provides a clear and consistent roadmap for interpreting §1252(a)(2)(B), is
directly applicable to the instant case, and leads us to conclude that, although
the district court did not have jurisdiction to review the determinations made
with respect to John’s I-485 application, the court did have jurisdiction to review
the determinations made with respect to Felicia’s I-130 petition.
       First, the district court correctly held that, under § 1252(a)(2)(B), it did not
have jurisdiction to review the decisions to deny John’s I-485 application because
these determinations were “in the discretion of” immigration officials acting
under authority of the Attorney General. Section 1252(a)(2)(B)(ii) provides that
“no court shall have jurisdiction to review . . . any other decision or action of the
Attorney General or Secretary of Homeland Security the authority for which is
specified under this subchapter to be in the discretion of the Attorney General or
the Secretary of Homeland Security . . . .”8                In Zhao, we interpreted this
language to mean that courts are precluded from reviewing those decisions
“specified in the statute” to be discretionary.9 Section 1252(a)(2)(B)(i) explicitly
places “any judgment regarding the granting of relief under . . . section 1255,”
which provides the statutory authority for I-485 applications, in this category of
discretionary decisions that no courts have jurisdiction to review. The law
makes clear that we and the district court lack jurisdiction over determinations



       7
           404 F.3d 295 (5th Cir. 2005).
       8
           8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added).
       9
         Zhao, 404 F.3d at 303 ( “One might mistakenly read § 1252(a)(2)(B)(ii) as stripping
us of the authority to review any discretionary immigration decision. That reading, however,
is incorrect, because § 1252(a)(2)(B)(ii) strips us only of jurisdiction to review discretionary
authority that is specified in the statute.”).

                                                5
                                         No. 06-20866

made with respect to an I-485 application for permanent resident status under
§ 1255.10 The district court thus correctly held that it lacked jurisdiction to
review the denial of John’s I-485 application.11
       Felicia’s I-130 petition is a different story. Even though all judgments
regarding relief under § 1255, including reviews of I-485 applications, are
specifically categorized as discretionary and non-reviewable by § 1252(a)(2)(B)(i),
I-130 petitions are authorized by § 1154 (a)(1)(A)(i), not § 1255, and are not
mentioned in § 1252(a)(2)(B)(i). We have not explicitly determined whether
district courts have jurisdiction to review the denial of I-130 petitions, but in
Zhao we reasoned that Congress included the phrase “specified under this
subchapter” in §1252(a)(2)(B)(ii) for the purpose of precisely identifying which
discretionary decisions are beyond judicial review.12 Zhao emphasizes that this
language was meant to delineate definitively which types of decisions are
discretionary, and thus non-reviewable, by a court.13 The language of other
federal regulations addressing I-130 petitions might lead one to infer that I-130




       10
          Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006) (“[W]e join a number of our
sister circuits in holding that we lack jurisdiction over petitions for review concerning the
discretionary denial of relief under 8 U.S.C. § 1255.”).
       11
           Under § 1252(a)(2)(D), “constitutional claims or questions of law” related to any claim
for relief under § 1252(a)(2)(B) are exempted from the category of non-reviewable decisions left
to the discretion of the Attorney General. Although the Ayanbadejos argue that the USCIS’s
basis for refusing to adjust John’s status was a legal conclusion that a non-viable marriage
precluded the change-in-status John requested, the USCIS’s predicate determination of
whether the Ayanbadejos had a bona fide marriage was a question of fact, not law, and
therefore does not qualify for the § 1252(a)(2)(D) exception to the § 1252(a)(2)(B) jurisdiction
stripping provision.
       12
          Zhao, 404 F.3d at 303 (“The statutory language is uncharacteristically pellucid on
this score; it does not allude generally to ‘discretionary authority’ or to ‘discretionary authority
exercised under this statute,’ but specifically to ‘authority for which is specified under this
subchapter to be in the discretion of the Attorney General.’”).
       13
            Id.

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                                         No. 06-20866

determinations are discretionary, and thus non-reviewable,14 but, following
Zhoa, we decline to abdicate our jurisdiction based on any such extra-statutory
authority.15 Categorizing I-130 petition determinations as discretionary based
on authority found in an implementing regulation would contradict the plain
statutory language of §1252(a)(2)(B)(ii), which specifies that courts are only
stripped of authority to review decisions designated as discretionary by the
statute.     Section 1252(a)(2)(B)(i) simply does not include I-130 petition
determinations in the discretionary category that expressly includes
determinations of I-485 applications. Following our clear precedent in Zhao, our
inquiry need not go any further. Determinations regarding the validity of
marriage for I-130 petition purposes are not discretionary within the meaning
of §1252(a)(2)(B), and thus are subject to review by courts.16 The district court
incorrectly concluded that it did not have subject matter jurisdiction to review
Felicia’s I-130 petition.


       14
          See 8 C.F.R. § 204.2(a)(1)(ii) (providing that to deny I-130 petition based on sham
marriage, there must be “substantial and probative evidence” of immigrant’s attempt or
conspiracy to enter into marriage to evade immigration laws — arguably, a discretionary
determination). Cf. 8 U.S.C. § 1154(b), which authorizes I-130 petitions (“After an
investigation of the facts in each case . . . the Attorney General shall, if he determines that the
facts stated in the petition are true and that the alien in behalf of whom the petition is made
is an immediate relative specified in section 1151(b) . . . approve the petition . . . .”) (emphasis
added); 8 U.S.C. § 1154(c) (“[N]o petition shall be approved if . . . the Attorney General has
determined that the alien has attempted or conspired to enter into a marriage for the purpose
of evading the immigration laws.”) (emphasis added). The use of the word “shall” in these
sections indicates that the approval or disapproval of the petition may not be discretionary.
       15
          Zhoa, 404 F.3d 303 (“In ruling on Zhao’s motion, however, the BIA exercised no such
statutorily delineated discretion; that discretion instead derived from regulations promulgated
by the Attorney General.”).
       16
           Cf. Yerkovich v. Ashcroft, 381 F.3d 990, 994 (10th Cir. 2004) (stating that “the
jurisdictional bar in § 1252(a)(2)(B)(ii) applies only to acts over which a statute gives the
Attorney General pure discretion unguided by legal standards or statutory guidelines”)
(internal quotations omitted); Onyinkwa v. Ashcroft, 376 F.3d 797, 799-800 (8th Cir. 2004);
Ginters v. Cangemi, 419 F. Supp.2d 1124, 1130 (district court determined that, pursuant to §
1252(a)(2)(B)(ii), it lacked jurisdiction to review denial of I-130 petition because determination
whether petitioner had entered into sham marriage was discretionary decision).

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                                           No. 06-20866

B. FOIA, ICCPR Claims
       The district court did not err in denying the Ayanbadejos’ motion to amend
their complaint to add their FOIA and ICCPR claims. “A party may amend its
pleading once as a matter of course” at any time before a responsive pleading is
served and, thereafter, only by leave of the court or written consent of the
adverse party.17 Courts are instructed to grant leave to amend freely “when
justice so requires.”18 Although the Ayanbadejos argue that the district court
erred in dismissing their FOIA claim as moot, the USCIS did produce the
Ayanbadejos’ immigration record to their counsel pursuant to their FOIA
request, making this claim moot. The district court did not abuse its discretion
in denying the Ayanbadejos’ motion to amend their complaint to add their FOIA
claim.19
       The Ayanbadejos also assert that the acts of the USCIS and BIA are
continuous violations of the ICCPR, but the Supreme Court has explicitly held
that this treaty does not create obligations enforceable in federal courts.20 The
district court did not abuse its discretion in denying the Ayanbadejos’ motion to
amend their complaint to add a claim under the ICCPR.21
C. New Trial Motion
       The Ayanbadejos contend that the district court erred in denying their
motion for a new trial.22 Specifically, they assert that, because the USCIS did


       17
            FED. R. CIV. P. 15(a).
       18
            Id.
       19
        See Avatar Exploration, Inc. v. Chevron, 933 F.2d 314, 321 (5th Cir. 1991) (district
court may properly deny motion to amend when amendment would be futile, would cause
undue delay, or is in bad faith).
       20
            Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004).
       21
            See Avatar, 933 F.2d at 321.
       22
            See FED. R. CIV. P. 59(e).

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                                  No. 06-20866

not transmit their brief containing new evidence to the BIA, their due process
rights were violated. The record does not support this claim. On April 18, 2005,
the DHS filed a motion with the BIA to dismiss the appeal because the
Ayanbadejos new brief was filed with the wrong administrative case number and
the DHS did not have a copy of the brief. This motion was served on the
Ayanbadejos’ counsel on the same day that it was filed, so the Ayanbadejos
should have known there was a problem with their brief at that time. They
could have resolved the problem prior to the BIA’s affirmance of the decision of
the USCIS on June 16, 2005. The record also reflects that the Ayanbadejos’
immigration records were made available to them on August 29, 2006, almost
a month before the district court granted the motion to dismiss on September 21,
2006. The Ayanbadejos therefore had access to their records prior to the district
court’s ruling and could have raised this claim prior to the court’s dismissal of
their complaint.
                               IV. Conclusion
      We hold that determinations pertaining to I-130 petitions are not
precluded from review by courts pursuant to § 1252(a)(2)(B)(ii). The district
court did not err in denying the Ayanbadejos’ motion to amend their complaint
to include their FOIA and ICCPR claims or in denying the Ayanbadejos’ motion
for a new trial. Although the district court correctly held that the denials of
John’s I-485 application by the USCIS and BIA were non-reviewable, the court’s
holding that it did not have subject mater jurisdiction to review Felicia’s I-130
petition conflicts with the plain meaning of §1252(a)(2)(B)(ii) and our decision
in Zhao. The judgment of the district court is therefore REVERSED to the
extent that it dismissed Felicia’s I-130 petition for lack of jurisdiction and this
case is REMANDED to the district court for further proceedings consistent with
this opinion.



                                        9
