                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0204n.06

                                          No. 17-1939

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

JENNIFER LEIGH SERRANO,                      )                                  FILED
                                             )                             Apr 18, 2018
        Plaintiff-Appellant,                 )                        DEBORAH S. HUNT, Clerk
                                             )
v.                                           )
                                                               ON APPEAL FROM THE
                                             )
                                                               UNITED STATES DISTRICT
ELAINE C. DUKE, United States Department of )
                                                               COURT FOR THE WESTERN
Homeland Security; JAMES MCCAMENT, United )
                                                               DISTRICT OF MICHIGAN
States Citizenship and Immigration Services, )
                                             )
        Defendants-Appellees.                )




       Before: SILER, ROGERS, and LARSEN, Circuit Judges.

       LARSEN, Circuit Judge. Plaintiff Jennifer Serrano sought an immigrant visa on behalf

of her husband, a Mexican citizen. Her petition was initially granted, but was later revoked

when United States Citizenship and Immigration Services (USCIS) determined that her husband

was ineligible for an immigrant visa because he had entered into a previous marriage for the sole

purpose of obtaining an immigration benefit. Ms. Serrano challenged the revocation in district

court, but the court concluded that it lacked jurisdiction and dismissed the case. We AFFIRM.

                                               I.

       In 1995, less than one month after illegally entering the United States, Jose Eutiquio

Serrano Gonzalez (“Mr. Serrano”), a Mexican citizen, married Maria Isabel Rodriguez de

Serrano (“Ms. Rodriguez”), a United States citizen. Based on this marriage, USCIS granted Mr.

Serrano conditional lawful permanent resident status. But the marriage did not last; the two
No. 17-1939, Serrano v. Duke


divorced in 1999. Roughly four months after their divorce, Ms. Rodriguez told a USCIS officer

that she had married Mr. Serrano only “to help him get his green card. No money was involved.

We never lived together as Husband & Wife.”

       Facing removal from the country, Mr. Serrano asked permission to leave voluntarily. He

conceded his removability as an alien who had married for the purpose of obtaining admission as

an immigrant, and agreed to leave the United States by June 18, 2001. An immigration judge

granted his request. Mr. Serrano did not leave, however, and instead married Jennifer Leigh

Serrano (“Serrano”), a United States citizen. About ten years later, United States Immigration

and Customs Enforcement removed Mr. Serrano to Mexico, where he remains today.

       In 2012, Serrano filed an I-130 visa petition on Mr. Serrano’s behalf, seeking immigrant

classification as the spouse of a United States citizen.      USCIS approved the petition and

forwarded it to the National Visa Center for processing. But in 2014, USCIS issued a Notice of

Intent to Revoke the petition, informing Serrano that Mr. Serrano was ineligible for immediate

relative classification because he had been “involved in a prior marriage entered into for the sole

purpose of obtaining an immigration benefit.” USCIS allowed Serrano thirty days to provide

rebuttal evidence. Serrano submitted several documents in response, including joint income tax

returns, a copy of a Complaint for Divorce, a copy of a Judgment of Divorce, and an affidavit by

Mr. Serrano describing his version of the marriage and the circumstances that led to the divorce.

Nonetheless, on March 10, 2015, USCIS revoked its approval of the petition, stating that the

petition would not have been approved had USCIS known that Mr. Serrano entered into the prior

marriage for the sole purpose of obtaining immigration benefits. Serrano appealed USCIS’s

decision to the Board of Immigration Appeals, which affirmed.




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No. 17-1939, Serrano v. Duke


       Serrano, on behalf of her husband, brought this action against defendants the Secretary of

the United States Department of Homeland Security and the Director of USCIS, asking the

district court to order USCIS to re-adjudicate and approve the I-130 petition. Defendants filed a

motion to dismiss, arguing that the court lacked subject-matter jurisdiction over the complaint.

The court granted defendants’ motion, concluding that revocation of an approved visa petition

was wholly within defendants’ discretion, and that 8 U.S.C. § 1252(a)(2)(B)(ii) stripped the court

of jurisdiction to review such a discretionary matter. Serrano timely appealed to this Court.

                                                 II.

       Whether the district court had jurisdiction to review USCIS’s revocation of the petition

depends on whether that decision was discretionary.1 8 U.S.C. § 1252(a)(2)(B)(ii) states:

       [R]egardless of whether the judgment, decision, or action is made in removal
       proceedings, no court shall have jurisdiction to review . . . any other decision or
       action of the Attorney General or the 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 . . . .

Here, USCIS revoked Serrano’s petition pursuant to 8 U.S.C. § 1155, which provides that “[t]he

Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient

cause, revoke the approval of any petition approved by him under [8 U.S.C. § 1154].”2 It is

undisputed that Serrano’s petition was approved under § 1154.

       Mehanna v. United States Citizenship & Immigration Services, 677 F.3d 312 (6th Cir.

2012), held that revocation of a previously approved petition pursuant to § 1155 is discretionary,

and that § 1252(a)(2)(B)(ii), therefore, strips a court’s jurisdiction to review that decision. Id. at

1
  We review de novo a district court’s dismissal of a complaint for lack of subject-matter
jurisdiction. See Shweika v. Dep’t of Homeland Sec., 723 F.3d 710, 714 (6th Cir. 2013).
2
 The Department of Homeland Security has delegated its authority to adjudicate visa petitions to
USCIS. See 6 U.S.C. § 271(b)(1).


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No. 17-1939, Serrano v. Duke


315. Serrano does not argue that Mehanna was wrongly decided. Nor does she dispute that

Mehanna binds us. See 6 Cir. R. 32.1(b) (“Published panel opinions are binding on later

panels.”). In fact, at argument, Serrano’s counsel conceded that under Mehanna, USCIS’s

decision to revoke the previously approved petition under § 1155 was discretionary and not

reviewable by the district court.3

       Serrano says that the district court had jurisdiction nonetheless because she filed a second

petition on her husband’s behalf. Shortly before the court granted defendants’ motion to dismiss

in this case, USCIS denied the second petition for the same reason that it revoked the first.

Serrano submitted a copy of the denial order as a supplemental exhibit to her response to

defendants’ motion to dismiss. Serrano says that the district court had jurisdiction to review the

denial of her second I-130 petition and should have done so in the interest of judicial economy.

       Although Serrano brought the second petition to the court’s attention, her complaint did

not include a claim based on that petition. Only her complaint, and the allegations therein, were

appropriately the focus of the district court when addressing defendants’ motion to dismiss for

lack of subject-matter jurisdiction. See Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491

F.3d 320, 330 (6th Cir. 2007) (“A facial attack on the subject-matter jurisdiction alleged in the

complaint questions merely the sufficiency of the pleading.” (citation omitted)). Serrano never

moved to amend her complaint to add a claim based on the second petition. The district court




3
  The jurisdictional bar includes Serrano’s constitutional claims, which stem from USCIS’s
discretionary decision to revoke the petition. See Privett v. Sec’y, Dep’t of Homeland Sec., 865
F.3d 375, 381 (6th Cir. 2017); see also 8 U.S.C. § 1252(a)(2)(D) (preserving review of
constitutional claims brought, unlike this case, in the court of appeals on review of a removal
order).
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No. 17-1939, Serrano v. Duke


cannot be faulted for dismissing the case without addressing the second petition, as review of

that petition was not properly before it.4

                                              ***

       The district court properly dismissed this case because it lacked jurisdiction under

§ 1252(a)(2)(B)(ii) to review USCIS’s decision to revoke the previously approved petition filed

on behalf of Mr. Serrano. We, therefore, AFFIRM.




4
  Serrano now asks this Court to “direct the district court to grant Plaintiff-Appellant leave to
amend her Complaint and allow the case to proceed on its merits.” We decline the invitation to
order the district court to fulfill a request never made to it.
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