NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0204n.06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.
-2- 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).
-3- 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.
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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.
-2- 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).
-3- 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). -4- 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. -5-