Mehanna v. US CITIZENSHIP AND IMMIGRATION SERVS.

677 F.3d 312
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 19, 2012
Docket11-1110
StatusPublished
Cited by16 cases

This text of 677 F.3d 312 (Mehanna v. US CITIZENSHIP AND IMMIGRATION SERVS.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mehanna v. US CITIZENSHIP AND IMMIGRATION SERVS., 677 F.3d 312 (6th Cir. 2012).

Opinion

677 F.3d 312 (2012)

Nourelain MEHANNA; Reda Barakat, Plaintiffs-Appellants,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Detroit District Office, District Director; Field Officer Supervisor for Adjudications; Supervisor of Adjudications; District Adjudications Officer, Defendants-Appellees.

No. 11-1110.

United States Court of Appeals, Sixth Circuit.

April 19, 2012.

*313 ON BRIEF: Robert M. Birach, Law Office of Robert M. Birach, P.C., Detroit, Michigan, Michael R. Dezsi, Law Office of Michael R. Dezsi, PLLC, Detroit, Michigan, for Appellants. Derri T. Thomas, Assistant United States Attorney, Detroit, Michigan, for Appellees.

Before: MARTIN, SUTTON, and KETHLEDGE, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

The sole issue on appeal in this case is whether this Court has jurisdiction to review a decision of the Secretary of Homeland Security, made pursuant to 8 U.S.C. § 1155, to revoke a visa petition. If the Secretary's decision to revoke a visa petition is discretionary, this Court lacks jurisdiction to review the decision pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii). We hold that the Secretary's decision to revoke a visa petition authorized by section 1155 is discretionary, and we affirm the district court's dismissal of this case for lack of jurisdiction.

I.

In April 2000, Nourelain Mehanna, a citizen of Lebanon and a lawful permanent resident of the United States, filed a Form I-130 relative visa petition on behalf of her son, Reda Barakat. Mehanna sought to classify Barakat as an unmarried, adult child of a permanent resident, a preference category under 8 U.S.C. § 1153(a)(2). United States Citizenship and Immigration Services approved the petition in November 2001.

On December 25, 2006, Barakat married a United States citizen. As a result of the marriage, Barakat was admitted to the United States as a conditional permanent resident on August 9, 2007. On June 12, 2008, Barakat's marriage was annulled.

On March 19, 2009, the Detroit office of United States Citizenship and Immigration Services notified Barakat that it intended to terminate his conditional permanent resident status because his marriage had been annulled within two years of when he obtained the status. Barakat responded to the notice, admitted that his marriage was annulled, and, through counsel, advised United States Citizenship and Immigration Services that he had separately applied to adjust his status based on the approved visa petition Mehanna had previously filed on his behalf.

On April 22, United States Citizenship and Immigration Services notified the Director of the National Visa Center and Mehanna that the visa petition classifying Barakat as an unmarried, adult child of a lawful permanent resident, which was approved in November 2001, had been automatically revoked on the date of Barakat's marriage to a United States citizen pursuant to 8 C.F.R. § 205.1(a)(3)(i)(I).

On April 30, United States Citizenship and Immigration Services issued Barakat *314 a notice that his status as a conditional permanent resident had been terminated because of the annulment of his marriage. On August 13, United States Citizenship and Immigration Services denied Barakat's application for adjustment of his status as an unmarried, adult child of a permanent resident. On the same date, the Department of Homeland Security served a Notice to Appear on Barakat, thus initiating removal proceedings against him.

Barakat and Mehanna filed this suit before the district court seeking a declaration that Barakat's I-130 visa petition is valid in spite of the annulment of his marriage because, under Michigan law, an annulment voids a marriage ab initio and so United States Citizenship and Immigration Services should treat him as though he were never married. The district court determined that the decision of the Secretary of Homeland Security to revoke a visa petition is discretionary and therefore not subject to judicial review pursuant to section 1252(a)(2)(B)(ii). Based on this conclusion, the district court dismissed Barakat and Mehanna's complaint for lack of jurisdiction. Barakat and Mehanna appeal the judgment of the district court.

II.

"We review a district court's findings as to whether it had subject matter jurisdiction de novo." Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 491 (6th Cir.2011). Congress made section 1252(a)(2)(B)(ii)—the jurisdiction-stripping provision at issue here—a part of the Immigration and Nationality Act, 66 Stat. 166, 8 U.S.C. § 1101 et seq., through the Illegal Immigration Reform and Immigration Responsibility Act of 1996, 110 Stat. 3009-546. With the enactment of section 1252(a)(2)(B)(ii), Congress removed from our jurisdiction "any ... 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, other than the granting of relief under section 1158(a) of this title." Section 1252(a) governs 8 U.S.C. §§ 1151-1381 and includes the statute that authorized the Secretary of Homeland Security to revoke Barakat's visa petition, section 1155.

We must determine whether section 1252(a)(2)(B)(ii) removed our jurisdiction to review the Secretary's decision under section 1155 to revoke a visa petition. See, e.g., Berhane v. Holder, 606 F.3d 819, 821 (6th Cir.2010); Valenzuela-Alcantar v. INS, 309 F.3d 946, 949 (6th Cir.2002). Section 1155 provides that: "The 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 section 1154 of this title." We must determine whether this language means that the Secretary's decision to revoke a visa petition is an act of "discretion." If the answer is yes, we do not have authority to review the decision. Berhane, 606 F.3d at 821 (assessing the impact of section 1252(a)(2)(B)(ii) on our jurisdiction to review the Attorney General's decision that an alien is ineligible for asylum because he "committed a serious nonpolitical crime").

This question is an issue of first impression in the Sixth Circuit, but at least seven other circuits have decided the issue. All but one of our sister circuits that have confronted this question have interpreted revocations of visa petitions under section 1155 to be discretionary. See Green v. Napolitano, 627 F.3d 1341, 1344-46 (10th Cir.2010); Abdelwahab v. Frazier,

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Bluebook (online)
677 F.3d 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mehanna-v-us-citizenship-and-immigration-servs-ca6-2012.