United States Court of Appeals For the First Circuit
No. 24-1228
JANINE CAVALCANTI VIANA GUEDES; JOSE MAURICIO OLIVEIRA GUEDES, JR.,
Plaintiffs, Appellants,
v.
ALEJANDRO MAYORKAS, Secretary of U.S. Department of Homeland Security; UR M. JADDOU, Director of U.S. Citizenship and Immigration Services (USCIS); TERRI A. ROBINSON, Boston District Director of U.S. Citizenship and Immigration Services; EMILY ROSE F. COSTA, Director of USCIS Boston Field Office,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Rikelman, Selya, and Lynch, Circuit Judges.
Felipe Alexandre for appellants.
Aneesa Ahmed, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation -- District Court Section, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, William C. Peachey, Director, Office of Immigration Litigation, William C. Silvis, Assistant Director, Office of Immigration Litigation, and Cara E. Alsterberg, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for appellees. December 16, 2024 LYNCH, Circuit Judge. In this case, appellants attempt
to challenge the USCIS denial of their applications for adjustment
of status and alleged revocation of Viana Guedes' I-140 petition
and National Interest Waiver. The district court dismissed the
action for lack of subject-matter jurisdiction. Because 8 U.S.C
§ 1252(a)(2)(B) and Patel v. Garland, 596 U.S. 328 (2022) preclude
judicial review of all these asserted claims, we affirm.
I.
On November 27, 2017, Janine Cavalcanti Galvao Viana
Guedes and her husband Jose Mauricio Oliveira Guedes Jr. and their
three children, of Brazil, entered the United States on B-2
nonimmigrant six-month visas. USCIS originally modified Viana
Guedes' visa status on her application to that of F-1 international
student, and her husband was granted derivative beneficiary
status.1 As a nonresident seeking permanent resident status, on
October 23, 2019, Viana Guedes filed an I-140 petition representing
that she was a "member[] of the professions holding advanced
degrees or their equivalent or . . . [her] exceptional ability in
the sciences, arts, or business[] will substantially benefit
prospectively the national economy, cultural or educational
interests, or welfare of the United States . . ." ("EB-2"). 8
1 Because Viana Guedes' husband is a derivative beneficiary of Viana Guedes, his claim turns on the adjudication of Viana Guedes' USCIS filings, which are the only filings we discuss.
- 3 - U.S.C. § 1153(b)(2)(A). Rather than provide evidence of a job
offer for her services in the United States, as is generally
required for an EB-2 classification, see 8 U.S.C. § 1153(b)(2)(A),
she sought an NIW, under which the Attorney General "may,
when . . . deem[ed] . . . to be in the national
interest . . . waive the requirement[] . . . that an alien's
services in the sciences, arts, professions, or business be sought
by an employer in the United States," 8 U.S.C. § 1153(b)(2)(B)(i)
(emphasis added); see 8 C.F.R. § 204.5(k)(4)(ii) (USCIS "may
exempt the requirement of a job offer, and thus of a labor
certification, for aliens of exceptional ability in the sciences,
arts, or business if exemption would be in the national interest."
(emphasis added)). On September 22, 2021, based on Viana Guedes'
representations but without the benefit of an interview, USCIS
approved both the I-140 petition and the NIW.
On the same day that she filed her I-140 petition, Viana
Guedes also filed an I-485 adjustment of status application. See
8 U.S.C. § 1255(a) (allowing, in the "discretion" of the Attorney
General, the adjustment of an alien's status to that of "an alien
lawfully admitted for permanent residence"). She appeared for an
interview at the USCIS Boston office on August 11, 2022.
Based on that interview and documents that Viana Guedes
submitted in connection with her application, USCIS found she had
made numerous misrepresentations to gain entry, adjust her status
- 4 - and obtain work classification, and gain an NIW. Among other
findings made by the agency, Viana Guedes had failed, inter alia,
to comply with her F-1 student visa, including that she never
attended classes at the school she said she attended and she had
not acquired English proficiency. As to her work classification,
she had not worked as a physiotherapist for years and had not since
moving to the United States even attempted to qualify or apply for
a physical therapy license. She had not demonstrated an intent to
work in the United States as a physical therapist. She had not
lawfully maintained her B-2 visitor status or her F-1 visa status
and did not qualify for an E-26.2 In its discretion, USCIS denied
her application for adjustment of status. In doing so, USCIS
stated that she "d[id] not qualify as an E-26" and "[was] not
eligible for, and d[id] not merit, a national interest waiver as
a matter of discretion."
On May 11, 2023, appellants filed a federal court
complaint challenging appellees' denial of their applications for
adjustment of status and "re-adjudicat[ion]" of Viana Guedes'
I-140 petition and NIW. On November 21, 2023, USCIS served Viana
Guedes and her husband with notices to appear for removal
proceedings. Appellees moved to dismiss on December 1, 2023,
2 E-26 is the lawful permanent resident category for EB-2 professionals with advanced degrees whose adjustment of status applications are granted. See U.S. DEPT. OF HOMELAND SEC., Immigrant Classes of Admission, https://perma.cc/63JN-Y36M.
- 5 - arguing that the court lacked subject-matter jurisdiction over all
of appellants' claims under 8 U.S.C. § 1252(a)(2)(B) and Patel v.
Garland, 596 U.S. 328 (2022). The district court entered an order
dismissing the case for lack of subject-matter jurisdiction.
II.
We have appellate jurisdiction and review de novo the
order dismissing for lack of subject-matter jurisdiction.
Bernardo ex rel. M & K Eng'g, Inc. v. Johnson, 814 F.3d 481, 483
(1st Cir. 2016).
Appellants frame their argument as challenging the
district court's dismissal of two separate claims: (1) a claim
challenging USCIS' denial of their adjustment of status
applications and (2) a claim challenging USCIS' alleged revocation
of Viana Guedes' I-140 and underlying NIW.
The district court plainly lacked jurisdiction under 8
U.S.C. § 1252(a)(2)(B)(i) to hear appellants' claims challenging
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United States Court of Appeals For the First Circuit
No. 24-1228
JANINE CAVALCANTI VIANA GUEDES; JOSE MAURICIO OLIVEIRA GUEDES, JR.,
Plaintiffs, Appellants,
v.
ALEJANDRO MAYORKAS, Secretary of U.S. Department of Homeland Security; UR M. JADDOU, Director of U.S. Citizenship and Immigration Services (USCIS); TERRI A. ROBINSON, Boston District Director of U.S. Citizenship and Immigration Services; EMILY ROSE F. COSTA, Director of USCIS Boston Field Office,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Rikelman, Selya, and Lynch, Circuit Judges.
Felipe Alexandre for appellants.
Aneesa Ahmed, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation -- District Court Section, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, William C. Peachey, Director, Office of Immigration Litigation, William C. Silvis, Assistant Director, Office of Immigration Litigation, and Cara E. Alsterberg, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for appellees. December 16, 2024 LYNCH, Circuit Judge. In this case, appellants attempt
to challenge the USCIS denial of their applications for adjustment
of status and alleged revocation of Viana Guedes' I-140 petition
and National Interest Waiver. The district court dismissed the
action for lack of subject-matter jurisdiction. Because 8 U.S.C
§ 1252(a)(2)(B) and Patel v. Garland, 596 U.S. 328 (2022) preclude
judicial review of all these asserted claims, we affirm.
I.
On November 27, 2017, Janine Cavalcanti Galvao Viana
Guedes and her husband Jose Mauricio Oliveira Guedes Jr. and their
three children, of Brazil, entered the United States on B-2
nonimmigrant six-month visas. USCIS originally modified Viana
Guedes' visa status on her application to that of F-1 international
student, and her husband was granted derivative beneficiary
status.1 As a nonresident seeking permanent resident status, on
October 23, 2019, Viana Guedes filed an I-140 petition representing
that she was a "member[] of the professions holding advanced
degrees or their equivalent or . . . [her] exceptional ability in
the sciences, arts, or business[] will substantially benefit
prospectively the national economy, cultural or educational
interests, or welfare of the United States . . ." ("EB-2"). 8
1 Because Viana Guedes' husband is a derivative beneficiary of Viana Guedes, his claim turns on the adjudication of Viana Guedes' USCIS filings, which are the only filings we discuss.
- 3 - U.S.C. § 1153(b)(2)(A). Rather than provide evidence of a job
offer for her services in the United States, as is generally
required for an EB-2 classification, see 8 U.S.C. § 1153(b)(2)(A),
she sought an NIW, under which the Attorney General "may,
when . . . deem[ed] . . . to be in the national
interest . . . waive the requirement[] . . . that an alien's
services in the sciences, arts, professions, or business be sought
by an employer in the United States," 8 U.S.C. § 1153(b)(2)(B)(i)
(emphasis added); see 8 C.F.R. § 204.5(k)(4)(ii) (USCIS "may
exempt the requirement of a job offer, and thus of a labor
certification, for aliens of exceptional ability in the sciences,
arts, or business if exemption would be in the national interest."
(emphasis added)). On September 22, 2021, based on Viana Guedes'
representations but without the benefit of an interview, USCIS
approved both the I-140 petition and the NIW.
On the same day that she filed her I-140 petition, Viana
Guedes also filed an I-485 adjustment of status application. See
8 U.S.C. § 1255(a) (allowing, in the "discretion" of the Attorney
General, the adjustment of an alien's status to that of "an alien
lawfully admitted for permanent residence"). She appeared for an
interview at the USCIS Boston office on August 11, 2022.
Based on that interview and documents that Viana Guedes
submitted in connection with her application, USCIS found she had
made numerous misrepresentations to gain entry, adjust her status
- 4 - and obtain work classification, and gain an NIW. Among other
findings made by the agency, Viana Guedes had failed, inter alia,
to comply with her F-1 student visa, including that she never
attended classes at the school she said she attended and she had
not acquired English proficiency. As to her work classification,
she had not worked as a physiotherapist for years and had not since
moving to the United States even attempted to qualify or apply for
a physical therapy license. She had not demonstrated an intent to
work in the United States as a physical therapist. She had not
lawfully maintained her B-2 visitor status or her F-1 visa status
and did not qualify for an E-26.2 In its discretion, USCIS denied
her application for adjustment of status. In doing so, USCIS
stated that she "d[id] not qualify as an E-26" and "[was] not
eligible for, and d[id] not merit, a national interest waiver as
a matter of discretion."
On May 11, 2023, appellants filed a federal court
complaint challenging appellees' denial of their applications for
adjustment of status and "re-adjudicat[ion]" of Viana Guedes'
I-140 petition and NIW. On November 21, 2023, USCIS served Viana
Guedes and her husband with notices to appear for removal
proceedings. Appellees moved to dismiss on December 1, 2023,
2 E-26 is the lawful permanent resident category for EB-2 professionals with advanced degrees whose adjustment of status applications are granted. See U.S. DEPT. OF HOMELAND SEC., Immigrant Classes of Admission, https://perma.cc/63JN-Y36M.
- 5 - arguing that the court lacked subject-matter jurisdiction over all
of appellants' claims under 8 U.S.C. § 1252(a)(2)(B) and Patel v.
Garland, 596 U.S. 328 (2022). The district court entered an order
dismissing the case for lack of subject-matter jurisdiction.
II.
We have appellate jurisdiction and review de novo the
order dismissing for lack of subject-matter jurisdiction.
Bernardo ex rel. M & K Eng'g, Inc. v. Johnson, 814 F.3d 481, 483
(1st Cir. 2016).
Appellants frame their argument as challenging the
district court's dismissal of two separate claims: (1) a claim
challenging USCIS' denial of their adjustment of status
applications and (2) a claim challenging USCIS' alleged revocation
of Viana Guedes' I-140 and underlying NIW.
The district court plainly lacked jurisdiction under 8
U.S.C. § 1252(a)(2)(B)(i) to hear appellants' claims challenging
USCIS' denial of their adjustment of status applications. 8 U.S.C.
§ 1252(a)(2)(B)(i) states: "regardless of whether the judgment,
decision, or action is made in removal proceedings, no court shall
have jurisdiction to review . . . any judgment regarding the
granting of relief under section . . . 1255 of this title."
(Emphasis added). Section 1255 of that title in turn states: "The
status of an alien who was inspected and admitted or paroled into
the United States . . . may be adjusted by the Attorney General,
- 6 - in his discretion." 8 U.S.C. § 1255(a).
Appellants argue that the title of section 1252,
"Judicial review of orders of removal," supersedes the subsequent
language in subsection (B), which applies "regardless of whether
the judgment, decision, or action is made in removal proceedings."
(Emphasis added). This argument fails. The more specific language
in subsection (B) trumps the general language in the title of
section 1252. See E. Mountain Platform Tennis, Inc. v. Sherwin-
Williams Co., 40 F.3d 492, 499 (1st Cir. 1994) ("Because we find
no ambiguity in the plain language of the statute, we need not
consider the title of the Act in determining the correct
construction."). Were there any doubt, the Supreme Court in Patel
stated, albeit in dicta, that section 1252's jurisdictional bar
"expressly extend[s] . . . to judgments made outside of removal
proceedings." See Patel, 596 U.S. at 345-46.3
The district court correctly dismissed claims
challenging USCIS' alleged revocation of Viana Guedes' I-140 and
NIW. We assume without deciding that appellants are correct that
3 Not surprisingly, the DHS has instituted removal proceedings against appellants. During these proceedings, appellants may seek adjustment of status before the immigration judge. See 8 C.F.R. § 1245.2(a)(1)(i) ("In the case of any alien who has been placed in . . . removal proceedings . . ., the immigration judge hearing the proceeding has exclusive jurisdiction to adjudicate any application for adjustment of status the alien may file.").
- 7 - Viana Guedes' I-140 petition and NIW were each revoked4 and hold
that both revocations are unreviewable under section
1252(a)(2)(B)(ii), which states that "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."
On its face, appellants' complaint alleges that Viana
Guedes was provided notice and an opportunity to respond to the
agency's concerns about her I-140 petition and NIW, which is
precisely what 8 C.F.R. § 205.2 requires. Accordingly, appellants
all but concede that the agency followed the proper procedure, and
so the question -- again, assuming appellants are correct that
these approvals were in fact revoked -- is simply whether those
revocations are reviewable. The Supreme Court recently held that
a USCIS decision to revoke an approved visa petition under 8 U.S.C.
§ 1155, which governs the revocation of an I-140 petition, is
unreviewable under section 1252(a)(2)(B)(ii). See Bouarfa v.
Mayorkas, __ S. Ct. __, 2024 WL 5048700, at *8 (Dec. 10, 2024)
("Where § 1252(a)(2)(B)(ii) applies . . . it bars judicial review
4 Appellees argue that "[w]hile USCIS determined that [Viana Guedes] was ineligible for the I-140 and national-interest waiver, the agency did not revoke either." We need not reach this argument.
- 8 - of the Secretary’s revocation under § 1155."). We held the same
in an earlier case. See Bernardo ex rel. M & K Eng., Inc., 814
F.3d at 484. And, given that section 1153(b)(2)(B)(i) also vests
the Attorney General with broad discretion, an NIW revocation is
unreviewable under substantially the same reasoning. See Bouarfa,
2024 WL 5048700, at *5-6; Bernardo ex rel. M & K Eng., Inc., 814
F.3d at 485-88; see also Zhu v. Gonzales, 411 F.3d 292, 295 (D.C.
Cir. 2005)("That the Attorney General has complete discretion with
respect to the labor certification requirement is established by
the terms of the waiver provision [under section
1153(b)(2)(B)(i)]."); Poursina v. USCIS, 936 F.3d 868, 872 (9th
Cir. 2019); Brasil v. Sec'y, Dep't of Homeland Sec., 28 F.4th 1189,
1193 (11th Cir. 2022); Flores v. Garland, 72 F.4th 85, 87 (5th
Cir. 2023); Mousavi v. USCIS, 828 Fed. Appx. 130, 133 (3d Cir.
2020).
The judgment of the district court is affirmed.
- 9 -