AYANBADEJO v. CHERTOFF
517 F.3d 273 (2008)
John AYANBADEJO; Felicia Ayanbadejo, Plaintiffs-Appellants,
v.
Michael CHERTOFF, Secretary, Department of Homeland Security, et al., Defendants-Appellees.
No. 06-20866.
United States Court of Appeals, Fifth Circuit.
February 8, 2008.
Ike Nkem Atah Waobikeze, Waobikeze & Associates, Houston, TX, for Plaintiffs-Appellants.
Samuel. G. Longoria, Houston, TX, for Defendants-Appellees.
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 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 ProceedingsJohn, 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 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)(13), eliminated the district court's right to review the Ayanbadejos' I-130 petition and I-485 application.
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.
4. See FED. R. Civ. P. 12(b)(1).
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). 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.").
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.
14. See 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, regulations indicates that the approval or disapproval of the petition may not be discretionary. Cf. 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).
15. Zhao, 404 F.3d at 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. C. 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). 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, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). 21. See Avatar, 933 F.2d at 321.
22. See FED.R.CIV.P. 59(e).