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ZHU v. IMMIGRATION AND NATURALIZATION SERVICE

January 28, 2004.

ZHOUQUIN ZHU, et al., Plaintiffs
v.
IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants



The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge

MEMORANDUM OPINION

This case presents the Court with a question of pure statutory construction. Does Congress confer discretion upon a federal official when it says that he "may" act as he "deems," but does not specify, as it does elsewhere in the same statute, that he can act "at his discretion"?

The statute in question is the Immigration and Naturalization Act, 8 U.S.C. § 1101 et seq. The official in question is the Attorney General of the United States acting through his designee, the Commissioner of the Immigration and Naturalization Service ("INS").*fn1 The plaintiffs are aliens who have been conducting medical research in the United States and who have been denied immigrant visa applications, most specifically by denying them waivers of job-offer and labor-certification requirements on the grounds of a lack of national interest in their work. The Page 2 parties argue over whether the Court has jurisdiction to review the denial of waivers to the plaintiffs and seek a ruling on this threshold jurisdictional issue before briefing the full merits.

  After careful consideration of the parties' excellent briefs and the entire record, the Court finds that it does not have jurisdiction over this matter. The complaint will be dismissed.

  BACKGROUND FACTS

  The specific facts that pertain to each plaintiff are not critical to resolution of the preliminary legal issue of the Court's jurisdiction. Plaintiffs Zhouqin Zhu, Xiaquin Huang, Behanu Habulihaz, Haisu Yang, and Jiangli Yan are Chinese citizens. They are medical researchers who filed employment-based visa petitions seeking classification as alien "members of the professions holding advanced degrees or who have exceptional ability." See 8 U.S.C. § 1153(b)(2)(A). They asked for waivers of the requirement that they have a job offer and labor certification (that no U.S. resident can perform their work adequately), because it is in the national interest to grant their visa requests. The INS denied their requests for waivers, concluding that waivers were not in the national interest. Plaintiffs appealed the denials to the Office of Administrative Appeals ("AAO"), the agency body that exercises the appellate jurisdiction of the Associate Commissioner of Examinations. See 8 C.F.R. § 103.3(a)(1)(iv). The AAO affirmed the denial of the employment-based immigrant visa petitions for Plaintiffs Zhu, Huang, Habulihaz and Yang and dismissed their appeals. The AAO found that they had not established that an exemption from the job offer requirement would be in the national interest. When the complaint was filed, Plaintiff Yan's appeal was still pending before AAO; it has since been granted. Page 3

  STATUTORY AND REGULATORY FRAMEWORK

  The INS has adopted a multi-step process for applications from individuals seeking immigrant visas under 8 U.S.C. § 1153(b)(2)(A)(1) (members of the professions holding advanced degrees or who have exceptional ability). In this process, a "labor certification" must first be obtained from the Department of Labor ("DOL"). The prospective employer must persuade DOL that: (1) there are insufficient numbers of equally qualified domestic workers; and (2) the employment of the immigrant will not adversely affect the wages and working conditions of similarly employed persons in the United States. 8 U.S.C. § 1182(a)(5)(A) & (D); 8 C.F.R.

  § 204.5(k)(4)(2003). Armed with its labor certification, the employer can then file a petition with the INS seeking to classify the prospective employee/immigrant as a qualifying alien.

  The INA includes a provision that allows the Attorney General (delegated to the Commissioner) to permit a prospective immigrant under § 1153 to immigrate without a job offer from a specific prospective employer and without a labor certification. 8 U.S.C. § 1153(b)(2)(B)(i); see also 8 C.F.R. § 2.1 and 204.5(k)(4)(ii) (2003). The INS waives the job offer/labor certification requirement only if the immigrant meets the "national interest" standard. See 8 U.S.C.

  § 1153(b)(2)(B) ("[T]he Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States."). Critical to the question of the Court's jurisdiction is also 8 U.S.C. § 1252(a)(2)(B)(ii), which provides, "Notwithstanding any other provision of law, no court shall have jurisdiction to review — (ii) any other decision or action of the Attorney General the authority for which is specified under this title to be in the discretion of the Attorney General. . . ." Page 4

  LEGAL STANDARD

  The government has filed a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(1), asserting that there is no subject matter jurisdiction to review plaintiff's claims. When faced with a facial challenge to subject matter jurisdiction under FED. R. CIV. P. 12(b)(1), as is presented here, the Court applies substantially the same standard of review that is used to evaluate FED. R. CIV. P. 12(b)(6) motions. See Vanover v. Hantman, 77 F. Supp.2d 91, 98 (D.D.C. 1999). The court must accept as true all of the plaintiff's well-pled factual allegations and draw all reasonable inferences in favor of the plaintiff; however, the court does not need to accept as true the Plaintiff's legal conclusions. See Alexis v. District of Columbia, 44 F. Supp.2d 331, 336-37 (D.D.C. 1999). The court may dismiss a complaint for lack of subject-matter jurisdiction only if "`it appears beyond doubt that the ...


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