United States District Court for the District of Columbia
January 28, 2004.
ZHOUQUIN ZHU, et al., Plaintiffs
IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants
The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
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
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.
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
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. . . ."
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 plaintiff can
prove no set of facts in support of his claim which would entitle him to
relief.'" Empagran S.A. v. F. Hoffman-Laroche, Ltd., 315 F.3d 338,
343 (D.C. Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41,
The question raised here is whether this Court has authority to review
the INS refusal to waive the job offer/labor certification requirements
for these plaintiffs. This constitutes a question of the Court's
jurisdiction and an interpretation of the statutory intent of Congress.
The Court cannot decide whether INS properly refused to waive the labor
certification requirement unless it has jurisdiction over the plaintiffs'
complaint. See Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 94-95 (1998).
The government's position is simple and straightforward: "The decisions
at issue here, made by the BCIS/INS pursuant to
8 U.S.C. § 1153(b)(2)(B)(i), were discretionary; hence,
under 8 U.S.C. § 1252, this Court has no jurisdiction." Defs.'
Motion to Dismiss at 14 ("Motion"). The plaintiffs' argument has more
nuance to it. They emphasize that an Attorney General decision is exempt
from review only when "the authority for [it] is specified."
See 8 U.S.C.
§ 1252(a)(2)(B)(ii) (emphasis added). They provide the Court with
51 examples in which Congress specified that the Attorney
General could act "in his discretion."*fn2 Pltfs.' Opp. to
Defs.' Motion to
Dismiss ("Opp") at 4-9. From this extensive litany, the plaintiffs
argue that "there are innumerable acts of the Attorney General which are
`specified under . . . [Title 8] to be in the discretion of the
Attorney General.' The act of determining whether a national interest
waiver is appropriate is simply not one of those so specified." Opp. at
9. Since to "specify" means "to name or mention expressly," id.,
the Court must give it its distinguishing meaning. See United States
v. Menasche, 348 U.S. 528, 538-539 (1955) (all words in a statute
are to be assigned meaning; nothing is to be construed as surplusage.)
Plaintiffs' argument has a certain attraction. The statute uses
different language, to be sure, and different language often connotes a
different congressional intention or purpose. See O'Gilvie v. United
States, 519 U.S. 79, 96 (1996) ("When the legislature uses certain
language in one part of the statute and different language in another,
the court assumes different meanings were intended.") quoting 2A N.
SINGER, SUTHERLAND ON STATUTORY CONSTRUCTION § 46.07 (5th ed. 1992
and Supp. 1996). Nonetheless, the Court concludes that Congress
essentially authorized the Attorney General to act "in his discretion"
when it stated that he "may, when the Attorney General
deems it to be in the national interest, waive the
requirements . . . that an alien's services . . . be sought by an
employer in the United States." 8 U.S.C. § 1153(b)(2)(B) (emphasis
Plaintiffs argue that legal review is foreclosed only when the INA
specifies that the Attorney General acts in his discretion and that, in
light of the 51 examples cited in the margin, it
is necessary to use the word "discretion" to impart that executive
authority in the context of the ESFA. The Court finds otherwise for three
basic reasons. First, the language at issue connotes discretion: the use
of the word "may" creates a presumption of discretion under normal rules
of statutory interpretation. See Haig v. Agee, 453 U.S. 280, 294
n.26 (1981) ("`may' expressly recognizes substantial discretion");
Int'l Union v. Dole, 919 F.2d 753, 756 (D.C. Cir. 1990);
Ramey v. Block, 738 F.2d 756, 760 (6th Cir. 1984). Together with
the use of the word "deem," the statutory provision "fairly exudes
deference." Webster v. DOE, 486 U.S. 592, 600 (1988). Second,
there is no reason Congress could not have used more than one phrase to
grant discretion, particularly where, as here, it wanted the Attorney
General to exercise that discretion within the contours of the "national
interest" and not only and merely as he sees fit. Third, reading the
statute to extend discretion to the Attorney General to determine whether
to waive the job certification process is consistent with the tenor of
the recent amendments. See Opp. at 2 ("One of the major
statutory objectives of [the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009] was to
expeditiously remove inappropriate aliens by eliminating the judicial
review which they were using to extend their stay."). Consequently,
§ 1252(a)(2)(B)(ii) precludes this Court's jurisdiction to review
the Commissioner's discretionary decision in this case.*fn3
The complaint is dismissed for want of jurisdiction. A separate Order
accompanies this Memorandum Opinion.
For the reasons stated in the Memorandum Opinion separately and
contemporaneously issued this 28th day of January, 2004, it is hereby
ORDERED that Defendants' Motion to Dismiss is
GRANTED; and it is
FURTHER ORDERED that this case is DISMISSED from
the docket of this Court.