Poursina v. USCIS, No. 17-16579 (9th Cir. 2019)
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8 U.S.C. 1252(a)(2)(B)(ii) strips the federal courts of jurisdiction to review the denial of a national interest waiver. The Ninth Circuit affirmed the district court's dismissal of plaintiff's action challenging the denial of his petition for a national interest waiver related to his application for a work visa.
Section 1252(a)(2)(B)(ii) provides that no court shall have jurisdiction to review a 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. The panel held that section 1153(b)(2)(B)(i)'s plain language specifies that the authority to grant (or to deny) a national interest waiver is in the discretion of the Attorney General. The panel also held that plaintiff's various claims simply repackaged his core grievance regarding the national interest waiver, and his due process claim failed because he received notice by regular mail to the address given.
Court Description: Immigration. Affirming the district court’s dismissal for lack of subject-matter jurisdiction of Mohammad Poursina’s suit challenging the denial of his petition for a national-interest waiver related to his application for a work visa, the panel held that 8 U.S.C. § 1252(a)(2)(B)(ii) strips the federal courts of jurisdiction to review the denial of a national- interest waiver. Poursina applied to the United States Citizenship and Immigration Services (USCIS) for a permanent employment-based visa. Generally, an immigrant seeking such a visa must show that his services are sought by an employer in the United States. Because Poursina could not make that showing, he submitted a petition for a national- interest waiver under 8 U.S.C. § 1153(b)(2)(B)(i), which provides that USCIS “may, when [USCIS] deems it to be in the national interest, waive” the requirement that the alien’s services be sought by a U.S. employer. USCIS denied the petition, and Poursina sought review in the district court, which dismissed for lack of subject-matter jurisdiction. POURSINA V. USCIS 3 The panel held that 8 U.S.C. § 1252(a)(2)(B)(ii) strips the federal courts of jurisdiction to review the denial of a national-interest waiver. Section 1252(a)(2)(B)(ii) provides that no court shall have jurisdiction to review “a 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.” The panel concluded that § 1153(b)(2)(B)(i)’s plain language specifies that the authority to grant (or to deny) a national-interest waiver is in the discretion of the Attorney General. In so concluding, the panel explained that the statute states that the Attorney General may waive the requirement and explained that the statute’s instruction that the waiver should only issue if the Attorney General “deems it to be in the national interest” reinforces its discretionary nature. The panel also noted that § 1252(a)(2)(B)(ii) allows the courts to review certain legal conclusions, but concluded that the exception did not save Poursina’s non-constitutional claims because they simply repacked his core grievance that USCIS should have exercised its discretion in his favor. Reviewing Poursina’s due process claim that he did not receive a copy of USCIS’s request for evidence or the denial of his second petition, the panel observed that his constitutional claim also was not subject to § 1252(a)(2)(B)(ii)’s bar, but concluded that the claim failed on the merits because notice was reasonably calculated to reach him. 4 POURSINA V. USCIS
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