Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Poursina v. United States Citizenship and Immigration Services

United States Court of Appeals, Ninth Circuit

August 28, 2019

Mohammad Poursina, Plaintiff-Appellant,
v.
United States Citizenship and Immigration Services; David Roark, Director, Texas Service Center, United States Citizenship and Immigration Services; James McCament, Acting Director, United States Citizenship and Immigration Services; Ron Rosenberg, Chief, Administrative Appeals Office, United States Citizenship and Immigration Services, Defendants-Appellees.

          Argued and Submitted February 12, 2019 San Francisco, California

          Appeal from the United States District Court for the District of Arizona D.C. No. 4:16-cv-00591-RCC, Raner C. Collins, District Judge, Presiding

          Stacy Tolchin (argued) and Megan Brewer, Law Offices of Stacy Tolchin, Los Angeles, California, for Plaintiff-Appellant.

          Yamileth G. Davila (argued) and Glenn Girdharry, Assistant Directors; William C. Peachey, Director, District Court Section; Office of Immigration Litigation, Civil Division, United States Department of Justice; Washington, D.C., for Defendants-Appellees.

          Before: Mary M. Schroeder, Diarmuid F. O'Scannlain, and Johnnie B. Rawlinson, Circuit Judges.

         SUMMARY[*]

         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.

          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.

          OPINION

          O'SCANNLAIN, CIRCUIT JUDGE:

         We must decide whether federal courts may review the denial of a "national-interest waiver" by the United States Citizenship and Immigration Services to an Iranian citizen with advanced engineering degrees who sought a permanent visa.

         I

         A

         Mohammad Poursina is an Iranian citizen with two degrees in mechanical engineering from the University of Tehran. In 2006, he entered the United States on a student visa to continue his studies at the Rensselaer Polytechnic Institute in Troy, New York. Between 2006 and 2011, Poursina's student status authorized him to live and to work in the United States, but his authorization lapsed after he earned his doctoral degree. Thus, in June 2012, Poursina asked the United States Citizenship and Immigration Services ("USCIS") to grant him a permanent employment-based visa under 8 U.S.C. § 1153(b)(2).

         1

         Pursuant to such provision, USCIS may grant work visas to immigrants holding "advanced degrees" or to those with "exceptional ability in the sciences, arts, or business."[1] 8 U.S.C. § 1153(b)(2)(A). Generally, an immigrant seeking a work visa must show that his "services . . . are sought by an employer in the United States." Id. To do so, he must obtain a "labor certification" from the United States Department of Labor. See 8 U.S.C. § 1182(a)(5)(A), (D); 8 C.F.R. § 204.5(k)(4).

         But there is an exception to the labor-certification requirement: "[USCIS] may, when [USCIS] deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services . . . be sought by an employer in the United States." 8 U.S.C. § 1153(b)(2)(B). No statute defines when such a "national-interest waiver" should be granted, but USCIS has issued "precedent[ial] decision[s] establishing a framework for evaluating national interest waiver petitions." In re Dhanasar, 26 I. & N. Dec. 884, 886 (USCIS AAO 2016) (citing In re N.Y. State Dep't of Transp. (NYSDOT), 22 I. & N. Dec. 215 (BIA 1998), overruled by Dhanasar, 26 I & N. Dec. at 884).

         2

         Poursina could not show that an employer sought his services, so he requested a national-interest waiver when he submitted his 2012 visa application. In 2014, USCIS denied his request, and Poursina then appealed to USCIS's Administrative Appeals Office ("AAO"). The AAO concluded that the "evidence submitted" did not "establish[] that a waiver of the requirement of an approved labor certification w[ould] be in the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.