Ayanbadejo v. Chertoff, (5th Cir. Feb. 8, 2008)

INA §242(a)(2)(B)(ii) does not bar judicial review of determinations pertaining to I-130 visa petitions.

Plaintiff husband, a native and citizen of Nigeria , entered the U.S. as a nonimmigrant visitor and married his U.S. citizen wife shortly thereafter. Plaintiff wife submitted an I-130 petition and Plaintiff husband filed an accompanying application for adjustment of status. USCIS denied the I-130 petition and I-485 application after an investigation raised doubts about the validity of the marriage. The BIA affirmed without opinion. Plaintiffs filed a complaint in district court, and a subsequent motion to amend their complaint to allege that (1) they were denied the right to a full and fair hearing before CIS and the BIA; (2) their rights under FOIA were violated when they did not receive their immigration documents within 30 days of filing a request; and (3) their rights under the International Covenant on Civil and Political Rights were violated by CIS and the BIA. The district court found no constitutional violations with respect to the agency's determinations regarding the validity of Plaintiffs' marriage. In addition, the district court found the FOIA claim moot and found no cognizable action with regard to Plaintiffs' claim under the ICCPR. The court denied the motion to amend the complaint and ultimately granted the government's motion to dismiss for lack of subject matter jurisdiction, finding that CIS's denials of the I-130 and I-485 were within its discretion and were therefore, not subject to judicial review.

On appeal, the court addressed an issue of first impression in the Fifth Circuit: whether the district court has subject matter jurisdiction to review the denial of an I-130 petition and an I-485 application. Under INA §242(a)(2)(B)(ii), "no court shall have jurisdiction to review…any other decision or action of the Attorney General or Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or Secretary of Homeland Security…." In Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005), the court interpreted this provision to mean that courts are precluded from reviewing those decisions "specified in the statute" to be discretionary. Zhao emphasized that the language in §242(a)(2)(B) was meant to "delineate definitively which types of decisions are discretionary, and thus nonreviewable by a court." While §242(a)(2)(B)(i) explicitly points to "any judgment regarding the granting of relief under…section [245]" as discretionary, INA §204(a)(1)(A)(i), which governs I-130 petitions, is not mentioned in §242(a)(2)(B)(i). Therefore, the court concluded that the district court properly found that it lacked jurisdiction to review the denial of Plaintiff husband's I-485 application, but incorrectly concluded that it did not have subject matter jurisdiction over the denial of Plaintiff wife's I-130 petition. The court also found that the district court did not err in denying Plaintiffs' motion to amend their complaint to add the FOIA and ICCPR claims.