Date: 05-20-2006

Case Style: Jilin Pharmaceutical USA, Inc. v. Wei Zhao v. Michael Chertoff, et al.

Case Number: 05-2788

Judge: Aldisert

Court: United States Court of Appeals for the Third Circuit on appeal from the District of New Jersey, Essex County

Plaintiff's Attorney:

Isaac Fromm and Martin L. Rothstein of Barst & Mukamal, LLP, New York, New York

Defendant's Attorney:

Pamela Perron, Office of the United States Attorney, Newark, New Jersey

Description:

In Soltane v. United States Department of Justice, 381 F.3d 143 (3d Cir. 2004), we construed the statute governing the denial of a visa application, 8 U.S.C. § 1153(b)(4), and held that 8 U.S.C. § 1252(a)(2)(B)(ii) did not strip the district court of jurisdiction to review this administrative decision. This appeal by Jilin Pharmaceutical USA, Inc. ("Jilin USA") and Wei Zhao from an order of the District Court for the District of New Jersey dismissing their complaint for lack of subject matter jurisdiction does not involve a denial of a visa application, but rather a revocation of a visa already granted. This requires us to compare the language of the separate statutes dealing with visa denial and revocation, and, having done so, we conclude that a distinction exists between the two statutes in the quanta of discretion conferred upon the Secretary of Homeland Security. Accordingly, we will affirm the order of the District Court holding that we lack jurisdiction to review this discretionary determination. We will affirm also the Court's determination that it lacked jurisdiction to hear Appellants' Fifth Amendment due process claims.

I.

Appellant Wei Zhao is a native and citizen of the People's Republic of China. Appellant Jilin USA, which was incorporated in 1996 in the state of New Jersey, is a wholly owned United States subsidiary of Jilin Ltd. In 1996, Jilin Ltd. transferred Zhao, who was manager of the company's import and export division, from China to the United States to serve as president and chief executive officer of Jilin USA. On July 26, 1996, in accordance with this plan, Jilin USA filed an employment-based non-immigrant petition, Form I-129, on behalf of Zhao to classify him as an L-1A non-immigrant intracompany transferee. The supporting documentation asserted that Zhao was an executive employee of Jilin Ltd. and that he was transferring to Jilin USA in an executive and managerial capacity, as defined at 8 U.S.C. § 1101(a)(44)(A) & (B). The Immigration and Naturalization Service ("INS")1 approved this request on October 29, 1996, granting Zhao L-1A status until October 28, 1997. On November 5, 1997, the INS approved a petition to extend Zhao's L-1A status until October 28, 1999.

Following approval of this second petition, on August 29, 1998, Jilin USA filed a Form I-140 Immigrant Petition for Alien Worker on behalf of Zhao and sought to classify Zhao under the E-1-3 visa category, which permits executive and managerial intracompany transferees to become permanent residents of the United States under 8 U.S.C. § 1153(b)(1)(C). On December 16, 1998, the INS approved the petition and granted the visa. Upon that approval of the Form I-140, on July 7, 1999, Zhao and his immediate family filed Form I-485 applications for adjustment of status from non-immigrant to that of lawful permanent resident.

On September 13, 2000, the INS notified Jilin USA and Zhao that it intended to revoke its prior approval of the Form I- 140 visa petition. The INS was unconvinced that Zhao had been and would be employed in a primarily executive or managerial capacity. On April 5, 2001, the INS revoked Zhao's visa, noting that Jilin USA and Zhao had provided only a vague description of his job and had not established that he worked in an executive or managerial capacity.

Jilin USA appealed to the Office of Administrative Appeals ("OAA") and submitted a more detailed description of Zhao's duties. On January 30, 2003, holding that the "record contains insufficient evidence to demonstrate that [Zhao] has been employed in a primarily managerial or executive capacity," the OAA affirmed the visa revocation and dismissed the appeal. The OAA subsequently denied Jilin and Zhao's motion to reopen on August 24, 2004.2

On November 15, 2004, Jilin USA and Zhao filed a complaint for mandatory and declaratory relief in the United States District Court for the District of New Jersey. The complaint "challenge[d] the legally incorrect and unjustifiable" revocation of the approval of Zhao's visa petition. Concerned about its jurisdiction, the District Court ordered the parties to file briefs detailing the statutory provision giving rise to federal court jurisdiction to review the administrative decision to revoke Zhao's visa. Both parties submitted timely responses.3 Arguing that the Court had committed a clear error of law, that the controlling law had changed, and that a manifest injustice would result if the February 25 decision were not reversed, Jilin USA and Zhao filed a motion for reargument with the District Court on March 7, 2005. The primary focus in their motion was the Court of Appeals for the Ninth Circuit's opinion in ANA International, Inc. v. Way, 393 F.3d 886 (9th Cir. 2004), in which the court rejected the Seventh Circuit's logic and held that § 1252(a)(2)(B)(ii) does not deny jurisdiction to review a revocation decision made pursuant to § 1155. The District Court rejected the motion on May 11, 2005, concluding that El-Khader was more persuasive than the analysis of ANA International. This appeal followed.4

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Click the case caption above for the full text of the court's opinion.

Outcome: We will affirm the judgment of the District Court.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None