* The HONORABLE DAVID M. EBEL, United States Circuit Judge for the United States Court of Appeals for the Tenth Circuit, sitting by designation.

** The HONORABLE RAYMOND C. CLEVENGER, III, United States Circuit Judge for the United States Court of Appeals for the Federal Circuit, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-1078

___________ Walid El-Baz Abdelwahab; Alice * Abdelwahab, *
* Plaintiffs - Appellants, * Appeal from the United States * District Court for the v. * District of Minnesota.
* Denise Frazier, District Director, et al., *
* Defendants - Appellees. *

___________ Submitted: May 14, 2009 Filed: August 26, 2009

___________ Before LOKEN, Chief Judge, EBEL * and CLEVENGER, ** Circuit Judges.

___________ LOKEN, Chief Judge. This immigration case illustrates how co mplex laws and procedures and the overlapping jurisdiction of multiple agency o ffices can result in unfortunate delays in resolving issues of great importance to individual petitioners. In the midst of1 The HONORABLE JOAN N. ERICKSEN, United States District Judge for the District of Minnesota.

2 On March 1, 2003, the Department of Homeland Security absorbed the former Immigration and Naturalization Service. SeeKirong v. Mukasey , 529 F.3d 800, 802 n.1 (8th Cir. 2008). USCIS, a division of DHS, is responsible for the adjudication of immigrant visa petitions. See 6 U.S.C. § 271(b). Several actions in this case were taken by INS, while others were taken by USCIS or other DHS offices.
-2- protracted agency proceedings, petitioners Walid El-Baz Abdelwahab, a citizen of Egypt, and his wife Alice, a U.S. citizen, brought this action seeking an order compelling officials of the Department of Homeland Security (DHS) to approve Alice’s Form I-130 spousal immigrant vi sa petition, then pending on appeal, and to set aside the agency’s revocation of a previously approved Form I-140 immigrant worker visa petition. When the district court 1 heard argument on the government’s motion to dismiss and Abdelwahab’s moti on for declaratory relief, the I-130 petition had been granted and a hearing was sche duled before the immigration judge (IJ) presiding over pending removal proceedings. The district court dismissed the action, concluding the I-130 issue was moot and the relief requested regarding the stillrevoked I-140 petition, though notmoot, was beyond the court’s jurisdiction. The Abdelwahabs appeal. With the appeal pending, the United States Customs and Immigration Services (USCIS) reinstated th e I-140 approval, and the IJ then granted Abdelwahab adjustment of status. We affirm.

I.

Abdelwahab entered the United States in mid-1997. He married Alice six months later, and she filed a Form I-130 petition in early 1998. The St. Paul District Office of USCIS 2 denied the petition, finding that the couple married for the purpose of evading the immigration laws. DHS th en commenced removal proceedings in early 2003 because Abdelwahab had remained inthe United States longer than his nonimmigrant visa permitted. See8 U.S.C. § 1227(a)(1)(B). Four months later, a3 The Immigration and Nationality Act provides that no employment-based petition may be granted after a determinati on that an alien married “for the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c).
-3- Minnesota restaurant filed a Form I- 140 employment-based petition on Abdelwahab’s behalf with USCIS’s Nebraska Service Center. That office approved the I-140 petition in January 2004, unaware that Mr s. Abdelwahab’s Form I-130 petition had been denied on account of marriage fraud. 3 Abdelwahab then filed a petition for adjustment of status in the removal proceeding, based on the I-140 approval.

In July 2004, the St. Paul District Office notified Abdelwahab’s employer of its intent to exercise discretion under 8 U.S.C. § 1155 to revoke the I-140 approval on account of marriage fraud. However, the IJ denied DHS’s moti on to continue the removal proceeding and granted Abde lwahab adjustment of status. See 8 U.S.C. § 1255. DHS revoked the I-140 approval and appealed the IJ ’s decision to the Board of Immigration Appeals (BIA). Mean while, in August 2004, the BIA dismissed Abdelwahab’s separate administrative app eal from the I-130 denial because no appeal issues had been identified with the noti ce of appeal. In September 2005, the BIA vacated the IJ’s grant of adjustment of status, based upon the I-140 revocation. The BIA denied a motion to reopen the I-130 appeal and remanded fo r consideration of additional relief “includi ng voluntary departure.”

The Abdelwahabs filed this action in di strict court in July 2006, challenging DHS’s denial of the I-130 petition and revoc ation of the I-140 approval. In May 2007, responding to a motion filed by DHS, th e BIA in an opinion sharply critical of DHS’s handling of the I-130 petition vacated its order dismissing the I-130 appeal and remanded for de novo consideration of the I-130 petition. The St. Paul District Office approved the I-130 petition on remand. At that point, the parties’ dispositive cross motions were argued before the district c ourt, six weeks before a scheduled hearing before the IJ in the related butdistinct removal proceeding.-4- The Abdelwahabs argued to the district c ourt that USCIS incorrectly denied the I-130 petition, and that its St. Paul District Office acted ultra vires in revoking the I140 approval when only the Nebraska Serv ice Center had that authority under the applicable DHS regulations. Defendants argued that the I-130 claim was now moot and that 8 U.S.C. § 1252(a)(2)(B)(ii) stripped the court of jurisdiction to review the discretionary revocation of th e I-140 approval. The distri ct court granted defendants’ motion to dismiss, concluding (i) that th e I-130 claim was moot because, “whatever its flaws at whatever level, the 130 has b een granted,” and (ii) that the relief sought on the I-140 claim, though not moot, was beyond the court’s jurisdiction for a variety of reasons. This appeal followed. With the appeal pending, USCIS reinstated its approval of the I-140 petition, and the IJ then granted adjustment of status.

II.

On appeal, the Abdelwahabs argue the district court erred in concluding that it lacked jurisdiction to review whether US CIS lawfully revoked its approval of the I140 petition. Defendants argue the appeal is moot because the I-140 approval has been reinstated and Abdelwahab’s status adjusted to lawful permanent resident. Abdelwahab replies that the issue is not moot because the I-140 approval was not reinstated nunc pro tunc , which means he must wait four more years before he is eligible to become a naturalized citizen. We put this mootness issue aside and turn to the merits of the district court’s decision, reviewing its jurisdictional rulings on undisputed facts de novo . State ex rel. Nixon v. Coeur D’Alene Tribe , 164 F.3d 1102, 1108 (8th Cir.), cert. denied , 527 U.S. 1039 (1999) (standard of review).

In revoking the prior I-140 approval, USCIS exercised authority granted by 8 U.S.C. § 1155, which provides, “The Secretary of Homeland Security may, at any time, for what he deems to be good and su fficient cause, revoke the approval of any petition approved by him under section 1154 of this title.” The parties briefed and argued the appeal as though it turns on two related jurisdictional issues – whether4 § 1252(a)(2)(B)(ii) provides in relevant part: “Not withstanding any other provision of law . . . no court shall have juri sdiction to review . . . any . . . decision or action of . . . the Secretary of Homeland S ecurity the authority for which is specified under this subchapter to be in the discretion of . . . th e Secretary.” By its plain language, § 1252(a)(2)(B)(ii) app lies to discretionary acti on not taken in a removal proceeding. Cf. Van Dinh v. Reno , 197 F.3d 427, 431-32 (10th Cir. 1999). § 1252(a)(2)(D) provides in re levant part: “Nothing in [§ 1252(a)(2)(B)] . . . shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed withan appropriate court of appeals in accordance with this section.”
-5- Congress in 8 U.S.C. § 1252(a)(2)(B)(ii) stri pped federal courts of jurisdiction to review the agency’s exercise of its § 1155 authority, and if so, whether the agency committed an error of law thatCongress restored our jurisdiction to review in the later-enacted 8 U.S.C. § 1252(a)(2)(D). 4 The district court decided these questions, but it based its dismissal of the action on othe r factors as well. We discuss them all.

1. Focusing on the plain language of § 1155 -- the Secretary “may” revoke an I-140 approval “at any time, for what he deems to be good and sufficient cause” -- three circuits have held that § 1155 revocati ons are actions “specified [by statute] to be in the discretion of . . . the Secretar y” within the meaning of § 1252(a)(2)(B)(ii), and therefore not subject to judicial review. See Ghanem v. Upchurch , 481 F.3d 222, 224 (5th Cir. 2007); Jilin Pharm aceutical USA, Inc. v. Chertoff, 447 F.3d 196, 202-05 (3d Cir. 2006); El-Khader v. Monica , 366 F.3d 562, 567-68 (7th Cir. 2004). But see ANA Int’l, Inc. v. Way , 393 F.3d 886, 891-95 (9th Cir. 2004) . Like the district court, we agree. See also Onyinkwa v. Ashcroft , 376 F.3d 797, 799 (8th Cir. 2004).

Sidestepping this adverse precedent, the Abdelwahabs argue they raise an issue of law that courts have jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D) -- whether the St. Paul Distri ct Office of USCIS acted ultra vires , and therefore beyond its discretion, because the Secretary’s re gulations granted exclusive authority to5 The Abdelwahabs’ contention that we should review whether USCIS complied with the notice requirement at issue in Firstland is without merit. Congress repealed that requirement retroactivelyin the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 5304, 118 Stat. 3638, 3736 (2004).

6 Though review under the Administrative Procedure Act does not apply to actions “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), this limitation does not bar judicial review if the agen cy has an established policy governing its exercise of discretion, see INS v. Yang , 519 U.S. 26, 32 (1996). However, as the
-6- revoke I-140 approvals to DH S’s Nebraska Service Cente r. The Second Circuit reviewed whether USCIS complied with a statutory notice requirement in Firstland International, Inc. v. INS , 377 F.3d 127 (2d Cir. 2004), so there is some support for the general principle. 5 But the argument is flawed in this case.

First, § 1252(a)(2)(D) applies only to questions of law “raised upon a petition for review filed with an appropriate court of appeal s.” Thus, it does not grant jurisdiction to review questions of law in district court cases. See Hassan v. Chertoff, 543 F.3d 564, 566 (9th Cir. 2008); Hamilton v. Gonzales , 485 F.3d 564, 568 (10th Cir. 2007); Jilin , 447 F.3d at 206 n.16. This does not end the inquiry because, even if § 1252(a)(2)(B) otherwise bars review of a discretionary act, we have jurisdiction to review a “predicate legal question thatamounts to a nondiscreti onary determination underlying the denial of relie f.” Ibrahimi v. Holder , 566 F.3d 758, 764 (8th Cir. 2009) (quotation omitted). But the case on wh ich the Abdelwahabs rely for their ultra vires contention, Zadvydas v. Davis , 533 U.S. 678 (2001), revi ewed whether the agency exceeded its statutory authority. Here, § 1155 gave the Secretary of Homeland Security express authority to revoke the approval of I-140 petitions, and the Secretary has discretion to delegate that authority within USCIS. See6 U.S.C. § 271(b)(1); 8 C.F.R. § 205.2(a). Whether pr operly delegated authority wa s in fact exercised by the proper agency official, when the agency considers the action properly taken, looks like an issue beyond our jurisdiction under § 1252(a)(2)(B)(ii), not a “predicate legal question.” 6Ninth Circuit explained in Spencer Enters., Inc. v. United States , 345 F.3d 683, 691 (9th Cir. 2003), § 1252(a)(2)(B)(ii) is a broader prohibition: [U]nder the APA, even a decision that is wholly discretionary by statute may be reviewed if regulations or agency practice provide standards by which an agency's conduct may be judged. Under § 1252(a)(2)(B)(ii) . . . if the statute specifies that th e decision is wholly discretionary, regulations or agency practice will not make the decision reviewable. We have previously noted that judicial review may be circ umscribed “where a procedural rule is designed primarily to benefit the agency in carrying out its functions.” Ngure v. Ashcroft , 367 F.3d 975, 983 (8th Cir. 2004).

7 This provision was amended this year to read: “Form I-140 . . . must be filed in accordance with the instructions on the form.” 74 Fed. Reg. at 26,936-37.

8 This provision and others were rem oved from the regulations to increase agency efficiency. See 74 Fed. Reg. 26,933 (June 5, 2009) (effective July 6, 2009).
-7- Second, even if we may review the issu e, the Abdelwahabs failed to establish that the St. Paul District Office had no authority to exercise the Secretary’s discretion under the DHS regulations then in effect. The regulations provided that any USCIS officer “authorized to approve [an I-140] petition . . . may revoke the approval of that petition.” 8 C.F.R. § 205.2(a) (2004). The re gulations further provided that Form I140 petitions “must be filed with the Se rvice Center having jurisdiction over the intended place of employment, unless specifi cally designated for local filing . . . .” 8 C.F.R. § 204.5(b) (2004). 7 Therefore, the Abdelwah abs argue, only Service Centers may approve or revoke I-140 petitions. We disagree. A regul ation requiring that petitions be filed in one office is not a dir ective that only that office may take final action on a petition. When the I-140 petiti on was revoked, District Offices were responsible for administration and enforcem ent of immigration laws within their assigned geographic areas “unless any su ch power and authority . . . has been exclusively delegated to another immigration official or class of immigration officer.” 8 C.F.R. § 100.2(d)(2)(ii) (2004). 8 Because the power to approve or revoke I-140-8- petitions had not been “exclusi vely delegated to another i mmigration official or class of immigration officer,” id. , the Abdelwahabs have failed to prove that the St. Paul District Office acted ultra vires . In these circumstances, an extraordinary writ invalidating this otherwise valid ag ency action may not be granted.

2. Even if judicial review is not foreclosed by § 1252(a)(2)(B)(ii), we would affirm dismissal of the action on the record be fore the district court. When the district court acted, USCIS had rescinded its marriage fraud finding and granted the I-130 petition. This removed the basis for th e I-140 revocation. Although the revocation was still in effect, a hearing was pending before the IJ on remand from the BIA, whose prior ruling triggered the grant of I-130 relie f. At this point, there were further administrative remedies to be exhausted, ev en if those remedies had appeared to be exhausted when the lawsuit was first commenced.

3. Finally, even if the I-140 revocation issue is not moot, the Abdelwahabs seek an improper judicial remedy. They complain that the I-140 approval was not reinstated nunc pro tunc . But that is an issue of ad ministrative remedy that must be raised to the agency. If the extent of the remedy is ultimately subject to judicial review -- which is highly doubtful because th e extent of an administrative remedy is a quintessentially discretionary agency action -- it may only be reviewed after the agency has considered the question. Inst ead, the Abdelwahabs s eek an interlocutory declaratory judgment that they hope will pers uade the agency to grant further relief, or a judicial order usurping the agency’s re medial authority. In either event, such relief was clearly beyond the district court’s jurisdiction under the Immigration and Nationality Act.

The judgment of the district court is affirmed.

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