United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2005 Decided June 17, 2005

No. 04-5102

ZHOUQIN ZHU, ET AL.,

APPELLANTS

v.

ALBERTO GONZALES, UNITED STATES ATTORNEY GENERAL,

ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 02cv00685)

Frederic W. Schwartz, Jr. argued the cause and filed the

briefs for appellants.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellees. With him on the brief were Kenneth L. Wainstein,

U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.

Edith M. Shine and R. Craig Lawrence, Assistant U.S.

Attorneys, entered appearances.

Before: GINSBURG, Chief Judge, and EDWARDS and

GARLAND, Circuit Judges.
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Opinion for the Court by Chief Judge GINSBURG.

GINSBURG, Chief Judge: Four citizens of the People’s

Republic of China, working as medical researchers in the United

States, appeal from an order of the district court dismissing their

complaint, in which they sought review of the Attorney

General’s refusal to waive the requirement they obtain a “labor

certification” in order to petition for a work visa. The district

court held that § 242(a)(2)(B)(ii) of the Immigration and

Nationality Act (INA), as amended by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. §

1252(a)(2)(B)(ii), deprived the court of jurisdiction to entertain

the complaint. We agree and hence affirm the district court’s

dismissal of the complaint. 

I. Background 

The plaintiffs each petitioned for a work visa under §

203(b)(2) of the INA, which gives a preference to otherwise

“qualified immigrants who are members of the professions

holding advanced degrees.” 8 U.S.C. § 1153(b)(2)(A).

Ordinarily a § 203(b)(2) petitioner must get a certification from

the Secretary of Labor that “there are not sufficient workers” in

the field in which he works and that his employment “will not

adversely affect the wages and working conditions of workers

in the United States.” Id. § 1182(a)(5)(A). “[T]he Attorney

General may,” however, “when [he] deems it to be in the

national interest, waive the requirements of [§ 1153(b)(2)(A)]

that an alien’s services in the sciences, arts, professions, or

business be sought by an employer in the United States.” Id. §

1153(b)(2)(B)(i).

The Attorney General delegated his authority to waive the

labor certification requirement to the Commissioner of the
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Immigration and Naturalization Service (INS), 8 C.F.R. § 2.1

(2001) – now the Bureau of Citizenship and Immigration

Services, Department of Homeland Security – who in turn

delegated it to the directors of the several INS regional service

centers, id. § 204.5(k)(ii). Each plaintiff, in his or her petition

for a work visa, requested that the appropriate regional director

waive the labor certification requirement, and each such request

was denied.

After the Office of Administrative Appeals affirmed those

denials, the plaintiffs filed this action in the district court, which

granted the Government’s motion to dismiss for lack of subjectmatter jurisdiction. Zhu v. INS, 300 F. Supp. 2d 77, 81 (2004).

Specifically, the court held judicial review of a decision to deny

a waiver of the labor certification requirement was barred by §

1252(a)(2)(B)(ii), which provides in relevant part,

Notwithstanding any other provision of law, no court shall

have jurisdiction to review –

....

(ii) any ... decision or action of the Attorney General the

authority for which is specified under [subchapter 2 of

chapter 12 of 8 U.S.C., §§ 1151-1379] to be in the

discretion of the Attorney General, other than the granting

of relief under section 1158(a) of this title 

and the plaintiffs appealed.

II. Analysis

The plaintiffs argue the reference in § 1252(a)(2)(B)(ii) to

decisions “specified ... to be in the discretion of the Attorney
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General” denotes only decisions made expressly discretionary

by the terms of the authorizing statute. The Government

defends the district court’s reading of the statute and argues in

the alternative that the Attorney General’s decision not to waive

the labor certification requirement is “committed to agency

discretion by law” and hence shielded from judicial review

under the Administrative Procedure Act, 5 U.S.C. § 701(a)(2).

Reviewing the question of statutory interpretation de novo, see

United States v. Braxtonbrown-Smith, 278 F.3d 1348, 1352

(D.C. Cir. 2002), we hold § 1252(a)(2)(B)(ii) precludes judicial

review and therefore do not reach the APA question. 

In their principal brief the plaintiffs essentially contend the

exercise of the authority granted in § 1153(b)(2)(B)(i) is not

“specified ... to be in the discretion of the Attorney General”

under § 1252(a)(2)(B)(ii) because “[s]pecified ... means to

mention expressly” and the word “discretion” does not appear

in § 1153(b)(2)(B)(i). This contention is bolstered, according to

the plaintiffs, by the contrast between that section and the

numerous other sections of subchapter 2 in which the Attorney

General is expressly authorized to exercise “discretion.” See,

e.g., 8 U.S.C. § 1159(b) (“Not more than 10,000 of the refugee

admissions ... may be made available ... in the Attorney

General’s discretion”); id. § 1181(b) (“returning resident

immigrants ... may be readmitted ... by the Attorney General in

his discretion”).

The plaintiffs’ interpretation cannot be squared with the last

clause of § 1252(a)(2)(B)(ii), an exception to the rule against

judicial review for “any ... decision ... granting ... relief under

section 1158(a).” Significantly, “discretion” nowhere appears

in § 1158(a). The exception therefore establishes that a decision

may be “specified ... to be in the discretion of the Attorney

General” even if the grant of authority to make that decision
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does not use the word “discretion.” Put otherwise, under the

plaintiffs’ interpretation the exception for decisions granting

relief under § 1158(a) would be superfluous. Because we must

“give effect, if possible, to every clause and word of a statute,”

United States v. Menasche, 348 U.S. 528, 538-39 (1955); see

also Qi-Zhuo v. Meissner, 70 F.3d 136, 139 (D.C. Cir. 1995),

and because we think it unlikely the Congress intended that,

regardless of context, no grant of authority to the Attorney

General be deemed discretionary unless it uses the word

“discretion,” cf. Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505

U.S. 88, 112 (1992) (rejecting view Congress must use “magic

words” expressly to preempt state law), we reject the plaintiffs’

rendition of the statute.

In their reply brief the plaintiffs retreat to the position that

the determinative issue is not whether a grant of authority

contains the term “discretion” but instead whether it “dictates

discretion.” The Government seems to agree generally with that

proposition but it notes a division among the circuits with

respect to the degree of discretion that must attach to a decision

of the Attorney General before it comes within the ambit of §

1252(a)(2)(B)(ii). Six circuits, by the Government’s count,

require only that a decision be “discretionary in nature,” see,

e.g., El-Khader v. Monica, 366 F.3d 562, 567 (7th Cir. 2004),

whereas the Ninth Circuit requires that to avoid judicial review

under that provision a decision be left “entirely within [the]

judgment or conscience” of the Attorney General. Spencer

Enters., Inc. v. United States, 345 F.3d 683, 690 (2003).

We need not choose between these rival approaches

because, as the Government argues, § 1153(b)(2)(B)(i) comes

within the reach of § 1252(a)(2)(B)(ii) even under the more

demanding standard used by the Ninth Circuit. That the

Attorney General has complete discretion with respect to the
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labor certification requirement is established by the terms of the

waiver provision. First, the Attorney General in any particular

case may “deem” a waiver of the requirement to be in the

“national interest,” which determination calls upon his expertise

and judgment unfettered by any statutory standard whatsoever.

See Webster v. Doe, 486 U.S. 592, 600 (1988) (statute allowing

Director of Central Intelligence to terminate employee whenever

he “‘shall deem such termination necessary or advisable in the

interests of the United States’ ... fairly exudes deference”).

Second, even if the Attorney General deems a waiver to be in

the national interest, the statute provided that he “may” – not

that he must – then grant it. Assuming for the sake of the

argument that the “national interest” is a manageable legal

standard, but see id., this suggests not that the Congress

expected the Attorney General actually to deny a petition the

grant of which he deems to be in the national interest, but rather

that his decision under § 1153(b)(2)(B)(i) is, like “Speech or

Debate in either House [of the Congress, not to] be questioned

in any other Place,” U.S. CONST., art. I, § 6, and certainly not in

a court. Helstoski v. Meanor, 442 U.S. 500, 506-08 (1979). It

is, in the parlance of the Ninth Circuit, “entirely discretionary.”

See Spencer Enters., 345 F.3d at 690 (instancing statute

providing “Attorney General ‘may grant asylum’ to aliens who

qualify ... but need not” as “example of the type of decisions

whose authority is specified by statute to be entirely

discretionary”).

The plaintiffs’ final argument is that the term “may” “does

not necessarily suggest unlimited discretion.” Zadvydas v.

Davis, 533 U.S. 678, 697 (2001). True enough, but the “usual

presumption” is that “‘may’ confers discretion.” Int’l Union,

United Auto., Aerospace & Agric. Implement Workers of Am. v.

Dole, 919 F.2d 753, 756 (D.C. Cir. 1990). Where there are

conflicting signals, “discerning Congress’s intent to bestow or
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withhold discretion” may require more extended analysis; it “is

not a simple matter of tallying the ‘shalls’ and ‘mays’ and

finding that the ‘mays’ have it.” Pennsylvania v. Lynn, 501 F.2d

848, 854 (D.C. Cir. 1974). In this case, however, the plaintiffs

point to no counter-indication. Neither § 1153(b)(2)(B)(i) nor,

as far as we can tell, any other provision of the INA suggests the

Congress intended that the Attorney General be constrained

when deciding whether a waiver should be granted. 

III. Conclusion

For the foregoing reasons, the judgment of the district court

is 

Affirmed.