use affidavits and other material to support the motion.” United Phosphorus, Ltd. v. Angus
Chemical Co., No. 01-1693, 2003 WL 910592 at *2 (7" Cir. Mar. 10, 2003). See also United
Transp. Union v. Gateway Western Ry. Co., 78 F.3d 1208, 1210 (7" Cir. 1996). The party
asserting jurisdiction bears the burden of proof on a Rule 12(b)(1) motion. United Phosphorus,
2003 WL 910592 at *2.

Il. JURISDICTION

The Court must first determine if it has subject matter jurisdiction to hear this case. The
federal courts are courts of limited jurisdiction. “It is axiomatic that a federal court must assure
itself that it possesses jurisdiction over the subject matter of an action before it can proceed to
take any action respecting the merits of the action. The requirement that jurisdiction be
established as a threshold matter ‘springs from the nature and limits of the judicial power of the
United States’ and is ‘inflexible and without exception.”” Cook v. Winfrey, 141 F.3d 322, 325
(7° Cir. 1998) (quoting Steel C. v. Citizens for a Better Environment, 523 U.S. 83, 94, 118 S.Ct.
1003, 140 L.E.2d 210 (1998)).

Defendant argues that this Court does not have jurisdiction pursuant to Section
1252(a)(2)(B)(ii) of the Illegal bmmigration Reform and Immigrant Responsibility Act of 1996
(“the IIRIRA”) because the Attorney General, through District Director Brian Perryman of the
INS, acted within his discretion in revoking the visa petition. Plaintiff contends that Section
1252 does not apply to this case because that section only applies to removal proceedings and the

INS’ decision was not discretionary.


CONCLUSION
Because this Court lacks jurisdiction in light of Section 1252(a)(2)(B)(ii), Defendant’s

motion to dismiss is granted. Plaintiff's complaint is dismissed with prejudice.

DATED: April 1, 2003 (i Ad {

AMY J. ST. BYE}
United States Pict Court Judge



other decision or action . .. where the Attorney General has discretionary authority.” 8 U.S.C.
§1252(a)(2)(B)(ii). The meaning of the statute is clear and unambiguous -- it precludes the
courts from reviewing any discretionary decision of the INS. See CDI Information Services,
Inc, v. Reno, 278 F.3d 616, 619 (6" Cir. 2002).

The Court is not persuaded by Plaintiffs argument that the Section’s title -- “Judical
review of orders of removal title” -- limits its scope. First, Section 1252 speaks to a “multitude
of jurisdictional issues, including ones that are collateral to the review of a final order of a
deportation.” Van Dinh v. Reno, 197 F.3d 427, 432 (10" Cir. 1999). Second, the Supreme Court
has explained that “Where the text [of a statute] is complicated and prolific, headings and titles
can do no more than indicate the provisions in a most general manner. ... For interpretative
purposes, they are of use only when they shed light on some ambiguous word or phrase. They
are but tools available for the resolution of a doubt. But they cannot undo or limit that which the
text makes plain.” Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91
L.Ed. 1646 (1947). See also CDI Information Services, 278 F.3d at 620; Van Dinh, 197 F.3d at
432.

Accordingly, the Court finds that the judicial review limitations in Section 1252 are not
limited to those made in removal proceedings. See CDI Information Services, 278 F.3d at 620
(Section 1252(a)(2)(B)(ii) is “not limited to discretionary decisions made within the context of
removal proceedings”); Van Dinh, 197 F.3d at 432 (“§1252(a)(2)(B)(ii) is not limited in
application only to review by the circuit courts of final orders of removal”); ANA International,
Inc. v. Way, No. Civ. 02-479-BR,2002 WL 31971575 at *15 (D. Or. Dec. 6, 2002) (“Section

1252(a)(2)(B)(ii) expressly precludes judicial review of discretionary decisions of the Attorney



A. The Scope of Section 1252(a)(2)(B)(ii)

Section 1252(a)(2)(B)(ii) provides:

Notwithstanding any other provision of law, no court shall have
jurisdiction to review . . . any other decision or action of the
Attomey General the authority for which is specified under this
subchapter to be in the discretion of the Attorney General, other
than the granting of relief under section 1158(a) of this title.

8 US.C. § 1252(a)(2)(B)(ii).

As an initial matter, the reference to the phrase “under this title” in Section
1252(a)(2)(B)(ii) encompasses decisions made under Subchapter Ii of Chapter 12 of Title 8
United States Code, and includes decisions made under 8 U.S.C. §§ 1151 through 1378. See
Avramenkov v. Immigration & Naturalization Service, 99 F.Supp.2d 210, 213 (D. Conn. 2000).
Because the District Director made his decision to revoke Plaintiff's visa petition pursuant to
Section 1155, it clearly falls within the reach of Section 1252( a)(2)(B)(ii). Accordingly, the
Court must turn to the scope of Section 1252(a)(2)(B)(ii) to determine if it has jurisdiction to
proceed,

Section 1252(a)(2)(B)(ii) limits a court’s jurisdiction. The first issue the Court must
decide is whether this judicial stripping provision applies outside of final orders of removal
issued by the INS. The Seventh Circuit has not addressed this issue. In Jddir v. INS, the Seventh
Circuit recognized that there is a split among courts addressing this issue, but concluded that the
dispute was “beyond the scope of [the court’s] narrow inquiry.” 301 F.3d 492, 497 n.1 (7" Cir.
2002).

The plain language of Section 1252(a)(2)(B)(ii), however, demonstrates that it is not

limited simply to orders of removal. The statute strips a court’s jurisdiction to review “any



the Attorney General has determined that the alien has attempted or conspired to enter into a
marriage for the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c). Plaintiff
contends that Section 1154(c) limits the INS’ authority to deny a petition to those cases where it
determines that an alien entered into a marriage for the purpose of evading the immigration laws.

The Court is not persuaded by this argument. Section 1154(c) does not address the
revocation of a petition, it only applies to the denial of a petition. The INS’ reference to the
marriage fraud provision of Section 1154(c) as the basis for its “good and sufficient” cause does
not alter the fact that the INS revoked the visa petition based on its authority under Section 1155.
See ANA International, 2002 WL 31971575 at *15 (“The INS’s determination to revoke for good
and sufficient cause its prior approval of Plaintiff ANA’s immigrant visa petition on behalf of
Plaintiff Yu [pursuant to Section 1155] was a discretionary decision. The Court, therefore, lacks
subject matter jurisdiction to review that decision pursuant to § 1252(a)(2)(B)(ii).”).

The INS exercised its discretion in revoking Plaintiff's visa petition pursuant to

Section 1155, and thus, the Court does not have jurisdiction to hear Plaintiff's case.!

' Defendant also argues that this Court does not have jurisdiction pursuant to Section 1252(g)
of the Illegal Immigration and Nationality Act, and that the this Court lacks jurisdiction because
Plaintiff failed to exhaust his administrative remedies. Because this Court concludes that it lacks
jurisdiction to review the INS’ decision in light of Section 1252(a)(2)(B)(ii), the Court need not
address these arguments.



* Minute Order Fottm (06/97)

4o . United States District Court, Northern District of Illinois
rit i ri Sitting Judge if Oth
eer Magistrate Judge Amy J. St. Eve than Assigned Judge
CASE NUMBER 02 C 984 DATE 4/1/2003
CASE El-Khader vs. Perryman
TITLE

[in the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

() Oo Filed motion of { use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) im} Answer brief to motion due___. Reply to answer briefdue___.

(4) oO Ruling/Hearingon___—_setfor at

(5) oO Status hearing{held/continued to] [set for/re-setfor]on___——ssetfor_— at
(6) o Pretrial conference[held/continued to] [set for/re-set for]on___—ssetfor__—sat__
(7) im] Trial{set for/re-set for] on___at

(8) o [Bench/Jury trial] [Hearing] held/continued to at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OUFRCP4(m) Local Rule 41.1 COFRCP41(a)(1) CFRCPA1(a)(2).

qo) ff [Other docket entry] Enter Memorandum Opinion and Order. Defendant's motion to dismiss
for lack of subject matter jurisdiction (R-21) is granted and Plaintiffs case is dismissed with
prejudice. Plaintiff's Memorandum Relating to Exhaustion of Administrative Remedies (R-19)
is denied as moot. Status hearing set for 4/2/03 is stricken. Any other pending dates are stricken. Any

ending motion: denied oot.
Pp g motions are denied as moo (an ) &

al) [For further detail see order attached to the original minute order.]
No notices required, advised in open court
2
No notices required. upbyrofuoices 14
Y_ | Notices mailed by judge's staff. AVE es
Notified counsel by telephone. date docketed
Docketing to mail notices nz
| Mail AO 450 form. dockerap og Niist Xf 5
Copy to judge/magistrate judge.
4/1/2008
y courtroom date mated noice
TH’ deputy’s TH
initials

UT Batehinid rdeelved in
central Clerk's Office raling depaty nts



General made pursuant to his authority under the INA”); Avramenkov v.INS, 99 F.Supp.2d 210,
214 (D. Conn. 2000) (Section 1252(a)(2)(B){ii) “is not limited to final orders of deportation”);
Curri v. Reno, 86 F,Supp.2d 413, 419 (D.N.J. 2000) (same). But see Talwar v. INS, No. 00 Civ.
1166 JSM, 2001 WL 767018 (S.D.N.Y. July 9, 2001) (holding that Section 1252(a)(2)(B)(ii) is
limited to orders of removal); Shanti v. Reno, 36 F.Supp.2d 1151, 1157-60 (D. Minn. 1999)
(same).

B. The Discretionary Nature of the INS’s Actions

Having concluded that Section 1252(a)(2)(B)(ii) divests the Court of jurisdiction to hear
the case if the INS’s actions were discretionary, the Court now turns to whether the actions in this
case were in fact discretionary. Plaintiff argues that the INS’s actions under Section 1155 were
factual determinations, not discretionary ones. Plaintiff argues that the INS’ decision was not
discretionary because the INS revoked Plaintiff's visa petition based on its factual finding that
Plaintiff committed marriage fraud. This factual finding, according to Plaintiff, nullifies the INS’
discretion.

Section 1155 provides that “[t]he Attorney General may, at any time, for what he deems
to be good and sufficient cause, revoke the approval of any petition approved by him under
section 1154 of this title.” 8 U.S.C.A. § 1155. The plain language of this provision gives the
Attorney General discretion to revoke a petition when he deems it appropriate based on good and
sufficient cause. “[N]o strict standards exist to determine when ‘good and sufficient cause’ is
present.” Systronics Corp. v. INS, 153 F.Supp.2d 7, 12 (D.D.C. 2001).

Plaintiff suggests that 8 U.S.C. § 1154(c) provides the Court with a standard to review

decisions under Section 1155. Section 1154(c) provides that “no petition shall be approved if. . .



between Mr. El-Khader and Ms. Muna was a sham and was entered into for the purpose of
procuring an immigration benefit.” The INS concluded that El-Khader failed to provide any
evidence establishing that his marriage was bona fide. Perryman noted “[e]ven though the
marriage was an arranged marriage, Mr. El-Khader failed to establish any commitment to his
marital union other than filing for adjustment of status.” Accordingly, the INS revoked his
petition.

Plaintiff did not file an administrative appeal of Perryman’s decision. Plaintiff now seeks
this Court’s review of the INS’ decision under the Administrative Procedure Act.

ANALYSIS
IL. LEGAL STANDARD

On November 14, 2002, at the Court’s direction, Plaintiff filed a memorandum with the
Court arguing that he had exhausted his administrative remedies and was properly before the
Court. The INS subsequently responded to the Plaintiff's memorandum in what amounts to a
motion to dismiss the case for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).
Defendant argues that the Court does not have jurisdiction to hear this case, and even if it did,
Plaintiff failed to exhaust his administrative remedies thus he is not properly before the Court.
Plaintiff thereafter responded to the motion.

The standard for Rule 12(b)(1) and Rule 12(b)(6) motions is similar. The Court “must
accept the complaint’s well-pleaded factual allegations as true and draw reasonable inferences
from those allegations in the plaintiff's favor.” Transit Express, Inc. v. Ettinger, 246 F.3d 1018,
1023 (7" Cir. 2001). As the Seventh Circuit recently noted, “if the complaint is formally

sufficient but the contention is that there is in fact no subject matter jurisdiction, the movant may


On April 1, 1998, Ameritrust Mortgage Corporation filed an Immigrant Petition for Alien
Worker on behalf of Plaintiff seeking residence for the Plaintiff in the United States pursuant to
the Immigration and Nationality Act. Ameritrust was El-Khader’s employer. On August 18,
1998, the INS approved Ameritrust’s petition on behalf of El-Khader. Once he obtained this
approval, he was eligible to apply for permanent resident status in the United States.

On September 4, 1998, Plaintiff filed an application for permanent residence status in the
United States with the INS’s Nebraska Service Center based on Ameritrust’s approved petition.
This application is known as an “adjustment of status application.” On February 3, 2000, the
Nebraska Service Center informed Plaintiff that it was transferring his application to the Chicago
INS “in order to speed processing.” The Chicago INS thereafter instituted an investigation to
determine whether El-Khader was qualified for the permanent resident visa.

As part of its investigation, the INS concluded that Plaintiff's marriage to Ms. Muna was
a sham, On December 5, 2001, the INS informed Plaintiff that it intended to revoke the
approved petition Ameritrust received on Plaintiff's behalf on the basis that El-Khader had
previously entered into a marriage for the purpose of evading the immigration laws. The INS
also denied his accompanying adjustment of status application on the same day. On May 14,
2002, Ameritrust and Plaintiff responded to the INS’s notice of its intent to revoke his visa
petition arguing that his marriage was legitimate.

On November 1, 2002, Defendant Perryman informed El-Khader that his visa petition
would be revoked. Perryman informed El-Khader that the INS was revoking the Petition for
Skilled Worker or Professional filed on El-Khader’s behalf pursuant to Section 205.2 of the

Immigration and Naturalization Act because the INS’s investigation revealed that “the marriage



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
HANI EL-KHADER, )
) Ai;
Plaintiff, )
)
v. ) No. 02 C 984
)
BRIAN PERRYMAN, District Director )
of the Immigration and Naturalization Service, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge

Plaintiff has filed a third amended complaint seeking judicial review of the decision to
revoke a visa petition filed on his behalf. Defendant seeks to dismiss the complaint on the
grounds that the Court does not have jurisdiction to consider the claim. Defendant further argues
that Plaintiff must exhaust his administrative remedies before proceeding before this Court, and
that he has failed to do so. For the reasons set forth below, Defendant’s motion to dismiss is
granted.

FACTUAL BACKGROUND

Plaintiff Hani E]-Khader is an applicant for permanent resident status with the
Immigration and Naturalization Service (“INS”). Defendant Brian Perryman is the District
Director of the INS office in Chicago, Illinois where El-Khader’s case is pending.

On May 9, 1997, Plaintiff married Nadia Muna. Based upon his marriage, he filed a
petition for permanent residence status in the United States. On October 27, 1998, El-Khader

and Muna divorced. In light of the divorce, the INS denied his petition on May 13, 1999.

aS

Q