In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-3521

JOHN DOE,

Plaintiff-Appellant,

v.

KEVIN K. MCALEENAN,

Acting Secretary of Homeland Security, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 17 C 4190 — John Robert Blakey, Judge.

____________________

ARGUED MARCH 28, 2019 — DECIDED JUNE 17, 2019

____________________

Before RIPPLE, MANION, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Plaintiff John Doe, an Iranian national, petitioned for conditional permanent residency in 2013. 

He used the EB-5 admission category, which offers visas for

immigrants who invest in new job-creating enterprises. The 

United States Citizenship and Immigration Service (“USCIS”

or “agency”) initially approved Doe’s petition but revoked 

its approval roughly two years later. 
2 No. 17-3521

Doe sought judicial review of the agency’s actions under 

the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et 

seq. But the district court concluded that Congress had

stripped its jurisdiction to review discretionary revocations 

of visa petitions and dismissed Doe’s suit. See 8 U.S.C. 

§ 1252(a)(2)(B)(ii).

We affirm. Doe relies on the narrow jurisdictional gateway offered by Musunuru v. Lynch, 831 F.3d 880 (7th Cir. 

2016). In Musunuru we held that § 1252(a)(2)(B)(ii) doesn’t

preclude judicial review of purely procedural rulings during 

the adjudication of a visa petition. 831 F.3d at 887–88. But the 

ruling at issue here wasn’t procedural. Doe is challenging 

the agency’s substantive decision-making. And he cannot 

evade a jurisdiction-stripping statute by repackaging his

substantive complaints as procedural objections. 

I. Background

Congress allocates visas under the EB-5 admission category for “qualified immigrants seeking to enter the United 

States for the purpose of engaging in a new commercial 

enterprise.” 8 U.S.C. § 1153(b)(5)(A). To qualify, an alien 

must show that he “has invested ... or[] is actively in the 

process of investing” the minimum amount of capital and 

that his investment “will ... create full-time employment for 

not fewer than 10 United States citizens or aliens lawfully 

admitted.” Id. The default capital requirement is $1 million, 

but $500,000 suffices for a project located in a “targeted 

employment area.” Id. § 1153(b)(5)(C)(ii); 8 C.F.R. 

§ 204.6(f)(2). 

An alien seeking an EB-5 visa must file a petition using 

Form I-526. 8 C.F.R. § 204.6(a). If the petition is approved, he 
No. 17-3521 3

receives a conditional form of permanent-resident status. 

8 U.S.C. § 1186b(a)(1). But the USCIS “may, at any time, for 

what [it] deems to be good and sufficient cause,” revoke an 

approved I-526 petition after providing notice and an opportunity to respond. See id. §§ 1155, 1154(a)(1)(H); 8 C.F.R. 

§ 205.2. The agency’s final revocation notice must be in 

writing and “explain[] the specific reasons for the revocation.” 8 C.F.R. § 205.2(c). 

John Doe submitted his petition on June 7, 2013. Doe and

23 other investors each deposited $500,000 in Golden Assisted Living EB-5 Fund, LLC, a “new commercial enterprise” 

under 8 C.F.R. § 204.6(j)(1). The enterprise, controlled by 

Attorney Taher Kameli, loaned the pooled $12 million to 

Golden Memory Care, Inc., which planned to construct an 

assisted-living center in Lake Barrington, Illinois. In August 

2013 the USCIS issued Doe a Request for Evidence seeking 

additional information about the project. Doe’s response 

notified the agency that the project had been “moved from 

Lake Barrington, Illinois to Fox Lake, Illinois, ... due to 

several unforeseen issues.” He claims that he provided an 

updated business plan and an Illinois state agency’s letter 

certifying Fox Lake as a targeted employment area.

The USCIS approved Doe’s petition on May 8, 2014, and 

Doe requested a visa through the United States Consulate in 

Abu Dhabi. But in January 2015, the State Department 

reviewed Doe’s petition and returned it to the USCIS for 

review and possible revocation. The USCIS issued a Notice 

of Intent to Revoke on January 11, 2016. The agency explained that revocation is appropriate where “material 

changes ... , if unexplained and unrebutted, would warrant a 

denial of the approved visa petition.” The notice identified 
4 No. 17-3521

two material changes. First, “[s]ubsequent to approving the 

petition, [the] USCIS discovered information that contradict[ed] evidence in the record”—namely, that the project 

had moved to Fox Lake. The agency asserted that Doe hadn’t 

provided a business plan or targeted employment area 

certification for the new location. Second, the record contained no evidence that the Fox Lake center was under 

construction or would create ten jobs. 

Doe disputed the agency’s characterization. He had already notified the USCIS that the project had been relocated 

to Fox Lake, so the agency couldn’t have “discovered” that 

fact after approving his petition. Doe claimed to have provided each piece of evidence the USCIS said was missing: an 

updated business plan, a targeted employment area certification, and a job-creation report. Finally, he challenged the 

legal basis for the agency’s “material change” standard. 

Unmoved, the agency issued a Notice of Revocation on 

March 31, 2016. But it erroneously referenced a different 

EB-5 project, also controlled by Kameli, that had relocated 

from Waukegan, Illinois to West Dundee, Illinois. Doe 

notified the USCIS of its error, and the agency issued a 

corrected document on June 7.

The corrected Notice of Revocation explained that Doe, 

as petitioner, bears the burden of establishing eligibility 

under the EB-5 program. And a petitioner’s eligibility must

be assessed based on his initial I-526 petition. So if he “asserts eligibility under a materially different set of facts that 

were not the basis for eligibility when the petition was filed, 

he or she must file a new petition.” (Emphasis added.) Here, 

Doe’s initial petition was based on a project in Lake Barrington. The USCIS again asserted that Doe “did not provide any 
No. 17-3521 5

updates to the business plan or other evidence ... that reflected the change of the location.”1 The agency acknowledged Doe’s response to the notice, in which he provided 

evidence supporting the Fox Lake project’s EB-5 qualifications. But it reiterated that “the record did not include any of 

that evidence ... when the petition was approved.” The 

agency determined, “based on the entire record of proceeding,” that Doe was ineligible for an EB-5 visa. The USCIS 

advised Doe of his right to an administrative appeal under 

8 C.F.R. § 205.2(d). 

Rather than appeal the revocation, Doe filed a complaint 

in the Northern District of Illinois seeking judicial review 

under the APA on two grounds. First, he alleged that the 

USCIS committed “legal error” by citing inaccurate information and denying him “a meaningful opportunity to 

respond” to the Notice of Intent to Revoke. Second, he 

claimed that the USCIS “engaged in improper substantive 

rule-making” by using a “material change” standard that 

hadn’t undergone notice and comment.

The government moved to dismiss under Rule 12(b)(1) of 

the Federal Rules of Civil Procedure, arguing that §§ 1155 

and 1252(a)(2)(B)(ii) bar judicial review of the revocation. 

Doe responded that his complaint challenged the agency’s 

compliance with its mandatory procedures, not the substance of its decision, so the court retained jurisdiction under 

Musunuru.

 1 The agency failed to delete one of its erroneous references to the 

Kameli-controlled project that had relocated from Waukegan to West 

Dundee. In fact, the March and June documents are identical aside from 

the town names. 
6 No. 17-3521

The district judge granted the motion, explaining that 

§ 1252(a)(2)(B)(ii) precludes judicial review of a discretionary 

revocation of an approved visa petition. While Musunuru

creates a narrow exception for purely procedural challenges, 

“a simple review of the complaint” revealed that Doe’s 

claims were “not procedural but substantive.” Doe appeals, 

again relying on Musunuru. 

II. Discussion

We review a dismissal for lack of subject-matter jurisdiction de novo, drawing all reasonable inferences in favor of 

the plaintiff. Bultasa Buddhist Temple of Chi. v. Nielsen, 

878 F.3d 570, 573 (7th Cir. 2017).

Under § 1252(a)(2)(B)(ii), 

no court shall have jurisdiction to review ... 

any ... decision or action of the Attorney General or the Secretary of Homeland Security the 

authority for which is specified under this subchapter to be in the discretion of [that official], 

other than the granting of relief under section 

1158(a) of this title.

In El–Khader v. Monica, we held that revocations under 

§ 1155 are discretionary “decision[s] or action[s]” within the 

meaning of § 1252(a)(2)(B)(ii). 366 F.3d 562, 567–68 (7th Cir. 

2004). 

The statute’s plain language compelled that conclusion: 

The Secretary, acting through the USCIS, “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.” § 1155. It’s hard to imagine a clearer grant 

of discretion. The statute says the Secretary “may” revoke a 
No. 17-3521 7

previously approved visa petition “at any time” and for any

reason he “deems to be good and sufficient cause.” This 

language commits the revocation decision to the agency’s 

sole and unreviewable discretion; a court has no standard by

which to test “good and sufficient cause.” El–Khader, 

366 F.3d at 567. 

We have repeated that analysis in subsequent cases. See 

Holy Virgin Prot. Cathedral of the Russian Orthodox Church 

Outside Russia v. Chertoff, 499 F.3d 658, 661 (7th Cir. 2007)

(explaining “that decisions to revoke visas previously approved under § 1154 are unequivocally committed to [agency] discretion”). And we recently reiterated that a plaintiff 

“cannot avoid the jurisdictional bar ... simply by raising a 

claim under ... section [706] of the APA. Regardless of the 

underlying merits of the decision, we do not have jurisdiction to review a discretionary revocation under § 1155.”

Bultasa Buddhist Temple, 878 F.3d at 574 (citation omitted).

The USCIS revoked Doe’s petition under § 1155. And a

petition for conditional permanent residency under the EB-5 

program is approved “under section 1154 of this title.” See 

§ 1154(a)(1)(H). Doe concedes as much. So under 

§ 1252(a)(2)(B)(ii) we lack jurisdiction to review the agency’s 

revocation of his I-526 petition. 

However, jurisdiction-stripping statutes don’t prohibit

judicial review of every dispute between the USCIS and 

applicants for immigration benefits. In Calma v. Holder, we 

considered § 1252(a)(2)(B)(i), which bars judicial review of a

defined set of immigration-agency actions, including removal proceedings. 663 F.3d 868 (7th Cir. 2011). We explained 

that “there are identifiable circumstances under which a 

critical procedural step in a removal proceeding ... lies within 
8 No. 17-3521

our jurisdiction even though we are barred from evaluating 

the [agency’s] ultimate decision.” Id. at 876–77 (emphasis 

added). But we lack jurisdiction if “it is impossible to distinguish the challenged action from the determination on the 

merits.” Id. at 877. In other words, “judicial review is foreclosed ... if the agency’s rationale for denying the procedural 

request also establishes the petitioner’s inability to prevail on 

the merits of his underlying claim.” Id. at 876.

Doe rests his entire case on Musunuru v. Lynch, in which 

we imported Calma’s reasoning to the § 1252(a)(2)(B)(ii)

context. Srinivasa Musunuru had a temporary work authorization when he sought permanent residency. 831 F.3d at

882–83. His employer, Vision Systems Group, filed a visa 

petition and labor certification on his behalf. The USCIS 

approved both. Id. at 884. Four years later Musunuru left 

Vision Systems for Crescent Solutions, which filed a replacement petition. The agency approved that petition too. 

But when Vision Systems’ principals pleaded guilty to 

unlawfully hiring aliens, the USCIS revoked the company’s 

labor certifications—including Musunuru’s. Id. at 885. The 

agency mailed a Notice of Intent to Revoke to the defunct 

company, so Musunuru never saw it. When Vision Systems

didn’t respond, the agency notified Crescent Solutions that 

“Musunuru’s work experience with [Vision Systems] was 

not genuine[,] and therefore the approval of Crescent Solutions’ [visa] petition ... should be revoked.” Id.

Musunuru submitted rebuttal evidence but the agency 

denied his visa petition. He moved for reconsideration, 

arguing that he should have received notice and an opportunity to respond to the notice mailed to Vision Systems. The 

USCIS concluded that Musunuru lacked standing to bring 
No. 17-3521 9

that challenge because as the beneficiary of the petition, rather 

than the petitioner himself, he was not an “affected party” 

entitled to notice under 8 C.F.R. § 103.3(a)(1)(iii)(B).

Musunuru brought an APA suit. The USCIS argued that 

§§ 1155 and 1252(a)(2)(B)(ii) precluded judicial review. The 

district court found jurisdiction but dismissed the suit on the 

merits.

The agency repeated its jurisdictional argument on appeal. Relying on Calma, we rejected it:

[The] USCIS’s rationale for denying Musunuru 

these procedures was that he is not the petitioner. That rationale, by itself, does not prevent Musunuru from prevailing on the merits 

of his underlying claim, which is that the I-140 

petition filed on his behalf by [Vision Systems]

was not fraudulent and should not have been 

revoked. Therefore, judicial review is not foreclosed. In other words, [the] USCIS’s rationale 

concerns only the regulatory procedures and 

not the merits of its decision to revoke the petition. Musunuru does indeed contend that he 

can prevail on the merits of his underlying 

claim ... , but we are not reviewing that contention. On the contrary, we are reviewing 

[the] USCIS’s decision to deny him the opportunity to challenge the revocation. Ergo, we 

have jurisdiction to review Musunuru’s claims.

Musunuru, 831 F.3d at 887–88. Two other circuits reached

similar conclusions when confronting this specific procedural issue. See Mantena v. Johnson, 809 F.3d 721, 729 (2d Cir. 
10 No. 17-3521

2015); Kurapati v. U.S. Bureau of Citizenship & Immigration 

Servs., 775 F.3d 1255, 1262 (11th Cir. 2014).

In sum, we’ve recognized a narrow jurisdictional path for 

challenging purely procedural rulings. In Calma we asserted 

jurisdiction over discrete “procedural step[s].” 663 F.3d at 

877 (citing as examples “the denial of a continuance ... , the 

denial of a motion to reconsider, a refusal to remand, or a 

refusal to reopen a case”). So we can review the immigration 

agency’s resolution of a specific procedural dispute during 

an administrative adjudication. See Musunuru, 831 F.3d at 

888. But even then we lack jurisdiction if the rationale underlying the agency’s procedural ruling would also resolve the 

merits of the petitioner’s application. Id. at 887 (quoting 

Calma, 663 F.3d at 876).

Calma and Musunuru do not, however, open the door to 

challenging discretionary revocations on nominally “procedural” grounds. Courts may review identifiable procedural 

rulings that don’t implicate a petition’s merits. But a plaintiff 

cannot sidestep § 1252(a)(2)(B)(ii) by artfully framing a 

challenge to the agency’s substantive decision as a procedural claim. Imagine the USCIS asks a visa applicant to 

verify a fact supporting his EB-5 petition. The applicant

responds with a self-prepared affidavit. Unconvinced, the

agency revokes the petition anyway. The alien might frame 

an APA complaint in “procedural” terms, alleging that the 

USCIS violated its own regulations by failing to consider his 

affidavit. But at bottom that’s a substantive challenge to the 

agency’s weighing of the evidence, which Congress has 

immunized from judicial scrutiny.

Doe alleges that the USCIS violated several regulations

governing the revocation process. See 8 C.F.R. §§ 205.2(b)–
No. 17-3521 11

(c), 103.2(b)(16)(i). He also cites a pair of agency opinions 

restating the regulatory language. See In re Arias, 19 I. & N. 

Dec. 568 (BIA 1988); In re Estime, 19 I. & N. Dec. 450 (BIA 

1987). The regulations address the basic notice-and-response

requirements that the USCIS must follow when deciding 

whether to revoke a visa petition. Everyone agrees that the 

agency formally complied with those regulations. It gave

Doe an opportunity to rebut the Notice of Intent to Revoke, 

and it provided a written explanation of its reasoning in the 

Notice of Revocation.

Doe concedes that the USCIS followed this procedural 

framework. He maintains that his opportunity for response 

was an empty formality: by incorrectly stating the facts and 

the law, the agency denied him a “legitimate opportunity to 

challenge” the revocation. He also argues that the language 

used in the Notice of Intent to Revoke and Notice of Revocation betrays underlying procedural violations. As he sees it, 

even a facial review of the agency’s papers would reveal that 

the USCIS disregarded its own procedures. 

But § 1252(a)(2)(B)(ii) bars us from combing the substance 

of the agency’s decision in search of a lurking procedural

violation. To overcome the jurisdictional bar, Doe has repackaged a set of substantive complaints about the merits of 

the agency’s action as a set of procedural violations. Unlike 

in Musunuru where the USCIS denied the petitioner “the 

opportunity to challenge the revocation,” the agency did not 

“deny[] [Doe] ... procedures,” such as notice, an opportunity 

to respond, or an administrative appeal. See 831 F.3d at 887–

88 (emphasis added). Nor did it make an identifiable procedural ruling that might arguably qualify for review under 

Musunuru. The USCIS simply evaluated the “entire record of 
12 No. 17-3521

proceeding” in Doe’s case and revoked his petition for what 

it deemed “good and sufficient cause.”

For all his “procedural” framing, what Doe really wants is 

judicial review of the revocation under the APA’s arbitraryand-capricious standard. See 5 U.S.C. § 706(2)(A). Indeed, his 

arguments mirror the factors we consider when applying 

that standard of review. See Motor Vehicle Mfrs. Ass’n of U.S., 

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(examining whether the agency “offered an explanation ... 

that runs counter to the evidence ... or is so implausible that 

it could not be ascribed to a difference in view or the product 

of agency expertise”). We’ve already established that courts 

cannot use that standard to evaluate discretionary revocations under § 1155. See Bultasa Buddhist Temple, 878 F.3d at 

574 (citing El–Khader, 366 F.3d at 565).

Taken to its logical conclusion, Doe’s approach would 

eviscerate § 1252(a)(2)(B)(ii). Any petitioner dissatisfied with 

a final agency decision could secure judicial review by 

alleging that the agency committed a procedural violation by 

overlooking favorable evidence. Musunuru doesn’t stand for 

that proposition, and we won’t adopt it here. Doe’s complaint challenges the agency’s substantive decision-making, 

not its application of a procedural rule during administrative 

adjudication. Merely citing the Code of Federal Regulations 

doesn’t convert a substantive challenge into a procedural 

one. The district court’s dismissal for lack of jurisdiction is 

AFFIRMED.