Spencer Enterprises, Inc. v. United States

Opinion by D.W. NELSON; Dissent by Judge BREEZER.

Appellants Spencer Enterprises, Inc. (“Spencer”), and Li-Hui Chang brought suit in the district court to challenge the denial of an immigrant investor visa to Chang by the Immigration and Naturalization Service (“INS”). 1 In applying for the visa, Chang had submitted a business plan developed in cooperation with Spencer, but *686 INS determined that the application lacked credibility and consequently denied the visa petition. We write primarily to confirm the unchallenged assumption of the parties that the district court had jurisdiction in this matter.

1. Factual and Procedural Background

The immigrant investor program, or EB-5 program, established by the Immigration and Nationality Act (“INA”), allows aliens to receive permanent resident status upon the investment of a specified amount of capital and the creation of at least ten full-time jobs in the United States. 8 U.S.C. § 1153 (b)(5). Ordinarily, the alien must invest $1,000,000; however, if the investment is made in a “targeted employment area” with an unemployment rate of 1.5 times the national average, only $500,000 need be invested. Id.; see also 8 C.F.R. § 204.6…

dissenting.

It is well established that the decision to grant or deny a visa petition is discretionary. The opinion of the court filed today is the first to hold that 8 U.S.C. § 1252 (a)(2)(B)(rL) does not bar federal court jurisdiction over a discretionary decision of the Attorney General. The court’s opinion improperly holds that we have jurisdiction. In doing so, the court creates an inter-circuit and intra-circuit split. In addition, the court fails to give due deference to the Executive Branch in the immigration context.

I respectfully dissent.

I

The court’s opinion relies on general federal question jurisdiction under 28 U.S.C. § 1331 , and applies the Administra *695 tive Procedures Act’s (APA) standards of judicial review under 5 U.S.C. § 706 , to affirm the district court’s judgment.

General federal question jurisdiction under 28 U.S.C. § 1331 , however, is not available where judicial review is precluded by statute. See Califano v. Sanders, 430 U.S. 99, 105 , 97 S.Ct. 980 , 51 L.Ed.2d 192 (1977). In addition, application of the APA is not appropriate where a statute precludes judicial review. 5 U.S.C. § 701 (a)(1). Judicial review of this petition is precluded by…