Federal Court Rejects USCIS Claim That Decision to Revoke a Previously Approved Employment-Based Immigrant Visa Petition Is Not Reviewable in Zamana v. Renaud

In Zamana v. Renaud, the plaintiff challenged the revocation of an approved Form I-140 employment-based immigrant visa petition in the U.S. District Court for the Southern District of Ohio. USCIS initially approved the petition, and then a month later issued a Notice of Intent to Revoke and ultimately revoked the approval. USCIS claimed that the petition was improperly approved in the first instance and the revocation was based upon the alleged erroneous decision.

Plaintiff brought a lawsuit under the Administrative Procedure Act alleging that the agency's decision to revoke Zamana's petition was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C §§ 701-706.53.  USCIS filed a motion to dismiss arguing that, because the agency's decision to revoke its approval of Zamana's petition was discretionary, under 8 U.S.C. § 1155, this Court has no jurisdiction to review it. 8 U.S.C. § 1252(a)(2)(B)(ii).

The court observed that a contrary finding would permit USCIS to evade judicial review of non-discretionary decisions by first approving the petition, then revoking the approval a few weeks later. Citing Jomaa v. United States, 940 F.3d 291 (6th Cir. 2019), the court held that non-discretionary decisions “are within our purview even where they underlie determinations that are ultimately discretionary.”