Green and Spiegel Attorneys, Stephen Antwine and Brian Halliday, earned a significant litigation victory in the Southern District of Ohio, arguing that USCIS’ revocation of a foreign national’s residency petition was improperly decided and subject to judicial review. Immigration practitioners have continuously battled against USCIS’ denial of pathways to judicial review in revocation case. In a substantial win, a District Court Judge has agreed with the foreign national that USCIS had no discretion to revoke the approved petition.

USCIS argued that the District Court lacked jurisdiction to hear the case, contending that the agency’s decision to revoke the approved petition was “fully discretionary” and outside the reach of judicial review. The District Court not only disagreed with the agency’s arguments, but went further, offering a heavy rebuke of the agencies denying the government’s motion to dismiss, and found that USCIS lacked authority to make any such determination.

The case arises from the revocation of an approved petition for an employment based green card. The agency’s decision to revoke the petition was based on their concerns that the petitioning employer was in fact not the “actual intended employer.” These suspicions relied entirely on information that petitioners had provided to the Department of Labor (DOL). The District Court made clear in denying Defendant’s motion to dismiss, that not only was their reliance on the DOL information in making such a determination “nondiscretionary” but that the agency had reached well outside their own purview into areas committed solely to the DOL’s authority.

The court relying on a previous Sixth Circuit decision held that District Courts retain subject matter jurisdiction “[w]here a nondiscretionary decision ‘underlie[s] determinations that are ultimately discretionary.’” Notably, the District Court order remarked on additional arguments raised by the Plaintiffs, calling them “embarrassing for USCIS,” before ordering further briefing on the matter. The case now proceeds for further briefing, as the District Court decision did not reach a decision on the merits as to whether the agency’s decision was arbitrary and capricious in violation of the APA.

Should you need assistance with immigration-based federal court litigation, please contact Stephen Antwine, Esq. at santwine@gands-us.com or (215) 395-8959.

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