CA11 on Standing, Jurisdiction (I-140 Revocation) - Kurapati v. USCIS

"Sunil Kurapati and his wife Bharathi Mallidi, natives and citizens of India, appeal from the district court’s dismissal for lack of subject matter jurisdiction of their complaint challenging the U.S. Citizenship and Immigration Services’ (USCIS) revocation of I-140 visa petitions filed on Kurapati’s behalf. On appeal, Kurapati and Mallidi challenge the district court’s conclusion that, because Kurapati was a beneficiary, instead of the petitioner, of an I-140 visa petition, he and Mallidi lacked standing to bring their claims. They also argue that the district court erred as a matter of law in concluding that the discretionary decision bar of 8 U.S.C. § 1252(a)(2)(B)(ii) divested the court of jurisdiction because they were raising a question of law, specifically whether USCIS adhered to its pre-revocation notice regulations. ...

We agree that a beneficiary of an I-140 visa petition who has applied for adjustment of status and has attempted to port under § 1154(j) “fall[] within the class of plaintiffs” Congress has authorized tochallenge the denial of that I-140 visa petition. ...

Therefore, Kurapati falls within the zone of interests and may challenge the I-140 visa petition revocation. ...

Regardless of whether the decision to revoke a previously approved I-140 visa petition is a discretionary determination, the district court erred in dismissing Kurapati and Mallidi’s complaint for lack of subject matter jurisdiction under § 1252(a)(2)(B)(ii), as the complaint raises a question of law. Kurapati and Mallidi are not directly challenging the decision to revoke Kurapati’s former employer’s I-140 visa petitions filed on his behalf. Instead, they are arguing that: (1) in light of § 1154(j), the regulations should be construed to require that beneficiaries of I-140 visa petitions are to be served with the NOIR and must be given the opportunity to be heard prior to USCIS making the decision to revoke; and thus, (2) USCIS’s failure to do so here was erroneous. USCIS’s argument that the regulations do not require notice and an opportunity to be heard goes to the merits of Kurapati and Mallidi’s claim, not to whether they are raising a question of law over which the district court has jurisdiction. Therefore, the district court erred in dismissing the complaint as barred by § 1252(a)(2)(B)(ii). Accordingly, we vacate the district court’s grant of the motion to dismiss and remand for further proceedings.  VACATED AND REMANDED." - Kurapati v. USCIS, Sept. 23, 2014.  [Hats off to Jeffrey A. Devore!]