Robert Polfliet v. Kenneth Cuccinelli

PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-2310 ROBERT JOHN POLFLIET; MASATO KIMIKI, Plaintiffs - Appellants, v. KENNETH T. CUCCINELLI, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services; WILLIAM P. BARR, Attorney General of the United States, Defendants - Appellees. Appeal from the United States District Court for the District of South Carolina, at Orangeburg. J. Michelle Childs, District Judge. (5:16-cv-03358-JMC) Argued: January 31, 2020 Decided: April 7, 2020 Before NIEMEYER, WYNN, and FLOYD, Circuit Judges. Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Niemeyer and Judge Floyd joined. ARGUED: Bradley Bruce Banias, WASDEN BANIAS LLC, Mount Pleasant, South Carolina, for Appellant. Theo Nickerson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, William C. Peachey, Director, William C. Silvis, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. WYNN, Circuit Judge: Section 242 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252(a)(2)(B)(ii), deprives courts of jurisdiction to review decisions committed to agency discretion. Section 205 of the INA, 8 U.S.C. § 1155, specifies that the “Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him.” This appeal presents the question of whether that language in § 1155 confers sufficient discretion to preclude judicial review of a visa petition revocation under § 1252(a)(2)(B)(ii)’s jurisdictional bar. Specifically, Plaintiffs-Appellants Robert Polfliet and his stepson, Masato Kimiki, appeal the district court’s dismissal of their complaint alleging that the United States Citizenship and Immigration Services (“USCIS”) 1 unlawfully revoked their I-130 family visa petition. The district court dismissed the complaint, concluding that § 1155 is discretionary and it therefore lacked jurisdiction to review the agency’s revocation due to § 1252(a)(2)(B)(ii). We hold that § 1155 is discretionary. Accordingly, we affirm. I. Polfliet is a United States citizen. His stepson, Kimiki, is a Japanese national and citizen. Polfliet met Kimiki’s mother while stationed in Japan with the United States Air Force. In 2000, Polfliet was convicted by a general court-martial of Possession of Child 1 The named Appellees in this case are Kenneth T. Cuccinelli, in his official capacity as Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services, and William P. Barr, in his official capacity as Attorney General of the United States. Because Appellants’ complaint relates to an action of USCIS, we refer to Appellees collectively as “USCIS.” 2 Pornography, 18 U.S.C. § 2252A, in violation of the Uniform Code of Military Justice. With knowledge of the conviction, Kimiki’s mother married Polfliet. Generally, a United States citizen who wants to live with an alien relative in the United States may file an I-130 visa petition on that relative’s behalf. See 8 U.S.C. § 1154. Approval of such a petition is important because it allows the relative to apply for lawful permanent ...

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