Thursday, May 11, 2006

Jilin Pharmaceutical: Federal Courts Can't Review A Visa Revocation

Jilin Pharmaceutical USA, Inc. v. Chertoff
No. 05-2788
May 10, 2006

Due to the harsh Real ID Act that Congress recently passed, federal courts in the Third Circuit have no power to review a visa revocation by immigration officials, regardless of how unfair the visa revocation might have been.

The Third Circuit distinguished between federal lawsuits to challenge when immigration authorities deny a visa application. Federal courts can still review those rulings. But they cannot review anymore visa revocations (when the authorities grant a visa then go back and revoke it).

The basis for this is that in the Real ID Act, Congress in a very controversial decision made certain types of rulings unreviewable by federal courts. The official section is 8 U.S.C. section 1252(a)(2)(B)(ii). It prevents judicial review of almost all decisions that are within the discretion of the Attorney General.

The Third Circuit already ruled in Soltane v. US Dept. of Justice, 381 F.3d 143 (3d Cir. 2004), that the federal courts can review a ruling by immigration authorities not to grant a visa.

Here, though, the Third Circuit ruled that a visa revocation falls within the Attorney General's discretion so federal courts cannot review it. The Third Circuit agreed with the ruling of the Seventh Circuit in El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004) and disagreed with the Second Circuit in Firstland International, Inc. v. U.S. INS, 377 F.2d 127 (2d Cir. 2004). Sometimes when the circuit courts are split on an issue, the U.S. Supreme Court will take a case that raises the issue to clarify what is commonly known as a circuit split. Time will tell whether the split in the circuits gets resolved one way or the other.


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