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Immigration law prevents the revocation of a type of visa after it has been approved, unless the beneficiary gets notice of the revocation before arriving in the United States, a federal appeals court has ruled. Addressing a case of first impression in Firstland International, Inc. v. U.S. Immigration and Naturalization Service, 03-6139, the 2nd U.S. Circuit Court of Appeals, in a ruling by Judge Jose A. Cabranes, said the former Immigration and Naturalization Service did not have the authority to revoke the visa of Chinese immigrant Shao Zeng Chai. The case turned on the question of judicial review. The renamed Bureau of Citizenship and Immigration Services claimed that the revocation fell within a category of decisions in which judicial review is precluded. The government argued that, under 8 U.S.C. �1252(a)(2)(B)(ii), courts may not review the decision to revoke a previously approved visa application because the revocation was among those decisions made “in the discretion of the Attorney General,” who delegates revocation decisions to the agency. Chai is described as the president of Firstland, a subsidiary of the Shanghai Yangzhang Shiguang Lighter Co. in China. He arrived in 1997 on a type of visa for managers and executives who are temporarily relocated to the United States. Two years later, Firstland filed an immigrant visa application on behalf of Chai as a “multinational executive or manager” — a visa that is considered a stepping stone on the way to permanent residency. The INS granted the petition in March 2000, and a month later Chai applied for permanent resident status. But in October of that year, the INS informed Firstland it was revoking the visa petition — in effect, the visa itself — because the record did not clearly demonstrate that Chai had been and would be “employed in a primarily managerial or executive capacity.” The decision did not spell out any dispute over his duties. The petition was revoked in 2001. Firstland and Chai brought suit challenging the revocation in the Eastern District of New York. Judge Allyne R. Ross dismissed the case for lack of subject matter jurisdiction, but the 2nd Circuit reversed. “No court of appeals has addressed the argument raised by plaintiffs — that Section 1155, by its terms, does not permit revocation of a previously approved visa petition where the beneficiary is already inside the United States,” Judge Cabranes wrote. The statute, he said, provides that the attorney general may for “good and sufficient cause” revoke the approval of a petition as long as notice is given to the beneficiary “before such beneficiary commences his journey to the United States.” Although another section “strips the federal courts of jurisdiction to review certain discretionary decisions of the Attorney General,” he went on, the statute establishes notice requirements “and courts retain jurisdiction to review whether those requirements have been met.” Because �1155 did not authorize the decision to revoke Chai’s petition, he said, “we conclude that that decision was not ‘in the discretion of the Attorney General,’ and that Section 1252 did not divest the District Court of jurisdiction to hear plaintiffs’ claims.” The court remanded the case to Ross to consider the merits of Chai’s claim. The case attracted some outside attention. Colleen L. Caden and Michael Patrick of Fragoman, Del Ray, Bernsen & Loewy in New York filed an amicus brief on behalf of the American Council on International Personnel and the U.S. Chamber of Commerce. It argued that the attorney general should be able to revoke petitions but only for “good and sufficient” cause. “The long term effect of the decision is obviously going to make immigrant visa petitions irrevocable because there is no way to satisfy the notice requirement in the statute,” Caden said in an interview after the decision. “The beneficiary of the petition is already present in the United States.” Patrick predicted that the decision will affect very few cases. Judges Amalya Kearse and Robert Katzmann joined in the opinion. Alan Lee represented Firstland and Chai. Assistant U.S. Attorneys F. Franklin Amanat, Varuni Nelson and Steven J. Kim and Special Assistant U.S. Attorney Dione M. Enea represented the government.

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