United States v. Samuel Acosta

1We will refer to the Ginters by their first names for clarity.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1653
___________
Viktors Ginters; Rochelle Ginters, *
*
Plaintiffs – Appellants, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Denise Frazier, District Director, *
Citizenship and Immigration Services; *
Eduardo Aguirre, Director, Citizenship *
& Immigration Services; Janet *
Napolitano, Secretary, Department of *
Homeland Security; Eric H. Holder, Jr., *
United States Attorney General, *
*
Defendants – Appellees. *
___________
Submitted: December 15, 2009
Filed: August 5, 2010
___________
Before BYE, BEAM, and COLLOTON, Circuit Judges.
___________
BYE, Circuit Judge.
Rochelle and Viktors Ginters 1 brought an action for declaratory judgment
asking the district court to declare unlawful the United States Citizenship and
Immigration Service's (USCIS) denial of an I-130 Petition for Alien Relative and

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asking the district court to provide appropriate injunctive relief. The Ginters appeal
the district court's grant of a motion to dismiss their complaint for lack of subject
matter jurisdiction. We reverse and remand to the district court for further
proceedings.
I
Viktors, a citizen of Latvia, entered the United States on a B-2 visitor's visa on
October 28, 1995. He married Denise Harris, a United States citizen, on September
21, 1996, shortly before his visa expired. Harris filed an I-130 Petition for Alien
Relative on Viktors's behalf. Viktors petitioned for adjustment of status based on that
I-130. Harris subsequently withdrew her petition, alleging in a letter that Viktors had
married her for immigration purposes and saying their marriage had never been
consummated. As a result of the letter, and of the withdrawal of the I-130, the
government denied Viktors's petition for adjustment of status and placed him in
removal proceedings on February 9, 1998. On March 16, 1998, Viktors and Harris
divorced. On May 9, 1998, Viktors married his current wife Rochelle, who is also a
United States citizen.
On June 10, 1998, Rochelle filed a new I-130 on behalf of Viktors. USCIS
notified the Ginters of the agency's intent to deny the I-130 petition, whereupon
Viktors requested asylum, withholding of removal, and relief under the Convention
Against Torture (CAT). The Ginters also supplemented the record in the new I-130
proceeding with more evidence that their marriage was bona fide. USCIS denied the
I-130 petition for alien relative on April 27, 1999, on the basis that Viktors had
previously entered into a fraudulent marriage for immigration purposes and was
consequently ineligible for a visa number. The Ginters filed a motion to reopen the
proceedings, which was denied, and an appeal to the Board of Immigration Appeals
(BIA), which was dismissed. An immigration judge (IJ) denied Viktors asylum,
withholding of removal, and CAT relief on May 20, 2002, but granted voluntary

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departure. Viktors appealed the IJ's decision to the BIA, which affirmed. Viktors
filed a petition for review, which this court denied.
On February 16, 2006, Viktors filed a habeas petition and a motion for a
temporary restraining order in the district court, attacking USCIS's denial of
Rochelle's I-130 petition. In addition, on February 21, 2006, Rochelle filed a second
I-130 petition, which is the subject of the instant appeal. On March 2, 2006, Viktors
filed a request for declaratory judgment, which was consolidated with the habeas
petition and the motion for a temporary restraining order. See Ginters v. Cangemi,
419 F. Supp.2d 1124 (D. Minn. 2006) (Ginters I). The district court dismissed the
request for declaratory judgment and the motion for a temporary restraining order on
March 7, 2006, and transferred the habeas petition to this court, which classified it as
a petition for review and dismissed it on July 28, 2006, for lack of jurisdiction. See
Ginters v. Gonzales, No. 06-1673, 2006 WL 3371648 (8th Cir. July 28, 2006).
Viktors was removed to Latvia in March of 2006.
USCIS investigated the basis for Rochelle's second I-130, which contained a
sworn statement by Harris that her letter accusing Viktors of fraud in their marriage
was written in anger. In the statement, Harris retracted many of her earlier
accusations. USCIS denied the I-130, reaffirming its finding that Viktors had entered
into his first marriage for immigration purposes and was therefore ineligible for a visa
priority date based on his marriage to Rochelle. Rochelle appealed to the BIA, which
affirmed the agency's decision.
The Ginters brought suit in district court challenging the denial of the second
I-130 petition and requesting declaratory and injunctive relief. The district court
dismissed the action for lack of jurisdiction, finding it was bound by the doctrine of
collateral estoppel to give preclusive effect to the district court's decision in Ginters I
on the issue. The district court also found the Ginters had procedurally defaulted on
their claims by failing to raise them in connection with the removal proceedings and

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that the courts do not have jurisdiction to review USCIS's denial of an I-130 petition.
This appeal followed.
II
The district court decided it was bound, under the doctrine of collateral
estoppel, to abide by the court's determination in Ginters I that it lacked jurisdiction
to review an I-130 petition. It nevertheless reached the question of jurisdiction
substantively by determining it had no jurisdiction to review the denial of an I-130
because of the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)(ii). Finally, it
determined the claims were procedurally barred for failure to exhaust administrative
remedies.
Procedural Bar
The district court found the Ginters were procedurally barred from raising these
issues because they failed to request adjustment of status in connection with Viktors's
removal proceedings. The government claims this failure deprived the court of the
opportunity to review these issues in connection with the appeal from the removal
order. However, as a matter of procedure, the denial of the I-130 could not have been
raised in a removal proceeding, even had Viktors applied for adjustment of status in
that proceeding. An I-130 is not filed with the immigration court but with USCIS.
See 8 U.S.C. § 1154 (establishing the framework under which I-130 petitions are
filed). Viktors would not have been eligible for adjustment of status until an I-130
was granted and a visa number was available for his use. See Matter of Hashmi, 24
I. & N. Dec. 785, 789-90 (BIA 2009) (discussing approval of I-130 as predicate to
consideration for adjustment of status in removal proceedings). Although he could
have requested adjustment pending the grant of an I-130, Rochelle's I-130 had already
been denied. That decision was appealed to the BIA and affirmed. Raising the
adjustment of status issue would have been futile, as the IJ would have had no ability

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to adjust Viktors's status without an approved I-130 petition in place, and an
immigration judge has no authority to review USCIS's decision on an I-130 petition.
The Ginters did not have another vehicle through which they could have requested
review of the I-130 petition and their claims are not procedurally barred.
Collateral Estoppel
This court reviews a district court's determination that an issue is precluded
from consideration under collateral estoppel, also called issue preclusion, de novo.
Robinette v. Jones, 476 F.3d 585, 588-89 (8th Cir. 2007). We have determined the
doctrine of preclusion may apply to the question of subject matter jurisdiction. Gas
Aggregation Servs., Inc. v. Howard Avista Energy, LLC, 458 F.3d 733, 737-38 (8th
Cir. 2006) (finding federal courts must give full faith and credit to state court
determination of subject matter jurisdiction for purposes of preclusion); see also,
Pohlmann v. Bil-Jax, Inc., 176 F.3d 1110, 1112 (8th Cir. 1999) (citing for example,
Deckert v. Wachovia Student Fin. Servs., 963 F.2d 816 (5th Cir. 1992); Kitces v.
Wood, 717 F. Supp. 338 (D. N.J. 1996); 18 J.WM. MOORE ET. AL., MOORE'S
FEDERAL PRACTICE § 132.03[5][c] (3d ed. 1999)). Even wrongly decided
questions may be precluded from reconsideration under the doctrine. Montana v.
United States, 440 U.S. 147, 162 (1979); see Clark v. Clark, 984 F.2d 272, 273 (8th
Cir. 1993) ("The doctrines of claim and issue preclusion prevent relitigation of wrong
decisions just as much as right ones. Otherwise, the doctrines would have no effect
and be useless."); see also, Liberty Mut. Ins. Co. v. FAG Bearings Corp., 335 F.3d
752, 763-64 (8th Cir. 2003) (listing numerous courts which have found an issue is
properly precluded from consideration in a subsequent proceeding even where the
preceding decision was made in error). Although this court once found the doctrine
of collateral estoppel should not extend to pure questions of law, United States v. Red
Feather, 541 F.2d 1275, 1278-79 (8th Cir. 1976), the Supreme Court, in Montana v.
United States, significantly narrowed the exception for such questions. Montana, 440
U.S. at 162-63. While the Court in Montana left room for an exception where an

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unmixed question of law is raised in a successive action involving substantially
unrelated claims, id. at 162, neither party has argued the exception applies here.
In the Eighth Circuit, issue preclusion has five elements: (1) the
party sought to be precluded in the second suit must have been a party,
or in privity with a party, to the original lawsuit; (2) the issue sought to
be precluded must be the same as the issue involved in the prior action;
(3) the issue sought to be precluded must have been actually litigated in
the prior action; (4) the issue sought to be precluded must have been
determined by a valid and final judgment; and (5) the determination in
the prior action must have been essential to the prior judgment.
Robinette, 476 F.3d at 589 (quoting Anderson v. Genuine Parts Co., Inc., 128 F.3d
1267, 1273 (8th Cir. 1997)).
There is no dispute in this case that the parties are the same. A review of the
pleadings and judgments shows the question of whether the district court had
jurisdiction to review the denial of an I-130 was raised in Ginters I. The parties
actively litigated the issue in Ginters I. In fact, the opinion indicates the parties
submitted supplemental briefing on this precise issue. Ginters, 419 F.Supp.2d at
1129. The Ginters argue there was no final judgment on the merits. However, the
Ginters confuse final judgment on the merits of their requests for relief with final
judgment on the merits of the question of jurisdiction. The court in Ginters I
discussed the jurisdictional question at length and determined it on the merits. See id.
at 1128-30. The district court's judgment on that question was valid and final. While
the district court opined on other bases for dismissing the action, jurisdiction is a
threshold question and must be answered before all other questions. Auto-Owners
Ins. Co. v. Tribal Court of Spirit Lake Indian Reservation, 495 F.3d 1017, 1020 (8th
Cir. 2007). The determination of jurisdiction was therefore essential to the prior
judgment.

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Change in Law Exception
The Ginters primary argument is that the district court should have decided the
jurisdictional question anew even if the elements of collateral estoppel are met.
"[C]ollateral estoppel extends only to contexts in which the controlling facts and
applicable legal rules remain unchanged." Montana, 440 U.S. at 158 (quotation marks
omitted). The controlling facts of this case are clearly the same since both I-130
petitions were based on the Ginters's current marriage and both denials were based on
Viktors's previous marriage to Denise Harris. However, an exception to collateral
estoppel is also triggered when controlling principles of law have changed, Montana,
440 U.S. at 161-62, and the Ginters argue such a change has occurred since Ginters I.
They base this contention in part on the Supreme Court's recent decision of Kucana
v. Holder, 130 S. Ct. 827 (2010).
The Supreme Court, in Kucana v. Holder, clarified the analysis for determining
when a review of a decision is barred under 8 U.S.C. § 1252(a)(2)(B)(ii). Section
1252(a)(2)(B)(ii) bars review of a "decision or action of the Attorney General or the
Secretary of Homeland Security the authority for which is specified under this
subchapter to be in the discretion of the of the Attorney General or the Secretary of
Homeland Security." The Court in Kucana determined the discretionary nature of the
decision must be set forth in the statute itself to trigger the bar and that review of a
decision is not barred under the statute where discretion is granted by the Attorney
General's regulations alone. Kucana, 130 S. Ct. at 836-37.
The district court in Ginters I, using the Eighth Circuit approach now abrogated
by Kucana, relied on several regulations to find that 8 U.S.C. § 1252(a)(2)(B)(ii)
barred review of the Ginters's I-130 petition. See Ginters, 419 F.Supp.2d at 1130.
The Supreme Court, after Kucana, disallows consideration of the regulations when
analyzing whether a decision is barred from review as discretionary for the purposes
of 8 U.S.C. § 1252(a)(2)(B)(ii). This constitutes a significant change in controlling

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legal principles under the "change in law" exception to the doctrine of collateral
estoppel. Although Kucana had not been decided at the time the district court
determined whether the Ginters should be collaterally estopped from raising this issue,
we find it would not be in the interest of judicial economy to force the Ginters to file
a new I-130 and begin this process anew in order to have this court consider the recent
change in controlling principles of law. We therefore proceed to the merits of the
question of jurisdiction.
Jurisdiction to Review an I-130 Petition for Alien Relative
The government argues this court lacks jurisdiction over all decisions by
USCIS, except where specifically conferred by the Immigration and Nationality Act.
However, we long ago decided the district courts have jurisdiction to review a
decision on the merits of an I-130 petition to classify an alien as a relative of a United
States citizen. Sabhari v. Reno, 197 F.3d 938, 943 (8th Cir. 1999). In Sabhari, we
found the district court had jurisdiction to hear a complaint for injunctive relief
brought after the government denied Sabhari's petition for alien relative on the basis
that Sabhari had entered into a fraudulent marriage. Id. at 941. We consider this
question again only for the limited purpose of determining whether the jurisdictional
bar of 8 U.S.C. § 1252(a)(2)(B)(ii), enacted subsequent to our decision in Sabhari,
removed our jurisdiction to review a petition for alien relative. In light of the
Supreme Court's decision in Kucana, we find the jurisdictional bar of 8 U.S.C.
§ 1252(a)(2)(B)(ii) does not preclude judicial review of the denial of an I-130 petition.
A number of circuits have considered this issue since Ginters I was decided and
have found the courts retain jurisdiction to review denials of I-130 petitions. See
Ayanbadejo v. Chertoff, 517 F.3d 273, 277-78 (5th Cir. 2008), Ruiz v. Mukasay, 552
F.3d 269, 274-276 (2d Cir. 2009), and Ogbolumani v. Napolitano, 557 F.3d 729, 733
(7th Cir. 2009). Under long-established principles, there is a strong presumption in
favor of judicial review of administrative action unless otherwise precluded by statute.

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Ismailov v. Reno, 263 F.3d 851, 854 (8th Cir. 2001). 8 U.S.C. § 1252(a)(2)(B)
removes from judicial review denials of discretionary relief stating:
Notwithstanding any other provision of law (statutory or nonstatutory),
including section 2241 of Title 28, or any other habeas corpus provision,
and sections 1361 and 1651 of such title, and except as provided in
subparagraph (D), and regardless of whether the judgment, decision, or
action is made in removal proceedings, no court shall have jurisdiction
to review --
. . .
(ii) any other decision or action of the Attorney General or the Secretary
of Homeland Security the authority for which is specified under this
subchapter to be in the discretion of the Attorney General or the
Secretary of Homeland Security, other than the granting of relief under
section 1158(a) of this title [asylum].
Before the Supreme Court's decision in Kucana, most circuits had found the
language granting discretion to the Attorney General must appear in the statute itself
for the jurisdictional bar to apply. See Khan v. Att'y Gen., 448 F.3d 226, 231-33 (3d
Cir. 2006) ("In our view, the Second, Fifth, Ninth and Eleventh Circuit Courts of
Appeals have adopted the correct reading of § 1252(a)(2)(B)(ii))."). However, the
Eighth Circuit had concluded that "whenever a regulation implementing a subchapter
II statute confers discretion upon an IJ, IIRIRA generally divests courts of jurisdiction
to review the exercise of that discretion." Onyinkwa v. Ashcroft, 376 F.3d 797, 799
(8th Cir. 2004). The Supreme Court in Kucana required that the discretionary nature
of the decision be found in the statute itself in order for the jurisdictional bar to apply.
See Hernandez v. Holder, __ F.3d __, __ (8th Cir. 2010) ("the Supreme Court held in
Kucana that section 1252(a)(2)(B)'s 'proscription of judicial review' only 'applies ...
to Attorney General determinations made discretionary by statute' and not those
'determinations declared discretionary by the Attorney General himself through
regulation.' 130 S.Ct. at 831. This court has already recognized the impact of Kucana
on our precedent, stating that it 'effectively overruled our decision in Onyinkwa.'").

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The statutory provision creating the I-130 process directs that the Attorney
General, "[a]fter an investigation of the facts in each case[,]"
shall, if he determines that the facts stated in the petition are true and that
the alien in behalf of whom the petition is made is an immediate relative
specified in section 1151(b) of this title or is eligible for preference under
subsection (a) or (b) of section 1153 of this stitle, approve the petition
and forward one copy thereof to the Department of State. The Secretary
of State shall then authorize the consular officer concerned to grant the
preference status.
8 U.S.C. § 1154(b) (emphasis added).
Under 8 U.S.C. § 1154(c), an alien who has entered into a previous marriage
for immigration purposes is not eligible for approval of an I-130 filed on his behalf.
Notwithstanding the provisions of subsection (b) of this section no
petition shall be approved if (1) the alien has previously been accorded,
or has sought to be accorded, an immediate relative or preference status
as the spouse of a citizen of the United States or the spouse of an alien
lawfully admitted for permanent residence, by reason of a marriage
determined by the Attorney General to have been entered into for the
purpose of evading the immigration laws.
8 U.S.C. § 1154(c) (emphasis added).
The use of the word "shall" in both sections indicates the Attorney General does
not have discretion with regard to either granting an I-130 petition or denying one in
the case of marriage fraud. The government argues the statute makes this act
discretionary because it requires the Attorney General to "determine" whether
someone is an alien relative and whether a marriage was entered into for the purpose
of evading immigration laws. The government relied on language in Suvorov v.
Gonzales, 441 F.3d 618, (8th Cir. 2006), Ignatova v. Gonzales, 430 F.3d 1209, 1213

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(8th Cir. 2005), and Ebrahim v. Gonzales, 471 F.3d 880 (8th Cir. 2006) for the
proposition that a determination of the existence of a sham marriage is discretionary.
However, in all three of those cases this court was asked to review the denial of a
waiver under 8 U.S.C. § 1186a(c)(4), a section which explicitly states all
determinations under that provision, including evidentiary determinations, are "within
the sole discretion of the Attorney General." The statutory provisions at issue here
contain no such language. In addition, interpreting the statutory language as the
government advocates would force this court to classify every decision involving
fact-finding by the Attorney General as discretionary and would remove all such
decisions from judicial review. That is not a reasonable interpretation in light of the
provisions of the Immigration and Nationality Act itself setting forth our standard of
review for factual determinations in removal proceedings. See 8 U.S.C.
§ 1252(b)(4)(B) ("the administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary").
The district court declined to reach the merits of the Ginters's claims with
respect to the denial of their I-130 petition for alien relative because there had been
no change in the law when it rendered its decision on the issue of collateral estoppel.
However, the Supreme Court has since abrogated the Eighth Circuit's approach to the
bar to review of discretionary decisions under 8 U.S.C. § 1252(a)(2)(B)(ii). We,
therefore, reverse and remand this case to the district court for consideration of the
merits of the underlying action.
III
Reversed and remanded.
COLLOTON, Circuit Judge, dissenting.
I would affirm the district court’s dismissal of this action based on the doctrine
of collateral estoppel. As the court explains, these same parties litigated the district

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court’s jurisdiction to review the denial of an I-130 Petition for Alien Relative filed
by Viktors and Rochelle Ginters in Ginters v. Cangemi, 419 F. Supp. 2d 1124 (D.
Minn. 2006) (Ginters I), and the district court resolved the issue against the Ginterses.
The Ginterses declined to appeal that judgment to this court. The Ginterses then
sought to relitigate in the district court the same question of jurisdiction with regard
to the denial of a subsequent I-130 petition, even though “[t]he controlling facts of this
case are clearly the same.” Ante, at 7. The district court properly dismissed the case
based on collateral estoppel.
The court concludes that collateral estoppel does not apply because “controlling
principles of law have changed” since Ginters I. The court reasons that Kucana v.
Holder, 130 S. Ct. 827 (2010), made clear that the limitations on judicial review set
forth in 8 U.S.C. § 1252(a)(2)(B)(ii) apply only to determinations of the Attorney
General made discretionary by statute, and not those determinations declared
discretionary by the Attorney General through regulation. See Hernandez v. Holder,
606 F.3d 900, 903 (8th Cir. 2010). Kucana thus abrogated Onyinkwa v. Ashcroft, 376
F.3d 797, 799 (8th Cir. 2004), which held that § 1252(a)(2)(B)(ii) deprived this court
of jurisdiction to review an immigration judge’s denial of a motion to continue,
because a regulation had purported to make determinations on such motions
discretionary. Id.
On the question whether to apply collateral estoppel in this case based on
Ginters I, however, Kucana is a red herring. The district court in Ginters I never cited
Onyinkwa or any other now-abrogated Eighth Circuit precedent concerning the effect
of regulations that purport to confer discretion on an agency. The court did not hold
that it lacked jurisdiction to review the denial of an I-130 petition because the “sham”
marriage determination under 8 U.S.C. § 1154(c) was “declared discretionary by the
Attorney General himself through regulation.” Kucana, 130 S. Ct. at 831. Rather, the
court reasoned that because a determination about whether a previous marriage was
a “sham” for purposes of § 1154(c) required “some subjective weighing of the
evidence,” the determination was necessarily “discretionary” and insulated from

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judicial review by 8 U.S.C. § 1252(a)(2)(B)(ii). 419 F. Supp. 2d at 1130. The court
in Ginters I cited a regulation that established the standard of proof for the
determination (“substantial and probative evidence”), but the “subjective weighing of
the evidence” that underlies the decision in Ginters I was necessary whether or not the
applicable standard of proof was stated in a regulation.
That the issue resolved in Kucana was not a “controlling legal principle” that
dictated dismissal in Ginters I is demonstrated by Sabhari v. Frazier, No. 06-196,
2007 WL 295261 (D. Minn. 2007). There, after citing and applying the now-
abrogated decision in Onyinkwa, the same district court that decided Ginters I
nonetheless concluded that it did have jurisdiction to review the denial of an I-130
petition. The court in Sabhari concluded that although the determination whether a
marriage was “entered into for the purpose of evading the immigration laws,” 8 U.S.C.
§ 1154(c), requires “some subjective weighing of the evidence,” the discretion
inherent in that judgment was insufficient to trigger the jurisdictional bar of
§ 1252(a)(2)(B)(ii). Id. at *10. The government declined to appeal in Sabhari.
Ginters I may have been wrong, but the Ginterses declined to appeal, and of
course the doctrine of issue preclusion prevents relitigation of wrong decisions just
as much as right ones. Clark v. Clark, 984 F.2d 272, 273 (8th Cir. 1993). This court
has not addressed whether Ginters I or Sabhari reflects the correct judgment about
whether the “subjective weighing of the evidence” necessary to “determine” a “sham”
marriage question under § 1154(c) means that § 1252(a)(2)(B)(ii) deprives a district
court of jurisdiction to review the denial of an I-130 petition. Kucana does not speak
to that question. The applicable legal rule was undecided in this circuit at the time of
Ginters I, and it remains undecided. There has been no change in the law that justifies
an exception to the doctrine of collateral estoppel.
For these reasons, I would affirm the judgment of the district court.
______________________________

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