Notable Judges and Historical Figures of the Seventh Circuit

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Procedural Overview: How the Seventh Circuit Operates

In Ndlovu v. Garland, the Seventh Circuit dismissed the petition for review of the IJ’s and the BIA’s denial of cancellation of removal. This was due to the petitioner as a matter of discretion because of his criminal record. The court found that the petitioner did not raise a colorable question of law in arguing that the IJ and the BIA had erred by considering his 2000 and 2002 convictions due to their age. There was no support for the petitioner’s argument about a time limit on what conduct the IJ or BIA could consider in their discretionary determinations under INA §240(c)(4)(A). The petitioner’s challenge was found to be merely an objection to the IJ’s and BIA’s weighing of the equities under INA §240. These were discretionary decisions that the court lacked jurisdiction to review.

Seventh Circuit

Immigration Judicial Review of Denied I-129 and I-140

When U.S. Citizenship and Immigration Services (USCIS) denies an employment-based petition—such as Form I-129 (Nonimmigrant Worker) or Form I-140 (Immigrant Worker)—the petitioner’s fight for approval often escalates beyond the administrative level. It moves into Federal District Court. This step, known as Judicial Review, is the final avenue for challenging an adverse agency decision.

The Standard of Review: The Administrative Procedure Act (APA)

A lawsuit challenging a USCIS denial is typically filed under the Administrative Procedure Act (APA). This is the federal law governing how agencies operate.

Crucially, the Federal Judge does not re-adjudicate the petition or re-weigh the evidence. Instead, the court strictly reviews the administrative record—the documents and evidence submitted to USCIS—to determine if the immigration officer’s decision-making process was legally flawed. This involves assessing whether the officer:

  • Misapplied the statutory definition (e.g., misinterpreting “specialty occupation” for an H-1B or “extraordinary ability” for an EB-1A).
  • Failed to provide a rational explanation for the denial.

The Role of Administrative Exhaustion

Before filing a federal lawsuit, the petitioner may first choose to file an administrative appeal with the Administrative Appeals Office (AAO) using Form I-290B. . Nevertheless, litigating a case without the benefit of a full administrative record is a complex strategic decision.

If the petitioner prevails in Federal Court, the judge will not approve the petition outright. Rather, the court will remand (send back) the case to USCIS, compelling the agency to re-adjudicate the petition using the correct legal standard. This effectively forces the agency to correct its error.

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