ORDER AND REASONS

JANE TRICHE MILAZZO, District Judge.

Before the Court is Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 14). Plaintiff opposes this Motion. For the following reasons, the Motion is GRANTED.

BACKGROUND

In this immigration, case Plaintiff Haji Bonakchi seeks this Court's review of the United States Citizenship and Immigration Services' ("USCIS") decision to revoke his I-526 Immigrant Petition by Alien Entrepreneur ("I-526 petition"). A brief background of Plaintiff's immigration history and the relevant statutory provisions is helpful to the disposition of this Motion.

On January 21, 1987, Plaintiff, a Canadian citizen, married United States citizen Melissa Ann Munoz at a ceremony in Brussels, Belgium. Ms. Munoz thereafter filed an I-130 Petition for Alien Relative on Plaintiff's behalf. Based on the subsequent testimony of Ms. Munoz, USCIS contends that this marriage was fraudulently entered into with the intent to gain entry into the United States.1

Around August 9, 2001, Plaintiff entered the United States in temporary nonimmigrant E-2 status as a potential investor. On December 1, 2006, he filed an I-526 petition with the USCIS seeking classification as an alien entrepreneur. The Immigration and Nationality Act provides for classification of "employment creation" immigrants who invest capital in commercial enterprises in the United States that create full time employment for U.S. workers.2 Alien investors who meet certain requirements may file an I-526 petition seeking an immigrant visa.3 An approved visa petition is a preliminary step in the visa application process. Such approval does not guarantee that an immigrant visa will be issued, however it does give the alien investor the right to apply for two-year conditional permanent resident status.4

Plaintiff's I-526 petition was approved on September 24, 2007. In October 2007, he filed an I-485 Application to Register Permanent Residence or Adjust Status. During the course of processing this application USCIS found that Plaintiff had previously sought entry to the United States through a marriage entered into for the purpose of evading the immigration laws of the United States, thus barring his present application. USCIS therefore issued a Notice of Intent to Revoke Plaintiff's I-526 petition on August 6, 2010. After providing Mr. Bonakchi with the opportunity to respond, USCIS issued a Notice of Revocation revoking his I-526 petition. Plaintiff's I-485 petition was also denied.

Plaintiff appealed the revocation to the Administrative Appeals Office ("AAO"), alleging several procedural deficiencies regarding the USCIS proceedings. The AAO affirmed the decision of USCIS, finding that the revocation was based on good and sufficient cause. Plaintiff then filed this action seeking judicial review of USCIS's decision to revoke the I-526 petition. He asks this Court to declare that Plaintiff is eligible for an adjustment of status, to find that USCIS's denial of Plaintiff's adjustment of status was unlawful, and to order USCIS to adjudicate and approve Plaintiff's application.5 Defendants move for dismissal, contending that this Court is without jurisdiction to review this matter.6 Alternatively, Defendants move to dismiss pursuant to Rule 12(b)(6).7 Plaintiff opposes this Motion.8

LEGAL STANDARD

A Rule 12(b)(1) motion challenges the subject matter jurisdiction of a federal district court. "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case."9 In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on (1) the complaint alone, presuming the allegations to be true, (2) the complaint supplemented by undisputed facts, or (3) the complaint supplemented by undisputed facts and by the court's resolution of disputed facts.10 The proponent of federal court jurisdiction—in this case, the Plaintiff— bears the burden of establishing subject matter jurisdiction.11

LAW AND ANALYSIS

Defendant argues that 8 U.S.C. § 1252(a)(2)(B)(ii) strips this Court of jurisdiction to review USCIS's decision to revoke Plaintiff's I-526 petition. This statute provides that courts do not have jurisdiction to review "any . . . 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."12 Under 8 U.S.C. § 1155, "[t]he 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 under section 1154 of this title."13

In Ghanem v. Upchurch, the Fifth Circuit squarely confronted whether a district court has jurisdiction to review the revocation of a previously approved immigrant visa petition. Acknowledging a split in authority among the circuits, the court concurred with the Third and Second Circuits, holding that a revocation pursuant to § 1155 of a previously approved visa petition is a discretionary act not subject to judicial review:

The parties do not dispute that Plaintiff's I-526 petition was revoked pursuant to § 1155. Accordingly, this plain statement of the law indicates that this Court is without jurisdiction. Plaintiff disagrees, however, advancing several arguments in favor of jurisdiction.

Plaintiff first argues that the jurisdictional prohibitions of § 1252 do not apply to this revocation action because that statute is titled "Judicial review of orders of removal." The title of a statute does not, however, serve to limit the plain meaning of the statutory text.15 Section 1252 is a broad, wide ranging statute covering multiple jurisdictional issues presented in immigration proceedings. Though the Fifth Circuit has not directly confronted the issue, several other circuits faced with determining whether the jurisdictional prohibition contained in § 1252(a)(2)(B)(ii) applies outside of removal proceedings have answered the question in the affirmative.16 Moreover, such a finding is implicit in the Fifth Circuit's decision in Ghanem, where the court found that § 1252(a)(2)(B)(ii) precluded review of a matter outside of removal proceedings, namely the revocation of a visa pursuant to § 1155.17

In his search for a jurisdictional predicate, Plaintiff cites to Zhao v. Gonzales18 and Ayanbadejo v. Chertoff.19 These cases are, however, distinguishable from the matter at bar, as neither involved the revocation of a previously approved visa petition pursuant to § 1155. In Zhao, the court considered whether it had the jurisdiction to entertain an appeal of the Board of Immigrations Appeals' denial of a motion to reopen proceedings.20 The court found jurisdiction because BIA's discretion to entertain a motion to reopen proceedings is not embodied in the subsection of Title 8 governing immigration proceedings, as required for § 1252(a)(2)(B)(ii)'s jurisdictional prohibition to apply.21 The Court therefore concluded that it had jurisdiction, noting that § 1252(a)(2)(B)(ii) precludes review of those decisions specifically identified as discretionary in the statute.22 Indeed, Zhao undercuts Plaintiff's arguments, as revocation of a visa petition is a discretionary decision. Plaintiff fares no better with his citation to Ayanbadejo. There, the court concluded that the district court had jurisdiction to review the denial of an I-130 petition because there was no statutory grant of discretion to deny such a petition.23 The court found, however, that the district court was without jurisdiction to review the denial of plaintiff's I-485 petition because such a determination was subject to a statutory grant of discretion.24 Here, Plaintiff seeks review of an action specified as discretionary in Title 8—namely, the revocation of a previously approved petition under § 1155. Accordingly, the Court lacks jurisdiction under the plain language of the statutory text and the holding of Ghanem.25

In further search for a jurisdictional basis, Plaintiff turns to 8 U.S.C. § 1252(a)(2)(D). This provision provides for judicial review of "constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals."26 Because this is not a court of appeals, this provision does not provide this Court with jurisdiction.

As outlined above, this Court is without jurisdiction based on the clear provisions of 8 U.S.C. § 1252. Accordingly, this action is subject to dismissal pursuant to Rule 12(b)(1).

CONCLUSION

For the foregoing reasons, Defendant's Motion to Dismiss is GRANTED. Plaintiff's case is DISMISSED WITH PREJUDICE.