USCA11 Case: 21-11984 Date Filed: 03/18/2022 Page: 1 of 9 [PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-11984 Non-Argument Calendar ____________________ KARL JUSTA BRASIL, Plaintiff-Appellant, versus SECRETARY, DEPARTMENT OF HOMELAND SECURITY, ATTORNEY GENERAL OF THE U.S., et al., Defendants-Appellees. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:20-cv-24222-BB ____________________ USCA11 Case: 21-11984 Date Filed: 03/18/2022 Page: 2 of 9 2 Opinion of the Court 21-11984 Before BRANCH, BRASHER, and ANDERSON, Circuit Judges. PER CURIAM: Karl Justa Brasil appeals the district court’s grant of the de- fendants’ motion to dismiss his complaint for lack of subject matter jurisdiction. His complaint sought judicial review of the U.S. Citi- zenship and Immigration Services’ (“USCIS”) denial of a national interest waiver under 8 U.S.C. § 1153(b)(2)(B)(i). On appeal, he ar- gues that the district court had subject matter jurisdiction over his request for review under the Administrative Procedure Act, 5 U.S.C. § 701 (“APA”), because the agency’s precedent in Matter of Dhanasar 1 provided a clear standard by which the court could re- view the case. Brasil also argues that the jurisdiction-stripping pro- vision of 8 U.S.C. § 1252(a)(2)(B)(ii) is inapplicable. Because § 1252(a)(2)(B)(ii) precludes judicial review of a denial of a national interest waiver under § 1153(b)(2)(B)(i), we affirm. I. Brasil filed a form I-140 petition seeking classification as an immigrant worker under 8 U.S.C. § 1153(b)(2) and seeking a na- tional interest waiver under § 1153(b)(2)(B)(i). USCIS denied his national interest waiver, finding that he did not meet the test laid out in Matter of Dhanasar. Brasil appealed to USCIS’s Administra- tive Appeals Office, which dismissed his appeal. Brasil then filed an 1 26 I & N Dec. 884 (AAO 2016). USCA11 Case: 21-11984 Date Filed: 03/18/2022 Page: 3 of 9 21-11984 Opinion of the Court 3 action in U.S. District Court arguing that USCIS erred in denying him a national interest waiver because it improperly weighed the evidence in finding that he did not meet the Dhanasar test. After the defendants moved to dismiss for lack of subject matter jurisdic- tion, the matter was referred to a magistrate judge. The magistrate judge’s report and recommendation (“R&R”) recommended dis- missal for lack of subject matter jurisdiction. The district court adopted the R&R and dismissed the complaint. This appeal fol- lowed. II. Under the APA, courts may “set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The provisions of the APA, however, do not apply in two circumstances. See id. § 701(a). The first is when a statute expressly “preclude[s] judicial review.” 5 U.S.C. § 701(a)(1). The second is when, even though Congress has not explicitly precluded judicial review, the “agency action is committed to agency discretion by law.” Id. § 701(a)(2). If a statute precludes judicial review, federal courts lack subject matter juris- diction. See Zhu v. Gonzales, 411 F.3d 292, 293 …
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