943 F.3d 853
9th Cir.2019Background
- Perez, a Mexican national in Washington, applied for a U visa (Form I-918 with Supplement B) asserting harassment by two individuals and submitted a police report and an anti-harassment order petition.
- The Renton Police Department’s certifying official listed the offense as “harassment” (no charges filed); the certification did not state detection or investigation of a qualifying crime such as felonious assault.
- USCIS denied the U visa, concluding harassment was not a qualifying criminal activity or sufficiently similar to an enumerated crime; the AAO denied Perez’s appeal and motion to reconsider, finding no evidence the certifying agency detected a qualifying crime.
- Perez sued under the Administrative Procedure Act (APA), alleging USCIS failed to consider credible evidence, misapplied the qualifying-crime standard (felony harassment vs. felonious assault), and made unsupported factual findings.
- The district court dismissed for lack of subject-matter jurisdiction under APA § 701(a)(2) (committed to agency discretion). The Ninth Circuit reversed and remanded, holding § 701(a)(2) does not bar review and § 1252(a)(2)(B)(ii) does not strip jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether APA § 701(a)(2) bars judicial review of a U-visa denial | Perez: statutory provisions (8 U.S.C. §§ 1101(a)(15)(U), 1184(p)) and regulations supply meaningful standards (e.g., certification, "consider any credible evidence") so review is available | Government: USCIS has "sole jurisdiction/sole discretion" to evaluate evidence and determine eligibility, so decisions are committed to agency discretion and unreviewable | Court: § 701(a)(2) does not bar review; the statutory framework provides meaningful standards and permits APA review (abuse of discretion/substantial evidence, etc.) |
| Whether 8 U.S.C. § 1252(a)(2)(B)(ii) strips courts of jurisdiction over U-visa denials | Perez: Congress did not specify unguided discretion in the statutes; statutory eligibility criteria constrain agency discretion, so § 1252(a)(2)(B)(ii) does not apply | Government: U-visa authority is committed to Secretary’s discretion ("may be issued", "Secretary determines"), so jurisdiction is precluded | Court: § 1252(a)(2)(B)(ii) does not apply; Congress did not specify pure, unguided discretion and statutory standards exist, so jurisdiction remains |
| Whether USCIS failed to consider all credible evidence (procedural claim) | Perez: USCIS ignored or failed to credit the anti-harassment petition and police report that showed threats to his life | Government: USCIS/AAO considered the record and found no detection/investigation of a qualifying crime; regulations commit evidentiary weight to USCIS | Court: Claim is reviewable under § 1184(p)(4) and APA § 706; remand for district court to apply appropriate standard (arbitrary/capricious or substantial-evidence review) |
| Whether felony harassment is "substantially similar" to felonious assault (legal question) | Perez: felony harassment (threat to kill; placing victim in apprehension) involves or is substantially similar to felonious assault | Government/AAO: statutory elements differ under Washington law; AAO compared statutes and found they are not substantially similar; also no evidence the certifying agency detected felony harassment | Court: Legal-interpretion claim is reviewable; district court to decide the proper standard of review (including whether Chevron/Auer/Kisor deference applies) and resolve on remand |
Key Cases Cited
- Heckler v. Chaney, 470 U.S. 821 (1985) (APA exception where statute leaves no meaningful standard for judicial review)
- Spencer Enters., Inc. v. United States, 345 F.3d 683 (9th Cir. 2003) (statutory standards can make discretionary immigration decisions reviewable)
- Kucana v. Holder, 558 U.S. 233 (2010) (§1252(a)(2)(B)(ii) applies only when Congress itself specified the discretionary authority)
- ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059 (9th Cir. 2015) (agency reservations of "sole discretion" do not by themselves preclude review for abuse of discretion)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (framework for assessing deference to agency interpretations of ambiguous rules)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (agency statutory-interpretation deference doctrine)