PEDRO TOMAS PEREZ PEREZ v. CHAD F. WOLF, Acting Secretary of Homeland Security; BARBARA Q. VELARDE, Chief of the Administrative Appeals Office for USCIS; MARK KOUMANS, Acting Director of USCIS; LAURA B. ZUCHOWSKI, Director of the USCIS Vermont Service Center
No. 18-35123
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
November 22, 2019
D.C. No. 2:17-cv-00249-JLR
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding
Argued and Submitted April 9, 2019 Seattle, Washington
Filed November 22, 2019
Before: William A. Fletcher, Consuelo M. Callahan, and Morgan Christen, Circuit Judges.
Opinion by Judge W. Fletcher; Dissent by Judge Callahan
SUMMARY*
Immigration
The panel reversed the district court‘s dismissal for lack of jurisdiction of Pedro Tomas Perez Perez‘s suit challenging the denial of his U visa petition, holding that neither
To be eligible for a U visa, a petitioner must establish that he or she has suffered substantial physical or mental abuse from having been a victim of qualifying criminal activity, possesses information about that activity, and has been helpful, is being helpful, or is likely to be helpful to an authority investigating or prosecuting that activity. The United States Citizenship and Immigration Service (“USCIS“) denied Perez‘s U visa petition on the ground that he had not shown that he was a victim of a qualifying crime. Perez challenged that decision in the district court, which concluded that his action was not reviewable under APA
The panel held that Perez‘s claims were not barred by APA
Further, after sua sponte consideration, the panel held that
Dissenting, Judge Callahan wrote that Congress granted the USCIS absolute discretionary authority over U visa decisions, and the Supreme Court prohibits this court from reviewing decisions that Congress commits to agency discretion. Judge Callahan concluded that the majority opinion breached the separation of powers to arrogate the power unto itself to review the discretionary decisions of U visas. Further, Judge Callahan wrote that, by misapplying the applicable statutes, by ignoring every other circuit that has decided this issue, and by violating the proper role of the courts, the majority opinion has opened “Pandora‘s box” to courts reviewing decisions on the approximately 250,000 U visa petitions currently pending before the USCIS. Because this result is not required by the applicable statutes and regulations, is unprecedented in this circuit, and contrary to the consistent position of the court‘s sister circuits, Judge Callahan adamantly dissented.
COUNSEL
Henry Cruz (argued), Rios & Cruz P.S., Seattle, Washington, for Plaintiff-Appellant.
Francesa M. Genova (argued), Trial Attorney; William C. Peachey, Director, District Court Section; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.
W. FLETCHER, Circuit Judge:
Pedro Tomas Perez Perez brought suit in the district court under the Administrative Procedure Act (“APA“), challenging the denial of his U visa petition by the United States Citizenship and Immigration Service (“USCIS“). The district court dismissed Perez‘s action for lack of subject matter jurisdiction. The district court held that
We hold that
We reverse and remand.
I. Background
In determining whether judicial review is precluded by
A. U Visa Statutory and Regulatory Framework
Congress created U nonimmigrant status as part of the Victims of Trafficking and Violence Protection Act of 2000 (“VTVPA“). The U visa program is intended to “strengthen the ability of law enforcement
To be eligible for a U visa, a petitioner must establish that he or she: (1) “has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity“; (2) “possesses information” about qualifying criminal activity; and (3) “has been helpful, is being helpful, or is likely to be helpful” to an authority “investigating or prosecuting” qualifying criminal activity.
Qualifying criminal activity is defined as criminal activity
involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.
To apply for a U visa, a petitioner must file with USCIS a Form I-918, Petition for U Nonimmigrant Status. See
a certification from a Federal, State, or local law enforcement official, prosecutor, judge, or other Federal, State, or local authority investigating [qualifying] criminal activity . . . . This certification shall state that the alien “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of [qualifying] criminal activity . . . .
USCIS has created a multi-part form for petitioners to use when obtaining the required certification. USCIS refers to the form as “Form I-918, Supplement B, ‘U nonimmigrant Status Certification‘” (“certification form“).
In addition to Form I-918 and the certification form, the U visa petition packet must include “a signed statement by the petitioner describing the facts of the victimization.”
In acting on a petition, USCIS “shall consider any credible evidence relevant to the petition.”
“If USCIS determines that the petitioner has met the requirements for U-1 nonimmigrant status, USCIS will approve Form I-918.”
Regulations provide that if USCIS denies a petitioner‘s Form I-918, Petition for U Nonimmigrant Status, “USCIS will provide written notification to the petitioner of the reasons for the denial.”
B. Factual and Procedural Background
Perez is a citizen of Mexico who resides in Washington State. On January 10, 2012, Perez reported to police that he was being harassed. He told the investigating officer that the harassers were two individuals to whom he had lent a total of roughly $50,000 and from whom he was requesting repayment. The officer‘s report states that, according to Perez, one of the individuals threatened to “place Perez in jail if he keeps asking for his money back” and told Perez “he would make him disappear.” The officer wrote in his report that these threats “were not defined enough for me to file harassment charges.” Perez later applied for and received temporary anti-harassment orders against the individuals. The orders were dismissed after the individuals could not be served.
On July 10, 2013, Perez petitioned for U nonimmigrant status under
Perez did make an informational police report and requested an anti harassment order. He received a temporary order on 1/17/2012. On 1/31/2012 the order was dismissed, defendant was not able to be served, petitioner may return to refile when def. is located. The description of the informational report was noted as 9A.46.020 Harassment.
USCIS denied Perez‘s U visa petition. The denial letter states, “The evidence, as presented, does not establish that you have been a victim of qualifying criminal activity.” The letter explains that Perez “did not provide sufficient evidence to prove that [the] crime of harassment is similar to a [qualifying crime].” Perez appealed to the AAO. On appeal, Perez argued that the harassment to which he was subject “involved and/or was similar to felonious assault [which is a qualifying crime] . . . because it involved a threat to kill him that placed him in apprehension of harm.” The AAO denied Perez‘s appeal. It concluded, “There is no evidence in the record that the certifying agency detected or investigated an attempted or actual felonious assault or any other qualifying crime. The Petitioner has not shown that any crime other than harassment was detected or investigated by the law enforcement agency.”
On October 28, 2015, Perez filed a motion to reconsider with the AAO. He argued that the harassment in his case was not just simple harassment, but felony harassment under Washington law because it involved a threat “to kill [him]” that “by words or conduct” placed him “in reasonable fear that the threat will be carried out.”
On February 17, 2017, Perez brought suit in the federal district court challenging the denial of his U visa petition. His complaint contains several claims under the APA,
After the parties filed cross-motions for summary judgment, the district court dismissed
Perez timely appealed. We have jurisdiction under
II. Discussion
“The default rule is that agency actions are reviewable under federal question jurisdiction, pursuant to
The presumption in favor of judicial review of final agency action “is overcome only in two narrow circumstances.” Pinnacle, 648 F.3d at 719. The first is “when Congress expressly bars review by statute.” Id. (citing
The district court dismissed Perez‘s action as unreviewable under
A.
Section 701(a)(2) of the APA precludes judicial review of agency actions “committed to agency discretion by law.”
In Spencer Enterprises, Inc. v. United States, 345 F.3d 683 (9th Cir. 2003) (”Spencer“), we decided the closely related issue of whether
1. The “No Meaningful Standard” Standard
In several immigration cases, we have held that there are meaningful standards of review and have declined to apply
Only where there is truly “no law to apply” have we found an absence of meaningful standards of review. Spencer, 345 F.3d at 688 (quoting Chaney, 470 U.S. at 830). In Ekimian v. INS., 303 F.3d 1153 (9th Cir. 2002), for example, we held that we could not review the BIA‘s refusal to reopen deportation proceedings sua sponte because, although the BIA allowed for reopening in “exceptional situations,” no statute, regulation, or case law defined “exceptional situations.” Id. at 1156–59. We later clarified that we may review BIA decisions denying sua sponte reopening “for the limited purpose of reviewing the reasoning behind the decisions for legal or constitutional error” because in that instance there is “law to apply.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). Similarly, in Idrees v. Barr, 923 F.3d 539 (9th Cir. 2019), we held that the BIA‘s decision not to certify Idrees‘s ineffective assistance of counsel claim was unreviewable, absent a claim of constitutional or legal error, because the BIA had not “elaborated on which circumstances are considered to be exceptional and thus sufficient to merit certification.” Id. at 542–43.
Our non-immigration cases addressing
“[T]he mere fact that a statute contains discretionary language does not make agency action unreviewable.” Beno v. Shalala, 30 F.3d 1057, 1066 (9th Cir. 1994). As long as there is a “meaningful standard against which to judge the agency‘s exercise of discretion,” judicial review is available. Chaney, 470 U.S. at 830. Indeed, inherently discretionary standards may themselves be sufficiently meaningful to support judicial review for abuse of discretion. See ASSE, 803 F.3d at 1071 (“Section 701(a)(2) . . . has never been thought to put all exercises of discretion beyond judicial review. Indeed, ‘the APA itself commits final agency action[s] to our review for ‘abuse of discretion.‘“) (quoting Pinnacle, 648 F.3d at 720). In fact, courts routinely treat discretion-laden standards as providing “law to apply.” See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977) (holding that
These cases demonstrate how rarely there is no “meaningful standard against which to judge the agency‘s exercise of discretion.” Chaney, 470 U.S. at 830. They also demonstrate that there are meaningful standards to apply in this case. As in Spencer, we need look no further than the governing statutes.
2. Meaningful Standards in the U Visa Statutory Framework
As noted above, U visa determinations are governed by
Our dissenting colleague disagrees. The dissent points out that regulations grant USCIS “sole jurisdiction” over U visa petitions and “sole discretion” to determine the value of petitioner evidence. See
The dissent relies on language in
Finally, the dissent argues that language in
In short, the statutory framework provides meaningful standards under which to review the exercise of USCIS‘s authority to issue U visas. The conclusion that there are meaningful standards, however, does not necessarily end an inquiry in a particular case. “In deciding whether agency action is committed to agency discretion by law, it is not significant that there may be law, in the abstract, that could possibly be applied.” Ariz. Power Auth. v. Morton, 549 F.2d 1231, 1239–40 (9th Cir. 1977) (citing Strickland v. Morton, 519 F.2d 467, 470 & n.4 (9th Cir. 1975)). “Instead, we must
determine whether in this particular case there is any specific law to apply.” Id. In other words, “it is only in the context of [Perez‘s] complaint that we can determine if there is law to be applied in the instant case.” Strickland, 519 F.2d at 470.
Moreover, “the existence of judicial review is only the start: the standard for review must also be determined” and “[f]or that we must look to § 706 of the [APA].” Volpe, 401 U.S. at 413. Under the APA, our review is limited to assessing whether a U visa determination “was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law“; in violation of a statutory, procedural, or constitutional requirement; or unsupported by “substantial evidence.”
3. Perez‘s APA claims
Perez makes three principal claims under the APA. First, he claims that USCIS acted contrary to law because it “fail[ed] to consider all credible evidence.” In particular, Perez argues that USCIS failed to consider his anti-harassment order petition and relevant parts of the police report, which he claims show “that the suspect made threats against [his] life.” The statutory mandate that USCIS “consider any credible evidence relevant to the petition,”
Second, Perez claims that USCIS‘s “determination that felony harassment does [not] constitute qualifying criminal activity is contrary to the plain language of the statute.” That language provides that a qualifying crime must “involv[e]” an enumerated criminal activity or “any similar activity.”
The standard of review on this is not entirely clear. The general rule under the APA is that a “reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”
Third, Perez claims that USCIS‘s factual finding that “felony harassment was not detected by law enforcement” was erroneous. The government argues that we cannot review its factual findings because its regulations provide that “USCIS will determine, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence, including [the certification form].”
where [the agency] has reserved to itself . . . certain decisions as within its ‘discretion,’ . . . or even its ‘sole discretion,’ . . . we will take into account the [agency‘s] reservation and expertise and accord it the proper deference. But that does not deprive us of the right to review its actions for an abuse of its discretion or to determine if its actions were otherwise arbitrary and capricious.
803 F.3d at 1071 (citations omitted) (emphases added).
The same standard of review applies to this question. In reviewing a decision of the USCIS, the court should give due deference to the agency‘s expertise. But to the extent the petitioner challenges USCIS‘s decision under
B. § 1252(a)(2)(B)(ii) of the IIRIRA
When Congress enacted IIRIRA in 1996, it replaced the judicial review scheme of the Immigration and Nationality Act with a more restrictive scheme, codified at
(B) Denials of discretionary relief
Notwithstanding any other provision of law (statutory or nonstatutory) ... and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182(h) [waiver of inadmissibility based on certain criminal offenses], 1182
(i) [waiver of inadmissibility based on fraud or misrepresentation], 1229b [cancellation of removal], 1229c [permission for voluntary departure], or 1255 [adjustment of status] of this title, or (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 [8 U.S.C. §§ 1151–1381] 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 [relating to asylum].
We interpreted
The Supreme Court‘s decision in Kucana v. Holder, 558 U.S. 233 (2010), reinforces our interpretation of
Applying Spencer to the case before us, we conclude for two reasons that
The dissent calls attention to our recent decision in Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019), where we held that
The dissent also cites two unpublished decisions to suggest that we have already determined that we lack jurisdiction to review U visa denials. Not only are these cases not binding. They are also inapposite. In the first, Eun Kyeong Seo v. Holder, 358 F. App‘x 884 (9th Cir. 2009), we held that we “lack[ed] jurisdiction over [USCIS‘s] determinations regarding U Visas.” However, for this proposition, we cited Ramirez Sanchez v. Mukasey, 508 F.3d 1254 (9th Cir. 2007) (per curiam), in which we remanded to the BIA to consider new regulatory guidance for the issuance of U visas. We said nothing in Ramirez Sanchez about our jurisdiction to review a decision denying a U visa. In the second, Chang Young Jung v. Holder, 393 F. App‘x 530 (9th Cir. 2010), we held that we lacked jurisdiction over challenge to a U visa denial because the challenge had not been made in the district court. We did not address our jurisdiction to review a properly made challenge.
Finally, the dissent expresses concern that today‘s decision “opens the proverbial floodgates.” This fear is exaggerated. The vast majority of U visa petitions are granted. Every fiscal year since 2010, USCIS has approved an average of about 10,000 U visa petitions. In that same time period, it annually denied an average of about 2,400 petitions. An unknown fraction of those denials will be appealed. See USCIS, Number of Form I-918, Petition for U Nonimmigrant Status by Fiscal Year, Quarter, and Case Status (FY 2009–2019), available at http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Victims/I918u_visastatistics_fy2019_qtr2.pdf (last visited Sept. 20, 2019).
Conclusion
We hold that
REVERSED and REMANDED.
CALLAHAN, Circuit Judge, dissenting:
Congress, in creating “U nonimmigrant status” or “U visas,” vested with the Secretary of Homeland Security sole jurisdiction over U visas, sole discretion in determining the evidentiary value of the certification forms accompanying a U visa petition, and absolute discretion in deciding whether to grant (or deny) U visa petitions and whether to subsequently revoke U visa status. The Supreme Court has recognized that where Congress commits decisions to agency discretion, with “no meaningful standard” for judicial review, we cannot review such decisions. Heckler v. Chaney, 470 U.S. 821, 830 (1985).
The majority, however, in misconstruing
Because the majority opinion‘s arrogation of power unto itself is wrong, I adamantly dissent. Because the district court properly understood the judiciary‘s exclusion from reviewing discretionary agency decisions as prescribed by Congress, I would affirm the district court‘s dismissal for lack of jurisdiction.
I.
In 2000, Congress created a limited discretionary category allowing certain aliens who would not otherwise be permitted to remain in the United States to stay and even pursue a pathway to permanent residence. This new category (known as “U nonimmigrant status” or “U visa“) provides certain aliens with nonimmigrant status under section
classification” was to “strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes,” while also “offering protection to victims of such offenses in keeping with the humanitarian interests of the United States.” H.R. REP. NO. 106-939, at 72 (2000) (Conf. Rep.); Victims of Trafficking & Violence Protection Act of 2000 (“VTPA“), Pub. L. No. 106-386, § 1513(a), 114 Stat. 1533-37 (2000). The U visa was created with a particular focus on women and children who, according to Congress‘s findings, “are often targeted to be victims of crimes committed against them in the United States.” H.R. REP. NO. 106-939, at 71. Because alien victims may not have legal status and may be reluctant to report being victims to a crime or to help in the investigation or prosecution of criminal activity due to fear of removal, Congress “[p]rovid[ed] temporary legal status to aliens who have been severely victimized by criminal activity” in order to “comport[] with the humanitarian interests of the United States.” Id. at 72. Congress emphasized that “this section gives the Attorney General discretion to convert the status of such nonimmigrants to that of permanent residents when doing so is justified on humanitarian grounds, for family unity, or is otherwise in the public interest.” Id.
To be eligible for a U visa, a nonimmigrant alien must meet the following four statutory requirements:
(I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii);
(II) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity described in clause (iii);
(III) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and
(IV) the criminal activity described in clause (iii) violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States[.]
Congress presumably specified particularly serious and violent crimes with the intent to protect “severely victimized” aliens. H.R. REP. NO. 106-939, at 72. Relevant to Perez, a qualifying criminal activity under the statute includes “felonious assault.” Id.
In a U visa petition, the petitioner must include a Form I-918, Supplement B (“the certification“), which is:
[A] certification from a Federal, State, or local law enforcement official, prosecutor, judge, or other Federal, State, or local authority investigating criminal activity described in section 1101(a)(15)(U)(iii) of this title. . . . This certification shall state that the alien “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of criminal activity described in section 1101(a)(15)(U)(iii) of this title.
USCIS is the agency responsible for determining, adjudicating, and revoking U visas. See New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53,014 (Sept. 17, 2007) (to be codified at
II.
Perez asserts that he was harassed in violation of Washington State law,
As proof to satisfy this requirement, you submitted a copy of an [sic] temporary anti-harassment order that was unable to be served. On March 25, 2014, you were requested to submit additional evidence to demonstrate that the crime, harassment; would be considered a crime related to those listed in regulation. You responded on June 18, 2014, with a letter from your attorney but you did not provide sufficient evidence to prove that your crime of harassment is similar to a certified crime listed on the Supplement B.
You were also requested in your request for evidence letter that was sent to you on March 25, 2014, to provide a supplement B that was dated within six (6) months of the date of the petition. You responded with a letter from your attorney on June 18, 2014 but did not provide a new Supplement B signed within the regulation time requirements.
The evidence, as presented, does not establish that you have been a victim of qualifying criminal activity. The record does not contain satisfactory evidence to establish your eligibility under this requirement.
On appeal, the Administrative Appeals Office (“AAO“) found that Perez did not establish that he was a victim of a qualifying crime and thus dismissed the appeal. Perez asserted that even though the Renton Police Department listed on the certification that the alleged crime was one of “harassment,” he was actually a victim of “felony harassment,” which involves or is substantially similar to “felony assault,” an enumerated qualifying crime. The AAO explained, “the nature and elements of the harassment offense must be substantially similar to one of the qualifying criminal activities in the statutorily enumerated list” and the “inquiry, therefore, is not fact-based, but rather entails comparing the nature and elements of the statutes in question.” In comparing the statutes of harassment under
The AAO further rejected Perez‘s assertion that he suffered felonious assault—based on the argument that the harassment “involved a threat to kill him that placed him in apprehension of harm“—finding that Perez did not allege anything other than “harassment” in his U visa petition. Nothing in his U visa petition indicates that felony harassment was the basis of his Form I-918 Supplement B. In assessing the elements of the crime that he actually asserted (i.e., harassment), the AAO found that there was no evidence in the record to support a finding that Perez was a victim of any qualifying criminal activity.
Perez filed a motion to reconsider the AAO‘s decision, which was denied on the basis that he “has not demonstrated that he was a victim of qualifying criminal activity.” First, the AAO found that “the record as a whole does not establish that the certifying agency detected or investigated felony harassment,” but rather the only crime listed on the certification form was “harassment, which is a gross misdemeanor under Washington law and is not an enumerated offense under section 101(a)(15)(U)(iii) of the Act.” The AAO next found that even if felony harassment had been detected by the Renton Police Department, Perez “has not demonstrated that it is substantially similar to the qualifying criminal activity of felonious assault.” Based on a comparison of the statutes in question (not a fact-based inquiry), the AAO concluded:
The statutory elements of felony harassment under Wash. Rev. Code section 9A.46.020(2)(b)(ii) . . . involve[] the communication of a threat to kill and placing the threatened person in reasonable fear that the threat will be carried out through words or conduct. However, felony assault does not require a communication of a threat for a conviction. State v. Mandanas, 262 P.3d 522, 526-27 (Wash. Ct. App. 2011). Additionally, a felony harassment conviction does not require an added aggravating factor beyond the threat, such as the use of a
weapon or commission of the offense with the intention to commit a felony. Moreover, contrary to [Perez]‘s assertions on motion, Washington case law indicates that a plain reading of the harassment and assault statutes shows that the state legislature “intended to distinguish felony harassment and second degree assault as distinct offenses.” Mandanas, 262 P.3d at 526-27.[] In fact, the Mandanas court specifically held that second degree assault and harassment had different elements. Id. at 526.
Perez filed an APA suit in the United States District Court for the Western District of Washington against the Secretary of Homeland Security, the Acting Director of the USCIS, and others, alleging the denial of his U visa was erroneous because: the Renton Police Department at least “detected” that he was a victim of felony harassment; he demonstrated that the detected felony harassment involved felonious assault; the agencies failed to consider credible and material evidence; and he could establish eligibility for a U visa. The parties filed cross motions for summary judgment.
In dismissing the action for lack of subject matter jurisdiction, the district court concluded that this case fell into the
In the Ninth Circuit, courts “lack[] jurisdiction over the [USCIS‘] determinations regarding U Visas.” Seo v. Holder, 358 F. App‘x 884 (9th Cir. 2009) (citing Ramirez Sanchez v. Mukasey, 508 F.3d 1254, 1555-56 (9th Cir. 2007) (per curiam)). In addition, a district court within this Circuit recently surveyed U-visa cases and could not find “any federal court that has exercised jurisdiction over questions of a Petitioner‘s eligibility for a U-Visa.” Nsinano v. Sessions, 236 F. Supp. 3d 1133, 1137 (N.D. Cal. 2017). Although Mr. Perez provided a number of cases generally supporting judicial review under the APA, he did not offer any cases where a court reviewed the agency‘s U-visa determination. (See Pl. Opp. & Reply (Dkt. #27) at 3-7.).
The court thus held that the USCIS‘s denial of Perez‘s petition was not subject to judicial review, and dismissed the administrative appeal for lack of subject matter jurisdiction. Perez timely appealed.
III.
We review de novo a district court‘s dismissal for lack of subject matter jurisdiction. Yu-Ling Teng v. District Director, U.S. Citizenship & Immigration Servs., 820 F.3d 1106, 1108 (9th Cir. 2016).
IV.
Congress‘s intent in creating a new nonimmigrant category was to vest to the USCIS the absolute discretionary authority over U visas with sole jurisdiction over U visa petitions, with sole discretion to determine the evidentiary value of the petitioner‘s evidence when ruling on a petition, and with the adjudicative authority in determining whether to grant or deny a U visa and whether to subsequently revoke such status. To restrict USCIS‘s discretionary authority by allowing courts to review U visa decisions would not only contradict
A.
Similarly,
The only controls Congress placed on the Secretary of Homeland Security‘s discretion in administering U visas were duties to: (1) provide qualifying aliens with referrals to nongovernmental organizations to advise the aliens regarding their options and resources available to them while in the United States; (2) provide the
In sum, nothing in the applicable U visa statutes—
The applicable U visa regulations reinforce that the agency has discretion over U visa application and that there are no judicially manageable standards. An alien‘s eligibility for U nonimmigrant status is expressly contingent upon the USCIS‘s determination of the evidentiary value of materials submitted and USCIS‘s determination that the petitioner has met the requirements for U visa status. See
B.
I have no quarrel with the majority‘s sua sponte questioning of jurisdiction under
As noted, the applicable U visa statutes—INA‘s
In contrast, the applicable U visa statutes in Perez‘s case,
Although we have not published on this issue, our unpublished decisions agree that our court lacks jurisdiction to review USCIS‘s denial of U visa petitions. See, e.g., Eun Kyeong Seo v. Holder, 358 F. App‘x 884 (9th Cir. 2009) (“This court lacks jurisdiction over [USCIS] determinations regarding U visas.“); Chang Young Jung v. Holder, 393 F. App‘x 530 (9th Cir. 2010) (“We lack jurisdiction to review [USCIS (emphasis added).
Moreover, we recently issued an analogous decision that ”
Moreover, decisions by the Fifth, Seventh, Eleventh, and D.C. Circuits also hold that courts lack jurisdiction to review U visa petitions. See Torres-Tristan v. Holder, 656 F.3d 653, 659 (7th Cir. 2011) (“[J]udicial review in the circuit courts of appeals of U visa denials . . . would appear to be unprecedented. Our decisions reflect a longstanding practice of not reviewing visa denials in general“); L.D.G. v. Holder, 744 F.3d 1022, 1024 (7th Cir. 2014) (“[T]he decision whether to grant a U Visa is statutorily committed to the discretion of the Secretary of Homeland Security, see
It is our general rule to decline to create a circuit split unless there is a compelling
V.
Indeed, Perez‘s case is a particularly unsuitable vehicle for expanding the judiciary‘s review of denials of U visas. As noted by the majority, Perez‘s complaint alleged that the agency (1) failed to consider all credible evidence, (2) erred in concluding that “felony harassment does not constitute a qualifying criminal activity,” and (3) made an unsupported finding in concluding that “felony harassment was not detected by law enforcement.” Maj. op. at 12. First, there is simply nothing to support the allegation that the agency did not consider all the evidence Perez proffered. Second, as noted, there are substantial differences between the “harassment” alleged by Perez and criminal harassment under Washington law. See infra at 37-40. Third, the record not only supports, but compels, the conclusion that “felony harassment was not detected by law enforcement.” The record shows that Perez alleges that he loaned money to two individuals and that when he requested repayment they threatened him. He then reported this to the police and sought an anti-harassment order. But the police determined that the alleged threats were not definite enough to support the filing of harassment charges and the anti-harassment order was dismissed because the defendant was not able to be served. In sum, the only evidence that Perez “suffered substantial physical or mental abuse as a result of having been a victim of criminal activity,” or had been helpful to authorities “investigating or prosecuting criminal activity,” see
VI.
Congress granted the USCIS absolute discretionary authority over U visa decisions. The Supreme Court prohibits us from reviewing decisions that Congress commits to agency discretion. The majority opinion breaches the separation of powers between our branches of government to arrogate the power unto itself to review the discretionary decisions of U visas. By misapplying the applicable statutes, by ignoring every other circuit that has decided this issue before us, and by violating the proper role of courts in our government, the majority opinion opens “Pandora‘s box” to courts reviewing the USCIS‘s decision of the approximately 250,000 U visa petitions currently pending before the USCIS seeking discretionary relief. This is not required by the applicable statutes and regulations, is unprecedented in our circuit, and contrary to the consistent position of our sister circuits. Because I would affirm the district court‘s dismissal for lack of subject matter jurisdiction, I dissent.
Notes
USCIS had set forth that an alien seeking a national-interest waiver must show:
(1) that the foreign national‘s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
Matter of Dhanasar, 26 I. & N. Dec. 884, 889 (2016). Nonetheless, we held that such a determination remained discretionary and not subject to judicial review.