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Perez v. Wolf

United States Court of Appeals, Ninth Circuit

November 22, 2019

Pedro Tomas Perez Perez, Plaintiff-Appellant,
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, Defendants-Appellees.

          Argued and Submitted April 9, 2019 Seattle, Washington

          Appeal from the United States District Court for the Western District of Washington D.C. No. 2:17-cv-00249-JLR James L. Robart, District Judge, Presiding

          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.

          Before: William A. Fletcher, Consuelo M. Callahan, and Morgan Christen, Circuit Judges.

         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 § 701(a)(2) of the Administrative Procedure Act ("APA"), nor 8 U.S.C. § 1252(a)(2)(B)(ii) - both of which preclude review of certain discretionary agency decisions - barred review of Perez's claims under the APA.

         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 § 701(a)(2).

         The panel held that Perez's claims were not barred by APA § 701(a)(2), which precludes judicial review of actions "committed to agency discretion by law," where there is no judicially manageable standard by which a court can judge how the agency should exercise its discretion. Explaining that the relevant statutes establish the requirements for a U visa, as well as application procedures and agency duties, the panel concluded that the statutory framework affords meaningful standards for reviewing claims challenging USCIS's compliance with that framework. Responding to the dissent's argument that regulations grant USCIS "sole jurisdiction" over U visa petitions and "sole discretion" to determine the value of evidence, the panel observed that the statues themselves use no such language. The panel also explained that it does not follow from the fact that USCIS has sole jurisdiction to issue U visas that a court is without jurisdiction to review USCIS's decision.

         Further, after sua sponte consideration, the panel held that 8 U.S.C. § 1252(a)(2)(B)(ii), which bars judicial review of immigration decisions or actions "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," does not strip the court of jurisdiction to review Perez's action. First, the panel explained that the U visa statutory provisions at 8 U.S.C. §§ 1101(a)(15) and 1184(p) do not "specify" that the authority to grant or deny a U visa petition is in the discretion of the Secretary of Homeland Security, observing that neither provision uses the word "discretion" or any synonym. The panel also concluded that, even though agency regulations provide that USCIS will determine, "in its sole discretion," the evidentiary value of the evidence, regulatory declarations of discretion, standing alone, do not trigger § 1252(a)(2)(B)(ii). Second, the panel explained that the relevant statutes establish statutory standards that constrain the Secretary's U visa determinations such that the determinations are not wholly discretionary.

         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.

          OPINION

          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 § 701(a)(2) of the APA precludes judicial review because U visa determinations are "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). On appeal, Perez argues that § 701(a)(2) does not apply, contending that the statutory and regulatory framework governing U visa determinations affords "meaningful standards" for reviewing his claims. Heckler v. Chaney, 470 U.S. 821, 834 (1985).

         We hold that § 701(a)(2) does not bar judicial review of Perez's APA claims. We hold, further, after sua sponte consideration, that § 1252(a)(2)(B)(ii) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") does not strip jurisdiction over Perez's action.

         We reverse and remand.

         I. Background

         In determining whether judicial review is precluded by § 701(a)(2), "we consider 'the language of the statute and whether the general purposes of the statute would be endangered by judicial review.'" ASSE Int'l, Inc. v. Kerry, 803 F.3d 1059, 1068 (9th Cir. 2015) ("ASSE") (quoting Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011)). We may also consider agency regulations and policy. Pinnacle, 648 F.3d at 719.

         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 agencies to detect, investigate, and prosecute [certain crimes] . . . against aliens, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States." VTVPA, Pub. L. No. 106-386, § 1513(a), 114 Stat. 1533(a)(2). It is also intended to "encourage law enforcement officials to better serve immigrant crime victims and to prosecute crimes committed against aliens" and "facilitate the reporting of crimes to law enforcement officials by trafficked, exploited, victimized, and abused aliens who are not in lawful immigration status." Id.

         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. 8 U.S.C. § 1101(a)(15)(U)(i). Helpfulness may also be assessed in connection with the "detection" of qualifying criminal activity. 8 C.F.R. § 214.14(a)(5), (c)(2)(i).

         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.

8 U.S.C. § 1101(a)(15)(U)(iii) (emphasis added). The phrase "any similar activity" "refers to criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities." 8 C.F.R. § 214.14(a)(9). The qualifying criminal activity must have "violated the laws of the United States or occurred in the United States." 8 U.S.C. § 1101(a)(15)(U)(i)(IV).

         To apply for a U visa, a petitioner must file with USCIS a Form I-918, Petition for U Nonimmigrant Status. See 8 C.F.R. § 214.14 ("USCIS has sole jurisdiction over all petitions for U nonimmigrant status."). The petition packet must contain the following document:

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 . . . .

8 U.S.C. § 1184(p)(1) (emphasis added).

         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"). 8 C.F.R. § 214.14(c)(2)(i). Parts One and Two of the form ask for identifying information of the petitioner and the certifying law enforcement agency. In Part Three, the certifying official is asked to identify the qualifying criminal activity of which the petitioner was a victim and to "describe the criminal activity being investigated and/or prosecuted and the involvement" of the petitioner. In Part Four, labeled "Helpfulness of the Victim," the certifying official is asked to affirm or deny whether the petitioner has been, is being, or is likely to be helpful in the investigation or prosecution of qualifying criminal activity. If the certifying official affirms the petitioner's helpfulness, the official is asked to explain that answer in a space provided on the form. The certifying official must sign the certification form under penalty of perjury.

         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." 8 C.F.R. § 214.14(c)(2)(iii). The petitioner may also submit "additional evidence" to establish U visa eligibility. 8 C.F.R. § 214.14(c)(2)(ii).

         In acting on a petition, USCIS "shall consider any credible evidence relevant to the petition." 8 U.S.C. § 1184(p)(4). Agency regulations add that "USCIS will determine, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence," including the certification form. 8 C.F.R. § 214.14(c)(4). In practice, USCIS gives a properly executed certification form "significant weight," though it "will not consider such certification to be conclusory evidence that the petitioner has met the eligibility requirements." 72 Fed. Reg. 53014, 53024 (Sept. 17, 2007).

         "If USCIS determines that the petitioner has met the requirements for U-1 nonimmigrant status, USCIS will approve Form I-918." 8 C.F.R. § 214.14(c)(5)(i). "For a petitioner who is within the United States, USCIS also will concurrently grant U-1 nonimmigrant status, subject to the annual [10, 000 U visa cap]." Id. "All eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list." 8 C.F.R. § 214.14(d)(2). Petitioners on the waiting list are granted deferred action or parole while waiting for additional U visas to become available. Id. Once petitioners receive a U visa, they may apply for permanent resident status after three years of continued physical presence in the United States as a U nonimmigrant, provided they have not "unreasonably refused to provide assistance in a criminal investigation or prosecution." 8 U.S.C § 1255(m)(1).

         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." 8 C.F.R. § 214.14(c)(5)(ii). "The petitioner may appeal a denial of Form I-918 to the Administrative Appeals Office (AAO)[.]" Id.

         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 8 U.S.C. § 1101(a)(15)(U). Perez's petition package contained his I-918 Form and completed certification form, as well as supplemental materials including the above described police report and Perez's anti-harassment order petition. The certification form, which was completed by the Commander of the Investigations Division of the Renton Police Department, indicates that Perez was the victim of "harassment" under Wash. Rev. Code § 9A.46.020 between August 2009 and October 2011. In the box that asks the certifying official to "describe the criminal activity being investigated and/or prosecuted and the involvement of the individual," the Commander wrote: "This was an informational case and no charges were filed. Description was harassment 9A.46.020 as noted by the officer." In the box labeled "Helpfulness of the victim," the Commander wrote:

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." Wash. Rev. Code §§ 9A.46.020(1)(a)-(b), (2)(b)(ii) (2011). He further argued that the Washington police had "at least detected felony harassment," even if they did not further investigate that crime. Finally, Perez argued that felony harassment "involves or is substantially similar to" the qualifying crime of felony assault, and that the agency therefore erred when it concluded that Washington police had not detected a qualifying crime in Perez's case. The AAO denied the motion to reconsider. It concluded that "while felony harassment and/or felonious assault may have also occurred, there is no indication that the certifying agency actually detected or investigated those offenses." Further, it concluded that even if felony harassment had been detected, such harassment is not "substantially similar" to felony assault under Washington law.

         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, 5 U.S.C. § 706(2). Specifically, Perez claims that the agency acted contrary to statute by "fail[ing] to consider all credible evidence," erred in concluding that "felony harassment does not constitute a qualifying criminal activity," and made a finding unsupported by substantial evidence when it concluded "that felony harassment was not detected by law enforcement."

         After the parties filed cross-motions for summary judgment, the district court dismissed Perez's action for lack of subject matter jurisdiction. The district court concluded that Perez's action was not reviewable under the APA because of the APA's exception for "agency action [that] is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The district court determined that § 701(a)(2) applies because "[i]n the U-visa context, there is no judicially manageable standard by which a court can judge how USCIS should exercise its discretion."

         Perez timely appealed. We have jurisdiction under 28 U.S.C. § 1291. "We review de novo the district court's dismissal for lack of subject matter jurisdiction." Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1136 (9th Cir. 2013).

         II. Discussion

         "The default rule is that agency actions are reviewable under federal question jurisdiction, pursuant to 28 U.S.C. § 1331 . . . even if no statute specifically authorizes judicial review." ANA Int'l, Inc. v. Way, 393 F.3d 886, 890 (9th Cir. 2004) ("ANA"). The APA reinforces this presumption of judicial reviewability by "confer[ring] a general cause of action upon persons 'adversely affected or aggrieved by agency action within the meaning of a relevant statute[.]'" Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984) (quoting 5 U.S.C. § 702).

         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 5 U.S.C. § 701(a)(1); Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 44 (1991)). The second is in the "'rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply,' thereby leaving the court with 'no meaningful standard against which to judge the agency's exercise of discretion.'" Id. (quoting Webster v. Doe, 486 U.S. 592, 599 (1988); Chaney, 470 U.S. at 830). The APA reflects these two exceptions. Review under the APA is unavailable when "statutes preclude judicial review," 5 U.S.C. § 701(a)(1), and when the "agency action is committed to agency discretion by law," id. at § 701(a)(2).

         The district court dismissed Perez's action as unreviewable under § 701(a)(2) after concluding that "there is no judicially manageable standard by which a court can judge how USCIS should exercise its discretion." The first issue on appeal is whether the U visa statutory and regulatory framework furnishes meaningful standards by which to review Perez's claims under the APA. The second issue, which we raise sua sponte, is whether IIRIRA's jurisdiction-stripping provision, codified at 8 U.S.C. § 1252(a)(2)(B)(ii), precludes judicial review.

         A. § 701(a)(2) of the APA

         Section 701(a)(2) of the APA precludes judicial review of agency actions "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). We "read the exception in § 701(a)(2) quite narrowly." Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S.Ct. 361, 370 (2018). We must decide whether § 701(a)(2) precludes judicial review of the denial of Perez's U visa petition by USCIS.

         In Spencer Enterprises, Inc. v. United States, 345 F.3d 683 (9th Cir. 2003) ("Spencer"), we decided the closely related issue of whether § 701(a)(2) precludes judicial review of the denial of an EB-5 immigrant investor visa petition by the Immigration and Naturalization Service ("INS"). We began our analysis with the principle that § 701(a)(2) applies only in the "rare instances" where "the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Spencer, 345 F.3d at 688 (quoting Chaney, 470 U.S. at 830). We then turned to the "statutory framework" governing immigrant investor visas. We held that there are "meaningful standards by which to review INS's action" because the agency's visa determination "is guided by the statutory ...


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