and Submitted April 9, 2019 Seattle, Washington
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
Cruz (argued), Rios & Cruz P.S., Seattle, Washington, for
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
Before: William A. Fletcher, Consuelo M. Callahan, and Morgan
Christen, Circuit Judges.
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
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).
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.
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
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.
FLETCHER, CIRCUIT JUDGE
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).
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
reverse and remand.
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.
Visa Statutory and Regulatory Framework
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.
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).
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. §
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).
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.
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).
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,
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).
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.
Factual and Procedural Background
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.
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.
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
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.
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."
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
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
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).
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).
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.
§ 701(a)(2) of the APA
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
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 ...