Navarro v. U.S. Dep't of Homeland Sec., Case No. 17-cv-06404-DMR

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtDonna M. Ryu United States Magistrate Judge
Decision Date01 April 2020
Docket NumberCase No. 17-cv-06404-DMR


Case No. 17-cv-06404-DMR


April 1, 2020


Re: Dkt. Nos. 69, 73

Plaintiffs Esthefany Chaparro Navarro ("Chaparro Navarro") and Manuel Morales Rodriguez ("Morales") filed this action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and the Mandamus & Venue Act of 1962 ("MVA"), 28 U.S.C. § 1361, seeking to reverse the United States Citizenship and Immigration Services's ("USCIS") revocation of Chaparro Navarro's previously-approved Petition for U Nonimmigrant Status and the agency's consequent denial of derivative U nonimmigrant status to her father, Morales. Plaintiffs now move pursuant to Federal Rule of Civil Procedure 56 for summary judgment to reverse the November 30, 2018 decision by USCIS's Administrative Appeals Office affirming the revocation. [Docket No. 69 (Pls.' Mot.).] Defendants Department of Homeland Security ("DHS"), USCIS, Kevin K. McAleenan, L. Francis Cissna, Laura B. Zuchowski, and Barbara Q. Velarde cross-move for summary judgment to affirm the AAO's decision. [Docket No. 73 (Defs.' Mot).]

The court held a hearing on December 19, 2019 and ordered the parties to submit supplemental briefing. [Docket No. 78.] The parties timely filed the requested briefing. [Docket Nos. 79-82.] For the following reasons, Plaintiffs' motion is granted in part and denied in part.


In 2000, Congress created the U nonimmigrant status or the "U visa" as part of the Victims

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of Trafficking and Violence Protection Act of 2000 (the "Act"). Pub. L. 106-386, § 1513, 114 Stat. 1464 (2000). U nonimmigrant status is a classification for victims of certain crimes who report those crimes to law enforcement and cooperate in their investigation or prosecution.1 Congress later passed legislation directing the Secretary of Homeland Security and others to promulgate regulations to implement the provisions of the Act. Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162, 828, 119 Stat. 2960 (2006). DHS's resulting regulations give USCIS sole jurisdiction over all U visa petitions. 8 C.F.R. § 214.14(c)(1).

A petitioner must meet several criteria to be eligible for U nonimmigrant status, including the following: the petitioner must (1) have "suffered substantial physical or mental abuse as a result of having been a victim of" qualifying criminal activity; (2) possess information about the qualifying criminal activity; and (3) be "helpful" or "likely to be helpful" to a federal, state, or

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local law enforcement official or prosecutor, a federal or state judge, the Immigration and Naturalization Service of the Department of Justice, or to other federal, state, or local authorities investigating or prosecuting qualifying criminal activity. 8 U.S.C. § 1101(a)(15)(U)(i). The statute defines qualifying criminal activity as "that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law," and lists numerous categories of criminal activity. 8 U.S.C. § 1101(a)(15)(U)(iii). The corresponding regulation states that "[t]he term '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). Of relevance here, qualifying criminal activity includes "felonious assault." 8 U.S.C. § 1101(a)(15)(U)(iii). The burden of establishing U nonimmigrant status is on the petitioner. 8 C.F.R. § 214.14(c)(4).

If USCIS approves a petition for U nonimmigrant status, the petitioner receives lawful nonimmigrant status and employment authorization for four years. 8 U.S.C. §§ 1184(p)(3)(B), 1184(p)6). The petitioner may also apply for U nonimmigrant status for certain qualifying relatives. Where, as here, the petitioner is under 21 years old, qualifying relatives include the petitioner's parents. 8 U.S.C. § 1101(a)(15)(U)(ii)(I). After three years of continuous physical presence in the United States, an individual with a U visa may apply to become a lawful permanent resident. 8 U.S.C. § 1255(m)(1).

The regulations provide that USCIS may revoke an approved petition for U nonimmigrant status upon notice to the petitioner for certain enumerated reasons, including where "[a]pproval of the petition was in error." 8 C.F.R. § 214.14(h)(2)(i)(B). The revocation process requires USCIS to notify the petitioner in writing of its intent to revoke, and the notice must "contain a statement of the grounds for the revocation and the time period for the U nonimmigrant's rebuttal." 8 C.F.R. § 214.14(h)(2)(ii). If USCIS revokes the petition and terminates the petitioner's U nonimmigrant status, the regulation requires USCIS to provide the petitioner "with a written notice of revocation that explains the specific reasons for the revocation." Id. The petitioner may appeal a revocation by providing notice to the Administrative Appeals Office ("AAO") within a certain time period. 8 C.F.R. § 214.14(h)(3). Revocation of an approved petition for U nonimmigrant status terminates

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that status for the "principal alien," and results "in the denial of any pending [petitions] filed for qualifying family members . . ." 8 C.F.R. § 214.14(h)(4).


Plaintiffs Chaparro Navarro and Morales are natives and citizens of Mexico who live in San Francisco. [Docket No. 65 (1st Am. Compl., "FAC") ¶¶ 13, 14.] In February 2010, a man attempted to steal Chaparro Navarro's purse and then forcibly removed necklaces from her neck and fled. Chaparro Navarro was 14 years old at the time. Chaparro Navarro Administrative Record, "CNAR," 156, 317, 345.2 After Chaparro Navarro identified a suspect, prosecutors charged him with felony child endangerment and felony robbery. The case was eventually settled as a misdemeanor. Chaparro Navarro "was cooperative during the whole process" of investigation and prosecution of the crime. CNAR 156. Following the robbery, Chaparro Navarro became depressed and fearful. She received therapy and was diagnosed with depressive disorder, NOS and post-traumatic stress disorder. CNAR 346, 349.

In December 2011, Chaparro Navarro filed a petition for U nonimmigrant status. CNAR 289-96. USCIS granted her petition on October 1, 2012. CNAR 289, 353. On April 8, 2013, Chaparro Navarro filed a petition for derivative U nonimmigrant status on behalf of her father, Morales. Morales Administrative Record, "MAR," 11-19.

On September 16, 2014, USCIS issued a notice of intent to revoke its 2012 approval of Chaparro Navarro's petition for U nonimmigrant status on the ground that "the approval was in error." CNAR 353-55. In its notice, USCIS stated that the evidence submitted with Chaparro Navarro's petition did not establish that she was a victim of felonious assault. CNAR 354. Chaparro submitted a response on October 17, 2014 in which she argued that robbery under California law is a felonious assault and thus she was a victim of a qualifying crime under 8 C.F.R. § 214.14(a)(9). She also submitted additional evidence and briefing in support of her response. CNAR 358-408. On October 7, 2015, USCIS notified Chaparro Navarro that her

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petition was revoked because "what happened to [Chaparro Navarro] is not substantially similar to felonious assault." CNAR 287-88. USCIS also denied Morales's derivative petition. MAR 7-8.

In November 2015, Chaparro Navarro appealed the revocation to USCIS. CNAR 241-42. In her appeal, Chaparro Navarro argued that robbery and felony child endangerment are substantially similar to felonious assault. She also argued that USCIS lacks statutory authority to revoke an individual's U nonimmigrant status. CNAR 144-51.

The AAO dismissed her appeal in a decision issued on November 8, 2016, concluding that the revocation was proper because Chaparro Navarro was not the victim of qualifying criminal activity. It further concluded that "USCIS has the authority to revoke an approved petition for U nonimmigrant status under 8 C.F.R. § 214.14(h)." CNAR 135-42.

Chaparro Navarro filed this lawsuit on November 2, 2017. On September 6, 2018, USCIS notified Chaparro Navarro that it had reopened her appeal and gave her the opportunity to submit further evidence and arguments in support of her eligibility for U nonimmigrant status. CNAR 15-16. Chaparro Navarro submitted further evidence and arguments and the AAO issued a second decision on November 30, 2018, again finding that Chaparro Navarro was not the victim of qualifying criminal activity. CNAR 1-14, 17-38. The AAO also concluded that even if Chaparro Navarro "had established that she was the victim of a qualifying crime or criminal activity substantially similar to a qualifying crime, the record does not establish that she suffered substantial [physical or mental] abuse as a result" of the crime. CNAR 12. The November 30, 2018 AAO decision constitutes the final agency action in this case.


Plaintiffs challenge the AAO's November 30, 2018 decision under 5 U.S.C. § 706(2)(A) and (C).3 These provisions state that a reviewing court "shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of

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discretion, or otherwise not in accordance with law; [or] . . . (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right . . ."

A. Review Under 5 U.S.C. § 706(2)(A)

"Review under the arbitrary and capricious standard is deferential." Nat'l Ass'n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007). In such cases, a district court's role is not fact-finding. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994). "[T]he function...

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