Perez v. Wolf, No. 18-35123

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtW. FLETCHER, Circuit Judge
Citation943 F.3d 853
Parties 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.
Decision Date22 November 2019
Docket NumberNo. 18-35123

943 F.3d 853

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.

No. 18-35123

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 2019 Seattle, Washington
Filed November 22, 2019


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, 105 S.Ct. 1649, 84 L.Ed.2d 714 (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

943 F.3d 857

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

943 F.3d 858

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)(...

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