Zixiang Li v. Kerry

• Citation: 710 F.3d 995
• Decision Date: 20 March 2013
• Docket Number: No. 11–35412.,11–35412.
• Parties: ZIXIANG LI; Jun Li; Jun Guo; Shibao Zhang; Ming Chang, on behalf of themselves as individuals and on behalf of others similarly situated, Plaintiffs–Appellants, v. John F. KERRY, Secretary of State; United States of America; Janet A. Napolitano, Secretary of Department of Homeland Security; Alejandro Mayorkas, Director of Citizenship and Immigration Services; Department of Homeland Security; United States Citizenship and Immigration Services, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

710 F.3d 995

ZIXIANG LI; Jun Li; Jun Guo; Shibao Zhang; Ming Chang, on behalf of themselves as individuals and on behalf of others similarly situated, Plaintiffs–Appellants,

v.John F. KERRY,^* Secretary of State; United States of America; Janet A. Napolitano, Secretary of Department of Homeland Security; Alejandro Mayorkas, Director of Citizenship and Immigration Services; Department of Homeland Security; United States Citizenship and Immigration Services, Defendants–Appellees.

No. 11–35412.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted July 9, 2012.

Filed March 20, 2013.

Robert Pauw (argued), Robert Harrison Gibbs, Gibbs Houston Pauw, Seattle, WA, for Plaintiffs–Appellants.

Aaron S. Goldsmith (argued), United States Department of Justice, Office of Immigration Litigation, Washington, D.C., Helen J. Brunner, Rebecca Shapiro Cohen, Asst. U.S. Attys., Office of the U.S. Attorney, Seattle, WA, for Defendants–Appellees.

Appeal from the United States District Court for the Western District of Washington, Richard A. Jones, District Judge, Presiding. D.C. No. 2:10–cv–00798–RAJ.

Before: STEPHEN REINHARDT, ANDREW J. KLEINFELD, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

M. SMITH, Circuit Judge:

Plaintiffs–Appellants, certain individuals from China seeking permanent residency in the United States, appeal from the district court's dismissal of their claims under the Immigration and Nationality Act (INA) against federal Defendants–Appellees.¹ In their complaint, Plaintiffs allege that Defendants misallocated immigrant visas to eligible applicants in the employment-based third preference category (EB–3) during the 2008 and 2009 fiscal years. Plaintiffs request that visa numbers be made available to them and other members of their class so that they can obtain visas or adjustment of status before the end of the fiscal year.

We hold that the district court properly dismissed the complaint because there is no live case or controversy about the establishment of visa cut-off dates, and the allocation of visa numbers, in the 2008 and 2009 fiscal years. We also hold that the district court did not err in dismissing Plaintiffs' claims for prospective relief because they did not allege that Defendants failed to take discrete actions they were legally required to take. Accordingly, we affirm the decision of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

This case concerns applications for visas by professionals and skilled workers in the EB–3 category. To become eligible for such visas, an alien's employer must first file an application for labor certification with the Department of Labor (DOL), requesting certification that there are no qualified workers in the United States available to fill a relevant job opening. See8 U.S.C. § 1182(a)(5)(A)(i). Once DOL provides such a certification, the employer may file a petition requesting that USCIS approve the alien for a visa in the EB–3 category. See8 C.F.R. § 204.5(a). The date a request for certification is accepted for processing by DOL is called the “priority date.” See8 C.F.R. § 204.5(d). Once the alien's priority date becomes “current,” the alien becomes eligible to be allotted an immigrant visa number, and he or she may file an application for adjustment of status with USCIS, if the alien is then physically located within the United States. See8 U.S.C. § 1255(a).

USCIS has jurisdiction to adjudicate an application for adjustment of status. See8 C.F.R. § 245.2(a)(1). Pursuant to 8 C.F.R. § 245.2(a)(5)(ii), however, USCIS may not approve an application for adjustment of status until the Department of State (DOS) has allocated an immigrant visa number. See8 C.F.R. § 245.2(a)(5)(ii). In allocating visa numbers, DOS must comply with the worldwide and per-country limits on the number of employment-based preference immigrant visas established by Congress. See8 U.S.C. §§ 1151(a)(2) (worldwide limit), 1152(a)(2) (per-country limit). To process these congressionally imposed limits in an orderly manner, the Secretary of State is authorized to “make reasonable estimates of the anticipated numbers of visas to be issued during any quarter of any fiscal year ... and to rely upon such estimates in authorizing the issuance of visas.” 8 U.S.C. § 1153(g).

DOS's Visa Office subdivides the annual number of employment-based visas, taking into consideration per-country limits established by Congress, into monthly allotments. The Visa Office considers several variables in determining how many visa numbers to make available, such as past number use, expected future number use, and estimates of additional USCIS demand. Once the number of available visa numbers has been calculated, DOS allocates numbers to applicants.

The total number of qualified applicants are compared each month with the visa numbers available for the next regular allotment. When the number of qualified applicants in a category exceeds the supply of numbers available for allotment in a particular month, the category is deemed oversubscribed, and DOS creates a visa availability cut-off date for that category. The cut-off date is the priority date of the first qualified alien for whom a visa number was not available. When visas are thus oversubscribed, only persons with a priority date earlier than the cut-off date are entitled to be allotted a visa number.

Plaintiffs brought suit in 2010 on behalf of a class of individuals from China, who are seeking to acquire permanent resident status in the EB–3 visa category. They claim that during the 2008 and 2009 fiscal years, Defendants did not allocate immigrant visas to eligible applicants in the correct order, thereby delaying their applications, and their eligibility for adjustment of status. According to Plaintiffs, DOS's Visa Office also failed to maintain an adequate registration list or to properly monitor USCIS's use of immigrant visa numbers, “in part or in whole because the Visa Office does not have accurate information from USCIS concerning the number of applications pending and concerning USCIS demand for immigrant visa numbers.” As a result, the Visa Office allegedly established cut-off dates that allowed EB–3 visas to be made available to individuals from countries other than China before the class members from China, even though the class members had earlier priority dates, and China's EB–3 limit had not yet been reached. Accordingly, “the rest of the world was able to use immigrant visas up to its limit in the [EB–3] category, but the China [EB–3] category was not able to use immigrant visas up to its limit even though there was sufficient demand.” Plaintiffs allege that they and their derivative beneficiaries would have been approved for permanent resident status in fiscal year 2008 or fiscal year 2009 but for governmental errors in allocating visa numbers. As a remedy, Plaintiffs seek an order requiring Defendants to make immigrant visa numbers available for class members so they can obtain immigrant visas or have their status adjusted before the end of the current fiscal year. They also sought an injunction requiring that Defendants take steps to improve the visa number allocation system. For example, Plaintiffs asked the district court to order USCIS to provide complete and accurate information to the Visa Office, and to direct DOS to make public all relevant information contained on its waiting lists.

The district court granted Defendants' motion to dismiss. Because Plaintiffs cited no statutory authority requiring USCIS to participate in the creation of cut-off dates or the maintenance of waiting lists, the district court concluded that Plaintiffs failed to state a claim against USCIS. The district court also found that Plaintiffs' claims regarding the allocation of visa numbers from prior fiscal years were moot because no authority allows visa numbers from previous years to be recaptured, and allocated during the current year. The district court further found that Plaintiffs' claims for prospective relief were moot because they conceded that they did not challenge DOS's process for allocating visa numbers. Plaintiffs timely appealed the district court's decision.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the district court's order pursuant to 28 U.S.C. § 1291. We review de novo the district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir.2012) (en banc). We also review de novo the district court's dismissal for mootness and for lack of subject matter jurisdiction. Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 890 (9th Cir.2007); Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 974 (9th Cir.2012).

Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires not only “fair notice of the nature of the claim, but also grounds on which the claim rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation and quotes omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, 129 S.Ct. 1937. The plausibility standard requires more than the sheer possibility or conceivability that a defendant has acted unlawfully. Id. at 678–79, 129 S.Ct. 1937;see also Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (“Factual allegations must be enough to raise a right to relief above the speculative level....”). “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the...