Li, et al. v. Kerry, et al., No. 11-35412 (9th Cir. 2013)
Annotate this CasePlaintiffs brought suit on behalf of a class of individuals from China who were seeking to acquire permanent resident status in the employment-based third preference category (EB-3). Plaintiffs alleged that during the 2008-2009 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. The court held that the district court properly dismissed the complaint because there was 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. 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, the court affirmed the judgment of the district court.
Court Description: Immigration. The panel affirmed the district court’s dismissal as moot of plaintiffs’ complaint alleging that defendants misallocated immigrant visas to eligible applicants in the employment- based third preference category (EB-3) during fiscal years 2008 and 2009. The panel held 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. The panel also held that the district court did not err in dismissing the claims for prospective relief, because plaintiffs did not allege that defendants failed to take discrete actions they were legally required to take. Judge Reinhardt, concurring, joined fully in the majority’s affirmance of the dismissal. Judge Reinhardt wrote separately to note the importance of the significant problem with this country’s system of issuing immigrant visas that plaintiffs identify, and to suggest that the opinion should not be viewed as approving of the misallocation of Immigrant visas that plaintiffs describe.
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