Perez Perez v. Wolf, No. 18-35123 (9th Cir. 2019)
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Plaintiff filed suit under the Administrative Procedure Act (APA), challenging the denial of his U visa petition. The district court dismissed plaintiff's action after determining that section 701(a)(2) of the APA precluded judicial review.
The Ninth Circuit held that section 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 -- does not bar judicial review of plaintiff's APA claims. The court explained that 8 U.S.C. 1101(a)(15)(U) and 8 U.S.C. 1184(p) provide meaningful standards by which to review USCIS's denial of plaintiff's U visa. Furthermore, after sua sponte consideration, the panel held that section 1252(a)(2)(B)(ii) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which bars judicial review of certain immigration decisions or action, does not strip jurisdiction over plaintiff's action.
Court Description: Immigration. The 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 APA. To be 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). PEREZ PEREZ V. WOLF 3 The 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. Further, 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 4 PEREZ PEREZ V. WOLF explained that the relevant statutes establish statutory standards that constrain the Secretary’s U visa determinations such that the determinations are not wholly discretionary. Dissenting, 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.
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