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Administrative Procedure Act Doesn’t Bar Judicial Review of U Visa Petition, Ninth Circuit Holds

On Behalf of | Mar 4, 2020 | Firm News

The Ninth Circuit on Friday held that the Administrative Procedure Act (APA) does not bar a court from reviewing the denial of a petition for a U visa. The court also decided sua sponte that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 does not strip jurisdiction over the
petitioner’s action.

Congress created the U visa program as part of the Victims of Trafficking and Violence Protection Act of 2000, providing nonimmigrant visas for crime victims who have suffered significant physical or mental abuse while in the United States and are willing to assist in criminal investigations.

Pedro Tomas Perez Perez, a Mexican citizen who resides in Washington state, petitioned for a U visa in 2013 after he reported to police that he was being harassed. U.S. Citizenship and Immigration Services (USCIS) denied the petition, finding that Perez did not present sufficient evidence that he was a victim of qualifying criminal activity.

Perez eventually challenged the denial of his petition in federal court under the APA. The district court dismissed the action for lack of subject matter jurisdiction, concluding that the action was not reviewable under the APA because of the Act’s exception for “agency action [that] is committed to agency discretion by law.” (5 U.S.C. § 701(a)(2).)

The court held that section 701(a)(2) applied because “[i]n the U-visa context, there is no judicially manageable standard by which a court can judge how USCIS should exercise its discretion.”

Reversing the district court, the Ninth Circuit cited its holding in Beno v. Shalala (9th Cir. 1994) 30 F.3d 1057, 1066 that “[the] mere fact that a statute contains discretionary language does not make agency action unreviewable.” It also cited Heckler v. Chaney (1985) 470 U.S. 821, 834, which held that as long as there is a “meaningful standard against which to judge the agency’s exercise of discretion,” judicial review is available.

“Indeed, inherently discretionary standards may themselves be sufficiently meaningful to support judicial review for abuse of discretion,” Judge William Fletcher wrote for the majority.

Fletcher wrote that the statutory framework of U visa determinations “affords ‘meaningful standards’ for reviewing claims challenging USCIS’s compliance with that framework.”

The majority also made a sua sponte decision that 8 U.S.C. § 1252(a)(2)(B)(ii) does not strip federal courts of jurisdiction to review USCIS’s denial of Perez’s U visa petition.

Judge Consuelo Callahan dissented, writing that “the majority opinion devalues the separation of powers and creates a circuit split by venturing into the forbidden territory of permitting judicial review over the discretionary denials of U visas.”

“The majority opinion opens the proverbial floodgates to courts reviewing the USCIS’s decision on the approximately 250,000 U visa petitions, as well as possibly other visa petitions currently pending before the USCIS seeking discretionary relief,” Callahan wrote.

Henry Cruz, who represented Perez, said in an email that the decision is “a huge victory for my client and other immigrant victims of crime applying for a U visa in the U.S.”

“They can now seek judicial review of the wrongful denial of their U visa petition by DHS, which is timely considering the current Administration’s blatant hostility towards immigrants in general and, more specifically, its attempts to impose more barriers to U visa petitioners through erroneous interpretations of the law and abuses of discretion,” Cruz said.

“The court’s decision is simply carrying out the intent of Congress to ensure immigrant victims of crime receive the legal protections due to them under law.”

The U.S. Department of Justice could not be immediately reached for comment.

The case is Perez v. Wolf, case number 18-35123, in the U.S. Court of Appeals for the Ninth Circuit.

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