Mondragon v. United States of America et al

Filing 10

ORDER granting 6 Motion to Dismiss. Signed by Senior Judge Graham Mullen on 3/2/2012. (bsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11CV89
ANA MONDRAGON,

)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA, et al., )
)
Defendants.
)
____________________________________)

ORDER

This matter is before the court upon Defendants’ Motion to Dismiss under Rules 12(b)(1)
and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject jurisdiction and failure to
state a claim upon which relief can be granted.
Plaintiff Ana Mondragon, a citizen of Honduras, brought this action pursuant to the
Administrative procedures Act (“APA”) challenging the denial by the United States Citizenship
and Immigration Services (“USCIS”) of her petition for a “U” visa. A U visa grants
nonimmigrant status to the victim of certain crimes who are cooperating with law enforcement in
the investigation or prosecution of those crimes. 8 U.S.C. § 1101(a)(15)(U).
Mondragon illegally entered the United States on June 4, 2006 and was arrested the same
day. Removal proceedings were initiated against her and Mondragon submitted a letter-request
to USCIS seeking a U visa and interim relief from removal. In order to qualify for consideration
of a U visa, an alien must prove that (1) he or she has suffered substantial physical or mental
abuse resulting from “qualifying criminal activity,” which consists of certain enumerated crimes,
including rape and sex trafficking; (2) he or she possesses knowledge about that crime; (3) he or
she has been helpful, is being helpful, or is likely to be helpful to a certifying agency in the

investigation or prosecution of that crime; and (4) that crime suffered by the alien violated
United states laws or occurred in the United States (including military bases, Indian reservations,
and U.S. territories or possessions). 8 U.S.C. § 1101(a)(15)(U)(i), 8 C.F.R. § 214.14(b). A
petition for a U visa must include a certification from a certifying agency–a federal, state, or
local law enforcement officer, prosecutor, or judge–stating that the alien meets each of these
eligibility criteria. 8 U.S.C. § 1101(a)(15)(U)(iii); 8 U.S.C. § 1184(p)(i); 8 C.F.R. §
214.14(c)(2)(i).
Mondragon submitted a certification from the Charlotte-Mecklenberg Police Department
stating that she had been helpful in the investigation and/or prosecution of her rape which
occurred in Guatemala by a man she thought was going to smuggle her into the United states.
Mondragon claimed that she escaped after the rape and entered the United States on her own.
The reporting officer noted “I intend to forward this information to the proper authorities for an
investigation.”
USCIS granted Mondragon interim U visa relief on August 27, 2007 in the form of a
deferred action and the immigration Court dismissed her removal proceedings without prejudice
on May 5, 2008. On January 29, 2008, Mondragon filed a formal U visa petition with USCIS,
relying upon the same Law Enforcement certification and police report that she had previously
submitted to USCIS in 2007. The USCIS denied her petition on November 13, 2009, finding
that she had failed to meet the eligibility prerequisites for a U visa in that her rape had not
occurred i the United states or its territories or possessions. Therefore, neither the United states
nor North carolina had the jurisdiction to investigate or prosecute the rape.
On January 6, 2011, Mondragon filed an appeal of the denial with USCIS’s
Administrative Appeal Office (“AAO”), arguing that she was a victim of sex trafficking and that

federal law permits prosecution of sex trafficking that occurs entirely outside the country. The
AAO dismissed the appeal on January 24, 2011, holding that Mondragon had failed to
demonstrate that she was a victim of sex trafficking, since the law enforcement certification and
her own description of the relevant events indicated that she had been a victim of rape, not sex
trafficking. The AAO also found that even if she had shown she was a victim of sex trafficking,
she had failed to demonstrate extraterritorial jurisdiction for American authorities to prosecute
sex trafficking that occurs in other countries. Lastly, the AAO held that Mondragon had failed
to demonstrate that any law enforcement agency had investigated or prosecuted her rape as a sex
trafficking crime.
Mondragon filed the present Compliant seeking judicial review of USCIS’ denial of her
U visa petition and an order directing USCIS to grant her petition. Defendant has moved to
dismiss her Complaint, contending that this court does not have subject matter jurisdiction over
this dispute. The party asserting federal subject matter jurisdiction bears the burden of proving
it. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). Mondragon asserts that this
court possesses jurisdiction over her claim under the Administrative Procedures Act (“APA”). A
person who is “adversely affected or aggrieved” by agency action “is entitled to judicial review
thereof.” 5 U.S.C. § 702. However, 5 U.S.C.§ 701(a)(2) provides that judicial review pursuant
to the APA does not apply “to the extent that . . . agency action is committed to agency
discretion by law.” A court may ordinarily set aside agency action found to be “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §
706(2)(A). For decisions placed in an agency’s absolute discretion, however, there are no
judicially manageable standards by which a court can judge how and when an agency should
exercise its discretion, making it impossible to evaluate such agency action for “abuse of

discretion” under the APA. See Heckler v. Chaney, 470 U.S. 821, 830 (1985).
USCIS possesses “sole jurisdiction” over all U visa petitions. 8 C.F.R. § 214.14(c)(1).
USCIS also possesses “sole discretion” to determine the evidentiary value of U visa application
materials. 8 C.F.R. § 214.14(c)(4). Because USCIS bases its U visa determinations entirely and
solely on its own discretionary review of the evidence that aliens submit when petitioning for a
U visa, the court has no basis to decide whether USCIS abused its discretion. See Catholic
Charities CYO v. Chertoff, 622 F.Supp. 2d 865, 880 (N.D.Cal. 2008), aff’d 68 Fed. Appx. 750
(9th Cir. 2010) (statute vests USCIS “with discretion to determine eligibility for ‘U’ visas. . . .
[T]he outcome of such determinations are committed to USCIS’ discretion by law . . .”); accord
Ordonez Orozco v. Chertoff, 2008 WL 5155728, at *4 (S.D. Texas Dec. 8, 2008) (“the issuance
of the overall U visa is within the sole discretion of [USCIS]. . . . Given the discretionary nature
of the U visa itself,” court lacked jurisdiction to order issuance of law enforcement certification).
USCIS’ discretion to grant or deny U visas precludes this court from exercising APA
subject matter jurisdiction in this case. Mondragon has not cited a single case in which a federal
district court asserted subject matter jurisdiction over a denial by USCIS to issue a U visa. She
has utterly failed to meet her burden of establishing subject matter jurisdiction and accordingly,
this case will be dismissed pursuant to Rule 12(b)(1).
IT IS THEREFORE ORDERED that the Defendants’ Motion to Dismiss is hereby
GRANTED.
Signed: March 2, 2012