Perez v. Kelly et al

Filing 31

ORDER denying Plaintiff's 17 Motion for Summary Judgment; granting Government's 24 Cross-Motion for Summary Judgment; dismissing this administrative appeal for lack of subject matter jurisdiction, signed by Judge James L. Robart. (SWT) (Elaine A. Duke and James McCament added. John F Kelly (Secretary of Homeland Security) and Lori Scialabba (Acting Director of U.S. Citizenship and Immigration Services) terminated.)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 PEDRO TOMAS PEREZ PEREZ, Plaintiff, 11 v. 12 13 ELAINE A. DUKE, et al., Defendants. 14 15 16 I. CASE NO. C17-0249JLR ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT INTRODUCTION This is an Administrative Procedures Act (“APA”) case arising out of the United 17 States Citizenship and Immigration Services’ (“USCIS”) denial of Plaintiff Pedro Tomas 18 Perez Perez’s petition for a U nonimmigrant status permit (“U-visa”). Before the court is 19 Mr. Perez’s motion for summary judgment (MSJ (Dkt. # 17)) and Defendants Elaine A. 20 Duke, 1 James McCament, Ron Rosenberg, and Laura B. Zuchowski’s (collectively, “the 21 1 22 Pursuant to Federal Rule of Civil Procedure 25(d), Elaine A. Duke became Acting Secretary of Homeland Security on July 31, 2017, and is therefore substituted for former ORDER - 1 1 Government”) cross-motion for summary judgment (Cross-MSJ (Dkt. # 24)). Having 2 reviewed the papers filed in support and opposition to the motions and the administrative 3 record (Dkt. # 14 (“AR”)), the court DENIES Mr. Perez’s motion for summary judgment 4 (Dkt. # 17) and GRANTS the Government’s cross-motion for summary judgment (Dkt. 5 # 24). The court DISMISSES this administrative appeal for lack of subject matter 6 jurisdiction. 7 8 9 II. A. BACKGROUND Legal Framework for U-Visas In 2000, Congress created the U nonimmigrant status to “strengthen the ability of 10 law enforcement agencies to detect, investigate, and prosecute [certain crimes] . . . 11 committed against aliens, while offering protection to victims of such offenses in keeping 12 with the humanitarian interests of the United States.” Victims of Trafficking and 13 Violence Protection Act of 2000 (“VTVPA”), Pub. L. No. 106-386, § 1513(a), 114 Stat. 14 1533-37. To be eligible for a U-visa, a petitioner must meet several criteria, including: 15 (1) the petitioner has suffered “substantial physical or mental abuse” resulting from being 16 a victim of a qualifying criminal activity; (2) the petitioner “possesses information 17 concerning” the qualifying criminal activity; (3) the petitioner “has been helpful, is being 18 helpful, or is likely to be helpful” to law enforcement authorities “investigating or 19 prosecuting” the qualifying criminal activity; and (4) the qualifying criminal activity 20 violating the laws of the United States occurred in the United States. 8 U.S.C. 21 22 Secretary John F. Kelly. Likewise, James McCament is now Acting Director of USCIS, and is therefore substituted for former Acting Director Lori Scialabba. ORDER - 2 1 § 1101(a)(15)(U)(i); 8 C.F.R. § 214.14(b). A qualifying criminal activity under the 2 statute includes, in relevant part, “felonious assault,” a criminal activity “involving” 3 felonious assault, “or any similar activity in violation of Federal, State, or local criminal 4 law.” 8 U.S.C. § 1101(a)(15)(U)(iii); 8 C.F.R. § 214.14(a)(9). In the U-visa petition, the 5 petitioner must include a Form I-918, Supplement B (“the certification”), which is: 6 [A] certification from a Federal, State, or local law enforcement official, prosecutor, judge, or other Federal, State, or local authority investigating criminal activity described in section 1101(a)(15)(U)(iii) of this title. . . . This certification shall state that the alien “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of criminal activity described in section 1101(a)(15)(U)(iii) of this title. 7 8 9 8 U.S.C. § 1184(p)(1); see also 8 C.F.R. § 214.14(c)(2)(i). Under the regulations, 10 “[i]nvestigation or prosecution refers to the detection or investigation of a qualifying 11 crime or criminal activity.” 8 C.F.R. § 214.14(a)(5). 12 USCIS is the agency responsible for determining and adjudicating U-visa 13 eligibility. See id. § 214.14(c); see generally 72 Fed. Reg. 53,014 (Sept. 14, 2017). 14 “USCIS has sole jurisdiction over all petitions for U nonimmigrant status.” 8 U.S.C. 15 § 214.14(c)(1). In addition, “USCIS will determine, in its sole discretion, the evidentiary 16 value” of the evidence submitted with a U-visa application. Id. § 214.14(c)(4). 17 B. Factual Background 18 Mr. Perez is a citizen of Mexico who resides in Lynwood, Washington. (Compl. 19 (Dkt. # 1) ¶ 5.) Mr. Perez alleges that he was the victim of harassment from August 2009 20 to October 2011. (Id. ¶ 11; AR at 111.) Mr. Perez reported the harassment to the Renton, 21 Washington Police Department on January 10, 2012. (AR at 110-11.) The basis for Mr. 22 ORDER - 3 1 Perez’s harassment claim is that, in August 2009, Mr. Perez loaned Concepcion Reyes 2 $20,000, to pay back with interest. (Id. at 111.) Then, on January 25, 2011, Mr. Perez 3 loaned Luis Ulrich $30,000, also to pay back with interest. (Id.; see also id. at 132-37.) 4 In March 2011, Mr. Perez started asking the two men to pay him back. (Id. at 111) In 5 response, in March and October 2011, Mr. Ulrich “threatened to place [Mr.] Perez in Jail 6 if he ke[pt] asking for his money back.” (Id.) In early January 2012, Mr. Perez moved 7 from Lynwood to Renton because he was afraid of Mr. Ulrich. (Id.) On January 8, 2012, 8 Mr. Ulrich contacted Mr. Perez by phone, again telling Mr. Perez that “he was going to 9 put [Mr.] Perez in jail.” (Id.) Mr. Ulrich also told Mr. Perez that “he would make him 10 disappear.” (Id.) The Renton Police Department cited Mr. Perez’s complaint under 11 RCW 9A.46.020 for “Harassment,” but ultimately determined that the allegations “were 12 not defined enough . . . to file harassment charges against [Mr.] Ulrich.” (Id. at 110-11.) 13 The Renton Police Department was also unable to contact Mr. Reyes or Mr. Ulrich. The 14 case report ended with the police noting, “[t]his report was generated for informational 15 purposes only.” (Id. at 111.) In addition to the police report, on January 13, 2012, Mr. 16 Perez petitioned for anti-harassment orders against Mr. Reyes and Mr. Ulrich. (See id. at 17 112-30.) The petitions were unsuccessful because neither party could be served. (E.g., 18 id. at 128-30; Cross-MSJ at 7.) 19 On July 10, 2013, Mr. Perez submitted his U-visa petition to USCIS. (Compl. 20 ¶¶ 1, 15; AR at 76-83, 167.) In addition to the main U-visa form—a Form I-918 Petition 21 (AR at 76-83)—Mr. Perez sent USCIS other relevant documents, including a certification 22 dated January 10, 2013 (id. at 84-86), a cover letter from Mr. Perez’s attorney (id. at 94- ORDER - 4 1 98), and records from the Renton Police Department (id. at 110-11) and the King County, 2 Washington District Court (id. at 112-30). 3 On March 25, 2014, USCIS requested additional evidence from Mr. Perez, noting 4 that the harassment referenced in Mr. Perez’s application is not a qualifying crime under 5 the U-visa regulations, “nor does the evidence provided with [Mr. Perez’s] filing include 6 sufficient information to indicate that the noted criminal activity is similar to those 7 crimes.” (Id. at 74-75.) Mr. Perez submitted additional evidence on June 18, 2014. (Id. 8 at 165-74.) In his response, Mr. Perez acknowledged that harassment is not a qualifying 9 crime. Mr. Perez argued, however, that he was the victim of “harassment activity [that] 10 involved and/or was similar to extortion and stalking,” and that the harassment activity 11 “involved and/or was similar to felonious assault, an enumerated criminal activity, 12 because it involved a threat to kill him.” (Id. at 168.) On January 30, 2015, USCIS 13 denied Mr. Perez’s U-visa petition, finding that Mr. Perez and the evidentiary record 14 failed to demonstrate that his crime of harassment is similar to a qualifying criminal 15 activity. (Id. at 71-73.) 16 On February 25, 2015, Mr. Perez appealed to the USCIS Administrative Appeals 17 Office (“AAO”). (Id. at 35-66.) Mr. Perez dropped his extortion and stalking arguments 18 on appeal, focusing exclusively on the claim that he was the victim of criminal activity 19 involving or similar to felonious assault. (See id. at 45-46.) The thread of his argument 20 is that the Renton Police Department noted that Mr. Perez was the victim of general 21 harassment, but the crime was actually felony harassment, which involves or is 22 substantially similar to felony assault, which is a qualifying crime under the U-visa ORDER - 5 1 regulations. (See id. at 45-46, 110-11.) Mr. Perez also submitted a new certification (id. 2 at 39-41), which he argued demonstrated “that the criminal activity of Harassment was 3 DETECTED by the Renton Police Department” (id. at 44). On September 25, 2015, the 4 AAO dismissed the appeal because the harassment that Mr. Perez suffered is not a 5 qualifying crime under the U-visa regulations. (Id. at 29-34.) 6 On October 28, 2015, Mr. Perez filed a motion to reconsider with the AAO. (Id. 7 at 10-27.) Mr. Perez focused his motion on the idea that the Renton Police Department 8 “at least detected felony harassment,” even if it did not further investigate or prosecute 9 the crime. (Id. at 24.) Mr. Perez recycled his argument from the previous proceedings 10 that felony harassment involves or is substantially similar to the qualifying crime of 11 felony assault. (Id. at 24-26.) On May 9, 2016, the AAO denied Mr. Perez’s motion, 12 incorporating its initial decision, and held that Mr. Perez “has not demonstrated that he 13 was a victim of qualifying criminal activity.” (See id. at 3-8.) 14 On February 17, 2017, Mr. Perez filed the present action. (See Compl.) Mr. Perez 15 then filed a motion for summary judgment, alleging the following legal errors: (1) the 16 Government failed to consider all credible evidence in the administrative record showing 17 that the Renton Police Department “detected” felony harassment; (2) the Government 18 improperly considered irrelevant evidence and evidence outside the record; (3) the 19 Government failed to consider Mr. Perez’s argument that the felony harassment he 20 suffered “involved” a qualifying crime; and (4) the Government misinterpreted state law. 21 (See generally MSJ.) The Government filed a cross-motion for summary judgment, 22 claiming that the Government’s administrative decision denying Mr. Perez’s U-visa ORDER - 6 1 petition is legally correct and supported by substantial evidence. (See Cross-MSJ at 1-2.) 2 The Government also argues that the court lacks subject matter jurisdiction over this 3 matter because USCIS’s U-visa petition decisions are “discretionary and beyond judicial 4 review.” (See id. at 14-16.); 5 U.S.C. § 701(a)(2). The court now addresses the motions. 5 6 7 III. A. ANALYSIS Subject Matter Jurisdiction A court may ordinarily set aside an agency action that is “arbitrary, capricious, an 8 abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 9 There is a “strong presumption that Congress intends judicial review of administrative 10 actions.” ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1068 (9th Cir. 2015) (quoting 11 Helgeson v. Bureau of Indian Affairs, 153 F.2d 1000, 1003 (9th Cir. 1998)) (internal 12 quotation marks omitted). “This presumption is overcome only in two narrow 13 circumstances,” Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 718-19 (9th 14 Cir.2011): (1) where a “statute[] preclude[s] judicial review”; or (2) where an “agency 15 action is committed to agency discretion by law,” 5 U.S.C. § 701(a). The U-visa statutes 16 and regulations do not expressly preclude judicial review. See 8 U.S.C. §§ 17 1101(a)(15)(U), 1184(p); 8 C.F.R. § 214.14. The Government’s argument, therefore, 18 relies on Section 701(a)(2). (Cross-MSJ at 14-16.) 19 Section 701(a)(2) “is a very narrow exception . . . only applicable in those rare 20 circumstances where statutes are drawn in such broad terms that in a given case there is 21 no law to apply.” Heckler v. Chaney, 470 U.S. 821, 830 (1985) (internal quotation marks 22 omitted). In determining whether an agency decision is within the Section 701(a)(2) ORDER - 7 1 exception, courts consider “the language of the statute and whether the general purposes 2 of the statute would be endangered by judicial review.” Cty. of Esmeralda v. Dep’t of 3 Energy, 925 F.2d 1216, 1218 (9th Cir. 1991). “[T]he mere fact that a statute contains 4 discretionary language does not make agency action unreviewable.” Pinnacle Armor, 5 648 F.3d at 19 (quoting Beno v. Shalala, 30 F.3d 1057, 1066 (9th Cir. 1994)). “Even 6 where statutory language grants an agency ‘unfettered discretion,’ its decision may 7 nonetheless be reviewed if regulations or agency practice provide a ‘meaningful 8 standard’ by which this court may review its exercise of discretion.” Spencer Enters., Inc. 9 v. United States, 345 F.3d 683, 688 (9th Cir. 2003) (internal citation omitted). Judicial 10 review of an agency’s discretionary decision is excluded by Section 701(a)(2) only when 11 “the statute is drawn so that a court would have no meaningful standard against which to 12 judge the agency’s exercise of discretion.” Heckler, 470 U.S. at 830. 13 In the U-visa context, there is no judicially manageable standard by which a court 14 can judge how USCIS should exercise its discretion. See, e.g., Mondragon v. United 15 States, 839 F. Supp. 2d 827, 829 (W.D.N.C. 2012). USCIS has “sole jurisdiction” over 16 U-visa petitions and “sole discretion” to determine the evidentiary value of the 17 petitioner’s evidence when ruling on a petition. 8 C.F.R. §§ 214.14(c)(1), (4). U-visa 18 determinations are “committed to USCIS’ discretion by law.” See Catholic Charities 19 CYO v. Chertoff, 622 F. Supp. 2d 865, 880 (N.D. Cal. 2008), aff’d 368 F. App’x 750 (9th 20 Cir. 2010). In the Ninth Circuit, courts “lack[] jurisdiction over the [USCIS’] 21 determinations regarding U Visas.” Seo v. Holder, 358 F. App’x 884 (9th Cir. 2009) 22 (citing Ramirez Sanchez v. Mukasey, 508 F.3d 1254, 1555-56 (9th Cir. 2007) (per ORDER - 8 1 curiam)). In addition, a district court within this Circuit recently surveyed U-visa cases 2 and could not find “any federal court that has exercised jurisdiction over questions of a 3 Petitioner’s eligibility for a U-Visa.” Nsinano v. Sessions, 236 F. Supp. 3d 1133, 1137 4 (N.D. Cal. 2017). Although Mr. Perez provided a number of cases generally supporting 5 judicial review under the APA, he did not offer any cases where a court reviewed the 6 agency’s U-visa determination. (See Pl. Opp. & Reply (Dkt. # 27) at 3-7.) 7 The court is aware of the far-reaching language of Spencer Enterprises, saying 8 that a court can review agency action even where the statute gives the agency “unfettered 9 discretion.” 345 F.3d at 688. The statute in Spencer Enterprises, however, differs from 10 the statutes and regulations at issue here. In Spencer Enterprises, the statute provided 11 that, if the petitioner for a different type of visa met the eligibility requirements, the 12 agency “shall . . . approve the petition.” 8 U.S.C. § 1154(b). The U-visa statutes and 13 regulations simply do not provide a similar standard under which the court can review 14 USCIS’s action. See, e.g., 8 U.S.C. § 1184(p)(4) (“[A]s appropriate, [USCIS] shall 15 consider any credible evidence relevant to the petition.” (emphasis added)). Even when a 16 U-visa petitioner satisfies all of the statutory prerequisites, the petitioner is not 17 automatically entitled to the U-visa. See Ordonez Orosco v. Napolitano, 598 F.3d 222, 18 226 (5th Cir. 2010). 19 The court therefore finds that it does not have subject matter jurisdiction to review 20 USCIS’s U-visa determinations. Accordingly, the court will not reach the parties’ 21 remaining arguments, and dismisses this administrative appeal for lack of subject matter 22 jurisdiction. ORDER - 9 1 2 IV. CONCLUSION The court DENIES Mr. Perez’s motion for summary judgment (Dkt. # 17) and 3 GRANTS the Government’s cross-motion for summary judgment (Dkt. # 24). The court 4 DISMISSES this administrative appeal for lack of subject matter jurisdiction. 5 Dated this 26th day of December, 2017. 6 7 A 8 JAMES L. ROBART United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 10

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