Pedro Perez Perez v. Chad Wolf ( 2019 )


Menu:
  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    PEDRO TOMAS PEREZ PEREZ,                 No. 18-35123
    Plaintiff-Appellant,
    D.C. No.
    v.                      2:17-cv-00249-
    JLR
    CHAD F. WOLF, Acting Secretary of
    Homeland Security; BARBARA Q.
    VELARDE, Chief of the                      OPINION
    Administrative Appeals Office for
    USCIS; MARK KOUMANS, Acting
    Director of USCIS; LAURA B.
    ZUCHOWSKI, Director of the USCIS
    Vermont Service Center,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Western District of Washington
    James L. Robart, District Judge, Presiding
    Argued and Submitted April 9, 2019
    Seattle, Washington
    Filed November 22, 2019
    Before: William A. Fletcher, Consuelo M. Callahan,
    and Morgan Christen, Circuit Judges.
    2                      PEREZ PEREZ V. WOLF
    Opinion by Judge W. Fletcher;
    Dissent by Judge Callahan
    SUMMARY*
    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).
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    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.
    COUNSEL
    Henry Cruz (argued), Rios & Cruz P.S., Seattle, Washington,
    for Plaintiff-Appellant.
    Francesa M. Genova (argued), Trial Attorney; William C.
    Peachey, Director, District Court Section; Office of
    Immigration Litigation, Civil Division, United States
    Department of Justice, Washington, D.C.; for Defendants-
    Appellees.
    PEREZ PEREZ V. WOLF                       5
    OPINION
    W. FLETCHER, Circuit Judge:
    Pedro Tomas Perez Perez brought suit in the district court
    under the Administrative Procedure Act (“APA”),
    challenging the denial of his U visa petition by the United
    States Citizenship and Immigration Service (“USCIS”). The
    district court dismissed Perez’s action for lack of subject
    matter jurisdiction. The district court held that § 701(a)(2) of
    the APA precludes judicial review because U visa
    determinations are “committed to agency discretion by law.”
    
    5 U.S.C. § 701
    (a)(2). On appeal, Perez argues that
    § 701(a)(2) does not apply, contending that the statutory and
    regulatory framework governing U visa determinations
    affords “meaningful standards” for reviewing his claims.
    Heckler v. Chaney, 
    470 U.S. 821
    , 834 (1985).
    We hold that § 701(a)(2) does not bar judicial review of
    Perez’s APA claims. We hold, further, after sua sponte
    consideration, that § 1252(a)(2)(B)(ii) of the Illegal
    Immigration Reform and Immigrant Responsibility Act of
    1996 (“IIRIRA”) does not strip jurisdiction over Perez’s
    action.
    We reverse and remand.
    I. Background
    In determining whether judicial review is precluded by
    § 701(a)(2), “we consider ‘the language of the statute and
    whether the general purposes of the statute would be
    endangered by judicial review.’” ASSE Int’l, Inc. v. Kerry,
    
    803 F.3d 1059
    , 1068 (9th Cir. 2015) (“ASSE”) (quoting
    6                   PEREZ PEREZ V. WOLF
    Pinnacle Armor, Inc. v. United States, 
    648 F.3d 708
    , 719 (9th
    Cir. 2011)). We may also consider agency regulations and
    policy. Pinnacle, 
    648 F.3d at 719
    .
    A. U Visa Statutory and Regulatory Framework
    Congress created U nonimmigrant status as part of the
    Victims of Trafficking and Violence Protection Act of 2000
    (“VTVPA”). The U visa program is intended to “strengthen
    the ability of law enforcement agencies to detect, investigate,
    and prosecute [certain crimes] . . . against aliens, while
    offering protection to victims of such offenses in keeping
    with the humanitarian interests of the United States.”
    VTVPA, Pub. L. No. 106-386, § 1513(a), 
    114 Stat. 1533
    (a)(2). It is also intended to “encourage law enforcement
    officials to better serve immigrant crime victims and to
    prosecute crimes committed against aliens” and “facilitate the
    reporting of crimes to law enforcement officials by trafficked,
    exploited, victimized, and abused aliens who are not in lawful
    immigration status.” 
    Id.
    To be eligible for a U visa, a petitioner must establish that
    he or she: (1) “has suffered substantial physical or mental
    abuse as a result of having been a victim of qualifying
    criminal activity”; (2) “possesses information” about
    qualifying criminal activity; and (3) “has been helpful, is
    being helpful, or is likely to be helpful” to an authority
    “investigating or prosecuting” qualifying criminal activity.
    
    8 U.S.C. § 1101
    (a)(15)(U)(i). Helpfulness may also be
    assessed in connection with the “detection” of qualifying
    criminal activity. 
    8 C.F.R. § 214.14
    (a)(5), (c)(2)(i).
    PEREZ PEREZ V. WOLF                       7
    Qualifying criminal activity is defined as criminal activity
    involving one or more of the following or any
    similar activity in violation of Federal, State,
    or local criminal law: rape; torture;
    trafficking; incest; domestic violence; sexual
    assault; abusive sexual contact; prostitution;
    sexual exploitation; female genital mutilation;
    being held hostage; peonage; involuntary
    servitude; slave trade; kidnapping; abduction;
    unlawful criminal restraint; false
    imprisonment; blackmail; extortion;
    manslaughter; murder; felonious assault;
    witness tampering; obstruction of justice;
    perjury; or attempt, conspiracy, or solicitation
    to commit any of the above mentioned crimes.
    
    8 U.S.C. § 1101
    (a)(15)(U)(iii) (emphasis added). The phrase
    “any similar activity” “refers to criminal offenses in which
    the nature and elements of the offenses are substantially
    similar to the statutorily enumerated list of criminal
    activities.” 
    8 C.F.R. § 214.14
    (a)(9). The qualifying criminal
    activity must have “violated the laws of the United States or
    occurred in the United States.” 
    8 U.S.C. § 1101
    (a)(15)(U)(i)(IV).
    To apply for a U visa, a petitioner must file with USCIS
    a Form I-918, Petition for U Nonimmigrant Status. See
    
    8 C.F.R. § 214.14
     (“USCIS has sole jurisdiction over all
    petitions for U nonimmigrant status.”). The petition packet
    must contain the following document:
    a certification from a Federal, State, or local
    law enforcement official, prosecutor, judge, or
    8                   PEREZ PEREZ V. WOLF
    other Federal, State, or local authority
    investigating [qualifying] criminal activity
    . . . . 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 [qualifying] criminal activity
    ....
    
    8 U.S.C. § 1184
    (p)(1) (emphasis added).
    USCIS has created a multi-part form for petitioners to use
    when obtaining the required certification. USCIS refers to
    the form as “Form I-918, Supplement B, ‘U nonimmigrant
    Status Certification’” (“certification form”). 
    8 C.F.R. § 214.14
    (c)(2)(i). Parts One and Two of the form ask for
    identifying information of the petitioner and the certifying
    law enforcement agency. In Part Three, the certifying official
    is asked to identify the qualifying criminal activity of which
    the petitioner was a victim and to “describe the criminal
    activity being investigated and/or prosecuted and the
    involvement” of the petitioner. In Part Four, labeled
    “Helpfulness of the Victim,” the certifying official is asked to
    affirm or deny whether the petitioner has been, is being, or is
    likely to be helpful in the investigation or prosecution of
    qualifying criminal activity. If the certifying official affirms
    the petitioner’s helpfulness, the official is asked to explain
    that answer in a space provided on the form. The certifying
    official must sign the certification form under penalty of
    perjury.
    In addition to Form I-918 and the certification form, the
    U visa petition packet must include “a signed statement by
    the petitioner describing the facts of the victimization.”
    
    8 C.F.R. § 214.14
    (c)(2)(iii). The petitioner may also submit
    PEREZ PEREZ V. WOLF                       9
    “additional evidence” to establish U visa eligibility. 
    8 C.F.R. § 214.14
    (c)(2)(ii).
    In acting on a petition, USCIS “shall consider any
    credible evidence relevant to the petition.” 
    8 U.S.C. § 1184
    (p)(4). Agency regulations add that “USCIS will
    determine, in its sole discretion, the evidentiary value of
    previously or concurrently submitted evidence,” including the
    certification form. 
    8 C.F.R. § 214.14
    (c)(4). In practice,
    USCIS gives a properly executed certification form
    “significant weight,” though it “will not consider such
    certification to be conclusory evidence that the petitioner has
    met the eligibility requirements.” 
    72 Fed. Reg. 53014
    , 53024
    (Sept. 17, 2007).
    “If USCIS determines that the petitioner has met the
    requirements for U-1 nonimmigrant status, USCIS will
    approve Form I-918.” 
    8 C.F.R. § 214.14
    (c)(5)(i). “For a
    petitioner who is within the United States, USCIS also will
    concurrently grant U-1 nonimmigrant status, subject to the
    annual [10,000 U visa cap].” 
    Id.
     “All eligible petitioners
    who, due solely to the cap, are not granted U-1 nonimmigrant
    status must be placed on a waiting list.” 
    8 C.F.R. § 214.14
    (d)(2). Petitioners on the waiting list are granted
    deferred action or parole while waiting for additional U visas
    to become available. 
    Id.
     Once petitioners receive a U visa,
    they may apply for permanent resident status after three years
    of continued physical presence in the United States as a
    U nonimmigrant, provided they have not “unreasonably
    refused to provide assistance in a criminal investigation or
    prosecution.” 8 U.S.C § 1255(m)(1).
    Regulations provide that if USCIS denies a petitioner’s
    Form I-918, Petition for U Nonimmigrant Status, “USCIS
    10                  PEREZ PEREZ V. WOLF
    will provide written notification to the petitioner of the
    reasons for the denial.” 
    8 C.F.R. § 214.14
    (c)(5)(ii). “The
    petitioner may appeal a denial of Form I-918 to the
    Administrative Appeals Office (AAO)[.]” 
    Id.
    B. Factual and Procedural Background
    Perez is a citizen of Mexico who resides in Washington
    State. On January 10, 2012, Perez reported to police that he
    was being harassed. He told the investigating officer that the
    harassers were two individuals to whom he had lent a total of
    roughly $50,000 and from whom he was requesting
    repayment. The officer’s report states that, according to
    Perez, one of the individuals threatened to “place Perez in jail
    if he keeps asking for his money back” and told Perez “he
    would make him disappear.” The officer wrote in his report
    that these threats “were not defined enough for me to file
    harassment charges.” Perez later applied for and received
    temporary anti-harassment orders against the individuals.
    The orders were dismissed after the individuals could not be
    served.
    On July 10, 2013, Perez petitioned for U nonimmigrant
    status under 
    8 U.S.C. § 1101
    (a)(15)(U). Perez’s petition
    package contained his I-918 Form and completed certification
    form, as well as supplemental materials including the above
    described police report and Perez’s anti-harassment order
    petition. The certification form, which was completed by the
    Commander of the Investigations Division of the Renton
    Police Department, indicates that Perez was the victim of
    “harassment” under Wash. Rev. Code § 9A.46.020 between
    August 2009 and October 2011. In the box that asks the
    certifying official to “describe the criminal activity being
    investigated and/or prosecuted and the involvement of the
    PEREZ PEREZ V. WOLF                      11
    individual,” the Commander wrote: “This was an
    informational case and no charges were filed. Description
    was harassment 9A.46.020 as noted by the officer.” In the
    box labeled “Helpfulness of the victim,” the Commander
    wrote:
    Perez did make an informational police report
    and requested an anti harassment order. He
    received a temporary order on 1/17/2012. On
    1/31/2012 the order was dismissed, defendant
    was not able to be served, petitioner may
    return to refile when def. is located. The
    description of the informational report was
    noted as 9A.46.020 Harassment.
    USCIS denied Perez’s U visa petition. The denial letter
    states, “The evidence, as presented, does not establish that
    you have been a victim of qualifying criminal activity.” The
    letter explains that Perez “did not provide sufficient evidence
    to prove that [the] crime of harassment is similar to a
    [qualifying crime].” Perez appealed to the AAO. On appeal,
    Perez argued that the harassment to which he was subject
    “involved and/or was similar to felonious assault [which is a
    qualifying crime] . . . because it involved a threat to kill him
    that placed him in apprehension of harm.” The AAO denied
    Perez’s appeal. It concluded, “There is no evidence in the
    record that the certifying agency detected or investigated an
    attempted or actual felonious assault or any other qualifying
    crime. The Petitioner has not shown that any crime other
    than harassment was detected or investigated by the law
    enforcement agency.”
    On October 28, 2015, Perez filed a motion to reconsider
    with the AAO. He argued that the harassment in his case was
    12                  PEREZ PEREZ V. WOLF
    not just simple harassment, but felony harassment under
    Washington law because it involved a threat “to kill [him]”
    that “by words or conduct” placed him “in reasonable fear
    that the threat will be carried out.” WASH. REV. CODE
    §§ 9A.46.020(1)(a)–(b), (2)(b)(ii) (2011). He further argued
    that the Washington police had “at least detected felony
    harassment,” even if they did not further investigate that
    crime. Finally, Perez argued that felony harassment
    “involves or is substantially similar to” the qualifying crime
    of felony assault, and that the agency therefore erred when it
    concluded that Washington police had not detected a
    qualifying crime in Perez’s case. The AAO denied the
    motion to reconsider. It concluded that “while felony
    harassment and/or felonious assault may have also occurred,
    there is no indication that the certifying agency actually
    detected or investigated those offenses.” Further, it
    concluded that even if felony harassment had been detected,
    such harassment is not “substantially similar” to felony
    assault under Washington law.
    On February 17, 2017, Perez brought suit in the federal
    district court challenging the denial of his U visa petition.
    His complaint contains several claims under the APA,
    
    5 U.S.C. § 706
    (2). Specifically, Perez claims that the agency
    acted contrary to statute by “fail[ing] to consider all credible
    evidence,” erred in concluding that “felony harassment does
    not constitute a qualifying criminal activity,” and made a
    finding unsupported by substantial evidence when it
    concluded “that felony harassment was not detected by law
    enforcement.”
    After the parties filed cross-motions for summary
    judgment, the district court dismissed Perez’s action for lack
    of subject matter jurisdiction. The district court concluded
    PEREZ PEREZ V. WOLF                       13
    that Perez’s action was not reviewable under the APA
    because of the APA’s exception for “agency action [that] is
    committed to agency discretion by law.” 
    5 U.S.C. § 701
    (a)(2). The district court determined that § 701(a)(2)
    applies 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.”
    Perez timely appealed. We have jurisdiction under
    
    28 U.S.C. § 1291
    . “We review de novo the district court’s
    dismissal for lack of subject matter jurisdiction.” Tritz v. U.S.
    Postal Serv., 
    721 F.3d 1133
    , 1136 (9th Cir. 2013).
    II. Discussion
    “The default rule is that agency actions are reviewable
    under federal question jurisdiction, pursuant to 
    28 U.S.C. § 1331
     . . . even if no statute specifically authorizes judicial
    review.” ANA Int’l, Inc. v. Way, 
    393 F.3d 886
    , 890 (9th Cir.
    2004) (“ANA”). The APA reinforces this presumption of
    judicial reviewability by “confer[ring] a general cause of
    action upon persons ‘adversely affected or aggrieved by
    agency action within the meaning of a relevant statute[.]’”
    Block v. Cmty. Nutrition Inst., 
    467 U.S. 340
    , 345 (1984)
    (quoting 
    5 U.S.C. § 702
    ).
    The presumption in favor of judicial review of final
    agency action “is overcome only in two narrow
    circumstances.” Pinnacle, 
    648 F.3d at 719
    . The first is
    “when Congress expressly bars review by statute.” 
    Id.
     (citing
    
    5 U.S.C. § 701
    (a)(1); Bd. of Governors of Fed. Reserve Sys.
    v. MCorp Fin., Inc., 
    502 U.S. 32
    , 44 (1991)). The second is
    in the “‘rare instances where statutes are drawn in such broad
    terms that in a given case there is no law to apply,’ thereby
    14                 PEREZ PEREZ V. WOLF
    leaving the court with ‘no meaningful standard against which
    to judge the agency’s exercise of discretion.’” 
    Id.
     (quoting
    Webster v. Doe, 
    486 U.S. 592
    , 599 (1988); Chaney, 
    470 U.S. at 830
    ). The APA reflects these two exceptions. Review
    under the APA is unavailable when “statutes preclude judicial
    review,” 
    5 U.S.C. § 701
    (a)(1), and when the “agency action
    is committed to agency discretion by law,” 
    id.
     at § 701(a)(2).
    The district court dismissed Perez’s action as
    unreviewable under § 701(a)(2) after concluding that “there
    is no judicially manageable standard by which a court can
    judge how USCIS should exercise its discretion.” The first
    issue on appeal is whether the U visa statutory and regulatory
    framework furnishes meaningful standards by which to
    review Perez’s claims under the APA. The second issue,
    which we raise sua sponte, is whether IIRIRA’s jurisdiction-
    stripping provision, codified at 
    8 U.S.C. § 1252
    (a)(2)(B)(ii),
    precludes judicial review.
    A. § 701(a)(2) of the APA
    Section 701(a)(2) of the APA precludes judicial review of
    agency actions “committed to agency discretion by law.”
    
    5 U.S.C. § 701
    (a)(2). We “read the exception in § 701(a)(2)
    quite narrowly.” Weyerhaeuser Co. v. U.S. Fish & Wildlife
    Serv., 
    139 S. Ct. 361
    , 370 (2018). We must decide whether
    § 701(a)(2) precludes judicial review of the denial of Perez’s
    U visa petition by USCIS.
    In Spencer Enterprises, Inc. v. United States, 
    345 F.3d 683
     (9th Cir. 2003) (“Spencer”), we decided the closely
    related issue of whether § 701(a)(2) precludes judicial review
    of the denial of an EB-5 immigrant investor visa petition by
    the Immigration and Naturalization Service (“INS”). We
    PEREZ PEREZ V. WOLF                     15
    began our analysis with the principle that § 701(a)(2) applies
    only in the “rare instances” where “the statute is drawn so
    that a court would have no meaningful standard against which
    to judge the agency’s exercise of discretion.” Spencer,
    
    345 F.3d at 688
     (quoting Chaney, 
    470 U.S. at 830
    ). We then
    turned to the “statutory framework” governing immigrant
    investor visas. We held that there are “meaningful standards
    by which to review INS’s action” because the agency’s visa
    determination “is guided by the statutory requirements of the
    EB 5 program set out in § 1153(b)(5).” Id. In the case now
    before us, we engage in the same analysis and reach the same
    result as in Spencer.
    1. The “No Meaningful Standard” Standard
    In several immigration cases, we have held that there are
    meaningful standards of review and have declined to apply
    § 701(a)(2). See ASSE, 803 F.3d at 1068 (holding that agency
    regulations provide a meaningful standard by which to review
    the State Department’s sanctioning of a third-party program
    sponsor participating in the Exchange Visitor Program);
    Gonzalez-Caraveo v. Sessions, 
    882 F.3d 885
    , 893 (9th Cir.
    2018) (holding that the factors enumerated in a precedential
    Board of Immigration Appeals (“BIA”) decision provide a
    “sufficiently meaningful standard” by which to evaluate the
    denial of a request for administrative closure); Taslimi v.
    Holder, 
    590 F.3d 981
    , 986 (9th Cir. 2010) (holding that there
    is a meaningful standard by which to review whether a
    petitioner has filed for asylum within a “reasonable period”
    after changed circumstances because agency regulations
    “provide a non-exhaustive list of potential changed
    circumstances” and require the IJ to “consider an applicant’s
    delayed awareness of changed circumstances”).
    16                 PEREZ PEREZ V. WOLF
    Only where there is truly “no law to apply” have we
    found an absence of meaningful standards of review.
    Spencer, 
    345 F.3d at 688
     (quoting Chaney, 
    470 U.S. at 830
    ).
    In Ekimian v. INS., 
    303 F.3d 1153
     (9th Cir. 2002), for
    example, we held that we could not review the BIA’s refusal
    to reopen deportation proceedings sua sponte because,
    although the BIA allowed for reopening in “exceptional
    situations,” no statute, regulation, or case law defined
    “exceptional situations.” 
    Id.
     at 1156–59. We later clarified
    that we may review BIA decisions denying sua sponte
    reopening “for the limited purpose of reviewing the reasoning
    behind the decisions for legal or constitutional error” because
    in that instance there is “law to apply.” Bonilla v. Lynch,
    
    840 F.3d 575
    , 588 (9th Cir. 2016). Similarly, in Idrees v.
    Barr, 
    923 F.3d 539
     (9th Cir. 2019), we held that the BIA’s
    decision not to certify Idrees’s ineffective assistance of
    counsel claim was unreviewable, absent a claim of
    constitutional or legal error, because the BIA had not
    “elaborated on which circumstances are considered to be
    exceptional and thus sufficient to merit certification.” 
    Id.
    at 542–43.
    Our non-immigration cases addressing § 701(a)(2) engage
    in the same analysis. In Hyatt v. Office Management &
    Budget, 
    908 F.3d 1165
     (9th Cir. 2018), for example, we
    considered the Paperwork Reduction Act (“PRA”), which
    directs the Office of Management and Budget (“OMB”) to
    “take two distinct actions when it receives a petition to
    determine whether an individual is legally obligated to
    respond to a collection of information.” 
    Id. at 1174
    . The
    agency must (1) respond within 60 days with a determination
    of whether the individual is obligated to provide the
    information; and (2) take “appropriate remedial action, if
    necessary.” 
    44 U.S.C. § 3517
    (b). We held that the first
    PEREZ PEREZ V. WOLF                      17
    action is reviewable because “the standards for making such
    a determination are specified by the PRA,” but that the
    second action is “committed to the agency’s discretion”
    because “[t]here is no express standard in the PRA to guide
    the OMB in determining whether any particular remedy is
    either ‘appropriate’ or ‘necessary.’” Hyatt, 908 F.3d at 1174.
    “[T]he mere fact that a statute contains discretionary
    language does not make agency action unreviewable.” Beno
    v. Shalala, 
    30 F.3d 1057
    , 1066 (9th Cir. 1994). As long as
    there is a “meaningful standard against which to judge the
    agency’s exercise of discretion,” judicial review is available.
    Chaney, 
    470 U.S. at 830
    . Indeed, inherently discretionary
    standards may themselves be sufficiently meaningful to
    support judicial review for abuse of discretion. See ASSE,
    803 F.3d at 1071 (“Section 701(a)(2) . . . has never been
    thought to put all exercises of discretion beyond judicial
    review. Indeed, ‘the APA itself commits final agency
    action[s] to our review for ‘abuse of discretion.’”) (quoting
    Pinnacle, 
    648 F.3d at 720
    ). In fact, courts routinely treat
    discretion-laden standards as providing “law to apply.” See
    Citizens to Preserve Overton Park, Inc. v. Volpe, 
    401 U.S. 402
    , 411 (1971), abrogated on other grounds by Califano v.
    Sanders, 
    430 U.S. 99
     (1977) (holding that § 701(a)(2) does
    not preclude judicial review of agency determination that a
    “feasible and prudent alternative” was lacking); Pac. Nw.
    Generating Co-op. v. Bonneville Power Admin., 
    596 F.3d 1065
    , 1077 (9th Cir. 2010) (holding that the statutory
    requirement to operate in a manner “consistent with sound
    business principles” provided a meaningful standard of
    review); City of Los Angeles v. U.S. Dep’t of Commerce,
    
    307 F.3d 859
    , 869 n.6 (9th Cir. 2002) (holding that a statute
    requiring the Secretary to use statistical sampling “if he
    considers it feasible” provided a meaningful standard by
    18                 PEREZ PEREZ V. WOLF
    which to review the Secretary’s decision not to use
    sampling); Newman v. Apfel, 
    223 F.3d 937
    , 943 (9th Cir.
    2000) (holding that § 701(a)(2) does not preclude review of
    the Commissioner’s interpretation and application of the
    statutory terms “reliable” and “currently available”); Beno,
    
    30 F.3d at 1067
     (9th Cir. 1994) (holding that an agency
    determination that a waiver is “likely to assist in promoting
    the objectives” of a benefits program is reviewable because
    the program’s objectives are “set forth with some specificity”
    in the statute); Cty. of Esmeralda v. U.S. Dep’t of Energy,
    
    925 F.2d 1216
    , 1217–19 (9th Cir. 1991) (holding that
    although the Nuclear Waste Policy Act specified no factors
    for deciding whether to designate a county near the Yucca
    Mountain nuclear waste repository an “affected unit of local
    government,” a judicially manageable standard “readily
    presents itself” because a court can consider whether the
    Secretary “meaningfully consider[ed]” the impact on the
    county); Keating v. FAA, 
    610 F.2d 611
    , 612 (9th Cir. 1979)
    (holding that an agency’s charge to grant exemptions “in the
    public interest” provided a standard that was sufficiently
    meaningful for judicial review).
    These cases demonstrate how rarely there is no
    “meaningful standard against which to judge the agency’s
    exercise of discretion.” Chaney, 
    470 U.S. at 830
    . They also
    demonstrate that there are meaningful standards to apply in
    this case. As in Spencer, we need look no further than the
    governing statutes.
    2. Meaningful Standards in the U Visa Statutory
    Framework
    As noted above, U visa determinations are governed by
    
    8 U.S.C. § 1101
    (a)(15)(U) and § 1184(p). Section
    PEREZ PEREZ V. WOLF                      19
    1101(a)(15)(U) provides that a petitioner is eligible for a
    U visa if the petitioner (1) has suffered “substantial physical
    or mental abuse” as a result of having been a victim of
    qualifying criminal activity; (2) “possesses information”
    about qualifying criminal activity; and (3) “has been helpful,
    is being helpful, or is likely to be helpful” to an authority
    “investigating or prosecuting” qualifying criminal activity.
    
    8 U.S.C. § 1101
    (a)(15)(U)(i). Section 1184(p) establishes
    application procedures for U visa petitioners, including the
    requirement that they obtain “a certification from a Federal,
    State, or local law enforcement official, prosecutor, judge, or
    other Federal, State, or local authority investigating criminal
    activity.” 
    8 U.S.C. § 1184
    (p)(1). It also establishes agency
    duties, including the duty to “consider any credible evidence
    relevant to the petition.” 
    8 U.S.C. § 1184
    (p)(3)–(4). This
    statutory framework affords “meaningful standards” for
    reviewing claims challenging USCIS’s compliance with that
    framework.
    Our dissenting colleague disagrees. The dissent points
    out that regulations grant USCIS “sole jurisdiction” over
    U visa petitions and “sole discretion” to determine the value
    of petitioner evidence. See 
    8 C.F.R. §§ 214.14
    (c)(1),
    214.14(c)(4). But the statutes, which are distinct from the
    regulations, use no such language. See Spencer, 
    345 F.3d at 688
     (“[W]e need not look to regulations or agency practice
    because the statutory framework provides meaningful
    standards by which to review INS’s action.”). Further, and
    more important, it does not follow from the fact that USCIS
    is the agency with “sole jurisdiction” to issue U visas that a
    court is without jurisdiction to review USCIS’s decision. As
    will be explained in more detail below, an agency’s sole
    discretionary authority is not inconsistent with judicial review
    of the agency’s exercise of that discretion.
    20                  PEREZ PEREZ V. WOLF
    The dissent relies on language in 
    8 U.S.C. § 1101
    (a)(15)(U)(i), which provides that the “Secretary of
    Homeland Security determines” whether an alien meets the
    substantive requirements of the U visa program. (Emphasis
    added.)      However, unreviewable discretion does not
    necessarily follow from an agency’s “determination.” Some
    determinations are governed by strict criteria. Others are not.
    Even if a determination is discretionary, it may still be rooted
    in a set of requirements or standards, as the statutes here set
    forth. See, e.g., Spencer, 
    345 F.3d at 688
     (“Although
    
    8 U.S.C. § 1154
    (b) instructs that the Attorney General should
    ‘determine’ whether the facts alleged by the visa petitioner
    are true and whether the petitioner is eligible for a visa under
    § 1153(b)(5), this determination is guided by the statutory
    requirements of the EB 5 program set out in § 1153(b)(5).”)
    Finally, the dissent argues that language in 
    8 U.S.C. § 1184
    (p)(2)(A), which states that no more than 10,000 aliens
    “may be issued” U visas in any fiscal year, is evidence of
    unreviewable discretion. This provision is a limit on the
    number of U visas that can be issued in a given year. It says
    nothing about the criteria for determining eligibility for a
    visa.
    In short, the statutory framework provides meaningful
    standards under which to review the exercise of USCIS’s
    authority to issue U visas. The conclusion that there are
    meaningful standards, however, does not necessarily end an
    inquiry in a particular case. “In deciding whether agency
    action is committed to agency discretion by law, it is not
    significant that there may be law, in the abstract, that could
    possibly be applied.” Ariz. Power Auth. v. Morton, 
    549 F.2d 1231
    , 1239–40 (9th Cir. 1977) (citing Strickland v. Morton,
    
    519 F.2d 467
    , 470 & n.4 (9th Cir. 1975)). “Instead, we must
    PEREZ PEREZ V. WOLF                      21
    determine whether in this particular case there is any specific
    law to apply.” 
    Id.
     In other words, “it is only in the context of
    [Perez’s] complaint that we can determine if there is law to be
    applied in the instant case.” Strickland, 
    519 F.2d at 470
    .
    Moreover, “the existence of judicial review is only the
    start: the standard for review must also be determined” and
    “[f]or that we must look to § 706 of the [APA].” Volpe,
    
    401 U.S. at 413
    . Under the APA, our review is limited to
    assessing whether a U visa determination “was arbitrary,
    capricious, an abuse of discretion, or otherwise not in
    accordance with law”; in violation of a statutory, procedural,
    or constitutional requirement; or unsupported by “substantial
    evidence.” 
    5 U.S.C. § 706
    (2)(A)–(E).
    3. Perez’s APA claims
    Perez makes three principal claims under the APA. First,
    he claims that USCIS acted contrary to law because it
    “fail[ed] to consider all credible evidence.” In particular,
    Perez argues that USCIS failed to consider his anti-
    harassment order petition and relevant parts of the police
    report, which he claims show “that the suspect made threats
    against [his] life.” The statutory mandate that USCIS
    “consider any credible evidence relevant to the petition,”
    
    8 U.S.C. § 1184
    (p)(4), provides a meaningful standard by
    which to review this claim. The standard of review to be
    applied to this question on remand is whether USCIS acted
    contrary to § 1184(p)(4) or in a manner that was “arbitrary,
    capricious, an abuse of discretion, or otherwise not in
    accordance with law.” 
    5 U.S.C. § 706
    (2)(A), (C).
    Second, Perez claims that USCIS’s “determination that
    felony harassment does [not] constitute qualifying criminal
    22                  PEREZ PEREZ V. WOLF
    activity is contrary to the plain language of the statute.” That
    language provides that a qualifying crime must “involv[e]” an
    enumerated criminal activity or “any similar activity.”
    
    8 U.S.C. §1101
    (a)(15)(U)(iii). Perez argues that USCIS
    made a mistake of law because felony harassment “involves”
    the enumerated crime of felonious assault and because USCIS
    “misinterpreted [Washington] state law on felony harassment
    and felony assault” when it concluded that felony harassment
    is not “substantially similar” to felonious assault. The
    statutory definition of qualifying criminal activity at 
    8 U.S.C. § 1101
    (a)(15)(U)(iii), the accompanying regulation at
    
    8 C.F.R. § 214.14
    (a)(9), and Washington state law provide
    meaningful standards for reviewing this claim of legal error.
    The standard of review on this is not entirely clear. The
    general rule under the APA is that a “reviewing court shall
    decide all relevant questions of law, interpret constitutional
    and statutory provisions, and determine the meaning or
    applicability of the terms of an agency action.” 
    5 U.S.C. § 706
    . But § 706 “does not specify the standard of review a
    court should use in ‘determin[ing] the meaning’ of an
    ambiguous rule.” Kisor v. Wilkie, 
    139 S.Ct. 2400
    , 2419
    (2019) (plurality opinion) (alteration in original); see also
    Chrysler Corp. v. U.S. Envtl. Prot. Agency, 
    631 F.2d 865
    , 884
    (D.C. Cir. 1980) (“Although this court has the duty under the
    [APA] to ‘decide all relevant questions of law,’ we recognize
    that the special expertise of [the agency] in interpreting the
    legislation which it is called upon to administer requires that
    we defer to the judgment of the Agency where that judgment
    is reasonable and is consistent with the language and purpose
    of the legislation.”) (citation omitted). We thus leave it for
    the district court to determine, in the first instance, the
    standard of review to apply on remand, including whether
    Chevron or Auer deference is appropriate. See Chevron,
    PEREZ PEREZ V. WOLF                      23
    U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 
    467 U.S. 837
    ,
    842–44 (1984); Auer v. Robbins, 
    519 U.S. 452
    , 461 (1997);
    Kisor, 
    139 S. Ct. at
    2422–23 (upholding Auer deference);
    Campos-Hernandez v. Sessions, 
    889 F.3d 564
    , 568–69 (9th
    Cir. 2018) (discussing both Chevron and Auer deference).
    Third, Perez claims that USCIS’s factual finding that
    “felony harassment was not detected by law enforcement”
    was erroneous. The government argues that we cannot
    review its factual findings because its regulations provide that
    “USCIS will determine, in its sole discretion, the evidentiary
    value of previously or concurrently submitted evidence,
    including [the certification form].” 
    8 C.F.R. § 214.14
    (c)(4)
    (emphasis added). We rejected a similar argument in ASSE.
    We explained that
    where [the agency] has reserved to itself . . .
    certain decisions as within its ‘discretion,’ . . .
    or even its ‘sole discretion,’ . . . we will take
    into account the [agency’s] reservation and
    expertise and accord it the proper deference.
    But that does not deprive us of the right to
    review its actions for an abuse of its
    discretion or to determine if its actions were
    otherwise arbitrary and capricious.
    803 F.3d at 1071 (citations omitted) (emphases added).
    The same standard of review applies to this question. In
    reviewing a decision of the USCIS, the court should give due
    deference to the agency’s expertise. But to the extent the
    petitioner challenges USCIS’s decision under §706(2)(A), a
    court can review it, as appropriate, under the deferential
    standards of “abuse of discretion” or “substantial evidence.”
    24                 PEREZ PEREZ V. WOLF
    See ASSE, 803 F.3d at 1072 (“‘[A]s a practical matter, the
    arbitrary and capricious standard incorporates the substantial
    evidence test,’ and we use that test for review of agency
    factfinding in informal proceedings as well.”) (quoting
    Ursack Inc. v. Sierra Interagency Black Bear Grp., 
    639 F.3d 949
    , 958 n.4 (9th Cir. 2011)). “[S]ubstantial evidence means
    such relevant evidence as a reasonable mind might accept as
    adequate to support a conclusion.” 
    Id.
     (quoting Bonnichsen
    v. United States, 
    367 F.3d 864
    , 880 n.19 (9th Cir. 2004)).
    Review for substantial evidence is generally confined to a
    review of the administrative record, which in this case
    includes Perez’s U visa petition packet and the agency’s
    decisions denying Perez’s petition. See Volpe, 
    401 U.S. at 420
    ; see also 
    5 U.S.C. § 706
     (“[T]he court shall review the
    whole record or those parts of it cited by a party[.]”).
    B. § 1252(a)(2)(B)(ii) of the IIRIRA
    When Congress enacted IIRIRA in 1996, it replaced the
    judicial review scheme of the Immigration and Nationality
    Act with a more restrictive scheme, codified at 
    8 U.S.C. § 1252
    . See Reno v. American-Arab Anti-Discrimination
    Comm., 
    525 U.S. 471
    , 475 (1999). Section 1252(a)(2)(B)
    provides:
    (B) Denials of discretionary relief
    Notwithstanding any other provision of law
    (statutory or nonstatutory) . . . and regardless
    of whether the judgment, decision, or action is
    made in removal proceedings, no court shall
    have jurisdiction to review—
    PEREZ PEREZ V. WOLF                      25
    (i) any judgment regarding the granting of
    relief under section 1182(h) [waiver of
    inadmissibility based on certain criminal
    o ffens es], 1182(i ) [ wai ver of
    inadmissability based on fraud or
    misrepresentation], 1229b [cancellation of
    removal], 1229c [permission for voluntary
    departure], or 1255 [adjustment of status]
    of this title, or
    (ii) any other decision or action of the
    Attorney General or the Secretary of
    Homeland Security 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, other
    than the granting of relief under section
    1158(a) of this title [relating to asylum].
    
    8 U.S.C. § 1252
    (a)(2)(B) (alterations and emphases added).
    We must decide whether clause (ii) strips us of jurisdiction to
    review Perez’s action. That is, we must decide whether the
    authority to deny a U visa is specified to be in the discretion
    of the Attorney General or the Secretary of Homeland
    Security, in the sense required to trigger § 1252(a)(2)(B)(ii).
    We interpreted § 1252(a)(2)(B)(ii) in Spencer. We
    concluded that § 1252(a)(2)(B)(ii) applies only if two
    conditions are met. First, “the language of the statute in
    question must provide the discretionary authority.” 
    345 F.3d at 689
    . Second, the statute must provide “pure discretion,
    rather than discretion guided by legal standards.” 
    Id. at 690
    .
    In other words, “if the statutory provision granting the
    26                 PEREZ PEREZ V. WOLF
    Attorney General power to make a given decision also sets
    out specific standards governing that decision, the decision is
    not ‘in the discretion of the Attorney General.’” ANA,
    
    393 F.3d at 892
    . We held in Spencer that § 1252(a)(2)(B)(ii)
    does not preclude judicial review of EB 5 immigrant investor
    visa determinations because 
    8 U.S.C. § 1153
    (b)(5), which
    grants the Attorney General authority to “determine” a
    petitioner’s eligibility for such a visa, establishes standards
    that the Attorney General must following when making that
    determination. 
    345 F.3d at
    691–92.
    The Supreme Court’s decision in Kucana v. Holder,
    
    558 U.S. 233
     (2010), reinforces our interpretation of
    § 1252(a)(2)(B)(ii) in Spencer. The issue in Kucana was
    whether § 1252(a)(2)(B)(ii) applies to “determinations
    declared discretionary by the Attorney General himself
    through regulation.” Id. at 237. The Court held that
    § 1252(a)(2)(B)(ii) applies “only when Congress itself set out
    the Attorney General’s discretionary authority in the statute.”
    Id. at 247. The Court did not directly address the related
    question of what kind of statutory language triggers
    § 1252(a)(2)(B)(ii). But the Court made several observations
    that support Spencer’s answer to that question. First, the
    Court explained that § 1252(a)(2)(B)(ii) “speaks of authority
    ‘specified’—not merely assumed or contemplated—to be in
    the Attorney General’s discretion,” and that “‘[s]pecified’ is
    not synonymous with ‘implied’ or ‘anticipated.’” Id. at 243
    n.10. Second, the Court provided three examples of statutory
    provisions to which § 1252(a)(2)(B)(ii) applies:
    “§ 1157(c)(1) (discretion to admit refugees ‘determined to be
    of special humanitarian concern to the United States’);
    § 1181(b) (discretion to waive requirement of documentation
    for readmission); § 1182(a)(3)(D)(iii) (discretion to waive, in
    certain cases, inadmissibility of aliens who have affiliated
    PEREZ PEREZ V. WOLF                       27
    with a totalitarian party).” Id. at 248. All three provisions
    satisfy both Spencer conditions for unreviewable discretion.
    Each contains language committing an action or decision to
    the “discretion” or “satisfaction” of the Attorney General, and
    none provides the Attorney General with statutory standards
    that constrain that action or decision. See, e.g., 
    8 U.S.C. § 1157
    (c)(1) (“[T]he Attorney General may, in the Attorney
    General’s discretion and pursuant to such regulations as the
    Attorney General may prescribe, admit any refugee who is
    not firmly resettled in any foreign country, is determined to
    be of special humanitarian concern to the United States, and
    is admissible[.]”). Third, the Court emphasized that the
    “presumption favoring judicial review of administrative
    action” should guide courts’ interpretation of
    § 1252(a)(2)(B)(ii). Kucana, 
    558 U.S. at 251
    . It takes “clear
    and convincing evidence” of a contrary congressional intent
    to dislodge this presumption. 
    Id. at 252
    .
    Applying Spencer to the case before us, we conclude for
    two reasons that § 1252(a)(2)(B)(ii) does not preclude judicial
    review. First, the U visa statutory provisions at 
    8 U.S.C. §§ 1101
    (a)(15)(U) 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. In fact, neither
    § 1101(a)(15)(U) nor § 1184(p) uses the word “discretion” or
    any synonym. Agency regulations provide that “USCIS will
    determine, in its sole discretion, the evidentiary value of
    previously or concurrently submitted evidence.” 
    8 C.F.R. § 214.14
    (c)(4). But regulatory declarations of discretion,
    standing alone, do not trigger § 1252(a)(2)(B)(ii). Kucana,
    
    558 U.S. at 237
     (“We hold that the key words ‘specified
    under this subchapter’ refer to statutory, but not to regulatory,
    specifications.”). Second, both § 1101(a)(15)(U) and
    § 1184(p) establish statutory standards that constrain the
    28                  PEREZ PEREZ V. WOLF
    Secretary’s U visa determinations. As detailed above, these
    statutes prescribe eligibility criteria, application procedures,
    and agency duties, all of which guide the Secretary’s
    determination whether to grant or deny U visa petitions.
    U visa determinations are thus not “wholly discretionary” as
    required by Spencer, and § 1252(a)(2)(B)(ii) does not bar
    review of Perez’s action.
    The dissent calls attention to our recent decision in
    Poursina v. USCIS, 
    936 F.3d 868
     (9th Cir. 2019), where we
    held that § 1252(a)(2)(B)(ii) precludes review of USCIS
    decisions to deny a national-interest waiver. Contrary to the
    contention of the dissent, Poursina supports our decision in
    this case. First, Poursina underscores that it is the governing
    statutes that should guide our analysis, rather than USCIS
    regulations that purport to grant the agency “sole discretion”
    to the agency. See id. at 871 (“[I]t is not enough that a
    decision is discretionary. . . ; instead, Congress must state
    that the government has such discretion.”) (Emphasis in
    original.) Second, the statute in this case differs from that in
    Poursina. There, the statute provided that “the Attorney
    General may, when the Attorney General deems it to be in the
    national interest, waive the requirement[] . . . that an alien’s
    services in the sciences, arts, professions, or business be
    sought by an employer in the United States.” 
    8 U.S.C. § 1153
    (b)(2)(B)(i). We held that the “invocation of the
    ‘national interest’ is a core example of a consideration that
    lacks a judicially manageable standard of review,” as it calls
    for “broader economic and national-security considerations.”
    Poursina, 936 F.3d at 871, 874. We further noted that
    USCIS’s interpretation of the statute, which established a
    framework analyzing “substantial merit,” “national
    importance,” and “benefit[s] to the United States,” id. at 874
    (quoting In re Dhanasar, 
    26 I. & N. Dec. 884
    , 889 (USCIS
    PEREZ PEREZ V. WOLF                      29
    AAO 2016)), imposed “no such thing” as “objective criteria”
    on USCIS’s discretion. 
    Id.
     By comparison, the statute in this
    case mandates specific eligibility requirements, application
    procedures, and agency duties.             See 
    8 U.S.C. §§ 1101
    (a)(15)(U)(i), 1101(a)(15)(U)(iii), 1184(p)(1)–(4).
    The dissent also cites two unpublished decisions to
    suggest that we have already determined that we lack
    jurisdiction to review U visa denials. Not only are these cases
    not binding. They are also inapposite. In the first, Eun
    Kyeong Seo v. Holder, 358 F. App’x 884 (9th Cir. 2009), we
    held that we “lack[ed] jurisdiction over [USCIS’s]
    determinations regarding U Visas.” However, for this
    proposition, we cited Ramirez Sanchez v. Mukasey, 
    508 F.3d 1254
     (9th Cir. 2007) (per curiam), in which we remanded to
    the BIA to consider new regulatory guidance for the issuance
    of U visas. We said nothing in Ramirez Sanchez about our
    jurisdiction to review a decision denying a U visa. In the
    second, Chang Young Jung v. Holder, 393 F. App’x 530 (9th
    Cir. 2010), we held that we lacked jurisdiction over challenge
    to a U visa denial because the challenge had not been made
    in the district court. We did not address our jurisdiction to
    review a properly made challenge.
    Finally, the dissent expresses concern that today’s
    decision “opens the proverbial floodgates.” This fear is
    exaggerated. The vast majority of U visa petitions are
    granted. Every fiscal year since 2010, USCIS has approved
    an average of about 10,000 U visa petitions. In that same
    time period, it annually denied an average of about
    2,400 petitions. An unknown fraction of those denials will be
    appealed. See USCIS, Number of Form I-918, Petition for U
    Nonimmigrant Status by Fiscal Year, Quarter, and Case
    Status (FY 2009–2019), available at http://www.uscis.gov/s
    30                  PEREZ PEREZ V. WOLF
    ites/default/files/USCIS/Resources/Reports%20and%20Stu
    dies/Immigration%20Forms%20Data/Victims/I918u_visast
    atistics_fy2019_qtr2.pdf (last visited Sept. 20, 2019).
    Conclusion
    We hold 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 Perez’s U visa, and that 
    8 U.S.C. § 1252
    (a)(2)(B)(ii) does not strip federal courts of jurisdiction
    to review that decision. We remand to the district court to
    allow it to apply those standards in this case.
    REVERSED and REMANDED.
    CALLAHAN, Circuit Judge, dissenting:
    Congress, in creating “U nonimmigrant status” or
    “U visas,” vested with the Secretary of Homeland Security
    sole jurisdiction over U visas, sole discretion in determining
    the evidentiary value of the certification forms accompanying
    a U visa petition, and absolute discretion in deciding whether
    to grant (or deny) U visa petitions and whether to
    subsequently revoke U visa status. The Supreme Court has
    recognized that where Congress commits decisions to agency
    discretion, with “no meaningful standard” for judicial review,
    we cannot review such decisions. Heckler v. Chaney,
    
    470 U.S. 821
    , 830 (1985).
    The majority, however, in misconstruing § 1252 of the
    INA and § 701 of the APA and ignoring the consistent
    opinions of our sister circuits, plunges us into the standardless
    PEREZ PEREZ V. WOLF                           31
    review of thousands of discretionary decisions by the
    Secretary of Homeland Security. 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,1 as well as possibly other visa
    petitions currently pending before the USCIS seeking
    discretionary relief.
    Because the majority opinion’s arrogation of power unto
    itself is wrong, I adamantly dissent. Because the district
    court properly understood the judiciary’s exclusion from
    reviewing discretionary agency decisions as prescribed by
    Congress, I would affirm the district court’s dismissal for
    lack of jurisdiction.
    I.
    In 2000, Congress created a limited discretionary category
    allowing certain aliens who would not otherwise be permitted
    to remain in the United States to stay and even pursue a
    pathway to permanent residence. This new category (known
    as “U nonimmigrant status” or “U visa”) provides certain
    aliens with nonimmigrant status under section 1101(a)(15)(U)
    of the Immigration and Nationality Act (“INA”). Congress’s
    purpose behind “creat[ing] a new nonimmigrant visa
    1
    USCIS, Number of Form I-918, Petition for U Nonimmigrant Status
    by Fiscal Year, Quarter, and Case Status (FY 2009–2019), available at
    https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20
    and%20Studies/Immigration%20Forms%20Data/Victims/I918u_visasta
    tistics_fy2019_qtr2.pdf (last visited Aug. 29, 2019).
    32                 PEREZ PEREZ V. WOLF
    classification” was to “strengthen the ability of law
    enforcement agencies to detect, investigate, and prosecute
    cases of domestic violence, sexual assault, trafficking of
    aliens, and other crimes,” while also “offering protection to
    victims of such offenses in keeping with the humanitarian
    interests of the United States.” H.R. REP. NO. 106-939, at 72
    (2000) (Conf. Rep.); Victims of Trafficking & Violence
    Protection Act of 2000 (“VTPA”), Pub. L. No. 106-386,
    § 1513(a), 
    114 Stat. 1533
    –37 (2000). The U visa was created
    with a particular focus on women and children who,
    according to Congress’s findings, “are often targeted to be
    victims of crimes committed against them in the United
    States.” H.R. REP. NO. 106-939, at 71. Because alien victims
    may not have legal status and may be reluctant to report being
    victims to a crime or to help in the investigation or
    prosecution of criminal activity due to fear of removal,
    Congress “[p]rovid[ed] temporary legal status to aliens who
    have been severely victimized by criminal activity” in order
    to “comport[] with the humanitarian interests of the United
    States.” 
    Id. at 72
    . Congress emphasized that “this section
    gives the Attorney General discretion to convert the status of
    such nonimmigrants to that of permanent residents when
    doing so is justified on humanitarian grounds, for family
    unity, or is otherwise in the public interest.” 
    Id.
    To be eligible for a U visa, a nonimmigrant alien must
    meet the following four statutory requirements:
    (I) the alien has suffered substantial physical
    or mental abuse as a result of having been a
    victim of criminal activity described in clause
    (iii);
    PEREZ PEREZ V. WOLF                               33
    (II) the alien (or in the case of an alien child
    under the age of 16, the parent, guardian, or
    next friend of the alien) possesses information
    concerning criminal activity described in
    clause (iii);
    (III) the alien (or in the case of an alien child
    under the age of 16, the parent, guardian, or
    next friend of the alien) has been helpful, is
    being helpful, or is likely to be helpful to a
    Federal, State, or local law enforcement
    official, to a Federal, State, or local
    prosecutor, to a Federal or State judge, to the
    Service, or to other Federal, State, or local
    authorities investigating or prosecuting
    criminal activity described in clause (iii); and
    (IV) the criminal activity described in clause
    (iii) violated the laws of the United States or
    occurred in the United States (including in
    Indian country and military installations) or
    the territories and possessions of the United
    States[.]
    
    8 U.S.C. § 1101
    (a)(15)(U)(i). Subsection (iii) sets forth the
    types of “criminal activity . . . or any similar activity in
    violation of Federal, State, or local criminal law” required to
    support a U visa application.2 
    8 U.S.C. § 1101
    (a)(15)(U)(iii).
    2
    The type of serious criminal activity that Congress specified to
    justify providing temporary (and even permanent) residency to certain
    aliens who would not otherwise be permitted to remain in the United
    States include: “rape; torture; trafficking; incest; domestic violence; sexual
    assault; abusive sexual contact; prostitution; sexual exploitation; stalking;
    34                      PEREZ PEREZ V. WOLF
    Congress presumably specified particularly serious and
    violent crimes with the intent to protect “severely victimized”
    aliens. H.R. REP. NO. 106-939, at 72. Relevant to Perez, a
    qualifying criminal activity under the statute includes
    “felonious assault.” 
    Id.
    In a U visa petition, the petitioner must include a Form
    I-918, Supplement B (“the certification”), which is:
    [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.
    
    8 U.S.C. § 1184
    (p)(l); see also 
    8 C.F.R. § 214.14
    (c)(2)(i).
    USCIS is the agency responsible for determining,
    adjudicating, and revoking U visas. See New Classification
    for Victims of Criminal Activity; Eligibility for “U”
    Nonimmigrant Status, 
    72 Fed. Reg. 53,014
     (Sept. 17, 2007)
    female genital mutilation; being held hostage; peonage; involuntary
    servitude; slave trade; kidnapping; abduction; unlawful criminal restraint;
    false imprisonment; blackmail; extortion; manslaughter; murder; felonious
    assault; witness tampering; obstruction of justice; perjury; fraud in foreign
    labor contracting (as defined in section 1351 of Title 18); or attempt,
    conspiracy, or solicitation to commit any of the above mentioned
    crimes[.]” 
    8 U.S.C. § 1101
    (a)(15)(U)(iii).
    PEREZ PEREZ V. WOLF                            35
    (to be codified at 8 C.F.R. pt. 103, 212).3 “USCIS has sole
    jurisdiction over all petitions for U nonimmigrant status.”
    
    8 C.F.R. § 214.14
    (c)(1). USCIS will “determine, in its sole
    discretion, the evidentiary value of previously or concurrently
    submitted evidence, including Form I-918, Supplement B,
    ‘U Nonimmigrant Status Certification.’” 
    72 Fed. Reg. 53,038
    . Section 1184(a)(1) “authorizes the Secretary of
    Homeland Security to prescribe, by regulation, the time and
    conditions of admission of any nonimmigrant” and “[i]mplicit
    in this authority is the authority to prescribe the conditions
    under which nonimmigrant status may be revoked.” 
    72 Fed. Reg. 53,030
    .
    II.
    Perez asserts that he was harassed in violation of
    Washington State law, Wash. Rev. Code § 9A.46.020 (2011),
    by two individuals to whom Perez had lent money. Perez told
    the reporting officer with the Renton Police Department that
    one individual “threatened to place Perez in jail if he keeps
    asking for his money back”; he told Perez “he would make
    him disappear”; and Perez “was scared that [the individual]
    might do something to him.” However, according to the
    reporting officer, these allegations “were not defined enough
    for me to file harassment charges.” In fact, on the
    certification form that accompanied his U visa petition, the
    Commander wrote: “This was an informational case and no
    3
    Congress enacted the Violence Against Women and Department of
    Justice Reauthorization Act of 2005, directing the Security of Homeland
    Security to promulgate regulations implementing, inter alia, section 1513
    of VTVPA (codified at 
    8 U.S.C. § 1184
    (p)(l)). As a result, USCIS
    published an Interim Rule to govern the creation of U nonimmigrant
    status. See 
    72 Fed. Reg. 53,014
    .
    36                PEREZ PEREZ V. WOLF
    charges were filed.” Additionally, the Commander noted that
    Perez presented “no known physical injury.” In denying
    Perez’s U visa petition, USCIS stated in the notification
    letter: “You have not established your eligibility for the
    desired classification and [USCIS] cannot reach a favorable
    decision.” Perez had argued that he was a victim of
    “harassment,” which even though it is not an enumerated
    qualifying crime under the statute, he alleged “involved
    and/or was similar to felonious assault,” which is an
    enumerated qualifying crime. The USCIS, however,
    explained that Perez did not qualify as a victim of a
    “qualifying criminal activity”:
    As proof to satisfy this requirement, you
    submitted a copy of an [sic] temporary anti-
    harassment order that was unable to be served.
    On March 25, 2014, you were requested to
    submit additional evidence to demonstrate
    that the crime, harassment; would be
    considered a crime related to those listed in
    regulation. You responded on June 18, 2014,
    with a letter from your attorney but you did
    not provide sufficient evidence to prove that
    your crime of harassment is similar to a
    certified crime listed on the Supplement B.
    You were also requested in your request for
    evidence letter that was sent to you on
    March 25, 2014, to provide a supplement B
    that was dated within six (6) months of the
    date of the petition. You responded with a
    letter from your attorney on June 18, 2014 but
    did not provide a new Supplement B signed
    within the regulation time requirements.
    PEREZ PEREZ V. WOLF                             37
    The evidence, as presented, does not establish
    that you have been a victim of qualifying
    criminal activity. The record does not contain
    satisfactory evidence to establish your
    eligibility under this requirement.
    On appeal, the Administrative Appeals Office (“AAO”)
    found that Perez did not establish that he was a victim of a
    qualifying crime and thus dismissed the appeal. Perez
    asserted that even though the Renton Police Department listed
    on the certification that the alleged crime was one of
    “harassment,” he was actually a victim of “felony
    harassment,” which involves or is substantially similar to
    “felony assault,” an enumerated qualifying crime. The AAO
    explained, “the nature and elements of the harassment offense
    must be substantially similar to one of the qualifying criminal
    activities in the statutorily enumerated list” and the “inquiry,
    therefore, is not fact-based, but rather entails comparing the
    nature and elements of the statutes in question.” In
    comparing the statutes of harassment under Wash. Rev. Code
    § 9A.46.0204 and of felonious assault, the AAO concluded
    4
    Under Washington law, “[a] person is guilty of harassment if:
    (a) Without lawful authority, the person knowingly
    threatens:
    (i) To cause bodily injury immediately or in the
    future to the person threatened or to any other
    person; or
    (ii) To cause physical damage to the property of a
    person other than the actor; or
    (iii) To subject the person threatened or any other
    person to physical confinement or restraint; or
    38                     PEREZ PEREZ V. WOLF
    that “[n]o elements of harassment under Wash. Rev. Code
    §§ 9A.46.020 are similar to felonious assault under Wash.
    Rev. Code §§ 9A.36.011, 9A.36.021, and 9A.36.031.”5
    (iv) Maliciously to do any other act which is
    intended to substantially harm the person
    threatened or another with respect to his or her
    physical or mental health or safety; and
    (b) The person by words or conduct places the person
    threatened in reasonable fear that the threat will be
    carried out. “Words or conduct” includes, in addition
    to any other form of communication or conduct, the
    sending of an electronic communication.
    Wash. Rev. Code § 9A.46.020(1). Felony harassment, under the same
    statute, requires, inter alia, that a person harasses another person “by
    threatening to kill the person threatened or any other person.” Wash. Rev.
    Code § 9A.46.020(2)(b)(ii).
    5
    In identifying statutory elements, the AAO looked to Washington
    common law:
    Assault is not defined by Washington law, so
    Washington courts apply the common law definition of
    assault in criminal cases. Clark v. Baines, 
    84 P.3d 245
    ,
    247 n.3 (Wash. 2004). Three common law definitions
    of criminal assault are recognized in Washington:
    “(1) an attempt, with unlawful force, to inflict bodily
    injury upon another; (2) an unlawful touching with
    criminal intent; and (3) putting another in apprehension
    of harm whether or not the actor intends to inflict or is
    capable of inflicting that harm.” 
    Id.
     (quoting State v.
    Walden, 
    841 P.2d 81
    , 83 (Wash. Ct. App. 1992)).
    Felonious assault under the Washington Criminal Code
    involves an assault with a deadly weapon or that causes
    bodily injury.       See Wash. Rev. Code Ann.
    §§ 9A.36.011 and 9A.36.021. Felonious assault in
    Washington also includes assault against certain
    PEREZ PEREZ V. WOLF                        39
    The AAO further rejected Perez’s assertion that he
    suffered felonious assault—based on the argument that the
    harassment “involved a threat to kill him that placed him in
    apprehension of harm”—finding that Perez did not allege
    anything other than “harassment” in his U visa petition.
    Nothing in his U visa petition indicates that felony
    harassment was the basis of his Form I-918 Supplement B.
    In assessing the elements of the crime that he actually
    asserted (i.e., harassment), the AAO found that there was no
    evidence in the record to support a finding that Perez was a
    victim of any qualifying criminal activity.
    Perez filed a motion to reconsider the AAO’s decision,
    which was denied on the basis that he “has not demonstrated
    that he was a victim of qualifying criminal activity.” First,
    the AAO found that “the record as a whole does not establish
    that the certifying agency detected or investigated felony
    harassment,” but rather the only crime listed on the
    certification form was “harassment, which is a gross
    misdemeanor under Washington law and is not an
    enumerated offense under section 101(a)(15)(U)(iii) of the
    Act.” The AAO next found that even if felony harassment
    had been detected by the Renton Police Department, Perez
    “has not demonstrated that it is substantially similar to the
    qualifying criminal activity of felonious assault.” Based on
    a comparison of the statutes in question (not a fact-based
    inquiry), the AAO concluded:
    The statutory elements of felony harassment
    under Wash. Rev. Code section
    protected classes and assault with intent to commit a
    felony. Wash. Rev. Code Ann. §§ 9A.36.021 and
    9A.36.031.
    40                 PEREZ PEREZ V. WOLF
    9A.46.020(2)(b)(ii) . . . involve[] the
    communication of a threat to kill and placing
    the threatened person in reasonable fear that
    the threat will be carried out through words or
    conduct. However, felony assault does not
    require a communication of a threat for a
    conviction. State v. Mandanas, 
    262 P.3d 522
    ,
    526–27 (Wash. Ct. App. 2011). Additionally,
    a felony harassment conviction does not
    require an added aggravating factor beyond
    the threat, such as the use of a weapon or
    commission of the offense with the intention
    to commit a felony. Moreover, contrary to
    [Perez]’s assertions on motion, Washington
    case law indicates that a plain reading of the
    harassment and assault statutes shows that the
    state legislature “intended to distinguish
    felony harassment and second degree assault
    as distinct offenses.” Mandanas, 
    262 P.3d at
    526–27.[] In fact, the Mandanas court
    specifically held that second degree assault
    and harassment had different elements. 
    Id. at 526
    .
    Perez filed an APA suit in the United States District Court
    for the Western District of Washington against the Secretary
    of Homeland Security, the Acting Director of the USCIS, and
    others, alleging the denial of his U visa was erroneous
    because: the Renton Police Department at least “detected”
    that he was a victim of felony harassment; he demonstrated
    that the detected felony harassment involved felonious
    assault; the agencies failed to consider credible and material
    evidence; and he could establish eligibility for a U visa. The
    parties filed cross motions for summary judgment.
    PEREZ PEREZ V. WOLF                         41
    In dismissing the action for lack of subject matter
    jurisdiction, the district court concluded that this case fell into
    the APA § 701(a)(2)’s exclusion from judicial review of an
    agency’s discretionary decision. The court noted: “USCIS
    has ‘sole jurisdiction’ over U-visa petitions and ‘sole
    discretion’ to determine the evidentiary value of the
    petitioner’s evidence when ruling on a petition,” and “U-visa
    determinations are ‘committed to USCIS’ discretion by law.’”
    The court found, “[i]n the U-visa context, there is no
    judicially manageable standard by which a court can judge
    how USCIS should exercise its discretion.” The court
    recognized the legal landscape of this issue in our circuit:
    In the Ninth Circuit, courts “lack[] jurisdiction
    over the [USCIS’] determinations regarding
    U Visas.” Seo v. Holder, 358 F. App’x 884
    (9th Cir. 2009) (citing Ramirez Sanchez v.
    Mukasey, 
    508 F.3d 1254
    , 1555–56 (9th Cir.
    2007) (per curiam)). In addition, a district
    court within this Circuit recently surveyed U-
    visa cases and could not find “any federal
    court that has exercised jurisdiction over
    questions of a Petitioner’s eligibility for a U-
    Visa.” Nsinano v. Sessions, 
    236 F. Supp. 3d 1133
    , 1137 (N.D. Cal. 2017). Although Mr.
    Perez provided a number of cases generally
    supporting judicial review under the APA, he
    did not offer any cases where a court reviewed
    the agency’s U-visa determination. (See Pl.
    Opp. & Reply (Dkt. #27) at 3–7.).
    The court thus held that the USCIS’s denial of Perez’s
    petition was not subject to judicial review, and dismissed the
    42                 PEREZ PEREZ V. WOLF
    administrative appeal for lack of subject matter jurisdiction.
    Perez timely appealed.
    III.
    We review de novo a district court’s dismissal for lack of
    subject matter jurisdiction. Yu-Ling Teng v. District Director,
    U.S. Citizenship & Immigration Servs., 
    820 F.3d 1106
    , 1108
    (9th Cir. 2016).
    IV.
    Congress’s intent in creating a new nonimmigrant
    category was to vest to the USCIS the absolute discretionary
    authority over U visas with sole jurisdiction over U visa
    petitions, with sole discretion to determine the evidentiary
    value of the petitioner’s evidence when ruling on a petition,
    and with the adjudicative authority in determining whether to
    grant or deny a U visa and whether to subsequently revoke
    such status. To restrict USCIS’s discretionary authority by
    allowing courts to review U visa decisions would not only
    contradict Congress’s intent, but would breach the separation
    of powers by allowing courts to venture into the forbidden
    legislative territory. This conclusion is compelled by
    § 701(a)(2) of the APA and § 1252(a)(2)(B)(ii) of the INA,
    which preclude judicial review of discretionary U visa
    decisions.
    A.
    Section 701(a)(2) of the APA precludes judicial review of
    agency decisions where the agency action is “committed to
    agency discretion by law.” 
    5 U.S.C. § 701
    (a)(2); see also
    Heckler, 
    470 U.S. at 830
    . The Supreme Court has recognized
    PEREZ PEREZ V. WOLF                       43
    that a decision is committed to agency discretion by law when
    “the statute is drawn so that a court would have no
    meaningful standard against which to judge the agency’s
    exercise of discretion.” Heckler, 
    470 U.S. at 830
    ; see also
    Pinnacle Armor, Inc. v. United States, 
    648 F.3d 708
    , 719 (9th
    Cir. 2011) (citations omitted). The statutory and regulatory
    U visa frameworks provide no judicially manageable standard
    by which a court can judge how USCIS should exercise its
    discretion in reviewing the denial of U visas. The applicable
    U visa statutes are 
    8 U.S.C. §§ 1101
    (a)(15)(U) and § 1184(p).
    Section 1101(a)(15)(U)—the statutory definition of
    U nonimmigrant status—prescribes that an alien may be
    eligible for nonimmigrant status if “the Secretary of
    Homeland Security determines” that the alien has met the
    enumerated requirements. 
    8 U.S.C. § 1101
    (a)(15)(U)(i). The
    fact that Congress left to the Secretary of Homeland Security
    the power to determine who qualifies for this type of
    nonimmigrant status evinces Congressional intent that the
    agency is vested with the decision-making discretion. While
    this section defines who may qualify for a U visa, it does not
    compel or restrict any action by USCIS and does not specify
    how USCIS should evaluate the U visa petitions, qualifying
    crimes, substantial physical or mental abuse, or helpfulness
    requirements. Rather, the determination is left to USCIS’s
    judgment. The statute provides no “meaningful standard” for
    defining the limits of that discretion. Heckler, 
    470 U.S. at 830
    .
    Similarly, section 1184(p)—the governing procedural
    requirements applicable to U visas—states that “the petition
    filed by an alien under section 1101(a)(15)(U)(i) of this title”
    must be accompanied by a certification from law enforcement
    that provides that the alien “has been helpful, is being helpful,
    44                  PEREZ PEREZ V. WOLF
    or is likely to be helpful” in the investigation or prosecution
    of qualifying criminal activity. 
    8 U.S.C. § 1184
    (p)(1). This
    subsection does not provide a standard “for judging how and
    when an agency should exercise its discretion” in granting or
    denying a U visa. Heckler, 
    470 U.S. at 830
    . Moreover, the
    statute uses language that requires an exercise of discretion in
    determining how many aliens “may be issued”
    U nonimmigrant status each year. 
    8 U.S.C. § 1184
    (p)(2)(A)
    (emphasis added). Critically, by limiting the number of
    U visas that may be issued to 10,000 annually, Congress
    intended the granting and denying of U nonimmigrant status
    to be purely discretionary. It is unreasonable to suggest that
    Congress intended the courts to dictate how the Secretary of
    Homeland Security manages the limited number of U visas
    that she is authorized to grant.
    The only controls Congress placed on the Secretary of
    Homeland Security’s discretion in administering U visas were
    duties to: (1) provide qualifying aliens with referrals to
    nongovernmental organizations to advise the aliens regarding
    their options and resources available to them while in the
    United States; (2) provide the qualifying alien with
    employment authorization while in lawful temporary resident
    status; and (3) consider any credible evidence relevant when
    acting on the petition. 
    8 U.S.C. § 1184
    (p)(3), (4). However,
    the first two requirements arise only after the alien has been
    determined to be a qualifying alien, a decision Congress left
    to the Secretary of Homeland Security. And the latter
    requirement is a blanket authorization of discretionary
    authority to consider “any credible [and] relevant” evidence
    when “acting on any petition filed under this subsection.” 
    Id.
    § 1184(p)(4) (emphasis added). The statute does not specify
    how the agency should determine what evidence is credible
    and relevant, nor does it prescribe a limit to the discretion.
    PEREZ PEREZ V. WOLF                      45
    Instead “just as with the initial adjudication of Form I-918,
    the determination of what is relevant evidence and the weight
    to be given to that evidence will be within the sole discretion
    of USCIS.” 
    72 Fed. Reg. 53,031
     (emphasis added).
    In sum, nothing in the applicable U visa
    statutes—§§ 1101(a)(15)(U) or 1184(p)—indicates how the
    USCIS should make its decision to grant or deny a U visa.
    Absent a reference to, let alone a specification on, how the
    agency should utilize its discretionary authority, the statutes
    fail to provide a judicially manageable standard and thus
    preclude judicial review.
    The applicable U visa regulations reinforce that the
    agency has discretion over U visa application and that there
    are no judicially manageable standards. An alien’s eligibility
    for U nonimmigrant status is expressly contingent upon the
    USCIS’s determination of the evidentiary value of materials
    submitted and USCIS’s determination that the petitioner has
    met the requirements for U visa status. See 
    8 C.F.R. § 214.14
    (b) (making an alien’s eligibility for a U visa
    contingent upon demonstrating “all of the following in
    accordance with paragraph (c) of this section”).
    Paragraph (c) provides that: “USCIS has sole jurisdiction
    over all petitions for U nonimmigrant status”; an alien’s
    eligibility for a U visa is based on being a victim of a
    qualifying crime; “USCIS will determine, in its sole
    discretion, the evidentiary value” of the alien’s petition
    materials, “including Form I-918, Supplement B,
    ‘U Nonimmigrant Status Certification’”; and “[i]f USCIS
    determines that the petitioner has met the requirements for
    U-1 nonimmigrant status, USCIS will approve the Form
    I-918.” See 
    8 C.F.R. §§ 214.14
    (c)(1)–(5) (emphasis added).
    46                  PEREZ PEREZ V. WOLF
    Nothing in the regulation dictates that USCIS must grant
    a U visa or even explains when USCIS must grant a
    U visa—it describes only when an alien is eligible to apply
    and leaves the decision to grant or deny with the USCIS.
    Like the applicable INA statutory provisions, nothing in the
    regulations describes how USCIS should evaluate the
    evidence when exercising its discretion in granting or denying
    a U visa. Absent a standard “for judging how and when an
    agency should exercise its discretion” or “for defining the
    limits of that discretion” in granting or denying a U visa, the
    decision is “committed to agency discretion by law” and thus
    is not judicially reviewable. Heckler, 
    470 U.S. at 830
    ,
    834–35.
    B.
    I have no quarrel with the majority’s sua sponte
    questioning of jurisdiction under § 1252(a)(2)(B)(ii) of the
    INA. Maj. Op. at 5; Spencer Enters., Inc. v. United States,
    
    345 F.3d 683
    , 687 (9th Cir. 2003) (stating that this Court has
    a “duty to consider subject matter jurisdiction sua sponte in
    every case”). However, review of § 1252(a)(2)(B)(ii)
    discloses no meaningful standard for judicial review. Unlike
    the APA analysis, the jurisdictional inquiry is governed by
    the statutes only, and not the regulations. See Spencer,
    
    345 F.3d at 691
     (evaluating whether § 1252(a)(2)(B)(ii)
    prescribes judicially manageable standards requires that
    “such standards must be found in the statutes” and that
    “regulations or agency practice will not make the decision
    reviewable”).
    Section 1252(a)(2)(B)(ii) provides that “no court shall
    have jurisdiction to review . . . any other decision or action of
    the Attorney General or the Secretary of Homeland Security
    PEREZ PEREZ V. WOLF                       47
    the authority for which is specified under this subchapter to
    be in the discretion of the Attorney General or the Secretary
    of Homeland Security . . . .” For the discretionary decision to
    strip the court of jurisdiction, (1) the “discretionary authority
    [must] be ‘specified’ under the INA” meaning “the language
    of the statute in question must provide the discretionary
    authority”; and (2) “the ‘authority [must] be in the discretion
    of the Attorney General,’” which means having “the power to
    act ‘according to [one’s] own understanding and
    conscience.’” Spencer, 
    345 F.3d at
    689–90 (last alteration in
    original) (emphasis omitted).
    As noted, the applicable U visa statutes—INA’s
    §§ 1101(a)(15)(U) and 1184(p)—give the USCIS discretion
    in granting or denying an alien’s petition for a U visa. The
    USCIS “determines” whether to grant or deny a U visa and is
    limited in how many U visas “may be issued” to 10,000
    annually. 
    8 U.S.C. §§ 1101
    (a)(15)(U) and 1184(p)(2)(A)
    (emphasis added). This statutory language “specifie[s]”
    discretionary authority. Spencer, 
    345 F.3d at 689
    ; see also
    Jama v. Immigration & Customs Enf’t, 
    543 U.S. 335
    , 346
    (2005) (finding that Congress’s use of “may”—rather than
    “must” or “shall”—brings along the usual presumption of
    discretion); Poursina v. United States Citizenship &
    Immigration Servs., 
    936 F.3d 868
    , 873 (9th Cir. 2019)
    (finding that “Congress use[s] a wide range of language to
    commit decisions to the government’s discretion,” even if it
    chooses not to expressly use the word “discretion”). Because
    the U visa determination is not dictated by any statutorily
    prescribed legal standard, but rather measures the “power to
    act . . . within [the Secretary of Homeland Security’s]
    judgment,” it is a “matter[] of pure discretion.” Spencer,
    
    345 F.3d at 690
    .
    48                  PEREZ PEREZ V. WOLF
    Both Perez’s and the majority’s reliance on Spencer
    Enterprises is misplaced. In Spencer Enterprises, we held
    that neither the APA nor § 1252(a)(2)(B)(ii) barred review of
    USCIS’s denial of an investor visa under §§ 1153(b)(5) and
    1154(b) of the INA because the applicant’s investor visa was
    not left solely to USCIS’s discretion. 
    345 F.3d 683
    , 688–91
    (2003). Rather, we relied on the language of §§ 1153(b)(5)
    and 1154(b), both of which mandated the granting of visas
    once the qualifying criteria were satisfied. 
    8 U.S.C. § 1153
    (b)(5)(A) (stating that “[v]isas shall be made
    available” to qualifying immigrants) (emphasis added); 
    id.
    § 1154(b) (stating that the Attorney General “shall . . .
    approve the petition” upon determining that the petitioner is
    eligible) (emphasis added). We concluded that, by mandating
    the agency to issue the investor visas, Congress did not leave
    the decision to the discretion of the agency.
    In contrast, the applicable U visa statutes in Perez’s case,
    §§ 1101(a)(15)(U) and 1184(p), do not reflect a similar
    mandate from Congress. Rather, for U visa status, “an alien
    . . . files a petition for status under this subparagraph, [and]
    the Secretary of Homeland Security determines” whether the
    alien satisfies the enumerated elements of the statute, and
    Secretary of Homeland Security “may . . . issue[]” only
    10,000 U visas annually. 
    8 U.S.C. §§ 1101
    (a)(15)(U) and
    1184(p) (emphasis added). Unlike the mandatory issuing of
    investor visas, the granting or denying of U visas rests
    entirely within the USCIS’s discretion, and thus, is not
    judicially reviewable.
    Although we have not published on this issue, our
    unpublished decisions agree that our court lacks jurisdiction
    to review USCIS’s denial of U visa petitions. See, e.g., Eun
    Kyeong Seo v. Holder, 358 F. App’x 884 (9th Cir. 2009)
    PEREZ PEREZ V. WOLF                            49
    (“This court lacks jurisdiction over [USCIS] determinations
    regarding U visas.”); Chang Young Jung v. Holder, 393 F.
    App’x 530 (9th Cir. 2010) (“We lack jurisdiction to review
    [USCIS].”).
    Moreover, we recently issued an analogous decision that
    Ҥ1252(a)(2)(B)(ii) strips federal courts of jurisdiction to
    review USCIS’s decisions to deny a national-interest waiver.”
    Poursina, 936 F.3d at 873. It is difficult to square the
    majority’s approach here with our opinion in Poursina. The
    provision at issue in Poursina, which requires that the
    Attorney General determine whether a waiver was in “the
    national interest,” allows for more “meaningful standards”
    than may be gleaned from the majority’s opinion.6 In
    addition, the opinion in Poursina recognized that “Congress’s
    use of ‘may’—rather than ‘must’ or ‘shall’—brings along the
    usual presumption of discretion.” Id. at 871. Of course, there
    are differences between Perez’s case and Poursina, but
    Poursina is not fairly read as supporting the majority’s
    opinion.
    6
    USCIS had set forth that an alien seeking a national-interest waiver
    must show:
    (1) that the foreign national’s proposed endeavor has
    both substantial merit and national importance; (2) that
    the foreign national is well positioned to advance the
    proposed endeavor; and (3) that, on balance, it would
    be beneficial to the United States to waive the
    requirements of a job offer and thus of a labor
    certification.
    Matter of Dhanasar, 
    26 I. & N. Dec. 884
    , 889 (2016). Nonetheless, we
    held that such a determination remained discretionary and not subject to
    judicial review.
    50                  PEREZ PEREZ V. WOLF
    Moreover, decisions by the Fifth, Seventh, Eleventh, and
    D.C. Circuits also hold that courts lack jurisdiction to review
    U visa petitions. See Torres-Tristan v. Holder, 
    656 F.3d 653
    ,
    659 (7th Cir. 2011) (“[J]udicial review in the circuit courts of
    appeals of U visa denials . . . would appear to be
    unprecedented. Our decisions reflect a longstanding practice
    of not reviewing visa denials in general”); L.D.G. v. Holder,
    
    744 F.3d 1022
    , 1024 (7th Cir. 2014) (“[T]he decision whether
    to grant a U Visa is statutorily committed to the discretion of
    the Secretary of Homeland Security, see 
    8 U.S.C. § 1101
    (a)(15)(U), and is exercised through USCIS . . . .”);
    Bejarano v. Homeland Sec. Dep’t, 300 F. App’x 651, 653
    (11th Cir. 2008) (affirming district court’s finding that it
    lacked subject matter jurisdiction to review denial of U visa
    petition because “jurisdiction over the grant or denial of a
    U visa . . . rests with [USCIS], and any decision by the
    certifying official to sign or decline to sign the status
    certification is discretionary”); Semiani v. United States,
    
    575 F.3d 715
     (D.C. Cir. 2009) (“Congress has not provided
    for judicial review of decisions to deny a ‘U-visa’ pursuant to
    
    8 U.S.C. § 1101
    (a)(15)(U).”); Ordonez Orosco v. Napolitano,
    
    598 F.3d 222
    , 226 (5th Cir. 2010) (finding that “the language
    of § 1184(p) makes it abundantly clear that the decision to
    issue a law enforcement certification [when applying for a
    U visa] is a discretionary one” and thus concluding that the
    district court correctly dismissed for lack of jurisdiction).
    It is our general rule to decline to create a circuit split
    unless there is a compelling reason to do so. Padilla-Ramirez
    v. Bible, 
    882 F.3d 826
    , 836 (9th Cir. 2017), citing Kelton
    Arms Condo. Owners Ass’n, Inc. v. Homestaead Ins. Co.,
    
    346 F.3d 1190
    , 1192 (9th Cir. 2003). Perez’s case does not
    present such a reason.
    PEREZ PEREZ V. WOLF                       51
    V.
    Indeed, Perez’s case is a particularly unsuitable vehicle
    for expanding the judiciary’s review of denials of U visas. As
    noted by the majority, Perez’s complaint alleged that the
    agency (1) failed to consider all credible evidence, (2) erred
    in concluding that “felony harassment does not constitute a
    qualifying criminal activity,” and (3) made an unsupported
    finding in concluding that “felony harassment was not
    detected by law enforcement.” Maj. op. at 12. First, there is
    simply nothing to support the allegation that the agency did
    not consider all the evidence Perez proffered. Second, as
    noted, there are substantial differences between the
    “harassment” alleged by Perez and criminal harassment under
    Washington law. See infra at 37–40. Third, the record not
    only supports, but compels, the conclusion that “felony
    harassment was not detected by law enforcement.” The
    record shows that Perez alleges that he loaned money to two
    individuals and that when he requested repayment they
    threatened him. He then reported this to the police and
    sought an anti-harassment order. But the police determined
    that the alleged threats were not definite enough to support
    the filing of harassment charges and the anti-harassment
    order was dismissed because the defendant was not able to be
    served. In sum, the only evidence that Perez “suffered
    substantial physical or mental abuse as a result of having been
    a victim of criminal activity,” or had been helpful to
    authorities “investigating or prosecuting criminal activity,”
    see 
    8 U.S.C. § 1101
    (a)(15)(U)(i), is his unsupported
    allegation of harassment which the local police chose not to
    investigate. If courts had any jurisdiction to review the denial
    of Perez’s U visa, it is clear that under any standard of review
    the Secretary’s denial would be affirmed.
    52                 PEREZ PEREZ V. WOLF
    VI.
    Congress granted the USCIS absolute discretionary
    authority over U visa decisions. The Supreme Court prohibits
    us from reviewing decisions that Congress commits to agency
    discretion. The majority opinion breaches the separation of
    powers between our branches of government to arrogate the
    power unto itself to review the discretionary decisions of
    U visas. By misapplying the applicable statutes, by ignoring
    every other circuit that has decided this issue before us, and
    by violating the proper role of courts in our government, the
    majority opinion opens “Pandora’s box” to courts reviewing
    the USCIS’s decision of the approximately 250,000 U visa
    petitions currently pending before the USCIS seeking
    discretionary relief. This is not required by the applicable
    statutes and regulations, is unprecedented in our circuit, and
    contrary to the consistent position of our sister circuits.
    Because I would affirm the district court’s dismissal for lack
    of subject matter jurisdiction, I dissent.
    

Document Info

Docket Number: 18-35123

Filed Date: 11/22/2019

Precedential Status: Precedential

Modified Date: 11/25/2019

Authorities (35)

ORDONEZ OROSCO v. Napolitano , 598 F.3d 222 ( 2010 )

Torres-Tristan v. Holder , 656 F.3d 653 ( 2011 )

Pinnacle Armor, Inc. v. United States , 648 F.3d 708 ( 2011 )

Taslimi v. Holder , 590 F.3d 981 ( 2010 )

Pacific Northwest Generating Cooperative v. Bonneville ... , 596 F.3d 1065 ( 2010 )

Ray Strickland and Sam Lorimer v. Hon. Rogers C. B. Morton , 519 F.2d 467 ( 1975 )

Ramirez Sanchez v. Mukasey , 508 F.3d 1254 ( 2007 )

spencer-enterprises-inc-li-hui-chang-and-chung-chuan-sun-jerry-chien-hua , 345 F.3d 683 ( 2003 )

Kelton Arms Condominium Owners Association, Inc. v. ... , 346 F.3d 1190 ( 2003 )

County of Esmeralda, State of Nevada v. U.S. Department of ... , 925 F.2d 1216 ( 1991 )

ana-international-inc-an-oregon-corporation-honggang-yu-an-individual-v , 393 F.3d 886 ( 2004 )

robson-bonnichsen-c-loring-brace-george-w-gill-c-vance-haynes-jr , 367 F.3d 864 ( 2004 )

arizona-power-authority-electrical-district-no-2-pinal-county-arizona , 549 F.2d 1231 ( 1977 )

deanna-beno-susan-wiseman-jody-baker-janese-denise-bland-reina-weight-susan , 30 F.3d 1057 ( 1994 )

city-of-los-angeles-california-city-of-san-antonio-texas-city-of , 307 F.3d 859 ( 2002 )

Chrysler Corporation v. United States Environmental ... , 631 F.2d 865 ( 1980 )

Tigran Ekimian Rouzan Nagapetian Avetis Hekimian v. ... , 303 F.3d 1153 ( 2002 )

Juanita Newman, on Behalf of Herself and All Others ... , 223 F.3d 937 ( 2000 )

Ursack, Inc. v. Sierra Interagency Black Bear Group , 639 F.3d 949 ( 2011 )

Semiani v. United States , 575 F.3d 715 ( 2009 )

View All Authorities »