Meina Xie v. John Kerry , 780 F.3d 405 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 15, 2015 Decided March 10, 2015
No. 14-5082
MEINA XIE
APPELLANT
v.
JOHN F. KERRY, AS UNITED STATES SECRETARY OF STATE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-606)
Christopher A. Teras argued the cause for appellant. On
the briefs was Mike Meier.
Aaron S. Goldsmith, Senior Litigation Counsel, U.S.
Department of Justice, argued the cause for appellee. With
him on the brief was Stuart F. Delery, Assistant Attorney
General.
Before: HENDERSON and MILLETT, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
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WILLIAMS, Senior Circuit Judge: Meina Xie alleges that
the Department of State is illegally delaying review of visa
applications filed by persons in certain immigration
categories. The district court dismissed the complaint, finding
that Xie had failed “to identify any discrete agency action that
[State was] required to take.” In the alternative, it said, she
failed to point to “authority” legally requiring the relief she
sought. Xie v. Kerry, 21 F. Supp. 3d 89, 93 (D.D.C. 2014).
But in fact Xie specifically asked for application of
§ 203(e)(1) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1153(e)(1). That section directs State to process
immigrant applicants in the order of their filing:
(e) Order of consideration
(1) Immigrant visas made available under subsection
(a) or (b) of this section shall be issued to eligible
immigrants in the order in which a petition in behalf
of each such immigrant is filed with the Attorney
General . . . as provided in section 1154(a) of this
title.
8 U.S.C. § 1153(e)(1).
The district court did not mention this provision. While it
may prove in the end that the broadly varying lengths of the
queues for various categories of immigration applicants are
consistent with § 203(e)(1)’s temporal priority mandate, Xie is
entitled to have her claim assessed. We reverse and remand
for further proceedings.
* * *
The INA limits the number of annual visas to be granted
to applicants for immigration to the United States. See 8
U.S.C. § 1101 et seq. Apart from § 203’s first-in, first-out
principle, the statute creates a variety of categories for which
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visas are to be granted. For example, applicants seeking to
qualify for employment visas must fit within one of the five
employment-based “preference” categories enumerated in 8
U.S.C. § 1153(b), each subject to an annual cap. In addition,
the statute imposes a country-based limit: visas for natives of
any “single foreign state . . . under subsections (a) and (b) of
section 1153” (relating to “family-sponsored” and
“employment-based” immigrants, respectively) must
constitute no more than 7% of visas issued under those
subsections. 8 U.S.C. § 1152(a)(2). Because China and India
are so populous, applicants from those countries are far more
likely to be blocked by the country cap than those from other
lands.
The employment-based preference category in which Xie
is interested, “Skilled workers, professionals, and other
workers” or the so-called “EB-3” category, is subject to a
particularly complicated set of provisions and caps. See 8
U.S.C. § 1153(b)(3) (describing three types of workers
eligible for EB-3 applications). The EB-3 category, itself
subject to a general limit of about 40,000 visas annually, is
composed of three subcategories. See 8 U.S.C. §§ 1153(b)(3),
1151(d)(1). Xie fits within the subcategory “other workers”
or “EWs,” which is intended for workers in occupations that
require less than two years of training, education, or
experience, and “for which qualified workers are not available
in the United States”; it is subject to a separate cap of only
5,000 visas annually. See 8 U.S.C. §§ 1153(b)(3)(A)(iii),
1153(b)(3)(B) (defining “other workers” and limiting the
group to 10,000 visas annually); 8 C.F.R. 204.5(l)(2) (further
defining “other workers”); Nicaraguan Adjustment and
Central American Relief Act, 105 Pub. L. 100, § 203(e), 111
Stat. 2193, 2199-2200 (1997) (providing a temporary
reduction “by 5,000 from the number of [other worker] visas
otherwise available”).
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In their papers before the district court and us the parties
have been distinctly obscure about the interaction of all these
limits. A declaration by the Chief of State’s Immigrant Visa
Control and Reporting Division suggests that the current
annual EW limit for China is 319. See Declaration of Charles
W. Oppenheim ¶ 14, Xie v. Kerry, No. 1:13-cv-606 (D.D.C.
July 5, 2013), ECF No. 6-1. It appears (though is not really
clear) that in arriving at this number State applied
§ 1152(a)(2)’s 7% country limit separately to the EW segment
of the EB-3 applicants, even though the text of that section
does not on its face require such treatment. Id.
Fundamentally, however, the declaration tells us little about
State’s system. As to the determinants of the length of
immigrant queues, the record provides little more than a black
box.
Publically available “cut-off dates” provide a window
into State’s system. An applicant is able to schedule an
interview and potentially obtain a visa to enter the United
States only when the date of his or her application (what State
calls each applicant’s “priority date”) is no later than the “cut-
off” date for his or her group. Whatever State’s exact system,
this produces varying cut-off dates depending on visa
category and country of origin. Below are the cut-off dates
for Chinese and various non-Chinese immigrants in two
categories: (1) EB-3 (non-EW) and (2) EW. See Visa Bulletin
for February 2015, available at
http://travel.state.gov/content/dam/visas/Bulletins/visabulletin
_February2015.pdf.
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Cut-Off Dates for EB-3 and EW Applicants Globally
(From February 2015 Visa Bulletin)
China-
India Mexico Philippines Other
mainland
EB-3 Sep. 1, Dec. 22, Jan. 1, Jan. 1, Jan. 1,
(non-EW) 2011 2003 2014 2014 2014
Aug. 15, Dec. 22, Jan. 1, Jan. 1, Jan. 1,
EW
2005 2003 2014 2014 2014
Section 203(e)(3) provides for the maintenance of
“waiting lists of applicants for visas” “in accordance with
regulations prescribed by the Secretary of State,” suggesting
the existence of potentially relevant regulations. And State
argues that other relevant statutory mandates, such as 8 U.S.C.
§ 1153(g) (authorizing them to “make reasonable estimates”
of the number of visas they anticipate issuing) and 8 U.S.C.
§ 1151(a)(2) (limiting the number of visas available in the
first three quarters of any year), grant State additional
discretion and justify deviation from the priority principle
when creating the cut-off dates. But the parties haven’t
furnished any relevant regulations which would reveal State’s
view of how it meshes the categorical caps, the priority rule,
and the other statutory directives, much less the thinking
behind that view, and we have found none that do so. When
we asked for such regulations at oral argument, counsel for
State said he knew of no elucidating regulations. See Oral
Argument Recording at 28:02.
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* * *
Xie’s EW immigration petition was received by State
around January 17, 2007, so that she has now been in the
queue for over eight years. She points to widely differing cut-
off dates as between Chinese EW applicants (including her),
other Chinese applicants in the EB-3 preference category, and
EW applicants from other countries. Compl. ¶ 6. She
characterizes the disparity between the Chinese EW cut-off
date and the China (non-EW) EB-3 cut-off date as in “blatant
disregard” of § 203’s temporal priority mandate. Compl. ¶
30.
The district court, without citing or discussing
§ 203(e)(1), dismissed Xie’s complaint for failing to state a
claim, finding, as we said, both that Xie had failed “to identify
any discrete agency action that DOS is required to take” and
that she had failed to point to any authority requiring the
action she sought. Xie, 21 F. Supp. 3d at 93.
The second theory ignores Xie’s express and repeated
reliance on § 203(e); the first vastly overstates the rule
articulated in Norton v. Southern Utah Wilderness Alliance,
542 U.S. 55, 64 (2004). The Court there observed that the
only agency action that can be compelled under the
Administrative Procedure Act “is action legally required.” Id.
at 63. This of course takes us back to the point that Xie did
assert a specific statutory requirement. It is true that in
Southern Utah the plaintiffs had sought compliance with a
statutory requirement, namely, that the defendant manage
wilderness study areas “in a manner so as not to impair the
suitability of such areas for preservation as wilderness,” id. at
65, and evidently sought a court order mandating
“compliance.” Id. at 66. But the Court, wanting to “protect
agencies from undue judicial interference with their lawful
discretion,” found that any such order would launch the
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district court onto a path of “work[ing] out compliance with
the broad statutory mandate, injecting the judge into day-to-
day agency management.” Id. at 66-67.
Here, Xie does not ask for compliance with a provision
that is anywhere near as broad as the ones listed in Southern
Utah. Rather, she points to a precise section of the INA,
establishing a specific principle of temporal priority that
clearly reins in the agency’s discretion, and argues that the
disparate cut-off dates for various subcategories manifest a
violation of the principle. The priority principle must be
integrated with the related INA requirements in some fashion,
and Xie is entitled to have State’s current approach
ascertained and its lawfulness adjudicated.
To ultimately prevail, Xie cannot rely solely on the
existence of the disparity in cut-off dates between Chinese
EWs and Chinese non-EW EB-3s. Notwithstanding
§ 203(e)(1)’s priority rule, some of the statutory provisions
appear to assure some differences in cut-off dates. For
instance, because all countries are subject to a 7% ceiling, and
because China and India are the world’s most populous by a
broad margin, the cut-off dates for Chinese or Indian EB-3
applicants are likely to lag behind those from less populous
countries. Similarly, if EWs represent more than a certain
proportion of the total EB-3 pool, imposition of the separate
cap for EWs will produce different cut-off dates for the two
groups.
The complaint further alleges that the current system
produces not only a disparity in cut-off dates between non-
EW EB-3s and EWs, but also unused annual EW slots—a
combination possibly suggesting that State uses the separate
pools in a way that yields greater differences in cut-off dates
than any difference the statute allows. Thus State may be
processing non-EW applicants before EW applicants who
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have earlier priority dates, even when there may be open EW
slots to fill. We’ve yet to hear State’s response on that issue,
or more broadly how State seeks to weave the various
subcategories and the priority principle together. One
potential interpretation of the statute (see Compl. ¶¶ 27-30)
would be that it supports a system that places all applicants in
a single list and works through it in temporal order, admitting
each applicant in order unless an applicable cap makes the
applicant ineligible, until all the caps are triggered.
In reversing, of course, we neither prescribe nor endorse
any solution, and we recognize that State must take account of
a variety of operational and other concerns. Accordingly we
hold only that the consequences of State’s current operations
are quite consistent with Xie’s allegations that it has
inadequately heeded § 203(e)(1)’s priority principle. Once
State’s interpretation and application of the relevant
provisions are reasonably clear, the court can assess their
lawfulness.
The judgment of the district court is
Reversed.