FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEDRO TOMAS PEREZ PEREZ,

Plaintiff-Appellant,

v.

CHAD F. WOLF, Acting Secretary of

Homeland Security; BARBARA Q.

VELARDE, Chief of the

Administrative Appeals Office for

USCIS; MARK KOUMANS, Acting

Director of USCIS; LAURA B.

ZUCHOWSKI, Director of the USCIS

Vermont Service Center,

Defendants-Appellees.

No. 18-35123

D.C. No.

2:17-cv-00249-

JLR

OPINION

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 evidentiaryvalue 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

HenryCruz (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 DefendantsAppellees.
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

lawenforcement 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

previouslyor concurrentlysubmitted 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 hisI-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 jurisdictionstripping 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 bywhich 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

discretionaryauthorityis 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 antiharassment 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 offelonious 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

offenses], 1182(i) [waiver 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 “onlywhen 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 AttorneyGeneral, 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,1as 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 discretionarycategory

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 nonimmigrantstatus 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.28 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 “severelyvictimized”

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 ofjustice; 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 evidentiaryvalue 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 anynonimmigrant” 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 antiharassment 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.46.0204and 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 bylaw.’” 

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 Uvisa cases and could not find “any federal

court that has exercised jurisdiction over

questions of a Petitioner’s eligibility for a UVisa.” 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. DistrictDirector,

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 judiciallymanageable 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 administeringU visaswere

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 temporaryresident

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, bymandating

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

“§1252(a)(2)(B)(ii) strips federal courts of jurisdiction to

review USCIS’s decisions to denya 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.6In

addition, the opinion inPoursina 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).”); OrdonezOrosco 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 byPerez 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.