F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

P E D R O T O M A S P E R E Z P E R E Z , Plaintiff-Appellant,

v

.

C H A D F

. W O L F , Acting Secretary of Homeland Security ; B A R B A R A Q. V E L A R D E , Chief of the Administrative Appeals Office for USCI S; M A R

K K O U M

A N S , Acting Director of USCI S; L A U R A B

. Z U C H O W S K

I , Director of the USCI S Vermont Service Center,

Defendants-Appellees. N o. 18-35123

D.C. No. 2:17-cv-00249- J L R

OPI NI ON

A ppeal from the United States District Court for the W e stern District of W ashing ton J ames L . Robart, District J udg e, Presiding

Arg ued and Submitted April 9, 2019 Seattle, W a shing ton

F iled November 22, 2019

B efore: W illiam A. F letcher, Consuelo M. Callahan, and Morg an Christen, Circuit J udg es.P E R E Z P E R E Z V

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Opinion by J udg e W . F letcher;

Dissent by

J udg e Callahan

SUMMARY *

Im m igration

The p a nel reversed the district c ourt’s d ismissal f or lack of jurisdiction of Pedro Tomas Perez Perez ’s suit challeng ing the denial of his U vi s a p et ition, holding that neither § 701(a)(2) of the Administrative Pr o c e dure A ct (“APA”),

nor 8 U.S.C. § 1252(a)(2)(B )(ii)

– both of which p reclude review of certain discretionary a g ency decisions

– barred review of Perez ’s claims under the APA.

To be elig ible for a U visa, a petitioner must establish that h e or she h as suffered substantial p h y sical or mental abu s e f rom having been a victim of q ualify ing criminal acti v i t y , possesses in f

ormation about that activity

, and has been helpful, is being h elpful, or is likely to be he l p f u l t o an authority investig ating or prosecuting that activi t y

. The United States Citiz enship a nd I mmig ration Service (“USCI S”) denied Perez ’s U visa petition on the g round that he had not shown that he w as a victim of a qualify ing crime. Perez challeng ed that decision in the district court, which concluded that hi s a ction was not reviewable under APA § 701(a)(2).

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P E R E Z P E R E Z V

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T h e p a nel held that Perez ’s claims were not barred b y APA § 7 01(a)(2), which precludes judicial review of actions

“ c o m mitted to ag ency discretion by law,” where there is n o judicially manag eable s t an d a r d by which a court can judg e how the ag ency should ex ercise its discretion. Ex pla ining that the relevant statu t e s establish the requirements f o r a U visa, as well as application procedures and ag ency duties, the panel concluded that the statutory framework a f f o rds meaning ful standards for reviewing claims challeng ing USCI S’s compliance with that framework. Respond ing to the dissent’s arg ument that reg ulations g rant USCI S “sole jurisdiction” over U visa petitions and “sole discretion” to determine the value of evidence, the panel observed that the
statues themselves use n o such lang uag e. The panel also

ex p lained that it does not follow f rom the fact that USCI S has sole jurisdiction to issue U visas that a c o u r t is without jurisdiction to review USCI S’s decision.

F urther, after sua sponte consideration, the panel held that 8 U.S.C. § 1252(a)(2)(B )(ii), w hich bar s j u dicial review o f immig ration decisions or actions “the authority for which is specified under this subchapter [ 8 U

. S

. C. §§ 1151–1381] to be in the d iscretion of th e A ttorney General or the Secretary of Homeland Security ,” does not strip the court of jurisdiction
to review Perez ’s a ction. F irst, the panel ex plained that the U visa statutory provisions at 8 U .S.C. §§ 1101(a)(15) a nd 1184(p) d o not “specify

” that the a

uthority to g rant or deny a U visa p et i t i o n i s in the d iscretion of the Secretary o f Homeland Security

, observing that neither provision uses the word “ discretion” or any sy nony m. The panel also concluded that, even thoug h ag ency reg ulations provide that USCI S will determine, “ in its sole discretion,” the evidentiary value of the evidence, reg u latory d eclarations of discretion, sta n d ing alone, do n o t trig g er § 1252(a)(2)(B )(ii). Second, the panelP E R E Z P E R E Z V

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ex p lained that the relevant statutes esta blish statutory standards that constrain the Secretary ’s U visa determinations such that the determinations are not wholly discretionary

.

Dis s enting

, J udg e Callahan wrote that Cong ress g ranted the USCI S a b s o l u te discretionary authority over U visa decisions, and the Supreme Court prohibits this cou r t fr om reviewing decisions that Cong ress commits to ag ency discretion. J udg e Callahan concluded that the m a j o rity opinion breached the separati o n of powers to arrog ate the
power unto itself to review the d iscretionary d ecisions o f U v isas. F urther, J udg e Callahan wrote that, by misapply ing the applicable statutes, by ig norin g every other circuit that has decided this issue, and by violating the proper role of the courts, the majority opinion has opened “Pa n d o r a ’s box ” to courts reviewing decisions on the approx imately 250,000 U visa petitions currently pending before t h e USCI S. B ecause th i s result is not required b y the applicable statutes and reg ulations, is unprecedented in this circuit, and contrary to the consistent position o f the court’s sister circuits, J udg e Callahan adamantly

dissented.

COUNSEL

Henry Cruz (arg

ued), Rios & Cruz P.S., Seattle, Washing ton, for Plaintiff-Appellant.

F rancesa M. Genova (arg ued), T r ial Attorney ; W illiam C. Peachey

, Director, District Court S e c t ion; Office o f I mmig r a tio n L itig ation, Civil Division, United States Department of J ustice, W ashin gt o n, D .C.; for DefendantsAppellees.P E R E Z P E R E Z V

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OP INION

W

. F L ETCHER, Circuit J udg e:

Pedro T omas Perez Perez broug ht suit in the district court under t h e A d m i n i s t r at i v e P r o c edure Act (“APA”), challeng ing the denial of his U visa p etition by the United States Citiz enship and I mmig ration Service ( “USCI S”). The district c ourt dismissed Perez ’s action for lack of subject
matter jurisdiction. The district court h eld that § 701(a)(2) o f the APA preclud e s judicial review because U visa determinations are “committed to ag ency discretion b y law.” 5 U.S.C. § 701(a)(2). On appeal, Perez arg ues t h at § 701(a)(2) does not apply

, contending that the statutory a nd
reg ulatory framewor

k g overning U visa determinations affords “meaning ful standards” for reviewing his claims. Heckler v. Chaney , 470 U.S. 821, 834 (1985).

W e hold that § 701(a)(2) does not bar j u d i c ial review o f Perez ’ s A PA claims. W e hold, further, after su a sponte conside r ation, that § 1252(a)(2)(B )(ii) of the I lleg al I mmig r a tion Re f

o r m a nd I mmig rant Responsibility Act o f 1996 (“I I RI RA”) does not strip jurisdiction o ver Pe rez ’s action.

W e reverse and remand.

I . B ackg round

I n determining whether judicial review is precluded b y § 701(a)(2), “ we consider ‘ t h e lang uag e of the statute a nd

w h ether the g eneral purposes of the statute would b e endang ered b y judicial review.’” ASS E I nt’l, Inc. v. Kerry
, 803 F .3d 1059, 1068 (9th Cir. 2015) (“ ASSE ”) (quotingP E R E Z P E R E Z V

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Pinnacle Armor, Inc. v. United States
, 648 F .3d 708, 719 (9th Cir. 2011)). W e may al s o consider ag ency reg ulations a nd policy

. Pinnacle , 648 F

. 3d at 719.

A. U Visa Statutory

and Reg ulatory

F ramework

C o ng ress created U nonimmig rant status as part of th e Victims of Trafficking

and Violence Protection Act of 2000 (“VTVPA”). The U visa prog r am is intended to “streng then the a bility of law enforcement ag encies to detect, investig ate, and prosecute [ certain crimes]

. . . ag ainst aliens, while offering protection to victims of such offense s i n k eeping with the humanitarian interests of the United States.” VTVPA, Pub. L

. No. 1 06-3 8 6
, § 1513(a), 114 Stat. 1533(a)(2). I t is also intended to “encourag e law enforcement officials to better serve immi gr a n t crime victims a nd to prosecute crimes committed a g ainst a liens” and “facilitate the reporting of crimes to law enforcement officials by trafficked,

ex p loited, victimiz ed, and a bused a liens who are n o t in lawful immig ration status.” Id

.

To be elig ible f

or a U visa, a petitioner must establish that he or she: (1) “has suffered s u b s t a ntial phy sical or mental abuse as a r e sult of having been a victim of q ualify ing

cr i minal activity ” ; (2) “possesses information” about qualify ing c riminal a c t i v i t y ; and (3) “has been helpful, is being helpful, or is likely to b e h e l pful” to an authority “i n vestig ating or prosecuting ” q ualify ing criminal a ctivity

. 8 U.S.C. § 1 101(a)(15)(U)(i). Helpfulness may also be assessed in connection w ith the “detection” of qu alify ing criminal activity . 8 C.F

. R. § 214.14(a)(5), (c)(2)(i).P E R E Z P E R E Z V

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Qualify ing criminal activity is defined as c riminal activity

involving one or more of the f ollowing or a ny similar activity in v iolation of F eder al, State,

o r l ocal crimina l l a w : ra p e ; t o r t u re ; trafficking ; incest; domestic violence; sex ual assault; abusive sex ual contact; prostitution ;

sex ual ex ploitation ; f

e m ale g enital mutilation; being held h ostag e; peonag e; involunt a ry servitude; slave trade; kidnapping ; abduction;

u n l a w f u l c r i m i n a l r e s t r a i n t ; f a l s e i m p r i s o n m e n t ; b l a c k m a i l ; e x t o r t i o n ; manslaug hter; mur d er; f elonious assault; witness tampering ; obstruction of justice; perjury ; or attempt, conspiracy

, o r solicitation
to c ommit any of the above mentioned crimes.

8 U.S.C. § 1101(a)(15)(U)(iii) (emphasis added). T h e phrase “any similar activity ” “refers to criminal offe n s e s in which the nature and e lements of the o ffenses a re substantially similar t o the statutorily e numerated list of criminal activities.” 8 C.F .R. § 214.14(a)(9). The qualify ing criminal activity must have “violated the laws of the United States or

o c c u r r e d i n t h e U n i t e d S t a t e s

. ” 8 U

. S

. C

. § 1101(a)(15)(U)(i)(I

V).

To appl y for a U visa, a petitioner must file with USCI S

a F orm I -918, Petition for U N onimmig rant Status. See 8 C.F .R. § 21 4

. 1 4 ( “USCI S has sole jurisdiction over all petitions f

or U nonimmig rant status.”). The p etitio n packet must contain the following document:

a certifi cation from a F e deral, State, o r local l a w e n forcement official, prosecutor, judg e, o rP E R E Z P E R E Z V

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other F ederal, State, or local author i ty investig ating [ qualify ing ] criminal activity

. . . . T h i s c ertification shall state that the alien “has been helpful, is b eing helpful, or is l i k ely to be helpful” in the investigation o r prosecution o

f [ qualif yi ng ] criminal activity

. . . . 8 U.S.C. § 1184(p)(1) (emphasis added).

USCI S has created a multi-part form for petitioners to use when o b taining the required certification. USCI S r efers to the fo r m a s “F orm I -918, Supplement B
, ‘U nonimmig rant Status Certification’” ( “ certification form”). 8 C.F .R. § 214.14(c)(2)(i). Parts One and T w o of the form a sk for id e n tify ing information of the p etitioner and the certify ing law enforcement ag ency

. I n Part Three, the certify ing official is asked to identify the qualify ing c r iminal activity of which the petitioner was a victim and to “describe the criminal activity b e i ng investig ated and/or prosecuted and the involve m e n t” of the petitioner. I n Part F o ur, labeled “Helpfulness of the Victim,” the certify ing official is asked to affirm or deny whether the petitioner has been, is being

, o r is likely to be helpful in the i nvestig ation or prosecution o f qualify ing criminal activity

. I f the certify ing official affirms
t he petitioner’s helpfulness, the official is asked to ex plain that a n s w e r in a space provided o n the f orm. The certify

ing official must sig n the certification form under penalty o f perjury

.

I n addition to F orm I -918 and the certification f o rm, the U visa petition packet mus t i n clude “a sig ned statement b y the petitioner describing t h e facts of the victimiz ation.” 8 C.F .R. § 214.14(c)(2)(iii). The petitioner may also submitP E R E Z P E R E Z V

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“additional evidence” to e stablish U visa elig ibility

. 8 C.F .R. § 214.14(c)(2)(ii).

I n acting on a petition, USCI S “shall consider any

cre d i b l e evidence relevant to the petition.” 8 U .S.C. § 1184(p)(4). Ag ency reg ulations add that “USCI S will determine, in its s o l e discretion, the evidentiary value o f previousl y o r c o n c u

r rently submitted evidence,” including the certification form. 8 C.F .R. § 214.14(c)(4). I n practice, USCI S g ives a properly e x ecuted certification form “sig nificant weig ht,” thoug h it “will not consider such certification to be conclusory evidence that the petitioner has
met the elig ibility r equirements.” 72 F e d

. Reg

. 53014, 53024 (Sept. 17, 2007).

“I f USCI S determines that the p etitioner has met the requirements for U -1 nonimmig rant status, U SCI S will
approve F o rm I -918.” 8 C.F .R. § 214.14(c)(5)(i). “F or a petitioner who is w ithin the United States
, USCI S a lso will concurrently g rant U-1 nonimmig rant status, subject to the annual [ 10,000 U visa cap] .” I d. “All elig ible petitioners who, d ue solely to the cap, are not g ranted U-1 nonimmig rant status must b e placed on a w aiting list.” 8 C.F .R. § 214.14(d)(2). Petit i o ners on the waiting list are g ranted deferred action or parole while waiting for additional U visas
to be come available. I

d

. O nce petitioners r eceive a U v isa, they may apply for permanent resident status after three y ears of continu e d phy sical presence in the United States a s a U nonimmig rant, provided they have not “unreasonably refused to provide assistance in a criminal investiga t i o n o r prosecution.” 8 U.S.C § 1255(m)(1).

Re gu l ations provide that if U SCI S denies a petitioner’s F orm I -918, Petition for U N onimmig rant Stat u s, “USCI SP E R E Z P E R E Z V

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w i l l p rovide written notification to the petitioner of th e

reasons f or t h e d e n i al.” 8 C.F .R. § 214.14(c)(5)(ii). “The petitioner may appe a l a denial of F orm I -918 to the Administrative Appeals Office (AAO)[ .] ” Id

.

B . F actual and Procedural B ackg round

Perez is a c itiz en of Me x i c o w h o r esides in W ashing ton State. On J anuary

10, 2012, Perez reported to police that he

was b eing harassed. H e told the investig ating officer that the harassers were two individuals to w hom he had lent a total o f
roug h ly $50,000 and from whom he was re q u e sting
repay ment. 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 b a ck” and told Perez “he would make him disappear.” The officer wrote in his report that these threats “were not defined enou gh for me to file harassment charg es.” Perez later applie d for and received temporary a

nti-harassment o rders ag ain s t the individuals. The orders were dismissed after the individuals could not be served.

On J uly 1 0
, 2013, Perez petitioned f o r U nonimmig rant status u n der 8 U.S.C. § 1101(a)(15)(U). Perez ’ s petition packag e contained h i s I

- 9 18 F orm and completed c ertification form, a s well as supplemental materials including the above described police report a n d Perez ’s anti-haras s m e nt order petition. The c ertification form, which was completed by the Commander o f the I nvestig ations Division of the Renton Police Department, indicates that Perez was the v i c t i m o f “harassment” u nder W ash. Rev. Code § 9A.46.020 b etween A u gust 2009 and October 2011. I n the box that asks t h e certify ing official to “describe the criminal activity being investig ated and/or prosecuted and the involvement of theP E R E Z P E R E Z V

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individual,” the Comm a n der wrote: “This w as an i n f o r mational case and no charg es were filed. Descripti o n

was harassment 9A.46.020 a s noted by the officer.” I n t h e box labeled “ Helpfulness of the victim,” the Commander
wrote:

Perez did make an informational police report

a n d r equested an anti h arassment order. He received a temporary order on 1 /17/2012. On 1/31/2012 the o r der was dismissed, defendant

wa s n o t able to be served, petitioner may return to refile w hen def. is l o cated. The description of t h e informational report was noted as 9A.46.020 Harassment.

USCI S denied Perez ’s U visa pe t i t i o n. The denial letter states, “The evidence, as p resented, does not establish t h at
y ou have been a victim of qualify ing criminal a ctivity .” The letter ex plains that Perez “did not provide sufficient evidence
t o prove that [ the] crime o f harassment is simi l a r t o a [ qualify ing crime] .” Perez appealed to the AAO. On appeal, Perez arg ued that the harassment to which he was subject “involved and/or was similar to felonious assault [ which is a qualify ing crime] . . . because it involved a threat to kill him that placed him in apprehension of harm.” The AAO denied Perez ’ s appeal. I t concluded, “There is no evidence in the

r e c ord that the certify

ing ag e ncy detected or investig ated a n attempted or actual felonious assault or any other qualify

ing crime. The Petitioner has not shown that any cr i m e o t h e r than h arassment was detected or investig at ed by the law enforcement ag ency .”

On O ctober 28, 2015, Perez filed a motion to reconsider with the A AO. He a

rg ued that the harassment in his c ase wasP E R E Z P E R E Z V

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not jus t simple harassment, b ut felony harassment under W a shing ton law because it involved a t hreat “to kill [ him] ” that “by words o r cond u c t ” p laced him “in reasonable fear
t h a t the threat will be carried out.” W A S H

. R E V

. C O D E §§ 9A.46.020(1)(a)–(b), (2)(b)(ii) (2011). He further a rg u ed
t h a t the W ashing ton police had “at least detected felony harassment,” even if they did not further investig a t e that crime. F inally

, Perez arg u ed that felony hara s s ment “involves or is substantially similar to” the qualify ing crime of felony assault, and that the ag ency therefore erred when it concluded that W ashin gt on police had not detected a qualify ing crime in Perez ’s case. The A AO d e n i e d the motio n t o reconsider. I t concluded that “while felony harassment and/or felonious assault may have a lso o ccurred, there is no indication that the certify ing a gency actually detected or investig a ted t h o s e offenses.” F urther, it concluded that even if felony harassment had been detected, such harassment is not “ substantiall y similar” to felony assault under W ashing ton law.

O n Fe bruary 17, 2017, Perez broug ht suit in the fede ra l district court challeng ing the de n i a l o f his U visa petition. His c o m plaint contains several claims under the APA, 5 U.S.C. § 706(2). Specifically

, Perez claims that the ag ency acted contrary to statute by “fail[ ing ] to consider a ll credible evidence,” erred in concluding that “felony harassment does
not constitute a qualify ing cri minal activity ,” and made a finding unsupported by substantial evi d e n c e when it concluded “that felony harassment w as not detect e d b y law enforcement.”

After the parties filed cross

- m otions for summary judg ment, the district court dismissed Perez ’s action for lack of subject matter jurisdiction. T he district c ourt concludedP E R E Z P E R E Z V

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that Perez ’s action w a s not reviewable under the APA because of the APA’s ex ception for “ ag ency action [ that] is committed to ag ency discretion by law.” 5 U .S.C. § 7 0 1 ( a ) (2). T he district c o u rt determined that § 701(a)(2) applies because “[ i] n the U -visa contex t, there is no judicially
manag eable standard by which a court can judg e how USCI S should ex ercise its discretion.”

Perez timely appealed. W e have juris diction under 28 U.S.C. § 1291. “W e review de n ovo 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).

I I . Discussion

“The default rule is that a ge ncy a ctions are reviewable under federal question jurisdiction, purs u a n t to 28 U .S.C. § 1331

. . . even if no statute specifically authoriz es judicial review.” ANA Int’l, Inc. v. W ay , 393 F .3d 886, 890 (9th Cir. 2 0 0 4 ) (“ ANA ”). The APA reinforces this presumption of judicial reviewability by “ confer[ rin g] a g eneral cause o f

ac t i o n u pon persons ‘ adversely affected or ag g rieved b y ag ency action within the meani n g o f a relevant statute[ .] ’” B lock v

. Cmty. Nutrition Inst.
, 467 U .S. 340, 345 (198 4 ) (quoting 5 U.S.C. § 702).

The presumption in f

avor of judicial review of f i nal
age n cy a ction “ is overcome o nly in two narrow circumstances.” Pinnacle

, 6 48 F .3d at 719. The f i r s t is “when Cong ress ex pressly bars review by statute.” Id

. (citing 5 U.S.C. § 701(a)(1); Bd. of Governors of Fed. Reserve S ys. v. MCorp Fin., Inc. , 502 U.S. 32, 44 (1991)). The second is in the “‘rare instances w here statutes are drawn in such broad
terms that i n a g iven c ase there is no law to apply

, ’ therebyP E R E Z P E R E Z V

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leaving the court with ‘no meaning ful standard ag ainst which
to judg e the ag ency ’s ex ercise of discretion.’” Id

. ( q u o ting W ebster v. Doe
, 486 U .S. 592, 599 (1988); Chaney

, 470 U.S.

a t 830). The APA reflects these two ex ceptions. R e v i e w under the A PA is unavailable when “statutes p reclude judicial

r eview,” 5 U.S.C. § 701(a)(1), and when the “ag ency a c t i o n is committed to ag ency discretion by law,” id. at § 701(a)(2).

The district court di s missed Perez ’s action a s unreviewab l e under § 701(a)(2) after concluding that “there is no judicially manag eable st a ndard by which a court can judge h o w U SCI S should ex ercise its discretion.” The first issue on appeal is whether the U visa statutory and reg ulatory framewor k f u rnishes meaning ful standards by which to review Perez ’s claims under the APA. The second issue, which we raise sua sponte, is whether I I RI RA’s jurisdictionstripping p rovision, 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 r eview o f
ag ency a ct i o ns “ committed to ag ency discretion by law.” 5 U.S.C. § 701(a)(2). W e “read the ex ception in § 701(a)(2) quite narrowly .” W

eyerhaeuser Co

. v

. U.S. Fish & W ildlife Serv.
, 139 S. Ct. 361, 370 (2018 )

. We must d e cide whether § 701(a)(2) p recludes judicial review of the denial of Perez ’s U visa petition by

USCI S.

I n Spencer Enterprises, I nc. v. United Sta t e s , 345 F .3d 683 (9th Cir. 2003) (“ Spencer ”), we decided the c l o s ely related issue of whether § 701(a)(2) precludes judicial r eview of the d enial of an EB -5 immig rant in v e stor visa petition b y the I mm i g ration and Naturaliz ation Service (“I NS”). W eP E R E Z P E R E Z V

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beg an our a

naly sis with the principle that § 701(a)(2) applies only in the “rare instances” where “the statute is drawn so that a court w ould have no meaning ful standard ag ainst which
to judg e the ag ency ’s ex ercise o f discretion.” Sp encer , 345 F .3d at 688 ( quoting Chaney

, 470 U.S. at 8 30). W e then turned to the “statutory framewo r k” g overning immig rant investor visas. W e held that there are “ meaning ful standards by which to review I

NS’s action” because the ag e ncy ’s visa determination “is g uided by the statutory requirements of the EB 5 p rog ram set out in § 1153(b)(5).” Id

. I n the c ase n ow before us, we e ng ag e in the same analy sis and reach the same result as in Spencer

. 1. The “No Meaning ful Standard” Standard

I n several immig ration cases, we have held that there a re meaning ful standards of review and h ave declined to a pply § 701(a)(2). See ASSE
, 803 F .3d a t 1068 (holding that ag ency reg ulations provide a meaning ful standard by which to r eview the State Department’s sanctioning of a t h i rd-party prog ram

s ponsor participating in the Ex c hang e Visitor Prog r am ) ; Gonzalez-Caraveo v. Sessions
, 882 F .3d 88 5
, 893 ( 9 th Cir. 2018) (holding that the fac t o r s enumerated in a precedential B oard of I mmig ration Appeals ( “B I A”) decision provide a “sufficiently meaning ful s t a n dard” b y which to evaluate the denial of a request f

o r a d ministrative closure); Taslimi v

. Holder

, 590 F .3d 981, 9 86 ( 9th Cir. 2010) (holding that there is a meaning ful standard by w hich to review whether a p e t itioner h as filed for asy lum within a “reasonable peri o d ” after chang e d ci rcumstances because ag ency reg ulations “provide a non-ex haustive l i s t of potential chang ed circumstances” and require the I J to “consider an applicant’s delay ed awareness of chang ed circumstances”).P E R E Z P E R E Z V

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Only where there is truly “ no law to apply ” h a v e we found a n absence of meaning ful standards o f review. Spencer
, 345 F .3d at 6 88 (quoting Chaney

, 470 U.S. at 830). I n E kimian v

. INS.
, 3 03 F .3d 1153 (9th Cir. 2002), f o r

ex a mple, we held that w e could n ot r eview the B I A’s r efusal
to reopen deportation proceeding s sua spont e because, althoug h the B I A a l l owed for reopening in “ex ceptional situat ions,” n o statute, reg ulation, or case law defined “ex c eptional situations.” Id

. a t 1156–59. W e later c larified that we may review B I A decisions d eny ing sua sponte reopening “ for the limited purpose of reviewing the r easoning behind the decisions f

or leg al or constitutional error” because in that instance t h e r e is “law to a pply .” Bonilla v

. Lynch

, 8 4 0 F. 3 d 575, 588 (9th Cir. 2016). Similarly

, in Idrees v. Barr
, 923 F .3d 5 39 ( 9th Cir. 2019), we held t hat the B I A ’s decision not to certify I drees’s ineffecti v e a ssistance o f counsel claim was u n r e v i e wable, absent a c laim o f constitutional or leg al error, because t h e B I A h ad not “elaborated on which circumstances a re con s i d e r ed to be

ex c e ptional and thus sufficient to merit certif i c a t i o n.” Id

. at 542–43.

Our n on

- i m m i g

r a t i o n c ases addressing § 701(a)(2) eng ag e in the same analy sis. I n Hyatt v. Office Management & Budget

, 908 F .3d 1165 (9th Cir. 201 8 )

, f o r ex ample, we considered the Paperwork Reduction Act ( “PRA”), which directs the O ffice of Manag e ment and B udg et (“OMB”) to “take two distinct actions when it receives a p e t i tion to determine whether an individual is le ga l ly oblig ated to respond t o a co l l e ction o f information.” Id. at 1 174. The
ag ency must (1) respond within 60 day s w ith a determination of whether t h e i ndividual is oblig ated to provide the information; and ( 2) take “ appropriate remedial action, if
necessary .” 44 U.S.C. § 3517(b). We held that the f i rstP E R E Z P E R E Z V

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action is reviewable because “the standards for making such

a d e terminat i o n are specified by the PRA,” b ut that the second action is “ committed to the ag ency ’s discretion” because “[ t] h ere is no e x pre s s s tandard in the PRA to g u ide the OMB in determining whet h e r a ny particular remedy is either ‘appropriate’ or ‘necessary .’” Hyatt
, 908 F .3d at 1174.

“[ T] he mere fact that a statute contains discretionary lang uag e does not make ag ency a ction unreviewable.” Beno

v. S halala

, 3 0 F

. 3d 1057, 1066 ( 9th Cir. 1994). As long a s there is a “meaning ful standard ag a inst which t o judg e the
ag ency ’s e x ercise o f d iscretion,” judicial review is available. Chaney

, 470 U.S. at 830. I ndeed, inherently discretionary standards ma y themselves be sufficiently meaning ful to support judicial review for a buse of discretion. S

e e A S SE
, 803 F .3d at 1 071 (“Section 701(a)(2 )

. . . h as never been thoug ht to put all ex e rcises of discretio n bey o n d judicial review. I ndeed, ‘ the A PA itself commits fina l ag ency action[ s] to o ur r eview for ‘abuse of discretion.’”) ( quoting Pinnacle

, 648 F

. 3d a t 720). I n fact, cour t s r o utinely treat discretion-laden standards as p rovidi ng “law to apply

. ” See Citizens to Preserve Overton Park, I n c

. v. Volpe

, 401 U.S. 402, 411 (1971), abrogated on other g rounds by Califano v. Sanders

, 430 U.S. 99 (1977) (holdi n g that § 701(a)(2) does
not preclude judicial review of ag ency determination that a “feasible and prudent alternative” w as lackin g ); Pac. Nw. G enerating Co-op. v

. Bonneville Power Admin.

, 5 96 F. 3 d 10 6 5
, 1 0 77 (9th Cir. 2 010) ( holding that the statutory requirement to operate in a manner “consistent w ith sound business princip les” p rovided a meaning ful standard o f review); City of Los Angeles v. U.S. D ep’t of C o mm e r c e , 307 F .3d 859, 869 n.6 (9th Cir. 2002) (holding that a statute requiring the Secretary t o use statistical sampling “ if he considers it feasible” provi d e d a meaning ful standard b yP E R E Z P E R E Z V

. W O L

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which to review the Secretary ’s d ecision not to use sampling ) ; N

e w ma n v. Apfel

, 223 F

. 3d 937, 943 (9th Cir. 2000) (holding that § 701(a)(2) does n ot preclude review o f the Commissioner’s interpretation and application o f the statutory terms “reliable” a n d “currently available”); Beno
, 30 F .3d at 1067 ( 9th Cir. 1994) (holding that an ag ency determination th a t a waiver is “likely to assist in promoting the objectives” o f a benefits prog ram is reviewable because the prog ram’s objectives a r e “set forth with some specificity ” in the sta t u t e ); Cty. o

f Esmeralda v. U

.S. Dep’t of Energy
, 925 F .2d 1216, 1217–19 ( 9th C i r. 1991) (holding that althoug h the N uclear W aste Policy Act specifie d n o f actors for deciding whether to desig nate a c ounty near the Yucca Mountain nuclear waste repository an “affected unit of local
g overnment,” a judicially manag eable standard “readily presents itself” because a c ourt ca n consider whether the Secretary “meaning f

ully c onsider[ ed] ” the impact o n the county ); Keating v. FAA
, 6 10 F

. 2d 611, 6 1 2 (9th Cir. 1 979) (holding that an ag ency ’s charg e to g rant ex emptions “in the public interest” provided a standard t h a t was sufficiently meaning ful for judicial review).

These cases demonstra te how r arely there is no “meaning ful standard ag ainst which to judg e the ag ency ’s

ex e r cise of discretion.” Chaney

, 470 U .S. at 830. T hey also demonstrate that ther e a re meaning f ul standards to apply in this c ase. As in S

p e n c er , we need look no further than the
g overning statutes.

2. Meaning ful Standards in the U Visa Statutory

F ramework

As noted above, U vis a d e t erminations a re g overned b y 8 U.S.C. § 110 1 ( a ) ( 15)(U) and § 1184(p). SectionP E R E Z P E R E Z V

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1101(a)(15)(U) provides that a petiti o n er is elig ible for a U visa if the petitioner (1) has suffered “substantial phy sical

or mental abuse” a s a r esult of having been a victim o f qualify ing criminal act ivity ; (2) “ possesses information” about q ualify ing criminal activity ; and (3) “has been h elpful, is being helpful, or is l i kely to be helpful” to an authority “investig ating or prosecuting ” qualify ing crimi n al a ctivity

. 8 U.S.C. § 1101(a)(15)(U)(i). Section 1184(p) est a b lishes application p rocedures for U visa p e titioners, including the requirement that they o btain “a certification from a F e d e ral, State, or local law enforcement official, p rosecutor, judg e, o r other F ederal, State, or local authority investig ating criminal activity

. ” 8 U.S.C. § 1184(p)(1). I t also establishes a g e n cy duties, including the duty to “consider any credible evidence relevan t to the petition.” 8 U.S.C. § 1184(p)(3)–(4). This statutory framework afford s “ meaning ful standards” for reviewing claims challeng ing USCI S’s compliance with that framework.

Our d issenting colleag ue disag rees. The dissen t p o ints
out that r eg ulations g rant USCI S “sole j u risdiction” over U visa petitions and “sole d iscretion” to determine the value of p etitioner evidenc e

. See 8 C.F .R. §§ 214.14(c)(1), 214.14(c)(4). B ut the statutes, which are distinct from the
reg ulations, use no such lang uag e. S ee Spen c e r

, 345 F .3d
at 688 ( “[ W ] e need not look to reg ulations or ag ency practice because the statutory fra mework provides meaning f ul standards by wh i c h t o review I NS’s action.”). F urther, a nd

more important, it does not follow from the fact that USCI S is the ag ency with “ sole j u ri s d i c t ion” to issue U v isas that a court is w ithout jurisdiction to review USCI S’s decision. A s will be ex plained in m o re detail below, an ag ency ’s sole discretionary authority is not in c o nsistent with judicial r eview of the ag ency ’s ex ercise of that discretion.P E R E Z P E R E Z V

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T h e d issent relies o n lang u ag e in 8 U .S.C

. § 1 1 0 1(a)(15)(U)(i), which provides that the “Secretary o f Homeland Security determines ” w hether an alien m e e t s the substantive requirements of the U visa p rog ram. (Emphasis added.) However, unreviewa b l e discretion does not necessarily follow from an ag ency ’s “determination.” Some determinations are g o verned by strict c riteria. Others are not. Even if a determination is d iscretionary

, it may still b e rooted in a set of r equirements or standards, as the statutes her e s et forth. See, e.g. , Spencer
, 345 F .3d a t 688 (“Althoug h 8 U.S.C. § 1154(b) instructs that the Attorney General should ‘determine’ whether th e f a c ts alleg e d by the visa p etitioner

are true and whether the p etitioner is e lig ible for a visa under § 1153(b)(5), this determination is g u ided by the statuto ry requirements of the EB 5 prog r am set out in § 1153(b)(5).”)

F inally

, the dissent arg ues that lan gu a g e in 8 U .S.C. § 1184(p)(2)(A), which states that no more than 10,000 a liens “may be issued” U visas in any fiscal y e a r , i s e vidence o f unreviewable discretion. This provisi o n i s a limit on the number of U visas that can be issued in a g iven y ear. It say s nothing a bout the criteria for d e t e r mining elig ibility for a visa.

I n short, the statutory framework provides meaning f ul standards under which t o r eview the ex ercise of USCI S’s authority to issue U visas. The c o nclusion tha t t here a re meaning ful standards, h owever, d o e s not necessarily end an inquiry in a p articular case. “ I n deciding whether ag ency action is committed to ag enc y d iscretion by law, it is not sig nificant that there may be law, in the abstract, that could possibly be a

pplied.” A riz. Power Auth. v. Morton
, 549 F .2d 1 2 3 1
, 1239–40 (9th Cir. 1977) (citing Strickland v

. Morton
, 519 F .2d 467, 470 & n.4 (9th Cir. 1975)). “I nstead, we mustP E R E Z P E R E Z V

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determine w hether in this particular c ase there is any specific law to apply .” Id

. I n other words, “ it is only in the contex t o f [ 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 e x istence o f judi ci a l review is only the
start: the standard f

o r review must a lso be determined” a nd “[ f] or t h a t w e m ust look to § 706 of the [ APA] .” Volpe

, 401 U.S. at 413. Under the A PA, our review is limited to assessing wh e t h er a U visa determination “was arbitrary

, ca pricious, an a

buse of discretion, or otherwise not in accordance with law”; in violation of a statutory , procedural,

or constitutional requirement; o r unsupported by “substantial evidence.” 5 U.S.C. § 706(2)(A)–(E).

3. Perez ’s APA claims

Perez makes three principal claims u n der the APA. F irst, h e c laims that USCI S acted contrary to law because it “fail[ ed] to c onsider all credible evidence.” I n p articular, Perez arg ues that USCI S failed to consider his antiharassment o rder petition and r eleva n t p a rts of the police report, which he claims show “that the suspect made threats
ag ainst [his] life.” The st at utory mandate that USCI S “consider any credible evidence r e l e v ant to the petition,” 8 U.S.C. § 1184(p)(4), provides a meaning ful standard b y which to review this c laim. T he standard of review to be applied to this question on remand is whether U S C I S acted contrary to § 1184(p)(4) or in a manner that was “arbitra ry , capricious, an abuse of discretion, or oth erwise not in accordance with law.” 5 U.S.C. § 706(2)(A), (C).

Second, Perez claims t h at USCI S’s “determination that f e lony harassment d oes [ not] constitute qualify ing c rimi n alP E R E Z P E R E Z V

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activity is contrary to the plain lang u a g e of the statute.” That lang uag e provides that a q ualify ing crime must “involv[ e] ” an enumerated crimin a l activity or “any similar activity

. ” 8 U.S.C. §1101(a)(15)( U ) ( i i i). Perez arg ues that USCI S made a mistake of law because felony harassment “involves” the enumerated crime o f felonious assault and because USCI S “misinterpreted [ W ashing ton] state law on felony harassment and felony assault” when it concluded that felony harassment is not “substantially simila r ” to f elonious assault. The statutory d efinition of qualify ing criminal activity at 8 U .S.C. § 1101(a)(15)(U)(iii), the accompany ing reg ulation at 8 C.F .R. § 214.14(a)(9), and Wa s h ing ton state law provide meaning ful standards for reviewing this claim of leg al error.

The standard of review on this is not entir ely clear. The
g eneral rule under the APA is that a “reviewing cou r t s h a ll decide all relevant q u estions of law, interpret constitutional and statutory provisions, and determine t h e meaning o r applicability of the terms of an ag ency a c t i o n .” 5 U .S.C. § 706. B ut § 706 “does not specify the standard of review a court should use in ‘ determin[ ing ] the meaning ’ of an

am b i gu o us rule.” Kisor v. W ilkie

, 139 S.Ct. 2400, 2419 (2019) (plurality opinion) (alteration in orig inal); see also Chrysler Corp. v. U.S. Envtl. Prot. Agency
, 631 F .2d 865, 884 (D.C. Cir. 1980) (“Althoug h this court has the duty u nder the [ APA] to ‘decide all relevant questions of law,’ we r ecog niz e that the special ex p ertise of [ the ag ency ] in interpr e t i ng the leg islation which it is called upon to administer r equires that

we defer to the judg ment of the Ag ency where that judg ment is reasonable and is consistent with the lang uag e and purpose of th e leg islation.”) (citation omitted). W e thus leave it for the d i s t r i ct court to determine, in the first instance, the standard of review to app ly on remand, including whether Chevron or A uer d eference is appropriate. Se e C hevron,P E R E Z P E R E Z V

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U.S.A., Inc. v. Nat. Res. Def. Counci l

, I n c. , 467 U.S. 837, 842–44 (1984); Auer v. Robbins

, 519 U.S. 452, 461 ( 1 997); Kisor
, 139 S. Ct. at 2422–23 (upholding A uer de f er ence); Campos-Hernandez v. Se s s i o n s , 889 F .3d 564, 568–69 (9th Cir. 2018) (discussing both Chevron a nd Auer deference).

T h i rd

, Perez claims that USCI S’s factual f inding tha t “felony h arassment was not detected b y law e n f orcement”

was e r r o n e ous. T he g overnment arg ues that we cannot review its factual finding s because its reg ulations provide that “USCI S will determine, in its sole discretion

, the evidentiary value o f p reviously or concurrently submitted evidence, including [ the certification form]

. ” 8 C .F .R. § 214.14(c)(4) (emphasis added). W e rejected a similar argument in A S SE

. W e ex plained that

wh e r e [ the ag ency ] has reserved to itself

. . . certain decisions a s within its ‘discretion,’

. . . or even it s ‘ s o l e discretion,’

. . . we will take into account the [ ag e n cy ’s] reservation a nd

ex p ertise and a ccord it the proper de ference. But that does n ot deprive u s of the right to review its actions f

or an abuse of its discretion o r to deter m i n e 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 q u estion. I n reviewing a decision of the USCI S, the court should g ive d ue defere n c e t o the ag ency ’s ex p ertise. B ut to the ex tent the petitioner challeng es USCI S ’ s decision under §706(2)(A), a court c an review it, as appropriate, under the deferential standards o f “abuse of discretion” or “substantial evidence.”P E R E Z P E R E Z V

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S e e ASSE
, 803 F .3d at 1072 ( “‘[ A] s a practical matter, th e arbitrary and capricious standard incorporates the substantial evidence test,’ and we u s e t h a t test for review of ag ency factfinding in informa l p r oceeding s 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 e vidence as a reasonable mind mig ht accept a s adequate to supp o rt a c onclusion.” Id

. (quoting Bonnichsen

v. United S

tates , 367 F .3d 864, 880 n.19 (9th Cir. 2004)). Review for substantial e vidence is g enerally con f i n ed to a

re v i ew of the administrative record, which in this case includes Perez ’s U v i s a petition packet and the ag e ncy ’s decisions deny ing Per ez ’s petition. See Volpe

, 4 01 U.S.
at 4 2 0; 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 I I RI RA

W h en Cong ress enacted I I RI RA in 1996, it replaced the judicial review scheme o f the I mmig rati o n a n d Nationality Act with a more restrictive scheme, c odified at 8 U .S.C. § 1252. S

ee R e n o v

. American-Arab Anti-Discrimination Comm
., 5 2 5 U

. S. 4 71, 475 (1999). Section 1252(a)(2)(B ) provides:

(B) Denials of discretionary relief

Notwithstanding any other provision of l aw (statutory or nonstatutory )

. . . a n d reg ardless of whether the judg ment, decision, or action is made in r emoval procee d i n gs, no court shall have jurisdiction to review—P E R E Z P E R E Z V

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(i) a ny judg ment reg arding the g ranting o f relief under section 1182(h ) [ waiver o f inadmissibi l ity based o n c ertain criminal

o f f e n s e s ]
, 1 1 8 2 ( i ) [ w a i v e r o f i n a dmissability b as e d o n f r au d o r misrepresentatio n ], 1 2 2 9 b [c a n cellation o f removal]

, 1229c [ per

m i s s i o n f or voluntary departure]

, o r 1255 [ adjustment of status] of this title, or

(ii) an y other decision o r action of the Attorney General or the Secretary o f Ho m e land 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 Securit y , other than the g ranting of relief under section 1158(a) of this title [ r elating to asy lum]

.

8 U.S.C. § 1252(a)(2)(B ) (alterations a n d emphases added). W e must d ecide w hether clause (ii) strips us of jurisdiction to review Perez ’s action. That i s , w e must decide whether the authority to deny a U visa is specified to be in the discretion of the Attorney General o r the Secretary of Homeland Security , in the sense required to trig g er § 1252(a)(2)(B )(ii).

W e interpreted § 1252( a)(2)(B )(ii) in S pencer

. W e concluded that § 1252(a)(2)(B )(ii) applies only if two condition s are met. F irst, “the lang uag e of the statute in question must provide the discretionary authority .” 345 F .3d
at 6 8 9

. Second, the statute must provide “pure discretion, rather than discretion g uided b y leg a l standards.” Id

. a t 690. I n other words, “if the statutory provision g ranting theP E R E Z P E R E Z V

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F 26

Attorney General pow e r to make a g iven decision also sets out specific standards g overning that decision, the decision is
not ‘in the discr e t i o n of the Attorney General.’” ANA
, 393 F .3d a t 892. W e held in Spencer that § 1252(a)(2)(B )(ii) does not preclude judicial r e v iew of EB 5 immig rant investor visa determinations because 8 U.S.C. § 1153(b)(5), which
g rants the Attorn e y General authority to “determine” a petiti o n er’s e lig ibility for such a visa, e stablishes standards that the Attorney General mu s t f ollowing when making that determination. 345 F .3d at 691–92.

The Supreme Court’s decision in K u c a na v. H

older

, 5 5 8 U.S. 233 (2010), reinforces our interpretation of § 1252(a)(2)(B )(ii) in S

p e n c e r

. The issue in Kucana was whether § 1252(a)(2)(B )(ii) applies to “determinations declared discretionary by t h e A ttorney General himself throug h reg ulation.” Id

. at 237. T h e Court held that § 1252(a)(2)(B )(ii) applies “only when Cong ress itself set out the Attorney General’s discretionary authority in the statute.” Id

. at 247. The Court did not d irectly a d d ress the r elated question of what kind of statutor y l ang uag e trig g ers § 1252(a)(2)(B )(ii). B ut the Court made several observations that support Spencer ’s answer t o that question. F irst, the Court ex p lained that § 1252(a)(2)(B )(ii) “speaks of authority ‘specified’—not m erely assumed o r contemplated—to be in the Attorney

General’s discretion,” and that “‘[ s] pecified’ is
not sy n o ny mous with ‘implied’ or ‘anticipated.’” Id

. at 243 n.10. Second, the Court provided three ex amples of statutory p r o v i s i o n s t o w h i c h § 1 2 5 2 ( a ) ( 2 ) ( B ) ( i i ) a p p l i e s : “§ 1157(c)(1) (discretion to admit r efug ees ‘determined to be of special humanitarian concern to the United S tates’); § 1181(b) (discretion to waive r equirement of documentation for readmission); § 1182(a)(3)(D)(iii) (discretion to waive, in certain cases, inadmissibility o f a l i ens who have affiliatedP E R E Z P E R E Z V

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F 27

with a totalitarian party

).” Id

. at 248. All three provisions satisfy both S

pencer conditions for unreviewable discretion. Each contains lang uag e c o mmitting an action or decision to the “ discretion” or “satisfaction” of the Attorney General, a nd none provides the Attorney General with statutory standards that c onstrain that action or decision. See, e.g. , 8 U

. S

. C. § 1157(c)(1) (“[ T] h e Attorney General may , in the A t t orney General’s d iscretion and pursuant to such re gu l ations as the Attorney G e n e ral may p r escribe, admit any refug ee who is

n o t firmly resettled in any foreig n c ountry , is determin e d t o be of special humanitarian concern to the United States, a nd is admissible[ .] ” ). T h ird, the Court e mphasiz ed that the “presumption f

avoring judicial r eview of administrative

a c t i o n ” s h o u l d g u i d e c o u r t s ’ i n t e r p r e t a t i o n o f § 1252(a)(2)(B )(ii). Kucana
, 558 U .S. at 251. I t takes “ clear and c onvincing evidence” of a contrary cong ressiona l intent to dislodg e this presumption. Id . at 252.

Apply ing Spencer to the case before us, we conclude for
t w o reasons that § 1252(a)(2)(B )(ii) d oes not preclude judicial review. F irst, the U visa statutory p r o visions at 8 U .S.C. §§ 1101(a)(15)(U) and 1184(p) d o not “specify ” that the authority to g rant or deny a U visa p etition is in the discretion

o f the Secretary of Homeland Security

. I n fact, neith e r § 1101(a)(15)(U) nor § 1184(p) uses the word “discretion” o r any sy nony m. Ag ency regulations provide that “USCI S will determine, in its s o l e discretion, the evidentiary value o f previously or concurrently submitted evidence.” 8 C .F .R. § 214.14(c)( 4 )

. B ut reg ulatory d eclarations of discretion, standing a lone, do not trig g er § 1252(a)(2)(B )(ii). K u c a na , 558 U.S. at 237 (“W e hold that the key words ‘s p e c i f ied under this subchapter’ refer to statutory , but not to reg ulatory

, specifications.”). S e c o n d, both § 1101(a)(15)(U) a nd § 1184(p) establish statutory standards that constrain theP E R E Z P E R E Z V

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Secretary ’ s U visa determinations. As d etailed a bove, these
statutes prescribe elig ibility criteria, application procedures, and ag ency dutie s , all of w hich g uide the Secretary ’s determination whether to g rant or deny U visa peti t i o n s. U visa determinations are thus not “wholly discretionary ” a s required by Spencer
, and § 1 2 52(a)(2)(B )(ii) does n ot bar review of Perez ’s action.

The dissent calls a ttention to our recent decision in Poursina v. USCIS
, 936 F .3d 868 (9th Cir. 2019), where we he ld that § 1252(a)(2)(B ) (ii) precludes review of USCI S decisions to deny a national-interest waiver. Contrary to the contention of the d i ssent, Poursina supports our decision in this case. F irst, Poursina underscores that it is the g overning
statutes that should g u ide our analy sis, ra t h er than USCI S
reg ulations that p urport to g r ant the a g ency “sole discretion”
to the ag ency

. See id. at 871 (“[ I ] t is n ot e noug h that a decision is d iscretionary

. . . ; instead, Cong ress must state that the g overnment has such discretion.”) ( E mphasis in orig inal.) Second, the statute in this case differs from that in Poursina

. There, the statute provided t hat “the Attorney General may , when the Attorney G eneral deems it to b e in the national interest, waive the requir em e nt[ ]

. . . that an alien’s services in the sciences, a r t s , professions, or business be
soug h t by an employ er in the United S t a t e s

. ” 8 U .S.C. § 1 1 5 3 (b ) ( 2 )(B ) (i). W e held that the “invocation of the

‘ national interest’ is a core ex a mple of a consideration th at lacks a judicially manag eable standard of review,” as it calls for “broader economic and national-security c onsiderations.” Poursina
, 936 F

. 3 d at 871, 8 74. We further noted that USCI S’s interpretation of t h e s tatute, which established a f r a m e w o r k a n a l y z i n g “ s u b s t a n t i a l m e r i t , ” “ n a t i o n al importance,” and “benefit[ s] to the United States,” id. at 874 (quoting I n re Dhanasar

, 26 I

. & N

. Dec. 884, 889 (USCI SP E R E Z P E R E Z V

. W O L

F 29

AAO 2016)), imposed “no such thing ” as “objective criteria”

on USCI S’s discretion. Id. B y comparison, the statute in this

case ma ndates specific elig ibility requirements, a pplication
p r o c e d u r e s , a n d a g e n c y d u t i e s

. S e e 8 U

. S

. C

. §§ 1101(a)(15)(U)(i), 1101(a)(15)(U)(iii), 1184(p)(1)–(4).

The dissent also cit e s t w o u npublished decisions to sug g est that we have already determined that we l a ck jurisdiction to r eview U visa denials. Not only are these cases not b inding

. They a

re also inapposite. I n the f i r s t , E u n Kyeong Seo v. Holder

, 3 58 F

. App’x 884 (9th Cir. 2 009), we held that we “lack[ ed] jurisdict ion over [ USCI S’s] d e t e rminations reg arding U Visas.” However, for this proposition, we cited Ramirez S anchez v

. Mukasey

, 508 F .3d 1254 (9th Cir. 2007) (per curiam), in w hich we remanded to the B I A to consider n e w reg ulatory g uidance for the issuance of U visas. W e said nothing in Rami r e z Sanchez about our jurisdiction to review a decision deny ing a U v i s a

. I n the second, Chang Y

oung J ung v. H older

, 393 F

. A pp’x 530 (9th Cir. 2010), w e held that we lacked jurisdiction over challeng e to a U visa denial b ecause the challe n g e h a d n ot been made in the district court. W e d id not a ddress our jurisdiction to review a properly

made challeng e.

Fi n ally

, the dissent ex presses concern that today ’s decision “ opens the proverbial floodg ates.” T h i s f ear is

ex a g g erated. The vast majority of U visa petition s a r e g ranted. Every fiscal y ear si n c e 2 0 1 0, USCI S has approved

an averag e o f about 10,000 U v i s a petitions. I n that same time period, i t annually denied an averag e of about 2,400 petitions. An unknown f raction of those denials will be appealed. S

e e USCI S, Number of

Form I -918, Petition for U Nonimmigrant Status by F iscal Y ear, Quarter, and Case Status ( FY 2009–2019)

, a v a i lable at http://www.uscis.g ov/sP E R E Z P E R E Z V

. W O L

F 30

ites/default/files/USCI S/Reso u r c e s / R e p o r t s % 2 0 a n d %2 0 S t u d i e s/I mmig ration%20F orms%20Data/ V i c t i m s / I 9 1 8 u

_ v i s a s t atistics_fy

2019_qtr2.pdf (last visited Sept. 20, 2019).

Conclusion

W e h old that 8 U.S.C

. § 1101(a)(15)(U) and 8 U .S.C. § 1184(p) provide meaning ful standards by which to r eview USCI S’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 revi e w that decision. W e remand to the district court to allow it to apply

those standards in this case.

REVERSED and REMANDED

.

CAL L A HAN, Circuit J udg e, dissenting :

Cong r ess, i n creating “U nonimmig rant status” o r “U visas,” vested with the Secretary of Homeland Securi t y sole jurisdiction over U visas, sole discretion in d etermining the e videntiary value of the certification forms accompany ing

a U visa petition, and absolute discretion in deciding whether
to g rant (or deny

) U visa petitions and whether to sub sequently revoke U visa status. The Supreme Court has
recog niz ed that where Cong ress commits decisions to ag ency discretion, with “no meaning ful standard” for judicial review,

we cannot review such decisions. H e ckler v. Chaney

, 470 U.S. 821, 830 (1985).

The majority

, however, in m i s construing § 1252 of the I NA a nd § 701 of the APA a nd ig noring the consistent opinions of our sister circuits, plung es us into the standardlessP E R E Z P E R E Z V

. W O L

F 31

r e v i ew o f thousands of discretionary decisions by t h e Secreta r y o f Homeland Security

. The majority opinion devalues the separation of powers and c reate s a circuit split by venturing into the forbidden territory of permitting judicial

rev i e w o v e r the discretionary denials of U visas. The majority o pinion opens the proverbial floodg ates to co u rts reviewing the U SCI S’s decision on the approx imately 250,000 U visa p e titions, 1 a s well as possibly o ther visa petit ions currently pending before the USCI S seeking discretionary

relief.

B e cause the majority opinion’s arrog ation of power unto i t s el f is wrong , I adamantly dissent. B ecause the district
court properly understoo d t he judiciary ’s ex clusion from reviewing discretionary ag ency dec i s i o ns as prescribed b y Cong r ess, I would affirm the district court’s dismi s s a l for lack of jurisdiction.

I.

I n 2000, Cong ress created a limited d i s c retionary categ ory allowing certain a liens w ho w ould not otherwise be p ermitted
to remain in the United States to stay and even pur s u e a pathway to permanent residence. T h is new categ o r y (known

a s “ U n o nimmig rant status” o r “U visa”) provides c ertain aliens with n o n i m m i g r a

n t s t a t u s u nder section 1101(a)(15)(U) of the I mmig ration a

n d Nationality Act (“I

NA”). Cong ress’s
purpose behind “ creat[ i n g] a new nonimmig rant visa

1 U SCIS, Nu mb er o

f Fo rm I-9 18

, Petitio n fo r U No nimmig ra n t S t a t u s b y Fisca l Yea r, Qu a rter, a nd C a se S t a t u s (

FY 2 0 0 9

– 2 0 1 9

)

, a va ila b le a t h t t p s : / / w w

w

. u s c i s.g o v / sites/d ef

au l t/f iles/USCIS/Reso u rces/Rep o rt s % 2 0

an d %2 0 Stu d ies/Im

m ig ratio n % 2 0 Fo r m s%2 0 Data/Victim s/I9 1 8 u

_ v isasta tistics_ f y 2 0 1 9 _q tr2 .p d f

(last v isited

A u g . 2 9 , 2 01 9 ).P E R E Z P E R E Z V

. W O L

F 32

c lassification” was to “streng then the ability of l a w enforcement ag encies to detect, investig ate, and prosecu t e

c a ses of domestic violence, sex ual assault, trafficking o f aliens, and other crimes,” while also “ o ffering protection to victims of such offenses i n k e eping w ith the humanitarian interests of the United States.” H.R. R E P

. N O

. 106-939, at 72 (2000) (Conf. Rep

. ) ; Victims o f T rafficking & Violence Protection Act of 2000 (“VTPA”), Pub. L

. No. 106-386, § 1513(a), 114 Stat. 1533–37 (2000). The U visa was created wi t h a particular f

ocus on women and children who, accordi ng to Cong ress’s finding s, “ are often targ eted to be

v i c t ims o f crimes committed ag a inst them in the Unit e d States.” H.R. R E P

. N O

. 106-939, at 71. B ecause alien v ictims
may not have leg al status and may be reluctant to report being victims to a crime o r to help in the investig a tion o r prosecution o f criminal activi t y due to fear of removal, Cong r ess “[ p] rovid[ ed] temporary leg al status to aliens w ho have been severely victimiz ed by criminal activity ” i n o rder
to “comport[ ] with the humanitarian interests of the United States.” I

d. at 72. Cong ress e mphasiz ed t h at “this section
g ives the Attorney General discretion to convert the status o f such nonimmig r ants to that of permanent residents when doing so is justified on humanitarian g rou n d s , for family unity , or is otherwise in the public interest.” Id.

To be elig ible for a U visa, a nonimmig ran t a l i e n must meet the following four statutory requirements:

(I) the alien h as suffered substantial phy sical

or mental ab u s e as a result o f having been a victim of criminal activity d escribed in clause (iii);P E R E Z P E R E Z V

. W O L

F 33

(II) the alien (o r in the case of an alien child under the age o f 16, the parent, g uardian, o r

nex t friend of the alien) possesses information concerning c riminal activity described in clause (iii);

(III) the a lien (or in the case of a n alien child under the ag e of 16, the pa r e n t , g uardian, o r

n e x t friend of the alien) has been helpful, i s being helpful, or is l i k e ly to b e helpful to a F ederal, State, or local la w enforcement official, to a F ederal, State, or local prosecutor, to a F ederal or State judg e, to the S e rvice, or to other F ederal, State, or lo c al authori t i e s i n v es t i g a ting or prosecuting criminal activity described in clause (iii); a nd

(IV) the c riminal activity described in clause (iii) violated the laws o f the United States o r

occu r r ed in the United States (including in I ndian country and military installat i ons) o r the territories a n d possessions o f the United States[ .]

8 U.S.C. § 1 1 0 1 ( a)(15)(U)(i). Subsection (iii) sets forth the ty pes o f “cr i m i n a l a c tivity

. . . o r a ny similar activity in violation o f F ederal, State, or local criminal law” required to support a U visa application. 2 8 U.S.C. § 1101(a)(15)(U)(iii).

2 T h e ty p e o f serio u s crim in al activ ity th at Co n g ress sp ecif ied to j u stif y p ro v id in g tem

p o rary (an d ev e n p e rm an en t) resid en cy to certain

a l i e n s w h o w o u ld n o t o th erw ise b e p erm itted to rem ain in th e Un ited S t a t e s in clu d e: “ rap e; to rtu re; traf f ick in g ; i n cest; d o m estic v io len ce; s e x u a l

assau lt; ab u siv e sex u al co n tact; pro stitu tio n ; sex u al ex p lo itatio n ; s talk in g ;P E R E Z P E R E Z V

. W O L

F 34

Cong r ess presumably specified particularly serious a nd violent crimes with the intent to protect “severely victimiz ed” aliens. H .R. R E P

. N O

. 106-939, at 72. Relevant to Perez
, a qualify ing criminal activity under the statute includes “felonious assault.” Id.

I n a U v i sa petition, the petitioner must include a F orm I -918, Supplement B (“the certification”), which is:

[ A] certification from a F ederal, State, or local law enforcement official, prosecuto r , j u dg e, o r other F ederal, State, o r local a uthority investig ating criminal activity descr i b e d in section 1101(a)(15)(U)(iii) of this t i tle.

. . . This certification shall state that the alien “has b e e n h elpful, is being helpful, or is likely t o be h elpful” in the investig ation or prosecution of criminal activity describ e d 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).

USC I S is the ag ency r e sponsible for determining

, adjudicating

, and revoking U visas. See New Classification fo r Vi ctims of Criminal Activity ; Elig ibility f or “U” Nonimmig rant Status, 72 F ed. Reg

. 53,014 (Sep t

. 1 7
, 2 007)

f em ale g en ital m

u tila t i o n ; b ein g h eld h o stag e; p eo n ag e; in v o l u n tary

serv itu d e; slav e trad e; k id n ap p in g ; ab d u ctio n ; u n law f u l crim i n al restrain t ; f alse im p riso n m en t; b lack

m ail ; e x t o r

t i o n ; m a n s l a u g h ter; m u rd er; f elo n io u s

assau lt; w i tn ess t am

p erin g ; ob s tru ctio n o f

j u stice; p erj u ry ; f

rau d in f o reig n lab o r co n tractin g (as d ef in ed i n sectio n 1 3 5 1 o f T itle 1 8); or attem p t,

c o n sp i racy , o r s o licitatio n to co m m i t an y o f th e ab o v e m en t i o n e d crim es[.]” 8 U.S.C. § 1 1 0 1 (a)(1 5 )(U)(iii).P E R E Z P E R E Z V

. W O L

F 35

(to b e codified at 8 C.F .R. pt. 103, 21 2 )

. 3 “ U SCI S h as sole jurisdiction over a ll petitions fo r U nonimmig rant status.” 8 C.F .R. § 214.14(c)(1). USCI S w ill “determine, in its sole discretion, the evidentiary v alue of p reviously or concurrently submitted evidence, includi n g F orm I -918, Supplement B
, ‘U Nonimmig rant Status Certification.’” 72 Fe d. Reg

. 53, 0 3 8

. Section 1184(a)(1) “authoriz es the Secretary o f Homeland Security to prescribe, by reg ulation, the time a nd conditions of admission of any nonimm i g r a n t ” a n d “ [i] mplicit in this authority is the authority to prescribe the conditions under which n onimmig rant status may be revoked.” 72 F ed. Reg . 53,030.

II.

Perez asserts that he was harassed in v iol a t i o n o f W a shing ton State law, W ash. Rev. Code § 9A.46.020 (2011), by two individuals to whom Perez had lent money

. Perez told the reporting officer with the Renton Police D epartment that

one individual “threatened to p lace Perez in ja i l if he keeps asking for his money b ack”; he told Perez “he w ould make him disappear”; and Perez “was sc ared that [ the individual] mig ht do something to h i m

. ” However, according to the reporting officer, these alleg a tions “were not defined enoug h for me to file h arassment c harg es.” I n fact, on the certificatio n f

o rm that accompanied h is U visa petition, the Commander wrote: “This was a n i nformational case a nd no

3 Co n g ress en acted th e Vio len ce A g ain st W om en an d Dep artm en t of J u stice Reau th o rizatio n

A ct o f 2 0 0 5
, d irectin g th e Secu rity of H o m elan d Secu rity to p ro m

u lg ate reg u latio n s im

p lem en tin g , in ter alia, s ectio n 1 5 1 3

o f VT V P A (co d if

ie d at 8 U.S.C. § 1 1 8 4 (p )(l)). A s a resu lt, USCIS
p u b lish ed an In terim Ru le to g o v ern t h e creatio n o f U n o n im m ig ran t statu s. See 7 2 Fed . Reg . 5 3,0 1 4

.P E R E Z P E R E Z V

. W O L

F 36

charg es w ere filed.” Additionally

, the Commander noted that Perez presen t ed “no known p hy sical injury .” I n deny ing Perez ’ s U visa petitio n , U S CI S stated in the notification letter: “You h ave not e stablished y o ur elig ibility for t he desired classification an d [ USCI S] cannot reach a favorable decision.” Perez had arg u ed that he was a v ictim o f “harassment,” which e ven thoug h it is n o t a n enumerated qualif y i n g crime under the statute, he alleg ed “involved and/or was simila r t o felonious assault,” which is an enumerated qualify ing crime. The USCI S, h oweve r,

ex p lained that Perez did not qualif y as a victim o f a “qualify ing criminal activity ”:

As pro o f to satisfy this requirement, y ou submitted a copy of an [ sic] temporary antiharassment o rder that was unable to be served. On March 2 5, 2014, y ou were requested to submit additional evidence t o demonstrate that the crime, harassment; would be considered a c r ime r elated to those listed in
reg ulation. You responded on J une 18, 2014, with a letter from y our a ttorney but y ou did
not provide sufficient evidence to prove t hat
y o u r crime o f harassment is similar to a certified crime listed on the Supplement B

.

You were also requested in y our requ e s t f o r evidence letter that w as sent to y ou on March 25, 2 014, to pro v i d e a supplement B that was dated within six (6) months of the date of the petition. Yo u responded with a letter from y our attorney o n J une 18, 2014 but did not provide a new Supplemen t B sig n ed within the reg ulation time requirements.P E R E Z P E R E Z V

. W O L

F 37

The evidence, as presented, does not establish that y o u have been a v ictim of qu a lify ing criminal a ctivity

. The record does not contain satisfactory evidence to esta blish y our elig ibility under this requirement.

On appeal, the Administrative Appea l s Office ( “AAO”) found that Perez did not establish that h e w as a victim of a qualify ing crime and thus dismi s s e d t he appeal. Perez asserted that even thoug h the Renton Police Department l i s t e d

on the c ertification that the alleg ed crime w a s o n e o f “harassment,” he w as actually a v ictim of “felony harassment,” which involves or is substantial l y similar to “felony assault,” an enumerated q ualify ing crime. The AAO

ex p lained, “the nature and elements of the harassment offense
must be substantially similar to one of the qualify ing criminal activities in the statutorily enumerated list” and the “inquiry

, therefore, is not fact-based, but r ather entails comparing the

n a t u r e and elements of the statutes in question.” I n comparing the statutes o f harassment under W ash. Rev. Code § 9A.46.020 4 a

nd of felonious assau l t , t he AAO concluded

4 Un der W ash in g to n

law , “ [a] p erso n

is g u i lty o f h arassm en t if

:

(a) W ith o u

t law f u l au th ority

, th e perso n k n o w in g ly th reaten s:

( i ) T o cau se b o dily i n

j u ry im m ed iately o r in th e f u tu re to th e p erso n th r e a t e n ed o r to an y o th er p erso n ; o r

(ii) T o cau se p h y s ical d am ag e to th e p ro p erty o f a p erso n o th er th an

th e acto r; o r

(iii) T o su b j ect th e p erso n

th reaten ed o r an y

o th er p erso n to p h y sical co n f

in em en t o r restrain t; o rP E R E Z P E R E Z V

. W O L

F 38

that “[ n ] o elements o f harassment u nder W ash. Rev. Code §§ 9A.46.020 are simi l a r to felonious assault under W a sh. Rev. Code §§ 9A.36.011, 9A.36.021, and 9A.36.031.” 5

(iv ) Malicio u sly t o d o an y o t h e r act w

h ich is in ten d ed t o s u

b stan tially h arm th e p erso n th reaten ed o r an o th er w i t h resp ect to h is o r h er p h y sical o r m en t al h ealth o r saf ety ; an d

(b ) T h e p erso n b y w or d s o r co n d u ct p laces th e p erso n t h r e a ten ed in reaso n ab le f ear th at th e th reat w ill b e carried o u t. “ W ord s o r co n d u ct” in clu d es, in a d ditio n to an y oth er f

o rm o f co m

m u n icatio n o r co n d u ct , th e

sen d in g o f

an electro n ic co m

m u n icatio n

.

W ash

. Rev

. Co d e § 9 A .4 6 .0 2 0 (1 ). Felo n y h ara s s m e n t, u n d er th e sam e statu te, req u ires, in ter a l i a, th at a p erso n h arasses an o th er perso n “ b y th reaten in g to k ill th e p erso n th reaten ed o r an y o th er p erso n .” W ash

. Rev

. Co d e § 9 A .4 6 .0 20 (2 )(b )(ii).

5 In i d en tif

y in g statu t o ry elem en ts, th e A A O lo o k e d t o W ash in g to n

co m m o n law :

A ssau lt is n o t d ef

in ed b y W ash in g to n law

, so W ash i n g to n co u rts ap p ly th e co m m o n law def

in itio n of

assau lt in crim in al cases. C la rk v. Ba in es , 8 4 P .3 d 2 4 5
, 2 4 7 n .3 (W ash

. 20 0 4 ). T h ree co m m o n law d ef

in itio n s

o f crim in al assau l t are reco g n ized in W ash in g to n :

“ (1 ) an attem

p t, w ith u n law fu l f o rce, to in f

lict b o d ily in j u ry u p o n an o th er; (2 ) a n u n law f u l to u ch in g w i th crim in al in ten t; an d (3 ) p u ttin g an o th er i n ap p reh en sio n

o f h arm w h eth er o r n o t th e acto r in ten ds to in f lict o r is
cap ab l e o f in f

l ictin g th at h arm .” Id

. (q u o tin g S t a te v. W a ld en , 8 4 1 P .2 d 8 1
, 83 (W ash

. Ct. A p p

. 1 9 9 2 )). Felo n i o u s assau l t u

n der th e Wash i n g to n Crim in al Co d e in v o l v es an assau lt w i th a d ead ly w eap on o r th at cau ses b o d ily in

j u ry

. See W ash

. Rev

. C o d e An n

. § § 9A .3 6 .0 1 1 an d 9 A .3 6 .0 2 1. Felo n io u s assau lt in W ash i n g to n also in clu des assau lt ag ain st certainP E R E Z P E R E Z V

. W O L

F 39

The AAO further r ejected Perez ’s assertion that he suffered felonious as s ault—based on the arg ument that the harassm e n t “involved a threat to kill him that placed h im in apprehension of harm”— f i nding that Perez did not a lleg e

a n y thing o ther than “harassment” in his U visa petiti o n

. Nothing in his U v isa pe t i t i o n indicates that felony har a s s m e nt was the b asis o f his F orm I -918 Supplement B

. I n assessing the elements of the crime tha t h e actually asserted ( i.e., harassment), the AAO found that there was no evidence in the record to suppor t a finding that Perez was a victim of any

qualify ing criminal activity

.

Perez filed a motion to r econsider the AAO’s decision, which was denied on the basis that he “has not demonstrated that he w as a v ictim of qualify ing cr i m i nal activity .” F irst, the AAO found that “the record as a whole does not establish that the certify

ing ag e ncy d etected or in v estig ated felony h a r a s s ment,” but r ather the only crime listed on the certificati o n form was “harassment, which is a g ross misdemeanor under W ashing ton law and is not an enumerated offense u nder section 101( a ) (15)(U)(iii) of the Act.” The AAO nex t found that even if felony harassment had b een detected by the Renton Police Department, P e r ez “has not demonstrat e d t h at it is substantially similar to the qualify ing criminal activity o f felonious assault.” B ased on

a comparison of the statutes in q u estion (not a fact-based inquiry), the AAO concluded:

The stat u t o ry elements of felony harassment

u n d e r W a s h

. R e v

. C o d e s e c t i o n

p r otected classes an d assau lt w i th in ten t to co m m it a fe l o n y

. W ash

. Rev

. Co d e A n n

. § § 9 A .3 6 .0 2 1 a n d 9 A .3 6 .0 3 1

.P E R E Z P E R E Z V

. W O L

F 40

9A.46.020(2)(b)(ii)

. . . involve[ ] t h e communication of a threat to kill and placing the threatened person in reasonable f e a r that the threat will b e carried out throug h words o r conduct. However, felony assault does not

r e q uire a communication of a threat f or a conviction. State v. M

andanas

, 262 P.3d 522, 526–27 (W ash. Ct. App

. 2011). Additionally

, a felony harassment conviction does not require an added ag g ravating factor bey ond the threat, such a s t h e u s e of a weapon o r commission of the offense w ith the intention
t o commit a felony

. Moreover, contrary t o [ Perez ] ’s assertions on motion, W ashing ton

case law indicates that a plain reading of th e harassment and assault statutes shows that the
state leg islature “ intended to disting u ish felony harassment and second degr ee assault

as distinct o ffen s e s.” Mandanas

, 262 P.3d
at 526–27.[ ] I n fact, the M andanas court specifically held that second degr e e assault and h arassment h ad d i f

ferent elements. Id. at 526.

Perez filed an APA suit in the United States District Court for the W estern District of W ashing ton ag ainst the Secretary of Homeland Security

, the A cting Director of the USCI S, a nd others, a lleg ing the denial of h i s U visa was erroneous because: the Renton Police Department at least “ d e t e cted” that he was a victim of felo n y h arassment; he demonstrated that the detected f

elon y harassment involved felonious assault; the ag encies failed to consider credible and material evidence; and he could establish elig ibility for a U v isa. The parties filed cross motions for summary judg ment.P E R E Z P E R E Z V

. W O L

F 41

I n dismissing the action for lack of subject matter jurisdiction, the district court concluded that this case fell into the APA § 701(a)(2)’s ex c lusion f rom judicial review of an ag ency ’s discretionary decision. The court noted: “USCI S has ‘sole jurisdiction’ ove r U-visa petitions and ‘sole discretion’ to determine the evidentiary va l u e of the petitioner’s evidence when ruling on a petition,” and “U-visa determinations are ‘committed to USCI S’ di s c r e t i o n b y law.’” The court found, “[ i] n the U -vi s a c ontex t, there is no judicially manag eable standar d b y which a court can judg e how USCI S should ex e rcise its discr e tion.” The court recog niz ed the leg al landscape of this issue in our circuit:

I n the Ninth Circ u it, courts “ lack[ ] jurisdiction

over the [ USCI S’] d e terminations reg arding U Visas. ” Seo v. H

older

, 358 F

. App’x 884 (9th Cir. 2009) (citing R a mirez Sanchez v

. Mukasey

, 508 F .3d 1254, 1555

– 5 6 (9th Cir. 2007) (per curiam)). I n additio n , a district
court within this Circuit recently survey ed Uvisa cases and could not find “ any fe d e ra l
court that has ex ercised j u risdiction over questions of a Petitioner’s elig ibility for a UVisa.” Nsinano v. Session s , 236 F

. Supp. 3d 1133, 1137 (N.D. Cal. 2017). Altho u gh M r. Perez p rovided a number o f cases g enerally supporting judicial review under the APA, he did not offer any cases where a court reviewed the ag e n cy ’s U-visa determination. ( See Pl. Opp. & Reply

(Dkt. #27) at 3–7.).

The court thus held that the US C I S’s denial of Perez ’s petition was not subject to judicial review, and dismissed theP E R E Z P E R E Z V

. W O L

F 42

administrative appeal f

or lack of subje c t matter jurisdiction. Perez timely

appealed.

III.

W e review de novo a district court’s dismissal f or lack o f subject matter jurisdiction. Y u-Ling Teng v. Distr i c t D i r ector, U.S. Citizenship & Immigration Servs.
, 8 20 F

. 3d 1 106, 1108 (9th Cir. 2016).

IV.

Cong re s s’s intent in creating a new nonimmig rant categ ory was to vest to the USCI S the absolute discretionary authority o ver U visas with sole j u risdiction o ver U visa petitions, with sole discretion to determine the evidentiary value o f t h e petitioner’s evidence when ruling on a petition, and with the adjudicative authority in determining whether to g rant or deny a U visa and whether to s ubsequently r evoke such status. T o restrict USCI S’s discreti onary authority b y allowing courts to review U visa decisio n s would n ot only contradict Cong ress’s intent, but would breach the separation of powers by a llowing courts to ven t u r e i n to the forbidden leg islative t erritory

. This conclusion is compelled b y § 701(a)(2) of the APA a nd § 1252(a)(2)(B )(ii) of the I NA, which preclude judicial review o f discreti o nary U visa decisions.

A.

Section 701(a)(2) of the APA precludes judicial review o f
ag ency decisions where the ag ency action is “commit t e d t o ag ency discretion by law.” 5 U.S.C. § 701(a)(2); see also Heckler

, 470 U.S. at 8 30. The Supreme Court has recog niz edP E R E Z P E R E Z V

. W O L

F 43

that a decision is committed to a g ency discretion by law when “the s tatute is drawn so that a court would have no meaning ful standa r d ag a inst which to judg e the ag e ncy ’s

ex e r c i se 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 o m itted). T he statutory and reg ulatory U visa f rameworks p r o v i d e no judicially manag eable standard by whi c h a c o urt can judg e how U SCI S should ex ercise its discretion in r eviewing the denial o f U visas. The applicable U visa statutes are 8 U.S.C. §§ 1101(a)(15)(U) a nd § 1184(p).

Section 1 101(a)(15)(U)—the statu t o ry definition o f U nonimmig rant status—prescribes that an alien may be elig ible fo r n onimmig rant status if “the Secretary o f Homeland Security determine s ” t hat the alien has met the enumerated requirements. 8 U.S.C. § 1101(a)(15)(U)(i). The fact that Cong ress left to the Secretary of Homeland Security the power to determine who qualifies for this ty pe o f nonimmig rant status evinces Cong r essio n al intent that the
ag ency is vested with the decision-making discretion. W hile this section defines who may qualify for a U visa, it does not compel or restrict a

ny action by USCI S and does not specify how USCI S should evaluate the U vis a p etitions, q ualify ing crimes, substantial ph y s ical or mental a buse, or helpfulness requirements. Rather, t h e d e termination is left to USCI S’s judg ment. The statute p rovides no “meaning ful standard” for defining the limits of that dis cretion. Heckler

, 470 U.S. at 830.

Similarly

, se ction 1184(p)—the g o verning procedural requirements applicable to U visas—states that “the petition filed by an alien under section 1 101(a)(15)(U)(i) of this title”
must be accompanied by a c ertification from law enforcement that provides that the alien “ h a s b e e n helpful, is being h elpful,P E R E Z P E R E Z V

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or is likely to b e h e lpful” in the investig ation or prosecution of qualify ing criminal activity . 8 U.S.C. § 1184(p)(1). This subsection does not provide a standard “for judg ing how a nd when an ag e ncy should ex ercise its d iscretion” in g ranting o r deny ing a U visa. Heckle r , 470 U.S. at 830. Moreover, the
statute uses lang u ag e that requires an ex e rcise of discretion in d e t e r m i n i n g h o w m a n y a l i e n s “ m a y b e i s s u e d ” U nonimmig rant status each y ear. 8 U.S.C. § 1184(p)(2)(A) (emphasis a d d e d ). Critically

, by limiting the number o f U v isas that may b e issued to 10,000 annually

, Cong re s s intended the g r anting and deny ing of U nonimmig r ant status to be p urely discretionary

. I t is unreasonable to sug g est that Cong r ess intended the courts to dictate how the Secretary of Homeland Security manag es the limited number of U visas that she is authoriz e d to g rant.

The only controls Cong r ess placed on the Secretary o f H o meland Security ’s discretion in administering U vi s a s w e r e duties to: (1) provide qualify ing alien s w i t h referrals to nong overnmental org aniz ations to advise the aliens reg arding their options and resources available to them while in the United States; (2) provide the qualify ing alien with employ ment authoriz ation w hile in lawful temporary resident status; and ( 3) consider any credible evidence relevant when acting on the petition. 8 U.S.C. § 1 184(p)(3), (4). However, the first two requirements arise o nly after the alien has been determined to be a qualify ing alien, a decision Cong ress left
to t h e Secretary of Homeland Security

. And the latter requirement is a blanket authoriz ation of discretionary authority to c onsider “ a ny credible [ and] relevant” e v i dence when “acting on any petition filed u nder this subsection.” Id. § 1184(p)(4) (emphasis added). The statute does not specify h o w the ag ency should determine what evidence is cre d i b l e and r elevant, nor does it prescribe a limit to the discretion.P E R E Z P E R E Z V

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I n s tead “just as with the initial adjudication of F orm I -9 1 8
, the determination of w hat is relevant evidence and the w eig ht
to be g iven to that evidence will b e within the sole discretion of USCIS .” 72 F ed. Reg

. 53,031 (emphasis added).

I n sum, n o thing in the applicabl e U visa statutes—§§ 1101(a)(15)(U) or 1 184(p)

— i ndicates how the USCI S should make its decis i o n t o g rant or deny a U v isa. Absent a reference to, let alone a sp e cification on, how the
ag ency should utiliz e its discretionary authori t y , the statutes fail to provide a judicially m a n a g eable standard and thus preclude judicial review.

The applicable U visa reg u lations reinforce that the
ag ency h a s d iscretion over U v isa application and that there

are no judicially manag eable standards. An alien’s elig ibility for U nonimmig rant status is e x pressly co n ting ent upon the USCI S’s determination of the evidentiary value of materials submitted and USCI S’s determination that the petitioner has
met the re q u irements for U v isa status. See 8 C.F .R. § 214.14(b) (making an alien’s elig ibility f or a U v i sa conting ent upo n d emonstrating “all of the following in

a c c o r d a n c e w i t h p a r a gr a p h ( c) o f t h i s s e c t i o n ” ). Parag raph (c) provides that: “USCI S has sol e jurisdiction

over a ll p etitions for U nonimmig rant status ” ; an alien’s eligi b ility for a U visa is based on being a victim of a qualify ing crime; “USCI S w ill d etermine, in its sole discretion

, the evidentiary va l u e ” of the alien’s petition

m a t e r i a l s , “ i n c l u d i n g F o r m I- 9 1 8
, S u p p l e m e n t B, ‘U Nonimmig rant Status Certification’”; an d “ [ i ] f USCIS determ ines that the petitioner has met the r equirements for U-1 nonimmig rant status, USCI S will approve the F orm I -918.” See 8 C.F

. R. §§ 214.14(c)(1)–(5) (emphasis added).P E R E Z P E R E Z V

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Nothing in the r eg u lation d ictates that USCI S must g rant

a U visa o r e v e n e x plains when USCI S must g rant a U v isa—it d escribes only w hen a n a l i e n is elig ible to a pply

a n d leaves the decision to g rant or d eny with the US C I S

. L ike the applicable I

NA statutory provisions, nothing in t he
reg ulat i ons describes how USCI S should evaluate the evidence when ex ercising its discretion in g ranting or deny ing

a U visa. A bsent a standar d “ f o r judg ing how and when an ag ency should ex ercise its discretion” or “for defining the limits of that discretion” in g ranting or deny ing a U v isa, the decision is “committed to ag ency discretion b y law” and thus is not judicially re viewable. Heckler

, 470 U.S. at 830, 834–35.

B

.

I have no quarrel with the majori t y ’s sua sponte questioning of jurisdiction under § 1252(a)(2)(B )(ii ) of the I NA. Maj. Op. at 5; Spencer Enters., Inc. v. U n i t e d S t a tes , 345 F .3d 683, 687 (9th Cir. 2 003) (stating that this Court has

a “duty to consider subject matter juris d i ction sua sponte in
every case”). However, revi ew of § 1252(a)(2)(B )(ii) discloses no meaning ful standard for judicial review. Unlike the APA analy sis, the jurisdictional inquiry is g overned b y the statutes only

, and not the reg ulations. S e e S pencer , 345 F .3d at 691 (evalu a t i n g whether § 1252(a)(2)(B )(ii) prescri b e s judicially manag e able standards requires that “such standards must be found in t h e statutes” and that “reg u lations o r a g ency practi c e will n ot make the decision reviewable”).

S ection 1252(a)(2)(B ) (ii) provides that “no court sh a l l have jurisdiction to review

. . . a n y other decision or action o f the Attorney

General or the Secretary of Homeland SecurityP E R E Z P E R E Z V

. W O L

F 47

t h e a uthority for which is specified under this subchapter t o be in the d iscretion of the Attorney General o r the Secretary of Homeland Security

. . . .” F or the discretionary decision to strip the court of jurisdiction, (1) the “discretionary authority [ must] be ‘specified’ under the I NA” meaning “the lang uag e of the statute in questio n must provide the discretionary authority ”; and (2) “the ‘authority [ must] be in the discretion of the Attorney General,’” w hich means having “the p o wer to act ‘ according to [ one ’ s ] o w n u n d e r s t anding a nd conscience.’” Spencer
, 3 4 5 F .3d at 689–90 (last alteration in orig inal) (emphasis omitted).

As noted, the applicable U visa statutes—I NA’s §§ 1101(a)(15)(U) and 1184(p)—g ive the USCI S discretion in g ranting or deny in g an alien’s petition for a U visa. The USCI S “determines” whether to g rant o r deny a U visa and is limited in how many U visas “ may be i s s ued” to 10,000 annually

. 8 U.S.C. §§ 1101(a)(15)(U) a n d 1184(p)(2)(A) (emphasis added). This statutory lang u a ge “specifie[ s] ” discretionary authority

. Spencer
, 345 F .3d at 689; see also Jama v

. I mmigration & Customs Enf’t

, 543 U.S. 335, 346 (2005) (finding that Cong ress’s use of “may ”—rat h e r than “must” o r “ shall”—bring s along the usual presumption o f discretion); P o u r

s ina v

. United States Citizenship & Immigration Servs.
, 936 F

. 3d 868, 873 (9th Cir. 2 019) (finding that “Cong ress use[ s] a wide rang e of lang u ag e to commit d ecisions to the g overnment’s discretion,” even if it chooses not to ex pressly use the word “discretion”). B ecause the U visa d et e r mination is not d ictated by any statutorily prescribed leg al standard, but r ather measures the “power to act

. . . w ithin [ the Secretary of Homeland Sec u r ity ’s] judg ment,” it is a “matter[ ] of pure discretion.” S pencer , 345 F .3d at 690.P E R E Z P E R E Z V

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F 48

B o th Perez ’s and the majority ’ s reliance on S p encer Enterprises is misplaced. I n Spencer Enterprises
, we he l d that n either the APA nor § 1252(a)(2)(B )(ii) barred review o f U SCI S’s denial of an investor visa under §§ 1153(b)(5) a n d 1154(b) o f the I

NA because the applicant’s investor visa was not left solely to USCI S’s discretion. 345 F .3d 683, 688–91 (2003). Rather, we relied o n the lang uag e of §§ 1153(b)(5) and 1154(b), both of which m a n d a t ed the g ranting of visas

once the q

ualify ing c r iteria we r e satisfied. 8 U .S.C. § 1153(b)(5)(A) ( s tating that “[ v] isas shall b e made available” to qualify ing immig rants) (emphasis added); id. § 1 154(b) (stating that the A tt o rney General “ shall

. . . approve the petition” upon determining that the petitioner is elig ible) (emphasis added). W e concluded that, by mandating the ag ency to issue the investor visas, Cong ress d id n ot leave the decision to the discretion of the ag ency

.

I n contrast, the applicable U visa statutes in Perez ’s c ase, §§ 1101(a)(15)(U) and 1184(p), do not refl e c t a similar mandate from Cong ress. Rather, for U visa status, “an alien

. . . files a petition for status under this subparag r aph, [ a n d ] the Secretary of Homeland Security d etermines ” whether the alien satisfies the enumerated elements of the statute, a nd Secretary o f H omeland Security “ may

. . . issue[ ] ” only 1 0
, 000 U visas a

nnually

. 8 U.S.C. §§ 1101(a)(15)(U) a nd 1184(p) (emphasis added). Unlike the mandatory issuing of investo r visas, the g ranting or deny ing of U v isas rests entirely within the USCI S’s discretion, and thus, is not judicially reviewable.

Althoug h we have not p ublished on this issue, our unpublished decisions ag ree that our court lacks jurisdiction to review USCI S’s denial of U visa petitions. See, e.g.
, Eun Kyeong Seo v. Holder

, 358 F

. A pp’x 884 (9th Cir. 2 009)P E R E Z P E R E Z V

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F 49

(“This court lacks jurisdiction over [ USCI S] determinations
reg arding U v isas.”); Chang Y oung Jung v. H

o l de r , 393 F

. A p p ’ x 530 (9th Cir. 2010) (“W e lack jurisdiction to rev i e w [ USCI S] .”).

Moreover, we recently issued an analog ous decision that “§1252(a)(2)(B )(ii) strips federal c ourts of ju r isdiction to review US C I S ’ s decisions to deny a national-interest waiver.” Poursina, 936 F .3d at 873. I t i s d ifficult to square the majority ’s approach here with our opinion in P oursina

. The
pr o v ision at issue in Poursina
, which requires that the Attorne y General determine whether a waiver was in “the national interest,” allows f or more “meaning fu l standards” than may be g lean e d f

rom the majority ’s opinion. 6 I n addition, the opinion i n P o ursina recog niz ed that “Cong ress’s

use of ‘may ’—rather than ‘ must’ or ‘shall’—bring s along the usual p resumption of discretion.” Id

. at 871. Of course, there

are differences between Perez ’ s case and P o u rsina
, but Poursina is not f

airly read a s supporti n g t h e majority ’s opinion.

6 USCIS h ad set f

o rth th at an alien seek in g a n atio n al- in terest w aiv er

m u st sh o w :

(1 ) th at th e f

o reig n n atio n al’ s p ro p osed en d eav o r h as b o th su b stan tial m erit an d n atio n al im p ortan ce; (2 ) th at th e f oreig n n atio n al is w ell p o s i tio n ed to ad v an ce th e p ro p osed en deav o r; an d (3 ) th at, o n b alan ce, it w ou ld b e b en ef icial to th e Un ited States to w aiv e th e req u i rem en ts o f a j o b o ff er an d th u s o f a lab or certif icatio n

.

Ma tter o f Dh a n a sa r , 2 6 I. & N. Dec. 88 4
, 88 9 (2 0 1 6 ). No n eth eless, w e h eld th at su ch a d eterm in atio n rem ain ed d iscretio n ary an d n o t su

b j ect to j u d icial rev iew

.P E R E Z P E R E Z V

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F 50

Moreover, decisions b y the F ifth, Seventh, Eleventh, a nd D.C. Circuits also hold that courts lack jurisdiction to r eview U visa petitions. See Torres-Tristan v. Holder

, 656 F .3d 653, 659 ( 7th Cir. 2 011) (“[ J ] u dicial review in the circuit courts o f appeals o f U visa denials

. . . would a ppear to be unprecedented. O ur d ecisions reflect a long standing practice of not reviewing visa denials in g e neral”); L.D.G. v. H older

, 744 F .3d 1022, 1024 ( 7th Cir. 2 0 14) ( “[ T] he d ecision whether
to g rant a U V isa is statutorily committed to the discretion o f the Secretary of Homeland Security

, see 8 U. S .C. § 1101( a ) (1 5 )(U), and is e x ercised throug h USCI S

. . . .”); Bejarano v

. Homeland Sec. Dep’t
, 300 F

. App’x 651, 6 5 3 (11th Cir. 2008) ( affirming district court’s finding that it lacked subject matter jurisd i c tion to r eview denial of U visa petitio n b ec a use “jurisdiction over the g rant or denial o f a U visa

. . . r ests with [ USCI S ]
, and a ny decision by the certify ing o fficial to sig n or decli n e t o sig n the status certification is discretionary ”); Semiani v. United States
, 575 F .3d 715 (D.C. Cir. 2 009) (“Cong re s s h as not provided for judicial review of decisions to deny a ‘U-visa’ pursuant to 8 U.S.C. § 1101(a)(15)(U).”); Ordone z Orosco v. Napolitano

, 598 F .3d 222, 226 (5th Cir. 2 0 10) (finding that “the lang uag e of § 1184(p) makes it abundant l y clear that the decision to issue a law enforcement certificat i o n [ w hen apply ing for a U v isa] is a discretionary one” and thus concluding that the district court correctly dismissed for lack of jurisdiction).

I t is our g e ner a l r u le to decline to create a circuit split unless there is a compelling reason to do so. Padilla-Ramirez

v. Bible

, 8 82 F .3d 826, 836 ( 9 t h 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.P E R E Z P E R E Z V

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F 51

V.

I ndeed, Perez ’s c ase is a particularly unsuitable vehicle for ex panding the judiciary ’s review of denials of U visas. A s noted by the majority

, P erez ’s complaint alleg ed that the
ag ency (1) f

ailed to c onsider all credible evidence, (2) erred in concluding that “felony harassment does not constitute a qualify ing criminal activity ,” and (3) made an uns u p p o r ted finding in concluding that “felony harassment was not detected by law enforcement.” Maj. o p

. at 12. F irst, there is simply n othing to support t h e alleg ation that the a g ency did
not consider all the evidence Perez proffered. S e c o nd, a s

n o ted, there are substantial differences between t h e “harassment” alleg ed by Perez a nd criminal harassment und er W a s h ing ton law. See infra at 37–40

. Third, the recor d n o t only supports, but c ompels, t he conclusion that “felony harassment w as not detected by law e n f o r cement.” The record shows that Perez alleg es that he loaned money to two i n d i viduals and that when he requested repay ment they threatened him. He then r eported this to the police a nd
soug h t a n anti-harassment order. B u t t h e police determined that the a lleg ed threats were no t d e f i n ite enoug h to support the filing of harassment c h arg e s and the a nti-harassment order w as dismissed because the defendant was not able to be served. I n sum, t h e o n l y evidence that Perez “ suffered substantial phy sical or mental abuse as a result of having been

a victim o f c riminal activity ,” or had been helpf u l to authorities “investig ating or prosecuting criminal a c tivity

, ”

see 8 U.S.C. § 11 0 1(a)(15)(U)(i), is his u n supported alleg ation of harassment which the local police chose not to investig ate. I f courts had any jurisdiction to review the denial of Perez ’s U visa, it is c lear that under any standard of r eview the Secretary ’s denial would be affirmed.P E R E Z P E R E Z V

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F 52

VI.

Cong r ess g ranted the USCI S a bsolute discretionary authority over U visa decisions. T he Supreme Court prohibits

us from reviewing decisions that Cong ress commits to ag ency discretion. The majority opinion b reaches the separ a t i o n o f
powers between our branche s of g overnment to arrog ate the
power unto itself to review the d iscretionary deci sions o f U v isas. B y misapply ing the applicable statutes, b y ig noring
every o ther circuit t hat has decided this issue before us, a nd by violating the proper role of courts in our g overnment, the majority opinion opens “Pandora’s box ” to courts reviewing the USCI S’s decision o f t he approx imately 250,000 U visa petition s currently pending before the USCI S seeking discretionary relief. T h i s is not required by the applicable
statutes a nd reg ulations, is unprecedented in our circuit, a nd contrary to the consistent position of our siste r circuits. B ecause I would affirm the district court’s dismissal for lack of subject matter jurisdiction, I dissent.