NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 13-4811

____________

ARIPOV SHUKHRAT;

ZUKAUSKIENE REGINA,

 Appellants

 

v.

SECRETARY U.S. DEPARTMENT OF HOMELAND SECURITY;

DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS);

DISTRICT DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION

SERVICES (USCIS) PHILADELPHIA, PENNSYLVANIA

On Appeal from the United States District Court

for the Eastern District of Pennsylvania 

(D.C. No. 2-12-cv-04137)

District Judge: Honorable Mitchell S. Goldberg 

Submitted under Third Circuit LAR 34.1(a)

on June 3, 2014

Before: HARDIMAN, SCIRICA and ROTH, Circuit Judges

 

(Filed: January 23, 2015)

O P I N I O N 

ROTH, Circuit Judge:

_______________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Shukhrat Aripov and Regina Zukauskiene1appeal from the District Court’s order 

granting summary judgment to defendants, the Secretary of the U.S. Department of 

Homeland Security, the Acting Director of the U.S. Citizenship and Immigration Services

(USCIS), and the Philadelphia District Director of the USCIS, on Aripov and 

Zukauskiene’s request for relief from the USCIS’s denial of their Petitions for U 

Nonimmigrant status (Form I-918 petitions). For the reasons set forth below, we will 

affirm. 

I.

Aripov is a native and citizen of Uzbekistan. Zukauskiene is a native and citizen 

of Lithuania. Both entered the United States in 2001 as B-2 nonimmigrant visitors and 

stayed after their visas and passports expired. On August 15, 2009, they were assaulted 

in their home. Following the incident, the police checked their identification documents 

and the Department of Homeland Security commenced removal proceedings against 

them. 

On August 20, 2010, Aripov and Zukauskiene filed Form I-918 petitions, which

allow USCIS to grant temporary lawful resident status (known as U-Visas) to victims of 

certain qualifying crimes who have been helpful, or are likely to be helpful, in the 

investigation or prosecution of that crime. USCIS later notified Aripov and Zukauskiene

that their petitions were incomplete because their passports were expired and they 

therefore could not demonstrate admissibility, a requirement for obtaining a U-Visa. 

 

1 Although appellants filed this appeal under the names “Aripov Shukhrat” and 

“Zukauskiene Regina,” it appears that they reversed their first names and last names. 
3

USCIS requested that Aripov and Zukauskiene either send a copy of valid passports or 

obtain waivers of admissibility by filing Applications for Advance Permission to Enter as 

a Nonimmigrant (Form I-192s). Aripov and Zukauskiene failed to take either action, and

USCIS ultimately denied their petitions. 

Following the denial, Aripov and Zukauskiene filed Form I-192s but USCIS 

denied both applications because there were no pending U-Visa petitions. Aripov and 

Zukauskiene then appealed to the Administrative Appeals Office (AAO), which held that 

Aripov and Zukauskiene were inadmissible because they lacked valid passports and had 

not filed timely waivers, and, in any event, did not meet the statutory criteria because 

their assailant was not charged with qualifying crimes. 

On July 20, 2012, Aripov and Zukauskiene filed a complaint in the Eastern 

District of Pennsylvania alleging that the government’s denial of their Form I-918 

petitions violated the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06, law of 

mandamus, 28 U.S.C. § 1361, and the Fifth Amendment of the U.S. Constitution. On 

November 27, 2013, the District Court granted summary judgment in favor of the 

government, concluding that Aripov and Zukauskiene were ineligible for U-Visas 

because of their inadmissibility and failure to receive a waiver. The District Court did 

not address whether they were victims of a qualifying crime. 

II.

2

 

2 The District Court had jurisdiction under 28 U.S.C. § 1331. We exercise jurisdiction 

under 28 U.S.C. § 1291.
4

We employ “a de novo standard of review to grants of summary judgment, 

‘applying the same standard as the District Court.’” Montone v. City of Jersey City, 709 

F.3d 181, 189 (3d Cir. 2013) (quoting Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d 

Cir. 1995)). Under the APA, district courts must determine whether agency decisions 

were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 

law.” 5 U.S.C. § 706(2)(A). An action is arbitrary and capricious if the agency “failed to 

examine the relevant data and articulate a satisfactory explanation for its action including 

a ‘rational connection between the facts found and the choice made.’” Motor Vehicle 

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983) (quoting 

Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

The primary issue on appeal is whether the AAO’s denial of appellants’ Form I918 petitions was arbitrary and capricious when it determined that appellants were

inadmissible and did not file a timely waiver application. To be eligible for a U-Visa, a 

petitioner must be “admissible to the United States,” 8 C.F.R. § 214.1(a)(3)(i), or have 

the grounds for inadmissibility waived after filing a Form I-192, id. § 214.14(c)(2)(iv). 

“Any nonimmigrant who . . . is not in possession of a passport valid for a minimum of six 

months from the date of the expiration of the initial period of the alien’s admission or 

contemplated initial period of stay . . . is inadmissible.” 8 U.S.C. § 1182(a)(7)(B)(i)(I). 

Here, it is undisputed that Aripov and Zukauskiene were ineligible because they lacked 

valid passports and therefore were required to have those grounds for inadmissibility 

waived after filing a Form I-192. Even after USCIS specifically requested this 
5

information, they failed to submit the appropriate documents. As a result, Aripov and 

Zukauskiene were ineligible for U-Visas.3

Appellants claim that the AAO’s imposition of an admissibility requirement is 

ultra vires because admissibility is only an issue at the time of admission, not during 

adjudication of U-Visa eligibility. According to appellants, requiring admissibility at the 

time of U-Visa consideration subjects applicants to a large waiver fee, even if their 

applications are subsequently denied. This prerequisite, however, is based entirely on 

statutory requirements. According to the statute, “aliens who are inadmissible . . . are 

ineligible to receive visas,” 8 U.S.C. § 1182(a), and not being in possession of a valid 

passport is a ground of inadmissibility, id. § 1182(a)(7)(B)(i)(I). Thus, the District Court 

did not err in holding that appellants were required to either produce a copy of a valid 

passport or obtain a waiver. 

Appellants also argue that the District Court erred by not considering the AAO’s 

real reason for its denial of the Form I-918 petitions: its determination that Aripov and 

Zukauskiene were not victims of a qualifying crime. But the AAO first concluded that 

Aripov and Zukauskiene were inadmissible to the United States because they did not 

possess valid passports and their Form I-192s were denied. The AAO then determined—

as an alternative basis for denying the petitions—that Aripov and Zukauskiene were not

victims of a qualifying crime. The District Court did not need to consider this alternative 

argument because the AAO could have denied Aripov and Zukauskiene’s petitions solely 

 

3 The fact that Aripov and Zukauskiene submitted Form I-192s after USCIS denied their 

petitions does not compel a different result. Once USCIS denied their petitions, it was 

futile for the agency to consider untimely Form I-192s. 
6

on the basis of inadmissibility. Accordingly, the District Court correctly held that the 

AAO’s decision was not arbitrary and capricious and therefore did not violate the APA. 

Aripov and Zukauskiene’s remaining claims also fail. A writ of mandamus cannot 

be used to compel or control a federal officer’s discretionary duties. See Heckler v. 

Ringer, 466 U.S. 602, 616-17 (1984). Since the applicable statutes provide USCIS with 

the sole discretion to determine eligibility for U-Visas, see Torres-Tristan v. Holder, 656 

F.3d 653, 656 n.3 (7th Cir. 2011), mandamus is not warranted. Similarly, Aripov and 

Zukauskiene’s due process claim fails because they are not entitled to a visa as a matter 

of right, see id., and therefore have no claim of entitlement to a liberty or property 

interest, see Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 579 (1972). 

III.

For the foregoing reasons, we will affirm the District Court’s judgment.