IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40004

RONAL PORFIRIO ORDONEZ OROSCO

Petitioner-Appellant

v.

JANET NAPOLITANO, Secretary of the Department of Homeland Security;

EDUARDO LOZANO, Immigration and Customs Enforcement Officer;

UNNAMED SUPERVISORY IMMIGRATION AND CUSTOMS

ENFORCEMENT OFFICERS; and THE UNITED STATES OF AMERICA

Respondents-Appellees

Appeal from the United States District Court 

for the Southern District of Texas

Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

The Victims of Trafficking and Violence Protection Act of 2000 (VTVPA)

amended the Immigration and Nationality Act (INA) in part to create a new

type of visa, known as a “U-Visa.” VTVPA, Pub. L. No. 106-386, 114 Stat.

1464 (Oct. 28, 2000). U-Visas can be granted to victims of certain listed

crimes who later help United States law enforcement officials investigate or

prosecute those crimes. 8 U.S.C.A. § 1101(a)(15)(U)(i) (West 2005 & Supp.

2009). In order to obtain a U-Visa, an alien who was the victim of an

enumerated crime must obtain a “certification” from law enforcement officials

United States Court of Appeals

Fifth Circuit

F I L E D

March 2, 2010

Charles R. Fulbruge III

Clerk

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2

confirming that he was helpful to the investigation or prosecution of the

crime. 8 U.S.C.A. § 1184(p)(1) (West 2005). The parties in this case refer to

this certification as a “law enforcement certification,” which we abbreviate

“LEC.” 

Plaintiff-appellant, Ronal Porfirio Ordoñez Orosco (Ordoñez), sued

defendants-appellees, Janet Napolitano, Secretary of the Department of

Homeland Security, Eduardo Lozano, an officer with United States

Immigration and Customs Enforcement (ICE), unnamed supervisory ICE

officers, and the United States of America. Ordoñez sought a writ of habeas

corpus to compel the defendants to issue him an LEC under 28 U.S.C. § 2241,

as well as declaratory and injunctive relief under the Declaratory Judgment

Act, 28 U.S.C. § 2201, the Mandamus and Venue Act (Mandamus Act), 28

U.S.C. § 1361, the Federal Question Statute, 28 U.S.C. § 1331, and the

Administrative Procedures Act (APA), 5 U.S.C. § 704. Specifically, his claims

for declaratory and injunctive relief sought to enjoin the use of 8 C.F.R. §§

212.17(a) and 214(a)(14)(iii) and to enjoin the defendants from informing local

law enforcement agencies that they were not required to issue LECs on

demand. Finally, he asked the district court to certify a class action. 

The defendants moved to dismiss. The district court granted the

motion, because it found that a law enforcement agency’s decision to issue an

LEC is discretionary. Ordoñez timely appealed. For the reasons discussed

below, we affirm.

FACTS AND PROCEEDINGS BELOW

Ordoñez and his brother reentered the United States illegally in April

2007 with the help of smugglers. The smugglers abandoned the brothers on a

ranch near Falfurrias, Texas. Ordoñez’s brother died of exhaustion, exposure

to the elements, or heat stroke after the two wandered for three days. Orosco

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survived and was subsequently apprehended by officers of United States

Customs and Border Protection, whom he told about his brother’s death. 

Subsequently, he sought an LEC from multiple state, local, and federal

officials on the ground that he was a victim of trafficking who had provided

valuable information to law enforcement officials. All of the officials he

contacted refused to provide him with one.

Ordoñez filed suit against the defendants on October 3, 2007, seeking to

compel them to provide him with an LEC. The defendants moved to dismiss

for lack of subject matter jurisdiction, lack of standing, and for failure to state

a claim upon which relief could be granted. The district court found that the

decision to issue an LEC is discretionary and dismissed his claims for want of

subject matter jurisdiction and standing. We conclude, essentially for the

reasons stated by the district court in its December 8, 2008 order, that an

official’s decision whether or not to issue an LEC is discretionary.

DISCUSSION

The dispositive issue in this case is whether the decision to issue an

LEC is discretionary or mandatory. We hold that it is discretionary and that

accordingly the district court properly dismissed Ordoñez’s claims.

I. Standard of Review

We review a district court’s decision to dismiss for lack of subjectmatter jurisdiction de novo. Borden v. Allstate Ins. Co., 589 F.3d 168, 170

(5th Cir. 2009). We also review a district court’s decision to dismiss for lack of

standing de novo. Little v. KPMG, LLP, 575 F.3d 533, 540 (5th Cir. 2009). 

District courts lack subject-matter jurisdiction over claims that are wholly

insubstantial and frivolous or clearly immaterial and made solely for the

purpose of obtaining jurisdiction. Steel Co. v. Citizens for a Better

Environment, 118 S.Ct. 1003, 1010 (1998). 

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 8 U.S.C. § 1184 provides, in relevant part: 1

“§ 1184. Admission of nonimmigrants

* * *

(p) Requirements applicable to section 1101(a)(15)(U) visas

(1) Petitioning procedures for section 1101(a)(15)(U) visas

The petition filed by an alien under section 1101(a)(15)(U)(i) of

this title shall contain a certification from a Federal, State, or local

law enforcement official, prosecutor, judge, or other Federal, State, or

local authority investigating criminal activity described in section

1101(a)(15)(U)(iii) of this title. This certification may also be provided

by an official of the Service whose ability to provide such certification

is not limited to information concerning immigration violations. This

certification shall state that the alien ‘has been helpful, is being

helpful, or is likely to be helpful’ in the investigation or prosecution of

criminal activity described in section 1101(a)(15)(U)(iii) of this title. 

(2) Numerical limitations

(A) The number of aliens who may be issued visas or otherwise

provided status as nonimmigrants under section 1101(a)(15)(U) of

this title in any fiscal year shall not exceed 10,000.

(B) The numerical limitations in subparagraph (A) shall only

apply to principal aliens described in section 1101(a)(15)(U)(i) of

this title, and not to spouses, children, or, in the case of alien

children, the alien parents of such children. 

(3) Duties of the Attorney General with respect to “U” visa

nonimmigrants

With respect to nonimmigrant aliens described in subsection

(a)(15)(U) of section 1101 of this title— 

(A) the Attorney General and other government officials,

where appropriate, shall provide those aliens with referrals to

nongovernmental organizations to advise the aliens regarding

their options while in the United States and the resources

4

A district court’s certification of a class is reviewed under the abuse of

discretion standard. Shipes v. Trinity Industries, 987 F.2d 311, 316 (5th Cir.

1993). The district court has wide discretion in deciding whether or not to

certify a proposed class. Id.

II. Issuing LECs

Ordoñez argues that law enforcement agencies must automatically

issue LECs to aliens who satisfy the statutory prerequisites for receiving one. 

He contends that the language in 8 U.S.C. § 1184(p)(1), which provides that 1

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available to them; and

(B) the Attorney General shall, during the period those

aliens are in lawful temporary resident status under that

subsection, provide the aliens with employment authorization.

(4) Credible evidence considered

In acting on any petition filed under this subsection, the consular

officer or the Attorney General, as appropriate, shall consider any

credible evidence relevant to the petition.”

8 U.S.C.A. § 1184(p) (West 2005 & Supp. 2009) (emphasis in original).

 8 U.S.C. § 1101 provides, in relevant part: 2

“§ 1101. Definitions

(a) As used in this chapter— 

* * *

(15) The term ‘immigrant’ means every alien except an alien who

is within one of the following classes of nonimmigrant aliens— 

* * *

(U)(i) subject to section 1184(p) of this title, an alien who

files a petition for status under this paragraph, if the Secretary

of Homeland Security determines that—

(I) the alien has suffered substantial physical

or mental abuse as a result of having been a

victim of criminal activity described in clause

(iii);

(II) the alien . . . possesses information

concerning criminal activity described in clause

(iii);

(III) the alien . . . has been helpful, is being

helpful, or is likely to be helpful to a Federal,

State, or local law enforcement official . . . or

local authorities investigating or prosecuting

criminal activity described in clause (iii); and

(IV) the criminal activity described in clause

(iii) violated the laws of the United States or

occurred in the United States (including in

Indian country and military installations) or the

territories and possessions of the United States;

* * *

(iii) the criminal activity referred to in this clause is

that involving one or more of the following or any

similar activity in violation of Federal, State, or local

criminal law:

rape; torture; trafficking; incest; domestic

5

“[t]he petition filed by an alien under § 1101(a)(15)(U)(i) . . . shall contain a 2

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violence; sexual assault; abusive sexual contact;

prostitution; sexual exploitation; female genital

mutilation; being held hostage; peonage;

involuntary servitude; slave trade; kidnapping;

abduction; unlawful criminal restraint; false

imprisonment; blackmail; extortion;

manslaughter; murder; felonious assault;

witness tampering; obstruction of justice;

perjury; or attempt, conspiracy, or solicitation to

commit any of the above mentioned crimes; . . .”

8 U.S.C.A. § 1101(a)(15)(U) (West 2005 & Supp. 2009) (emphasis in original).

 He never explains why we should accept this premise as correct. 3

6

certification from a Federal, State, or local law enforcement official,

prosecutor, judge, or other Federal, State, or local authority,” is a mandate to

law enforcement officials to issue LECs, rather than merely an instruction to

aliens who intend to apply for U-Visas. In support of this interpretation, he

notes that subsections (p)(3) and (p)(4) of § 1184 contain mandates directed at

the Attorney General. He also argues that, because aliens have a right to

petition for a U-Visa, and because an LEC is a necessary part of a U-Visa 3

application, it follows that law enforcement officials cannot deny an alien’s

right to apply for a U-Visa by refusing to issue him an LEC. 

We disagree. We think the language of § 1184(p) makes it abundantly

clear that the decision to issue a law enforcement certification is a

discretionary one. In the first place, the portion of the statute which contains

Ordoñez’s purported mandate is entitled “Petitioning procedures for

section 1101(a)(15)(U) visas.” 8 U.S.C.A. § 1184(p)(1) (emphasis in

original). This strongly implies that all language contained therein is

directed toward the applicant of the visa. Furthermore, the content of the

LEC itself requires an exercise of discretion every time one is issued. The

LEC must state that the petitioner “‘has been helpful, is being helpful, or is

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likely to be helpful’ in the investigation or prosecution of criminal activity.” 

Id. Whether or not an alien has been “helpful” is not an objective

determination that can be made ministerially. It is especially clear that this

type of determination is discretionary where the prosecution or investigation

in question has yet to be initiated or completed, as is envisioned in the

statute’s “likely to be helpful” language, since the decision to initiate (or to

continue) an investigation or a prosecution is itself a classic example of a

discretionary decision. Therefore, the district court correctly held that the

decision to issue an LEC is discretionary.

Ordoñez’s pleadings reveal that all of his claims were grounded on his

argument that the decision to issue an LEC is mandatory. Because we find

that this argument is totally meritless, we hold that the district court did not

err in dismissing his suit. 

A plaintiff cannot represent a class of whom he is not a part. Bailey v.

Patterson, 82 S.Ct. 549, 550 (1962). Therefore, the district court also did not

err by refusing to certify a class action.

CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.

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