Pedro Perez Perez v. Chad Wolf

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PEDRO TOMAS PEREZ PEREZ, No. 18-35123
Plaintiff-Appellant,
D.C. No.
v. 2:17-cv-00249-
JLR
CHAD F. WOLF, Acting Secretary of
Homeland Security; BARBARA Q.
VELARDE, Chief of the OPINION
Administrative Appeals Office for
USCIS; MARK KOUMANS, Acting
Director of USCIS; LAURA B.
ZUCHOWSKI, Director of the USCIS
Vermont Service Center,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding

Argued and Submitted April 9, 2019
Seattle, Washington

Filed November 22, 2019

Before: William A. Fletcher, Consuelo M. Callahan,
and Morgan Christen, Circuit Judges.
2 PEREZ PEREZ V. WOLF

Opinion by Judge W. Fletcher;
Dissent by Judge Callahan

SUMMARY*

Immigration

The panel reversed the district court’s dismissal for lack
of jurisdiction of Pedro Tomas Perez Perez’s suit challenging
the denial of his U visa petition, holding that neither
§ 701(a)(2) of the Administrative Procedure Act (“APA”),
nor 8 U.S.C. § 1252(a)(2)(B)(ii) – both of which preclude
review of certain discretionary agency decisions – barred
review of Perez’s claims under the APA.

To be eligible for a U visa, a petitioner must establish that
he or she has suffered substantial physical or mental abuse
from having been a victim of qualifying criminal activity,
possesses information about that activity, and has been
helpful, is being helpful, or is likely to be helpful to an
authority investigating or prosecuting that activity. The
United States Citizenship and Immigration Service
(“USCIS”) denied Perez’s U visa petition on the ground that
he had not shown that he was a victim of a qualifying crime.
Perez challenged that decision in the district court, which
concluded that his action was not reviewable under APA
§ 701(a)(2).

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 PEREZ PEREZ V. WOLF 3

The panel held that Perez’s claims were not barred by
APA § 701(a)(2), which precludes judicial review of actions
“committed to agency discretion by law,” where there is no
judicially manageable standard by which a court can judge
how the agency should exercise its discretion. Explaining
that the relevant statutes establish the requirements for a U
visa, as well as application procedures and agency duties, the
panel concluded that the statutory framework affords
meaningful standards for reviewing claims challenging
USCIS’s compliance with that framework. Responding to the
dissent’s argument that regulations grant USCIS “sole
jurisdiction” over U visa petitions and “sole discretion” to
determine the value of evidence, the panel observed that the
statues themselves use no such language. The panel also
explained that it does not follow from the fact that USCIS has
sole jurisdiction to issue U visas that a court is without
jurisdiction to review USCIS’s decision.

Further, after sua sponte consideration, the panel held that
8 U.S.C. § 1252(a)(2)(B)(ii), which bars judicial review of
immigration decisions or actions “the authority for which is
specified under this subchapter [8 U.S.C. §§ 1151–1381] to
be in the discretion of the Attorney General or the Secretary
of Homeland Security,” does not strip the court of jurisdiction
to review Perez’s action. First, the panel explained that the
U visa statutory provisions at 8 U.S.C. §§ 1101(a)(15) and
1184(p) do not “specify” that the authority to grant or deny a
U visa petition is in the discretion of the Secretary of
Homeland Security, observing that neither provision uses the
word “discretion” or any synonym. The panel also concluded
that, even though agency regulations provide that USCIS will
determine, “in its sole discretion,” the evidentiary value of the
evidence, regulatory declarations of discretion, standing
alone, do not trigger § 1252(a)(2)(B)(ii). Second, the panel
4 PEREZ PEREZ V. WOLF

explained that the relevant statutes establish statutory
standards that constrain the Secretary’s U visa determinations
such that the determinations are not wholly discretionary.

Dissenting, Judge Callahan wrote that Congress granted
the USCIS absolute discretionary authority over U visa
decisions, and the Supreme Court prohibits this court from
reviewing decisions that Congress commits to agency
discretion. Judge Callahan concluded that the majority
opinion breached the separation of powers to arrogate the
power unto itself to review the discretionary decisions of
U visas. Further, Judge Callahan wrote that, by misapplying
the applicable statutes, by ignoring every other circuit that
has decided this issue, and by violating the proper role of the
courts, the majority opinion has opened “Pandora’s box” to
courts reviewing decisions on the approximately 250,000
U visa petitions currently pending before the USCIS.
Because this result is not required by the applicable statutes
and regulations, is unprecedented in this circuit, and contrary
to the consistent position of the court’s sister circuits, Judge
Callahan adamantly dissented.

COUNSEL

Henry Cruz (argued), Rios & Cruz P.S., Seattle, Washington,
for Plaintiff-Appellant.

Francesa M. Genova (argued), Trial Attorney; William C.
Peachey, Director, District Court Section; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Defendants-
Appellees.
 PEREZ PEREZ V. WOLF 5

OPINION

W. FLETCHER, Circuit Judge:

Pedro Tomas Perez Perez brought suit in the district court
under the Administrative Procedure Act (“APA”),
challenging the denial of his U visa petition by the United
States Citizenship and Immigration Service (“USCIS”). The
district court dismissed Perez’s action for lack of subject
matter jurisdiction. The district court held that § 701(a)(2) of
the APA precludes judicial review because U visa
determinations are “committed to agency discretion by law.”
5 U.S.C. § 701(a)(2). On appeal, Perez argues that
§ 701(a)(2) does not apply, contending that the statutory and
regulatory framework governing U visa determinations
affords “meaningful standards” for reviewing his claims.
Heckler v. Chaney, 470 U.S. 821, 834 (1985).

We hold that § 701(a)(2) does not bar judicial review of
Perez’s APA claims. We hold, further, after sua sponte
consideration, that § 1252(a)(2)(B)(ii) of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”) does not strip jurisdiction over Perez’s
action.

We reverse and remand.

I. Background

In determining whether judicial review is precluded by
§ 701(a)(2), “we consider ‘the language of the statute and
whether the general purposes of the statute would be
endangered by judicial review.’” ASSE Int’l, Inc. v. Kerry,
803 F.3d 1059, 1068 (9th Cir. 2015) (“ASSE”) (quoting
6 PEREZ PEREZ V. WOLF

Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th
Cir. 2011)). We may also consider agency regulations and
policy. Pinnacle, 648 F.3d at 719.

A. U Visa Statutory and Regulatory Framework

Congress created U nonimmigrant status as part of the
Victims of Trafficking and Violence Protection Act of 2000
(“VTVPA”). The U visa program is intended to “strengthen
the ability of law enforcement agencies to detect, investigate,
and prosecute [certain crimes] . . . against aliens, while
offering protection to victims of such offenses in keeping
with the humanitarian interests of the United States.”
VTVPA, Pub. L. No. 106-386, § 1513(a), 114 Stat.
1533(a)(2). It is also intended to “encourage law enforcement
officials to better serve immigrant crime victims and to
prosecute crimes committed against aliens” and “facilitate the
reporting of crimes to law enforcement officials by trafficked,
exploited, victimized, and abused aliens who are not in lawful
immigration status.” Id.

To be eligible for a U visa, a petitioner must establish that
he or she: (1) “has suffered substantial physical or mental
abuse as a result of having been a victim of qualifying
criminal activity”; (2) “possesses information” about
qualifying criminal activity; and (3) “has been helpful, is
being helpful, or is likely to be helpful” to an authority
“investigating or prosecuting” qualifying criminal activity.
8 U.S.C. § 1101(a)(15)(U)(i). Helpfulness may also be
assessed in connection with the “detection” of qualifying
criminal activity. 8 C.F.R. § 214.14(a)(5), (c)(2)(i).
 PEREZ PEREZ V. WOLF 7

Qualifying criminal activity is defined as criminal activity

involving one or more of the following or any
similar activity in violation of Federal, State,
or local criminal law: rape; torture;
trafficking; incest; domestic violence; sexual
assault; abusive sexual contact; prostitution;
sexual exploitation; female genital mutilation;
being held hostage; peonage; involuntary
servitude; slave trade; kidnapping; abduction;
unlawful criminal restraint; false
imprisonment; blackmail; extortion;
manslaughter; murder; felonious assault;
witness tampering; obstruction of justice;
perjury; or attempt, conspiracy, or solicitation
to commit any of the above mentioned crimes.

8 U.S.C. § 1101(a)(15)(U)(iii) (emphasis added). The phrase
“any similar activity” “refers to criminal offenses in which
the nature and elements of the offenses are substantially
similar to the statutorily enumerated list of criminal
activities.” 8 C.F.R. § 214.14(a)(9). The qualifying criminal
activity must have “violated the laws of the United States or
occurred in the United States.” 8 U.S.C.
§ 1101(a)(15)(U)(i)(IV).

To apply for a U visa, a petitioner must file with USCIS
a Form I-918, Petition for U Nonimmigrant Status. See
8 C.F.R. § 214.14 (“USCIS has sole jurisdiction over all
petitions for U nonimmigrant status.”). The petition packet
must contain the following document:

a certification from a Federal, State, or local
law enforcement official, prosecutor, judge, or
8 PEREZ PEREZ V. WOLF

other Federal, State, or local authority
investigating [qualifying] criminal activity
. . . . This certification shall state that the
alien “has been helpful, is being helpful, or is
likely to be helpful” in the investigation or
prosecution of [qualifying] criminal activity
....

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

USCIS has created a multi-part form for petitioners to use
when obtaining the required certification. USCIS refers to
the form as “Form I-918, Supplement B, ‘U nonimmigrant
Status Certification’” (“certification form”). 8 C.F.R.
§ 214.14(c)(2)(i). Parts One and Two of the form ask for
identifying information of the petitioner and the certifying
law enforcement agency. In Part Three, the certifying official
is asked to identify the qualifying criminal activity of which
the petitioner was a victim and to “describe the criminal
activity being investigated and/or prosecuted and the
involvement” of the petitioner. In Part Four, labeled
“Helpfulness of the Victim,” the certifying official is asked to
affirm or deny whether the petitioner has been, is being, or is
likely to be helpful in the investigation or prosecution of
qualifying criminal activity. If the certifying official affirms
the petitioner’s helpfulness, the official is asked to explain
that answer in a space provided on the form. The certifying
official must sign the certification form under penalty of
perjury.

In addition to Form I-918 and the certification form, the
U visa petition packet must include “a signed statement by
the petitioner describing the facts of the victimization.”
8 C.F.R. § 214.14(c)(2)(iii). The petitioner may also submit
 PEREZ PEREZ V. WOLF 9

“additional evidence” to establish U visa eligibility. 8 C.F.R.
§ 214.14(c)(2)(ii).

In acting on a petition, USCIS “shall consider any
credible evidence relevant to the petition.” 8 U.S.C.
§ 1184(p)(4). Agency regulations add that “USCIS will
determine, in its sole discretion, the evidentiary value of
previously or concurrently submitted evidence,” including the
certification form. 8 C.F.R. § 214.14(c)(4). In practice,
USCIS gives a properly executed certification form
“significant weight,” though it “will not consider such
certification to be conclusory evidence that the petitioner has
met the eligibility requirements.” 72 Fed. Reg. 53014, 53024
(Sept. 17, 2007).

“If USCIS determines that the petitioner has met the
requirements for U-1 nonimmigrant status, USCIS will
approve Form I-918.” 8 C.F.R. § 214.14(c)(5)(i). “For a
petitioner who is within the United States, USCIS also will
concurrently grant U-1 nonimmigrant status, subject to the
annual [10,000 U visa cap].” Id. “All eligible petitioners
who, due solely to the cap, are not granted U-1 nonimmigrant
status must be placed on a waiting list.” 8 C.F.R.
§ 214.14(d)(2). Petitioners on the waiting list are granted
deferred action or parole while waiting for additional U visas
to become available. Id. Once petitioners receive a U visa,
they may apply for permanent resident status after three years
of continued physical presence in the United States as a
U nonimmigrant, provided they have not “unreasonably
refused to provide assistance in a criminal investigation or
prosecution.” 8 U.S.C § 1255(m)(1).

Regulations provide that if USCIS denies a petitioner’s
Form I-918, Petition for U Nonimmigrant Status, “USCIS
10 PEREZ PEREZ V. WOLF

will provide written notification to the petitioner of the
reasons for the denial.” 8 C.F.R. § 214.14(c)(5)(ii). “The
petitioner may appeal a denial of Form I-918 to the
Administrative Appeals Office (AAO)[.]” Id.

B. Factual and Procedural Background

Perez is a citizen of Mexico who resides in Washington
State. On January 10, 2012, Perez reported to police that he
was being harassed. He told the investigating officer that the
harassers were two individuals to whom he had lent a total of
roughly $50,000 and from whom he was requesting
repayment. The officer’s report states that, according to
Perez, one of the individuals threatened to “place Perez in jail
if he keeps asking for his money back” and told Perez “he
would make him disappear.” The officer wrote in his report
that these threats “were not defined enough for me to file
harassment charges.” Perez later applied for and received
temporary anti-harassment orders against the individuals.
The orders were dismissed after the individuals could not be
served.

On July 10, 2013, Perez petitioned for U nonimmigrant
status under 8 U.S.C. § 1101(a)(15)(U). Perez’s petition
package contained his I-918 Form and completed certification
form, as well as supplemental materials including the above
described police report and Perez’s anti-harassment order
petition. The certification form, which was completed by the
Commander of the Investigations Division of the Renton
Police Department, indicates that Perez was the victim of
“harassment” under Wash. Rev. Code § 9A.46.020 between
August 2009 and October 2011. In the box that asks the
certifying official to “describe the criminal activity being
investigated and/or prosecuted and the involvement of the
 PEREZ PEREZ V. WOLF 11

individual,” the Commander wrote: “This was an
informational case and no charges were filed. Description
was harassment 9A.46.020 as noted by the officer.” In the
box labeled “Helpfulness of the victim,” the Commander
wrote:

Perez did make an informational police report
and requested an anti harassment order. He
received a temporary order on 1/17/2012. On
1/31/2012 the order was dismissed, defendant
was not able to be served, petitioner may
return to refile when def. is located. The
description of the informational report was
noted as 9A.46.020 Harassment.

USCIS denied Perez’s U visa petition. The denial letter
states, “The evidence, as presented, does not establish that
you have been a victim of qualifying criminal activity.” The
letter explains that Perez “did not provide sufficient evidence
to prove that [the] crime of harassment is similar to a
[qualifying crime].” Perez appealed to the AAO. On appeal,
Perez argued that the harassment to which he was subject
“involved and/or was similar to felonious assault [which is a
qualifying crime] . . . because it involved a threat to kill him
that placed him in apprehension of harm.” The AAO denied
Perez’s appeal. It concluded, “There is no evidence in the
record that the certifying agency detected or investigated an
attempted or actual felonious assault or any other qualifying
crime. The Petitioner has not shown that any crime other
than harassment was detected or investigated by the law
enforcement agency.”

On October 28, 2015, Perez filed a motion to reconsider
with the AAO. He argued that the harassment in his case was
12 PEREZ PEREZ V. WOLF

not just simple harassment, but felony harassment under
Washington law because it involved a threat “to kill [him]”
that “by words or conduct” placed him “in reasonable fear
that the threat will be carried out.” WASH. REV. CODE
§§ 9A.46.020(1)(a)–(b), (2)(b)(ii) (2011). He further argued
that the Washington police had “at least detected felony
harassment,” even if they did not further investigate that
crime. Finally, Perez argued that felony harassment
“involves or is substantially similar to” the qualifying crime
of felony assault, and that the agency therefore erred when it
concluded that Washington police had not detected a
qualifying crime in Perez’s case. The AAO denied the
motion to reconsider. It concluded that “while felony
harassment and/or felonious assault may have also occurred,
there is no indication that the certifying agency actually
detected or investigated those offenses.” Further, it
concluded that even if felony harassment had been detected,
such harassment is not “substantially similar” to felony
assault under Washington law.

On February 17, 2017, Perez brought suit in the federal
district court challenging the denial of his U visa petition.
His complaint contains several claims under the APA,
5 U.S.C. § 706(2). Specifically, Perez claims that the agency
acted contrary to statute by “fail[ing] to consider all credible
evidence,” erred in concluding that “felony harassment does
not constitute a qualifying criminal activity,” and made a
finding unsupported by substantial evidence when it
concluded “that felony harassment was not detected by law
enforcement.”

After the parties filed cross-motions for summary
judgment, the district court dismissed Perez’s action for lack
of subject matter jurisdiction. The district court concluded
 PEREZ PEREZ V. WOLF 13

that Perez’s action was not reviewable under the APA
because of the APA’s exception for “agency action [that] is
committed to agency discretion by law.” 5 U.S.C.
§ 701(a)(2). The district court determined that § 701(a)(2)
applies because “[i]n the U-visa context, there is no judicially
manageable standard by which a court can judge how USCIS
should exercise its discretion.”

Perez timely appealed. We have jurisdiction under
28 U.S.C. § 1291. “We review de novo the district court’s
dismissal for lack of subject matter jurisdiction.” Tritz v. U.S.
Postal Serv., 721 F.3d 1133, 1136 (9th Cir. 2013).

II. Discussion

“The default rule is that agency actions are reviewable
under federal question jurisdiction, pursuant to 28 U.S.C.
§ 1331 . . . even if no statute specifically authorizes judicial
review.” ANA Int’l, Inc. v. Way, 393 F.3d 886, 890 (9th Cir.
2004) (“ANA”). The APA reinforces this presumption of
judicial reviewability by “confer[ring] a general cause of
action upon persons ‘adversely affected or aggrieved by
agency action within the meaning of a relevant statute[.]’”
Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984)
(quoting 5 U.S.C. § 702).

The presumption in favor of judicial review of final
agency action “is overcome only in two narrow
circumstances.” Pinnacle, 648 F.3d at 719. The first is
“when Congress expressly bars review by statute.” Id. (citing
5 U.S.C. § 701(a)(1); Bd. of Governors of Fed. Reserve Sys.
v. MCorp Fin., Inc., 502 U.S. 32, 44 (1991)). The second is
in the “‘rare instances where statutes are drawn in such broad
terms that in a given case there is no law to apply,’ thereby
14 PEREZ PEREZ V. WOLF

leaving the court with ‘no meaningful standard against which
to judge the agency’s exercise of discretion.’” Id. (quoting
Webster v. Doe, 486 U.S. 592, 599 (1988); Chaney, 470 U.S.
at 830). The APA reflects these two exceptions. Review
under the APA is unavailable when “statutes preclude judicial
review,” 5 U.S.C. § 701(a)(1), and when the “agency action
is committed to agency discretion by law,” id. at § 701(a)(2).

The district court dismissed Perez’s action as
unreviewable under § 701(a)(2) after concluding that “there
is no judicially manageable standard by which a court can
judge how USCIS should exercise its discretion.” The first
issue on appeal is whether the U visa statutory and regulatory
framework furnishes meaningful standards by which to
review Perez’s claims under the APA. The second issue,
which we raise sua sponte, is whether IIRIRA’s jurisdiction-
stripping provision, codified at 8 U.S.C. § 1252(a)(2)(B)(ii),
precludes judicial review.

A. § 701(a)(2) of the APA

Section 701(a)(2) of the APA precludes judicial review of
agency actions “committed to agency discretion by law.”
5 U.S.C. § 701(a)(2). We “read the exception in § 701(a)(2)
quite narrowly.” Weyerhaeuser Co. v. U.S. Fish & Wildlife
Serv., 139 S. Ct. 361, 370 (2018). We must decide whether
§ 701(a)(2) precludes judicial review of the denial of Perez’s
U visa petition by USCIS.

In Spencer Enterprises, Inc. v. United States, 345 F.3d
683 (9th Cir. 2003) (“Spencer”), we decided the closely
related issue of whether § 701(a)(2) precludes judicial review
of the denial of an EB-5 immigrant investor visa petition by
the Immigration and Naturalization Service (“INS”). We
 PEREZ PEREZ V. WOLF 15

began our analysis with the principle that § 701(a)(2) applies
only in the “rare instances” where “the statute is drawn so
that a court would have no meaningful standard against which
to judge the agency’s exercise of discretion.” Spencer,
345 F.3d at 688 (quoting Chaney, 470 U.S. at 830). We then
turned to the “statutory framework” governing immigrant
investor visas. We held that there are “meaningful standards
by which to review INS’s action” because the agency’s visa
determination “is guided by the statutory requirements of the
EB 5 program set out in § 1153(b)(5).” Id. In the case now
before us, we engage in the same analysis and reach the same
result as in Spencer.

1. The “No Meaningful Standard” Standard

In several immigration cases, we have held that there are
meaningful standards of review and have declined to apply
§ 701(a)(2). See ASSE, 803 F.3d at 1068 (holding that agency
regulations provide a meaningful standard by which to review
the State Department’s sanctioning of a third-party program
sponsor participating in the Exchange Visitor Program);
Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 893 (9th Cir.
2018) (holding that the factors enumerated in a precedential
Board of Immigration Appeals (“BIA”) decision provide a
“sufficiently meaningful standard” by which to evaluate the
denial of a request for administrative closure); Taslimi v.
Holder, 590 F.3d 981, 986 (9th Cir. 2010) (holding that there
is a meaningful standard by which to review whether a
petitioner has filed for asylum within a “reasonable period”
after changed circumstances because agency regulations
“provide a non-exhaustive list of potential changed
circumstances” and require the IJ to “consider an applicant’s
delayed awareness of changed circumstances”).
16 PEREZ PEREZ V. WOLF

Only where there is truly “no law to apply” have we
found an absence of meaningful standards of review.
Spencer, 345 F.3d at 688 (quoting Chaney, 470 U.S. at 830).
In Ekimian v. INS., 303 F.3d 1153 (9th Cir. 2002), for
example, we held that we could not review the BIA’s refusal
to reopen deportation proceedings sua sponte because,
although the BIA allowed for reopening in “exceptional
situations,” no statute, regulation, or case law defined
“exceptional situations.” Id. at 1156–59. We later clarified
that we may review BIA decisions denying sua sponte
reopening “for the limited purpose of reviewing the reasoning
behind the decisions for legal or constitutional error” because
in that instance there is “law to apply.” Bonilla v. Lynch,
840 F.3d 575, 588 (9th Cir. 2016). Similarly, in Idrees v.
Barr, 923 F.3d 539 (9th Cir. 2019), we held that the BIA’s
decision not to certify Idrees’s ineffective assistance of
counsel claim was unreviewable, absent a claim of
constitutional or legal error, because the BIA had not
“elaborated on which circumstances are considered to be
exceptional and thus sufficient to merit certification.” Id.
at 542–43.

Our non-immigration cases addressing § 701(a)(2) engage
in the same analysis. In Hyatt v. Office Management &
Budget, 908 F.3d 1165 (9th Cir. 2018), for example, we
considered the Paperwork Reduction Act (“PRA”), which
directs the Office of Management and Budget (“OMB”) to
“take two distinct actions when it receives a petition to
determine whether an individual is legally obligated to
respond to a collection of information.” Id. at 1174. The
agency must (1) respond within 60 days with a determination
of whether the individual is obligated to provide the
information; and (2) take “appropriate remedial action, if
necessary.” 44 U.S.C. § 3517(b). We held that the first
 PEREZ PEREZ V. WOLF 17

action is reviewable because “the standards for making such
a determination are specified by the PRA,” but that the
second action is “committed to the agency’s discretion”
because “[t]here is no express standard in the PRA to guide
the OMB in determining whether any particular remedy is
either ‘appropriate’ or ‘necessary.’” Hyatt, 908 F.3d at 1174.

“[T]he mere fact that a statute contains discretionary
language does not make agency action unreviewable.” Beno
v. Shalala, 30 F.3d 1057, 1066 (9th Cir. 1994). As long as
there is a “meaningful standard against which to judge the
agency’s exercise of discretion,” judicial review is available.
Chaney, 470 U.S. at 830. Indeed, inherently discretionary
standards may themselves be sufficiently meaningful to
support judicial review for abuse of discretion. See ASSE,
803 F.3d at 1071 (“Section 701(a)(2) . . . has never been
thought to put all exercises of discretion beyond judicial
review. Indeed, ‘the APA itself commits final agency
action[s] to our review for ‘abuse of discretion.’”) (quoting
Pinnacle, 648 F.3d at 720). In fact, courts routinely treat
discretion-laden standards as providing “law to apply.” See
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 411 (1971), abrogated on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977) (holding that § 701(a)(2) does
not preclude judicial review of agency determination that a
“feasible and prudent alternative” was lacking); Pac. Nw.
Generating Co-op. v. Bonneville Power Admin., 596 F.3d
1065, 1077 (9th Cir. 2010) (holding that the statutory
requirement to operate in a manner “consistent with sound
business principles” provided a meaningful standard of
review); City of Los Angeles v. U.S. Dep’t of Commerce,
307 F.3d 859, 869 n.6 (9th Cir. 2002) (holding that a statute
requiring the Secretary to use statistical sampling “if he
considers it feasible” provided a meaningful standard by
18 PEREZ PEREZ V. WOLF

which to review the Secretary’s decision not to use
sampling); Newman v. Apfel, 223 F.3d 937, 943 (9th Cir.
2000) (holding that § 701(a)(2) does not preclude review of
the Commissioner’s interpretation and application of the
statutory terms “reliable” and “currently available”); Beno,
30 F.3d at 1067 (9th Cir. 1994) (holding that an agency
determination that a waiver is “likely to assist in promoting
the objectives” of a benefits program is reviewable because
the program’s objectives are “set forth with some specificity”
in the statute); Cty. of Esmeralda v. U.S. Dep’t of Energy,
925 F.2d 1216, 1217–19 (9th Cir. 1991) (holding that
although the Nuclear Waste Policy Act specified no factors
for deciding whether to designate a county near the Yucca
Mountain nuclear waste repository an “affected unit of local
government,” a judicially manageable standard “readily
presents itself” because a court can consider whether the
Secretary “meaningfully consider[ed]” the impact on the
county); Keating v. FAA, 610 F.2d 611, 612 (9th Cir. 1979)
(holding that an agency’s charge to grant exemptions “in the
public interest” provided a standard that was sufficiently
meaningful for judicial review).

These cases demonstrate how rarely there is no
“meaningful standard against which to judge the agency’s
exercise of discretion.” Chaney, 470 U.S. at 830. They also
demonstrate that there are meaningful standards to apply in
this case. As in Spencer, we need look no further than the
governing statutes.

2. Meaningful Standards in the U Visa Statutory
Framework

As noted above, U visa determinations are governed by
8 U.S.C. § 1101(a)(15)(U) and § 1184(p). Section
 PEREZ PEREZ V. WOLF 19

1101(a)(15)(U) provides that a petitioner is eligible for a
U visa if the petitioner (1) has suffered “substantial physical
or mental abuse” as a result of having been a victim of
qualifying criminal activity; (2) “possesses information”
about qualifying criminal activity; and (3) “has been helpful,
is being helpful, or is likely to be helpful” to an authority
“investigating or prosecuting” qualifying criminal activity.
8 U.S.C. § 1101(a)(15)(U)(i). Section 1184(p) establishes
application procedures for U visa petitioners, including the
requirement that they obtain “a certification from a Federal,
State, or local law enforcement official, prosecutor, judge, or
other Federal, State, or local authority investigating criminal
activity.” 8 U.S.C. § 1184(p)(1). It also establishes agency
duties, including the duty to “consider any credible evidence
relevant to the petition.” 8 U.S.C. § 1184(p)(3)–(4). This
statutory framework affords “meaningful standards” for
reviewing claims challenging USCIS’s compliance with that
framework.

Our dissenting colleague disagrees. The dissent points
out that regulations grant USCIS “sole jurisdiction” over
U visa petitions and “sole discretion” to determine the value
of petitioner evidence. See 8 C.F.R. §§ 214.14(c)(1),
214.14(c)(4). But the statutes, which are distinct from the
regulations, use no such language. See Spencer, 345 F.3d
at 688 (“[W]e need not look to regulations or agency practice
because the statutory framework provides meaningful
standards by which to review INS’s action.”). Further, and
more important, it does not follow from the fact that USCIS
is the agency with “sole jurisdiction” to issue U visas that a
court is without jurisdiction to review USCIS’s decision. As
will be explained in more detail below, an agency’s sole
discretionary authority is not inconsistent with judicial review
of the agency’s exercise of that discretion.
20 PEREZ PEREZ V. WOLF

The dissent relies on language in 8 U.S.C.
§ 1101(a)(15)(U)(i), which provides that the “Secretary of
Homeland Security determines” whether an alien meets the
substantive requirements of the U visa program. (Emphasis
added.) However, unreviewable discretion does not
necessarily follow from an agency’s “determination.” Some
determinations are governed by strict criteria. Others are not.
Even if a determination is discretionary, it may still be rooted
in a set of requirements or standards, as the statutes here set
forth. See, e.g., Spencer, 345 F.3d at 688 (“Although
8 U.S.C. § 1154(b) instructs that the Attorney General should
‘determine’ whether the facts alleged by the visa petitioner
are true and whether the petitioner is eligible for a visa under
§ 1153(b)(5), this determination is guided by the statutory
requirements of the EB 5 program set out in § 1153(b)(5).”)

Finally, the dissent argues that language in 8 U.S.C.
§ 1184(p)(2)(A), which states that no more than 10,000 aliens
“may be issued” U visas in any fiscal year, is evidence of
unreviewable discretion. This provision is a limit on the
number of U visas that can be issued in a given year. It says
nothing about the criteria for determining eligibility for a
visa.

In short, the statutory framework provides meaningful
standards under which to review the exercise of USCIS’s
authority to issue U visas. The conclusion that there are
meaningful standards, however, does not necessarily end an
inquiry in a particular case. “In deciding whether agency
action is committed to agency discretion by law, it is not
significant that there may be law, in the abstract, that could
possibly be applied.” Ariz. Power Auth. v. Morton, 549 F.2d
1231, 1239–40 (9th Cir. 1977) (citing Strickland v. Morton,
519 F.2d 467, 470 & n.4 (9th Cir. 1975)). “Instead, we must
 PEREZ PEREZ V. WOLF 21

determine whether in this particular case there is any specific
law to apply.” Id. In other words, “it is only in the context of
[Perez’s] complaint that we can determine if there is law to be
applied in the instant case.” Strickland, 519 F.2d at 470.

Moreover, “the existence of judicial review is only the
start: the standard for review must also be determined” and
“[f]or that we must look to § 706 of the [APA].” Volpe,
401 U.S. at 413. Under the APA, our review is limited to
assessing whether a U visa determination “was arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law”; in violation of a statutory, procedural,
or constitutional requirement; or unsupported by “substantial
evidence.” 5 U.S.C. § 706(2)(A)–(E).

3. Perez’s APA claims

Perez makes three principal claims under the APA. First,
he claims that USCIS acted contrary to law because it
“fail[ed] to consider all credible evidence.” In particular,
Perez argues that USCIS failed to consider his anti-
harassment order petition and relevant parts of the police
report, which he claims show “that the suspect made threats
against [his] life.” The statutory mandate that USCIS
“consider any credible evidence relevant to the petition,”
8 U.S.C. § 1184(p)(4), provides a meaningful standard by
which to review this claim. The standard of review to be
applied to this question on remand is whether USCIS acted
contrary to § 1184(p)(4) or in a manner that was “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A), (C).

Second, Perez claims that USCIS’s “determination that
felony harassment does [not] constitute qualifying criminal
22 PEREZ PEREZ V. WOLF

activity is contrary to the plain language of the statute.” That
language provides that a qualifying crime must “involv[e]” an
enumerated criminal activity or “any similar activity.”
8 U.S.C. §1101(a)(15)(U)(iii). Perez argues that USCIS
made a mistake of law because felony harassment “involves”
the enumerated crime of felonious assault and because USCIS
“misinterpreted [Washington] state law on felony harassment
and felony assault” when it concluded that felony harassment
is not “substantially similar” to felonious assault. The
statutory definition of qualifying criminal activity at 8 U.S.C.
§ 1101(a)(15)(U)(iii), the accompanying regulation at
8 C.F.R. § 214.14(a)(9), and Washington state law provide
meaningful standards for reviewing this claim of legal error.

The standard of review on this is not entirely clear. The
general rule under the APA is that a “reviewing court shall
decide all relevant questions of law, interpret constitutional
and statutory provisions, and determine the meaning or
applicability of the terms of an agency action.” 5 U.S.C.
§ 706. But § 706 “does not specify the standard of review a
court should use in ‘determin[ing] the meaning’ of an
ambiguous rule.” Kisor v. Wilkie, 139 S.Ct. 2400, 2419
(2019) (plurality opinion) (alteration in original); see also
Chrysler Corp. v. U.S. Envtl. Prot. Agency, 631 F.2d 865, 884
(D.C. Cir. 1980) (“Although this court has the duty under the
[APA] to ‘decide all relevant questions of law,’ we recognize
that the special expertise of [the agency] in interpreting the
legislation which it is called upon to administer requires that
we defer to the judgment of the Agency where that judgment
is reasonable and is consistent with the language and purpose
of the legislation.”) (citation omitted). We thus leave it for
the district court to determine, in the first instance, the
standard of review to apply on remand, including whether
Chevron or Auer deference is appropriate. See Chevron,
 PEREZ PEREZ V. WOLF 23

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
842–44 (1984); Auer v. Robbins, 519 U.S. 452, 461 (1997);
Kisor, 139 S. Ct. at 2422–23 (upholding Auer deference);
Campos-Hernandez v. Sessions, 889 F.3d 564, 568–69 (9th
Cir. 2018) (discussing both Chevron and Auer deference).

Third, Perez claims that USCIS’s factual finding that
“felony harassment was not detected by law enforcement”
was erroneous. The government argues that we cannot
review its factual findings because its regulations provide that
“USCIS will determine, in its sole discretion, the evidentiary
value of previously or concurrently submitted evidence,
including [the certification form].” 8 C.F.R. § 214.14(c)(4)
(emphasis added). We rejected a similar argument in ASSE.
We explained that

where [the agency] has reserved to itself . . .
certain decisions as within its ‘discretion,’ . . .
or even its ‘sole discretion,’ . . . we will take
into account the [agency’s] reservation and
expertise and accord it the proper deference.
But that does not deprive us of the right to
review its actions for an abuse of its
discretion or to determine if its actions were
otherwise arbitrary and capricious.

803 F.3d at 1071 (citations omitted) (emphases added).

The same standard of review applies to this question. In
reviewing a decision of the USCIS, the court should give due
deference to the agency’s expertise. But to the extent the
petitioner challenges USCIS’s decision under §706(2)(A), a
court can review it, as appropriate, under the deferential
standards of “abuse of discretion” or “substantial evidence.”
24 PEREZ PEREZ V. WOLF

See ASSE, 803 F.3d at 1072 (“‘[A]s a practical matter, the
arbitrary and capricious standard incorporates the substantial
evidence test,’ and we use that test for review of agency
factfinding in informal proceedings as well.”) (quoting
Ursack Inc. v. Sierra Interagency Black Bear Grp., 639 F.3d
949, 958 n.4 (9th Cir. 2011)). “[S]ubstantial evidence means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. (quoting Bonnichsen
v. United States, 367 F.3d 864, 880 n.19 (9th Cir. 2004)).
Review for substantial evidence is generally confined to a
review of the administrative record, which in this case
includes Perez’s U visa petition packet and the agency’s
decisions denying Perez’s petition. See Volpe, 401 U.S.
at 420; see also 5 U.S.C. § 706 (“[T]he court shall review the
whole record or those parts of it cited by a party[.]”).

B. § 1252(a)(2)(B)(ii) of the IIRIRA

When Congress enacted IIRIRA in 1996, it replaced the
judicial review scheme of the Immigration and Nationality
Act with a more restrictive scheme, codified at 8 U.S.C.
§ 1252. See Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 475 (1999). Section 1252(a)(2)(B)
provides:

(B) Denials of discretionary relief

Notwithstanding any other provision of law
(statutory or nonstatutory) . . . and regardless
of whether the judgment, decision, or action is
made in removal proceedings, no court shall
have jurisdiction to review—
 PEREZ PEREZ V. WOLF 25

(i) any judgment regarding the granting of
relief under section 1182(h) [waiver of
inadmissibility based on certain criminal
o ffens es], 1182(i ) [ wai ver of
inadmissability based on fraud or
misrepresentation], 1229b [cancellation of
removal], 1229c [permission for voluntary
departure], or 1255 [adjustment of status]
of this title, or

(ii) any other decision or action of the
Attorney General or the Secretary of
Homeland Security the authority for
which is specified under this subchapter
[8 U.S.C. §§ 1151–1381] to be in the
discretion of the Attorney General or the
Secretary of Homeland Security, other
than the granting of relief under section
1158(a) of this title [relating to asylum].

8 U.S.C. § 1252(a)(2)(B) (alterations and emphases added).
We must decide whether clause (ii) strips us of jurisdiction to
review Perez’s action. That is, we must decide whether the
authority to deny a U visa is specified to be in the discretion
of the Attorney General or the Secretary of Homeland
Security, in the sense required to trigger § 1252(a)(2)(B)(ii).

We interpreted § 1252(a)(2)(B)(ii) in Spencer. We
concluded that § 1252(a)(2)(B)(ii) applies only if two
conditions are met. First, “the language of the statute in
question must provide the discretionary authority.” 345 F.3d
at 689. Second, the statute must provide “pure discretion,
rather than discretion guided by legal standards.” Id. at 690.
In other words, “if the statutory provision granting the
26 PEREZ PEREZ V. WOLF

Attorney General power to make a given decision also sets
out specific standards governing that decision, the decision is
not ‘in the discretion of the Attorney General.’” ANA,
393 F.3d at 892. We held in Spencer that § 1252(a)(2)(B)(ii)
does not preclude judicial review of EB 5 immigrant investor
visa determinations because 8 U.S.C. § 1153(b)(5), which
grants the Attorney General authority to “determine” a
petitioner’s eligibility for such a visa, establishes standards
that the Attorney General must following when making that
determination. 345 F.3d at 691–92.

The Supreme Court’s decision in Kucana v. Holder,
558 U.S. 233 (2010), reinforces our interpretation of
§ 1252(a)(2)(B)(ii) in Spencer. The issue in Kucana was
whether § 1252(a)(2)(B)(ii) applies to “determinations
declared discretionary by the Attorney General himself
through regulation.” Id. at 237. The Court held that
§ 1252(a)(2)(B)(ii) applies “only when Congress itself set out
the Attorney General’s discretionary authority in the statute.”
Id. at 247. The Court did not directly address the related
question of what kind of statutory language triggers
§ 1252(a)(2)(B)(ii). But the Court made several observations
that support Spencer’s answer to that question. First, the
Court explained that § 1252(a)(2)(B)(ii) “speaks of authority
‘specified’—not merely assumed or contemplated—to be in
the Attorney General’s discretion,” and that “‘[s]pecified’ is
not synonymous with ‘implied’ or ‘anticipated.’” Id. at 243
n.10. Second, the Court provided three examples of statutory
provisions to which § 1252(a)(2)(B)(ii) applies:
“§ 1157(c)(1) (discretion to admit refugees ‘determined to be
of special humanitarian concern to the United States’);
§ 1181(b) (discretion to waive requirement of documentation
for readmission); § 1182(a)(3)(D)(iii) (discretion to waive, in
certain cases, inadmissibility of aliens who have affiliated
 PEREZ PEREZ V. WOLF 27

with a totalitarian party).” Id. at 248. All three provisions
satisfy both Spencer conditions for unreviewable discretion.
Each contains language committing an action or decision to
the “discretion” or “satisfaction” of the Attorney General, and
none provides the Attorney General with statutory standards
that constrain that action or decision. See, e.g., 8 U.S.C.
§ 1157(c)(1) (“[T]he Attorney General may, in the Attorney
General’s discretion and pursuant to such regulations as the
Attorney General may prescribe, admit any refugee who is
not firmly resettled in any foreign country, is determined to
be of special humanitarian concern to the United States, and
is admissible[.]”). Third, the Court emphasized that the
“presumption favoring judicial review of administrative
action” should guide courts’ interpretation of
§ 1252(a)(2)(B)(ii). Kucana, 558 U.S. at 251. It takes “clear
and convincing evidence” of a contrary congressional intent
to dislodge this presumption. Id. at 252.

Applying Spencer to the case before us, we conclude for
two reasons that § 1252(a)(2)(B)(ii) does not preclude judicial
review. First, the U visa statutory provisions at 8 U.S.C.
§§ 1101(a)(15)(U) and 1184(p) do not “specify” that the
authority to grant or deny a U visa petition is in the discretion
of the Secretary of Homeland Security. In fact, neither
§ 1101(a)(15)(U) nor § 1184(p) uses the word “discretion” or
any synonym. Agency regulations provide that “USCIS will
determine, in its sole discretion, the evidentiary value of
previously or concurrently submitted evidence.” 8 C.F.R.
§ 214.14(c)(4). But regulatory declarations of discretion,
standing alone, do not trigger § 1252(a)(2)(B)(ii). Kucana,
558 U.S. at 237 (“We hold that the key words ‘specified
under this subchapter’ refer to statutory, but not to regulatory,
specifications.”). Second, both § 1101(a)(15)(U) and
§ 1184(p) establish statutory standards that constrain the
28 PEREZ PEREZ V. WOLF

Secretary’s U visa determinations. As detailed above, these
statutes prescribe eligibility criteria, application procedures,
and agency duties, all of which guide the Secretary’s
determination whether to grant or deny U visa petitions.
U visa determinations are thus not “wholly discretionary” as
required by Spencer, and § 1252(a)(2)(B)(ii) does not bar
review of Perez’s action.

The dissent calls attention to our recent decision in
Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019), where we
held that § 1252(a)(2)(B)(ii) precludes review of USCIS
decisions to deny a national-interest waiver. Contrary to the
contention of the dissent, Poursina supports our decision in
this case. First, Poursina underscores that it is the governing
statutes that should guide our analysis, rather than USCIS
regulations that purport to grant the agency “sole discretion”
to the agency. See id. at 871 (“[I]t is not enough that a
decision is discretionary. . . ; instead, Congress must state
that the government has such discretion.”) (Emphasis in
original.) Second, the statute in this case differs from that in
Poursina. There, the statute provided that “the Attorney
General may, when the Attorney General deems it to be in the
national interest, waive the requirement[] . . . that an alien’s
services in the sciences, arts, professions, or business be
sought by an employer in the United States.” 8 U.S.C.
§ 1153(b)(2)(B)(i). We held that the “invocation of the
‘national interest’ is a core example of a consideration that
lacks a judicially manageable standard of review,” as it calls
for “broader economic and national-security considerations.”
Poursina, 936 F.3d at 871, 874. We further noted that
USCIS’s interpretation of the statute, which established a
framework analyzing “substantial merit,” “national
importance,” and “benefit[s] to the United States,” id. at 874
(quoting In re Dhanasar, 26 I. & N. Dec. 884, 889 (USCIS
 PEREZ PEREZ V. WOLF 29

AAO 2016)), imposed “no such thing” as “objective criteria”
on USCIS’s discretion. Id. By comparison, the statute in this
case mandates specific eligibility requirements, application
procedures, and agency duties. See 8 U.S.C.
§§ 1101(a)(15)(U)(i), 1101(a)(15)(U)(iii), 1184(p)(1)–(4).

The dissent also cites two unpublished decisions to
suggest that we have already determined that we lack
jurisdiction to review U visa denials. Not only are these cases
not binding. They are also inapposite. In the first, Eun
Kyeong Seo v. Holder, 358 F. App’x 884 (9th Cir. 2009), we
held that we “lack[ed] jurisdiction over [USCIS’s]
determinations regarding U Visas.” However, for this
proposition, we cited Ramirez Sanchez v. Mukasey, 508 F.3d
1254 (9th Cir. 2007) (per curiam), in which we remanded to
the BIA to consider new regulatory guidance for the issuance
of U visas. We said nothing in Ramirez Sanchez about our
jurisdiction to review a decision denying a U visa. In the
second, Chang Young Jung v. Holder, 393 F. App’x 530 (9th
Cir. 2010), we held that we lacked jurisdiction over challenge
to a U visa denial because the challenge had not been made
in the district court. We did not address our jurisdiction to
review a properly made challenge.

Finally, the dissent expresses concern that today’s
decision “opens the proverbial floodgates.” This fear is
exaggerated. The vast majority of U visa petitions are
granted. Every fiscal year since 2010, USCIS has approved
an average of about 10,000 U visa petitions. In that same
time period, it annually denied an average of about
2,400 petitions. An unknown fraction of those denials will be
appealed. See USCIS, Number of Form I-918, Petition for U
Nonimmigrant Status by Fiscal Year, Quarter, and Case
Status (FY 2009–2019), available at http://www.uscis.gov/s
30 PEREZ PEREZ V. WOLF

ites/default/files/USCIS/Resources/Reports%20and%20Stu
dies/Immigration%20Forms%20Data/Victims/I918u_visast
atistics_fy2019_qtr2.pdf (last visited Sept. 20, 2019).

Conclusion

We hold that 8 U.S.C. § 1101(a)(15)(U) and 8 U.S.C.
§ 1184(p) provide meaningful standards by which to review
USCIS’s denial of Perez’s U visa, and that 8 U.S.C.
§ 1252(a)(2)(B)(ii) does not strip federal courts of jurisdiction
to review that decision. We remand to the district court to
allow it to apply those standards in this case.

REVERSED and REMANDED.

CALLAHAN, Circuit Judge, dissenting:

Congress, in creating “U nonimmigrant status” or
“U visas,” vested with the Secretary of Homeland Security
sole jurisdiction over U visas, sole discretion in determining
the evidentiary value of the certification forms accompanying
a U visa petition, and absolute discretion in deciding whether
to grant (or deny) U visa petitions and whether to
subsequently revoke U visa status. The Supreme Court has
recognized that where Congress commits decisions to agency
discretion, with “no meaningful standard” for judicial review,
we cannot review such decisions. Heckler v. Chaney,
470 U.S. 821, 830 (1985).

The majority, however, in misconstruing § 1252 of the
INA and § 701 of the APA and ignoring the consistent
opinions of our sister circuits, plunges us into the standardless
 PEREZ PEREZ V. WOLF 31

review of thousands of discretionary decisions by the
Secretary of Homeland Security. The majority opinion
devalues the separation of powers and creates a circuit split
by venturing into the forbidden territory of permitting judicial
review over the discretionary denials of U visas. The
majority opinion opens the proverbial floodgates to courts
reviewing the USCIS’s decision on the approximately
250,000 U visa petitions,1 as well as possibly other visa
petitions currently pending before the USCIS seeking
discretionary relief.

Because the majority opinion’s arrogation of power unto
itself is wrong, I adamantly dissent. Because the district
court properly understood the judiciary’s exclusion from
reviewing discretionary agency decisions as prescribed by
Congress, I would affirm the district court’s dismissal for
lack of jurisdiction.

I.

In 2000, Congress created a limited discretionary category
allowing certain aliens who would not otherwise be permitted
to remain in the United States to stay and even pursue a
pathway to permanent residence. This new category (known
as “U nonimmigrant status” or “U visa”) provides certain
aliens with nonimmigrant status under section 1101(a)(15)(U)
of the Immigration and Nationality Act (“INA”). Congress’s
purpose behind “creat[ing] a new nonimmigrant visa

1
USCIS, Number of Form I-918, Petition for U Nonimmigrant Status
by Fiscal Year, Quarter, and Case Status (FY 2009–2019), available at
https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20
and%20Studies/Immigration%20Forms%20Data/Victims/I918u_visasta
tistics_fy2019_qtr2.pdf (last visited Aug. 29, 2019).
32 PEREZ PEREZ V. WOLF

classification” was to “strengthen the ability of law
enforcement agencies to detect, investigate, and prosecute
cases of domestic violence, sexual assault, trafficking of
aliens, and other crimes,” while also “offering protection to
victims of such offenses in keeping with the humanitarian
interests of the United States.” H.R. REP. NO. 106-939, at 72
(2000) (Conf. Rep.); Victims of Trafficking & Violence
Protection Act of 2000 (“VTPA”), Pub. L. No. 106-386,
§ 1513(a), 114 Stat. 1533–37 (2000). The U visa was created
with a particular focus on women and children who,
according to Congress’s findings, “are often targeted to be
victims of crimes committed against them in the United
States.” H.R. REP. NO. 106-939, at 71. Because alien victims
may not have legal status and may be reluctant to report being
victims to a crime or to help in the investigation or
prosecution of criminal activity due to fear of removal,
Congress “[p]rovid[ed] temporary legal status to aliens who
have been severely victimized by criminal activity” in order
to “comport[] with the humanitarian interests of the United
States.” Id. at 72. Congress emphasized that “this section
gives the Attorney General discretion to convert the status of
such nonimmigrants to that of permanent residents when
doing so is justified on humanitarian grounds, for family
unity, or is otherwise in the public interest.” Id.

To be eligible for a U visa, a nonimmigrant alien must
meet the following four statutory requirements:

(I) the alien has suffered substantial physical
or mental abuse as a result of having been a
victim of criminal activity described in clause
(iii);
 PEREZ PEREZ V. WOLF 33

(II) the alien (or in the case of an alien child
under the age of 16, the parent, guardian, or
next friend of the alien) possesses information
concerning criminal activity described in
clause (iii);

(III) the alien (or in the case of an alien child
under the age of 16, the parent, guardian, or
next friend of the alien) has been helpful, is
being helpful, or is likely to be helpful to a
Federal, State, or local law enforcement
official, to a Federal, State, or local
prosecutor, to a Federal or State judge, to the
Service, or to other Federal, State, or local
authorities investigating or prosecuting
criminal activity described in clause (iii); and

(IV) the criminal activity described in clause
(iii) violated the laws of the United States or
occurred in the United States (including in
Indian country and military installations) or
the territories and possessions of the United
States[.]

8 U.S.C. § 1101(a)(15)(U)(i). Subsection (iii) sets forth the
types of “criminal activity . . . or any similar activity in
violation of Federal, State, or local criminal law” required to
support a U visa application.2 8 U.S.C. § 1101(a)(15)(U)(iii).

2
The type of serious criminal activity that Congress specified to
justify providing temporary (and even permanent) residency to certain
aliens who would not otherwise be permitted to remain in the United
States include: “rape; torture; trafficking; incest; domestic violence; sexual
assault; abusive sexual contact; prostitution; sexual exploitation; stalking;
34 PEREZ PEREZ V. WOLF

Congress presumably specified particularly serious and
violent crimes with the intent to protect “severely victimized”
aliens. H.R. REP. NO. 106-939, at 72. Relevant to Perez, a
qualifying criminal activity under the statute includes
“felonious assault.” Id.

In a U visa petition, the petitioner must include a Form
I-918, Supplement B (“the certification”), which is:

[A] certification from a Federal, State, or local
law enforcement official, prosecutor, judge, or
other Federal, State, or local authority
investigating criminal activity described in
section 1101(a)(15)(U)(iii) of this title. . . .
This certification shall state that the alien “has
been helpful, is being helpful, or is likely to
be helpful” in the investigation or prosecution
of criminal activity described in section
1101(a)(15)(U)(iii) of this title.

8 U.S.C. § 1184(p)(l); see also 8 C.F.R. § 214.14(c)(2)(i).

USCIS is the agency responsible for determining,
adjudicating, and revoking U visas. See New Classification
for Victims of Criminal Activity; Eligibility for “U”
Nonimmigrant Status, 72 Fed. Reg. 53,014 (Sept. 17, 2007)

female genital mutilation; being held hostage; peonage; involuntary
servitude; slave trade; kidnapping; abduction; unlawful criminal restraint;
false imprisonment; blackmail; extortion; manslaughter; murder; felonious
assault; witness tampering; obstruction of justice; perjury; fraud in foreign
labor contracting (as defined in section 1351 of Title 18); or attempt,
conspiracy, or solicitation to commit any of the above mentioned
crimes[.]” 8 U.S.C. § 1101(a)(15)(U)(iii).
 PEREZ PEREZ V. WOLF 35

(to be codified at 8 C.F.R. pt. 103, 212).3 “USCIS has sole
jurisdiction over all petitions for U nonimmigrant status.”
8 C.F.R. § 214.14(c)(1). USCIS will “determine, in its sole
discretion, the evidentiary value of previously or concurrently
submitted evidence, including Form I-918, Supplement B,
‘U Nonimmigrant Status Certification.’” 72 Fed. Reg.
53,038. Section 1184(a)(1) “authorizes the Secretary of
Homeland Security to prescribe, by regulation, the time and
conditions of admission of any nonimmigrant” and “[i]mplicit
in this authority is the authority to prescribe the conditions
under which nonimmigrant status may be revoked.” 72 Fed.
Reg. 53,030.

II.

Perez asserts that he was harassed in violation of
Washington State law, Wash. Rev. Code § 9A.46.020 (2011),
by two individuals to whom Perez had lent money. Perez told
the reporting officer with the Renton Police Department that
one individual “threatened to place Perez in jail if he keeps
asking for his money back”; he told Perez “he would make
him disappear”; and Perez “was scared that [the individual]
might do something to him.” However, according to the
reporting officer, these allegations “were not defined enough
for me to file harassment charges.” In fact, on the
certification form that accompanied his U visa petition, the
Commander wrote: “This was an informational case and no

3
Congress enacted the Violence Against Women and Department of
Justice Reauthorization Act of 2005, directing the Security of Homeland
Security to promulgate regulations implementing, inter alia, section 1513
of VTVPA (codified at 8 U.S.C. § 1184(p)(l)). As a result, USCIS
published an Interim Rule to govern the creation of U nonimmigrant
status. See 72 Fed. Reg. 53,014.
36 PEREZ PEREZ V. WOLF

charges were filed.” Additionally, the Commander noted that
Perez presented “no known physical injury.” In denying
Perez’s U visa petition, USCIS stated in the notification
letter: “You have not established your eligibility for the
desired classification and [USCIS] cannot reach a favorable
decision.” Perez had argued that he was a victim of
“harassment,” which even though it is not an enumerated
qualifying crime under the statute, he alleged “involved
and/or was similar to felonious assault,” which is an
enumerated qualifying crime. The USCIS, however,
explained that Perez did not qualify as a victim of a
“qualifying criminal activity”:

As proof to satisfy this requirement, you
submitted a copy of an [sic] temporary anti-
harassment order that was unable to be served.
On March 25, 2014, you were requested to
submit additional evidence to demonstrate
that the crime, harassment; would be
considered a crime related to those listed in
regulation. You responded on June 18, 2014,
with a letter from your attorney but you did
not provide sufficient evidence to prove that
your crime of harassment is similar to a
certified crime listed on the Supplement B.

You were also requested in your request for
evidence letter that was sent to you on
March 25, 2014, to provide a supplement B
that was dated within six (6) months of the
date of the petition. You responded with a
letter from your attorney on June 18, 2014 but
did not provide a new Supplement B signed
within the regulation time requirements.
 PEREZ PEREZ V. WOLF 37

The evidence, as presented, does not establish
that you have been a victim of qualifying
criminal activity. The record does not contain
satisfactory evidence to establish your
eligibility under this requirement.

On appeal, the Administrative Appeals Office (“AAO”)
found that Perez did not establish that he was a victim of a
qualifying crime and thus dismissed the appeal. Perez
asserted that even though the Renton Police Department listed
on the certification that the alleged crime was one of
“harassment,” he was actually a victim of “felony
harassment,” which involves or is substantially similar to
“felony assault,” an enumerated qualifying crime. The AAO
explained, “the nature and elements of the harassment offense
must be substantially similar to one of the qualifying criminal
activities in the statutorily enumerated list” and the “inquiry,
therefore, is not fact-based, but rather entails comparing the
nature and elements of the statutes in question.” In
comparing the statutes of harassment under Wash. Rev. Code
§ 9A.46.0204 and of felonious assault, the AAO concluded

4
Under Washington law, “[a] person is guilty of harassment if:

(a) Without lawful authority, the person knowingly
threatens:

(i) To cause bodily injury immediately or in the
future to the person threatened or to any other
person; or

(ii) To cause physical damage to the property of a
person other than the actor; or

(iii) To subject the person threatened or any other
person to physical confinement or restraint; or
38 PEREZ PEREZ V. WOLF

that “[n]o elements of harassment under Wash. Rev. Code
§§ 9A.46.020 are similar to felonious assault under Wash.
Rev. Code §§ 9A.36.011, 9A.36.021, and 9A.36.031.”5

(iv) Maliciously to do any other act which is
intended to substantially harm the person
threatened or another with respect to his or her
physical or mental health or safety; and

(b) The person by words or conduct places the person
threatened in reasonable fear that the threat will be
carried out. “Words or conduct” includes, in addition
to any other form of communication or conduct, the
sending of an electronic communication.

Wash. Rev. Code § 9A.46.020(1). Felony harassment, under the same
statute, requires, inter alia, that a person harasses another person “by
threatening to kill the person threatened or any other person.” Wash. Rev.
Code § 9A.46.020(2)(b)(ii).
5
In identifying statutory elements, the AAO looked to Washington
common law:

Assault is not defined by Washington law, so
Washington courts apply the common law definition of
assault in criminal cases. Clark v. Baines, 84 P.3d 245,
247 n.3 (Wash. 2004). Three common law definitions
of criminal assault are recognized in Washington:
“(1) an attempt, with unlawful force, to inflict bodily
injury upon another; (2) an unlawful touching with
criminal intent; and (3) putting another in apprehension
of harm whether or not the actor intends to inflict or is
capable of inflicting that harm.” Id. (quoting State v.
Walden, 841 P.2d 81, 83 (Wash. Ct. App. 1992)).
Felonious assault under the Washington Criminal Code
involves an assault with a deadly weapon or that causes
bodily injury. See Wash. Rev. Code Ann.
§§ 9A.36.011 and 9A.36.021. Felonious assault in
Washington also includes assault against certain
 PEREZ PEREZ V. WOLF 39

The AAO further rejected Perez’s assertion that he
suffered felonious assault—based on the argument that the
harassment “involved a threat to kill him that placed him in
apprehension of harm”—finding that Perez did not allege
anything other than “harassment” in his U visa petition.
Nothing in his U visa petition indicates that felony
harassment was the basis of his Form I-918 Supplement B.
In assessing the elements of the crime that he actually
asserted (i.e., harassment), the AAO found that there was no
evidence in the record to support a finding that Perez was a
victim of any qualifying criminal activity.

Perez filed a motion to reconsider the AAO’s decision,
which was denied on the basis that he “has not demonstrated
that he was a victim of qualifying criminal activity.” First,
the AAO found that “the record as a whole does not establish
that the certifying agency detected or investigated felony
harassment,” but rather the only crime listed on the
certification form was “harassment, which is a gross
misdemeanor under Washington law and is not an
enumerated offense under section 101(a)(15)(U)(iii) of the
Act.” The AAO next found that even if felony harassment
had been detected by the Renton Police Department, Perez
“has not demonstrated that it is substantially similar to the
qualifying criminal activity of felonious assault.” Based on
a comparison of the statutes in question (not a fact-based
inquiry), the AAO concluded:

The statutory elements of felony harassment
under Wash. Rev. Code section

protected classes and assault with intent to commit a
felony. Wash. Rev. Code Ann. §§ 9A.36.021 and
9A.36.031.
40 PEREZ PEREZ V. WOLF

9A.46.020(2)(b)(ii) . . . involve[] the
communication of a threat to kill and placing
the threatened person in reasonable fear that
the threat will be carried out through words or
conduct. However, felony assault does not
require a communication of a threat for a
conviction. State v. Mandanas, 262 P.3d 522,
526–27 (Wash. Ct. App. 2011). Additionally,
a felony harassment conviction does not
require an added aggravating factor beyond
the threat, such as the use of a weapon or
commission of the offense with the intention
to commit a felony. Moreover, contrary to
[Perez]’s assertions on motion, Washington
case law indicates that a plain reading of the
harassment and assault statutes shows that the
state legislature “intended to distinguish
felony harassment and second degree assault
as distinct offenses.” Mandanas, 262 P.3d
at 526–27.[] In fact, the Mandanas court
specifically held that second degree assault
and harassment had different elements. Id.
at 526.

Perez filed an APA suit in the United States District Court
for the Western District of Washington against the Secretary
of Homeland Security, the Acting Director of the USCIS, and
others, alleging the denial of his U visa was erroneous
because: the Renton Police Department at least “detected”
that he was a victim of felony harassment; he demonstrated
that the detected felony harassment involved felonious
assault; the agencies failed to consider credible and material
evidence; and he could establish eligibility for a U visa. The
parties filed cross motions for summary judgment.
 PEREZ PEREZ V. WOLF 41

In dismissing the action for lack of subject matter
jurisdiction, the district court concluded that this case fell into
the APA § 701(a)(2)’s exclusion from judicial review of an
agency’s discretionary decision. The court noted: “USCIS
has ‘sole jurisdiction’ over U-visa petitions and ‘sole
discretion’ to determine the evidentiary value of the
petitioner’s evidence when ruling on a petition,” and “U-visa
determinations are ‘committed to USCIS’ discretion by law.’”
The court found, “[i]n the U-visa context, there is no
judicially manageable standard by which a court can judge
how USCIS should exercise its discretion.” The court
recognized the legal landscape of this issue in our circuit:

In the Ninth Circuit, courts “lack[] jurisdiction
over the [USCIS’] determinations regarding
U Visas.” Seo v. Holder, 358 F. App’x 884
(9th Cir. 2009) (citing Ramirez Sanchez v.
Mukasey, 508 F.3d 1254, 1555–56 (9th Cir.
2007) (per curiam)). In addition, a district
court within this Circuit recently surveyed U-
visa cases and could not find “any federal
court that has exercised jurisdiction over
questions of a Petitioner’s eligibility for a U-
Visa.” Nsinano v. Sessions, 236 F. Supp. 3d
1133, 1137 (N.D. Cal. 2017). Although Mr.
Perez provided a number of cases generally
supporting judicial review under the APA, he
did not offer any cases where a court reviewed
the agency’s U-visa determination. (See Pl.
Opp. & Reply (Dkt. #27) at 3–7.).

The court thus held that the USCIS’s denial of Perez’s
petition was not subject to judicial review, and dismissed the
42 PEREZ PEREZ V. WOLF

administrative appeal for lack of subject matter jurisdiction.
Perez timely appealed.

III.

We review de novo a district court’s dismissal for lack of
subject matter jurisdiction. Yu-Ling Teng v. District Director,
U.S. Citizenship & Immigration Servs., 820 F.3d 1106, 1108
(9th Cir. 2016).

IV.

Congress’s intent in creating a new nonimmigrant
category was to vest to the USCIS the absolute discretionary
authority over U visas with sole jurisdiction over U visa
petitions, with sole discretion to determine the evidentiary
value of the petitioner’s evidence when ruling on a petition,
and with the adjudicative authority in determining whether to
grant or deny a U visa and whether to subsequently revoke
such status. To restrict USCIS’s discretionary authority by
allowing courts to review U visa decisions would not only
contradict Congress’s intent, but would breach the separation
of powers by allowing courts to venture into the forbidden
legislative territory. This conclusion is compelled by
§ 701(a)(2) of the APA and § 1252(a)(2)(B)(ii) of the INA,
which preclude judicial review of discretionary U visa
decisions.

A.

Section 701(a)(2) of the APA precludes judicial review of
agency decisions where the agency action is “committed to
agency discretion by law.” 5 U.S.C. § 701(a)(2); see also
Heckler, 470 U.S. at 830. The Supreme Court has recognized
 PEREZ PEREZ V. WOLF 43

that a decision is committed to agency discretion by law when
“the statute is drawn so that a court would have no
meaningful standard against which to judge the agency’s
exercise of discretion.” Heckler, 470 U.S. at 830; see also
Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th
Cir. 2011) (citations omitted). The statutory and regulatory
U visa frameworks provide no judicially manageable standard
by which a court can judge how USCIS should exercise its
discretion in reviewing the denial of U visas. The applicable
U visa statutes are 8 U.S.C. §§ 1101(a)(15)(U) and § 1184(p).

Section 1101(a)(15)(U)—the statutory definition of
U nonimmigrant status—prescribes that an alien may be
eligible for nonimmigrant status if “the Secretary of
Homeland Security determines” that the alien has met the
enumerated requirements. 8 U.S.C. § 1101(a)(15)(U)(i). The
fact that Congress left to the Secretary of Homeland Security
the power to determine who qualifies for this type of
nonimmigrant status evinces Congressional intent that the
agency is vested with the decision-making discretion. While
this section defines who may qualify for a U visa, it does not
compel or restrict any action by USCIS and does not specify
how USCIS should evaluate the U visa petitions, qualifying
crimes, substantial physical or mental abuse, or helpfulness
requirements. Rather, the determination is left to USCIS’s
judgment. The statute provides no “meaningful standard” for
defining the limits of that discretion. Heckler, 470 U.S.
at 830.

Similarly, section 1184(p)—the governing procedural
requirements applicable to U visas—states that “the petition
filed by an alien under section 1101(a)(15)(U)(i) of this title”
must be accompanied by a certification from law enforcement
that provides that the alien “has been helpful, is being helpful,
44 PEREZ PEREZ V. WOLF

or is likely to be helpful” in the investigation or prosecution
of qualifying criminal activity. 8 U.S.C. § 1184(p)(1). This
subsection does not provide a standard “for judging how and
when an agency should exercise its discretion” in granting or
denying a U visa. Heckler, 470 U.S. at 830. Moreover, the
statute uses language that requires an exercise of discretion in
determining how many aliens “may be issued”
U nonimmigrant status each year. 8 U.S.C. § 1184(p)(2)(A)
(emphasis added). Critically, by limiting the number of
U visas that may be issued to 10,000 annually, Congress
intended the granting and denying of U nonimmigrant status
to be purely discretionary. It is unreasonable to suggest that
Congress intended the courts to dictate how the Secretary of
Homeland Security manages the limited number of U visas
that she is authorized to grant.

The only controls Congress placed on the Secretary of
Homeland Security’s discretion in administering U visas were
duties to: (1) provide qualifying aliens with referrals to
nongovernmental organizations to advise the aliens regarding
their options and resources available to them while in the
United States; (2) provide the qualifying alien with
employment authorization while in lawful temporary resident
status; and (3) consider any credible evidence relevant when
acting on the petition. 8 U.S.C. § 1184(p)(3), (4). However,
the first two requirements arise only after the alien has been
determined to be a qualifying alien, a decision Congress left
to the Secretary of Homeland Security. And the latter
requirement is a blanket authorization of discretionary
authority to consider “any credible [and] relevant” evidence
when “acting on any petition filed under this subsection.” Id.
§ 1184(p)(4) (emphasis added). The statute does not specify
how the agency should determine what evidence is credible
and relevant, nor does it prescribe a limit to the discretion.
 PEREZ PEREZ V. WOLF 45

Instead “just as with the initial adjudication of Form I-918,
the determination of what is relevant evidence and the weight
to be given to that evidence will be within the sole discretion
of USCIS.” 72 Fed. Reg. 53,031 (emphasis added).

In sum, nothing in the applicable U visa
statutes—§§ 1101(a)(15)(U) or 1184(p)—indicates how the
USCIS should make its decision to grant or deny a U visa.
Absent a reference to, let alone a specification on, how the
agency should utilize its discretionary authority, the statutes
fail to provide a judicially manageable standard and thus
preclude judicial review.

The applicable U visa regulations reinforce that the
agency has discretion over U visa application and that there
are no judicially manageable standards. An alien’s eligibility
for U nonimmigrant status is expressly contingent upon the
USCIS’s determination of the evidentiary value of materials
submitted and USCIS’s determination that the petitioner has
met the requirements for U visa status. See 8 C.F.R.
§ 214.14(b) (making an alien’s eligibility for a U visa
contingent upon demonstrating “all of the following in
accordance with paragraph (c) of this section”).
Paragraph (c) provides that: “USCIS has sole jurisdiction
over all petitions for U nonimmigrant status”; an alien’s
eligibility for a U visa is based on being a victim of a
qualifying crime; “USCIS will determine, in its sole
discretion, the evidentiary value” of the alien’s petition
materials, “including Form I-918, Supplement B,
‘U Nonimmigrant Status Certification’”; and “[i]f USCIS
determines that the petitioner has met the requirements for
U-1 nonimmigrant status, USCIS will approve the Form
I-918.” See 8 C.F.R. §§ 214.14(c)(1)–(5) (emphasis added).
46 PEREZ PEREZ V. WOLF

Nothing in the regulation dictates that USCIS must grant
a U visa or even explains when USCIS must grant a
U visa—it describes only when an alien is eligible to apply
and leaves the decision to grant or deny with the USCIS.
Like the applicable INA statutory provisions, nothing in the
regulations describes how USCIS should evaluate the
evidence when exercising its discretion in granting or denying
a U visa. Absent a standard “for judging how and when an
agency should exercise its discretion” or “for defining the
limits of that discretion” in granting or denying a U visa, the
decision is “committed to agency discretion by law” and thus
is not judicially reviewable. Heckler, 470 U.S. at 830,
834–35.

B.

I have no quarrel with the majority’s sua sponte
questioning of jurisdiction under § 1252(a)(2)(B)(ii) of the
INA. Maj. Op. at 5; Spencer Enters., Inc. v. United States,
345 F.3d 683, 687 (9th Cir. 2003) (stating that this Court has
a “duty to consider subject matter jurisdiction sua sponte in
every case”). However, review of § 1252(a)(2)(B)(ii)
discloses no meaningful standard for judicial review. Unlike
the APA analysis, the jurisdictional inquiry is governed by
the statutes only, and not the regulations. See Spencer,
345 F.3d at 691 (evaluating whether § 1252(a)(2)(B)(ii)
prescribes judicially manageable standards requires that
“such standards must be found in the statutes” and that
“regulations or agency practice will not make the decision
reviewable”).

Section 1252(a)(2)(B)(ii) provides that “no court shall
have jurisdiction to review . . . any other decision or action of
the Attorney General or the Secretary of Homeland Security
 PEREZ PEREZ V. WOLF 47

the authority for which is specified under this subchapter to
be in the discretion of the Attorney General or the Secretary
of Homeland Security . . . .” For the discretionary decision to
strip the court of jurisdiction, (1) the “discretionary authority
[must] be ‘specified’ under the INA” meaning “the language
of the statute in question must provide the discretionary
authority”; and (2) “the ‘authority [must] be in the discretion
of the Attorney General,’” which means having “the power to
act ‘according to [one’s] own understanding and
conscience.’” Spencer, 345 F.3d at 689–90 (last alteration in
original) (emphasis omitted).

As noted, the applicable U visa statutes—INA’s
§§ 1101(a)(15)(U) and 1184(p)—give the USCIS discretion
in granting or denying an alien’s petition for a U visa. The
USCIS “determines” whether to grant or deny a U visa and is
limited in how many U visas “may be issued” to 10,000
annually. 8 U.S.C. §§ 1101(a)(15)(U) and 1184(p)(2)(A)
(emphasis added). This statutory language “specifie[s]”
discretionary authority. Spencer, 345 F.3d at 689; see also
Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 346
(2005) (finding that Congress’s use of “may”—rather than
“must” or “shall”—brings along the usual presumption of
discretion); Poursina v. United States Citizenship &
Immigration Servs., 936 F.3d 868, 873 (9th Cir. 2019)
(finding that “Congress use[s] a wide range of language to
commit decisions to the government’s discretion,” even if it
chooses not to expressly use the word “discretion”). Because
the U visa determination is not dictated by any statutorily
prescribed legal standard, but rather measures the “power to
act . . . within [the Secretary of Homeland Security’s]
judgment,” it is a “matter[] of pure discretion.” Spencer,
345 F.3d at 690.
48 PEREZ PEREZ V. WOLF

Both Perez’s and the majority’s reliance on Spencer
Enterprises is misplaced. In Spencer Enterprises, we held
that neither the APA nor § 1252(a)(2)(B)(ii) barred review of
USCIS’s denial of an investor visa under §§ 1153(b)(5) and
1154(b) of the INA because the applicant’s investor visa was
not left solely to USCIS’s discretion. 345 F.3d 683, 688–91
(2003). Rather, we relied on the language of §§ 1153(b)(5)
and 1154(b), both of which mandated the granting of visas
once the qualifying criteria were satisfied. 8 U.S.C.
§ 1153(b)(5)(A) (stating that “[v]isas shall be made
available” to qualifying immigrants) (emphasis added); id.
§ 1154(b) (stating that the Attorney General “shall . . .
approve the petition” upon determining that the petitioner is
eligible) (emphasis added). We concluded that, by mandating
the agency to issue the investor visas, Congress did not leave
the decision to the discretion of the agency.

In contrast, the applicable U visa statutes in Perez’s case,
§§ 1101(a)(15)(U) and 1184(p), do not reflect a similar
mandate from Congress. Rather, for U visa status, “an alien
. . . files a petition for status under this subparagraph, [and]
the Secretary of Homeland Security determines” whether the
alien satisfies the enumerated elements of the statute, and
Secretary of Homeland Security “may . . . issue[]” only
10,000 U visas annually. 8 U.S.C. §§ 1101(a)(15)(U) and
1184(p) (emphasis added). Unlike the mandatory issuing of
investor visas, the granting or denying of U visas rests
entirely within the USCIS’s discretion, and thus, is not
judicially reviewable.

Although we have not published on this issue, our
unpublished decisions agree that our court lacks jurisdiction
to review USCIS’s denial of U visa petitions. See, e.g., Eun
Kyeong Seo v. Holder, 358 F. App’x 884 (9th Cir. 2009)
 PEREZ PEREZ V. WOLF 49

(“This court lacks jurisdiction over [USCIS] determinations
regarding U visas.”); Chang Young Jung v. Holder, 393 F.
App’x 530 (9th Cir. 2010) (“We lack jurisdiction to review
[USCIS].”).

Moreover, we recently issued an analogous decision that
Ҥ1252(a)(2)(B)(ii) strips federal courts of jurisdiction to
review USCIS’s decisions to deny a national-interest waiver.”
Poursina, 936 F.3d at 873. It is difficult to square the
majority’s approach here with our opinion in Poursina. The
provision at issue in Poursina, which requires that the
Attorney General determine whether a waiver was in “the
national interest,” allows for more “meaningful standards”
than may be gleaned from the majority’s opinion.6 In
addition, the opinion in Poursina recognized that “Congress’s
use of ‘may’—rather than ‘must’ or ‘shall’—brings along the
usual presumption of discretion.” Id. at 871. Of course, there
are differences between Perez’s case and Poursina, but
Poursina is not fairly read as supporting the majority’s
opinion.

6
USCIS had set forth that an alien seeking a national-interest waiver
must show:

(1) that the foreign national’s proposed endeavor has
both substantial merit and national importance; (2) that
the foreign national is well positioned to advance the
proposed endeavor; and (3) that, on balance, it would
be beneficial to the United States to waive the
requirements of a job offer and thus of a labor
certification.

Matter of Dhanasar, 26 I. & N. Dec. 884, 889 (2016). Nonetheless, we
held that such a determination remained discretionary and not subject to
judicial review.
50 PEREZ PEREZ V. WOLF

Moreover, decisions by the Fifth, Seventh, Eleventh, and
D.C. Circuits also hold that courts lack jurisdiction to review
U visa petitions. See Torres-Tristan v. Holder, 656 F.3d 653,
659 (7th Cir. 2011) (“[J]udicial review in the circuit courts of
appeals of U visa denials . . . would appear to be
unprecedented. Our decisions reflect a longstanding practice
of not reviewing visa denials in general”); L.D.G. v. Holder,
744 F.3d 1022, 1024 (7th Cir. 2014) (“[T]he decision whether
to grant a U Visa is statutorily committed to the discretion of
the Secretary of Homeland Security, see 8 U.S.C.
§ 1101(a)(15)(U), and is exercised through USCIS . . . .”);
Bejarano v. Homeland Sec. Dep’t, 300 F. App’x 651, 653
(11th Cir. 2008) (affirming district court’s finding that it
lacked subject matter jurisdiction to review denial of U visa
petition because “jurisdiction over the grant or denial of a
U visa . . . rests with [USCIS], and any decision by the
certifying official to sign or decline to sign the status
certification is discretionary”); Semiani v. United States,
575 F.3d 715 (D.C. Cir. 2009) (“Congress has not provided
for judicial review of decisions to deny a ‘U-visa’ pursuant to
8 U.S.C. § 1101(a)(15)(U).”); Ordonez Orosco v. Napolitano,
598 F.3d 222, 226 (5th Cir. 2010) (finding that “the language
of § 1184(p) makes it abundantly clear that the decision to
issue a law enforcement certification [when applying for a
U visa] is a discretionary one” and thus concluding that the
district court correctly dismissed for lack of jurisdiction).

It is our general rule to decline to create a circuit split
unless there is a compelling reason to do so. Padilla-Ramirez
v. Bible, 882 F.3d 826, 836 (9th Cir. 2017), citing Kelton
Arms Condo. Owners Ass’n, Inc. v. Homestaead Ins. Co.,
346 F.3d 1190, 1192 (9th Cir. 2003). Perez’s case does not
present such a reason.
 PEREZ PEREZ V. WOLF 51

V.

Indeed, Perez’s case is a particularly unsuitable vehicle
for expanding the judiciary’s review of denials of U visas. As
noted by the majority, Perez’s complaint alleged that the
agency (1) failed to consider all credible evidence, (2) erred
in concluding that “felony harassment does not constitute a
qualifying criminal activity,” and (3) made an unsupported
finding in concluding that “felony harassment was not
detected by law enforcement.” Maj. op. at 12. First, there is
simply nothing to support the allegation that the agency did
not consider all the evidence Perez proffered. Second, as
noted, there are substantial differences between the
“harassment” alleged by Perez and criminal harassment under
Washington law. See infra at 37–40. Third, the record not
only supports, but compels, the conclusion that “felony
harassment was not detected by law enforcement.” The
record shows that Perez alleges that he loaned money to two
individuals and that when he requested repayment they
threatened him. He then reported this to the police and
sought an anti-harassment order. But the police determined
that the alleged threats were not definite enough to support
the filing of harassment charges and the anti-harassment
order was dismissed because the defendant was not able to be
served. In sum, the only evidence that Perez “suffered
substantial physical or mental abuse as a result of having been
a victim of criminal activity,” or had been helpful to
authorities “investigating or prosecuting criminal activity,”
see 8 U.S.C. § 1101(a)(15)(U)(i), is his unsupported
allegation of harassment which the local police chose not to
investigate. If courts had any jurisdiction to review the denial
of Perez’s U visa, it is clear that under any standard of review
the Secretary’s denial would be affirmed.
52 PEREZ PEREZ V. WOLF

VI.

Congress granted the USCIS absolute discretionary
authority over U visa decisions. The Supreme Court prohibits
us from reviewing decisions that Congress commits to agency
discretion. The majority opinion breaches the separation of
powers between our branches of government to arrogate the
power unto itself to review the discretionary decisions of
U visas. By misapplying the applicable statutes, by ignoring
every other circuit that has decided this issue before us, and
by violating the proper role of courts in our government, the
majority opinion opens “Pandora’s box” to courts reviewing
the USCIS’s decision of the approximately 250,000 U visa
petitions currently pending before the USCIS seeking
discretionary relief. This is not required by the applicable
statutes and regulations, is unprecedented in our circuit, and
contrary to the consistent position of our sister circuits.
Because I would affirm the district court’s dismissal for lack
of subject matter jurisdiction, I dissent.