NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YA-WEN HSIAO, No. 19-16870
Plaintiff-Appellant, D.C. No.
1:18-cv-00502-JAO-KJM
v.
EUGENE SCALIA, in his capacity as the MEMORANDUM*
United States Secretary of Labor,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Jill Otake, District Judge, Presiding
Argued and Submitted April 14, 2020
San Francisco, California
Before: PAEZ and CLIFTON, Circuit Judges, and HARPOOL,** District Judge.
Ya-Wen Hsiao, an “alien” within the meaning of 8 U.S.C. § 1101(a)(3),
appeals the district court’s dismissal of her First Amended Complaint. Hsiao’s
First Amended Complaint sought review, pursuant to the Administrative Procedure
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
Act, 5 U.S.C. § 704, of the Department of Labor’s (“DOL”) denial of an
application for permanent employment certification. The DOL denied the
application that Hsiao’s employer, the University of Hawaii John A. Burns School
of Medicine, filed on her behalf. The district court dismissed Hsiao’s amended
complaint because it concluded she lacked Article III standing and prudential
standing to seek review of the DOL’s denial.
I. Article III Standing
A. Standard of Review
We review the district court’s grant of a motion to dismiss de novo.
Chamber of Commerce of the United States of Am. v. City of Seattle, 890 F.3d 769,
779 (9th Cir. 2018) (citing Shames v. Cal. Travel & Tourism Comm’n, 626 F.3d
1079, 1082 (9th Cir. 2010)).
B. Causation and Redressability
To establish constitutional standing, plaintiff must: 1) have an injury-in-
fact; 2) that is fairly traceable to the challenged conduct of the defendant; and 3)
can likely be redressed with a favorable decision. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). The district court held that Hsiao had alleged an
injury-in-fact from the denial of the application for permanent employment
certification, but that she could not show causation and redressability, and
therefore did not have standing to pursue her claim.
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The Immigration and Nationality Act provides a three-step process for a
noncitizen to become a permanent resident by obtaining an employment visa.
First, the alien’s employer is required to submit an Application for Permanent
Employment Certification to the DOL on behalf of the alien as the beneficiary in
the process. A certification is issued if the Secretary of Labor determines that:
I) there are not sufficient workers who are able, willing, qualified
… and available at the time of application for a visa and admission to
the United States and at the place where the alien is to perform such
skilled or unskilled labor, and
II) the employment of such alien will not adversely affect the
wages and working conditions of workers in the United States
similarly employed.
8 U.S.C. § 1182(a)(5)(A)(i). Second, if the DOL approves the labor certification,
the employer must then submit the employment certification on behalf of the alien
worker as the beneficiary of the application process through an I-140 (Immigrant
Petition for Alien Worker) with the U.S. Citizenship and Immigration Services
(“USCIS”). The employer must also submit documentation to show that the
noncitizen worker meets any educational, training and experience, or other
requirements dictated by the labor certification. 8 U.S.C. § 1153(b)(3); 8 C.F.R. §
204.5. Third, if USCIS approves the visa petition, the alien may file an I-485
Application to Register Permanent Residence or Adjust Status with the USCIS. 8
U.S.C. § 1255.
Hsiao’s First Amended Complaint alleges the DOL’s denial of the
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application for permanent employment certification has concrete and lasting effects
on her that are fairly traceable to the denial. Among other things, she is prevented
from taking the next step in the process toward obtaining permanent residency
through an employment visa and ultimately applying for citizenship.
This Court has found that an alien has standing to challenge the denial of a
petition for an immigrant visa filed on his behalf by a relative. Abboud v. I.N.S.,
140 F.3d 843 (9th Cir. 1998), superseded by statute as stated by Spencer Enters.
Inc. v. United States, 345 F.3d 683, 692 n. 5 (9th Cir. 2003). This Court held that
Abboud, the petitioner, had “lost a significant opportunity to receive an immigrant
visa when the INS denied the Relative Petition. This lost opportunity represents a
concrete injury to Abboud that is traceable to the INS’s conduct…” Id. at 847. In
Abboud, the plaintiff was the beneficiary of the visa petition filed on his behalf and
this Court found that “when a Relative Petition is filed, [t]he immigrant beneficiary
is more than just a mere onlooker; it is her own status that is at stake when the
agency takes action on a preference classification petition.” Id. (internal quotations
omitted).
Here, DOL’s denial of Hsiao’s application for permanent employment
certification also places her immigration status at stake. Hsiao lost a significant
opportunity to proceed in the three-step immigration process when the DOL denied
the application that was filed on her behalf as the beneficiary. As in Abboud,
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Hsiao’s lost opportunity represents a concrete injury to her that is traceable to the
DOL’s denial and is remediable by a favorable decision in this case. See id.
(holding plaintiff had standing to bring the claim but dismissing it for failure to
state a claim for violation of the Fifth Amendment). Hsiao has Article III standing
to pursue her claim for a review of the DOL’s denial.
II. Prudential Standing
In addition, Hsiao’s claim falls within the “zone of interests” protected or
regulated by the Immigration and Nationality Act. See Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 127 (2014). The zone of interest test is
“not meant to be especially demanding.” See Match-E-Be-Nash-She Wish Band of
Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (internal quotation
marks omitted). The Immigration and Nationality Act governs the requirements
for obtaining a labor certification for aliens. The labor certification would provide
Hsiao eligibility to work in the United States and the DOL’s regulations
specifically refer to the alien as the “beneficiary” of the application. See 20 C.F.R.
§ 656.17. Further, if Hsiao was able to successfully complete the three-step
process she would receive a visa and the opportunity to apply for adjustment of
status. As a result, Hsiao clearly falls within the zone of interests regulated by the
Act.
VACATED AND REMANDED.
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