Zixiang Li v. John F. Kerry

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ZIXIANG LI; JUN LI; JUN GUO ; No. 11-35412
SHIBAO ZHANG ; MING CHANG , on
behalf of themselves as individuals D.C. No.
and on behalf of others similarly 2:10-cv-00798-
situated, RAJ
Plaintiffs-Appellants,

v. OPINION

JOHN F. KERRY ,* Secretary of State;
UNITED STATES OF AMERICA ; JANET
A. NAPOLITANO , Secretary of
Department of Homeland Security;
ALEJANDRO MAYORKAS, Director of
Citizenship and Immigration
Services; DEPARTMENT OF
HOMELAND SECURITY ; UNITED
STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding

*
John F. Kerry is substituted for his predecessor, Hillary Rodham
Clinton, as Secretary of State. Fed. R. App. P. 43(c)(2).
2 LI V . KERRY

Argued and Submitted
July 9, 2012—Seattle, Washington

Filed March 20, 2013

Before: Stephen Reinhardt, Andrew J. Kleinfeld,
and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Reinhardt

SUMMARY**

Immigration

The panel affirmed the district court’s dismissal as moot
of plaintiffs’ complaint alleging that defendants misallocated
immigrant visas to eligible applicants in the employment-
based third preference category (EB-3) during fiscal years
2008 and 2009.

The panel held that the district court properly dismissed
the complaint because there is no live case or controversy
about the establishment of visa cut-off dates, and the
allocation of visa numbers, in the 2008 and 2009 fiscal years.
The panel also held that the district court did not err in
dismissing the claims for prospective relief, because plaintiffs
did not allege that defendants failed to take discrete actions
they were legally required to take.

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

Judge Reinhardt, concurring, joined fully in the majority’s
affirmance of the dismissal. Judge Reinhardt wrote
separately to note the importance of the significant problem
with this country’s system of issuing immigrant visas that
plaintiffs identify, and to suggest that the opinion should not
be viewed as approving of the misallocation of Immigrant
visas that plaintiffs describe.

COUNSEL

Robert Pauw (argued), Gibbs Houston Pauw, Seattle,
Washington, for Plaintiffs-Appellants.

Tony West, Elizabeth J. Stevens, Aaron S. Goldsmith
(argued), United States Department of Justice, Office of
Immigration Litigation, Washington, D.C., for Defendants-
Appellees.

OPINION

M. SMITH, Circuit Judge:

Plaintiffs-Appellants, certain individuals from China
seeking permanent residency in the United States, appeal
from the district court’s dismissal of their claims under the
Immigration and Nationality Act (INA) against federal
Defendants-Appellees.1 In their complaint, Plaintiffs allege

1
Plaintiffs-Appellants are Zixiang Li, Jun Li, Jun Guo, Shibao Zhang,
and Ming Chang (collectively, Plaintiffs). Defendants-Appellees are John
F. Kerry, United States of America, Janet A. Napolitano, Alejandro
4 LI V . KERRY

that Defendants misallocated immigrant visas to eligible
applicants in the employment-based third preference category
(EB-3) during the 2008 and 2009 fiscal years. Plaintiffs
request that visa numbers be made available to them and
other members of their class so that they can obtain visas or
adjustment of status before the end of the fiscal year.

We hold that the district court properly dismissed the
complaint because there is no live case or controversy about
the establishment of visa cut-off dates, and the allocation of
visa numbers, in the 2008 and 2009 fiscal years. We also
hold that the district court did not err in dismissing Plaintiffs’
claims for prospective relief because they did not allege that
Defendants failed to take discrete actions they were legally
required to take. Accordingly, we affirm the decision of the
district court.

FACTUAL AND PROCEDURAL BACKGROUND

This case concerns applications for visas by professionals
and skilled workers in the EB-3 category. To become eligible
for such visas, an alien’s employer must first file an
application for labor certification with the Department of
Labor (DOL), requesting certification that there are no
qualified workers in the United States available to fill a
relevant job opening. See 8 U.S.C. § 1182(a)(5)(A)(i). Once
DOL provides such a certification, the employer may file a
petition requesting that USCIS approve the alien for a visa in
the EB-3 category. See 8 C.F.R. § 204.5(a). The date a
request for certification is accepted for processing by DOL is
called the “priority date.” See 8 C.F.R. § 204.5(d). Once the

Mayorkas, Department of Homeland Security, and United States
Citizenship and Immigration Services (USCIS) (collectively, Defendants).
 LI V . KERRY 5

alien’s priority date becomes “current,” the alien becomes
eligible to be allotted an immigrant visa number, and he or
she may file an application for adjustment of status with
USCIS, if the alien is then physically located within the
United States. See 8 U.S.C. § 1255(a).

USCIS has jurisdiction to adjudicate an application for
adjustment of status. See 8 C.F.R. § 245.2(a)(1). Pursuant to
8 C.F.R. § 245.2(a)(5)(ii), however, USCIS may not approve
an application for adjustment of status until the Department
of State (DOS) has allocated an immigrant visa number. See
8 C.F.R. § 245.2(a)(5)(ii). In allocating visa numbers, DOS
must comply with the worldwide and per-country limits on
the number of employment-based preference immigrant visas
established by Congress. See 8 U.S.C. §§ 1151(a)(2)
(worldwide limit), 1152(a)(2) (per-country limit). To process
these congressionally imposed limits in an orderly manner,
the Secretary of State is authorized to “make reasonable
estimates of the anticipated numbers of visas to be issued
during any quarter of any fiscal year . . . and to rely upon
such estimates in authorizing the issuance of visas.” 8 U.S.C.
§ 1153(g).

DOS’s Visa Office subdivides the annual number of
employment-based visas, taking into consideration per-
country limits established by Congress, into monthly
allotments. The Visa Office considers several variables in
determining how many visa numbers to make available, such
as past number use, expected future number use, and
estimates of additional USCIS demand. Once the number of
available visa numbers has been calculated, DOS allocates
numbers to applicants.
6 LI V . KERRY

The total number of qualified applicants are compared
each month with the visa numbers available for the next
regular allotment. When the number of qualified applicants
in a category exceeds the supply of numbers available for
allotment in a particular month, the category is deemed
oversubscribed, and DOS creates a visa availability cut-off
date for that category. The cut-off date is the priority date of
the first qualified alien for whom a visa number was not
available. When visas are thus oversubscribed, only persons
with a priority date earlier than the cut-off date are entitled to
be allotted a visa number.

Plaintiffs brought suit in 2010 on behalf of a class of
individuals from China, who are seeking to acquire
permanent resident status in the EB-3 visa category. They
claim that during the 2008 and 2009 fiscal years, Defendants
did not allocate immigrant visas to eligible applicants in the
correct order, thereby delaying their applications, and their
eligibility for adjustment of status. According to Plaintiffs,
DOS’s Visa Office also failed to maintain an adequate
registration list or to properly monitor USCIS’s use of
immigrant visa numbers, “in part or in whole because the
Visa Office does not have accurate information from USCIS
concerning the number of applications pending and
concerning USCIS demand for immigrant visa numbers.” As
a result, the Visa Office allegedly established cut-off dates
that allowed EB-3 visas to be made available to individuals
from countries other than China before the class members
from China, even though the class members had earlier
priority dates, and China’s EB-3 limit had not yet been
reached. Accordingly, “the rest of the world was able to use
immigrant visas up to its limit in the [EB-3] category, but the
China [EB-3] category was not able to use immigrant visas up
to its limit even though there was sufficient demand.”
 LI V . KERRY 7

Plaintiffs allege that they and their derivative beneficiaries
would have been approved for permanent resident status in
fiscal year 2008 or fiscal year 2009 but for governmental
errors in allocating visa numbers. As a remedy, Plaintiffs
seek an order requiring Defendants to make immigrant visa
numbers available for class members so they can obtain
immigrant visas or have their status adjusted before the end
of the current fiscal year. They also sought an injunction
requiring that Defendants take steps to improve the visa
number allocation system. For example, Plaintiffs asked the
district court to order USCIS to provide complete and
accurate information to the Visa Office, and to direct DOS to
make public all relevant information contained on its waiting
lists.

The district court granted Defendants’ motion to dismiss.
Because Plaintiffs cited no statutory authority requiring
USCIS to participate in the creation of cut-off dates or the
maintenance of waiting lists, the district court concluded that
Plaintiffs failed to state a claim against USCIS. The district
court also found that Plaintiffs’ claims regarding the
allocation of visa numbers from prior fiscal years were moot
because no authority allows visa numbers from previous
years to be recaptured, and allocated during the current year.
The district court further found that Plaintiffs’ claims for
prospective relief were moot because they conceded that they
did not challenge DOS’s process for allocating visa numbers.
Plaintiffs timely appealed the district court’s decision.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the district court’s order
pursuant to 28 U.S.C. § 1291. We review de novo the district
court’s dismissal for failure to state a claim under Federal
8 LI V . KERRY

Rule of Civil Procedure 12(b)(6). Lacey v. Maricopa Cnty.,
693 F.3d 896, 911 (9th Cir. 2012) (en banc). We also review
de novo the district court’s dismissal for mootness and for
lack of subject matter jurisdiction. Get Outdoors II, LLC v.
City of San Diego, 506 F.3d 886, 890 (9th Cir. 2007); Leeson
v. Transamerica Disability Income Plan, 671 F.3d 969, 974
(9th Cir. 2012).

Rule 12(b)(6) is read in conjunction with Rule 8(a), which
requires not only “fair notice of the nature of the claim, but
also grounds on which the claim rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 n.3 (2007) (citation and quotes
omitted). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’ ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570)). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678. The plausibility standard
requires more than the sheer possibility or conceivability that
a defendant has acted unlawfully. Id. at 678–79; see also
Twombly, 550 U.S. at 555 (“Factual allegations must be
enough to raise a right to relief above the speculative
level. . . .”). “Where a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short of the
line between possibility and plausibility of entitlement to
relief.” Iqbal, 556 U.S. at 678 (citation and quotes omitted);
accord Lacey, 693 F.3d at 911. Dismissal under Rule
12(b)(6) is proper only when the complaint either (1) lacks a
cognizable legal theory or (2) fails to allege sufficient facts to
support a cognizable legal theory. Mendiondo v. Centinela
Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).
 LI V . KERRY 9

Although a district court should grant the plaintiff leave
to amend if the complaint can possibly be cured by additional
factual allegations, Doe v. United States, 58 F.3d 494, 497
(9th Cir. 1995), “[d]ismissal without leave to amend is proper
if it is clear that the complaint could not be saved by
amendment,” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042,
1051 (9th Cir. 2008). A district court’s decision to dismiss
with prejudice is reviewed for abuse of discretion. Okwu v.
McKim, 682 F.3d 841, 844 (9th Cir. 2012). “We may affirm
on any basis supported by the record, whether or not relied
upon by the district court.” Hall v. N. Am. Van Lines, Inc.,
476 F.3d 683, 686 (9th Cir. 2007).

DISCUSSION

Plaintiffs argue that the district court erred in three ways:
(1) by dismissing their claims against USCIS; (2) by holding
that it lacked jurisdiction to recapture visa numbers from past
years; and (3) by dismissing their claims for prospective
relief.

I. Claims Against USCIS

In their complaint, Plaintiffs alleged a number of causes
of action against USCIS. We agree with the district court that
Plaintiffs failed to state a plausible claim against USCIS.2

2
W e note that we consider the complaint as pled in its initial and only
form. Plaintiffs neither offered any amendments to their complaint nor
contend on appeal that the district court erred in dismissing the complaint
with prejudice.
10 LI V . KERRY

In their Second Cause of Action, Plaintiffs allege that
USCIS violated INA § 203, 8 U.S.C. § 1153(e),3 by
approving applications for adjustment of status for
individuals out of priority date order. Plaintiffs’ opening
brief states two different theories under which USCIS is
alleged to have violated this provision. Plaintiffs first claim
that USCIS violated the first subsection of that provision,
INA § 203(e)(1), 8 U.S.C. § 1153(e)(1), which requires that
immigrant visas be made available in priority date order.
Plaintiffs cannot prevail under this theory, however, because
it is DOS, not USCIS, that issues immigrant visa numbers.
See De Avilia v. Civiletti, 643 F.2d 471, 475 (7th Cir. 1981)
(stating that DOS is responsible for administering provisions
relating to numerical limits on immigration, such as issuing
immigrant visas). This statute is silent about the order in
which USCIS must approve applications for adjustment of
status after DOS has allocated immigrant visa numbers.
Accordingly, Plaintiffs failed to state a plausible claim
against USCIS under the first subsection of that statute.

Alternatively, Plaintiffs contend in their opening brief that
USCIS violated the third subsection, INA § 203(e)(3),
8 U.S.C. § 1153(e)(3), which requires that adequate waiting
lists be maintained. However, this theory appears to have
been raised for the first time on appeal. Nowhere in their
complaint or in their response to the government’s motion to
dismiss do Plaintiffs assert that USCIS had an affirmative

3
The complaint alleges that “USCIS has violated and continues to
violate INA § 203(e), 8 U.S.C. § 1153(c).” The reference to § 1153(c)
appears to be a scrivener’s error. Even if it was not an error, however,
Plaintiffs failed to state a plausible claim that USCIS violated § 1153(c),
because that subsection relates to the allotment of visas to diversity
immigrants, rather than employment-based immigrants. See 8 U.S.C.
§ 1153(c).
 LI V . KERRY 11

duty to participate in the maintenance or creation of waiting
lists. Indeed, in their motion for preliminary injunction
below, Plaintiffs effectively conceded that their claim under
this subsection applies only to DOS. We do not address in
the first instance claims not raised below.4 Accordingly, we
hold that the district court did not err in concluding that
Plaintiffs failed to state a claim against USCIS under 8 U.S.C.
§ 1153(e).

Although the district court did not explicitly consider the
additional causes of action alleged against USCIS, we affirm
the dismissal of these claims as well, based on the
insufficiency of Plaintiffs’ allegations in the complaint. See
Hall, 476 F.3d at 686; Steckman v. Hart Brewing, Inc.,
143 F.3d 1293, 1295 (9th Cir. 1998) (“If support exists in the
record, [a] dismissal [for failure to state a claim] may be
affirmed on any proper ground, even if the district court did
not reach the issue or relied on different grounds or
reasoning.”).

In their Third Cause of Action, Plaintiffs contend that
USCIS violated 8 U.S.C. § 1255(b) and 8 C.F.R.
§ 245.2(a)(5)(ii) by approving applications for adjustment of
status out of priority date order. Under these provisions,
USCIS may not approve an application for adjustment of
status until DOS allocates an immigrant visa number. See
8 U.S.C. § 1255(b); 8 C.F.R. § 245.2(a)(1), (a)(5)(ii). These

4
See Nghiem v. NEC Elec., Inc., 25 F.3d 1437, 1442 (9th Cir. 1994)
(“An appellate court will dismiss arguments not raised at the district court
unless there are exceptional circumstances.”); G & S Holdings LLC v.
Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) (“[A] party waives an
argument by failing to make it before the district court. . . . That is true
whether it is an affirmative argument in support of a motion to dismiss or
an argument establishing that dismissal is inappropriate.”).
12 LI V . KERRY

provisions are silent about the order in which USCIS must
approve applications for adjustment of status after DOS has
allocated immigrant visa numbers. Accordingly, Plaintiffs
failed to state a plausible claim against USCIS for violating
8 U.S.C. § 1255(b) and 8 C.F.R. § 245.2(a)(5)(ii).

Lastly, Plaintiffs allege that USCIS violated the law, and
acted arbitrarily and capriciously, “[b]y failing to establish a
complete and accurate system for monitoring the priority
dates of individuals who are applying for immigrant visas”
(Fourth Cause of Action), and “[b]y failing to provide and
maintain a system adequate to account for the number of
immigrant petitions (Form I-140) and adjustment of status
applications (Form I-485) that are pending” (Fifth Cause of
Action). These claims appear to be based on 5 U.S.C.
§ 706(2)(A), which requires a reviewing court to “set aside
agency action, findings, and conclusions found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.”5 5 U.S.C. § 706(2)(A).

Plaintiffs provide no authority, and we can locate none,
suggesting that USCIS has a specific duty to maintain such an
elaborate system for monitoring priority dates or the number
of pending applications. Instead, USCIS’s responsibilities are
carefully circumscribed and tied to the actions of other
agencies. See, e.g., 8 C.F.R. § 245.2(a)(1), (a)(5)(ii) (giving
USCIS jurisdiction to adjudicate applications for adjustment

5
To the extent these causes of action are based on 5 U.S.C. § 706(1),
which requires a reviewing court to “compel agency action unlawfully
withheld or unreasonably delayed,” Plaintiffs failed to state a claim
because no authority suggests that USCIS failed to perform any discrete
actions legally required of it. See Hells Canyon Pres. Council v. U.S.
Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010).
 LI V . KERRY 13

of status, but forbidding USCIS to approve adjustment of
status until an immigrant visa number has been allocated by
DOS).

Plaintiffs essentially ask us to hold that USCIS could be
acting arbitrarily and capriciously by failing to create a
system, or complying with vague standards, not required by
law. We decline their invitation, and we hold that Plaintiffs
failed to state a claim against USCIS.6 See Cal. Energy
Comm’n v. Dep’t of Energy, 585 F.3d 1143, 1150–51 (9th
Cir. 2009) (discussing when we will overturn an agency’s
decision as arbitrary and capricious); Lands Council v.
McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc) (noting
that we cannot require an agency to abide by our notions of
which procedures are best or most likely to achieve the public
good, and that we cannot impose procedural requirements not
expressly required by statute).

II. Recapture of Visa Numbers from Past Years

The district court also held that it lacked jurisdiction over
Plaintiffs’ claims seeking to recapture visa numbers from
previous fiscal years, because these claims were moot. The
district court’s decision was correct.

6
Plaintiffs attempt to add a claim in their opening brief, not appearing
in their complaint, that USCIS violated 8 C.F.R. § 245.1(g)(1). W e
decline to review whether Plaintiffs presented a plausible claim that
USCIS violated 8 C.F.R. § 245.1(g)(1) because none of the narrow
circumstances in which we have considered an issue raised for the first
time on appeal applies here. See Cmty. House, Inc. v. City of Boise,
490 F.3d 1041, 1053–54 (9th Cir. 2007) (declining to consider Idaho
Constitution claim raised for the first time on appeal).
14 LI V . KERRY

“A claim is moot if it has lost its character as a present,
live controversy.” Kearns v. Ford Motor Co., 567 F.3d 1120,
1127 (9th Cir. 2009) (citation omitted). “If there is no longer
a possibility that an appellant can obtain relief for his claim,
that claim is moot and must be dismissed for lack of
jurisdiction.” Ruvalcaba v. City of L.A., 167 F.3d 514, 521
(9th Cir. 1999).7

Congress has established annual numerical limits on the
number of immigrant visas. See 8 U.S.C. §§ 1151 (setting a
worldwide limit), 1152 (setting a per-country limit). There
are a very limited number of situations when a visa number
is returned to DOS for reallocation, such as when an
immigrant is deported, when an immigrant does not apply for
admission to the United States before the expiration of the
visa, and when an immigrant visa is revoked. See 22 C.F.R.
§ 42.51(c). However, even in those situations, DOS must
reallocate the visa numbers “within the fiscal year in which
the visa was issued.” Id. There is no statute or regulation
authorizing DOS to take a visa number from one year and
allocate it to another year. Just as in the diversity visa lottery
program, the employment-based visa numbers available in a
particular fiscal year expire at the end of the year, rendering

7
See also Feldman v. Bomar, 518 F.3d 637, 643 (9th Cir. 2008)
(dismissing an appeal as moot because the court lacked power to grant any
effective relief since it could not resurrect pigs or retroactively remedy any
pain that they might have felt from being shot); Doe v. Madison Sch. Dist.
No. 321, 177 F.3d 789, 798 (9th Cir. 1999) (en banc) (holding that a
student’s claims for injunctive and declaratory relief from forced
participation in graduation ceremony prayers were moot after the
graduation ceremony occurred).
 LI V . KERRY 15

moot any claim for a visa number from a prior year.8 It does
not matter whether administrative delays and errors are to
blame for an alien not receiving a visa number on time.9
Once a visa number is gone, it cannot be recaptured absent an
act of Congress.10 Any other interpretation of the statute
would allow statutory limits on levels of immigration in a
particular fiscal year to be exceeded as the result of treating

8
See, e.g., Mwasaru v. Napolitano, 619 F.3d 545, 551, 553 (6th Cir.
2010); Mohamed v. Gonzales, 436 F.3d 79, 80–81 (2d Cir. 2006); Nyaga
v. Ashcroft, 323 F.3d 906, 914–16 (11th Cir. 2003); cf. Coraggioso v.
Ashcroft, 355 F.3d 730, 734–35 (3d Cir. 2004) (denying petition for
review although the petitioner would have been entitled to a diversity visa
if the INS had performed its statutorily-mandated duty and timely
adjudicated his parents’ application); Carrillo-Gonzalez v. INS, 353 F.3d
1077, 1079 (9th Cir. 2003) (denying petition for review when an alien was
selected for a visa through the diversity immigration visa lottery program,
but her eligibility expired before the immigration judge issued a decision
on her application for adjustment of status); Iddir, 301 F.3d at 493–94,
500–01 (holding that the INS lacked statutory authority to award a visa
through the diversity visa lottery program, even though the appellants
promptly filled out the necessary forms and INS failed to adjudicate the
applications within a year).

9
See, e.g., Mohamed, 436 F.3d at 81 (affirming dismissal of claims as
moot even though “[s]ome applicants for diversity immigrant visas were
denied them, without a meaningful ability to appeal, as the result of sheer
bureaucratic ineptitude or intransigence”); Coraggioso, 355 F.3d at
734–35 (denying petition for review although the petitioner “would have
been entitled to a diversity visa (and, hence, permanent resident status) if
the INS had performed its statutorily mandated duty and timely
adjudicated his parents’ DV Program applications”).

10
On two occasions, Congress expressly authorized DOS to recapture
employment-based visa numbers from prior years. See REAL ID Act of
2005, Pub. L. No. 109-13, Division B, § 502, 119 Stat. 231 (2005);
American Competitiveness in the Twenty-First Century Act of 2000, Pub.
L. No. 106-313, § 106(d), 114 Stat. 1251 (2000).
16 LI V . KERRY

all unused visa numbers from the past as cumulatively
available to be allocated at any time.

Another problem with Plaintiffs’ alleged causes of action
is that some of the visa numbers they seek to recapture have
already been allocated to other individuals. Since courts are
not time machines, we are unable to order DOS to go back in
time and not do something it already did, let alone determine
which individuals awarded visa numbers in the past should
have their numbers taken away because they should have
been awarded to Plaintiffs.

Plaintiffs primarily rely on Silva v. Bell, 605 F.2d 978
(7th Cir. 1979) in support of their view that the district court
has authority to recapture previously unused visa numbers.
Silva presented the issue of how to allocate erroneously
charged visa numbers among Western Hemisphere applicants
on a waiting list. See Silva, 605 F.2d at 980. The question
was not whether recapture was possible. See id.

To the extent the Seventh Circuit assumed, arguendo, in
Silva that visa numbers from past years could be reallocated
in a current year, notwithstanding statutory limits on
immigration, we respectfully disagree. As the Supreme Court
stated in a subsequent case:

An alien who seeks political rights as a
member of this Nation can rightfully obtain
them only upon terms and conditions
specified by Congress. Courts are without
authority to sanction changes or
modifications; their duty is rigidly to enforce
the legislative will in respect of a matter so
vital to the public welfare.
 LI V . KERRY 17

INS v. Pangilinan, 486 U.S. 875, 884 (1988) (citation
omitted). Thus, because employment-based visa numbers
expire at the end of a fiscal year, a court cannot order an
agency to recapture those numbers contrary to Congress’s
clear statutory command. See id. Plaintiffs’ arguments to the
contrary are unavailing.

For the foregoing reasons, we hold that the district court
correctly concluded that Plaintiffs’ claims seeking to
recapture visa numbers from past years were moot, and we
affirm the district court’s dismissal of these claims for lack of
jurisdiction.

III. Claims for Prospective Relief

The district court concluded that Plaintiffs’ claims for
prospective relief were also moot because Plaintiffs conceded
that they did not challenge the process by which DOS
allocates visa numbers. For a different reason, we agree that
the district court properly dismissed Plaintiffs’ claims seeking
prospective relief from DOS under section 706(1) of the
Administrative Procedure Act (APA), regardless of Plaintiffs’
concession.

“Section 706(1) of the [APA] grants federal courts the
power to ‘compel agency action unlawfully withheld or
unreasonably delayed.’ ” Hells Canyon, 593 F.3d at 932.
“This provision serves important interests, but does not give
us license to ‘compel agency action’ whenever the agency is
withholding or delaying an action we think it should take.”
Id. “Instead, our ability to ‘compel agency action’ is
carefully circumscribed to situations where an agency has
ignored a specific legislative command.” Id.
18 LI V . KERRY

We explained in Hells Canyon:

In Norton v. Southern Utah Wilderness
Alliance (SUWA), 542 U.S. 55 (2004), the
Supreme Court explained the two primary
constraints on our review under § 706(1).
First, the Court held that judicial review of
actions alleged to be unlawfully withheld or
unreasonably delayed extends only to
“discrete” actions, such as rules, orders,
licenses, sanctions, and relief. Second, the
Court held that the purportedly withheld
action must not only be “discrete,” but also
“legally required”—in the sense that the
agency’s legal obligation is so clearly set forth
that it could traditionally have been enforced
through a writ of mandamus. According to
the Court, limiting judicial review to actions
that are legally required “rules out judicial
direction of even discrete agency action that is
not demanded by law.” In sum, the Court
concluded, “a claim under § 706(1) can
proceed only where a plaintiff asserts that an
agency failed to take a discrete agency action
that it is required to take.”

Id. (citations omitted).

Here, Plaintiffs seek to compel Defendants to make
copies of the waiting lists for visas publicly available, and to
waive the fees for Plaintiffs to renew their employment
authorizations while waiting for immigrant visa numbers.
But Plaintiffs cite no authority suggesting that these are
discrete agency actions Defendants are legally required to
 LI V . KERRY 19

take. “[T]he only agency action that can be compelled under
the APA is action legally required.” SUWA, 542 U.S. at 63.11
We have no authority to compel agency action merely
because the agency is not doing something we may think it
should do. See Hells Canyon, 593 F.3d at 932.12 Because
Plaintiffs provide no authority that the future actions they
seek to require Defendants to take are required by law, we
hold that Plaintiffs failed to state a claim under section 706(1)
of the APA, and affirm the dismissal of these claims.13

11
See also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990) (“But
respondent cannot seek wholesale improvement of [a] program by court
decree, rather than in the offices of the Department or the halls of
Congress, where programmatic improvements are normally made. Under
the terms of the APA, respondent must direct its attack against some
particular ‘agency action’ that causes it harm.”); Fanin v. U.S. Dep’t of
Veterans Affairs, 572 F.3d 868, 877 (11th Cir. 2009) (“Systemic
improvement and sweeping actions are for the other branches, not for the
courts under the APA.”).

12
See also Vt. Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, Inc., 435 U.S. 519, 543–44 (1978) (“Absent constitutional
constraints or extremely compelling circumstances the administrative
agencies should be free to fashion their own rules of procedure and to
pursue methods of inquiry capable of permitting them to discharge their
multitudinous duties. Indeed, our cases could hardly be more explicit in
this regard.” (citations and quotes omitted)).

13
Plaintiffs’ complaint asserted a claim against DOS under INA
§ 203(e), 8 U.S.C. § 1153(e), alleging that it was issuing visas out of
priority date order, and seeking an injunction to prevent violations of that
statute. Plaintiffs do not address their entitlement to that relief on appeal,
and we do not address that question. W e also hold that the claims of Jun
Guo, Shibao Zhang, and M ing Chang are moot in any event because they
have already obtained adjustment of status.
20 LI V . KERRY

CONCLUSION

For the foregoing reasons, we affirm the district court.

AFFIRMED.

REINHARDT, Circuit Judge, concurring:

I join fully in Judge M. Smith’s opinion affirming the
district judge’s dismissal of Plaintiffs’ complaint. As the
opinion states, Plaintiffs are not entitled to recapture visas
from past years, and, as to the rest of their claims, Plaintiffs
have failed to adequately plead any action that any Defendant
was required, but failed, to take. I write separately only to
note the importance of the problem that Plaintiffs identify,
and to suggest that, despite our affirmance of the district
court’s dismissal of Plaintiffs’ complaint, our opinion should
not be viewed as approving of the misallocation of immigrant
visas that Plaintiffs describe.

Plaintiffs have identified a significant problem with this
country’s system of issuing immigrant visas. In 2008 and
2009, according to Plaintiffs, our nation’s immigration
authorities wrongfully distributed to citizens of other nations
over 40% of the available employment-based, third
preference (“EB-3”) immigrant visas that, under the
applicable statute, should have been made available to
individuals from mainland China. These visas—numbering
over 2,300—would have permitted applicants from China to
live and work in this country as legal permanent residents and
to start on a path to United States citizenship at the time
intended by Congress. Instead, the government erroneously
 LI V . KERRY 21

gave these visas to individuals from other countries, many of
whom had been waiting far less time for the same type of visa
than their Chinese counterparts.

The system that produced this error—and the root cause
of the problem—is admittedly complex. The employment-
based immigrant visa system has numerous steps, requiring
coordination between the Departments of Labor, State, and
Homeland Security. The problem that Plaintiffs identify
appears to stem, at least in part, from the failure of U.S.
Citizenship and Immigration Services (USCIS), a part of the
Department of Homeland Security, to communicate
information to the State Department’s Visa Office regarding
the number of pending applications for EB-3 visas. USCIS’s
failure to communicate this information to the Visa Office
does not appear to have been intentional; rather, it apparently
was the result of its attempts to streamline the processing of
applications for adjustment of status. Nevertheless, without
accurate information from USCIS regarding the number of
pending applicants for EB-3 visas from each country, the
Visa Office was unable—for at least two years, and likely for
much longer—to ensure that the correct number of immigrant
visas were made available to individuals from each country.
Plaintiffs, and thousands of others like them, were prejudiced
as a result, in that they were required to wait far longer for
their visas than other individuals who applied at the same
time.

This is not the way that the immigrant visas system was
intended to function. The 1965 law that established the
system intended beyond doubt that the visas would be issued
on a “first-come, first-served” basis. See S. Rep. No. 89-748
(1965), reprinted in 1965 U.S.C.C.A.N. 3328, 3332.
Congress believed that such a system was the only fair way
22 LI V . KERRY

to allocate immigrant visas given the substantial numbers of
individuals seeking to immigrate to the United States, see id.,
and it created a comprehensive statutory scheme to carry out
that goal, see 8 U.S.C. § 1151 et seq. Defendants’
actions—whether or not they violate the letter of that
statutory scheme, and whether or not they are redressable
—are difficult to reconcile with the basic principle upon
which that system was created.1

The misallocation of visas that Plaintiffs complain of is
not, however, the result of the violation of any specific duty,
imposed on any specific defendant by Congress and identified
as such in the Complaint. It appears, nevertheless, that the
failure to effectuate the purpose of the statutory scheme could
have been entirely avoided had the Defendants taken more
seriously their joint responsibility to ensure the proper
functioning of the immigrant visa system. Congress, for
example, specifically required the Visa Office to keep a
waiting list of “applicants for [immigrant] visas”—a
necessary component for the immigrant visa system to
function as Congress intended. 8 U.S.C. § 1153(e)(3).2 It is

1
The “first-come, first-served” principle is, admittedly, limited to some
extent by limits on the number of individuals from each country who may
receive immigrant visas each year. See 8 U.S.C. § 1152(a)(2). The
existence of such per-country limits, however, is incidental to the
problems that Plaintiffs identify. Plaintiffs allege that, despite
overwhelming demand for immigrant visas from Chinese individuals, the
number of visas allocated to individuals from China has been far less than
even the per-country limit— a result that is irreconcilable even with the
minor deviations from a pure “first-come, first-served” system that
Congress has accepted.

2
W ithout an accurate waiting list, the Visa Office is unable to
adequately fulfill its other statutory obligations, including Congress’s
requirements that (a) its estimates of the number of immigrant visas to
 LI V . KERRY 23

clear, moreover, from Plaintiffs’ largely uncontested
allegations, that the Visa Office’s waiting list was inaccurate,
because the Visa Office lacked adequate information from
USCIS. Had the Visa Office simply asked USCIS for the
necessary information regarding pending applications for
immigrant visas—or, conversely, had USCIS simply provided
to the Visa Office the full information that office required to
create an accurate waiting list—the misallocation of visas that
Plaintiffs complain of likely could have been averted.

Our decision largely rests on the conclusion that Plaintiffs
failed to identify in their complaint any legal obligation that
any particular Defendant was not fulfilling, and thus failed to
state a cause of action. It is not entirely surprising, that
Plaintiffs failed to do so, given the byzantine nature of the
immigrant visa system. Plaintiffs likely found it extremely
difficult at the outset of this lawsuit – and despite some
efforts on their part before the motion to dismiss was granted
– to identify with specificity what errors which agency was
making, how or why these errors were causing visas to be
misallocated, or, specifically, what legal obligations, if any,
USCIS, the State Department, or either or both were failing

make available be “reasonable,” see 8 U.S.C. § 1153(g); (b) immigrant
visas be issued in the order that applications were filed, see 8 U.S.C.
§ 1153(e)(1); (c) the number of immigrant visas issued each year not
exceed the limit available for each category of visa or country, see
8 U.S.C. §§ 1151(a)(2), 1151(d), 1153(b); and (d) the number of
immigrant visas issued each quarter not exceed 27% of the yearly total,
see 8 U.S.C. § 1151(a)(2).
24 LI V . KERRY

to fulfill.3 Equally significant, on appeal, Plaintiffs failed to
contend that the dismissal with prejudice was improper.

Nevertheless, what is clear is that during 2008 and 2009
(and likely beyond), as a result of either errors or oversights
on the part of the responsible agencies, the immigrant visa
system did not function in a manner consistent with
Congress’s intent in creating it. Although we dismiss
Plaintiffs’ complaint, our decision should not be read as
condoning that unfortunate result.

3
As our opinion states, Plaintiffs raised for the first time on appeal a
claim that Defendants’ actions violated 8 C.F.R. § 245.1(g)(1); see also
8 U.S.C. § 1255(a) (USCIS may adjust the status of a non-citizen only if
“an immigrant visa is immediately available to him at the time his
application [for adjustment of status] is filed”).