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Perez v. Duke

United States District Court, W.D. Washington, Seattle

December 26, 2017

ELAINE A. DUKE, et al., Defendants.




         This is an Administrative Procedures Act (“APA”) case arising out of the United States Citizenship and Immigration Services' (“USCIS”) denial of Plaintiff Pedro Tomas Perez Perez's petition for a U nonimmigrant status permit (“U-visa”). Before the court is Mr. Perez's motion for summary judgment (MSJ (Dkt. # 17)) and Defendants Elaine A. Duke, [1] James McCament, Ron Rosenberg, and Laura B. Zuchowski's (collectively, “the Government”) cross-motion for summary judgment (Cross-MSJ (Dkt. # 24)). Having reviewed the papers filed in support and opposition to the motions and the administrative record (Dkt. # 14 (“AR”)), the court DENIES Mr. Perez's motion for summary judgment (Dkt. # 17) and GRANTS the Government's cross-motion for summary judgment (Dkt. # 24). The court DISMISSES this administrative appeal for lack of subject matter jurisdiction.


         A. Legal Framework for U-Visas

         In 2000, Congress created the U nonimmigrant status to “strengthen the ability of law enforcement agencies to detect, investigate, and prosecute [certain crimes] . . . committed against aliens, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States.” Victims of Trafficking and Violence Protection Act of 2000 (“VTVPA”), Pub. L. No. 106-386, § 1513(a), 114 Stat. 1533-37. To be eligible for a U-visa, a petitioner must meet several criteria, including: (1) the petitioner has suffered “substantial physical or mental abuse” resulting from being a victim of a qualifying criminal activity; (2) the petitioner “possesses information concerning” the qualifying criminal activity; (3) the petitioner “has been helpful, is being helpful, or is likely to be helpful” to law enforcement authorities “investigating or prosecuting” the qualifying criminal activity; and (4) the qualifying criminal activity violating the laws of the United States occurred in the United States. 8 U.S.C. § 1101(a)(15)(U)(i); 8 C.F.R. § 214.14(b). A qualifying criminal activity under the statute includes, in relevant part, “felonious assault, ” a criminal activity “involving” felonious assault, “or any similar activity in violation of Federal, State, or local criminal law.” 8 U.S.C. § 1101(a)(15)(U)(iii); 8 C.F.R. § 214.14(a)(9). In the 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)(1); see also 8 C.F.R. § 214.14(c)(2)(i). Under the regulations, “[i]nvestigation or prosecution refers to the detection or investigation of a qualifying crime or criminal activity.” 8 C.F.R. § 214.14(a)(5).

         USCIS is the agency responsible for determining and adjudicating U-visa eligibility. See Id. § 214.14(c); see generally 72 Fed. Reg. 53, 014 (Sept. 14, 2017). “USCIS has sole jurisdiction over all petitions for U nonimmigrant status.” 8 U.S.C. § 214.14(c)(1). In addition, “USCIS will determine, in its sole discretion, the evidentiary value” of the evidence submitted with a U-visa application. Id. § 214.14(c)(4).

         B. Factual Background

         Mr. Perez is a citizen of Mexico who resides in Lynwood, Washington. (Compl. (Dkt. # 1) ¶ 5.) Mr. Perez alleges that he was the victim of harassment from August 2009 to October 2011. (Id. ¶ 11; AR at 111.) Mr. Perez reported the harassment to the Renton, Washington Police Department on January 10, 2012. (AR at 110-11.) The basis for Mr. Perez's harassment claim is that, in August 2009, Mr. Perez loaned Concepcion Reyes $20, 000, to pay back with interest. (Id. at 111.) Then, on January 25, 2011, Mr. Perez loaned Luis Ulrich $30, 000, also to pay back with interest. (Id.; see also Id. at 132-37.) In March 2011, Mr. Perez started asking the two men to pay him back. (Id. at 111) In response, in March and October 2011, Mr. Ulrich “threatened to place [Mr.] Perez in Jail if he ke[pt] asking for his money back.” (Id.) In early January 2012, Mr. Perez moved from Lynwood to Renton because he was afraid of Mr. Ulrich. (Id.) On January 8, 2012, Mr. Ulrich contacted Mr. Perez by phone, again telling Mr. Perez that “he was going to put [Mr.] Perez in jail.” (Id.) Mr. Ulrich also told Mr. Perez that “he would make him disappear.” (Id.) The Renton Police Department cited Mr. Perez's complaint under RCW 9A.46.020 for “Harassment, ” but ultimately determined that the allegations “were not defined enough . . . to file harassment charges against [Mr.] Ulrich.” (Id. at 110-11.) The Renton Police Department was also unable to contact Mr. Reyes or Mr. Ulrich. The case report ended with the police noting, “[t]his report was generated for informational purposes only.” (Id. at 111.) In addition to the police report, on January 13, 2012, Mr. Perez petitioned for anti-harassment orders against Mr. Reyes and Mr. Ulrich. (See Id. at 112-30.) The petitions were unsuccessful because neither party could be served. (E.g., id. at 128-30; Cross-MSJ at 7.)

         On July 10, 2013, Mr. Perez submitted his U-visa petition to USCIS. (Compl. ¶¶ 1, 15; AR at 76-83, 167.) In addition to the main U-visa form-a Form I-918 Petition (AR at 76-83)-Mr. Perez sent USCIS other relevant documents, including a certification dated January 10, 2013 (id. at 84-86), a cover letter from Mr. Perez's attorney (id. at 94- 98), and records from the Renton Police Department (id. at 110-11) and the King County, Washington District Court (id. at 112-30).

         On March 25, 2014, USCIS requested additional evidence from Mr. Perez, noting that the harassment referenced in Mr. Perez's application is not a qualifying crime under the U-visa regulations, “nor does the evidence provided with [Mr. Perez's] filing include sufficient information to indicate that the noted criminal activity is similar to those crimes.” (Id. at 74-75.) Mr. Perez submitted additional evidence on June 18, 2014. (Id. at 165-74.) In his response, Mr. Perez acknowledged that harassment is not a qualifying crime. Mr. Perez argued, however, that he was the victim of “harassment activity [that] involved and/or was similar to extortion and stalking, ” and that the harassment activity “involved and/or was similar to felonious assault, an enumerated criminal activity, because it involved a threat to kill him.” (Id. at 168.) On January 30, 2015, USCIS denied Mr. Perez's U-visa petition, finding that Mr. Perez and the evidentiary record failed to demonstrate that his crime of harassment is similar to a qualifying criminal activity. (Id. at 71-73.)

         On February 25, 2015, Mr. Perez appealed to the USCIS Administrative Appeals Office (“AAO”). (Id. at 35-66.) Mr. Perez dropped his extortion and stalking arguments on appeal, focusing exclusively on the claim that he was the victim of criminal activity involving or similar to felonious assault. (See Id. at 45-46.) The thread of his argument is that the Renton Police Department noted that Mr. Perez was the victim of general harassment, but the crime was actually felony harassment, which involves or is substantially similar to felony assault, which is a qualifying crime under the U-visa regulations. (See Id. at 45-46, 110-11.) Mr. Perez also submitted a new certification (id. at 39-41), which he argued demonstrated “that the criminal activity of Harassment was DETECTED by the ...

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