United States District Court, W.D. Washington, Seattle
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING DEFENDANT'S CROSS MOTION FOR
L. ROBART UNITED STATES DISTRICT JUDGE.
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,  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.
Legal Framework for U-Visas
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).
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. §
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.)
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).
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.)
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 ...