Catholic Charities Cyo v. Janet Napolitano, Secretary

FILED
NOT FOR PUBLICATION FEB 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CATHOLIC CHARITIES CYO; No. 09-15286
INTERNATIONAL INSTITUTE OF THE
EAST BAY; VOCES UNIDAS D.C. No. 3:07-cv-01307-PJH
PROJECT; SANCTUARY FOR
FAMILIES; DIOCESAN MIGRANT &
REFUGEE SERVICES, INC.; MEMORANDUM *
ELIZABETH LOPEZ GOMEZ; SANDRA
BUCIO; CONSTANTINA CAMPOS;
MARIA ESTERVINA PEREZ;
FRANCISCA RAMIREZ ALVAREZ;
IRMA MORENO SANVICENTE;
MARIA LUISA ARROYO TORRES;
ALMA ROSA PADILLA DE
HERNANDEZ; MARIA HERNANDEZ;
ROSA AMEZQUITA RAZO; ANTONIO
PEREZ GARCIA; VERONICA REYES
BONILLA; ANDRES BUCIO PEREZ,
through their next friend, Sandra Bucio;
SERGIO BUCIO PEREZ, through their
next friend, Sandra Bucio; MARLINDA
CLARKE; PATRICIA GARCIA;
BLANCA ROSSELL,
Plaintiffs - Appellants,
v.
JANET NAPOLITANO, Secretary, U.S.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Department of Homeland Security;
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES; U.S.
DEPARTMENT OF HOMELAND
SECURITY,
Defendants - Appellees.
CATHOLIC CHARITIES CYO; No. 09-16822
INTERNATIONAL INSTITUTE OF THE
EAST BAY; VOCES UNIDAS D.C. No. 3:07-cv-01307-PJH
PROJECT; SANCTUARY FOR
FAMILIES; DIOCESAN MIGRANT &
REFUGEE SERVICES, INC.;
ELIZABETH LOPEZ GOMEZ; SANDRA
BUCIO; CONSTANTINA CAMPOS;
MARIA ESTERVINA PEREZ;
FRANCISCA RAMIREZ ALVAREZ;
IRMA MORENO SANVICENTE;
MARIA LUISA ARROYO TORRES;
ALMA ROSA PADILLA DE
HERNANDEZ; MARIA HERNANDEZ;
ROSA AMEZQUITA RAZO; ANTONIO
PEREZ GARCIA; VERONICA REYES
BONILLA; ANDRES BUCIO PEREZ,
through their next friend, Sandra Bucio;
SERGIO BUCIO PEREZ, through their
next friend, Sandra Bucio; MARLINDA
CLARKE; PATRICIA GARCIA;
BLANCA ROSSELL,
Plaintiffs - Appellants,
v.
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JANET NAPOLITANO, Secretary, U.S.
Department of Homeland Security;
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES; U.S.
DEPARTMENT OF HOMELAND
SECURITY,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted February 9, 2010
San Francisco, California
Before: KOZINSKI, Chief Judge, THOMPSON and McKEOWN, Circuit Judges.
Catholic Charities CYO, other immigrants’ rights organizations, and
individual non-citizens (together, “Catholic Charities”) appeal the dismissal of
their suit challenging the government’s implementation of the U visa, an
immigration benefit available to certain victims of crime. As an initial matter, the
defect in Catholic Charities’ premature notice of appeal has been “cured by the
entry of final judgment in the underlying action.” Cato v. Fresno City, 220 F.3d
1073, 1075 (9th Cir. 2000).
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The district court properly dismissed the challenge to the government’s
alleged delay in issuing regulations for U visa applicants and adjustment of status
regulations for U visa recipients. Because none of the individual plaintiffs had
been granted U visas, much less lawful permanent residence, at the time they
brought suit, their claim that the agency’s delay prejudiced their eligibility for
naturalization was not ripe for review. See Bova v. City of Medford, 564 F.3d
1093, 1096 (9th Cir. 2009). Catholic Charities also lacked standing to challenge
the alleged prejudice from the delay because it failed to show injury-in-fact by the
government’s alleged nonfeasance. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992).
Because standing is a jurisdictional issue, we address it with respect to the
derivative U visas, despite Catholic Charities’ failure to address standing in the
opening brief. We uphold the district court’s determination that Catholic Charities
lacked standing to challenge plaintiffs’ ineligibility for derivative U visas because
there was no allegation that the principal beneficiaries applied for U visas in the
first place and, for some of the plaintiffs, the claim is moot because they received
derivative visas. See Rosemere Neighborhood Ass’n v. EPA, 581 F.3d 1169, 1173
(9th Cir. 2009) (explaining that “[i]n general, when an administrative agency has
performed the action sought by a plaintiff in litigation . . . the claim is moot”).
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We affirm the district court’s dismissal for lack of subject-matter jurisdiction
of the claim that the U visa regulations violate 8 U.S.C. 1184(p). That provision
does not provide a private cause of action, and Catholic Charities did not allege a
cause of action under the Administrative Procedures Act. See Williams v. United
Airlines, Inc., 500 F.3d 1019, 1022 (9th Cir. 2007) (outlining the criteria for a
private cause of action and explaining that federal question jurisdiction lies only
“when the plaintiff sues under a federal statute that creates a right of action in
federal court”).
Finally, the district court correctly found that the U.S. Department of
Homeland Security (“DHS”) exercised its discretion by denying plaintiffs’
individual certification requests and that 8 U.S.C. § 1252(a)(2)(B)(ii) barred review
of these denials. The claim regarding the issuance of implementing regulations is
moot, as DHS issued regulations that govern certification by federal law
enforcement agencies in general. See 8 C.F.R. § 214.14.
AFFIRMED.
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