Good News from the 9th Circuit on the reviewability of U visa denials!

On Friday November 22, 2019, the 9th Circuit Court of Appeals published a decision reversing the district court’s dismissal of a suit challenging a U visa petition denial for lack of jurisdiction. The panel held that § 701(a)(2) of the Administrative Procedure Act (“APA”) and 8 U.S.C. § 1252(a)(2)(B)(ii) do not bar judicial review of U visa petition denials:

“The discretionary denials are difficult in light of 242(a)(2)(B), and probably not challengeable in many courts.  Arguably, however, a “discretionary decision” that fails to apply governing standards or fails to follow governing precedent decisions is not really a “discretionary decision” and should be reviewable.  A good case is Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003)“

This decision is encouraging as ASISTA works with attorneys across the country to bring APA suits against DHS on various issues involving survivors’ access to immigration benefits. We encourage anyone interested in representing their clients before federal courts on U visa/VAWA/T visa benefits to contact ASISTA’s Litigation Counsel, Sejal Zota, for support and mentorship. You can also contact us to join our U Visa Litigation listserve where practitioners come together to share invaluable litigation strategy.

Congratulations to Henry Cruz on this great win!