Catholic Charities Cyo v. Janet Napolitano, Secretary

368 F. App'x 750

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 2010
• Docket: 09-15286, 09-16822
• Status: Unpublished

Opinion

MEMORANDUM *

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).

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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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”).

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.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.