Zixiang Li v. John F. Kerry

concurring:

I join fully in Judge M. Smith’s opinion affirming the district judge’s dismissal of Plaintiffs’ complaint. As the opinion states, Plaintiffs are not entitled to recapture visas from past years, and, as to the rest of their claims, Plaintiffs have failed to adequately plead any action that any Defendant was required, but failed, to take. I write separately only to note the importance of the problem that Plaintiffs identify, and to suggest that, despite our affir-mance of the district court’s dismissal of Plaintiffs’ complaint, our opinion should not be viewed as approving of the misallo-cation of immigrant visas that Plaintiffs describe.

Plaintiffs have identified a significant problem with this country’s system of issuing immigrant visas. In 2008 and 2009, according to Plaintiffs, our nation’s immigration authorities wrongfully distributed to citizens of other nations over 40% of the available employment-based, third preference (“EB-3”) immigrant visas that, under the applicable statute, should have been made available to individuals from mainland China. These visas — numbering over 2,300 — would have permitted applicants from China to live and work in this country…

Plaintiffs-Appellants, certain individuals from China seeking permanent residency in the United States, appeal from the district court’s dismissal of their claims under the Immigration and Nationality Act (INA) against federal Defendants-Appellees. 1 In their complaint, Plaintiffs allege *997 that Defendants misallocated immigrant visas to eligible applicants in the employment-based third preference category (EB-3) during the 2008 and 2009 fiscal years. Plaintiffs request that visa numbers be made available to them and other members of their class so that they can obtain visas or adjustment of status before the end of the fiscal year.

We hold that the district court properly dismissed the complaint because there is no live case or controversy about the establishment of visa cut-off dates, and the allocation of visa numbers, in the 2008 and 2009 fiscal years. We also hold that the district court did not err in dismissing Plaintiffs’ claims for prospective relief because they did not allege that Defendants failed to take discrete actions they were -legally required to take. Accordingly, we affirm the decision of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

This…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZIXIANG LI; JUN LI; JUN GUO ; No. 11-35412 SHIBAO ZHANG ; MING CHANG , on behalf of themselves as individuals D.C. No. and on behalf of others similarly 2:10-cv-00798- situated, RAJ Plaintiffs-Appellants,

v. OPINION

JOHN F. KERRY ,* Secretary of State;

UNITED STATES OF AMERICA ; JANET

A. NAPOLITANO , Secretary of

Department of Homeland Security; ALEJANDRO MAYORKAS, Director of Citizenship and Immigration Services; DEPARTMENT OF

HOMELAND SECURITY ; UNITED

STATES CITIZENSHIP AND

IMMIGRATION SERVICES,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

* John F. Kerry is substituted for his predecessor, Hillary Rodham Clinton, as Secretary of State. Fed. R. App. P. 43(c)(2). LI V . KERRY

Argued and Submitted July 9, 2012—Seattle, Washington

Filed March 20, 2013

Before: Stephen Reinhardt, Andrew J. Kleinfeld, and Milan D. Smith, Jr., Circuit…