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9th Circuit affirms dismissal of HKE lawsuit against USCIS

THE Ninth Circuit Court of Appeals has affirmed Chief Federal Judge Ramona V. Manglona’s dismissal of a lawsuit filed by the  owner of the now-defunct Tinian Dynasty Hotel Casino against the federal government over work visa petitions.

Tinian Dynasty, which was owned by Hong Kong Entertainment (Overseas) Investment Ltd. or HKE, sued the U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security acting Secretary Elaine Duke, and USCIS acting Director James McCament.

The case stemmed from the USCIS’s denial of HKE’s petitions for CW-1 extension and transfer of its foreign workers.

HKE filed a petition for judicial review in the District Court for NMI after the USCIS denied 151 CW-1 visa applications which would have allowed HKE to employ foreign workers at Tinian Dynasty.

The district court dismissed the lawsuit against USCIS for lack of jurisdiction.

HKE asked the Ninth Circuit to remand the applications to USCIS with instructions to approve them and for a declaratory judgment that HKE is a legitimate employer.

“Because these claims are not justiciable, we affirm the dismissal,” stated Circuit Judges Richard C. Tallman, Jay Scott Bybee and N. Randy Smith in their  ruling.

HKE’s request “that we instruct USCIS to approve the visa applications is not justiciable because we may grant it no effective relief,” they added.

According to the Ninth Circuit, a CW-1 visa applicant must specify the dates for which the visa, if approved, would be effective.

“None of the visas HKE applied for would have been in effect beyond Nov. 7, 2015, and HKE has not submitted any further visa applications.

“Further, we take judicial notice of HKE’s statement to the district court in another matter that it ceased business operations in the Northern Mariana Islands in March 2016.”

It follows that HKE no longer has a need for CW-1 visas, the Ninth Circuit judges said.

Accordingly, “even if HKE were to prevail on the merits of its suit at trial, no court could compel USCIS to issue HKE visas that would be effective going forward.”

HKE’s request for a declaration that it is a “legitimate employer” is likewise not justiciable, the Ninth Circuit said.

It added that USCIS denied HKE’s visa applications in part because the company did not meet its burden to establish that it was an “eligible employer engaged in legitimate business.”

In its appeal, HKE alleged that it suffered a reputational injury from USCIS’s denial of its visa applications.

“But there is no redress available for that injury on this posture,” the Ninth Circuit stated. “The sources of HKE’s alleged reputational injury are the civil and criminal enforcement proceedings that the [U.S.] government pursued against it, and any redress to that injury was to defending against the proceedings and appealing any adverse judgment. Neither USCIS nor the courts can change the outcome of these proceedings.  Thus, because we cannot redress HKE’s alleged injury, it lacks standing to pursue this claim.”

Judge Manglona dismissed HKE’s lawsuit with prejudice, saying that no amendment could cure the jurisdictional defect, and that allowing HKE to amend the lawsuit would also be futile.