                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT



                                      No. 13-4811
                                     ____________

                               ARIPOV SHUKHRAT;
                              ZUKAUSKIENE REGINA,
                                              Appellants

                                            v.

        SECRETARY U.S. DEPARTMENT OF HOMELAND SECURITY;
    DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS);
        DISTRICT DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION
           SERVICES (USCIS) PHILADELPHIA, PENNSYLVANIA


                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 2-12-cv-04137)
                    District Judge: Honorable Mitchell S. Goldberg


                      Submitted under Third Circuit LAR 34.1(a)
                                  on June 3, 2014
              Before: HARDIMAN, SCIRICA and ROTH, Circuit Judges

                                (Filed: January 23, 2015)


                                      OPINION


ROTH, Circuit Judge:
_______________________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
          Shukhrat Aripov and Regina Zukauskiene1 appeal from the District Court’s order

granting summary judgment to defendants, the Secretary of the U.S. Department of

Homeland Security, the Acting Director of the U.S. Citizenship and Immigration Services

(USCIS), and the Philadelphia District Director of the USCIS, on Aripov and

Zukauskiene’s request for relief from the USCIS’s denial of their Petitions for U

Nonimmigrant status (Form I-918 petitions). For the reasons set forth below, we will

affirm.

                                               I.

          Aripov is a native and citizen of Uzbekistan. Zukauskiene is a native and citizen

of Lithuania. Both entered the United States in 2001 as B-2 nonimmigrant visitors and

stayed after their visas and passports expired. On August 15, 2009, they were assaulted

in their home. Following the incident, the police checked their identification documents

and the Department of Homeland Security commenced removal proceedings against

them.

          On August 20, 2010, Aripov and Zukauskiene filed Form I-918 petitions, which

allow USCIS to grant temporary lawful resident status (known as U-Visas) to victims of

certain qualifying crimes who have been helpful, or are likely to be helpful, in the

investigation or prosecution of that crime. USCIS later notified Aripov and Zukauskiene

that their petitions were incomplete because their passports were expired and they

therefore could not demonstrate admissibility, a requirement for obtaining a U-Visa.


1
 Although appellants filed this appeal under the names “Aripov Shukhrat” and
“Zukauskiene Regina,” it appears that they reversed their first names and last names.
                                               2
USCIS requested that Aripov and Zukauskiene either send a copy of valid passports or

obtain waivers of admissibility by filing Applications for Advance Permission to Enter as

a Nonimmigrant (Form I-192s). Aripov and Zukauskiene failed to take either action, and

USCIS ultimately denied their petitions.

       Following the denial, Aripov and Zukauskiene filed Form I-192s but USCIS

denied both applications because there were no pending U-Visa petitions. Aripov and

Zukauskiene then appealed to the Administrative Appeals Office (AAO), which held that

Aripov and Zukauskiene were inadmissible because they lacked valid passports and had

not filed timely waivers, and, in any event, did not meet the statutory criteria because

their assailant was not charged with qualifying crimes.

       On July 20, 2012, Aripov and Zukauskiene filed a complaint in the Eastern

District of Pennsylvania alleging that the government’s denial of their Form I-918

petitions violated the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06, law of

mandamus, 28 U.S.C. § 1361, and the Fifth Amendment of the U.S. Constitution. On

November 27, 2013, the District Court granted summary judgment in favor of the

government, concluding that Aripov and Zukauskiene were ineligible for U-Visas

because of their inadmissibility and failure to receive a waiver. The District Court did

not address whether they were victims of a qualifying crime.

                                            II.2




2
 The District Court had jurisdiction under 28 U.S.C. § 1331. We exercise jurisdiction
under 28 U.S.C. § 1291.
                                             3
       We employ “a de novo standard of review to grants of summary judgment,

‘applying the same standard as the District Court.’” Montone v. City of Jersey City, 709

F.3d 181, 189 (3d Cir. 2013) (quoting Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d

Cir. 1995)). Under the APA, district courts must determine whether agency decisions

were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A). An action is arbitrary and capricious if the agency “failed to

examine the relevant data and articulate a satisfactory explanation for its action including

a ‘rational connection between the facts found and the choice made.’” Motor Vehicle

Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-43 (1983) (quoting

Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

       The primary issue on appeal is whether the AAO’s denial of appellants’ Form I-

918 petitions was arbitrary and capricious when it determined that appellants were

inadmissible and did not file a timely waiver application. To be eligible for a U-Visa, a

petitioner must be “admissible to the United States,” 8 C.F.R. § 214.1(a)(3)(i), or have

the grounds for inadmissibility waived after filing a Form I-192, id. § 214.14(c)(2)(iv).

“Any nonimmigrant who . . . is not in possession of a passport valid for a minimum of six

months from the date of the expiration of the initial period of the alien’s admission or

contemplated initial period of stay . . . is inadmissible.” 8 U.S.C. § 1182(a)(7)(B)(i)(I).

Here, it is undisputed that Aripov and Zukauskiene were ineligible because they lacked

valid passports and therefore were required to have those grounds for inadmissibility

waived after filing a Form I-192. Even after USCIS specifically requested this



                                              4
information, they failed to submit the appropriate documents. As a result, Aripov and

Zukauskiene were ineligible for U-Visas.3

       Appellants claim that the AAO’s imposition of an admissibility requirement is

ultra vires because admissibility is only an issue at the time of admission, not during

adjudication of U-Visa eligibility. According to appellants, requiring admissibility at the

time of U-Visa consideration subjects applicants to a large waiver fee, even if their

applications are subsequently denied. This prerequisite, however, is based entirely on

statutory requirements. According to the statute, “aliens who are inadmissible . . . are

ineligible to receive visas,” 8 U.S.C. § 1182(a), and not being in possession of a valid

passport is a ground of inadmissibility, id. § 1182(a)(7)(B)(i)(I). Thus, the District Court

did not err in holding that appellants were required to either produce a copy of a valid

passport or obtain a waiver.

       Appellants also argue that the District Court erred by not considering the AAO’s

real reason for its denial of the Form I-918 petitions: its determination that Aripov and

Zukauskiene were not victims of a qualifying crime. But the AAO first concluded that

Aripov and Zukauskiene were inadmissible to the United States because they did not

possess valid passports and their Form I-192s were denied. The AAO then determined—

as an alternative basis for denying the petitions—that Aripov and Zukauskiene were not

victims of a qualifying crime. The District Court did not need to consider this alternative

argument because the AAO could have denied Aripov and Zukauskiene’s petitions solely

3
 The fact that Aripov and Zukauskiene submitted Form I-192s after USCIS denied their
petitions does not compel a different result. Once USCIS denied their petitions, it was
futile for the agency to consider untimely Form I-192s.
                                             5
on the basis of inadmissibility. Accordingly, the District Court correctly held that the

AAO’s decision was not arbitrary and capricious and therefore did not violate the APA.

       Aripov and Zukauskiene’s remaining claims also fail. A writ of mandamus cannot

be used to compel or control a federal officer’s discretionary duties. See Heckler v.

Ringer, 466 U.S. 602, 616-17 (1984). Since the applicable statutes provide USCIS with

the sole discretion to determine eligibility for U-Visas, see Torres-Tristan v. Holder, 656

F.3d 653, 656 n.3 (7th Cir. 2011), mandamus is not warranted. Similarly, Aripov and

Zukauskiene’s due process claim fails because they are not entitled to a visa as a matter

of right, see id., and therefore have no claim of entitlement to a liberty or property

interest, see Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 579 (1972).

                                             III.

       For the foregoing reasons, we will affirm the District Court’s judgment.




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