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Xie v. Kerry

United States Court of Appeals, District of Columbia Circuit

March 10, 2015

MEINA XIE, APPELLANT
v.
JOHN F. KERRY, AS UNITED STATES SECRETARY OF STATE, APPELLEE

Argued: January 15, 2015.

Appeal from the United States District Court for the District of Columbia. (No. 1:13-cv-606).

Christopher A. Teras argued the cause for appellant. On the briefs was Mike Meier.

Aaron S. Goldsmith, Senior Litigation Counsel, U.S. Department of Justice, argued the cause for appellee. With him on the brief was Stuart F. Delery, Assistant Attorney General.

Before: HENDERSON and MILLETT, Circuit Judges, and WILLIAMS, Senior Circuit Judge. OPINION filed by Senior Circuit Judge WILLIAMS.

OPINION

Williams, Senior Circuit Judge:

Meina Xie alleges that the Department of State is illegally delaying review of visa applications filed by persons in certain immigration categories. The district court dismissed the complaint, finding that Xie had failed " to identify any discrete agency action that [State was] required to take." In the alternative, it said, she failed to point to " authority" legally requiring the relief she sought. Xie v. Kerry, 21 F.Supp.3d 89, 93 (D.D.C. 2014). But in fact Xie specifically asked for application of § 203(e)(1) of the Immigration and Nationality Act (" INA" ), 8 U.S.C. § 1153(e)(1). That section directs State to process immigrant applicants in the order of their filing:

Page 406

(e) Order of consideration

(1) Immigrant visas made available under subsection (a) or (b) of this section shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed with the Attorney General . . . as provided in section 1154(a) of this title.

8 U.S.C. § 1153(e)(1).

The district court did not mention this provision. While it may prove in the end that the broadly varying lengths of the queues for various categories of immigration applicants are consistent with § 203(e)(1)'s temporal priority mandate, Xie is entitled to have her claim assessed. We reverse and remand for further proceedings.

* * *

The INA limits the number of annual visas to be granted to applicants for immigration to the United States. See 8 U.S.C. § 1101 et seq. Apart from § 203's first-in, first-out principle, the statute creates a variety of categories for which visas are to be granted. For example, applicants seeking to qualify for employment visas must fit within one of the five employment-based " preference" categories enumerated in 8 U.S.C. § 1153(b), each subject to an annual cap. In addition, the statute imposes a country-based limit: visas for natives of any " single foreign state . . . under subsections (a) and (b) of section 1153" (relating to " family-sponsored" and " employment-based" immigrants, respectively) must constitute no more than 7% of visas issued under those subsections. 8 U.S.C. § ...


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