HONG KONG ENTERTAINMENT (OVERSEAS) INVESTMENT, LTD., DBA Tinian Dynasty Hotel and Casino v. United States Citizenship

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HONG KONG ENTERTAINMENT
(OVERSEAS) INVESTMENT, LTD.,
DBA Tinian Dynasty Hotel and Casino,
Petitioner-Appellant,
v.
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES; KIRSTJEN
NIELSEN, in her official capacity as
Secretary of the United States Department
of Homeland Security; L. FRANCIS
CISSNA, in his official capacity of
Director, United States Department of
Citizenship and Immigration Services,
Respondents-Appellees.
No. 17-17473
D.C. No. 1:16-cv-00009
MEMORANDUM*
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Ramona V. Manglona, Chief Judge, Presiding
Submitted February 11, 2019**
Honolulu, Hawaii
FILED
FEB 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: TALLMAN, BYBEE, and N.R. SMITH, Circuit Judges.
Hong Kong Entertainment (Overseas) Investment, Ltd. (“HKE”) appeals the
district court’s order dismissing its suit against the United States Customs and
Immigration Services (“USCIS”) and related officials for lack of subject matter
jurisdiction. HKE filed a petition for judicial review in district court after USCIS
denied 151 CW-1 visa applications which would have allowed HKE to employ
foreign workers at a casino in the Northern Mariana Islands. It asked the court 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 dismissal.
For a plaintiff’s claim to be justiciable, it “must have standing to bring the
claim, and the claim must not be moot.” Jacobs v. Clark Cty. Sch. Dist., 526 F.3d
419, 425 (9th Cir. 2008). To establish standing, a plaintiff must show “(1) an
injury in fact, (2) a sufficient causal connection between the injury and the conduct
complained of, and (3) a likelihood that the injury will be redressed by a favorable
decision.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157–58 (2014)
(citation, alterations, and punctuation omitted). A case is moot if there is no
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“present controversy as to which effective relief can be granted.” Doe No. 1 v.
Reed, 697 F.3d 1235, 1238 (9th Cir. 2012) (citation omitted).
HKE’s request that we instruct USCIS to approve the visa applications is not
justiciable because we may grant it no effective relief. 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 November 7, 2015,
and HKE has not submitted any further visa applications. It has not requested that
any alien be permitted to work in the United States for any present or future period.
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 need for CW-1 visas. 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. 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 reaching this determination, the agency cited
pending federal civil and criminal enforcement actions charging HKE with
violations of the Bank Secrecy Act (“BSA”). At the time USCIS issued its
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decision, HKE had entered into a non-prosecution agreement with the United
States Attorney in which it stipulated to violations of the BSA and agreed to a
three-year period of supervision during which it could be re-indicted if it violated
the terms of the agreement.
HKE alleges that it suffered a reputational injury from USCIS’s denial of its
visa applications on these grounds. But there is no redress available for that injury
in this posture. The sources of HKE’s alleged reputational injury are the civil and
criminal enforcement proceedings that the 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.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.1
1 USCIS’s motion for judicial notice, filed June 25, 2018, is GRANTED.
HKE’s motion for judicial notice, filed August 7, 2018, is GRANTED.
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