NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT YA-WEN HSIAO, No. 19-16870 Plaintiff-Appellant, D.C. No. 1:18-cv-00502-JAO-KJM v. EUGENE SCALIA, in his capacity as the MEMORANDUM* United States Secretary of Labor, Defendant-Appellee. Appeal from the United States District Court for the District of Hawaii Jill Otake, District Judge, Presiding Argued and Submitted April 14, 2020 San Francisco, California Before: PAEZ and CLIFTON, Circuit Judges, and HARPOOL,** District Judge. Ya-Wen Hsiao, an “alien” within the meaning of 8 U.S.C. § 1101(a)(3), appeals the district court’s dismissal of her First Amended Complaint. Hsiao’s First Amended Complaint sought review, pursuant to the Administrative Procedure * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, sitting by designation. Act, 5 U.S.C. § 704, of the Department of Labor’s (“DOL”) denial of an application for permanent employment certification. The DOL denied the application that Hsiao’s employer, the University of Hawaii John A. Burns School of Medicine, filed on her behalf. The district court dismissed Hsiao’s amended complaint because it concluded she lacked Article III standing and prudential standing to seek review of the DOL’s denial. I. Article III Standing A. Standard of Review We review the district court’s grant of a motion to dismiss de novo. Chamber of Commerce of the United States of Am. v. City of Seattle, 890 F.3d 769, 779 (9th Cir. 2018) (citing Shames v. Cal. Travel & Tourism Comm’n, 626 F.3d 1079, 1082 (9th Cir. 2010)). B. Causation and Redressability To establish constitutional standing, plaintiff must: 1) have an injury-in- fact; 2) that is fairly traceable to the challenged conduct of the defendant; and 3) can likely be redressed with a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The district court held that Hsiao had alleged an injury-in-fact from the denial of the application for permanent employment certification, but that she could not show causation and redressability, and therefore did not have standing to pursue her claim. 2 19-16870 The Immigration and Nationality Act provides a three-step process for a noncitizen to become a permanent resident by obtaining an employment visa. First, the alien’s employer is required to submit an Application for Permanent Employment Certification to the DOL on behalf of the alien as the beneficiary in the process. A certification is issued if the Secretary of Labor determines that: I) there are not sufficient workers who are able, willing, qualified … and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. 8 U.S.C. § 1182(a)(5)(A)(i). Second, if the ...
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