Butanda v. Wolf

516 F.Supp.3d 1243

Adriana Guerrero BUTANDA, Plaintiff,

v.Chad F. WOLF, in his official capacity as Acting Secretary of U.S. Department of Homeland Security; Kenneth T. Cuccinelli, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services; and Laura Zuchowski, in her official capacity of Director of the U.S. Citizenship and Immigration Services’ Vermont Service Center, Defendants.

Case No. 1:20-cv-01155-DDD-STV

United States District Court, D. Colorado.

Signed February 1, 2021

David Lawrence Kolko, Jennifer Rilen Casey, Jessica D. Bunnell, Kolko & Casey P.C., Denver, CO, for Plaintiff.

Timothy Bart Jafek, U.S. Attorney's Office, Denver, CO, for Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

Daniel D. Domenico, United States District Judge

Plaintiff Adriana Butanda is a citizen of Mexico who resides in Colorado. She does not have legal status to be in the United States. In April 2018, however, she applied to the United States Citizenship and Immigration Services (USCIS) to receive what's known as a "U-Visa," which, if granted, would entitle her to temporary-resident status. She also submitted two applications to USCIS for employment authorization, one seeking authorization based on her U-Visa application and the other seeking employment authorization in anticipation that USCIS would place her on the U-Visa waitlist.

To date, USCIS has not processed Ms. Butanda's U-Visa or employment-authorization applications. Figuring two years was too long to wait, Ms. Butanda filed this suit. She asserts five claims for relief. Her first two claims, which are premised on the Administrative Procedure Act and the court's power to issue writs of mandamus, respectively, assert that Defendants have unreasonably delayed the decision whether to place Ms. Butanda on the U-Visa waiting list. Her third and fourth claims, which also invoke the APA and the court's mandamus power, assert that Defendants have unreasonably delayed the determination whether Ms. Butanda is entitled to employment authorization. Her fifth claim seeks attorneys’ fees under the Equal Access to Justice Act.

Defendants move to dismiss Ms. Butanda's complaint for lack of jurisdiction and for failure to state a claim. Because the pace of adjudication of a U-Visa and an employment authorization are discretionary decisions that Congress has deprived federal courts of jurisdiction to review, See 8 U.S.C. § 1252(a)(2)(B)(ii), the court grants Defendants’ motion and dismisses Ms. Butanda's suit.

BACKGROUND

I. U Visas

Through the Immigration and Nationality Act, Congress empowered the Executive Branch to oversee the process and conditions of admitting aliens into the United States. See Pub. L. No. 82-414, 66 Stat. 163 (1952). Among other things, the Act charges the Secretary of the Department of Homeland Security with the duty to "establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under" the Act. 8 U.S.C. § 1103(a)(3). The Secretary has in turn delegated much of his authority to administer immigration to USCIS. See 8 C.F.R. § 2.1.

Administration of the U-Visa program, which garners its name from the subparagraph at which it is codified— 8 U.S.C. § 1101(a)(15)(U), is among USCIS's delegated responsibilities. An alien may be entitled to U-Visa status if (1) "the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity"; (2) "the alien ... possesses information concerning criminal activity"; (3) "the alien ... has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity"; and (4) "the criminal activity ... violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States." 8 U.S.C. § 1101(a)(15)(U)(i). Aliens approved for a U-Visa are entitled to temporary resident status and employment authorization. 8 U.S.C. § 1184(p)(3).

No statutory provision requires USCIS to approve a U-Visa application, even if the application meets the statutory criteria. Congress has instead committed the decision of when to admit a U-Visa application—and the process for making that decision—to USCIS's discretion. See 8 U.S.C. § 1184(a)(1) ("The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe USCIS has, through its delegated authority to promulgate implementing regulations."). USCIS under that delegated authority has said that it "will approve" a U-Visa application if the applicant meets the statutory definition in Section 1101(a)(15)(U). 8 C.F.R. § 214.14(c)(5)(i). But importantly, Congress has limited USCIS's authority to approve U-Visas by imposing a 10,000-visa-per-fiscal-year cap: "The number of aliens who may be issued visas or otherwise provided status as nonimmigrants under section 1101(a)(15)(U) of this title in any fiscal year shall not exceed 10,000." 8 U.S.C. § 1184(p)(2). This means that depending on the number of U-Visa applications in a given year, many meritorious applicants may not receive a U-Visa.

And the reality is that there are many more U-Visa applications than U-Visas available. To accommodate these excess applications, USCIS and the Department of Homeland Security created a U-Visa waitlist: "All eligible petitioners who, due solely to the cap, are not granted U–1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement." 8 C.F.R. § 214.14(d)(2). An applicant's priority on the wait list is "determined by the date the petition was filed with the oldest petitions receiving the highest priority." Id. Once on the waiting list, a U-Visa applicant is granted deferred action of any deportation proceedings. Id.

As for work authorization, Congress has authorized the Department of Homeland Security to grant work authorization to aliens with pending U-Visa applications: "The Secretary may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 1101(a)(15)(U) of this title." 8 U.S.C. § 1184(p)(6). The implementing regulation for Section 1184(p)(6) provides that "USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members." 8 C.F.R. § 214.14(d)(2).

The upshot of these statutes and regulations is that the U-Visa process proceeds in three stages. At stage one, a U-Visa applicant whose application has not been processed by USCIS is not entitled to temporary resident status, deferred action, or work authorization. At stage two, a U-Visa applicant whose application has been processed and meets the statutory criteria will be placed on the waitlist. A stage-two applicant is entitled to deferred action and is eligible for work authorization. At stage three, a U-Visa applicant whose application has been approved is entitled to temporary resident status and employment authorization.

II. Ms. Butanda's Suit

Ms. Butanda is at stage one of the U-Visa process. She filed a U-Visa application and requests for work authorization in April 2018. To date, USCIS has not processed her applications. She thus seeks, through this suit, to compel USCIS to adjudicate her applications. Defendants respond that its pace of adjudication of U-Visa applications and work authorization are discretionary matters; since Congress has prohibited judicial review of such discretionary matters, then, they move to dismiss for lack of subject matter jurisdiction.¹

ANALYSIS

Defendants move to dismiss Ms. Butanda's complaint under Federal Rule of Civil Procedure 12(b)(1). Defendants attack the complaint on its face. See Maestas v. Lujan , 351 F.3d 1001, 1013 (10th Cir. 2003) (noting that 12(b)(1) motions take two forms: facial attack and attack based on evidence outside the complaint). The court will grant Defendants’ motion if the allegations in the complaint, taken as true, fail to present a valid basis for subject-matter jurisdiction. See id.

I. Jurisdiction Over Discretionary Immigration Decisions

Ms. Butanda invokes two bases for jurisdiction: the Administrative Procedure Act and the All Writs Act.

The Administrative Procedure Act generally permits a court to step in when an agency fails to act. A reviewing court must "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). Relief under Section 706(1) is limited to an agency's failure "to take a discrete agency action that it is required to take." Norton v. S. Utah Wilderness All. , 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Section 706(1) ’s "limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law." Id. So "when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency's discretion, a court can compel the agency to act, but has no power to specify what the action must be." Id. at 65, 124 S.Ct. 2373. Section 706(1) encompasses actions mandated by statute and by regulation. Id.

The All Writs Act, 28 U.S.C. § 1651, similarly empowers this court to compel an agency, usually through a writ of mandamus, to carry out some "specific, unequivocal command" required of it by law. Id. at 64, 124 S.Ct. 2373. A court may issue a writ of mandamus ordering an agency to act only if the act requested is "precise" and "definite," "about which [an agency] had no discretion." Id. A writ of mandamus may issue, in short, for only ministerial, non-discretionary duties. Id.

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