Doe v. Wolfe

JANE DOE #1, Plaintiff, v. CHAD WOLFE, et al., Defendant.

Civil No. 1:20-CV-02339

United States District Court, M.D. Pennsylvania

September 13, 2021

MEMORANDUM

JENNIFER P. WILSON UNITED STATES DISTRICT COURT JUDGE

Before the court is Defendants' motion to dismiss Plaintiff's claims for relief directing the United States Citizenship and Immigration Service (“USCIS”) to adjudicate her U Visa petition and related application for employment authorization. (Doc. 8.) For the reasons that follow, the court grants in part and denies in part the motion to dismiss. (Id.)

Factual Background and Procedural History

A. Statutory and Regulatory Framework for the U Visa Program

In October 2000, Congress amended the Immigration and Nationality Act (“INA”) to establish the U Visa program as part of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, 114 Stat. 1464. The U Visa program grants qualified individuals lawful temporary resident status and employment authorization for the duration of their U Visa status. 8 U.S.C. § 1184(p)(3)(B). To qualify for a U Visa, a petitioner must show that they: (1) “suffered substantial physical or mental abuse as a result of having been a victim of a qualifying crime;” (2) possess information pertaining to that crime; (3) are cooperating with the investigation or prosecution; and (4) that the crime in question violated the laws of the United States and occurred in the United States or its territories and possessions. 8 U.S.C. § 1101(15)(U). If an individual wishes to apply for a U Visa, they must submit a Form I-918 Petition for U Nonimmigrant Status along with a sworn certification from law enforcement personnel stating that the individual applying for a U Visa was a victim of a qualifying crime, has information about the qualifying crime and has been helpful to an investigation or prosecution regarding the qualifying crime. 8 C.F.R. § 214.14(c).

Under the current law, Congress has only authorized the USCIS to issue 10, 000 principal U Visas per year. 8 U.S.C. § 1184(p)(2)(A). However, since the U Visa program's inception, the number of U Visa petitioners has exceeded the 10, 000 statutory cap, resulting in a massive backlog of U Visa petitions waiting to be processed. To account for this backlog, the USCIS created a waitlist process by regulation requiring that “[a]ll 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) (emphasis added). The effect of this regulation is that when the USCIS has already issued the allotted amount of 10, 000 U Visas for the year, and if there are qualified individuals who submitted U Visa petitions that exceed the yearly cap, then those individuals must be placed on the waiting list. Id. Once a petitioner is placed on this U Visa waiting list, the petitioner and their qualifying family members receive deferred action while they wait for adjudication of their U Visas. Id.

In addition to receiving the benefit of deferred action, there are ways in which a waitlisted petitioner and their qualifying family members may receive employment authorization while their U Visa petition is pending. First, on December 23, 2008, Congress amended 8 U.S.C. § 1184(p)(6) and specified that “[t]he Secretary [of Homeland Security] may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 1101(a)(15)(U).” 8 U.S.C. § 1184(p)(6). Second, the implementing regulation, 8 C.F.R. § 214.14(d)(2), states that the “USCIS, in its discretion, may authorize employment” for waitlisted petitioners and qualifying family members. Third, on June 14, 2021, the USCIS published a Policy Manual update which includes the implementation of the Bona Fide Determination (BFD) process, a process that may result in employment authorization and deferred action to U Visa petitioners who (1) have a bona fide U Visa petition and (2) have a favorable background and security check. See USCIS Policy Manual, Volume 3, Part C, Chapter 5, https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-5 (last visited August 26, 2021). Fourth, and finally, prior to January 17, 2017, there was a regulation in effect which provided that the “USCIS will adjudicate the [U Visa] application within 90 days from the receipt of the application . . . Failure to complete the adjudication within 90 days will result in the grant of an employment authorization document for a period not to exceed 240 days.” 8 C.F.R § 274a.13(d) (repealed Jan. 17, 2017). This regulation was repealed on January 17, 2017.

Although the waiting list was created to alleviate some of the issues caused by the statutory cap, U Visa petitioners are experiencing a waiting period of approximately five years between the date when they file their U Visa petitions and the date when they are placed on the waiting list. As a result, individuals applying for U Visas are experiencing two separate waiting periods: (1) the time between the initial filing of their Form I-918 and their placement on the waiting list; and (2) the time they spend on the waiting list before receiving their U Visa. The case at hand addresses only the first waiting period. The USCIS claims that the new BFD process will “enable the USCIS to review petitions more efficiently, and provide the benefits of employment authorization and deferred action to more petitioners in a shorter time period than the waiting list process.” See USCIS Case Processing Times, https://egov.uscis.gov/processing-times/ (last visited August 27, 2021). However, the USCIS does not have sufficient data to report accurate BFD processing times at this time. Id.

B. Plaintiffs U Visa Petition

Plaintiff Jane Doe #1 (“Doe #1”) is a citizen of Guatemala who entered the United States without inspection on April 4, 2000, and has been living in the United States ever since. (Doc. 1, ¶¶ 10-11.) Doe #1's daughter, Jane Doe #2 (“Doe #2”) was sexually assaulted by a family friend while she was living in Chambersburg, Pennsylvania. (Id. ¶ 42.) Doe #1 and Doe #2 reported the assault to the Chambersburg Police Department, cooperated with the police, and helped in an investigation conducted by the Children's Advocacy Center. (Id. ¶ 43.) On December 19, 2016, Doe #1 filed a Form I-918 Petition for U Visa Nonimmigrant Status along with the required certification signed by the Franklin County District Attorney certifying that Doe #1's daughter was sexually assaulted and that both Doe #1 and Doe #2 cooperated in the investigation of the crime. (Id. ¶¶ 44-47.) In addition, Doe #1 filed the accompanying Form I-765 Application for Employment Authorization. (Id. ¶ 48.) On August 8, 2019, the USCIS transferred Doe #1's relevant U Visa forms from the USCIS's Vermont Service Center to its Nebraska Service Center. (Id. ¶ 50.) However, Doe #1 alleges that, as of the time of filing the complaint in this court, even though almost four years had passed since the filing of her petition and application, the USCIS has taken no other action regarding her petition and application for work authorization. (Id. ¶ 51.)

C. Plaintiff's Claims

On December 14, 2020, Doe #1 filed a complaint under the Administrative Procedure Act (“APA”) and the Mandamus Act. (Id. ¶¶ 58-82.) The complaint contains three counts. Count I of the complaint asks the court to make three separate determinations: (1) that the four-year waiting period constituted an unreasonable delay of the USCIS's nondiscretionary obligation to determine Doe #1's eligibility for the U Visa waitlist within a reasonable amount of time; (2) if the USCIS determines that Doe #1 qualifies for the U Visa waitlist, the USCIS has a nondiscretionary duty to place her on the waitlist and to grant her deferred action within a reasonable amount of time; and (3) if the USCIS determines that Doe #1 is eligible for the U Visa waitlist, the USCIS has a nondiscretionary duty to grant her a temporary employment authorization document within a reasonable amount of time. (Id. ¶¶ 58-64.) Count II alleges that the USCIS's failure to issue Doe #1 employment authorization as required by 8 C.F.R. § 274a.13 violates the APA. (Id. ¶¶ 65-72.) Finally, Count III alleges an unlawful failure to determine eligibility for the U Visa waitlist under the Mandamus Act. (Id. ¶¶ 73-82.)

Standard of Review

A. Lack of Subject Matter Jurisdiction

Defendants seek dismissal of the complaint. (Doc. 8.) Defendants first seek dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The court, in determining whether it has subject matter jurisdiction, must decide “whether the allegations on the face of the complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district court.” Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006) (quoting Licata v. U.S. Postal Serv., 33 F.3d 259, 260 (3d Cir. 1994)). Rule 12(b)(1) challenges may be “facial” or “factual.” See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial attack, which is at issue here, challenges whether jurisdiction has been properly pled and requires the court to “only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.” Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen, 549 F.2d at 891).

B. Failure to State a Claim

In the alternative, Defendants seek dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. In order “[t]o survive a Rule 12(b)(6) motion, a...