Hasan v. Wolf

550 F.Supp.3d 1342

MD Fojle HASAN, Plaintiff,

v.Chad WOLF, Acting Secretary of U.S. Department of Homeland Security, et al., Defendants.

CIVIL ACTION NO. 1:20-CV-03831-JPB

United States District Court, N.D. Georgia, Atlanta Division.

Signed July 22, 2021

Filed July 23, 2021

H. Glenn Fogle, Jr., The Fogle Law Firm, LLC, Atlanta, GA, for Plaintiff.

Y. Soo Jo, Office of the United States Attorney, Atlanta, GA, for Defendants.

ORDER

J. P. BOULEE, United States District Judge

This matter is before the Court on Chad F. Wolf, Kenneth T. Cuccinelli and Tracy Renaud's (collectively, "Defendants") Motion to Dismiss [Doc. 12]. This Court finds as follows:

MD Fojle Hasan ("Plaintiff") is a native and citizen of Bangladesh. [Doc. 1, p. 2]. On June 12, 2017, he applied for a U nonimmigrant visa ("U-Visa") by filing with the United States Citizenship and Immigration Services ("USCIS") an I-918 Petition for U Nonimmigrant Status ("the Petition"). Id. A U-Visa affords temporary immigration benefits to certain aliens who are victims of violent crimes.¹ On January 24, 2018, Plaintiff submitted a related Application for Employment Authorization ("the Application"). Id. at 3. Although pending for more than three years, USCIS has not adjudicated either the Petition or the Application.

Asserting that Defendants have unreasonably delayed adjudication of both, Plaintiff filed his Original Complaint for Writ of Mandamus and Declaratory Judgment ("Complaint") against Defendants on September 16, 2020. Proceeding under both the Administrative Procedure Act ("APA") and the Mandamus Act, Plaintiff seeks an order compelling Defendants to adjudicate his Petition and Application. Id. at 15. On December 1, 2020, Defendants filed the instant Motion to Dismiss seeking dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).² [Doc. 12].

LEGAL STANDARD

A defendant may challenge subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) either facially or factually. Douglas v. United States, 814 F.3d 1268, 1274-75 (11th Cir. 2016). A facial attack requires the court to examine the complaint, taken as true, to determine whether the plaintiff has sufficiently alleged a jurisdictional basis. Id. at 1274. On the other hand, a factual attack requires the court to examine matters outside the pleadings to determine whether the plaintiff has sufficiently alleged a basis for the court's jurisdiction. Id. at 1278. In a factual attack, the plaintiff's claims are not taken as true. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Moreover, a factual challenge places the burden of proving jurisdiction on the plaintiff. OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002).

DISCUSSION

The issue here is whether this Court has jurisdiction to compel Defendants, under either the APA or the Mandamus Act, to adjudicate Plaintiff's Petition and Application. As a starting point, it is important to recognize that jurisdiction is limited under both the APA and the Mandamus Act. The principal purpose of this limited jurisdiction is "to protect agencies from undue judicial interference" and "to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve." Norton v. S. Utah Wilderness All., 542 U.S. 55, 66, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004).

The APA authorizes suit by a person suffering a legal wrong because of agency action or inaction. 5 U.S.C. § 702. In the context of an agency's failure to act, 5 U.S.C. § 706(1) provides that a reviewing court shall "compel agency action unlawfully withheld or unreasonably delayed." Importantly, the Supreme Court of the United States has made clear that agency delays or "failures to act are sometimes remediable under the APA, but not always." Norton, 542 U.S. at 62, 124 S.Ct. 2373. In fact, a claim under the APA can only proceed where a plaintiff asserts "that an agency failed to take a discrete agency action that it is required to take. " Id. at 64, 124 S.Ct. 2373. The limitation to discrete agency action precludes broad programmatic attacks while the limitation to required agency action rules out agency action that is not demanded by law. Id. The Supreme Court has given the following example: "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. In Norton, the Supreme Court clarified that "[t]he prospect of pervasive oversight by federal courts over the manner and pace of agency compliance with ... congressional directives is not contemplated by the APA." Id. at 67, 124 S.Ct. 2373.

Similarly, the Mandamus Act provides that district courts have original jurisdiction to compel officers or employees of the United States or any agency thereof to perform duties owed to a plaintiff. 28 U.S.C. § 1361. Mandamus, which is an extraordinary remedy, is only appropriate when: "(1) the plaintiff has a clear right to the relief requested; (2) the defendant has a clear duty to act; and (3) ‘no other adequate remedy [is] available.’ " Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003). In other words, mandamus "is intended to provide a remedy for a plaintiff ... only if the defendant owes him a clear nondiscretionary duty." Id.

There are two additional limitations on this Court's jurisdiction important for this case—one in the APA and the other in the Immigration and Nationality Act ("INA"). First, 5 U.S.C. § 701(a)(2), a provision of the APA, precludes review of "agency action [that] is committed to agency discretion by law." Second, the INA strips this Court of "jurisdiction to review any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security." 8 U.S.C. § 1252(a)(2)(B)(ii). Under this provision, courts are precluded from reviewing discretionary decisions or actions of USCIS. Orabi v. Chertoff, 562 F. Supp. 2d 1377, 1380-81 (N.D. Ga. 2007).

In this case, Plaintiff does not allege that Defendants have refused to act or will never adjudicate his Petition and Application. Instead, Plaintiff contends that Defendants are proceeding too slowly. Thus, this case hinges on whether Defendants’ pace of adjudication is a non-discretionary duty. Plaintiff concedes that the ultimate decision whether to grant or deny the Petition and the Application is discretionary but argues that the adjudication leading to that discretionary decision is a mandatory duty. In response, Defendants argue that the pace of adjudication is not subject to judicial review, as Congress left the process entirely to the agency's discretion. The Eleventh Circuit Court of Appeals has not yet addressed the issue.³

I. The I-918 Petition

This Court will begin by analyzing whether it can compel Defendants to adjudicate Plaintiff's Petition. For this Court to have jurisdiction, it must find that Defendants have a non-discretionary duty as to the pace of adjudicating Plaintiff's Petition.

Through the INA, Congress empowered the executive branch to oversee the process and conditions of admitting aliens into the United States. See Pub. L. No. 82-414, § 101, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. § 1101 ). A great deal of that authority has been delegated to USCIS. Relevant to this case, USCIS is responsible for administering the U-Visa Program, which was established in 2000 for certain victims of serious crimes who cooperate with law enforcement. 8 C.F.R. § 214.14(c)(1). See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386 § 1513(a)(2)(B), 114 Stat. 1464, 1533 (2000) (codified at 8 U.S.C. § 1101(a)(15) ). Aliens approved for a U-Visa are entitled to temporary resident status and employment authorization. 8 U.S.C. § 1184(p)(3).

In 2005, Congress amended the U-Visa Program in the Violence Against Women and Department of Justice Reauthorization Act. Pub. L. 109-162, 119 Stat. 2960 (2006). Under this Act, the Secretary of Homeland Security was directed to promulgate regulations to implement the statutory U-Visa provisions, which the Secretary did in 2007. Under the regulations, the Secretary gave USCIS sole jurisdiction over U-Visa petitions. 8 C.F.R. § 214.14.

Congress capped the number of U-Visas at 10,000 per year. 8 U.S.C. § 1184(p)(2). Anticipating that the statutory cap would be met, USCIS created a regulatory waiting list process. 8 C.F.R. § 214.14(d)(2) ; 72 Fed. Reg. 53014 (Sept. 17, 2007). Under the pertinent regulation, after USCIS determines that a U-Visa petition is approvable, but a visa is not available due to the statutory cap, the petitioner must be placed on the waiting list. 8 C.F.R § 214.14(d)(2). Waiting list priority is determined by the date on which the petition was filed, with the oldest receiving the highest priority. Id. Placement on the waiting list is important because the petitioner will receive deferred action if they are in the United States and USCIS may authorize employment for wait-listed petitioners. Id.

As detailed previously, neither the APA nor the Mandamus Act provides jurisdiction over a claim that an agency failed to take a discretionary action. Review of the statutory and regulatory provisions pertaining to the U-Visa Program demonstrates that the pace of adjudicating U-Visa petitions is statutorily committed to the discretion of the Secretary, and by extension, USCIS. See 8 U.S.C. § 1101(a)(15)(U)(i) (providing that U-Visas shall be provided to applicants "if the Secretary of Homeland Security determines that" they meet eligibility criteria); 8 C.F.R. § 214.14(c)(1) ("USCIS has sole jurisdiction over all petitions for U nonimmigrant status."). Yes, USCIS must adjudicate petitions. But how it does that is left to its...