Santiago v. Mayorkas

554 F.Supp.3d 1340

Juan Antonio LARA SANTIAGO and Norma Emilia Avila Aguilar, Plaintiffs,

v.Alejandro MAYORKAS, in his official capacity as Secretary of the U.S. Department of Homeland Security; Tracy L. Renaud, in her official capacity as Senior Official Performing the Duties of Director of the U.S. Citizenship and Immigration Services; and Laura Zuchowski, in her official capacity as Director of the Vermont Service Center of the U.S. Citizenship and Immigration Services, Defendants.

Case No. 1:20-cv-5194-MLB

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

Signed August 13, 2021

Danielle M. Claffey, Kuck Baxter Immigration, LLC, Atlanta, GA, for Plaintiffs.

Sharon Alice Lim, U.S. Attorney's Office, Atlanta, GA, for Defendants.

OPINION & ORDER

MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE

On December 22, 2020, Plaintiffs Juan Antonio Lara Santiago and Norma Emilia Avila Aguilar sued Defendants challenging the delay in adjudicating petitions for bona fide U nonimmigrant status ("U Visa") and corresponding employment authorization documents ("EADs"). (Dkt. 1.) Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (b)(6). (Dkt. 10.) The Court grants in part and denies in part that motion.

I. Background

A. Statutory and Regulatory Background

In October 2000, Congress enacted the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, 114 Stat. 1464, which amended the Immigration and Nationality Act ("INA") and created the U-Visa program. See 8 U.S.C. § 1101(a)(15)(U). To qualify for a U Visa, a petitioner must show (1) he or she "suffered substantial physical or mental abuse as a result of having been a victim of a qualifying crime," (2) he or she has credible and reliable information about the qualifying crime, (3) he or she has been helpful, is being helpful, or is likely to be helpful to law enforcement in investigating or prosecuting the qualifying crime, and (4) the qualifying crime occurred in the United States or its territories or possessions, or violated a U.S. federal law that provides for extraterritorial jurisdiction. 8 C.F.R. § 214.14(b).

To apply for a U Visa, a petitioner must submit a Form I-918 (i.e., Petition for U Nonimmigrant Status) and Supplement B (i.e., a certification signed by a certifying agency stating that the petitioner possesses important information about the crime and will cooperate with the investigation or prosecution). See id. § 214.14(c)(1), (c)(2)(i). The United States Citizenship and Immigration Services ("USCIS") typically processes these petitions in the order received. Id. § 214.14(d)(2). If USCIS approves the U-Visa petition, the petitioner receives lawful nonimmigrant status and employment authorization for up to four years. Id. § 274a.12(a)(19); 8 U.S.C. § 1184(p)(3)(B).

Congress capped the number of U Visas at 10,000 per year. 8 U.S.C. § 1184(p)(2). In 2007, anticipating that the statutory cap would be met within the first few years of enactment, USCIS created a regulatory waitlist process. 8 C.F.R. § 214.14(d)(2). Under this process, once the statutory cap has been reached for the year, "[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." Id. In other words, if USCIS determines a U-Visa petition is meritorious but a visa is unavailable because of the statutory cap, the petitioner is placed on the waiting list. Id. After being placed on the waitlist, the petitioner and any qualifying family members receive deferred action if they are in the United States. Id. USCIS may also authorize employment for waitlisted petitioners and qualifying family members. Id.

B. Plaintiffs’ U-Visa Petitions

Plaintiffs are natives and citizens of Mexico. (Dkt. 1 ¶¶ 18–19.) They are married and have two U.S. citizen children together. (Id. ¶¶ 8, 18.) Plaintiff Lara Santiago alleges he is eligible for a U Visa because he was the victim of an aggravated assault. (Id. ¶¶ 8, 31–32.) As part of this, the Cobb County District Attorney's Office issued him a U-Visa Certification, confirming he was the victim of a qualifying crime and cooperated with law enforcement. (Id. ) He filed his U-Visa petition and petition for family member (i.e., Plaintiff Avila Aguilar) on January 30, 2018. (Id. ¶¶ 12, 33.)

On December 22, 2020, Plaintiffs sued Defendants under the Administrative Procedure Act ("APA") and the Mandamus Act. (Id. ¶¶ 35–49.) The complaint contains three counts. Count I is for "Unreasonable Delay of Determination of Plaintiffs’ Eligibility for U-[V]isa Waitlist" under the APA. (Id. ¶¶ 35–38.) They claim Defendants’ extensive delay without making eligibility determinations to place them on the U-Visa waitlist is unreasonable, in violation of the APA, 5 U.S.C. §§ 555(b) and 706(1). (Id. ¶ 37.) Count II is for "Failure to Comply With Statutory Timeline Mandating EAD Adjudication" under the APA. (Id. ¶¶ 39–42.) They allege Defendants’ refusal to adjudicate Plaintiffs’ eligibility for employment authorization is an "agency action unlawfully withheld or unreasonably delayed" under 5 U.S.C. § 706(1) and constitutes agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" under 5 U.S.C. § 706(2)(A). (Id. ¶ 42.) Count III is for "Unlawful Failure to Determine Plaintiffs’ Eligibility for U-[V]isa Waitlist" under the Mandamus Act. (Id. ¶¶ 43–49.) They allege they satisfy all the requirements for a writ of mandamus compelling Defendants to determine their eligibility for the U-Visa waitlist. (Id. ¶ 45.) They contend that once they properly filed their bona fide U-Visa petitions, they had a clear right to determination of eligibility for the U-Visa waitlist under 8 C.F.R. § 214.14(d)(2), and a clear right to that determination within a reasonable time under 5 U.S.C. § 555(b). (Id. ¶ 46.) According to Plaintiff, once USCIS received their U-Visa petitions, it had a nondiscretionary duty to decide within a reasonable time whether they were eligible for placement on the waitlist. (Id. ¶ 47.) Although this claim is entitled "Unlawful Failure to Determine," its content relates to a determination of eligibility for the U-Visa waitlist "within a reasonable period of time." (Id. ¶ 46.) Plaintiffs never allege Defendants’ outright refusal to process their petitions. Instead, they allege the pace of adjudication is too slow. The Court thus construes this claim to contain the same overarching allegation as Count I but acknowledges Plaintiff brought it under the Mandamus Act, not the APA.

Plaintiffs ask the Court to declare Defendants in violation of 5 U.S.C. §§ 555(b), 706(1), and 706(2)(A) ; 8 U.S.C. § 1184(p)(6) ; and 8 C.F.R. § 214.14(d)(2). (Id. at 13.) They also ask for a preliminary and permanent injunction requiring Defendants to determine their eligibility for placement on the U-Visa waitlist. (Id. ) Lastly, they request an award of attorneys’ fees and costs under the Equal Access to Justice Act. (Id. ) Defendants move to dismiss the complaint under Rule 12(b)(1) and 12(b)(6). (Dkt. 10.)

II. Standard of Review

A. Subject Matter Jurisdiction

A motion under Rule 12(b)(1) challenges the Court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "[B]ecause a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case...." Smith v. GTE Corp. , 236 F.3d 1292, 1299 (11th Cir. 2001). It is presumed that a federal court lacks jurisdiction in a case until the plaintiff shows the court has jurisdiction over the subject matter. See Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

A defendant may attack subject matter jurisdiction under Rule 12(b)(1) in two ways—a facial attack or a factual attack. See McElmurray v. Consol. Gov't. of Augusta-Richmond Cnty. , 501 F.3d 1244, 1251 (11th Cir. 2007). "A ‘facial attack’ on the complaint ‘requires the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.’ " Id. (alterations adopted) (quoting Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990) ). A factual attack, however, challenges the underlying facts supporting the Court's jurisdiction. Odyssey Marine Expl., Inc. v. Unidentified Shipwrecked Vessel , 657 F.3d 1159, 1169 (11th Cir. 2011). When evaluating a factual attack, "the district court is not obligated to take the allegations in the complaint as true." Id. "Instead, the ‘court may consider extrinsic evidence such as deposition testimony and affidavits,’ " and "[i]t may independently weigh the facts and is not constrained to view them in the light most favorable to the non-movant." Id.

B. Failure to State a Claim

A court may dismiss a pleading for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "At the motion to dismiss stage, all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff."

Bryant v. Avado Brands, Inc. , 187 F.3d 1271, 1273 n.1 (11th Cir. 1999) (citing Hawthorne v. Mac Adjustment, Inc. , 140 F.3d 1367, 1370 (11th Cir. 1998) ). Even so, a complaint offering mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" is insufficient. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). Put another way, a plaintiff must plead "factual...