Telukunta v. Mayorkas

VAISHNAVI TELUKUNTA, Plaintiff, v. ALEJANDRO MAYORKAS and TRACEY RENAUD, Defendants.

Case No. 2:21-cv-10372

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

June 15, 2021

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [6]

Plaintiff petitioned the Court for a writ of mandamus that directs Defendants to adjudicate her applications to extend her nonimmigrant status and for employment authorization. ECF 1. Defendants moved to dismiss the petition under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. ECF 8. The parties fully briefed the motion and a hearing is unnecessary. See E.D. Mich. L.R. 7.1(f)(2). For the following reasons, the Court will dismiss the petition.

BACKGROUND

Plaintiff is an Indian citizen and resides in Michigan. ECF 1, PgID 5. In September 2020, Plaintiff applied to extend her nonimmigrant status through a Form I-539. Id. At the same time, she also applied for employment authorization through a Form I-765 "based on her H-4 non-immigrant status." Id. Her husband applied as well to extend his status as an H-1B nonimmigrant through a Form I-129; his extension was approved in ten days. Id. Plaintiff's two applications are pending before the United States Citizenship and Immigration Services ("USCIS") despite her inquiries. Id. at 6. After waiting four months for approval, Plaintiff filed the present petition for a writ of mandamus against Defendants. ECF 1.

Plaintiff's petition requested that the Court compel Defendants to "perform their [] duties to adjudicate" her applications. Id. at 7. According to Plaintiff, the four-month delay (now eight-month delay) is unreasonable under the Administrative Procedure Act ("APA") and because of that, she is entitled to a writ of mandamus. Id. at 2. Plaintiff alleged the Court had jurisdiction over a federal question because of the mandamus statute, 28 U.S.C. § 1361, and the APA, 5 U.S.C. §§ 555(b), 702. Id. at 1-2.

LEGAL STANDARD

"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). For that reason, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c); see also Fed. R. Civ. P. 12(h). When a defendant challenges subject-matter jurisdiction, the plaintiff bears the burden of proving jurisdiction. Mich. S. R.R. Co. v. Branch & St. Joseph Ctys. Rail Users Ass'n, Inc., 287 F.3d 568, 573 (6th Cir. 2002). When a defendant facially attacks whether the plaintiff properly alleged a basis for subject-matter jurisdiction, the trial court takes the complaint's allegations as true. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).

DISCUSSION

Defendants' motion to dismiss has two parts. Defendants first claimed the Court lacks subject-matter jurisdiction under the APA. ECF 6, PgID 28-32. And second, Defendants claimed the Court lacks subject-matter jurisdiction under the mandamus statute, 28 U.S.C § 1361. Id. at 32-33. The Court will address each part in turn.

I. APA Claim

The APA allows the Court to compel agency action that has been "unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1); see also § 702 ("A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review."). "[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis omitted).

The parties agree "USCIS has a nondiscretionary duty to adjudicate Plaintiff's applications within a reasonable time" under 5 U.S.C. § 555(b). ECF 6, PgID 29; see also ECF 7, PgID 39 ("The parties agree that USCIS is subject to [5 U.S.C. § 555(b)]."). But the parties disagree about whether Plaintiff can show her wait time is "unreasonably delayed" under § 706(1). ECF 6, PgID 29; ECF 7, PgID 39.

USCIS discloses the processing time for applications on its website. Check Case Processing Times, USCIS, https://bit.ly/3hH4NG0 [https://perma.cc/JHC7-L29W]. The estimated wait time for Plaintiff's I-539 application is 9.5 to 12 months. ECF 6, PgID 30; see also Exhibit A. For Plaintiff's I-765 application, the wait time is 9 to 12 months. ECF 6, PgID 30; see also Exhibit B.

To determine whether an agency's delay in taking required action is unreasonable, the Court applies a six-factor test. Telecomms. Research & Action v. FCC ("TRAC"), 750 F.2d 70, 80 (D.C. Cir. 1984); see, e.g., Mendez v. U.S. Dep't of Homeland Sec., --- F.3d ---, 2020 WL 7585828, at *4 (W.D. Mich. 2020) (applying TRAC factors). The factors include:

(1) the time agencies take to make decisions must be governed by a "rule of reason"; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not "find any impropriety lurking behind agency lassitude in order to hold that agency action is 'unreasonably delayed.'"

TRAC, 750 F.2d at 80.

The "most important" TRAC factor is the first factor. Muminov v. Sessions, No. 18-cv-1034, 2018 WL 5298386, at *4 (N.D. Ohio, Oct. 25, 2018) (quoting In re Core Comms., Inc., 531 F.3d 849, 855 (D.C. Cir. 2008)). And it heavily supports Defendants because USCIS reviews I-539 and I-765 visa applications based on a "first-in, first-out" system. ECF 6, PgID 26. Because the applications are "adjudicated in order of submission," the system constitutes a "rule of reason" under the first TRAC factor. Mendez, --- F.3d ---, 2020 WL 7585828, at *4. Thus, the first TRAC factor heavily favors Defendants.

The second TRAC factor also supports Defendants because no law establishes a mandatory timetable to adjudicate I-539 or I-765 applications, or a requirement to adjudicate I-539 or I-765 applications with a spouse's H-1B application. Plaintiff incorrectly interpreted 8 U.S.C. § 1571 to create a mandatory one hundred eighty-day timetable. ECF 7, PgID 41. Instead, § 1571(b) states that "[i]t is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing." (emphasis added). The statute's plain text lacks any compulsory language to interpret it as a legal requirement. 8 U.S.C. § 1571(b); see also Thakkar v. United States, 389 F. Supp. 3d 160, 178 (D. Mass. 2019) ("Congress stopped short of mandating a time limit for adjudication.") (internal quotations and quotation deleted); Ryan v. Dedvukaj, No. 09-14178, 2009 WL 3809813, *1-2 (E.D. Mich. Nov. 13, 2009) (same).

No regulation creates a mandatory timetable either. Plaintiff failed to accurately cite the regulation about H-4 visa administration by omitting the term "may" directly before the text "be 'admitted, if otherwise admissible, as H-4 nonimmigrants for the same period of admission or extension as the principal spouse or parent.'" 8 C.F.R. § 214.2(h)(9)(iv); see ECF 7, PgID 41 (citing 8 C.F.R. § 214.2(h)(9)(iv)). In any event, the regulation's plain text lacks a requirement for USCIS to adjudicate Plaintiff's application with her husband's H-1B application. See Pasem v. USCIS, No. 20-344, 2020 WL 2514749, *2 (D.D.C. May 15, 2020) (New regulations "ha[ve] prevented USCIS from continuing to consider derivative visas concurrently with the primary applications."). All told, the second TRAC factor supports Defendants.

The third and fifth TRAC factors address the delay's effect on the visa applicant. Under the third factor, the Court must consider that "delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake." TRAC, 750 F.2d at 80. The fifth factor "take[s] into account the nature and extent of the interests prejudiced by delay." Id. The analysis of both factors often overlaps. Martin v. O'Rourke, 891 F.3d 1338, 1346-47 (Fed. Cir. 2018) (collecting cases).

During the eight months that Plaintiff's visa applications have been pending, she has lost employment authorization and wages. ECF 7, PgID 41. Defendants conceded that "Plaintiff is prejudiced and has significant welfare issues at stake to the extent that she is not able to work until her applications are approved." ECF 8, PgID 51. That said, the prejudice against Plaintiff is not unexpected or unusual. Indeed, Plaintiff's eight-month waiting period is below the current processing times for her visas, which are 9.5 to 12 months and 9 to 12 months for Forms I-539 and I-765, respectively. ECF 6, PgID 30; see also Exhibits A; B. Still, the third and fifth TRAC factors slightly favor Plaintiff.

The fourth TRAC factor strongly favors Defendants because granting Plaintiff relief would cause unintended consequences and undermine the intuitive fairness of the "first-in, first-out" system. The practical effect of granting Plaintiff relief would allow her cut to the front of an already-long line of visa applicants. Allowing Plaintiff to cut the line would create a zero-sum game that delays the adjudication of visa applicants already ahead of Plaintiff in the queue. See Patel v. Cuccinelli, No. 6:20-cv-101, 2021 WL 77459, at *10 (E.D. Ky. Jan. 8, 2021) ("Moving any application to the front of any line for processing would necessarily move others in that line back a space."). Indeed, the Sixth Circuit...