Uranga v. U.S. Citizenship & Immigration Servs., Civil Action No. 20-0521 (ABJ)

490 F.Supp.3d 86

Andres Garcia URANGA, Plaintiff,

v.U.S. CITIZENSHIP & IMMIGRATION SERVICES, et al., Defendants.

Civil Action No. 20-0521 (ABJ)

United States District Court, District of Columbia.

Signed September 28, 2020

James O. Hacking, III, Hacking Law Practice, LLC, St. Louis, MO, Rekha Sharma-Crawford, Pro Hac Vice, Sharma-Crawford Attorneys, Kansas City, MO, for Plaintiff.

Kristin Brudy-Everett, Heather D. Graham-Oliver, Michelle D. Jackson, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

On February 21, 2020, plaintiff Andres Garcia Uranga filed this lawsuit against the U.S. Citizenship and Immigration Services ("USCIS"); U.S. Department of Homeland Security ("DHS"); Chad F. Wolf, the Acting Secretary of DHS; Kenneth Thomas Cuccinelli, II, Acting Director of USCIS; Donald Neufeld, Associate Director of Service Center Operations of USCIS; Michael Paul, Acting Deputy Director of the Vermont Service Center of USCIS; and William Connor, Field Office Director of the Nebraska Service Center of USCIS. Compl. [Dkt. # 1]. Plaintiff submitted a petition for a U-visa and employment authorization documents four years ago, but the government has yet to make a decision. This action asks the Court to find the delay to be unreasonable and to order the agency to act. See Am. Compl. [Dkt. # 6].

Plaintiff seeks declaratory, mandamus, and injunctive relief that would compel defendants to determine his eligibility for placement on the U-visa waitlist, adjudicate his request for employment authorization documents, and issue him interim work authorization documents. Id. at Prayer for Relief at 20–21.

Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim. Defs.’ Mot. to Dismiss Am. Compl. [Dkt. # 16] ("Defs.’ Mot."). For the reasons set out in detail below, the motion will be granted in part and denied in part: The First, Second, Fourth, Fifth, and Sixth Causes of Action will be dismissed, and the motion to dismiss the others will be denied.

The Court finds that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 does not deprive it of jurisdiction to consider the complaint in its entirety, but it does lack jurisdiction to review the claims alleging a failure to make the discretionary decision, pursuant to 8 U.S.C. § 1184(p)(6), to grant or deny employment authorization documents pending the decision on plaintiff's U-visa application. The Court concludes that it has jurisdiction to hear the claims questioning the delay in determining plaintiff's eligibility for placement on the U-visa waitlist. But while it is deeply concerned about the length of time the plaintiff has been waiting for this decision and it cannot in good conscience characterize it as "reasonable," it is constrained by Circuit precedent to refrain from ordering the agency to advance consideration of plaintiff's request ahead of those filed by thousands of others who have also been waiting too long. Finally, the Court finds that it has jurisdiction to hear plaintiff's claim concerning unreasonable delay in the consideration of his request for interim work authorization documents; that the 2011 regulation requiring consideration within a set period of time governs plaintiff's application; and that the complaint states a claim for agency action unlawfully withheld given the failure to adhere to the plain terms of the regulation. Finally, plaintiff's request to invalidate the revised regulation for failure to comply with notice and comment procedures will be dismissed.

BACKGROUND

Statutory & Regulatory Background

The U-Visa program was created as part of the Victims of Trafficking and Violence Protection Act of 2000. Am. Compl. ¶ 23. Its purpose "was to ‘strengthen the ability of law enforcement agencies to detect, investigate and prosecute cases’ by encouraging undocumented victims of crimes to step forward and cooperate with law enforcement, and thereby improve public safety." Am. Compl. ¶ 23, quoting Victims of Trafficking and Violence Protection Act of 2000, H.R. 3244, 106th Cong. § 1513(a)(2) (2000).

A person qualifies for a U-visa if he or she: (1) "has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity;" (2) "possesses information concerning criminal activity"; (3) "has been, is, or is likely to be helpful" to government officials regarding the criminal activity; and (4) the criminal activity at issue "occurred in the United States." 8 U.S.C. § 1101(a)(15)(U)(i)(I)–(IV).¹ If USCIS approves the petition, the petitioner will receive lawful nonimmigrant status and employment authorization for up to four years. 8 U.S.C. § 1184(p)(6) ; 8 U.S.C. § 1184(p)(3)(B) ; 8 C.F.R. § 274a.12(a)(19).

There is a statutory cap that limits the number of U-visas issued each year to 10,000. 8 U.S.C. § 1184(p)(2). Anticipating that the statutory cap would be met within the first few years of enactment, USCIS created a regulatory waiting list process. 8 C.F.R. § 214.14(d)(2) ; New Classification for Victims of Criminal Activity; Eligibility for "U" Nonimmigrant Status, 72 Fed. Reg. 53,014 (Sept. 17, 2007). If 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). The order of approval for those on the waiting list is also spelled out in the regulation:

USCIS will issue a number to each petition on the waiting list, in the order of highest priority, providing the petitioner remains admissible and eligible for U nonimmigrant status. After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed.

Id.

Once USCIS determines a petitioner is eligible for a U-visa and places him on the waiting list, he and his qualifying family members receive "deferred action" if they are in the United States. 8 C.F.R. § 214.14(d)(2). Deferred action is "an act of administrative convenience to the government which gives some cases lower priority" for removal. 8 C.F.R. § 274a.12(c)(14). A person who has received deferred action based upon placement on the U-visa waiting list does not accrue unlawful presence under section 212(a)(9)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(9)(B). 8 C.F.R. § 214.14(d)(3). "However, a petitioner may be removed from the waiting list, and the deferred action or parole may be terminated at the discretion of USCIS." Id. Unless specific circumstances apply, USCIS processes U-visa applications in the order they are received. See 72 Fed. Reg. 53,014, 53,033 –34.

The application form for the U-visa, Form I-918, provides the applicant with an option to request Employment Authorization Documents ("EAD") by checking a box. This enables an applicant to apply for the visa and for EAD in one step. See 72 Fed. Reg. 53,014 (the one-step process was contemplated during rulemaking; USCIS designed the form so that it could serve the dual purpose of requesting a U visa and employment authorization).

If an individual has a pending, bona fide application for a U-visa, the secretary "may grant work authorization" to that individual. 8 U.S.C. § 1184(p)(6). USCIS may, in its discretion, also authorize employment for those placed on the waitlist. 8 C.F.R. § 214.14(d)(2).

There was a time when agency regulations required USCIS to adjudicate EAD applications within 90 days. As of 2011, the applicable regulation stated: "USCIS will adjudicate the application within 90 days from the date of 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) (2011). This requirement was eliminated on November 18, 2016, and the amended regulation became effective on January 17, 2017. See Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 Fed. Reg. 82,398 (Nov. 18, 2016).

Once a petitioner submits a U-visa application, USCIS is supposed to complete a "de novo review of the petition and evidence," and "issue a written decision approving or denying Form I-918." 8 C.F.R. § 214.14(c)(5). "If USCIS determines that the petitioner has met the requirements for U-1 nonimmigrant status, USCIS will approve Form I-918." Id. § 214.14(c)(5)(i). "An alien granted U-1 nonimmigrant status is employment authorized incident to status. USCIS automatically will issue an initial Employment Authorization Document (EAD) to such aliens who are in the United States." Id. § 214.14(c)(7).

Federal regulations further provide that a non-citizen who is "the subject of a final order of removal, deportation, or exclusion is not precluded from filing a petition for U-1 nonimmigrant status," but that "[t]he filing of a petition ... has no effect on ICE's authority to execute a final order." 8 C.F.R. § 214.14(c)(1)(ii).

Thus, the statutory and regulatory scheme contemplates a number of decisions the agency could be asked to make, all of which are involved in this case: (1) whether an applicant is eligible to receive a U-visa; (2) whether an applicant is eligible for a U-visa that has been denied simply because of the statutory cap and therefore he should be placed on the waiting list; (3) whether an applicant has a pending, bona fide U-visa application, and therefore should be granted EAD for the entire period while the U-visa application is pending; and (4) pursuant to the now repealed version of 8 C.F.R. § 274a.13(d) (2011), whether an EAD request has been pending for more than 90 days and therefore the applicant is entitled to interim work authorization documents for up to...