Uranga v. U.S. Citizenship & Immigration Servs.

527 F.Supp.3d 10

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 December 8, 2020

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

Kristin Brudy-Everett, U.S. Attorney's Office for the District of Columbia, Civil Division, Washington, DC, for Defendants U.S. Citizenship & Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf, Kenneth T. Cuccinelli, II, Donald Neufeld, Michael Paul, William Connor.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge Plaintiff filed this lawsuit against the United States Citizenship and Immigration Services ("USCIS") and other defendants on February 21, 2020. Complaint [Dkt. # 1] ("Compl."). The lawsuit arose out of plaintiff's application for a "U-visa," which has been pending since June 23, 2016. Amended Complaint [Dkt. # 6] ("Am. Compl.") ¶ 15.

The U-visa program was created as part of the 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 that person: (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 helpful, is being helpful, or is likely to be helpful" to government officials regarding criminal activity; and (4) the criminal activity at issue "violated the laws of the United States or occurred in the United States." 8 U.S.C. § 1101(a)(15)(U)(i)(I)–(IV). If USCIS approves the petition, the petitioner will receive lawful nonimmigrant status and employment authorization for up to four years. See 8 U.S.C. § 1184(p)(6) ; 8 U.S.C. § 1184(p)(3)(B) ; 8 C.F.R. § 274a.12(a)(19). Plaintiff applied for both the visa and the employment authorization documents at the same time, and he also applied to be placed on the U-visa waitlist under 8 C.F.R. § 214.14(d)(2). Am. Compl. ¶¶ 39–40, 48–49.

Plaintiff's situation is complicated by the fact that he returned to this country illegally a long time ago, and there is an outstanding order to deport him. See Memorandum Opinion [Dkt. # 23] ("Mem. Op.") at 6–7. But if USCIS were to determine that he is eligible for a U-visa and place him on the waiting list, he and his qualifying family members would 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). The initial complaint sought declaratory, mandamus, and injunctive relief that would compel defendants to "determine plaintiff's eligibility for placement on the U-visa waitlist," adjudicate his request for employment authorization documents, and issue him interim work authorization documents. Compl. at 21.

On March 10, 2020, plaintiff filed an amended complaint and a motion for preliminary injunction seeking an order "enjoining the Defendants ... from removing Mr. Garcia from the United States until such time that his applications for a U nonimmigrant visa is fully and fairly adjudicated." Plaintiff's Motion for Preliminary Injunction ("PI Mot.") [Dkt. # 7] at 1. On May 11, 2020, defendants filed a motion to dismiss the case on jurisdictional and other grounds, see Defendants’ Motion to Dismiss Plaintiff's Amended Complaint [Dkt. # 16] ("First MTD"), and with the parties’ consent, the Court took up the jurisdictional issues first and consolidated the motion for preliminary injunction with the merits pursuant to Federal Rule of Civil Procedure 65(a)(2). Min. Order (May 8, 2020).

The Court declined to dismiss the case as a whole for lack of subject matter jurisdiction, but its ruling granting the motion in part and denying it in part narrowed the case substantially, see Mem. Op. at 35, and it ordered the parties to address the effect of its order on plaintiff's request for relief in the preliminary injunction. Order [Dkt. # 22] at 1.

The parties have addressed the issue, see Plaintiff's Statement Regarding Remaining Injunctive Relief [Dkt. # 24] ("Pl. Statement"); Defendants’ Statement [Dkt. # 25] ("Def. Statement"),¹ and in light of other developments, the defendants have moved to dismiss what is left of the case as moot. See Memorandum of Law in Support of Defendants’ Response and Motion to Dismiss [Dkt. # 26-1] ("Second MTD"); see also Plaintiff's Combined Supplemental Brief in Response to the Court's October 22, 2020 Minute Orders and Defendants’ Motion to Dismiss [Dkt. # 28] ("MTD Opp."). The Court will deny the motion for preliminary injunction; plaintiff has not established that this Court has jurisdiction to order the requested relief, and he has failed to make the showing required under Federal Rule of Civil Procedure 65. Furthermore, the Court will grant defendants’ motion to dismiss, as the remaining claims in the case are now moot.

BACKGROUND

In its ruling on defendants’ first motion to dismiss, the Court detailed plaintiff's immigration history and the regulatory regime that applies to U-visas. See Mem. Op. at 3–8. That information will not be repeated here unless it bears on the pending motion.

The amended complaint contained seven claims:

• Plaintiff's First Cause of Action was brought under the Administrative Procedure Act ("APA"). Am. Compl. ¶¶ 8, 46–50. It alleged that the government had unreasonably delayed making a decision under 8 C.F.R. § 214.14(d)(2) on whether plaintiff was eligible to be placed on the U-visa waitlist—which is distinct from the decision on whether he is entitled to the visa itself. Id. ¶ 48. Plaintiff asked the court to hold that the delay in addressing the waitlist question had been unreasonable under the APA, and plaintiff's Fifth Cause of Action sought a writ of mandamus ordering the government to make the decision with respect to the U-visa waitlist. Id. ¶¶ 64–70.

• The Second Cause of Action asked the Court to address the government's failure to adjudicate plaintiff's request for the employment authorization documents ("EAD") that would have enabled him to work while his U-visa application was pending. Am. Compl. ¶¶ 51–54. The Sixth Cause of Action was the parallel request for a writ of mandamus ordering the government to adjudicate the EAD request. Id. ¶¶ 71–76.

• The Third Cause of Action challenged the government's failure to issue interim work authorization documents—documents that would permit plaintiff to work while the EAD request was pending. Am. Compl. ¶¶ 55–59. Plaintiff argued that there was a 2011 regulation in place at the time he submitted his U-visa and EAD requests that required the issuance of interim work authorization documents within 90 days if the EAD request had yet not been adjudicated. The Seventh Cause of Action is the parallel request for a writ of mandamus with respect to the interim work documents. Id. ¶¶ 77–82.

• The Fourth Cause of Action complained that the regulation that superseded the 2011 regulation and eliminated the 90-day requirement was invalid because the agency allegedly failed to comply with APA notice and comment procedures when it was promulgated. Am. Compl. ¶¶ 60–63.

It is important to note that there is no claim in the amended complaint with respect to the pendency of the application for the U-visa itself.

On May 11, 2020, defendants moved to dismiss for lack of subject matter jurisdiction based on the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("the IIRIRA"), 8 U.S.C § 1252(g) and 8 U.S.C. § 1252(a)(5). First MTD at 13–19. They argued that plaintiff's claims "collaterally challeng[e] the deportation proceedings currently pending against him," id. at 14, and that the IIRIRA divests district courts of jurisdiction to stay or enjoin a non-citizen's removal. Id. They also challenged the sufficiency of several claims under Federal Rule of Civil Procedure 12(b)(6). Id. at 26–31.

In a Memorandum Opinion issued on September 28, 2020, the Court found that it had jurisdiction to hear the case because the claims in the amended complaint were not aimed at an action or decision to remove the plaintiff.² Mem. Op. at 2. With respect to the First and Fifth Causes of Action, though, the Court found that it was constrained by Circuit precedent to conclude that plaintiff had failed to state a claim for unreasonable delay, and the two claims related to the U-visa waitlist were dismissed under Federal Rule of Civil Procedure 12(b)(6) for that reason. Id. at 20–27.

The Court also found that it did not have jurisdiction to review the agency's issuance of EAD, because such a decision is entirely discretionary, and dismissed the Second and Sixth Causes of Action under Federal Rule of Civil Procedure 12(b)(1). Mem. Op. at 13–19. It also determined that plaintiff failed to state an APA claim in his Fourth Cause of Action related to the 2016 revision of 8 C.F.R. § 274a.13(d), the regulation related to interim work authorization; the record showed that in fact, the agency had engaged in the notice and comment process. Mem. Op. at 33–34.

Given those determinations, the only claims that survived were the Third and Seventh Causes of Action, which assert that the agency was required to issue plaintiff interim work authorization documents under the version of 8 C.F.R. § 274a.13(d) that was in effect when he applied for them. The Court found that the 2011 regulation did apply to plaintiff's case, and that since it set a specific deadline for when the interim work authorization documents should have been issued, the Third Cause of Action stated a claim that agency action had been unlawfully withheld. Mem. Op. at 28–33.

Since the majority of plaintiff's claims had been dismissed, the Court ordered the parties to address the impact of its ruling on the still pending...