Ansberto Gonzalez v. Kenneth Cuccinelli, II, 985 F.3d 357

Background:

U‑Visa program: Congress created U nonimmigrant status for crime victims who cooperate with law enforcement but capped principal U‑visas at 10,000/year, so USCIS implemented a waiting‑list system (three stages: application pending, approved → waiting list with deferred action/work auth, U‑Visa granted).
2008 statute (8 U.S.C. § 1184(p)(6)) authorizes (discretionarily) work authorization for aliens with a "pending, bona fide" U‑Visa application; USCIS has not used that authority to grant pre‑waiting‑list work authorizations.
Plaintiffs filed I‑918 (U‑Visa) and I‑765 (EAD) applications (2015–2016) and sued, alleging (A) unlawful withholding/unreasonable delay in adjudicating pre‑waiting‑list work‑authorization requests (mandamus and APA claims) and (B) unreasonable delay in placing them on the U‑Visa waiting list (APA claim).
The district court dismissed all claims; Plaintiffs appealed to the Fourth Circuit under 28 U.S.C. § 1331.
Fourth Circuit decision: affirmed in part and vacated in part—dismissed the pre‑waiting‑list work‑authorization claims for lack of jurisdiction (agency not required to act) and remanded the waiting‑list unreasonable‑delay claim for further proceedings; also remanded the district court’s sealing order for fuller findings.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Can courts compel adjudication of pre‑waiting‑list work‑authorization requests under the APA/mandamus?	§1184(p)(6) creates an enforceable duty to decide work‑auth requests for "pending, bona fide" applicants; agency must adjudicate individual checkbox requests.	§1184(p)(6) is discretionary ("may"); Congress did not require implementation or adjudication—agency may decline to exercise the authority.	Court: No jurisdiction—agency not "required" to act under Norton; APA/All Writs/mandamus cannot compel discretionary implementation.
2) Does former 8 C.F.R. §274a.13(d) (90‑day rule) obligate USCIS to adjudicate pre‑waiting‑list EADs, and did repeal apply retroactively to bar relief?	The 90‑day regulation required adjudication or automatic interim EADs, so plaintiffs are entitled to relief despite repeal.	The regulation predated §1184(p)(6), applied only after waiting‑list eligibility, and was repealed; repeal applies non‑retroactively here.	Court: Regulation did not bind USCIS to adjudicate pre‑waiting‑list requests; repeal is not impermissibly retroactive; plaintiffs cannot rely on it.
3) Is USCIS unreasonably delaying placement of eligible petitions on the waiting list?	Long delays in adjudicating I‑918 petitions are unreasonable given interests at stake (health/welfare, employment).	Agency resource constraints and competing priorities justify delay; courts should not reorder priorities.	Court: Complaint plausibly alleges unreasonable delay under TRAC factors; dismissal at pleading stage improper—remand for further proceedings.
4) Was the district court’s sealing order proper?	Plaintiffs challenged sealing; public access and First Amendment interests require findings before sealing.	Government sought sealing under 8 U.S.C. §1367(a)(2) and to protect sensitive immigration‑beneficiary info.	Court: Remanded—district court failed to analyze (1) less drastic alternatives, (2) common‑law First Amendment factors, and to make specific findings.

Key Cases Cited

Norton v. S. Utah Wilderness All., 542 U.S. 55 (agency action may be compelled only where agency is required to take a discrete action)
TRAC v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (factors for assessing unreasonable agency delay)
Heckler v. Chaney, 470 U.S. 821 (agency decisions to prosecute/enforce are presumptively unreviewable exercises of discretion)
St. Cyr, 533 U.S. 289 (distinction between review of eligibility standards and discretionary relief; habeas context)
Auer v. Robbins, 519 U.S. 452 (agency interpretation of its own regulations / deference principles)
Lopez v. Davis, 531 U.S. 230 (upholding categorical rule excluding certain applicants from discretionary relief)
Abbott Lab’ys v. Gardner, 387 U.S. 136 (presumption of judicial review of agency action)