364 F. Supp. 3d 579
E.D.N.C.2019Background
- Plaintiffs are nationals of Mexico and Honduras who filed Form I-918 U‑visa petitions between June 2015 and July 2016 and sought employment authorization (via I‑765 or the I‑918 box). Their petitions remained unadjudicated as of early 2019 and they were not placed on the U‑visa waiting list.
- USCIS has a statutory annual cap of 10,000 U visas and a large backlog; by January 2019 the agency’s processing date was November 2014, producing multi‑year waits.
- 8 U.S.C. § 1184(p)(6) provides that the DHS Secretary "may grant work authorization" to aliens with pending bona fide U‑visa applications; USCIS interprets this as discretionary and has not separately implemented a third, distinct route to work authorization aside from issuing U‑visas or discretionary authorization upon waiting‑list placement.
- Plaintiffs filed suit (consolidated) asserting: (1) mandamus to compel work authorization under § 1184(p)(6); (2) APA unreasonable delay re § 1184(p)(6); (3) APA unreasonable delay re Form I‑765; (4) APA unreasonable delay re U‑visa adjudication/waiting‑list placement; and (5) FOIA withholding.
- Defendants moved to dismiss under Rules 12(b)(1) and 12(b)(6). The court consolidated, allowed an extension, granted the motion to seal certain filings, and closed the case after dismissing all claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mandamus to compel work authorization under 8 U.S.C. § 1184(p)(6) | § 1184(p)(6) requires timely adjudication/granting of work authorization for pending bona fide U‑visa applicants | § 1184(p)(6) is discretionary; agency action committed to DHS/USCIS discretion and thus nonreviewable | Dismissed for lack of jurisdiction; statute is discretionary and barred from review under 5 U.S.C. § 701(a)(2) and 8 U.S.C. § 1252(a)(2)(B)(ii) |
| APA unreasonable‑delay claim challenging § 1184(p)(6) treatment | USCIS unreasonably delayed granting work authorization under § 1184(p)(6) | Plaintiff seeks to jump the queue; relief would merely move others back and produce no net gain; challenge commits discretion to agency | Dismissed for lack of jurisdiction and, alternatively, for failure to state a claim under TRAC; plaintiff not entitled to precedence in the queue |
| APA unreasonable‑delay claims for I‑765/work authorization and U‑visa adjudication | USCIS unreasonably delayed adjudication of I‑765 and I‑918 petitions | Processing follows rule‑of‑reason queueing and agency resources/priorities; plaintiffs fail to show they differ from similarly situated petitioners | Dismissed for failure to state a claim under Rule 12(b)(6); TRAC factors (esp. impact on agency priorities/queue) fatal to relief |
| FOIA withholding claim | USCIS unlawfully withheld responsive documents to June 2018 FOIA requests | Defendants produced responsive records before amended complaint; plaintiffs’ FOIA claim is conclusory and vague | Dismissed for failure to plead plausible FOIA claim; defendants had produced documents and complaint lacked specifics |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (jurisdiction is threshold and must be decided first)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard; courts need not accept legal conclusions)
- Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (establishing six‑factor TRAC test for unreasonable delay)
- Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094 (D.C. Cir. 2003) (court should not order relief that merely moves plaintiff to front of administrative queue producing no net gain)
- Calderon‑Ramirez v. McCament, 877 F.3d 272 (7th Cir. 2017) (affirming dismissal where plaintiff failed to show facts differentiating him from others in U‑visa backlog)