Patel v. Director, U.S. Citizenship and Immigration Services
8:25-cv-00058
| D. Neb. | May 5, 2025Background
- Plaintiff Hirenkumar Patel, an Indian national residing in South Carolina, filed a pro se complaint seeking to compel USCIS to make a "bona fide determination" (BFD) and issue work authorization on his U visa applications (Forms I-918 and I-765).
- This is one of approximately 140 nearly identical pro se cases filed since early 2025 in the District of Nebraska, all using the same mailing address and pleadings style, suggesting possible ghostwriting or unlicensed practice of law concerns.
- Patel alleged he was the victim of armed robbery in 2017, applied for a U visa and work authorization in October 2024, received receipt numbers, but has seen no USCIS adjudication since filing.
- The legal basis cited was the Administrative Procedure Act (APA), claiming unlawful withholding or unreasonable delay, and seeking court orders compelling prompt USCIS action.
- Defendant (USCIS Director) filed a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, arguing APA review was barred by 8 U.S.C. § 1252(a)(2)(B)(ii) because decisions were discretionary.
- Plaintiff did not file a response to the motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Court Jurisdiction over APA Delay | Court can review delays in required, discrete agency actions under APA | Jurisdiction barred by § 1252(a)(2)(B)(ii), as determinations are discretionary | Court lacks subject-matter jurisdiction – APA review precluded by statute |
| Whether BFD/EAD Decisions Are Required | USCIS must decide BFD/EADs even if outcome is discretionary | BFD/EAD determinations are discretionary, not required | BFD/EAD decisions are discretionary; not subject to judicial compulsion |
| Impact of Discretionary Language | Discretion is only on benefits, not the decision to act | Use of "may" in statute makes both process and decision discretionary | "May" confers complete discretionary authority to agency |
| Multiple Identical Filings/Ethics | Not directly addressed | Raises concerns about ghostwriting, ethics, possible sanctions | Potential for sanctions/non-compliance noted, but not central to ruling |
Key Cases Cited
- Thigulla v. Jaddou, 94 F.4th 770 (8th Cir. 2024) (establishes that 8 U.S.C. § 1252(a)(2)(B)(ii) bars judicial review of agency discretionary decisions)
- Bouarfa v. Mayorkas, 604 U.S. 6 (2024) (discusses Congress's stripping of jurisdiction regarding discretionary decisions of the Attorney General or Secretary)
- Kucana v. Holder, 558 U.S. 233 (2010) (interprets the scope of discretionary decisions immune from judicial review under the INA)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (addresses the difference between discrete required actions and agency discretion under the APA)
- Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (provides factors for evaluating unreasonable agency delay, though not reached here)