ANSBERTO FERNANDEZ GONZALEZ; VILMA OLIVARES SALGUERO; CAMELIA GUERRERO ANTONIO; JACINTO PEREZ ACOSTA, Plaintiffs – Appellants and MARIA ELENA MALDONADO JUAREZ, Plaintiff, v. KENNETH T. CUCCINELLI, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendants – Appellees.
No. 19-1435
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
January 14, 2021
PUBLISHED. Argued: May 27, 2020. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, Chief District Judge. (7:18-cv-00135-BO; 7:18-cv-00136-BO; 4:18-cv-00131-BO; 4:18-cv-00132-BO)
ASISTA; TAHIRIH JUSTICE CENTER; FREEDOM NETWORK (USA); COALITION TO ABOLISH SLAVERY & TRAFFICKING; CASA DE ESPERANZA; NATIONAL RESOURCE CENTER ON DOMESTIC VIOLENCE; NATIONAL DOMESTIC VIOLENCE HOTLINE; NATIONAL IMMIGRANT JUSTICE CENTER; IMMIGRATION CENTER FOR WOMEN AND CHILDREN,
Amici Supporting Appellant.
Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Richardson wrote the opinion, in which Judge Harris and Judge Quattlebaum join.
ARGUED: Bradley Bruce Banias, BARNWELL, WHALEY, PATTERSON, AND HELMS, Charleston, South Carolina, for Appellants. Lori B. Warlick, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, Joshua B. Royster, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees. Julie Carpenter, Richard Caldarone, TAHIRIH JUSTICE CENTER, Falls Church, Virginia; Sejal Zota, ASISTA IMMIGRATION ASSISTANCE, Suffield, Connecticut, for Amici Curiae Non-Profit Organizations.
This case presents a challenge to agency delay and inaction. Plaintiffs are aliens unlawfully present in the United States who seek U-Visas as victims of serious crimes who cooperated with law enforcement. They allege that the Department of Homeland Security has unlawfully withheld or unreasonably delayed adjudication of their U-Visa petitions and their applications for work authorization pending U-Visa approval. Those claims implicate interests that deserve our respect and protection,
The Immigration and Nationality Act entrusts Homeland Security with discretionary authority to grant “U nonimmigrant status” to eligible unlawful aliens who are victims of serious crime and who cooperate with law enforcement. That status carries with it important benefits, including protections against deportation and work authorization. But Congress capped the number of U-Visas at 10,000 per year—meaning not all eligible U-Visa applications can be approved. In response, the agency created a “waiting list” for applicants whose applications have been approved and who would have been granted a U-Visa but for the statutory cap. Once on this waiting list, the alien is provided deferred-action status and may be granted work authorization. But before the application is approved and the alien is placed on the waiting list, the agency provides neither deferred-action status nor work authorization. As a result, there are now three stages in the U-Visa process: (1) application submitted but not yet approved; (2) application approved and alien placed on a waiting list; and (3) U-Visa granted.
About a year after this three-tier regulatory scheme was created, Congress authorized Homeland Security to grant work authorization to aliens who have “pending, bona fide” applications for a U-Visa.
Here, Plaintiffs in the first stage—those with pending applications who have not been approved for the waiting list—challenge the agency‘s delay and inaction. Plaintiffs concede—as they must—that the agency has discretion over whether to grant a U-Visa, to place someone on the waiting list, and to grant work authorization. Rather than challenge the agency‘s authority over their benefits, they focus on the agency‘s failure to timely adjudicate their requests. To that end, they allege that the agency has (1) unlawfully withheld or unreasonably delayed adjudication of their claims for pre-waiting-list work authorization, see UJA 9–14 (Cause of Action One, Two, and Three), and (2) unreasonably delayed adjudication of their claims for placement on the U-Visa waiting list, see UJA 14–19 (Cause of Action Four). The district court was unconvinced and dismissed these claims, holding that it lacked jurisdiction over most of the claims for pre-waiting-list work authorizations and that, in any event, all the claims failed on the merits. Plaintiffs now appeal that decision.
We hold that the first three causes of action must be dismissed, and the remaining claim remanded. The work-authorization claims fall beyond our jurisdiction. Under the Administrative Procedure Act and All Writs Act, we can only compel faster agency action if the agency is required
I. Background
A. Statutory and regulatory framework
The Immigration and Nationality Act (“INA“) provides the Executive Branch broad authority over the admission of aliens into the United States—as well as the conditions of such admission. See
One important aspect of that delegated authority is USCIS‘s responsibility for administering the U-Visa Program.
Congress amended this program in the Violence Against Women and Department of Justice Reauthorization Act of 2005 (“Violence Against Women Act“), Pub. L. 109-162, 119 Stat. 2960 (2006). This Act directed the Secretary of Homeland Security to promulgate regulations implementing the statutory U-Visa provisions. Id. § 828. To comply with this statutory mandate, USCIS—wielding the Secretary‘s delegated authority—promulgated regulations to govern the conferral of U-Visas. See 72 Fed Reg. 53,036 (Sept. 17, 2007) (codified at
These statutory and regulatory provisions—the Victims of Trafficking Act, the Violence Against Women Act, and the USCIS regulations—provide the basic framework for the U-Visa Program as it currently
When a petitioning alien has satisfied the statutory criteria (and complied with the requisite procedures), the agency has committed to approve the U-Visa petition and grant a U-Visa (along with the immigration protections and work authorization) subject to the annual statutory cap set by Congress. See
That statutory cap, however, is critical. Congress limited the number of principal U-Visas to 10,000 per year.
Given this gap, Homeland Security chose to prioritize which eligible petitioners receive the limited visas based on the date of the petitions. To do so, the agency instructed that all petitioners “must be placed on a waiting list” with “[p]riority on the waiting list . . . determined by the date the petition was filed.”
Around a year after this statutory and regulatory scheme was created, Congress again amended the U-Visa program. In 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act, Pub. L. 110-457, 122 Stat. 5044. Among other things, this Act amended
Before this amendment, Homeland Security relied on its alleged inherent authority to grant work authorizations to applicants on the waiting list.1 The addition
To summarize the statutory and regulatory scheme, the statutory provisions and implementing regulations yield a three-tiered structure for aliens seeking a U-Visa. First, if an alien has not been granted a U-Visa or been placed on the waiting list, then the agency provides neither discretionary nor mandatory immigration status or work authorizations. Second, if an alien is eligible for U-Visa status but cannot be awarded a visa because of the statutory cap, that alien must be placed on the waiting list and is then entitled to deferred action and may be granted work authorization. See
B. Plaintiffs’ claims
Plaintiffs are aliens who have petitioned for U-Visas and who seek, pending the grant of those petitions, to receive pre-waiting-list work authorization. And they also challenge the agency‘s delay in placing them on the waiting list. Plaintiff Gonzalez submitted a petition for U nonimmigrant status (Form I-918) and an application for employment authorization (Form I-765) in July 2016. Plaintiff Salguero did the same in June 2016. Plaintiff Antonio, on behalf of herself and her husband, Plaintiff Acosta, filed in April 2016. Plaintiff Juarez submitted her petition in June 2015. See UJA 48. As of now, USCIS has not yet adjudicated Plaintiffs’ U-Visa petitions (Form I-918) or employment authorization applications (Form I-765).
Plaintiffs brought these four causes of action in the district court below:
- First Cause of Action – Mandamus claim challenging the Agency‘s refusal to adjudicate or issue pre-waiting-list work authorization under
8 U.S.C. § 1184(p)(6) based on the “check-box” work-authorization requests on the U-status applications (Form I-918). - Second Cause of Action – Administrative Procedure Act claim challenging the Agency‘s refusal to adjudicate or issue pre-waiting-list work authorization under
8 U.S.C. § 1184(p)(6) based on the “check-box” work-authorization requests on the U-status applications (Form I-918). - Third Cause of Action – Administrative Procedure Act claim challenging the Agency‘s unreasonable delay associated with adjudicating or issuing work authorization based on the Form I-765 application.2
- Fourth Cause of Action – Administrative Procedure Act claim challenging the Agency‘s unreasonable
delay associated with making waiting-list decisions for all Appellants under 8 C.F.R. § 274a.13(d)(2) .
In response, the agency moved to dismiss Plaintiffs’ claims. The agency sought to dismiss Plaintiffs’ first two causes of action for lack of jurisdiction under Rule 12(b)(1) based on both
The district court held for the agency. It dismissed Plaintiffs’ first two claims under Rule 12(b)(1), and the remaining claims under Rule 12(b)(6). The district court also granted the agency‘s sealing motion. Plaintiffs timely appealed, invoking our jurisdiction under
II. Analysis
This appeal raises two challenges to the agency‘s actions. First, Plaintiffs argue that the agency unreasonably delayed or unlawfully withheld adjudication of their applications for work authorization while they were waiting to be placed on the wait list. Second,
Plaintiffs argue that the agency unreasonably delayed adjudicating their petitions for a U-Visa so that they could be placed on the waiting list. The first is beyond our power so we dismiss those claims. The second must be remanded for further proceedings.
A. We lack jurisdiction over the work-authorization claims
The Administrative Procedure Act authorizes suit by “[a] person suffering [a] legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.”
We ordinarily adopt a presumption of reviewability. See Abbott Lab‘ys v. Gardner, 387 U.S. 136, 140 (1967). But our authority to compel agency action that has been unlawfully withheld or unreasonably delayed has limits. Our authority does not apply when “statutes preclude judicial review.”
But the most important limit for our purposes here is inherent in
Plaintiffs first challenge the agency‘s withholding or delaying adjudication of their claims for work authorization before being placed on the U-Visa waiting list. Their claims must be dismissed for a lack of jurisdiction, however, because the agency was not required to adjudicate their requests for work authorization—meaning that the failure to adjudicate these claims was not unlawful and the delay in adjudicating these claims was not unreasonable.3
1. The Agency is not “required” to adjudicate Plaintiffs’ work-authorization requests
Plaintiffs argue that we may compel the agency to adjudicate Plaintiffs’ claims for work authorization based on its power to grant work authorizations under
Plaintiffs acknowledge that the agency‘s discretion to grant or deny work-authorization requests does not require it to grant those authorizations. Instead, they argue that the agency was required to adjudicate the work-authorization requests under the discretionary authority provided by
To begin, nothing in
A principal feature of immigration law is protecting Executive discretion. See Trump v. Hawaii, 138 S. Ct. 2392, 2418–19 (2018); Arizona v. United States, 567 U.S. 387, 396 (2012); I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999); Reno v. Am.–Arab Anti–Discrimination Comm., 525 U.S. 471, 486–87 (1999). One such provision makes it clear that:
no court shall have jurisdiction to review . . . (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.
As noted,
Consider the U-Visa program itself. When Congress created the U-Visa program in 2000 as part of the Victims of Trafficking Act, it did not require the Secretary to
implement it through regulations.
Not later than 180 days after the date of enactment of this Act, the Attorney General, the Secretary of Homeland Security, and the Secretary of State shall promulgate regulations to implement the provisions contained in the Battered Immigrant Women Protection Act of 2000[], this Act, and the amendments made by this Act.
work-authorization adjudications. This confirms that implementing the latter is not required.6 Indeed, even Plaintiffs do not argue that
Other sections of the Victims of Trafficking Act and Violence Against Women Act also contain provisions requiring implementation, and requiring that the implementation occur within a certain timeframe.7 Further, while the Trafficking Victims Protection
Reauthorization Act required the Secretary to adjudicate a different set of visas within 180 days, it set no requirements for U-Visa adjudications. See
The discretion afforded to the agency over how to address work-authorization requests means that consideration of every work-authorization request is not “required” under Norton. In Norton, the agency was mandated by statute to “‘continue
The Violence Against Women Act also requires certain agencies to enact provisions within a certain time, just as it did for the U-Visa program. See Pub. L. No. 109–162, § 304 (“Within 90 days after the date of enactment of this Act, the Attorney General shall issue and make available minimum standards of training relating to domestic violence, dating violence, sexual assault, and stalking on campus, for all campus security personnel and personnel serving on campus disciplinary or judicial boards.“).
had mandated the goals for the agency, the agency retained great discretion over how those goals were to be achieved and the land use plans were “projections” of future actions that could not bind the agency unless they were clearly a commitment to action. Id. at 69. The Court reasoned that “[q]uite unlike a specific statutory command requiring an agency to promulgate regulations by a certain date, a land use plan is generally a statement of priorities; it guides and constrains actions, but does not (at least in the usual case) prescribe them.” Id. at 71. The land use plans, therefore, did not require the agency to do anything, so the Court could not review the agency‘s failure to act in compliance with them because there was no “agency action.” Id. at 72; see also Vill. of Bald Head Island v. U.S. Army Corps of Eng‘rs, 714 F.3d 186, 195–96 (4th Cir. 2013). Moreover, the Court held that “allowing general enforcement of plan terms would lead to pervasive interference with [the agency‘s] own ordering of priorities.” Norton, 542 U.S. at 72.
Despite the presence of statutes and regulations mandating agency action and a land use plan discussing future actions, the Court in Norton found that the agency retained broad discretion to act. It explained that “when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency‘s discretion, a court can compel the agency to act, but has no power to specify what the action must be.” Id. at 65. Here,
This limitation on our review protects “agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve.” Id. at 66. And intervention here “would lead to pervasive interference with [the agency‘s] own ordering of priorities” because it would force the agency to redirect resources to pre-waiting-list work authorizations. Id. at 71. As the agency is not required to adjudicate pre-waiting-list work authorizations, no agency action exists to compel. So under Norton, Plaintiffs’ first three causes of action are unreviewable.8
Cyr discussed habeas corpus jurisdiction for immigration proceedings and is best limited to those issues. Id. at 293. The section of the case Plaintiffs cite focuses on the uniqueness of habeas in requiring Congress to include a clear statement stripping courts of jurisdiction. Id. at 300. When Congress does so, they act at the outer limits of their power and raise serious constitutional questions not present here. Id. The Court also considered the history of habeas and, especially, the exercise of jurisdiction over legal questions in habeas at the Founding. Id. at 305. Because there was no alternative forum and no clear statement stripping the courts of jurisdiction and because of the serious constitutional questions this raised, the Court found that it had jurisdiction over the pure questions of law presented in the habeas petition. Id. at 314. Adjudications of the pre-waiting-list work authorizations here, on the other hand, are of recent vintage and do not reach the outer limits of Congress‘s powers, nor does denying adjudication of this new benefit raise serious constitutional questions. The special writ of habeas corpus is not implicated. Thus, neither the requirement of an especially clear statement to strip us of jurisdiction nor the need to rule on the applicant‘s eligibility for relief are required.
Second, in St. Cyr the agency did not adjudicate a particular benefit request even though procedures and standards for evaluating such requests existed and had historically been employed. Id. at 301-09; see also United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265-66 (1954) (finding that the agency must exercise its judgment in a habeas case because the agency committed itself by regulation). Here, there are no regulations or defined procedures, much less longstanding ones, for evaluating pre-waiting-list work authorizations. And Congress did not mandate implementation of
Plaintiffs argue that the “pending, bona fide” language in
In response, Plaintiffs ask why Congress would pass a provision if it did not intend the agency to implement it. The answer is simple. Without a grant of authority from Congress, the agency has no power. In enacting the provision, Congress authorized, but did not require, the agency to grant work authorizations. Just as Congress does not have to exercise the powers delegated to it by the people, neither does the agency have to exercise its delegated powers where the text and structure of the relevant statute provide it with complete discretion. And the principle that “judicial deference to the Executive Branch is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations,” Aguirre-Aguirre, 526 U.S. at 425 (internal quotation marks omitted), applies with particular force here, when Congress has conveyed that the agency has broad discretion over the granting of a benefit.
In conclusion, under Norton the agency is not required to implement or adjudicate pre-waiting-list work authorizations and so its failure to adjudicate Plaintiffs’ requests in a timely manner is unreviewable.
2. The agency‘s former regulation does not commit the Agency to adjudicate Plaintiffs’ work-authorization requests
Plaintiffs also argue that a former regulation,
(d) Interim employment authorization. USCIS will adjudicate the application within 90 days from the date of receipt of the application except as described in 8 CFR 214.2(h)(9)(iv), and except in the case of an initial application for employment authorization under 8 CFR 274a.12(c)(8), which is governed by paragraph (a)(2) of this section, and 8 CFR 274a.12(c)(9) in so far as it is governed by 8 CFR 245.13(j) and 245.15(n). 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.
First, the 90-day regulation existed before
Plaintiffs contend that the regulation does not except
Even if the regulation could commit the agency, it was repealed before this case began, and we can apply that repeal to cases that arose before it, like this one, because such an application is considered “non-retroactive.” In determining whether a statute or regulation applies retroactively, we first consider whether the law specifies that it is retroactive. Landgraf v. USI Film Prods., 511 U.S. 244, 257 (1994). Because the repeal of this regulation says nothing as to its retroactive effect, we ask whether application of the new rule would have a retroactive effect. Id. at 280. “A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute‘s enactment.” Id. at 269. “The inquiry into whether a statute [or regulation] operates retroactively demands a commonsense, functional judgment about whether the new provision attaches new legal consequences to events completed before its enactment.” St. Cyr, 533 U.S. at 321 (internal quotation marks omitted). A regulation has retroactive effect “when it takes away
Decisions from various courts, including this one, illustrate this point. In St. Cyr, the Supreme Court found that the repeal of
If the plaintiff did not rely on the pre-existing state of the law to their detriment, then a regulation may apply retroactively, even if it is unfavorable to the plaintiff. Several circuits have distinguished the result of St. Cyr from the retroactivity analysis of a regulation promulgated by the Attorney General that increased the standard for certain immigrants to receive an adjustment of status under
In a different context, the Sixth Circuit found that repealing obesity as a disability for attaining social security benefits was not impermissibly retroactive even though it was detrimental to the plaintiff. Combs v. Comm‘r of Soc. Sec., 459 F.3d 640, 645-47 (6th Cir. 2006). The court concluded that the plaintiff did not “become obese or otherwise become impaired in reliance” on
Based on this case law, we determine that the repeal of
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Plaintiffs’ cannot prevail on their claims that the agency has unlawfully withheld or unreasonably delayed adjudication of their requests for pre-waiting-list work authorizations. The agency was not required—whether by statute, regulation, or anything else—to adjudicate these claims in the first place. So it is beyond our power to force the agency to act (let alone to act faster) under either the APA or the All Writs Act.9 That means that Causes of Action One, Two, and Three must be dismissed, leaving us with only Cause of Action Four.
B. The claim for unreasonable delay in adjudicating Plaintiffs’ petitions for placement on the waiting list must be remanded
Count Four raises the second challenge Plaintiffs bring: the agency has “unreasonably delayed” adjudicating Plaintiffs’ petition for a U-Visa to determine whether they should be placed on the waiting list.10 The district court dismissed this
The Supreme Court has not, so far, provided clear guidance on how to determine how long is too long to wait for an agency adjudication. But most lower courts have followed the D.C. Circuit‘s decision in TRAC v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984), which “list[s] factors that are relevant to determining whether agency action has been unreasonably delayed.” Fed. Regulatory Comm‘n v. Powhatan Energy Fund, LLC, 949 F.3d 891, 903 (4th Cir. 2020). The six TRAC factors are:
- the time agencies take to make decisions must be governed by a rule of reason;
- where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;
- delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;
- the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;
- the court should also take into account the nature and extent of the interests prejudiced by delay; and
- the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.
TRAC, 750 F.2d at 80 (internal citations omitted); see also Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003). The district court is not limited to these factors and is not required to use them. But the TRAC factors offer helpful guidance in this inquiry, even if they do not define the entire field. On this record, however, we lack sufficient information to resolve this issue on a motion to dismiss. A claim of unreasonable delay is necessarily fact dependent and thus sits uncomfortably at the motion to dismiss stage and should not typically be resolved at that stage.
Although the district court‘s position may ultimately be vindicated, at this point Plaintiffs have done enough. While a ‘first in, first out’ approach with enumerated exceptions may be a rule of reason, we do not know enough about how the agency implements its rules and exceptions. We also think that Plaintiffs have pled sufficient facts to show that their interests are weighty, implicate health and welfare, and are harmed by the long wait. The agency may be able to refute these contentions, but at this stage we may review only Plaintiffs’ pleadings.
Among the issues that may be important on remand are resource constraints. The agency may well be able to show resource constraints and competing priorities in any number of ways. And courts generally “have no basis for reordering agency priorities.” In re Barr Lab‘ys, Inc., 930 F.2d 72, 76 (D.C. Cir. 1991); see also Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 280 (4th Cir. 2004) (noting that when an agency faces “a backlog of tens of thousands of cases,” it “operates in an environment of limited resources, and how it allocates those resources to address the burden of increasing claims is a calculation that courts should be loathe to second guess“). But at this point we cannot rely on the agency‘s allegations to find as a matter of law that this factor necessarily favors the agency.
Given the nature of this inquiry, we must vacate the dismissal of this claim and remand for further proceedings—perhaps including limited discovery—on the fourth cause of action.
C. The sealing order is remanded
The final issue we must address is the district court‘s order granting the agency‘s motion to seal their two pleadings. To seal a document, the district court must (1) give the public adequate notice of a request to seal and a reasonable opportunity to challenge it, (2) consider less drastic alternatives to sealing, and (3) if it decides to seal, state the reasons, supported by specific findings, behind its decision and the reasons for rejecting alternatives to sealing. In re Knight Publ‘g Co., 743 F.2d 231, 235 (4th Cir. 1984). The district court here gave adequate notice of and opportunity to challenge the sealing request by filing the motions publicly and allowing competing briefing on the issue. It did not, however, satisfy the other two procedural requirements.
The district court also did not adequately explain whether
Finally, the district court did not grapple with the public‘s First Amendment interest in access to judicial proceedings. A
As a result, we remand the sealing order so that the district court may weigh alternatives to sealing, more fully explain its decision, and engage in a common-law and First Amendment analysis in the first instance.
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No one doubts the importance of the statutory and regulatory benefits Plaintiffs seek. And no one doubts that, where Congress has entitled aliens to the protection and benefit of our laws, the Executive Branch must take care to faithfully execute the Legislative Branch‘s instructions. But our role here is modest. We are a court of the Judicial Branch—limited, bounded, restrained. Our power is not coterminous with subjective notions of justice. Instead, it is limited by the positive boundaries set by Congress and our Constitution. Those boundaries are all the more important when, as here, we are asked to tread into an area that is appropriately dominated by the people‘s elected representatives rather than their life-tenured judicial servants. Because of our limited role, we simply cannot provide all of the relief that Plaintiffs seek. Plaintiffs’ claims that the agency has unreasonably delayed or unlawfully withheld adjudication of their requests for pre-waiting-list work authorizations are beyond our power. Plaintiffs’ claim of unreasonable delay related to waiting-list adjudications, however, does survive at this stage. As a result, we remand for further proceedings.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
Notes
Except as provided in subsection (b), in no case may the Attorney General, or any other official or employee of the Department of Justice, the Secretary of Homeland Security, the Secretary of State, or any other official or employee of the Department of Homeland Security or Department of State (including any bureau or agency of either of such Departments) . . . permit use by or disclosure to anyone (other than a sworn officer or employee of the Department, or bureau or agency thereof, for legitimate Department, bureau, or agency purposes) of any information which relates to an alien who is the beneficiary of an application for relief under paragraph (15)(T), (15)(U), or (51) of section 101(a) of the Immigration and Nationality Act or section 240A(b)(2) of such Act.