EDMER EUDULIO BARRIOS GARCIA; DOUGLAS ARGUIJO; ARDILES YASDAMI MENDEZ MENDEZ and LIMNY ERIVELBA LOPEZ MAZARIEGOS v. U.S. DEPARTMENT OF HOMELAND SECURITY et al. [CONSOLIDATED WITH] SUDHABEN PANKAJKUMAR PATEL, PANKAJKUMAR ISHWARLAL PATEL, NIKIBEN PANKAJKUMAR PATEL, and SAHILKUMAR PANKAJKUMAR PATEL v. TRACY RENAUD, Senior Official Performing the Duties of the Director for U.S. Citizenship and Immigration Services
Nos. 21-1037/1056/1063/5022
United States Court of Appeals for the Sixth Circuit
Argued: July 21, 2021; Decided and Filed: February 10, 2022
File Name: 22a0027p.06
Before: SILER, MOORE, and DONALD, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
Case Nos. 21-1037, 21-1056, and 21-1063
Appeals from the United States District Court for the Western District of Michigan at Grand Rapids; Nos. 1:20-cv-00457; 1:20-cv-00378; 1:20-cv00460—Phillip J. Green, Magistrate Judge.
Case No. 21-5022
Appeal from the United States District Court for the Eastern District of Kentucky at London; 6:20-cv-00101—Karen K. Caldwell, District Judge.
COUNSEL
ARGUED: Bradley B. Banias, WASDEN BANIAS, LLC, Charleston, South Carolina, for all Appellants. Elizabeth R. Veit, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees in 21-1037 and 21-1063. T. Monique Peoples, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees in 21-1056 and 21-5022. ON BRIEF: Bradley B. Banias, WASDEN BANIAS, LLC, Charleston, South Carolina, for all Appellants. James Betzold, BETZOLD LAW PLC, Holland, Michigan, for Appellants in 21-1037, 21-1056, and 21-1063. T. Monique Peoples, Elizabeth R. Veit, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
KAREN NELSON MOORE, Circuit Judge. Edmer Eudulio Barrios Garcia, Doublas Arguijo, Ardiles Yasdami Mendez Mendez, and Sudhaben Pankajkumar Patel are noncitizens. They were victims of grave crimes; they cooperated with law enforcement. They applied for U-visas and authorization to work; Mendez Mendez and Patel sought derivative U-visas and work authorization for some of their family members. These noncitizens have waited years for U.S. Citizenship and Immigration Services (USCIS)—a division of the Department of Homeland Security (DHS)—to adjudicate their applications. Plaintiffs have been and remain unable to obtain lawful employment, to visit their family members who live abroad, or to attain deferred-action status that would protect them from removal from this country. Plaintiffs sued USCIS and DHS, alleging that the agencies have unreasonably delayed placing the principal applicants on the U-visa waitlist and adjudicating Plaintiffs’ work-authorization applications. While this appeal pended, USCIS announced a new program for persons with pending U-visa applications known as the “Bona Fide Determination Process.” The parties contest whether this nascent program moots Plaintiffs’ claims.
We must decide whether this case is moot, whether the Administrative Procedure Act (APA) allows the federal courts to review Plaintiffs’ two claims, the scope of our review, and the claims’ sufficiency. We hold that the issuance of the Bona Fide Determination Process moots no part of this case. We further hold that
To that end, we conclude that Plaintiffs have pleaded sufficient facts that the principal petitioners’ delayed waitlist determinations have harmed Plaintiffs’ health and welfare; Plaintiffs’ waitlist claim should thus survive the Government‘s motions to dismiss. Although we cannot review Plaintiffs’ work-authorization claim, the implementation of the Bona Fide Determination Process during this appeal compels us to conclude that Plaintiffs should be permitted to amend their complaints should they wish to challenge any delayed “bona fide” determinations. We thus REVERSE and REMAND.
I. BACKGROUND
Congress has authorized DHS to grant U-visas to noncitizen victims of serious crimes who cooperate with law enforcement and to the noncitizens’ qualifying family members. See
Congress capped the number of U-visas that can be granted to principal applicants at 10,000. See
To accommodate this deluge of applications, DHS promulgated a three-step waitlist framework for U-visa applicants: (1) a U-visa application is submitted; (2) an application is approved and the petitioner is
First, a person petitions USCIS for U-nonimmigrant status for themselves and derivative U-nonimmigrant status for their qualifying family members by filing an I-918 form and appropriate supplements. See
Second, if USCIS decides that the principal petitioner qualifies for a U-visa but cannot be granted the visa solely because of the 10,000-person cap, USCIS approves the application and the applicant “must be placed on [the] waiting list” per DHS regulations.
Third, USCIS grants the principal applicant‘s U-visa and accords U-nonimmigrant status to the petitioner and their qualifying family members.
Edmer Eudulio Barrios Garcia, Doublas Arguijo, Ardiles Yasdami Mendez Mendez, and Sudhaben Pankajkumar Patel are noncitizens. They were victims of serious crimes, and they cooperated with law enforcement. They have applied for U-visas—becoming principal petitioners—and work authorization. Mendez Mendez and Patel have sought derivative U-nonimmigrant status and work authorization for some of their family members. USCIS has not placed the principal petitioners on the U-visa waitlist; nor has the agency approved the noncitizens’ work-authorization applications. So all these noncitizens are stuck at step one of the three-tier waitlist framework.
The principal petitioners and their qualifying family members sued USCIS and DHS, raising two claims. Plaintiffs complain that the agencies have unreasonably delayed or unlawfully withheld placing the principal petitioners on the U-visa waitlist and adjudicating Plaintiffs’ work-authorization applications. See Barrios Garcia R. 22 (First Am. Compl. at 11–24) (Page ID #151–64); Arguijo R. 28 (Second Am. Compl. at 11–24) (Page ID #207–20); Mendez Mendez R. 20 (First Am. Compl. at 12–24) (Page ID #121–33); Patel R. 1 (Compl. at 11–19) (Page ID #11–19).
The Western District of Michigan dismissed Barrios Garcia‘s, Arguijo‘s and the Mendez Mendezes’ cases and the Eastern District of Kentucky dismissed the Patels’ suit. The Michigan district court found that the federal courts lack subject-matter jurisdiction to consider the waitlist and work-authorization claims; the Kentucky district court found that it had subject-matter jurisdiction over the former but not the latter claim. Both courts found that Plaintiffs had failed to state a claim that USCIS had unreasonably delayed putting the principal petitioners on the U-visa waitlist. See generally Barrios Garcia v. United States Dep‘t of Homeland Sec., 507 F. Supp. 3d 890 (W.D. Mich. 2020); Arguijo v. United States Dep‘t of Homeland Sec., No. 1:20-cv-378, 2020 WL 7585809 (W.D. Mich. Dec. 16, 2020); Mendez v. United States Dep‘t of Homeland Sec., 507 F. Supp. 3d 882 (W.D. Mich. 2020); Patel v. Cuccinelli, No. CV 6:20-101-KKC, 2021 WL 77459 (E.D. Ky. Jan. 8, 2021). Plaintiffs appealed, and we consolidated their appeals.
During the pendency of these appeals, the parties jointly filed a
The BFD process outlines the following procedure. When USCIS receives an I-918 form, USCIS “first determines whether [the] pending petition is bona fide.” BFD PROCESS, supra, Introduction; see also POLICY MANUAL, supra, Vol. 3, Part C, Ch. 5, APPENDIX: BONA FIDE DETERMINATION PROCESS FLOWCHART, https://www.uscis.gov/sites/default/files/document/policy-manual-resources/Appendix-BonaFideDeterminationProcessFlowchart.pdf (last visited July 27, 2021) [hereinafter FLOWCHART]. The manual defines “bona fide” as “made in good faith; without fraud or deceit” and explains what a bona fide determination entails. BFD PROCESS, supra, Introduction & n.3 (quoting BLACK‘S LAW DICTIONARY (11th ed. 2019)).
If USCIS decides that the U-visa application is not bona fide, the agency puts the application on the waitlist track. USCIS assesses whether the principal petitioner is eligible for the U-visa waitlist. If the applicant is deemed eligible, USCIS places them on the waitlist and decides whether to grant them work authorization. The principal petitioner is then placed in a pool of persons waiting for USCIS to grant them a U-visa. See FLOWCHART, supra. If the petitioner is considered ineligible for the waitlist, their U-visa petition is denied. See FLOWCHART, supra; BFD PROCESS, supra, § C.
If USCIS decides that the U-visa application is bona fide, the agency puts the principal petitioner on the BFD Employment Authorization Document (EAD) track. See FLOWCHART, supra; BFD PROCESS, supra, § B. USCIS “in its discretion[] determines whether the petitioner poses a risk to national security or public safety” and whether “other adverse factors weigh against a favorable exercise of discretion” “on a case-by-case basis.” BFD PROCESS, supra, Introduction & § B. “If USCIS determines [that] a principal petitioner and any other qualifying family members have a bona fide petition and warrant a favorable exercise of discretion, USCIS issues them BFD EADs and grants deferred action.” Id. § C. Only if the principal petitioner receives a BFD EAD does USCIS adjudicate whether the qualifying family members’ I-918 supplement is bona fide and whether the family members are entitled to BFD EADs. See BFD PROCESS, supra, § A.2. The principal petitioner is then placed in a pool of persons awaiting the grant of a U-visa. See FLOWCHART, supra. But if USCIS decides not to issue a BFD EAD to a principal
To tie everything together, U-visa principal applicants and their qualifying family members may now receive work authorizations via two, distinct tracks: the BFD EAD track or the waitlist track. If a principal petitioner is granted a BFD EAD, USCIS does not place the applicant on the U-visa waitlist. And a person on the waitlist is not issued a BFD EAD—they are granted a separate work authorization. USCIS operates a one-way switch between the tracks: USCIS may switch a principal petitioner on the BFD EAD track over to the waitlist track but not vice versa. Specifically, if USCIS decides that it will not issue a BFD EAD to a principal petitioner, the agency will consider whether the petitioner is eligible to be placed on the waitlist. But if USCIS decides that a principal petitioner is not eligible for the waitlist, the agency outright denies their U-visa application; the noncitizen is not put on the BFD EAD track. See FLOWCHART, supra.
In their joint Rule 28(j) letter, the parties also disputed whether the newly issued BFD process moots this case. CA6 No. 21-1037 R. 31 (28(j) Letter at 2). We sought and received additional briefing on the question of mootness. See Plaintiffs’ Letter Br. at 1; Gov‘t Letter Br. at 1.
II. ANALYSIS
A. Standard of Review
We review de novo the dismissal of a case under
B. Jurisdiction
The district courts, the parties, and other courts have framed the issues in this case as a question of subject-matter jurisdiction. See Barrios Garcia Br. at 10; Gov‘t Br. at 15;1 see, e.g., Gonzalez v. Cuccinelli, 985 F.3d 357, 365 (4th Cir. 2021).2 The APA does not independently grant subject-matter jurisdiction to the federal courts. See Califano v. Sanders, 430 U.S. 99, 105–06 (1977). Notably, the Court does not refer to “jurisdiction” in its opinions addressing
federal courts’ subject-matter jurisdiction in APA cases is bestowed by
C. Mootness
We start with whether the recent issuance of the BFD process moots this case. “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969) (citation omitted). The Government argues that Plaintiffs’ “claim that USCIS has a duty to implement a pre-waitlist work authorization program is moot” because “USCIS has chosen to implement a pre-waitlist work authorization program pursuant to its discretionary authority under
Contrary to the Government‘s framing, Plaintiffs do not challenge the Government‘s failure to institute a program for processing prewaitlist work-authorization applications. Cf. Gov‘t Letter Br. at 2–8. Rather, Plaintiffs contest a more basic wrong: that USCIS and the Department of Homeland Security (DHS) have unreasonably delayed the adjudication of Plaintiffs’ work-authorization applications. See Barrios Garcia R. 22 (First Am. Compl. at 11–15) (Page ID #151–55); Arguijo R. 28 (Second Am. Compl. at 11–15) (Page ID #207–11); Mendez Mendez R. 20 (First Am. Compl. at 12–15) (Page ID #121–24); Patel R. 1 (Compl. at 11–14) (Page ID #11–14); Barrios Garcia Br. at 8; Plaintiffs’ Letter Br. at 3, 6. Notwithstanding the recent iteration of the BFD process, Plaintiffs’ work-authorization applications remain unadjudicated. Indeed, the Government tucks this concession into a footnote: “the BFD Process does not moot Appellants’ claim that USCIS has unreasonably delayed or withheld pre-waitlist work authorization under
To the extent that Plaintiffs contest USCIS‘s or DHS‘s failure to institute a program to process prewaitlist work-authorization applications, this issue is likewise not moot. Two exceptions to mootness are relevant here. First, “[v]oluntary cessation of challenged conduct moots a case . . . [but] only if it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.‘” Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (quoting United States v. Concentrated Phosphate Exp. Ass‘n, 393 U.S. 199, 203 (1968)). “If the discretion to effect the change lies with one agency or individual, or there are no formal processes required to effect the change, significantly more than the bare solicitude itself is necessary to show that the voluntary cessation moots the claim.” Speech First, Inc. v. Schlissel, 939 F.3d 756, 768 (6th Cir. 2019). Second, wrongs that are “capable of repetition, yet evading review” are not moot. Roe v. Wade, 410 U.S. 113, 125 (1973) (quoting S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)). “Th[is] exception applies where ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.‘” Kentucky v. United States ex rel. Hagel, 759 F.3d 588, 595–96 (6th Cir. 2014) (quoting Fed. Election Comm‘n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007)).
The nascent BFD process may be “the most significant update to the U visa program since the [U-visa] regulations were promulgated [by DHS] in 2007.” Gov‘t Letter Br. at 8. But USCIS clearly wields sole and unadulterated discretion to set forth, abide by, and eliminate the BFD process. The “about” section of the USCIS Policy Manual states that “[t]he Policy Manual is to be followed by all USCIS officers in the performance of their duties but it does not remove their discretion in making adjudicatory decisions.” POLICY MANUAL, supra, ABOUT THE POLICY MANUAL, https://www.uscis.gov/policy-manual (last visited July 27, 2021). The BFD process‘s appendix states that the APA “excepts interpretive rules; general statements of policy; and rules of agency organization, procedure, or practice from notice and comment requirements” and that “[t]he permissive language of [
Put simply, USCIS‘s own manual betrays the agency‘s stance on mootness. Clearly, USCIS does not believe that statutes compel the promulgation of the BFD process (or any other content in the Policy Manual for that matter). A future administration could rescind the BFD process just as easily as this administration established it; the program could be retracted before any of Plaintiffs’ applications are adjudicated by USCIS. We conclude that the Government‘s recent release of the BFD process does not satisfy the “voluntary cessation” framework and that Plaintiffs’ injuries are capable of repetition yet evading review. The implementation of the BFD process thus does not moot any part of this case.
D. Reviewability
We now turn to the APA. Title
Section 702‘s premise of judicial review is circumscribed by two other sections of the APA. Section 701 ordains whether judicial review is available at all. See Webster v. Doe, 486 U.S. 592, 597 (1988). “[The] strong presumption favoring judicial review of administrative action . . . may be rebutted only if the relevant statute precludes review” per
Thus, we first explore whether
1. Availability of Judicial Review
a. 5 U.S.C. § 701(a)(1) and 8 U.S.C. § 1252(a)(2)(B)(ii)
Under
The Government argues that
Section 1252 governs “Judicial review of orders of removal” and subsection (a) is titled “Matters not subject to judicial review.” Clause (a)(2)(B) states:
(B) Denials of discretionary relief
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(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, other than
the granting of relief under section 1158(a) of this title.
We begin with why
Whether
We hold that
Plaintiffs, moreover, triumph regardless of the BFD process‘s existence because
read this statute as requiring the DHS Secretary to decide if an application is “pending” and “bona fide” before the agency can wield its discretion to grant an applicant work authorization.
We acknowledge that
The issuance of the BFD process bolsters our Weyerhaeuser-style, back-to-front construction of
USCIS first determines whether a pending petition is bona fide. Second, USCIS, in its discretion, determines whether the petitioner poses a risk to national security or public safety, and otherwise merits a favorable exercise of discretion. If USCIS grants a noncitizen a Bona Fide Determination Employment Authorization Document (BFD EAD) as a result of the BFD process, USCIS then also exercises its discretion to grant that noncitizen deferred action for the period of the BFD EAD.
POLICY MANUAL, supra, Introduction; see also POLICY ALERT, supra, at 2 (“[The BFD Process] [c]larifies that, if USCIS determines the principal petition is bona fide, USCIS will then determine whether the principal petitioner poses a risk to national security or public safety, and finally, whether the principal petitioner warrants a favorable exercise of discretion to receive employment authorization under [
Clearly, USCIS and we are on the same page:
“bona fide” before the agency undertakes discretionary decisions about national security, public safety, and other relevant factors and before USCIS makes more discretionary decisions to issue a BFD EAD and grant deferred-action status. See BFD PROCESS, supra, Introduction & § B.4 In other words, Section 1184(p)(6) is not a wholly discretionary statute. We thus do not read
To sum up, USCIS‘s placement of principal petitioners who are eligible for U-visas on the waitlist is mandatory per DHS regulations, not pursuant to a statute. So
b. 5 U.S.C. § 701(a)(2)
Section 701(a)(2) “has caused confusion and controversy since its inception.” Viktoria Lovei, Revealing the True Definition of APA § 701(a)(2) by Reconciling “No Law to Apply” with the Nondelegation Doctrine, 73 U. CHI. L. REV. 1047, 1050 (2006). That provision states that an “agency action [that] is committed to agency discretion by law” is unreviewable. Regents, 140 S. Ct. at 1905 (quoting
The Supreme Court has thus rejected a literal reading of
We start with why
Unsurprisingly, whether
question. At issue, once again, is
The Government mistakenly blurs the line between
The Court‘s
The Court came out another way in Chaney. The Chaney Court examined whether incarcerated persons could compel the Food and Drug Administration (FDA) to take enforcement actions to prevent two states from using specific lethal-injection drugs in violation of the Federal Food, Drug, and Cosmetic Act (FDCA). Chaney, 470 U.S. at 823–24. The Court looked at the FDCA‘s enforcement provision, which “provides only that ‘[t]he [FDA] Secretary is authorized to conduct examinations and investigations . . . .‘” Id. at 835 (quoting
investigations. Imagine if
DHS regulations, moreover, charge “pending” with meaning. One DHS regulation,
“Bona fide” is a similarly significant, well-understood term of art in the law. See Bona Fide, Bona Fides, Mala Fide, BLACK‘S LAW DICTIONARY (11th ed. 2019). For example,
[the restriction] shall not apply with respect to a marriage if the [noncitizen] establishes by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place and the marriage was not entered into for the purpose of procuring the [noncitizen‘s] admission as an immigrant and no fee or other consideration was given.
evidence of good faith, compliance with the law, and sincere purpose—that courts can apply to discretionary agency decisions.
Any doubt about the meaningfulness of “bona fide” collapsed when USCIS issued the BFD process. Per the USCIS Policy Manual, “[b]ona fide generally means ‘made in good faith; without fraud or deceit.‘” See BFD PROCESS, supra, Introduction & n.3 (quoting BLACK‘S LAW DICTIONARY (11th ed. 2019)). The manual supplies pages of guidance, appendices, and even a flowchart explaining what “bona fide” means, how the agency came up with that term, and definitions of bona fide that were considered and rejected. See id. § A.; FLOWCHART, supra; APA APPENDIX, supra.
Indeed, USCIS‘s issuance of the BFD process puts this case on all fours with the Court‘s recent decision in Regents. In 2012, DHS issued a memorandum announcing the Deferred Action for Childhood Arrivals (DACA) program. See Regents, 140 S. Ct. at 1901. To prevent low-priority persons from being removed, the DACA memorandum instructed USCIS to “exercise prosecutorial discretion[] on an individual basis” and defer action for those individuals. Id. at 1902 (citation omitted, alteration in original). DHS later rescinded DACA via memorandum; the rescission was at issue in Regents. See id. at 1902–05.
In Regents, the Government argued that rescinding DACA was a nonenforcement decision that could not be reviewed because of
The DACA memorandum, moreover, mirrors the BFD process in the present case. Like the DACA memorandum, the USCIS Policy Manual does not merely “‘refus[e] to institute proceedings’ against a particular entity or even a particular class.” Id. (alteration in original) (quoting Chaney, 470 U.S. at 832). Rather, the USCIS manual has “instituted a standardized review process” and “‘establish[ed] a clear and efficient process’ for identifying individuals who met the enumerated criteria” for what constitutes a bona fide U-visa application and who is eligible for a BFD EAD. Id. (citation omitted). USCIS also issued a “formal notice[]” of this policy change on June 14, 2021. See id.; POLICY ALERT, supra, at 1. And after USCIS determines that a U-visa application is bona fide, decides that a petitioner poses no risk to public safety or national security, and considers “other relevant discretionary factors,” USCIS can decide whether to issue work authorization. See BFD PROCESS, supra, § B. This chain of decisions embodies “an affirmative act of approval“—“the very opposite of a ‘refus[al] to act.‘” Regents, 140 S. Ct. at 1906 (alteration in original) (quoting Chaney, 470 U.S. at 831–32). The BFD process is no “passive non-enforcement policy“; it has “created a program for conferring affirmative immigration relief.” Id. Finally, “access to [work-authorization] benefits is an interest [that] ‘courts often are called upon to protect.‘” Id. (quoting Chaney, 470 U.S. at 832); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 21–22 (2003) (reviewing agency‘s Social Security eligibility determination). No doubt, the genesis of the BFD process is “an ‘action [that] provides a focus for judicial review.‘” Regents, 140 S. Ct. at 1906 (alteration in original) (quoting Chaney, 470 U.S. at 832).
The Government also attempts to distinguish the Regents Plaintiffs (who argued that the rescission of DACA was arbitrary and capricious and must be set aside per
To sum up, the placement of principal petitioners on the waitlist is not discretionary under DHS regulations. Section 1184(p)(6) and the USCIS Policy Manual, moreover, supply some law that we can apply to assess USCIS‘s determination of whether a U-visa application is “pending” and “bona fide,” which triggers either the BFD EAD track or the waitlist track. Thus,
2. Scope of Judicial Review: 5 U.S.C. § 706(1)
Persons can challenge an agency‘s action under
We start with Plaintiffs’ claim that USCIS has unreasonably delayed putting the principal petitioners on the waitlist. “[A]n agency can create a non-discretionary duty by binding itself through a regulation carrying the force of law.” Elec. Priv. Info. Ctr. v. Internal Revenue Serv., 910 F.3d 1232, 1244 (D.C. Cir. 2018). DHS has done so here. Again, USCIS‘s regulations mandate the placement of U-visa-eligible petitioners on the waitlist. See
Whether
To recap, we may (1) compel DHS to put principal petitioners on the U-visa waitlist if placement has been unreasonably delayed; and (2) require DHS to adjudicate whether a U-visa application is bona fide if that decision is unreasonably delayed. But we cannot command DHS to adjudicate Plaintiffs’ prewaitlist work-authorization applications.8
E. Unreasonable Delay
Having determined that we may review Plaintiffs’ claims, we now assess whether Plaintiffs have stated claims upon which relief can be granted. The federal courts “shall . . . compel agency action unlawfully withheld or unreasonably delayed.”
- 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.
Id. at 80 (internal quotation marks and citations omitted).
The third and fifth TRAC factors—concerning health, welfare, and prejudice—favor Plaintiffs. Per their complaints, Plaintiffs cannot obtain a social-security number or identification cards; they cannot garner healthcare, car insurance, or lawful employment. Plaintiffs cannot acquire deferred action or permanent status; they risk removal from the United States. They cannot lawfully travel to and from the United States, so they cannot reunite with their family that lives abroad. See Barrios Garcia R. 22 (First Am. Compl. at 6–8, 11, 15, 17) (Page ID #146–48, 151, 155, 157); Arguijo R. 28 (Second Am. Compl. at 6–7, 11, 15, 17) (Page ID #202–03, 207, 211, 213); Mendez Mendez R. 20 (First Am. Compl. at 6–8, 11–12, 15, 17–18) (Page ID #115–16, 120–21, 124, 126–27); Patel R. 1 (Compl. at 4, 8, 11, 16) (Page ID #4, 8, 11, 16). No doubt, each Plaintiff has pleaded “sufficient facts to show that their interests are weighty, implicate health and welfare, and are harmed by” principal petitioners’ years-long wait to be placed on the U-visa waitlist. Gonzalez, 985 F.3d at 375.
Based on these factual allegations alone, we hold that all Plaintiffs have sufficiently alleged that USCIS has unreasonably delayed deciding whether to place principal petitioners on the U-visa waitlist. Our decision is compounded by the applicants’ lengthy wait. Barrios Garcia, Arguijo, and the Mendez Mendezes filed their U-visa applications in 2018. Patel and her family members filed their U-visa applications in 2016—five years ago. See Barrios Garcia R. 22 (First Am. Compl. at 10) (Page ID #146–47, 151); Arguijo R. 28 (Second Am. Compl. at 11) (Page ID #207); Mendez Mendez R. 20 (First Am. Compl. at 11–12) (Page ID #120–21); Patel R. 1 (Compl. at 4, 8, 11) (Page ID #4, 8, 11).
As for Plaintiffs’ work-authorization claim, we reiterate that we cannot compel USCIS to adjudicate prewaitlist work-authorization applicants notwithstanding any unreasonable delay. But we note that the BFD process was implemented as this appeal unfolded; Plaintiffs may desire to challenge USCIS‘s delay in determining whether their U-visa applications are bona fide. We thus deem it appropriate for the district court to allow Plaintiffs to amend their complaints to reflect the issuance of this new program. See
Regarding Plaintiffs’ waitlist claim, the Government‘s squabbles about the remaining TRAC factors fail to convince us. Adverting to the first TRAC factor, the Government declares that USCIS processes U-visa petitions and related EAD requests “on a first-in, first-out basis, with some eligible to be expedited under specific criteria” and thus constitutes a rule of reason. Gov‘t Br. at 40–41. In essence, the Government portrays the U-visa approval process as a languid line, which coheres with DHS regulations.
Homing in on the second TRAC factor, the Government protests that “Congress has not set a specific timeline for adjudicating U visa petitions and related EAD requests.” Gov‘t Br. at 42. At oral argument, the Government intimated that if a statute does not set a deadline for an agency action, an agency‘s failure to act is not unreasonably delayed for
The Government‘s position, moreover, cannot withstand the words of Congress and the Supreme Court. Section 706(1) commands the federal courts to “compel agency action unlawfully withheld or unreasonably delayed.” “[T]he distinction between agency action ‘unlawfully withheld’ and ‘unreasonably delayed’ turns on whether Congress imposed a date-certain deadline on agency action.” Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir. 1999).9 By asking us to import a
We further note that
As for the fourth TRAC factor, the Government argues that the federal courts should decline to grant relief to petitioners “where a judicial order putting the petitioner at the head of the queue would simply move all others back one space and produce no net gain.” Gov‘t Br. at 46 (quoting Xiaobin Xu v. Nielsen, 2018 WL 2451202, at *2 (E.D.N.Y. May 31, 2018)). DHS may indeed be resource- and personnel-depleted. But USCIS does not deploy a team of academics to apply sophisticated regulatory criteria to U-visa applications; nor does the adjudication of a single application take years. Cf. Mashpee, 336 F.3d at 1100 (describing Bureau of Indian Affairs process for recognizing Native American tribes). We also know nothing about how the nascent BFD EAD process might affect USCIS‘s procedures or processing times.
All we know is that the average processing time for U-visa applications before the issuance of the BFD process was 60.5 to 61 months.10 See USCIS, CHECK CASE PROCESSING TIMES, https://eGov.uscis.gov/processing-times/ (last visited Jul. 23, 2021).11 At the Rule 12(b)(6) stage, we cannot conclude that the U-visa-application determination and the bona-fide adjudication are “extremely complex and labor-intensive task[s].” Mashpee, 336 F.3d at 1100. Discovery is warranted to better assess “the complexity of the task at hand, the significance (and permanence) of the outcome, and the resources available to the agency.” Id. at 1102. Nor are we persuaded that USCIS‘s release of its average U-visa-application processing time should prompt us to decide that Plaintiffs’ years-long wait is reasonable. Oral Arg. 50:49–52:01. The average adjudication time says little about the unreasonableness of USCIS‘s delay in Plaintiffs’ case; this number also does not alter how most (if not all) U-visa adjudications might be unreasonably delayed. We find it unhelpful to fixate on the average snail‘s pace when comparing snails against snails in a snails’ race.
We sympathize with the burdens that agencies shoulder. See Gov‘t Br. at 44–45; Oral Arg. at 52:50–56. But we cannot supplant the law with the Government‘s policy argument that agencies should be the sole
To summarize, Plaintiffs have sufficiently alleged that USCIS has unreasonably delayed the adjudication of their U-visa applications. Because the BFD process was issued after Plaintiffs’ complaints were filed, Plaintiffs should be allowed to amend their complaints should they wish to assert that USCIS has unreasonably delayed its determination that their U-visa applications are “bona fide.”
III. CONCLUSION
We conclude by restating our holdings. We hold that the issuance of the BFD Process moots no part of this case. We hold that
We thus REVERSE the district courts’ grants of the Government‘s motions to dismiss and REMAND for further proceedings.