N-N v. MayorkasN-N v. Mayorkas
MEMORANDUM & ORDER
Plaintiffs are petitioners for “U nonimmigrant status,” which is available to victims of certain types of crimes who assist U.S. law enforcement. They bring suit against the Secretary of Homeland Security, the Director of U.S. Citizenship and Immigration Services (“USCIS“), and others, challenging agency delays in adjudicating their visa applications and associated applications for employment authorization. Plaintiffs seek declaratory, injunctive, and mandamus relief directing USCIS to adjudicate their requests for employment authorization, adjudicate their eligibility for U visas, and issue interim employment authorization documents to those who submitted applications before January 17, 2017.
I. Statutory and Regulatory Background
Congress established the U visa program as part of the
A U visa serves two purposes. First, it accords the applicant lawful temporary resident status. Second, it authorizes the applicant to work in the United States during the life of the U visa. Importantly, however, receipt of a U visa is not the only means to obtain these benefits. As set out below, the relevant statutes and regulations contemplate certain alternative pathways for applicants to secure employment
To begin the application process for a U visa, a petitioner must complete a Form I-918 Petition for U Nonimmigrant Status. See USCIS Form I-918, Instructions for Petition for U Nonimmigrant Status and Supplement A, Petition for Qualifying Family Member of U-1 Recipient.1 The petition must include two certifications: one signed by the petitioner, describing the criminal activity to which they fell victim; and the other signed by a law enforcement officer or similar official, attesting to the petitioner‘s cooperation.
USCIS regulations provide that when a U visa petition is submitted, the agency will complete a “de novo review of the petition and evidence,” and “issue a written decision approving or denying Form I-918.”
As relevant here, the petition for a U visa proceeds through four stages. These stages are the product of multiple statutory and regulatory pronouncements, as discussed below. A petitioner‘s entitlement to employment authorization (or the lack thereof) varies by law at each stage. The stages can be summarized as follows:
Stage One: Application filed, but not yet reviewed. After a petitioner files a U visa application, but before USCIS review has begun, the petitioner remains ineligible for employment authorization. USCIS reviews petitions on a first-in, first-out basis, so there is a delay between the time of application and review. During this review, the petitioner is still vulnerable to removal, but may be granted - as a matter of discretion - a stay of removal pursuant to
Stage Two: Petition determined to be “bona fide,” but not yet adjudicated. In 2008, Congress adopted
Congress did not, however, define what constitutes a “bona fide” application, and USCIS has issued no implementing regulations under this part of the statute. E.g., Uranga v. U.S. Citizenship & Immigr. Servs., 490 F. Supp. 3d 86, 100 (D.D.C. 2020). Nor does USCIS evaluate, in practice, whether pending applications are “bona fide.” Consequently, applicants do
Stage Three: Waitlist. Even after USCIS reviews a petition and determines that the petitioner is eligible, the U visa does not issue immediately. This is because in 2008, Congress imposed a statutory cap of 10,000 new U visas that may be issued per year. See
Stage Four: U visa issued. A petitioner who is approved for and issued a U visa receives lawful nonimmigrant status for up to four years, with the potential for an extension in certain cases. See
A. The 2017 Regulatory Repeal
Importantly, the background regulations governing USCIS‘s obligation to review EAD applications changed during the period covered by the Complaint. Plaintiffs read a prior version of
II. Factual Background and Plaintiffs’ Contentions
The following facts are taken from the Complaint and presumed to be true unless otherwise stated. Plaintiffs filed U visa petitions and accompanying applications
The number of petitioners determined to be eligible for U visas each year regularly exceeds the statutory cap. Id. ¶ 29. Plaintiffs allege that USCIS has nevertheless cut the annual number of waitlist adjudications, causing the number of pending (pre-waitlist) U visa petitions to “balloon[] from just over 25,000 in fiscal year 2014 to over 125,000 in fiscal year 2018.” Id. ¶ 49. As a result, the processing time for a U visa petition for placement on the waitlist now exceeds four years. Id. ¶ 44. This, in turn, prolongs the time that it takes for a petitioner to become eligible to receive an EAD - i.e., to move from Stage Two to Stage Three in the taxonomy above - because USCIS does not adjudicate requests for EADs until the petitioner has been approved and placed on the waitlist.
As explained above, USCIS currently administers two paths to employment authorization: receipt of a U visa or, in the agency‘s discretion, placement on the waitlist. Plaintiffs challenge USCIS‘s administration of this scheme on various grounds.
First, Plaintiffs request that USCIS open a third path to employment authorization - at Stage Two. See Counts II and V of the Complaint. Id. ¶¶ 155-62; 178-84. Plaintiffs contend, in these counts, that Defendants are obligated to ascertain whether a U visa application is “bona fide” and, on that basis, adjudicate their pre-waitlist EAD applications pursuant to
Plaintiffs also contend, in Count I, that Defendants have violated the APA by failing to make waitlist determinations (and thus EAD decisions) within a reasonable time, despite their “nondiscretionary obligation” to do so under
Finally, Plaintiffs claim in Counts III and VI of the Complaint that the petitioners who applied for EADs prior to January 17, 2017 are entitled to immediate work authorization because USCIS failed to meet the ninety-day deadline that existed under the version of
Defendants move to dismiss pursuant to
III. Legal Standards
On a motion to dismiss pursuant to
In reviewing a
On a motion to dismiss for improper venue under
IV. Discussion
A. The claims of plaintiffs N-N and G-V-R are moot because their visa applications have been adjudicated
Defendants argue that plaintiffs N-N and G-V-R no longer present a live case or
The jurisdiction of Article III courts is limited to “cases” and “controversies.”
It is clear at this point (and Plaintiffs do not dispute) that the alleged wrongful conduct inflicted on N-N and G-V-R has been remedied. Through this action, Plaintiffs seek injunctive and declaratory relief that would compel Defendants to timely determine their eligibility for placement on the U visa waitlist and to timely adjudicate their employment authorization applications. Because N-N and G-V-R‘s petitions and EAD applications were already adjudicated, they no longer have a personal stake in the relief sought. See Alharbi v. Miller, 368 F. Supp. 3d 527, 550 (E.D.N.Y. 2019) (“At this point, [plaintiffs] have been issued their immigrant visas, which is the relief they sought in the amended complaint. There is nothing more that the Court can order defendants to do with respect to those plaintiffs.“).
Plaintiffs argue, however, that N-N and G-V-R should remain named Plaintiffs because they are putative class representatives. See Plaintiffs’ Brief in Opposition at 5-7, ECF No. 25 (“Pls.’ Br.“). In general, potential class representatives must have individual standing at the time the class is certified. See E. Tex. Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 403 (1977) (“[A] class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” (internal quotation marks omitted)); see also Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC, 433 F.3d 181, 199 (2d Cir. 2005). Only after a class is certified will the plaintiff‘s status as class representative preserve an otherwise moot claim - allowing that plaintiff to continue to represent the interests of others even after there is no prospect of individual recovery. Comer v. Cisneros, 37 F.3d 775, 798 (2d Cir. 1994) (citing County of Riverside v. McLaughlin, 500 U.S. 44, 51-52 (1991)). Further, while the mootness of the claims of some class representatives does not moot a class action itself, Robinson v. Sheet Metal Workers’ Nat. Pension Fund, Plan A, 515 F.3d 93, 97 n.4 (2d Cir. 2008), courts may dismiss individual class representatives whose personal claims have been mooted. Dodge v. County of Orange, 103 Fed. Appx. 688, 690 (2d Cir. 2004) (“[N]amed plaintiffs in [a class] action must themselves have standing . . . .“); In re Facebook Priv. Litig., 192 F. Supp. 3d 1053, 1058 (N.D. Cal. 2016) (putative class representative who lacked standing was dismissed even though the action itself was not).
B. Venue remains proper in this District despite the dismissal of N-N and G-V-R, and transfer is not warranted
Defendants contend that the Eastern District of New York is no longer a proper
1. Venue
In a lawsuit brought under the APA, venue is governed by
Venue was proper at the time this case was filed because it was brought in the venue in which plaintiff N-N resided and venue is determined on the facts at the time a complaint is filed. See Golberg v. United States, No. 13-CV-7353, 2015 WL 5638008, at *3 (E.D.N.Y. June 4, 2015) (“When determining whether venue is proper, the relevant district to consider is plaintiff‘s residence as of the time of the filing of the complaint.“). Further, once venue is established, it is not affected by subsequent events. See Keitt v. New York City, 882 F. Supp. 2d 412, 459 n.44 (S.D.N.Y. 2011) (“Venue is determined based upon the parties and allegations at the time the operative complaint is filed, not subsequent events.“); Holmes v. Energy Catering Servs., LLC, 270 F. Supp. 2d 882, 885 n.1 (S.D. Tex. 2003) (“Under section 1391, venue is determined when the suit is filed and is not affected by subsequent events such as the dismissal of a defendant, as occurred here.“); Dolgow v. Anderson, 45 F.R.D. 470, 473 (E.D.N.Y. 1968) (“Like jurisdiction, venue once properly established, is unaffected by the change in parties, since it relates to the institution of the suit.” (cleaned up)). Accordingly, venue is proper in this District notwithstanding the dismissal of N-N.
2. Transfer
In the alternative, Defendants request that the case be transferred to the District of Columbia pursuant to
The party moving for a transfer of venue has the burden of demonstrating by “clear and convincing evidence” that the transfer is appropriate. New York Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 113-14 (2d Cir. 2010). The district court must first determine whether the lawsuit “might have been brought” in the forum where the defendant seeks to transfer the case.
(1) the plaintiff‘s choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, and (7) the relative means of the parties.
Lafarge N. Am., Inc., 599 F.3d at 112 (quoting D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006)). Courts in the Second Circuit also consider “public interest[]” factors including “administrative difficulties that follow from court congestion,” New Son Yeng Produce, LLC v. A & S Produce, Inc., No. 07-CV-4292, 2009 WL 2568566, at *4 (E.D.N.Y. Aug. 19, 2009), and “the comparative familiarity of each district with the governing law,” Bank of Am., N.A. v. Wilmington Tr. FSB, 943 F. Supp. 2d 417, 426 (S.D.N.Y. 2013). In their motion papers, Defendants contend that a transfer to the District of Columbia is warranted because Defendants are located there, as is counsel for both parties; the operative events occurred there, and in other fora outside of New York; and “nearly all” of the relevant documents, information, and potential witnesses can be found there. Defendants’ Reply Brief at 3, ECF No. 26.
These premises, however, do not all remain true at this point. On January 13, 2021, in advance of oral argument, the Court issued an Order directing Defendants to submit additional affidavits or other materials relevant to the venue question. See Order, ECF No. 30. Defendants submitted a supplemental declaration attesting that all policy-level decision-making concerning the U visa program and related employment authorizations occurs at USCIS headquarters, as does the agency‘s decision-making about resource allocation. See Declaration of Connie Nolan in Support of Defendants’ Submission, dated January 19, 2021 at 1, ECF No. 31. The agency went on to note that in December 2020, it relocated its headquarters from Washington, D.C. to Camp Springs, Maryland. See id. ¶ 5.
Most of the evidence and potential witnesses will now be found in Maryland, not Washington, D.C. While Camp Springs is relatively close to Washington, this factor no longer supports the government‘s transfer request to the extent it once did. See De Jesus v. Nat‘l R.R. Passenger Corp., 725 F. Supp. 207, 208-09 (S.D.N.Y. 1989) (applying transfer factors differently even to neighboring cities).
The remaining factors are either neutral or favor Plaintiffs. New York is the Plaintiffs’ chosen forum. While deference to their choice is “reduced” in a putative class action where “members of the class are dispersed throughout the nation,” Wald v. Bank of Am. Corp., 856 F. Supp. 2d 545, 549 (E.D.N.Y. 2012), it is nonetheless a factor that weighs against transfer here. No named Plaintiff resides in Washington, D.C. And the fact that both parties have counsel in D.C. is irrelevant, as “the convenience of counsel is not an appropriate factor to consider on a motion to transfer.” Fuji Photo Film Co. v. Lexar Media, Inc., 415 F. Supp. 2d 370, 374 (S.D.N.Y. 2006). Defendants have not demonstrated by clear and convincing evidence that a transfer of venue from New York to D.C. would advance the convenience of the parties or the interest of justice.
Defendants also raised - for the first time at oral argument - a request that if the transfer to D.C. is denied, I should instead transfer the case to the District of Maryland. See Transcript of Oral Argument dated January 20, 2021 at
3917139, at *1 (D.N.J. Sept. 7, 2017) (“[Defendant] did not raise the . . . argument in his opposition papers . . .; he raised it for the first time at oral argument. That is reason enough to reject it.” (internal citation omitted)); Baker v. Hopeman Bros., Inc., No. 11-CV-01646, 2012 WL 7761420, at *1 n.1 (E.D. Pa. Nov. 9, 2012) (declining to consider argument first raised at oral argument); Nobel Ins. Co. v. City of New York, No. 00-CV-1328, 2006 WL 2848121, at *16 (S.D.N.Y. Sept. 29, 2006) (“Normally, [the court] will not consider arguments raised for the first time in a reply brief, let alone [at or] after oral argument.” (quoting United States v. Barnes, 158 F.3d 662, 672 (2d Cir. 1998))). “This common practice promotes fairness and efficiency. Last-ditch arguments thrown out pell-mell at a motion hearing deprive party-opponents of any reasonable opportunity to give a thoughtful, supported response.” Deseret Tr. Co. v. Unique Inv. Corp., No. 17-CV-00569, 2018 WL 8110959, at *4 (D. Utah July 3, 2018). In any event, it is unclear that this case “might have been brought” in Maryland, as
Accordingly, the motion to transfer is denied.
C. The Court lacks jurisdiction to review the claim that Defendants have failed to comply with 8 U.S.C. § 1184(p)(6) (Counts II & V)
While a U visa application is pending, but before it is adjudicated, the Secretary of Homeland Security has authority to issue the applicant an EAD if the application is determined to be “bona fide,” see
Defendants respond that the decision whether to grant the employment authorization contemplated by Section 1184(p)(6) is committed to the agency‘s discretion, and therefore not reviewable under the APA. They invoke
The final sentence of Section 1184(p)(6) — on which these claims are based — says: “The Secretary may grant work authorization to any alien who has a pending, bona fide application for” U nonimmigrant status. This language is plainly discretionary. See, e.g., Lopez v. Davis, 531 U.S. 230, 241 (2001) (noting that the use of “may” instead of “shall” in a statute implies a grant of discretion); Anderson v. Yungkau, 329 U.S. 482, 485 (1947) (“[W]hen the same Rule uses both ‘may’ and ‘shall‘, the normal inference is that each is used in its usual sense — the one act being permissive, the other mandatory.“); see also Rastelli v. Warden, Metro. Corr. Ctr., 782 F.2d 17, 23 (2d Cir. 1986) (“The use of a permissive verb — ‘may review’ instead of ‘shall review’ — suggests a discretionary rather than mandatory review process.“).
There is Supreme Court precedent suggesting that this should be the end of the analysis: In Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004), the Court opined that “the only agency action that can be compelled under the APA is action legally required. This limitation appears in [
Plaintiffs contend, however, that even if the decision to “grant work authorization” is discretionary, the agency‘s obligation to determine the “bona fide” status of an application is not. Put differently, Plaintiffs are arguing that even if they are not entitled to EADs in Stage Two, they are entitled to a prompt determination of their EAD eligibility — i.e., whether their application is bona fide under Section 1184(p)(6). Pls.’ Br. at 19. For that proposition, they invoke INS v. St. Cyr, 533 U.S. 289 (2001), in which the Supreme Court held that when eligibility for a benefit is “governed by specific statutory standards,” there exists “a right to a ruling on an applicant‘s eligibility,” even though the relief itself is “a matter of grace.” Id. at 307-08.
By its terms, however, St. Cyr‘s “right to a ruling” applies only when the law in question sets out a precondition to the exercise of discretion, and that precondition is expressed in a “specific statutory standard.” Id. Accordingly, this Court must determine whether the statement that applicants with “pending, bona fide” petitions are eligible for discretionary EAD grants, see
I am constrained to conclude that the term “bona fide” does not constitute the kind of specific statutory standard that could be held to require a determination under St. Cyr. There is simply nothing specific about the phrase “bona fide,” as used in this context. “Specific” means “characterized by precise formulation,” WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 2187 (2020); “definite,” RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1832 (1987); “[p]recisely formulated,” WEBSTER‘S SECOND NEW INTERNATIONAL DICTIONARY 2414 (1946); and “free from ambiguity,” MERRIAM-WEBSTER DICTIONARY.6 The relevant passage in Section 1184(p)(6) is none of these things, and Congress has provided no additional guidance beyond that passage.
Several other courts have reached the same conclusion. As one judge in the District Court for the District of Columbia put it, “[t]he only requirement in [Section 1184] relating to the grant of [an] EAD is that the U-visa application must be pending and ‘bona fide,’ [but] what this means
Likewise, in Patel v. Cissna, 400 F. Supp. 3d 1373, 1380-81 (M.D. Ga. 2019), the court concluded that “bona fide” is not a specific statutory standard:
Congress did not specifically state what the single “eligibility” requirement, “bona fide,” meant. It is not defined in the statute . . . . Even if there is some general principle that when Congress specifically enumerates eligibility requirements, it presumptively intended for the agency to develop a process for determining whether those requirements have been met, § 1184(p)(6) is not the poster child for the application of this principle.
The Patel court went on to conclude that “Congress‘s loose ‘eligibility’ requirement” was “consistent with an intent to vest the Secretary with maximum discretion.” Id. at 1381; see also id. at 1376 (agreeing with the government that this conferral of discretion includes the “right not to process pre-waiting list work authorization claims“).
The Fourth Circuit reached the same conclusion recently in Gonzalez v. Cuccinelli, 985 F.3d 357 (4th Cir. 2021). There, the panel held that “Congress did not mandate implementation of § 1184(p)(6), much less mandate adjudication of the benefits it contemplates.” Id. at 370. The court found that Congress did not provide a specific statutory standard to interpret what “bona fide” means in Section 1184(p)(6). The court noted that “several circuits, including our own, have rejected that such broad ‘standards’ render decisions reviewable.” Id. (citing cases in the D.C., Third, and Fourth Circuits); see also Butanda v. Wolf, No. 20-CV-01155, 2021 WL 327714, at *5 (D. Colo. Feb. 1, 2021) (finding that Section 1184(p)(6) requires no discrete agency action by the Secretary that would cabin his discretion and “bring it within the ambit of Section 706(1)“).
Courts have held similarly vague language in other statutes to fall short of the St. Cyr standard. In Mousavi v. U.S. Citizenship & Immigration Services, for example, the Third Circuit considered a provision of immigration law affording the executive branch discretion to grant work authorization to certain applicants so long as the Attorney General deemed such a grant to be “in the national interest.” 828 F. App‘x 130, 132-33 (3d Cir. 2020) (quoting
This Court is persuaded by the reasoning of Uranga, Gonzalez, and these other cases. There is simply insufficient definitional content in the phrase “bona fide” to compel agency action in the context of a
One court in this District has reached the opposite conclusion on this same language. Rodriguez v. Nielsen, No. 16-CV-7092, 2018 WL 4783977, at *15 (E.D.N.Y. Sept. 30, 2018) (finding that USCIS has a duty to adjudicate EAD applications pursuant to Section 1184(p)(6)). The Rodriguez court noted — persuasively — that USCIS could opt to graft specific definitional content onto the “bona fide” standard in Section 1184(p)(6) if it chose, and indeed that USCIS actually has provided such definitional content for the same phrase, as used in a different context. Id. at *11-12. Specifically, Rodriguez observed that USCIS has adopted regulations relating to the issuance of T visas, providing that an application should be considered bona fide once it “has been initially reviewed and determined that the application does not appear to be fraudulent, is complete and properly filed, includes completed fingerprint and background checks, and presents prima facie evidence of eligibility.” Id. at *11 n.15 (quoting
I agree that USCIS could, if it chose, graft sufficient specifics on to the skeletal “bona fide” standard in Section 1184(p)(6). But as I read St. Cyr, the question is not whether USCIS could do so, but whether Congress has done so in Section 1184 itself. See St. Cyr, 533 U.S. at 290, 307-08 (speaking of a right to a ruling as to “[e]ligibility that was governed by specific statutory standards” (emphasis added) (internal quotation marks omitted)). Congress has not done so here, and accordingly I conclude that it left the agency discretion to implement its discretionary authority under Section 1184(p)(6) — or not. E.g., Gonzalez v. Cuccinelli, 985 F.3d at 371 (because Congress has not provided a specific statutory standard, the “decision to adjudicate remains discretionary“).
Plaintiffs attempt to distinguish Uranga et al. on the basis that some of those decisions expressed doubt that St. Cyr even applies to Section 1184(p)(6), given that St. Cyr arose in the habeas context. Pls.’ Br. at 22. That doubt is foreclosed in this Circuit, Plaintiffs argue, because the Second Circuit has expressly extended St. Cyr‘s reach to the immigration context. Id.; see Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir. 2006) (court had jurisdiction to review whether agency correctly determined alien‘s eligibility for relief as defined by statutory requirements, even though the actual granting of relief was within the agency‘s discretion (citing St. Cyr, 533 U.S. at 307-08)). But I do not reject the Plaintiffs’ appeal to St. Cyr on the ground that its holding is limited to the habeas context. Rather, for the reasons set forth above, I hold that Section 1184(p)(6) simply does not constitute the type of specific statutory standard that St. Cyr contemplated in its “right to a ruling” analysis. Therefore, I do not have the authority to intercede in the agency‘s exercise of its discretion.
Because the agency has no court-enforceable duty to determine the “bona fide” status of pending applications, Counts II and V must be dismissed.
D. Plaintiffs have failed to state a claim that USCIS unlawfully withheld agency action in violation of 8 C.F.R. § 214.14(d)(2) (Counts I & IV)
Plaintiffs argue that even if the pre-waitlist assessment of an application‘s “bona fide” status is committed to agency discretion, the agency‘s ultimate adjudication
This obligation arises, Plaintiffs assert, under
Plaintiffs allege that the slow pace at which the Defendants have complied with that duty constitutes unreasonable delay under the APA (Count I of the Complaint) and that a writ of mandamus should issue to compel faster adjudication of outstanding petitions (Count IV).
This argument requires the Court to address two questions — first, whether the agency action sought in Counts I and IV is compulsory or discretionary. See Southern Utah Wilderness Association, 542 U.S. at 63 n.1 (“[D]elay cannot be unreasonable with respect to action that is not required“). Second — assuming the agency is required to provide this relief, on what timetable must it act (or, put differently, when has this action been “unreasonably delayed” under
As set forth below, the duty to adjudicate petitioners’ eligibility for placement on the waitlist is non-discretionary, and the Court thus has jurisdiction to review it. Nevertheless, Plaintiffs have not stated a claim that such action has been unlawfully delayed.
1. The Court has jurisdiction to review the adjudication of Plaintiffs’ eligibility for the U visa waitlist
The agency is required to adjudicate U visa petitions for placement on the waitlist. Therefore, the Court has jurisdiction to review agency action in this context.
USCIS regulations provide that “[a]ll eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement.”
Thus, Defendants must — at some point in time — decide whether to place Plaintiffs on the U visa waitlist. Accordingly, this Court has jurisdiction over this claim under the APA.
As to the second question, Plaintiffs have not stated a claim for unreasonable delay. Other courts have reached the same conclusion with respect to USCIS‘s adjudication of U visa applicants’ eligibility for waitlist status. See, e.g., Patel v. Cuccinelli, No. 20-CV-101, 2021 WL 77459, at *11 (E.D. Ky. Jan. 8, 2021); Arguijo v. United States Dep‘t of Homeland Sec., No. 20-CV-378, 2020 WL 7585809, at *5 (W.D. Mich. Dec. 16, 2020); Uranga, 490 F. Supp. 3d at 103-06. For the reasons set forth below, I concur.
Although USCIS regulations do not establish a deadline by which the agency must determine whether a petitioner is waitlist-eligible, the APA provides that “within a reasonable time, each agency shall proceed to conclude a matter presented to it.”
Unreasonable agency delay is measured according to the factors laid out in Telecommunications Research & Action Center v. F.C.C., 750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC“). See, e.g., Uranga, 490 F. Supp. 3d at 102 (applying the TRAC factors); Xiaobin Xu v. Nielsen, No. 18-CV-2048, 2018 WL 2451202, at *1 (E.D.N.Y. May 31, 2018) (same).
The 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 quotation marks and citations omitted).
The Plaintiffs’ claim of unreasonable delay is predicated almost entirely on the following (largely undisputed) contentions: (a) the time period to an eligibility adjudication is long (currently about four-and-a-half years); (b) that period has gotten longer over time, at a rate that outpaced the increase in U visa petitions; and (c) the wait does not have to be so long — USCIS could, if it chose, adjudicate eligibility significantly more quickly. See Pls.’ Br. at 8 (citing various allegations from the Complaint). Plaintiffs also note that USCIS has actually increased the resources it devotes to U visa petitions; thus, Plaintiffs posit, the increasing delays cannot “somehow [be] due to reduced staffing.” Id. at 9. Instead, the “natural inference,” Plaintiffs assert, is that Defendants have affirmatively “chosen not to comply with their own regulations.” Id.
It is settled, however, that the mere passage of time cannot sustain a claim of unreasonable delay. Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003).
The TRAC factors set forth above require dismissal of this claim, for the reasons set out below.
a. Is the agency‘s timing subject to a rule of reason?
Certain courts have held the first TRAC factor — the “rule of reason” factor — to be the “most important.” In re People‘s Mojahedin Org. of Iran, 680 F.3d 832, 837 (D.C. Cir. 2012); Uranga, 490 F. Supp. 3d at 102-03. Whether a rule constitutes a rule of reason “cannot be decided in the abstract, by reference to some number of months or years beyond which agency inaction is presumed to be unlawful, but will depend in large part . . . upon the complexity of the task at hand, the significance (and permanence) of the outcome, and the resources available to the agency.” Mashpee, 336 F.3d at 1102; Tate v. Pompeo, No. 20-CV-3249, 2021 WL 148394, at *10 (D.D.C. Jan. 16, 2021) (quoting same). USCIS invokes its policy of reviewing U visa applications on a “first-in, first-out” basis as the relevant rule of reason here. 72 Fed. Reg. 53,014, 53,033-34 (USCIS shall “adjudicate petitions on a first in, first out basis“); see also
Courts reviewing similar challenges have held that processing first-filed petitions before later-filed petitions does indeed constitute a “rule of reason.” E.g., Palakuru v. Renaud, No. 20-CV-02065, 2021 WL 674162, at *4 (D.D.C. Feb. 22, 2021) (finding first-in, first-out process to be governed by a rule of reason); Gonzalez v. Cissna, 364 F. Supp. 3d 579, 585-86 (E.D.N.C. 2019) (same), aff‘d in part, vacated in part, remanded sub nom. Gonzalez v. Cuccinelli, 985 F.3d at 375; A.C.C.S. v. Nielsen, 18-CV-10759, 2019 WL 7841860, at *4 (C.D. Cal. Sept. 17, 2019) (processing U visa petitions “from first-filed to last-filed” constitutes a “rule of reason“).
Plaintiffs respond that they are not challenging the existence of a first-in, first-out protocol, but instead Defendants’ “failure to process petitions — in the order received — within a reasonable time.” Pls.’ Br. at 13. In essence, Plaintiffs do not dispute that the operative protocol could constitute a rule of reason; they simply prefer a swifter administration of that protocol. This preference may be understandable, given the important interests at stake. But for this Court to demand an accelerated protocol, I would have to intrude into a quintessentially administrative function, and in the process reconfigure the agency‘s priorities to advance more than 100,000 U visa petitioners at the expense of applicants who seek other benefits from the agency, such as every other type of immigrant- and non-immigrant visa, asylum, and other remedies. This “is something that this Court is institutionally ill-equipped to do.” Pesantez v. Johnson, No. 15-CV-1155, 2015 WL 5475655, at *6 (E.D.N.Y., Sept. 16, 2015) (internal quotation marks omitted); see also In re Barr Laboratories, Inc., 930 F.2d 72, 76 (D.C. Cir. 1991) (holding that courts generally “have no basis for reordering agency priorities,” given that the agency is “in a unique — and authoritative — position to view its projects as a whole, estimate the prospects for each, and allocate its resources in the optimal way“). This first factor therefore weighs heavily in Defendants’ favor.
b. Has Congress provided a timetable?
Congress has not prescribed specific deadlines by which USCIS should adjudicate a U visa petition. At the same time, Congress has unquestionably “provided . . . [an] indication of the speed with which it expects the agency to proceed.” TRAC, 750 F.2d at 80 (emphasis added). It has done so by slowing the issuance of U visas through the enactment of the annual cap of
c. Are human health and welfare at stake?
This factor weighs in Plaintiffs’ favor, given the importance of being able to work and receiving protection from removal. A.C.C.S., 2019 WL 7841860, at *5. While delays “in the sphere of economic regulation” are more tolerable than those affecting human health and welfare, TRAC, 750 F.2d at 80, employment is usually not purely economic. Plaintiffs allege that petitioners may struggle to support themselves and/or their families because they cannot obtain lawful employment without EADs and may, as a result, have difficulty finding a safe place to live or paying medical bills for themselves or family members. See Compl. ¶¶ 69, 85, 90, 100, 130. But “agency action that fails to achieve optimal output” — even where, as here, health and welfare are at stake — “does not automatically justify court intervention.” Agua Caliente Band of Cahuilla Indians v. Mnuchin, No. 20-CV-01136, 2020 WL 2331774, at *7 (D.D.C. May 11, 2020); see also Arguijo, 2020 WL 7585809, at *1 (even where human health and welfare are at stake, these costs “[do] not by [themselves] render the delay in this case unreasonable“). On balance, however, this is the one TRAC factor that weighs in Plaintiffs’ favor.
d. Effect of an expediting order on other agency priorities
The fourth TRAC factor has also been described as critical - indeed, by one court as the “most relevant” to the APA assessment of delay in the U visa context, as well as potentially the “most fatal.” See Gonzalez v. Cissna, 364 F. Supp. 3d 585, 585 (S.D. Ga. 2019). This factor weighs strongly in favor of Defendants here because expediting the delayed action would essentially allow Plaintiffs to “jump the line,” resulting in the redistribution of agency resources but no agency-wide net gain. See Mashpee, 336 F.3d at 1100 (the court should “refuse[] to grant relief, even though all the other factors considered in TRAC favored it, 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” (cleaned up)); Am. Hosp. Ass‘n v. Burwell, 812 F.3d 183, 192 (D.C. Cir. 2016) (collecting cases “reject[ing] mandamus claims that would have had the effect of allowing the plaintiffs to jump the line, functionally solving their delay problem at the expense of other similarly situated applicants“); Barr Laboratories, 930 F.2d at 75-76 (concluding that courts “have no basis for reordering agency priorities“); Yan Chen, 2018 WL 1221130, at *2 (holding that this factor disfavored plaintiff because the effect of prioritizing her application would have come at the expense of others); Xiaobin Xu, 2018 WL 2451202, at *2 (same).
The Mashpee court noted that where, as here, there is “no evidence . . . that officials not working on [the petitioners‘] matters were just twiddling their thumbs,” plaintiffs should not be able to accelerate their quest for relief. 336 F.3d at 1100-01 (cleaned up). Other cases recognize that agencies like USCIS must “juggle competing duties,” and that courts should hesitate to reorder their priorities where the claimed injury - delay - would simply fall on another constituency if alleviated in the instant context. Xiaobin Xu, 2018 WL 2451202, at *2 (quoting Mashpee, 336 F.3d at 1101). Here, ordering the agency to move U visa petitioners - even all U visa petitioners - to the head of the agency‘s processing line would interfere with the agency‘s “authoritative” position to “allocate its resources in the optimal way.” Barr Laboratories, Inc., 930 F.2d at 75-76; see also Heckler v. Chaney, 470 U.S. 821, 831-32 (1985) (holding that an agency “is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities“). Specifically, even if this Court mandated the agency to expedite review of all U visa petitions, the inevitable result would be the slowing of other requests for relief from the agency. This critical factor, too, thus strongly favors the Defendants.
e. Nature and extent of the interests prejudiced by delay
As noted above, other courts have routinely found, as a matter of law, that delays of this “extent” are not unreasonable. Uranga, 490 F. Supp. 3d at 102-06 (delay of over four years to review U visa application was not unreasonable); see also, e.g., Yan Chen, 2018 WL 1221130, at *2 (delay of over four years to adjudicate plaintiff‘s application for an adjustment of her immigration status to permanent resident did not justify APA or mandamus relief); Saleh, 367 F. Supp. 2d at 513 (delay of “almost five years” to adjudicate plaintiff‘s application for lawful permanent alien status was not unreasonable).
And given the 10,000-visa statutory cap, the delay here is rendered more understandable, if anything, when the “nature and extent” of the interests at issue are taken into account. TRAC, 750 F.2d at 80. The reality is that even if USCIS is acting on a long timetable for U visas, it is still adjudicating petitions substantially sooner than its action can be made effective, in light of the cap. The instant fact pattern raises the question: how can allegations of a fifty-four month processing time constitute “unreasonable delay” in a process that, because of Congressional decree, cannot
Plaintiffs answer this question entirely by reference to a secondary benefit accruing from waitlist status: the provision that the agency “in its discretion, may authorize employment” to waitlisted applicants.
This appeal to the possibility of discretionary relief is an attenuated basis on which to complain about agency delay. Plaintiffs do not dispute that the agency is acting to complete the adjudicatory process long before the core relief sought through that process - the U visa - can actually be granted. Instead, they demand faster eligibility adjudication because it could lead, in turn, to a discretionary decision on certain secondary benefits. This important TRAC factor thus does not provide much leverage for the Plaintiffs’ APA claim. Arguijo, 2020 WL 7585809, at *4 (costs incident to U visa delays do not by themselves “render the delay . . . unreasonable“).
For the foregoing reasons, Defendants’ motion to dismiss Counts I and IV is granted.
E. Plaintiffs have stated a claim for Defendants’ failure to issue interim EADs in accordance with former 8 C.F.R. § 274a.13(d) (Counts III & VI)
Certain Plaintiffs - a proposed sub-class - also seek to compel Defendants to adjudicate their EAD applications pursuant to a previous version of
Interim employment authorization. USCIS will adjudicate the application within 90 days from the date of receipt of the application . . . . 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.
The government makes two arguments in response - first, that the former regulation, even while it was in effect, did not compel the agency to issue EADs to petitioners before their U visa eligibility had been determined. See Defs.’ Br. at 27, 29. And second, Defendants argue that the newer, post-January 17, 2017 rule should be applied retroactively - i.e., to EAD applications that were pending when it came into effect. Id. at 28-29. I take these arguments in turn below. For the reasons set forth, I conclude that Plaintiffs whose petitions had been pending for more than ninety days as of January 17, 2017 have stated a valid claim to relief under the former regulation, and therefore deny in part the motion to dismiss.
1. Former 8 C.F.R. § 274a.13(d) compelled issuance of employment authorization documents before U visa eligibility had been determined
Defendants argue, first, that even in its previous incarnation, Section 274a.13(d) did not entitle applicants to adjudication of their EADs within ninety days of the U visa application. Instead, they contend that the ninety-day clock began to run only once USCIS determined an applicant eligible for the waitlist, rather than when the application was filed. Because USCIS never placed these Plaintiffs on the waitlist, they argue, the ninety-day clock never started. This reading may make eminently good sense from a policy perspective: it does seem far-fetched that the agency would review EAD applications for applicants whose underlying visa eligibility had not been determined, and it seems equally unlikely that USCIS would expect to resolve both issues on so short a timetable. But whatever sense it makes, this reading is clearly at odds with the older regulation‘s plain text. Cf., e.g., United States v. Tohono O‘Odham Nation, 563 U.S. 307, 317 (2011) (“[C]onsiderations of policy divorced from the statute‘s text and purpose could not override its meaning.“).
The former
2. Revised 8 C.F.R. § 274a.13(d) may not be applied retroactively
Defendants argue, next, that the new regulation - which repealed the ninety-day
The Supreme Court has generally “declined to give retroactive effect to statutes burdening private rights unless Congress had made clear its intent” to do so. Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994). Express congressional authorization is important, in part, because “[t]he power to require readjustments for the past is drastic. It . . . ought not to be extended so as to permit unreasonably harsh action without very plain words.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (quoting Brimstone R. Co. v. United States, 276 U.S. 104, 122 (1928)); see also Landgraf, 511 U.S. at 265 (“Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.“). Therefore, “administrative rules will not be construed to have retroactive effect unless their language requires this result.” Bowen, 488 U.S. at 208; see also, e.g., Samuels v. Chertoff, 550 F.3d 252, 260 (2d Cir. 2008).
This rule is not absolute, however, as the Supreme Court explained in Landgraf. While the Court has long adhered to a presumption against retroactivity, it has also “for just as long . . . recognized that, in many situations, a court should apply the law in effect at the time it renders its decision, even though that law was enacted after the events that gave rise to the suit.” Landgraf, 511 U.S. at 273-74 (internal quotation marks and citations omitted). To do so would be “unquestionably proper” where, for example, the new law “authorizes or affects [only] the propriety of prospective relief” in which the plaintiff has no “vested right.” Id.
Where, as here, an administrative rule is at issue, the retroactive-intent inquiry is two-fold: whether Congress expressly conferred power on the agency to promulgate rules with retroactive effect and, if so, whether the regulation itself clearly provides for retroactive effect. Bowen, 488 U.S. at 208. If these tests are not both satisfied, the question becomes whether (as Defendants urge) the new regulation may be applied retrospectively anyway, because it interferes with no “vested rights.”
Here, the two-fold test is failed at both steps. “[T]here is no provision in the immigration statutes that explicitly authorizes the agency to promulgate retroactive rules, and defendants do not contend otherwise.” Uranga, 490 F. Supp. 3d at 107; see also 81 Fed. Reg. 82,398, 82,404-05 (setting out the authorizing legislation without any discussion of retroactivity). And the implementing regulations issued under those statutes do not contemplate retroactivity. See 81 Fed. Reg. at 82,398 (setting out the effective date of
Defendants do not argue that Congress gave such an indication. Rather, they contend that the new regulation may be applied to pre-2017 petitions because its retrospective application would deprive no Plaintiff of “vested rights.” Landgraf, 511 U.S. at 274.
A regulation is only impermissibly retroactive if it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes
Plaintiffs O-D-B, I-M-R, Y-L-P, Z-M-A, M-D-M, and E-S-R applied for U visas and employment authorization documents prior to January 17, 2017.9 Compl. ¶ 164. With the exception of O-D-B, these Plaintiffs’ rights under former 8 C.F.R. § 274a.13(d) clearly vested before the current regulation took effect. Each of them checked “yes” in the box on their Form I-918 that asked if they wanted an EAD. If the ninety-day clock applied to their applications (which, as discussed above, it does), then these petitioners had the right to have their EAD requests adjudicated on that timetable, or to receive interim EADs. Because all but one of these Plaintiffs (O-D-B) had an application pending for longer than ninety days by the time the revised rule went into effect, their “immediate, fixed right” to interim work authorization documents was vested.10 See
Defendants respond that these Plaintiffs could not have “reasonabl[y] reli[ed]” on the prospect of receiving interim EADs within ninety days, and that this lack of reasonable reliance defeats their vesting. They argue that “USCIS has never issued interim work authorization to individuals in [Plaintiffs‘] circumstance.” Defs.’ Br. at 28. But there is no reason to believe Plaintiffs “knew, or could have known, of this unstated USCIS policy,” such that they “could not rely on the plain language” of the regulation then in effect. Rodriguez, 2018 WL 4783977, at *19. Indeed, the application form these Plaintiffs submitted gave no such indication.11
At least one other court has reached a different conclusion on this issue. Earlier this year, the Fourth Circuit concluded that since 2014 (i.e., before the Plaintiffs applied for U visas), USCIS had “made clear that the 90-day adjudication period” did “not begin until” the petitioner was “placed on the waiting list.” Gonzalez, 985 F.3d at 372. But the USCIS document the Fourth Circuit cited for this proposition was dated February 7, 2017 - three years after this policy purportedly took effect, and after the relevant period here. See id. (referring to ECF No. 57-3). The Fourth Circuit may have considered another document that bridged this gap; but that document is not before me here (even assuming I could take judicial notice of it at this stage).12 Because this record is entirely opaque regarding the agency‘s pre-2017 directives on this issue, dismissal of Counts III and VI remains inappropriate on this basis, on this record (pending discovery, of course).
In arguing that no vested rights have been disturbed, Defendants rely on Durable Manufacturing Co. v. U.S. Dep‘t of Labor, 578 F.3d 497, 503 (7th Cir. 2009), for the proposition that “[t]he filing of an application for an administrative benefit does not create a vested right in that benefit.” Defs.’ Br. at 28. But Durable is inapposite. In Durable, the Seventh Circuit considered a revised regulation promulgated by the Department of Labor, which effectively invalidated labor certifications that had been approved before the new regulation went into effect. The prior regulation - in effect when the labor certifications were granted - had provided that they would be “valid indefinitely.” 578 F.3d at 500, 504 (citing
Former
Accordingly, the plaintiffs whose petitions had been pending for over ninety days as of January 17, 2017 have stated a claim that agency action has been unlawfully withheld. The motion to dismiss Counts III and VI of the Complaint must be denied as to all plaintiffs in that sub-class except O-D-B, whose claims on these counts are dismissed because her application had been pending for fewer than ninety days when the revised rule went into effect.
V. Conclusion
For the reasons set forth above, Defendants’ motion to dismiss Plaintiffs’ First, Second, Fourth and Fifth Causes of Action is granted. Defendants’ motion to dismiss Plaintiffs’ Third and Sixth Causes of Action is denied, except that plaintiff O-D-B‘s claims under the Third and Sixth Causes of Action are dismissed. The claims of N-N and G-V-R are also dismissed as moot. The Clerk of Court is respectfully directed to substitute the following defendants in the case caption: Alejandro Mayorkas for Kevin McAleenan; Tracy Renaud for Kenneth Cuccinelli; Connie Nolan for Donald Neufeld; and Merrick Garland for William Barr.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: May 18, 2021
Brooklyn, New York
Notes
See New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53014-01 (Sept. 17, 2007).USCIS has designed the Form I-918 so that it serves the dual purpose of requesting U nonimmigrant status and employment authorization to streamline the application process. Therefore, principal aliens will not have to file additional paperwork to obtain an initial EAD.