877 F.3d 272
7th Cir.
2017

Ruder M. CALDERON-RAMIREZ, Plaintiff-Appellant, v. James W. MCCAMENT, Acting Director, United States Citizenship and Immigration Services, and Elaine C. Duke, Acting Secretary of Homeland Security, Defendants-Appellees.

No. 16-4220

United States Court of Appeals, Seventh Circuit.

Decided December 5, 2017

Rehearing Denied January 19, 2018

877 F.3d 272

Argued October 23, 2017

, and the judgment in each case would be based on the same evidence, see ; . Conner alleged both in his motion to intervene and his motion in this case that the FDIC had violated the relator‘s-share provision of the False Claims Act by not paying him a portion of its settlement proceeds. Both motions sought to establish that the FDIC‘s case constituted an “alternate remedy” under the False Claims Act and that the FDIC had refused to pay Conner a portion. That Conner‘s motions sought the same compensation in different ways—the first time as part of a motion to intervene—is irrelevant; causes of action may be identical even if the litigant attempts different substantive or procedural strategies to pursue the same underlying claim. ; ; (applying doctrine of claim preclusion to bar relitigation of claim previously asserted in unsuccessful motion to intervene); (same). Moreover, Conner requested the same relief under the same statutory provision in both motions, which is another consideration in deciding whether two causes of action are identical. See . Finally, a common-sense comparison of the request Conner made in each suit similarly supports the conclusion that he should not be permitted to repeat his demand for a share of the FDIC‘s settlement proceeds. See (noting that the “common-sense question” of “why a second lawsuit should be permitted after the first one apparently resolved the dispute between the parties” is resolved by applying doctrine of claim preclusion).

Accordingly, each element of claim preclusion is satisfied. For that reason, we uphold the district court‘s denial of Conner‘s motion in the qui tam action seeking a share of the settlement proceeds in the FDIC‘s separate lawsuit.

III. CONCLUSION

For the foregoing reasons we affirm the judgment.

Justin R. Burton, Lauren E. McClure, Attorneys, Kriezelman Burton & Associates, Chicago, IL, for Plaintiff-Appellant.

Lauren Crowell Bingham, Attorney, Department of Justice, Civil Division, Washington, DC, Craig A. Oswald, Attorney, Office of the United States Attorney, Chicago, IL, for Defendants-Appellees.

Before BAUER and HAMILTON, Circuit Judges, and DARROW,* District Judge.

BAUER, Circuit Judge.

Ruder Calderon-Ramirez, a native and citizen of Guatemala, filed a petition for U Nonimmigrant Status on February 5, 2015. Due to a significant backlog, Ramirez is waiting to be evaluated for the waiting list. On August 15, 2016, he filed a petition for writ of mandamus in the Northern District of Illinois requesting that the district court compel Leon Rodriguez, Director of Homeland Security, and Jeh Johnson, Secretary of Homeland Security, (collectively, “Defendants“), to adjudicate his U-visa petition. Ramirez argues the wait to be placed on the waiting list is unreasonable. The district court granted the Defendants’ motion to dismiss. Ramirez now appeals. For the reasons set forth below, we affirm.

I. BACKGROUND

In October 2000, Congress created the U-visa through the passage of the Victims of Trafficking and Violence Protection Act of 2000 (“the Act“), Pub. L. No. 106-386, Div. A, 114 Stat. 1464 (2000), codified at inter alia, 8 U.S.C. § 1101(a)(15)(U). The Act created a new nonimmigrant visa classification that permits immigrants who are victims of serious crimes and who assist law enforcement to apply for and receive a nonimmigrant visa called a U-visa. Id. The U-visa provides legal status to petitioners and qualifying family members to apply for work authorization and remain in the United States. Id. In order to qualify, the Department of Homeland Security must determine that: (1) the petitioner “suffered substantial physical or mental abuse as a result of having been a victim of criminal activity“; (2) the petitioner “possesses information concerning [the] criminal activity“; (3) the petitioner has been, is, or is likely to be helpful to government officials regarding the criminal activity; and, (4) the criminal activity at issue occurred in or violated the laws of the United States. 8 U.S.C. § 1101(a)(15)(U)(i)(I-IV).

Congress enacted a statutory cap of 10,000 U-visas each fiscal year. 8 U.S.C. § 1184(p)(2)(A). Because of this cap, a waiting list exists for petitioners seeking adjudication. 8 C.F.R. § 214.14(d)(2). This results in two separate waiting periods and two adjudications for each petitioner—one for placement on the waiting list and one to receive a U-visa. United States Citizenship and Immigration Services (“USCIS“) will grant eligible petitioners and qualifying family members on the waiting list deferred action and work authorization while they wait for final adjudication. Id. However, those who are waiting to be placed on the waiting list are not granted this benefit.

Ramirez, a native and citizen of Guatemala, entered the United States in April 2002 and has remained here since. On August 16, 2014, he was stabbed in his back and leg during a felonious assault.

On February 5, 2015, USCIS received Ramirez‘s Form I-918, Petition for U Nonimmigrant Status, Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, and to waive his entry without inspection into the country. Since then, Ramirez has been waiting for his petition to be evaluated so he can be placed on the waiting list.

On August 15, 2016, two years after the attack and a year and a half after filing his petition, Ramirez requested the district court to issue an order compelling the Defendants to adjudicate his U-visa petition through mandamus relief or, in the alternative, under the Administrative Procedures Act (“APA“). In response, the Defendants filed a motion to dismiss for failure to state a claim. After a hearing, the district court granted the Defendants’ motion to dismiss both claims. Ramirez now appeals.

II. DISCUSSION

We review a district court‘s grant of a motion to dismiss for failure to state a claim de novo. . “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” (quoting ). “We accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff[-appellant].” .

A. Mandamus Relief

District courts have the authority to issue a writ of mandamus to compel an agency to perform a duty owed to a plaintiff. 28 U.S.C. § 1361. “Mandamus relief will be granted if the plaintiff can demonstrate that the three enumerated conditions are present: (1) a clear right to the relief sought; (2) that the defendant has a duty to do the act in question; and (3) no other adequate remedy is available.” .

To determine what right is owed to the plaintiff, we look to the statute enacted by Congress. Looking at the Act, there is no dispute that Ramirez has a right to adjudication for both the waiting list and a U-visa. Rather, Ramirez argues that the delay he has endured to be placed on the U-visa waiting list is unreasonable, and thus, he has a right to immediate adjudication.

In , we found that the former Immigration and Naturalization Services had a “duty to adjudicate the appellants’ applications in a reasonable period of time.” . While dealt with the Diversity Visa Lottery Program rather than the U-visa we face, we find this same standard applicable here. Furthermore, 8 C.F.R. § 214.14(d)(2) states, “[p]riority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority.” Thus, due to the significant backlog of U-visa applications, we must determine whether Ramirez has a right to skip ahead of other petitioners who filed an application before Ramirez, but who are also waiting for adjudication for the U-visa waiting list.

Ramirez fails to set forth any facts that differentiate himself from other petitioners waiting ahead of him for adjudication. The appellees did concede at oral argument that there are instances when the Immigrations and Customs Enforcement can and will expedite a petition. However, Ramirez fails to present a situation appropriate to warrant such an action. With nothing in the record to suggest his wait time has been any more unreasonable than other petitioners waiting in the same line, we have no reason to grant mandamus relief.

B. Administrative Procedure Act Relief

Ramirez also seeks relief under the APA, arguing that USCIS has a nondiscretionary duty to process his application and that he has experienced an unreasonable delay. The APA specifically states that, “within a reasonable time, each agency shall proceed to conclude a matter presented to it.” 5 U.S.C. § 555(b). Additionally, the APA provides, “[t]he reviewing court shall compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).

While both parties agree that USCIS has a duty to process Ramirez‘s application, the Act and corresponding regulation fail to enumerate a timeframe that USCIS is required to process U-visa petitions for the waiting list. Thus, we must determine whether Ramirez‘s wait has been unreasonable.

USCIS is dealing with an exponentially increasing number of U-Visa applications. Since 2009, the U-Visa backlog has increased from 21,138 to 177,340 pending applications.** Prior to August 2016, USCIS had one service center processing applications. In August 2016, USCIS began distributing U-visa petitions to a second service center in response to the increasing backlog. USCIS argues that this change will take time to be felt by petitioners. Due to the circumstances USCIS faces and the agency‘s recent changes to alleviate the backlog, we do not find Ramirez‘s wait to be unreasonable at this time. Thus, relief under the APA must also be denied.

III. CONCLUSION

For the foregoing reasons, the district court‘s grant of the defendants’ motion to dismiss is AFFIRMED.

Saul M. KAUFMAN, individually and on behalf of all others similarly situated, et al., Plaintiffs-Appellees, and J.G. Goodman, also known as J.L. Goodman, Objector, et al., Intervening Plaintiffs-Appellants, v. AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., Defendant-Appellee.

No. 16-1691

United States Court of Appeals, Seventh Circuit.

Argued September 28, 2017

Decided December 7, 2017

Notes

*
Of the United States District Court for the Central District of Illinois, sitting by designation.
**
U.S. CITIZENSHIP & IMMIGRATION SERVS., Number of Form I-918, Petition for U Nonimmigrant Status, by Fiscal Year, Quarter, and Case Status 2009-2017, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Victims/1918u_visastatistics_fy2017_qtr3.pdf (last visited Nov. 29, 2017).
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