“Review [of a motion 3 to dismiss under Rule 12(b)(6)] is limited to the contents of the 4 complaint.”
How later courts described this case
- “Review [of a motion 3 to dismiss under Rule 12(b)(6)] is limited to the contents of the 4 complaint.”
- “What 22 constitutes an unreasonable delay in the context of immigration 23 applications depends to a great extent on the facts of the 24 particular case.”
- “The use of . . . 15 ‘may review’ instead of ‘shall review’ suggests a discretionary 16 rather than mandatory process.”
- “[W]here Congress knows how to say 23 something but chooses not to, its silence is controlling.”
Written by the judges who cited it.
The opinion
1
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3
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5
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7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10 ----oo0oo----
11
12 BERTA ALICIA LUJANO GONZALEZ, No. 2:20-cv-1262 WBS JDP
JOSE LUIS SALAZAR JARAMILLO
13
Plaintiffs,
14 ORDER RE: DEFENDANTS’ MOTION
v. TO DISMISS
15
UNITED STATES DEPARTMENT OF
16 HOMELAND SECURITY, UNITED STATES
CITIZENSHIP AND IMMIGRATION
17 SERVICES, CHAD F. WOLF, Acting
Secretary of United States
18 Department of Homeland Security,
and KENNETH T. CUCCINELLI,
19 Senior Official Performing the
Duties of the Director, USCIS,
20
Defendants.
21
22
----oo0oo----
23
Plaintiffs Berta Alicia Lujano Gonzalez and Jose Luis
24
Salazar Jaramillo brought this action against the United States
25
Department of Homeland Security (“DHS”), the United States
26
Citizenship and Immigration Service (“USCIS”), Chad Wolf, Acting
27
DHS Secretary, and Kenneth Cuccinelli, Senior Official Performing
28
1 the Duties of the Director, USCIS, (collectively “defendants”)
2 alleging unlawful delays in the processing of their requests for
3 nonimmigrant classification and work authorization. Defendants
4 have moved to dismiss plaintiffs’ claims under Federal Rules of
5 Civil Procedure 12(b)(1) and 12(b)(6). (See Defs.’ Mot. to
6 Dismiss (Docket No. 14).)
7 I. Legal Standard
8 A. Failure to State a Claim
9 Federal Rule of Civil Procedure 12(b)(6) allows for
10 dismissal when the plaintiff’s complaint fails to state a claim
11 upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The
12 inquiry before the court is whether, accepting the allegations in
13 the complaint as true and drawing all reasonable inferences in
14 the plaintiff’s favor, the complaint has stated “a claim to
15 relief that is plausible on its face.” Bell Atl. Corp. v.
16 Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard is
17 not akin to a ‘probability requirement,’ but it asks for more
18 than a sheer possibility that a defendant has acted unlawfully.”
19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare
20 recitals of the elements of a cause of action, supported by mere
21 conclusory statements, do not suffice.” Id.
22 B. Lack of Subject Matter Jurisdiction
23 Dismissal under Rule 12(b)(1) for lack of subject
24 matter jurisdiction is appropriate if the complaint, considered
25 in its entirety, fails to allege facts on its face that are
26 sufficient to establish subject matter jurisdiction. In re
27 Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d
28 981, 984-85 (9th Cir. 2008). A defendant can challenge subject
1 matter jurisdiction in one of two ways--through a facial attack
2 or a factual attack. A facial attack “accepts the truth of the
3 plaintiff's allegations but asserts that they are ‘insufficient
4 on their face to invoke federal jurisdiction.’” Leite v. Crane
5 Co., 749 F.3d 1117, 1121 (9th Cir. 2014). A factual attack
6 “contests the truth of the plaintiff's factual allegations,
7 usually by introducing evidence outside the pleadings.” Id.
8 “The plaintiff bears the burden of proving by a preponderance of
9 the evidence that each of the requirements for subject-matter
10 jurisdiction has been met.” Id.
11 II. Factual Background and Relevant Allegations
12 This case arises out of defendants’ delay in
13 responding to plaintiffs’ applications for “U Nonimmigrant
14 Status” and employment authorization in October 2016. (See
15 generally First Amended Compl. (“FAC”) (Docket No. 9).) Federal
16 question jurisdiction under 28 U.S.C. § 1331 is predicated upon
17 the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706.
18 A. The “U Visa” Program
19 In October 2000, as part of the Victims of Trafficking
20 and Violence Protection Act of 2000 (“VTVPA”), Pub. L. 106-386,
21 114 Stat. 1464, Congress created the U nonimmigrant
22 classification (the “U visa”). See 8 U.S.C. § 1101(a)(15)(U).
23 An individual is eligible for a U visa if USCIS determines that
24 the individual (1) is a victim of a qualifying crime committed in
25 the United States; (2) has suffered physical or mental abuse as a
26 result; (3) has credible or reliable information about the crime;
27 (4) has been, is being, or is likely to be helpful to law
28 enforcement in investigating or prosecuting the crime; and (5) is
1 admissible to the United States. 8 U.S.C. § 1182(a); 8 C.F.R. §§
2 214.14(b), 214.14(c), 214.1(a)(3)(i).
3 An individual may apply for a U visa using a “Form I-
4 918” petition. 8 U.S.C. § 1101(a)(15)(U). Upon approval by
5 USCIS, the petitioner receives lawful U-1 nonimmigration status
6 and employment authorization for four years. 8 U.S.C.
7 § 1184(p)(6). He or she may also petition for certain qualifying
8 relatives. 8 U.S.C. § 1101(a)(15)(U)(ii).
9 B. The Regulatory Waitlist
10 The number of aliens who may be issued a U visa in the
11 United States is limited by statute to 10,000 per year. See 8
12 U.S.C. § 1184(p)(2)(A). USCIS has enacted rules establishing a
13 regulatory waitlist process for petitions that would be
14 approvable but for the fact that the annual statutory cap had
15 already been met. See 8 C.F.R. § 214.14(d)(2). Submission of a
16 petition does not automatically place a petitioner on the
17 regulatory waitlist; USCIS must first determine that the petition
18 submitted would be approvable in all respects. See id. Part of
19 this process involves verifying that the petitioner has submitted
20 a required certification from a “Federal, State, or local law
21 enforcement official, prosecutor, judge, or other Federal, State,
22 or local authority investigating criminal activity” stating that
23 the petitioner “has been helpful, is being helpful, or is likely
24 to be helpful” to the authority in investigating a qualifying
25 crime. See 8 U.S.C. §§ 1101(a)(15)(U)(i)(III)-(IV); 8 U.S.C. §
26 1184(p)(1).
27 Once USCIS determines that a petition is grantable in
28 all respects, the petitioner “must be placed on [the] waiting
1 list and receive written notice of such placement.” 8 C.F.R. §
2 214.14(d)(2). However, no statute or regulation requires USCIS
3 to determine whether a petition is eligible for placement on the
4 regulatory waitlist within a specified period of time or in any
5 particular order. USCIS regulations merely require that
6 “[p]riority on the waiting list . . . be determined by the date
7 the petition was filed with the oldest petitions receiving the
8 highest priority.” Id.
9 When USCIS places a petition on the regulatory
10 waitlist, the petitioner and his or her qualifying family members
11 receive “deferred action” (a discretionary determination by the
12 federal government to defer a removal action of the petitioner
13 and qualifying family members), provided they are in the United
14 States. Id.
15 C. U-Related Employment Authorization
16 Non-citizens are only lawfully permitted to work in the
17 United States if they are lawfully admitted for permanent
18 residence or otherwise authorized to be employed. 8 U.S.C. §
19 1324a; 8 C.F.R. § 274a.12. USCIS is required by statute to grant
20 work authorization in the form of “employment authorization
21 documents” to petitioners who receive a U visa. See 8 U.S.C. §
22 1184(p)(3)(B). Additionally, the Secretary of Homeland Security
23 “may grant work authorization to any alien who has a pending,
24 bona fide application for [a U visa].” 8 U.S.C. § 1184(p)(6).
25 Petitioners may receive employment authorization documents once
26 they have been placed on the waitlist, but USCIS regulations
27 leave this decision to the agency’s discretion. See 8 C.F.R. §
28 214.14(d)(2) (“USCIS, in its discretion, may authorize employment
1 for such petitioners [who are placed on the waitlist] and
2 qualifying family members.”).
3 Under the USCIS regulations, petitioners for a U visa
4 do not need to submit a separate request or fill out separate
5 paperwork to obtain work authorization, because the Form I-918
6 petition contains a box petitioners can check to indicate they
7 are also seeking work authorization and thus “serves the dual
8 purpose of requesting U nonimmigrant status and . . . employment
9 authorization.” New Classification for Victims of Criminal
10 Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg.
11 53,014, 53,029 (Sep. 17, 2007). U visa petitioners placed on the
12 waitlist are also eligible for employment authorization based on
13 the fact that they have been granted deferred action, but they
14 must apply separately to receive employment authorization
15 documents. 8 C.F.R. § 274a.12(c)(14); 8 C.F.R. § 1.2; 8 C.F.R. §
16 103.2(a)(1).
17 D. The 90-Day Adjudication Timeframe and Interim
Employment Authorizations
18
19 Former 8 C.F.R. § 274a.13(d) required USCIS to
20 adjudicate applications for work authorization within 90 days.
21 See 8 C.F.R. § 274a.13(d) (2016). If the application for work
22 authorization was not adjudicated within 90 days of USCIS’
23 receipt, the regulation called for USCIS to grant interim
24 employment authorization documents that expire after a period of
25 no greater than 240 days. See id.
26 Effective January 17, 2017, however, the 90-day
27 processing deadline and authorization to issue interim employment
28 authorization documents were eliminated via rulemaking. See 81
1 Fed. Reg. 82398 (Nov. 18, 2016) (“Final Rule”). As a result of
2 the Final Rule, 8 C.F.R. § 274a.13(d) no longer requires that
3 USCIS adjudicate work authorization applications within 90 days,
4 and no longer authorizes the agency to issue interim employment
5 authorization documents.
6 E. Plaintiffs’ Claims
7 Plaintiffs submitted I-918 petitions to obtain U visas
8 and work authorization in October 2016, along with required
9 certifications verifying that they had in fact been victims of a
10 qualifying crime and had or were likely to be helpful to law
11 enforcement authorities in investigating the crime. (FAC ¶¶ 48-
12 54.) Plaintiffs submitted their petitions before the amendments
13 to 8 C.F.R. § 274a.13(d), which removed USCIS’ 90-day processing
14 deadline, went into effect in January 2017. (See id.) To date,
15 USCIS has not issued a decision as to whether to place plaintiffs
16 on the regulatory waitlist, grant deferred action, or issue
17 employment authorization documents. (Id.)
18 Plaintiffs allege that USCIS has unreasonably delayed
19 in processing their I-918 petitions, “as Plaintiff believes (and
20 Defendants can confirm) other applicants who have filed their I-
21 918 applications after theirs were filed have already been placed
22 on the waitlist or have been issued employment authorization
23 documents and/or granted deferred action status by USCIS.” (See
24 FAC ¶¶ 55-56.) Plaintiffs further allege that USCIS has issued
25 fewer waitlist determinations each year since 2018, despite an
26 increase in U visa applications being filed. (See FAC ¶ 57.)
27 Plaintiffs filed this lawsuit in June 2020,
28 approximately 44 months after submitting their I-918 petitions.
1 (See Docket No. 1.) Plaintiffs’ First Amended Complaint sets
2 forth five claims for relief, styled as “Causes of Action.” (See
3 FAC ¶¶ 61-170.) In the First Cause of Action, plaintiffs claim
4 that defendants violated APA § 706(1) by unreasonably delaying or
5 unlawfully withholding a decision on plaintiffs’ requests for
6 work authorization under 8 U.S.C. § 1184(p)(6) and 8 C.F.R. §
7 274a.12(c)(14). (See FAC ¶¶ 61-85.) In the Second Cause of
8 Action, plaintiffs claim that defendants violated APA § 706(1) by
9 unreasonably delaying or unlawfully withholding a decision on
10 plaintiffs’ requests for work authorization under the version of
11 8 C.F.R. § 274a.13(d) in effect when plaintiffs submitted their
12 petitions by failing to adjudicate their requests for work
13 authorization within 90 days and by failing to issue interim
14 employment authorization documents. (See FAC ¶¶ 86-102.) In the
15 Third Cause of Action, plaintiffs claim that defendants violated
16 the APA, 5 U.S.C. § 555(b), § 706(1) by unreasonably delaying or
17 unlawfully withholding a determination as to whether plaintiffs
18 belong on the regulatory waitlist for a U visa. (See FAC ¶¶ 103-
19 55.) In the Fourth Cause of Action, plaintiffs claim that
20 defendants violated the Freedom of Information Act (“FOIA”), 5
21 U.S.C. § 552(a)(6)(A)(i), by withholding documents requested by
22 plaintiffs that make up their alien registration files. (See FAC
23 ¶¶ 156-64.) In the Fifth Cause of Action, plaintiffs claim they
24 are entitled to attorney’s fees under the Equal Access to Justice
25 Act, 5 U.S.C. § 504; 28 U.S.C. § 2412. (See FAC ¶¶ 164-70.)
26 III. Discussion
27 A. First Cause of Action
28 Section 1184(p)(6) states that “[t]he Secretary may
1 grant work authorization to any alien who has a pending, bona
2 fide application for nonimmigrant status under section
3 1101(a)(15)(U) of this title.” 8 U.S.C. § 1184(p)(6).
4 Defendants contend that the APA and the Immigration and
5 Nationality Act (“INA”) deprive the court of jurisdiction to hear
6 plaintiff’s claim that they have unlawfully withheld or
7 unreasonably delayed issuing a decision under the statute because
8 their decision whether to issue employment authorization
9 documents under the statute is purely discretionary. (See Defs.’
10 Mot. to Dismiss at 15-17.) The court agrees.
11 Although section 706(1) of the APA states that a
12 “reviewing court shall compel agency action unlawfully withheld
13 or unreasonably delayed,” 5 U.S.C. § 706(1), section 701 limits
14 judicial review of agency action when “(1) statutes preclude
15 judicial review; or (2) agency action is committed to agency
16 discretion by law.” 5 U.S.C. § 701(a). “[A] claim under
17 § 706(1) can proceed only where a plaintiff asserts that an
18 agency failed to take a discrete agency action that it is
19 required to take.” Norton v. S. Utah Wilderness Alliance, 542
20 U.S. 55, 64 (2004) (emphasis in original).
21 Similarly, the INA states that “no court shall have
22 jurisdiction to review any other decision or action of . . . the
23 Secretary of Homeland Security the authority for which is
24 specified under this subchapter to be in the discretion of the
25 Attorney General or the Secretary of Homeland Security . . . .”
26 8 U.S.C. § 1252(a)(2)(B)(ii).
27 Section 1184(p)(6) clearly grants defendants discretion
28 to adjudicate requests for work authorization. See Gonzalez v.
1 Cissna, 364 F. Supp. 579, 584 (E.D.N.C. 2019); Uranga, 2020 WL
2 5763633, at *7-*10; Ramires, 2020 WL 6146393, at *4. The statute
3 states that “[t]he Secretary may grant work authorization” to a
4 petitioner with a pending, bona fide application, but nothing in
5 the statute indicates that the Secretary is required to evaluate
6 whether a petitioner’s application is bona fide or whether work
7 authorization is warranted prior to the petitioner being placed
8 on the waitlist. See 8 U.S.C. § 1184(p)(6) (emphasis added).
9 The use of the word “may” is a clear grant of discretion to
10 USCIS. See Uranga, 2020 WL 5763633, at *8; Maine Cmty. Health
11 Options v. United States, 140 S. Ct. 1308, 1320 (2020) (“Unlike
12 the word ‘may,’ which implies discretion, the word ‘shall’
13 usually connotes a requirement.”); Rastelli v. Warden Metro.
14 Corr. Ctr., 782 F.2d 17, 23 (2d Cir. 1986) (“The use of . . .
15 ‘may review’ instead of ‘shall review’ suggests a discretionary
16 rather than mandatory process.”). The statute does not mandate
17 that USCIS grant work authorization to pending, bona fide
18 applicants, or even direct USCIS to promulgate regulations
19 interpreting what makes an application “bona fide” or otherwise
20 implementing the statute. See Ramires, 2020 WL 6146393 at *4.
21 By contrast, section 1184(p) does place a clear duty on
22 USCIS to grant employment authorization to petitioners who
23 receive a U visa. See 8 U.S.C. § 1184(p)(3)(B) (“the Attorney
24 General shall, during the period those aliens are in lawful
25 temporary resident status under that subsection, provide the
26 aliens with employment authorization.” (emphasis added)).
27 Additionally, section 1184(p)(6) itself utilizes mandatory
28 language multiple times when addressing certain extensions of U
1 visas:
2 The authorized period of status of an alien
as a nonimmigrant under section
3 1101(a)(15)(U) of this title shall be for a
period of not more than 4 years, but shall
4 be extended upon certification from a . . .
law enforcement official, prosecutor, judge,
5 or other . . . authority investigating or
prosecuting criminal activity described in
6 section 1101(a)(15)(U)(iii) of this title
that the alien's presence in the United
7 States is required to assist in the
investigation or prosecution of such
8 criminal activity . . . . Such alien's
nonimmigrant status shall be extended beyond
9 the 4-year period authorized under this
section if the alien is eligible for relief
10 under section 1255(m) of this title and is
unable to obtain such relief because
11 regulations have not been issued to
implement such section and shall be extended
12 during the pendency of an application for
adjustment of status under section 1255(m)
13 of this title.
14
8 U.S.C. § 1184(p)(6) (emphasis added).
15
Only in the last sentence of section 1184(p)(6) did
16
Congress state that the “Secretary may grant work authorization
17
to any alien who has a pending, bona fide application . . . .”
18
Id. In other words, Congress knew the words to choose if had
19
intended to require the Secretary to adjudicate every U visa
20
application to determine if it was bona fide and, thus, whether
21
work authorization should issue. See Lindley v. FDIC, 733 F.3d
22
1043, 1056 (11th Cir. 2013) (“[W]here Congress knows how to say
23
something but chooses not to, its silence is controlling.”).
24
Accordingly, the court concludes that section
25
1184(p)(6) places the decision whether to award work
26
authorization to petitioners who have not yet been placed on the
27
regulatory waitlist within USCIS’ discretion. Because the APA
28
1 and the INA preclude judicial review of discretionary decisions
2 by USCIS, the court lacks subject matter jurisdiction over
3 plaintiffs’ claim. See 5 U.S.C. § 701(a); 8 U.S.C.
4 § 1252(a)(2)(B)(ii). The First Cause of Action of plaintiffs’
5 FAC (FAC ¶¶ 61-85) will therefore be dismissed.
6 B. Second Cause of Action
7 The version of 8 C.F.R. § 274a.13(d) that was in effect
8 at the time plaintiffs filed their petitions for a U visa stated
9 “USCIS will adjudicate the application within 90 days from the
10 date of receipt of the application” and “[f]ailure to complete
11 the adjudication within 90 days will result in the grant of an
12 employment authorization document for a period not to exceed 240
13 days.” 8 C.F.R. § 274a.13(d) (2016). In other words, USCIS was
14 required to adjudicate a request for employment authorization
15 within 90 days of receiving a petitioner’s application, and if it
16 failed to do so, it was required to issue the petitioner interim
17 employment authorization documents for a period no greater than
18 240 days. See id.
19 Under the current version of the regulation, however,
20 USCIS is no longer required to adjudicate applications for work
21 authorization within 90 days and is not authorized to issue
22 interim employment authorization documents. See 8 C.F.R. §
23 274a.13(d). Defendants contend that the court should apply the
24 current version of the regulation, and that under this version,
25 the court does not have jurisdiction to review plaintiff’s claim
26 because USCIS is under no legal obligation to act. See Norton,
27 542 U.S. at 64 (“[A] claim under § 706(1) can proceed only where
28 a plaintiff asserts that an agency failed to take a discrete
1 agency action that it is required to take.”).
2 To determine whether subject matter jurisdiction over
3 this claim exists, then, the court must first determine which
4 version of 8 C.F.R. § 274a.13(d) to apply. Because the 2016
5 version of the regulation was in effect when plaintiffs filed
6 their petitions, and was still in effect when the 90-day period
7 expired and the issuance of interim employment authorization
8 documents was mandatory, the court concludes that it applies, for
9 the reasons discussed below.
10 “The principle that the legal effect of conduct should
11 ordinarily be assessed under the law that existed when the
12 conduct took place has timeless and universal human appeal.”
13 Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855
14 (1990). “Elementary considerations of fairness dictate that
15 individuals should have an opportunity to know what the law is
16 and to conform their conduct accordingly; settled expectations
17 should not be lightly disrupted.” Landgraf v. USI Film Prods.,
18 511 U.S. 244, 265 (1994). “Retroactivity is not favored in the
19 law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).
20 “Congressional enactments and administrative rules will
21 [therefore] not be construed to have retroactive effect unless
22 their language requires this result.” Id. “By the same
23 principle, a statutory grant of legislative rulemaking authority
24 will not, as a general matter, be understood to encompass the
25 power to promulgate retroactive rules unless that power is
26 conveyed by Congress in express terms.” Id.
27 To determine whether a statute or regulation may be
28 retroactively applied, courts generally employ a two-step
1 framework. Landgraf, 511 U.S. at 265. First, the court looks to
2 whether Congress expressly provided that the statute be applied
3 retroactively. Id. at 270. If “the statute contains no such
4 express command,” a court moves on to the second step, which
5 examines whether the law has a “retroactive effect.” Id. at 280.
6 This analysis requires an assessment of “the nature and extent of
7 the change in the law and the degree of connection between the
8 operation of the new rule and a relevant past event,” as well as
9 “whether the new provision attaches new legal consequences to
10 events completed before its enactment.” Id. at 270. A statute
11 is impermissibly retroactive if it “takes away or impairs vested
12 rights acquired under existing laws, or creates a new obligation,
13 imposes a new duty, or attaches a new disability, in respect to
14 transactions or considerations already past.” Id. at 269
15 (internal quotation marks and citations omitted).
16 To determine whether rights have “vested,” the court
17 looks to whether the person has “availed himself of them or
18 [taken] action that enhanced their significance to him in
19 particular.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 44 n.10
20 (2006). Any action taken must “elevate [the expectation] above
21 the level of hope,” and therefore actions that do little to
22 substantially further the individual's expectation of relief are
23 insufficient to create a vested right. Id.
24 Here, there is no provision in the immigration statutes
25 that explicitly authorizes USCIS to promulgate retroactive rules,
26 and defendants do not contend otherwise. (See Defs.’ Mot. to
27 Dismiss at 19-20.) The court will therefore move on to the
28 second step of the Landgraf analysis and ask whether applying the
1 amended regulation would take away “vested rights [that were]
2 acquired under existing laws.” Vartelas v. Holder, 566 U.S. 257,
3 266 (2012).
4 Plaintiffs applied for work authorization on October 3,
5 2016, when they submitted their Form I-918 petition for a U visa.
6 See 72 Fed. Reg. 53,014, 53,029 (Sep. 17, 2007) (indicating that
7 the Form I-918 petition “serves the dual purpose of requesting U
8 nonimmigrant status and . . . employment authorization”). At the
9 time, they had the right to have the request adjudicated within
10 90 days, or USCIS was required to issue interim employment
11 authorization documents. 8 C.F.R. § 274a.13(d) (2016).
12 Plaintiffs availed themselves of this right by submitting their
13 petition for a U visa and work authorization. See Fernandez-
14 Vargas, 548 U.S. at 44 n.10; Uranga, 2020 WL 5763633, at *15
15 (holding that applying amended version of 8 C.F.R. § 274a.13(d)
16 would interfere with right of plaintiff that vested when he
17 applied for work authorization); Rodriguez v. Nielson, No. 16-CV-
18 7092 (MKB), 2018 WL 4783977, at *18 (E.D.N.Y. Sept. 30, 2018)
19 (same).
20 Contrary to defendants’ assertions (see Defs.’ Reply at
21 6-8 (Docket No. 19)), plaintiffs took action in reliance on the
22 prior version of the regulation that elevated their expectation
23 of having their work authorization requests adjudicated “above
24 the level of hope.” See Fernandez-Vargas, 548 U.S. at 44 n.10.
25 Specifically, plaintiffs volunteered their identities--along with
26 their status as undocumented aliens--to local and federal law
27 enforcement agencies and agreed to cooperate in ongoing law
28 enforcement investigations with the expectation that they would
1 be placed on the waitlist for a U visa and receive a
2 determination as to their requests for work authorization within
3 90 days, as provided by the regulation in force at the time.
4 (See FAC ¶¶ 44, 48-49, 87.)
5 While plaintiffs could have applied for work
6 authorization through other channels, the regulation in place at
7 the time provided that if they applied in conjunction with their
8 application for a U visa, they would have their requests
9 adjudicated within 90 days or, if USCIS did not make a
10 determination within that time period, they would receive interim
11 employment authorization documents for up to 240 days. See 8
12 C.F.R. § 274a.13(d) (2016). Because the regulation’s language
13 was that of a guarantee (i.e., USCIS “will adjudicate the
14 application within 90 days,” and “failure to complete the
15 adjudication within 90 days will result” in the issuance of
16 interim employment documents), filing a request for a work
17 authorization along with a U visa elevated plaintiff’s
18 expectations “above the level of hope.” See id.
19 Defendants cite to Durable Mfg. Co. v. U.S. Dep’t of
20 Labor, 578 F.3d 497, 503 (7th Cir. 2009), and Labojewski v.
21 Gonzales, 407 F.3d 814, 822 (7th Cir. 2005), to argue that the
22 filing of an application for an administrative benefit, including
23 a visa petition, does not create a vested right in that benefit.
24 The court finds those cases distinguishable, however. In
25 Durable, the Seventh Circuit held that a revised regulation did
26 not have an impermissibly retroactive effect with regard to two
27 applications for labor certifications that were approved after
28 the new regulation took effect. See Durable, 578 F.3d 497, 503-
1 504. The court reasoned that merely filing an application for a
2 labor certification did not give the applicants a vested right to
3 a labor certification because the agency would still have to make
4 a final determination as to the applicant’s qualification for the
5 certification. See id. “[No] new legal consequences would
6 affect the application as a result of the amended” regulation
7 because the agency would still had to evaluate the merits of the
8 application. See id.
9 The court in Durable also held that the new regulation
10 did not have an impermissibly retroactive effect as to thirteen
11 labor certification applications that had been approved before
12 the new regulation went into effect, because the prior regulation
13 had only given applicants the right to an “indefinite” labor
14 certification, meaning their duration was not fixed and the
15 agency could revoke or extinguish the validity of their
16 certifications at any time. See id. The applicants could not
17 expect their certifications to be permanent and therefore did not
18 have a vested right in them. Id.
19 The right guaranteed by 8 C.F.R. § 274a.13(d) (2016)
20 differs from the one at issue in Durable because it specifically
21 guaranteed plaintiffs the right to have their application for
22 work authorization adjudicated within 90 days. The regulation
23 stated that “USCIS will adjudicate the application within 90 days
24 from the date of receipt of the application.” 8 C.F.R. §
25 274a.13(d) (2016). This 90-day period had completely elapsed
26 prior to enactment of the revised regulation, so unlike the
27 applicants in Durable, no “final determination” remained to be
28 made before adjudication of their applications. See Durable, 578
1 F.3d 497, 503-504. Because the prior regulation also guaranteed
2 that “[f]ailure to complete the adjudication within 90 days will
3 result in the grant of an employment authorization document for a
4 period not to exceed 240 days,” 8 C.F.R. § 274a.13(d) (2016),
5 plaintiffs had a more legitimate expectation in receiving interim
6 employment authorization documents than the applicants in
7 Durable. See Durable, 578 F.3d 497, 503-504.
8 Similarly, Labojewski is distinguishable because it
9 dealt with a situation in which the applicant had not yet applied
10 for the benefit at issue prior to the change in law. See
11 Labojewski, 407 F.3d at 822. There, the Seventh Circuit held
12 that a change in law did not have an impermissibly retroactive
13 effect merely because the applicants had satisfied a prerequisite
14 for obtaining a change in immigration status (re-entering the
15 country) prior to the change in law. See id. Because the
16 applicants had failed to actually apply for the change in status
17 before the law changed, they did not have a “reasonable reliance”
18 on being eligible under the old criteria. Id. Labojewski thus
19 does not apply here because plaintiffs had already successfully
20 applied for work authorization and had their 90-day period vest
21 under the regulation prior to its revision. See 8 C.F.R. §
22 274a.13(d) (2016).
23 Defendants’ reliance on INS v. St. Cyr, 533 U.S. 289,
24 321 (2001), and Mejia v. Gonzales, 499 F.3d 991, 997 (9th Cir.
25 2007), is also misplaced. Defendants argue that these cases
26 stand for the proposition that a regulation is impermissibly
27 retroactive only if it “completely vitiates” a plaintiff’s
28 rights, as opposed to merely “adversely affecting” those rights,
1 such as by delaying the plaintiff’s ability to obtain what he is
2 owed. (See Defs.’ Reply at 18-19.) Defendants argue that the
3 amended version of 8 C.F.R. § 274a.13(d) did not interfere with a
4 vested right because it did not completely vitiate plaintiffs’
5 right to obtain work authorization, it only deferred the issuance
6 of work authorization to the time at which their U visa
7 application was adjudicated. (See id.) However, this argument
8 mischaracterizes the nature of the right plaintiffs had under 8
9 C.F.R. § 274a.13(d) as it existed when they petitioned for work
10 authorization. As discussed above, 8 C.F.R. § 274a.13(d) (2016)
11 guaranteed plaintiffs the right to have their application for
12 work authorization adjudicated within 90 days, not the right to
13 work authorization itself. If USCIS could not adjudicate the
14 plaintiffs’ requests within 90 days, the regulation guaranteed
15 plaintiffs the right to interim employment authorization
16 documents. Id. Thus, the 2017 revisions did “completely
17 vitiate” plaintiffs’ rights--under current regulations,
18 plaintiffs no longer have the right to have their applications
19 for work authorization adjudicated within 90 days, and they no
20 longer have a right to interim employment authorization
21 documents. See 8 C.F.R. § 274a.13(d).
22 Thus, when plaintiffs applied for work authorization,
23 they had a vested right to adjudication of their requests within
24 90 days, and by January 1, 2017, 90 days after USCIS received
25 plaintiffs’ petitions, they had a vested right to interim work
26 authorization documents. See Fernandez-Vargas, 548 U.S. at 44
27 n.10. Because application of the revised rule--effective January
28 17, 2017--would strip plaintiffs of their vested rights, the
1 court finds that application of the revised version of the
2 regulation would “have a retroactive effect” that Congress did
3 not authorize. See Uranga, 2020 WL 5763633, at *15; Rodriguez,
4 2018 WL 4783977, at *18. The version of 8 C.F.R. § 274a.13(d) in
5 effect when plaintiffs filed their petitions for U visas musst
6 therefore be applied. See Landgraf, 511 U.S. at 265.
7 In their reply, defendants argue for the first time
8 that, even under the prior version of 8 C.F.R. § 274a.13(d), the
9 court lacks subject matter jurisdiction over plaintiffs’ claim
10 because those regulations do not trigger a mandatory duty to act
11 until defendants make a threshold determination as to whether a
12 petitioner is eligible for work authorization. (See Defs.’ Reply
13 at 5.) Not only is this argument waived because it was raised
14 for the first time in defendants’ reply brief, see Bazuaye v.
15 INS, 79 F.3d 118, 120 (9th Cir. 1996), the court finds the
16 argument unpersuasive.
17 Defendants’ argument runs counter to the plain language
18 of 8 C.F.R. § 274a.13(d) (2016), which unequivocally states:
19 “USCIS will adjudicate the application within 90 days from the
20 date of receipt of the application,” not within 90 days of USCIS
21 performing a threshold determination of a petitioner’s
22 eligibility for the underlying benefit. Indeed, in the Final
23 Rule repealing the prior version of 8 C.F.R. § 274a.13(d), DHS
24 stated that it was eliminating the 90-day deadline and interim
25 employment authorization document provisions because “it believed
26 that the 90-day time frame was ‘outdated and no longer
27 reflect[ed] the operational realities of the Department’ and it
28 ‘constrain[ed] DHS’ ability to maintain necessary levels of
1 security when application receipt volumes suddenly increase.’”
2 Uranga, 2020 WL 5763633, at *16 (quoting 80 Fed. Reg. 81,900,
3 81,929). Such statements would not have been necessary if the
4 90-day clock only began running once defendants had evaluated the
5 merits of a petitioner’s claim.
6 Thus, USCIS was required to adjudicate plaintiffs’
7 requests for work authorization within 90 days of receiving their
8 Form I-918 petition or, if it could not do so, issue interim
9 employment authorization documents for up to 240 days. See 8
10 C.F.R. § 274a.13(d) (2016). Because this decision was legally
11 required, and not left up USCIS’ discretion, the court has
12 subject matter jurisdiction to review plaintiffs’ claim under the
13 APA. Defendants’ motion to dismiss the claim presented in
14 plaintiffs’ Second Cause of Action will therefore be denied. See
15 5 U.S.C. § 706(1), § 701(a)(2); Norton, 542 U.S. at 64.
16 C. Third Cause of Action
17 Plaintiffs’ claim of unreasonable delay in issuing a
18 waitlist determination for their U visa petitions rests on USCIS
19 regulations, which state: “[a]ll eligible petitioners who, due
20 solely to the cap, are not granted U–1 nonimmigrant status must
21 be placed on a waiting list and receive written notice of such
22 placement.” 8 U.S.C. § 214.14(d)(2). Although USCIS regulations
23 do not establish a deadline or timeframe by which the agency must
24 make a determination regarding waitlist placement, the APA
25 provides that, “within a reasonable time, each agency shall
26 proceed to conclude a matter presented to it.” 5 U.S.C. §
27 555(b). Plaintiffs also argue that reviewing courts are required
28 to “compel agency action unlawfully withheld or unreasonably
1 delayed” under the APA. See 5 U.S.C. § 706(1).
2 Defendants argue that plaintiffs’ claim must fail
3 because “the mere passage of time is insufficient to sustain a
4 claim of unreasonable delay.” (See id. (citing Mashpee Wampanoag
5 Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir.
6 2003).) In other words, defendants argue that plaintiffs’ FAC
7 does not “plausibly suggest[]” an entitlement to relief under the
8 APA because it merely alleges that plaintiffs’ U visa
9 applications had been pending for 47 months at the time they
10 filed the FAC. See Twombly, 550 U.S. at 557.
11 To determine whether an agency’s delay is reasonable
12 under the APA, the court will have to balance six so-called
13 “TRAC” factors, established in Telecommunications Research and
14 Action Center v. Federal Communications Commission, 750 F.2d 70
15 (D.C. Cir. 1984) (“TRAC”):
16 (1) the time agencies take to make decisions
must be governed by a “rule of reason”;
17 (2) where Congress has provided a timetable
or other indication of the speed with which
18 it expects the agency to proceed in the
enabling statute, that statutory scheme may
19 supply the content for this rule of reason;
20 (3) delays that might be reasonable in the
sphere of economic regulation are less
21 tolerable when human health and welfare are
at stake;
22 (4) the court should consider the effect of
expediting delayed action on agency
23 activities of a higher or competing
priority;
24
(5) the court should also take into account
25 the nature and extent of the interests
prejudiced by delay; and
26 (6) the court need not “find any impropriety
lurking behind agency lassitude in order to
27 hold that agency action is ‘unreasonably
delayed.’”
28
1 Brower v. Evans, 257 F.3d 1058, 1068 (9th Cir. 2001) (quoting
2 TRAC, 750 F.2d at 80).
3 Plaintiffs’ complaint alleges facts that, if true,
4 would tend to show defendant’s delay was unreasonable under each
5 of the TRAC factors. See id. For instance, the FAC alleges that
6 USCIS’ waitlist decisions are not governed by a “rule of reason,”
7 TRAC, 750 F.2d at 80, because USCIS “systematically prioritizes
8 later filed petitions over earlier filed petitions,” contrary to
9 the agency’s assertions that that it makes waitlist decisions on
10 a “first in, first out” basis. (See FAC ¶¶ 108-109.) Plaintiffs
11 further allege that, even if USCIS’ waitlist decisions are
12 governed by a rule of reason, USCIS has ignored that rule in this
13 case by processing U visa waitlist decisions for applicants that
14 filed their applications after plaintiffs. (See FAC ¶¶ 115-116.)
15 The FAC also addresses the “nature and extent of the
16 interests prejudiced by the delay.” TRAC, 750 F.2d at 80.
17 Plaintiffs allege that they are unable to acquire deferred
18 action, work authorization, a social security number, or
19 government-approved identification (i.e., a “Real ID”), and that
20 they are in jeopardy of being physically removed from the United
21 States. See FAC ¶¶ 122-26. Because the court will have to
22 employ the TRAC framework when it evaluates the merits of
23 plaintiffs’ claim that defendant’s delay was unreasonable,
24 plaintiffs’ allegations go beyond merely asserting that they have
25 been waiting too long and are sufficient to state “a claim to
26 relief that is plausible on its face.” See Twombly, 550 U.S. at
27 557.
28 Defendants argue that the court should find under the
1 TRAC factors that their delay in processing plaintiffs’ petitions
2 was reasonable as a matter of law. (See Defs.’ Mot. to Dismiss
3 at 10-15.) They contend that USCIS’ practice of processing U
4 visa petitions in the order they are received, with some
5 petitions being expedited subject to criteria set forth by the
6 agency, constitutes a “rule of reason” under TRAC that is
7 reasonable under the six-factor test. (See id. (citing TRAC, 750
8 F.2d at 80).) Without asking the court to take judicial notice
9 of any information outside the scope of plaintiffs’ FAC,
10 defendants cite to a number of reports, USCIS statements, and
11 USCIS webpages to argue that delays in the processing of U visa
12 petitions for waitlist eligibility result primarily from the
13 overall number of petitions filed, which have increased almost
14 every year since 2009, not wrongful conduct on the part of the
15 agency. (See id. at 7, 11.)
16 The court is unable to find that defendant’s delay was
17 reasonable at the motion to dismiss stage. “Resolution of a
18 claim of unreasonable delay is ordinarily a complicated and
19 nuanced task requiring consideration of the particular facts and
20 circumstances before the court.” Mashpee, 336 F.3d at 1100; see
21 also Yu v. Brown, 36 F. Supp. 2d 922, 935 (D.N.M. 1999) (“What
22 constitutes an unreasonable delay in the context of immigration
23 applications depends to a great extent on the facts of the
24 particular case.”). Adopting defendant’s argument would require
25 the court to look beyond the face of plaintiffs’ complaint and,
26 without the benefit of the administrative record, evaluate facts
27 concerning USCIS’ general practices, whether those practices were
28 followed in this case, and the number of U visa petitions filed
1 over the past several years. See Sprewell v. Golden State
2 Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (“Review [of a motion
3 to dismiss under Rule 12(b)(6)] is limited to the contents of the
4 complaint.”).
5 While some district courts have found that evaluating
6 the reasonableness of USCIS’ delay in issuing U visa waitlist
7 determinations under TRAC is appropriate at the motion to dismiss
8 stage, see, e.g., Uranga v. U.S. Citizenship & Immigration
9 Services, No. 20-0521 ABJ, 2020 WL 5763633, at *11-14 (D.D.C.
10 Sep. 28, 2020), this court agrees with other district courts that
11 have found that it would be “‘premature’ at the motion to dismiss
12 stage ‘to consider the exact sources of the delay to determine
13 whether the delay was actually unreasonable under the
14 circumstances.’” See Gelfer v. Chertoff, No. C06-06724 WHA, 2007
15 WL 902382, at *2 (N.D. Cal. Mar. 22, 2007) (finding it
16 “premature” at the motion to dismiss stage “to consider the exact
17 sources of the delay to determine whether the delay was actually
18 unreasonable under the circumstances”); Ramires v. Wolf, No.
19 1:20-cv-203 KWR SMV, 2020 WL 6146393, at *3 (D.N.M. Oct. 20,
20 2020) (quoting Gelfer, 2007 WL 902382, at *2); Patel v. Cissna,
21 400 F. Supp. 3d 1373, 1383 (M.D. Ga. 2019) (““[T]he Court is not
22 prepared to hold on a motion to dismiss for failure to state a
23 claim that the three-year delay in reviewing [plaintiff's] U visa
24 petitions for placement on the waiting list is reasonable as a
25 matter of law.”); M.J.L. v. McAleenan, 420 F. Supp. 3d 588, 598
26 (W.D. Tex. 2019) (“the Court finds that it is premature to
27 address these factors at the motion to dismiss stage and before
28 discovery has been completed.”)
1 Defendants finally argue that the FAC fails to state a
2 claim under the APA because the APA reserves matters of agency
3 management priorities to the agency’s discretion, thereby
4 precluding judicial review. (See Defs.’ Mot. to Dismiss at 12
5 (citing 5 U.S.C. § 701; Heckler v. Chaney, 470 U.S. 821, 831-32
6 (1985)). According to defendants, USCIS’ determination as to the
7 order in which it will evaluate outstanding U visa petitions
8 “reflect[s] the agency’s determination as to the best allocation
9 of its resources and calls upon its particular expertise and,
10 therefore, is a matter committed to its discretion.” (See id.)
11 Defendants argue that granting plaintiffs’ requested relief would
12 interfere with the agency’s management priorities by “putting the
13 petitioner at the head of the queue . . . simply mov[ing] all
14 others back one space and produce no net gain.” (See id. at 14
15 (quoting Xiaobin Xu v. Nielsen, No. 18-cv-2048 (BMC), 2018 WL
16 2451202, at *2 (E.D.N.Y. May 31, 2018) (quoting Mashpee, 336 F.3d
17 at 1100)).) This, defendants argue, would result in “unwarranted
18 line-skipping” for plaintiffs with the means to hire counsel and
19 would delay adjudication of other U visa petitions filed earlier
20 in time. (See id.)
21 It is true that courts should generally defer to
22 agencies’ assessments of where their resources should be devoted,
23 absent constitutional or legal restraints. See Heckler, 470 U.S.
24 at 831-32 (the “agency is far better equipped than the courts to
25 deal with the many variables involved in the proper ordering of
26 priorities”). However, the APA commands courts to “compel agency
27 action unlawfully withheld or unreasonably delayed” when the
28 agency is under a mandatory legal duty to act. See 5 U.S.C.
1 § 706(1), § 701(a). Here, USCIS was required by regulation to
2 place “[a]ll eligible petitioners who, due solely to the cap, are
3 not granted U–1 nonimmigrant status . . . on a waiting list.” 8
4 U.S.C. § 214.14(d)(2). Because plaintiffs claim that USCIS has
5 unreasonably delayed in complying with this mandate, the APA
6 provides for judicial review. See 5 U.S.C. § 706(1), § 701(a).
7 Concerns that other petitioners for U visas may be prejudiced by
8 granting plaintiffs’ requested relief because of “line skipping”
9 do not preclude judicial review of plaintiffs’ claims. The court
10 must evaluate plaintiffs’ claim based on the facts of the case
11 before it.
12 To the extent that defendants argue “line skipping” or
13 agency resource concerns are relevant to the reasonableness of
14 the agency’s delay as to plaintiffs under the fourth TRAC factor,
15 which requires the court to consider “the effect of expediting
16 delayed action of agency activities of a higher or competing
17 priority,” the court can take these concerns into account in its
18 ultimate evaluation of all the TRAC factors. See TRAC, 750 F.2d
19 at 80. Dismissal at the motion to dismiss stage is therefore not
20 warranted based solely on that consideration.
21 In sum, the Third Cause of Action of plaintiff’s FAC
22 adequately states a claim of unreasonable delay. See Twombly,
23 550 U.S. at 557. Defendants’ motion to dismiss that claim
24 pursuant to Fed. R. Civ. P. 12(b)(6) must accordingly be denied.
25 D. Fourth Cause of Action
26 Finally, defendants argue that plaintiffs’ FOIA claims-
27 -contained in their Fourth Cause of Action--are moot because
28 defendants have fully responded to plaintiffs’ FOIA requests.
1 (See Defs.’ Mot. to Dismiss at 21.) “As with other types of
2 civil cases, a suit under the FOIA can be rendered moot by events
3 subsequent to its filing.” Yonemoto v. Dep’t of Veterans
4 Affairs, 686 F.3d 681, 689 (9th Cir. 2012), overruled on other
5 grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836
6 F.3d 987 (9th Cir. 2016). “The production of all nonexempt
7 material, ‘however belatedly,’ moots FOIA claims.” Papa v.
8 United States, 281 F.3d 1004, 1013 (9th Cir. 2002) (quoting Perry
9 v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982)).
10 Plaintiff Lujano Gonzales concedes that her FOIA claim
11 is moot because defendant produced all nonexempt material in its
12 possession prior to litigation. (See Pls.’ Opp’n at 3.) The
13 court will therefore dismiss plaintiff Lujano Gonzales’ FOIA
14 claim for lack of subject matter jurisdiction. See Fed. R. Civ.
15 P. 12(b)(1).
16 Plaintiff Salazar Jaramillo concedes that defendant has
17 adequately responded to his FOIA request since the filing of the
18 FAC. (See Pls.’ Opp’n at 3.) However, plaintiff argues that his
19 claim is not moot because he is still entitled to costs and
20 attorney fees under FOIA. See 5 U.S.C. § 552(a)(4)(E)(i).
21 “Claims for attorneys’ fees ancillary to the case
22 survive independently under the court’s equitable jurisdiction,
23 and may be heard even though the underlying case has become
24 moot.” Cammermeyer v. Perry, 97 F.3d 1235, 1238 (9th Cir. 1996)
25 (quoting Williams v. Alioto, 625 F.2d 845, 848 (9th Cir. 1980)).
26 “The existence of an attorneys’ fees claim thus does not
27 resuscitate an otherwise moot controversy.” Id. (citing Diamond
28 v. Charles, 476 U.S. 54, 70-71 (1985)).
eee ene een ne nn nnn anne en en nn I NE OS OE ONO
1 Since plaintiff does not contest defendants’
2 representation that they have produced all nonexempt material in
3 their possession in response to plaintiff’s FOIA request, and
4 plaintiff Salazar Jaramillo’s claim for attorney’s fees cannot
5 resuscitate his underlying FOIA claim, see Cammermeyer, 97 F.3d
6 | at 1238, plaintiff’s FOIA claim is moot and will be dismissed for
7 lack of subject matter jurisdiction. See Papa v. United States,
8 281 F.3d at 1013; Fed. R. Civ. P. 12(b) (1). Defendants’ motion
9 | to dismiss the Fourth Cause of Action of plaintiffs’ FAC will
10 therefore be granted. (FAC TT 156-64.)
11 IT IS THEREFORE ORDERED that defendant’s motion to
12 dismiss be, and the same hereby is, GRANTED as to the First and
13 Fourth Causes of Action and DENIED as to Second and Third Causes
14 of Action of the FAC. The First Cause of Action and the Fourth
15 Cause of Action of the First Amended Complaint are hereby
16 DISMISSED.!
17 | Dated: November 10, 2020 tleom ah. A. be—~
18 WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE
19
20
21
22
23
24
25
26
27 1 The court expresses no opinion at this time as to
whether plaintiffs are entitled to attorney’s fees based on their
28 | FOIA claims.
29