N-N v. Mayorkas

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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N-N, et al.,

Plaintiffs, MEMORANDUM & ORDER

19-CV-5295(EK)

-against-

ALEJANDRO MAYORKAS, et al.,

Defendants.

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ERIC KOMITEE, United States District Judge:

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.

Statutory and Regulatory Background

Congress established the U visa program as part of the

Victims of Trafficking and Violence Protection Act of 2000, Pub.

L. 106-386, 114 Stat. 1464, which amended the Immigration and

Nationality Act (“INA”). The visa is available to victims of

specified crimes who cooperate with law enforcement authorities

in the investigation or prosecution of those crimes. See

8 U.S.C. § 1101(a)(15)(U). The purpose of the program is to

“strengthen the ability of law enforcement agencies to detect,

investigate, and prosecute cases of domestic violence, sexual

assault, trafficking of aliens, and [certain] other crimes

. . . , while offering protection to victims of such offenses in

keeping with the humanitarian interests of the United States.”

Pub. L. 106–386 at § 1513(a)(2)(A).

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

authorization before receiving a U visa. It is the

administration of these interim alternatives (or the lack of

such administration) that Plaintiffs challenge here.

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. 8 C.F.R.

§ 214.14(c)(2)(i), (iii). USCIS’s Vermont and Nebraska Service

Centers are jointly responsible for processing U visa petitions.2

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.” 8 C.F.R. § 214.14(c)(5). “If USCIS

determines that the petitioner has met the requirements for U-1

nonimmigrant status, USCIS will approve Form I-918.” 8 C.F.R.

§ 214.14(c)(5)(i). The petitioner will then receive lawful

nonimmigrant status and employment authorization for up to four

years. 8 U.S.C. § 1184(p)(3)(B), (p)(6); 8 C.F.R.

§ 274a.12(a)(19).

1 https://www.uscis.gov/sites/default/files/document/forms/i-

918instr.pdf (last visited May 5, 2021).

2 See USCIS, U Nonimmigrant Status Program Updates,

https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-other-

crimes/victims-of-criminal-activity-u-nonimmigrant-status/u-nonimmigrant-

status-program-updates (last visited May 5, 2021).

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 8 C.F.R. § 241.6(a)

and 8 C.F.R. § 1241.6(a).

Stage Two: Petition determined to be “bona fide,” but

not yet adjudicated. In 2008, Congress adopted 8 U.S.C.

§ 1184(p)(6), which conferred certain authority on USCIS to

issue employment authorization to U visa applicants while they

await a determination of their petitions. See Pub. L. 110-457,

122 Stat. 5044. Specifically, Section 1184(p)(6) provides, in

relevant part, that “the Secretary [of Homeland Security] may

grant work authorization to any alien who has a pending, bona

fide application for nonimmigrant status under section

1101(a)(15)(U) of this title.”

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 not receive employment authorization documents (“EADs”) at

this stage, even though the agency has discretion to issue them.

Instead, the agency considers whether to grant an EAD to a U

visa petitioner only after the petition has been processed and

reviewed and a petitioner is determined eligible. See Complaint

¶ 55, ECF No. 1 (“Compl.”).

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 8 U.S.C. § 1184(p)(2)(A). Individuals

who are determined by USCIS to be eligible for a U visa but do

not receive one “due solely to the cap” are placed on a waitlist

and granted “deferred action” for immigration purposes.3

8 C.F.R. § 214.14(d)(2). Applicants on the waitlist do become

eligible for EADs: USCIS has adopted a regulation providing

that the agency “in its discretion, may authorize employment for

[wait-listed] petitioners and qualifying family members.” Id.

This is the first stage at which USCIS currently issues EADs to

U visa applicants.

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 8 U.S.C. § 1184(p)(6). The U visa holder

is also statutorily entitled to an EAD incident to their status.

See 8 U.S.C. § 1184(p)(3)(B) (“[T]he Attorney General shall,

during the period those aliens are in lawful temporary resident

status under [the U visa program], provide the aliens with

employment authorization.”). USCIS regulations require this

employment authorization to issue “automatically.” 8 C.F.R.

§ 214.14(c)(7).

A. The 2017 Regulatory Repeal

Importantly, the background regulations governing

USCIS’s obligation to review EAD applications changed during the

3 “Deferred action” is “an act of administrative convenience to the

government which gives some cases lower priority” for removal proceedings.

8 C.F.R. § 274a.12(c)(14).

period covered by the Complaint. Plaintiffs read a prior

version of 8 C.F.R. § 274a.13 — which was effective until

January 17, 2017 — to have required USCIS, in certain

circumstances, to issue EADs before deciding U visa eligibility,

if the agency could not (or did not) render a U visa

determination quickly enough. That prior regulation provided

that “USCIS will adjudicate the [EAD] application within 90 days

from the date of receipt of the application,” and that

“[f]ailure 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.” 8 C.F.R. § 274a.13(d) (repeal

effective January 17, 2017).4 While this regulation was in

effect, a petitioner seeking a U visa could simultaneously

request an EAD simply by checking “yes” where prompted on the I-

918 Form. The regulation was revised effective January 17,

2017, however, and no longer includes any specific time period

for adjudication of applications for EADs.

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 for EADs between

4 See USCIS, Retention of EB-1, EB-2, and EB-3 Immigrant Workers and

Program Improvements Affecting High-Skilled Nonimmigrant Workers, 81 Fed.

Reg. 82, 398 (Nov. 18, 2016) (final rule eliminating interim EADs).

August 2015 and January 2018, but USCIS has not yet adjudicated

those petitions.5 The thirteen named Plaintiffs seek to

represent a class of similarly situated U visa petitioners that

they estimate “exceeds 100,000 individuals.” Compl. ¶ 140.

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.

5 Plaintiffs’ applications were all filed between August 2015, Compl.

¶¶ 65 (N-N); 75 (G-V-R), and January 2018, id. ¶ 91 (N-P-G). The named

Plaintiffs are proposed representatives of putative sub-classes that are

defined, in part, by the dates that Plaintiffs filed their petitions. The

proposed “Pre-January 17, 2017 EAD Application Subclass” includes individuals

whose petitions were filed prior to January 17, 2017; the proposed “Multi-

Year U-Status Petition Subclass” includes individuals who filed a U-status

petition before September 17, 2017, i.e., at least two years before the

Complaint was filed. Id. ¶ 138. Plaintiffs have not moved for class

certification at this stage.

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

8 U.S.C. § 1184(p)(6). Plaintiffs claim that in failing to make

the “bona fide” determination, Defendants have unlawfully

withheld agency action under the Administrative Procedures Act

(“APA”). Compl. ¶¶ 156-58.

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 8 C.F.R.

§ 214.14(d)(2). In Count IV, they ask the Court to issue a writ

of mandamus compelling the Defendants to adjudicate petitioners’

admission to the U visa waitlist sooner. Compl. ¶¶ 146, 177.

(Put differently, these counts challenge the agency’s failure to

push applicants from State Two to Stage Three more

expeditiously.) By placing “individuals on the waiting list

only once it is clear they will soon receive U visa status,”

Plaintiffs contend, Defendants have unreasonably (and

unlawfully) delayed agency action. Id. ¶¶ 151-52 (citing

5 U.S.C. §§ 555(b), 706(1)).

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 8 C.F.R. § 274a.13(d) that was

effective when they applied. See Compl. ¶¶ 163-70; 185-90.

They argue that Defendants unlawfully withheld agency action by

failing to comply with their own regulation, and seek a writ of

mandamus directing the agency to issue EADs now. Id. ¶¶ 165-68,

185-90.

Defendants move to dismiss pursuant to Federal Rules

of Civil Procedure 12(b)(1) (lack of jurisdiction), 12(b)(3)

(improper venue), and 12(b)(6) (failure to state a claim). They

contend that certain Plaintiffs’ claims have been mooted by

agency action following the filing of this case; that the

Eastern District of New York is no longer the proper venue for

this action; and that the remaining causes of action should be

dismissed for lack of subject matter jurisdiction and/or failure

to state a claim. They also request that, should I decline to

dismiss for improper venue, I exercise my discretion to transfer

the case to the United States District Court for the District of

Columbia.

Legal Standards

On a motion to dismiss pursuant to Rule 12(b)(1) for

lack of subject matter jurisdiction — applicable to a claim of

mootness — a court must dismiss if it “lacks the statutory or

constitutional power to adjudicate” the relevant claim.

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

The standards for dismissal under Federal Rules 12(b)(1) and

12(b)(6) are, for the most part, “substantively identical,” see

Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003),

except that in a Rule 12(b)(1) motion, the party invoking the

court’s jurisdiction bears the burden of proof by a

preponderance of the evidence, see Makarova, 201 F.3d at 113.

Additionally, courts evaluating Rule 12(b)(1) motions “may

resolve the disputed jurisdictional fact issues by referring to

evidence outside of the pleadings, such as affidavits.” Zappia

Middle E. Contr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253

(2d Cir. 2000).

In reviewing a Rule 12(b)(6) motion, a court must

accept all factual allegations in the complaint as true and draw

all reasonable inferences in the plaintiff’s favor. E.g., Lundy

v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 113

(2d Cir. 2013). However, only “a plausible claim for relief

survives a motion to dismiss.” LaFaro v. N.Y. Cardiothoracic

Grp., PLLC, 570 F.3d 471, 476 (2d Cir. 2009). A claim is

plausible “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Matson v. Bd. of Educ., 631

F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)). Courts “are not bound to accept as true a

legal conclusion couched as a factual allegation.” Iqbal, 556

U.S. at 678. A pleading must offer more than a “formulaic

recitation of the elements of a cause of action,” as

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id.

(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

On a motion to dismiss for improper venue under Rule

12(b)(3), a court must accept the facts alleged in the complaint

as true and draw all reasonable inferences in favor of the non-

moving party. See Lesniewski v. Triton EP LLC, No. 07-CV-2186,

2008 WL 11449071, at *2 (E.D.N.Y. March 24, 2008). In ruling on

the motion, however, a court may rely on facts and consider

documents outside the complaint. See Friedman v. Schwartz, No.

08-CV-2801, 2009 WL 701111, at *5 (E.D.N.Y. Mar. 13, 2009).

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 controversy because their U visa

petitions have been adjudicated in the time since the Complaint

was filed. Both N-N and G-V-R have been placed on the U visa

waitlist and received employment authorization. See Defendants’

Opening Brief at 12, ECF No. 24 (“Defs.’ Br.”); Declaration of

Alex Weinberg, Exs. A-D, ECF Nos. 24-1, 24-2, 24-3, 24-4, 24-5.

The jurisdiction of Article III courts is limited to

“cases” and “controversies.” U.S. Const., Art. III § 2. A case

may proceed if a plaintiff has a “live individual case,” meaning

that the “plaintiff [has] a stake and the court could grant

relief.” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160-61

(2016). “If an intervening circumstance deprives the plaintiff

of a ‘personal stake in the outcome of the lawsuit,’ at any

point during litigation, the action can no longer proceed and

must be dismissed as moot.” Id. (quoting Genesis Healthcare

Corp. v. Symczyk, 569 U.S. 66, 72 (2013)).

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 venue for this action because the

claims of plaintiff N-N — the only named Plaintiff residing in

the District — are moot, and the action has no other meaningful

connection to this forum. Defs.’ Br. at 13.

1. Venue

In a lawsuit brought under the APA, venue is governed

by 28 U.S.C. § 1391(e). Section 1391 provides that a suit

against the federal government or a federal official acting in

his or her official capacity can be brought in any judicial

district where (1) “a defendant in the action resides”; (2) “a

substantial part of the events or omissions giving rise to the

claim occurred, or a substantial part of property that is the

subject of the action is situated”; or (3) “the plaintiff

resides if no real property is involved in the action.”

28 U.S.C. § 1391(e)(1).

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 28 U.S.C.

§ 1404. Under Section 1404, “[f]or the convenience of parties

and witnesses, in the interest of justice, a district court may

transfer any civil action to any other district or division

where it might have been brought.” 28 U.S.C § 1404(a).

“[M]otions for transfer lie within the broad discretion of the

district court and are determined upon notions of convenience

and fairness on a case-by-case basis.” In re Cuyahoga Equip.

Corp., 980 F.2d 110, 117 (2d Cir. 1992).

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. 28 U.S.C. § 1404(a). If this threshold

inquiry is satisfied, the court then evaluates “both private

interest factors that pertain to the effect of a transfer on

those concerned with the specific dispute in question and public

interest factors that relate to judicial economy and systemic

fairness.” W. Watersheds Project v. Tidwell, 306 F. Supp. 3d

350, 356 (D.D.C. 2017) (citing Stewart Org., Inc. v. Ricoh

Corp., 487 U.S. 22, 30 (1988)).

The Second Circuit has identified several non-

exclusive factors to be considered in determining the parties’

interests:

(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 9:22-

10:9, ECF No. 33. However, federal district courts generally

reject arguments raised for the first time at oral argument.

See, e.g., N.V.E., Inc. v. Palmeroni, No. 06-CV-5455, 2017 WL

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 28 U.S.C.

§ 1404(a) requires, because no defendant resided there when the

case was filed. See 28 U.S.C. § 1391(e)(1) (civil actions

against federal agencies may be brought in any judicial district

in which a defendant resides, among other places).

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 8 U.S.C. § 1184(p)(6) — this is Stage Two in

the taxonomy above. Plaintiffs contend that by refusing to

render a determination as to whether a pending application is

“bona fide,” Defendants have unlawfully withheld and delayed

required agency action, in violation of the APA. See Compl.

¶¶ 155-62 (Count II) (asserting that Defendants violated the APA

by refusing to adjudicate EAD applications for petitioners with

pending, bona fide applications as contemplated in Section

1184(p)(6)); see also id. ¶¶ 178-84 (Count V) (seeking remedy

under the Mandamus Act for the same violation alleged in Count

II).

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 5 U.S.C. § 701(a), which

states that the APA does not apply to agency action that “is

committed to agency discretion by law.” Defendants also rely on

a provision in the INA, 8 U.S.C. § 1252(a)(2)(B)(ii), which

states that “no court” shall have jurisdiction to review any

decision or action “of the . . . Secretary of Homeland Security

the authority for which is specified under this subchapter to be

in the discretion of” the Secretary. Defendants claim that

these provisions bar judicial review of the discretion Congress

conferred in the Secretary through Section 1184.

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 [5 U.S.C.]

§ 706(1)’s authorization for courts to ‘compel agency action

unlawfully withheld.’” Id. at 63. The Southern Utah Wilderness

Alliance opinion went on to note that “delay cannot be

unreasonable with respect to action that is not required.” Id.

at 63 n.1.

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 8 U.S.C. § 1184(p)(6), constitutes a “specific

statutory standard” within the meaning of St. Cyr.

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 is not defined by

statute or regulation.” Uranga v. U.S. Citizenship & Immigr.

Servs., 490 F. Supp. 3d 86, 100 (D.D.C. 2020). The Uranga court

went on to observe that “bona fide” could refer either “to

6 https://www.merriamwebster.com/dictionary/specific (last visited May

5, 2021).

petitions made in ‘good faith’ or applications that are

generally in order,” among other things. Id. Ultimately, “it

is not clear what Congress meant, and there are no regulations

implementing this part of the statute.” Id. Thus, the Uranga

court concluded, “the provision does not provide the ‘specific

statutory standards’ contemplated by the Supreme Court by which

the agency must act to issue work authorization documents.” Id.

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 8 U.S.C. § 1153(b)(2)(B)(i)).

Plaintiff Mousavi argued that the agency owed her a

determination as to whether her application was in the national

interest, even if she was not entitled to work authorization

itself. Id. at 133-34. The Court of Appeals rejected this

argument, observing that Congress offered no definition of the

term “national interest” and did not “set forth any guideposts”

for applying the term. Id. at 133; see also Zhu v. Gonzales,

411 F.3d 292, 295 (D.C. Cir. 2005) (reaching the same

conclusion).

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 statute that is framed, on its face,

as discretionary.

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 8 C.F.R.

§ 214.11(a)). “[N]othing,” Rodriguez continued, “prevents USCIS

from promulgating such a regulation in the U Visa context.” Id.

at *11.

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 of the

U visa petition itself is not. They contend that the agency has

an obligation to complete the actual adjudication of U visa

petitions for placement on the waitlist more quickly than it is

currently doing. (This is the progression from Stage Two to

Stage Three in the taxonomy above.)

This obligation arises, Plaintiffs assert, under

8 C.F.R. § 214.14(d)(2), which provides 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.” Waitlist status, as noted

above, brings with it a new basis for potential employment

authorization eligibility — this time under the agency’s own

regulations, which provide that “USCIS, in its discretion, may

authorize employment” for wait-listed petitioners and certain

family members. Id.

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 5 U.S.C.

§§ 555(b) and 706(1))?

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.” 8 C.F.R. § 214.14(d)(2).

The government does not dispute that this language is compulsory

— not only as to placement on the waitlist once eligibility is

determined, but also as to the eligibility determination itself.

And in contrast to the “bona fide” standard discussed above, the

standard in Section 214.14 governing eligibility is indeed

specific — subsection (b) of that regulation and 8 U.S.C.

§ 1101(a)(15)(U) lay out the eligibility standards for U visa

petitioners in detail. See Uranga, 490 F. Supp. 3d at 101

(holding that “while the outcome of the [U visa] eligibility

determination is a matter committed to the agency’s discretion .

. . , the government must assess a petitioner’s eligibility in

order to comply with the mandatory requirement to include

eligible applicants on the waitlist”); Patel, 400 F. Supp. 3d at

1384 (“There is no dispute that Defendants are required by law

to decide whether to place Plaintiff on the waiting list . . .

.”).

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.

2. Plaintiffs fail to state a claim for unreasonable

delay in connection with the determination of their

U visa and waitlist eligibility

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.” 5 U.S.C. § 555(b). And reviewing courts must “compel

agency action unlawfully withheld or unreasonably delayed” under

the APA. 5 U.S.C. § 706(1).

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:

(1) the time agencies take to make decisions must be

governed by a rule of reason;

(2) 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;

(3) delays that might be reasonable in the sphere of

economic regulation are less tolerable when human health

and welfare are at stake;

(4) the court should consider the effect of expediting

delayed action on agency activities of a higher or

competing priority;

(5) the court should also take into account the nature

and extent of the interests prejudiced by delay; and

(6) 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). Courts have held delays in the vicinity of five years in

the adjudication of immigration benefits not to be unreasonable

as a matter of law — both in the U visa context, see Uranga, 490

F. Supp. 3d at 102-06, and in the context of other immigration

benefits, see, e.g., Yan Chen v. Nielsen, No. 17-CV-7157, 2018

WL 1221130, at *2 (E.D.N.Y. Mar. 8, 2018) (delay of four-and-a-

half years to adjudicate plaintiff’s application for an

adjustment of her immigration status to permanent resident did

not justify APA or mandamus relief); Saleh v. Ridge, 367 F.

Supp. 2d 508, 513 (S.D.N.Y. 2005) (delay of “almost five years”

to adjudicate plaintiff’s application for lawful permanent alien

status was not unreasonable).

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 8 C.F.R. § 214.14(d)(2) (“Priority on the

waiting list will be determined by the date the petition was

filed with the oldest petitions receiving the highest

priority.”).

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 8 U.S.C. § 1184(p)(2)(A). In asserting that

Congress directed faster processing, Plaintiffs invoke certain

legislative history associated with the statutory provisions at

issue — specifically, an “explanatory statement” read into the

record by two members of the House of Representatives. Pls.’

Br. at 15 (citing 154 Cong. Rec. H10,888, 10,905 (Dec. 10, 2008)

(statement of Reps. Berman & Conyers), 2008 WL 5169865). But

the congressional timetable contemplated by this TRAC factor

will emerge through actual statutory pronouncements (such as the

statutory cap), rather than such faint signals as the

explanatory statement. See, e.g., N.L.R.B. v. SW Gen., Inc.,

137 S. Ct. 929, 943 (2017) (“[F]loor statements by individual

legislators rank among the least illuminating forms of

legislative history.”); see also Exxon Mobil Corp. v. Allapattah

Servs., Inc., 545 U.S. 546, 568–69 (2005) (“As we have

repeatedly held, the authoritative statement is the statutory

text, not the legislative history or any other extrinsic

material.”). Given Congress’s enactment of the annual cap on

U visa issuance, this factor, too, weighs heavily in favor of

Defendants.

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 at 585. 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 yield the

intended result for approximately fourteen years?7

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. 8 C.F.R. § 214.14(d)(2).

Thus, even if a writ of mandamus would not bring faster access

to a U visa, it would bring important collateral benefits: most

importantly, according to the Complaint, the ability to obtain

the possibility of employment authorization.8

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

7 Plaintiffs allege that there are more than 140,000 pending petitions

at this point. See Compl. ¶ 5. At 10,000 visas issued per year, that

obviously implies a wait significantly well in excess of ten years. Id.

¶ 44. Plaintiffs do not dispute that the waiting period to receive a U visa

is longer than the fifty-four months it allegedly takes to be placed on the

waitlist.

8 Plaintiffs also note that waitlisted applicants receive certain

protections against deportation. These protections are obviously primary,

rather than secondary, benefits emanating from the eligibility-and-waitlist

determination. But in alleging prejudice to their interests, Plaintiffs

focus overwhelmingly on their need for EADs rather than the need for

protection against deportation. Indeed, the Complaint does not allege that

any Plaintiff faces imminent deportation.

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 8 C.F.R. § 274a.13(d). Until

January 17, 2017, Section 274a.13(d) had set a specific deadline

for USCIS to adjudicate EAD requests, and had obligated the

agency to issue interim EADs if it failed to meet the deadline.

That version of the regulation read as follows:

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.

8 C.F.R. § 274a.13(d) (repeal effective January 17, 2017). The

regulation was revised in January 2017 to eliminate both the

ninety-day processing deadline and the mandate to issue interim

EADs when applications were not adjudicated within that period.

The Plaintiffs bringing this claim allege that

Defendants’ failure to comply with USCIS’s own prior regulation

constitutes agency action “unlawfully withheld or unreasonably

delayed” under 5 U.S.C. § 706(1), and that this failure is

“arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law” under 5 U.S.C. § 706(2)(A) (Count III).

These Plaintiffs filed U visa applications, and applied for

employment authorization as then permitted, and saw more than

ninety days elapse without an EAD being granted. Compl. ¶ 63.

They allege that they are entitled a writ of mandamus ordering

USCIS to issue them EADs pursuant to the prior regulation (Count

VI).

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 8 C.F.R. § 274a.13(d) stated unambiguously

that “USCIS will adjudicate the application within 90 days from

the date of receipt.” It did not say that USCIS would

adjudicate the application within ninety days of a threshold

determination of the petitioner’s eligibility for an EAD, nor

did it limit the applicability of the ninety-day clock to those

petitioners with a “current basis” for employment authorization.

For this reason, courts have held that the regulation

unambiguously required adjudication of U visa petitioners’ EAD

applications within ninety days. See, e.g., Uranga, 490 F.

Supp. 3d at 108 (concluding that Defendants’ interpretation of

the regulation had “no support in its plain language”);

Rodriguez, 2018 WL 4783977, at *19 (“Defendants cannot

convincingly argue that the language in section 274a.13(d) is

ambiguous.”). I agree; these Plaintiffs were entitled to

resolution of their EAD applications within ninety days of

applying.

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 deadline — should be applied to

applications pending before its effective date.

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 8 C.F.R.

§ 274a.13(d) without suggesting it applies retroactively);

Samuels, 550 F.3d at 260 (“A regulation or law, which, like this

one, simply gives an effective date, does not give a clear

indication that it is to have retroactive effect.”).

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 a new duty, or

attaches a new disability, in respect to transactions or

considerations already past.” Id. at 269 (internal quotation

marks and citations omitted); see also Samuels, 550 F.3d at 260

(applying this test to a regulation); Nat’l Mining Ass’n v. U.S.

Dep’t of Interior, 177 F.3d 1, 8 (D.C. Cir. 1999) (same). An

individual’s “vested right” is an “immediate fixed right of

present or future enjoyment,” rather than an “inchoate

expectation[] [or] unrealized opportunity[y].” Fernandez-Vargas

v. Gonzales, 548 U.S. 30, 44 n.10 (2006) (internal quotation

marks omitted).

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.

9 O-D-B applied on December 2, 2016, Compl. ¶ 70; I-M-R applied on

September 16, 2016, id. ¶ 82; Y-L-P applied on December 8, 2015, id. ¶ 101;

Z-M-A applied on February 16, 2016, id. ¶ 106; M-D-M applied on January 20,

2016, id. ¶ 116; and E-S-R applied on January 11, 2016, id. ¶ 126.

Plaintiffs N-N and G-V-R also applied prior to January 17, 2017, but as

discussed supra, their claims are moot and therefore dismissed.

§ 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 8 C.F.R.

§ 274a.13(d) (“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.”) (emphasis

added). Applying the revised rule retroactively would “take

away or impair” those rights. Vartelas v. Holder, 566 U.S. 257,

266 (2012) (cleaned up); see also Uranga, 490 F. Supp. 3d at 108

(holding that the right to an EAD under the prior regulation had

10 Since O-D-B applied on December 2, 2016, Compl. ¶ 70, she had no

vested entitlement to interim employment authorization when the revised

regulation went into effect. See BellSouth Telecomms., Inc. v. Se. Tel.,

Inc., 462 F.3d 650, 660–61 (6th Cir. 2006) (stating that “filing an

application with an agency does not generally confer upon the applicant an

inviolable right to have the agency rule on the application pursuant to the

regulations in effect at the time of filing”); Pine Tree Med. Assocs. v.

Sec’y of Health & Human Servs., 127 F.3d 118, 121 (1st Cir. 1997) (holding

that “the mere filing of an application is not the kind of completed

transaction in which a party could fairly expect stability of the relevant

laws as of the transaction date”); Chadmoore Commc’ns, Inc. v. F.C.C., 113

F.3d 235, 241 (D.C. Cir. 1997) (citing cases holding that no rights vest upon

the mere filing of an application with an administrative agency).

Accordingly, this claim is dismissed as to O-D-B.

vested). As a result, the regulation cannot be applied

retroactively to these Plaintiffs.

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

11 When the ninety-day clock was in effect, a U visa petitioner could

request employment authorization documents on the face of Form I-918 by

checking the “yes” box in response to a prompt stating: “I want an

Employment Authorization Document.” E.g., Compl. ¶ 34. This form contained

no indication that the timeline for evaluating EAD applications bore any

relation to the applicant’s request for a U visa. As USCIS explained at the

time:

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.

See New Classification for Victims of Criminal Activity; Eligibility for “U”

Nonimmigrant Status, 72 Fed. Reg. 53014-01 (Sept. 17, 2007).

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).

12 The Defendants in this case do invoke Form I-918 for the proposition

that “USCIS has made clear that the 90-day adjudication period for the Form

I-765 under 8 C.F.R. 274a.13(d)(2011) did not begin until after the threshold

determination on the underlying benefit had been made.” Defs.’ Br. at 29.

But they do not say when USCIS made that clear, and whether it was before

January 2017 or not. They appear to be quoting a document entitled

“Instructions for Petition for U Nonimmigrant Status and Supplement A,

Petition for Qualifying Family Member of U-1 Recipient” as saying an

“application for employment authorization based on deferred action can only

be approved after DHS has deferred action” in a petitioner’s case,

“regardless of when the Form I-765 is filed.” Id. But they offer no

indication that this guidance was provided prior to 2017. Instead, they cite

a version of the I-918 instructions that was “updated April 24, 2019,” and

“last visited [on the web] March 30, 2020.” See id at 29 & n.21.

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 20 C.F.R.

§ 656.30). Thus, the holding of Durable turned on the meaning

of the word “indefinitely.” Indefinitely does not mean

permanently, the court held; instead, it means “so long as no

definite period of validity was fixed” by the agency — in other

words, until further notice. Id. Because the applicants in

Durable had no legitimate expectation that their certifications

would be permanent, they had no vested rights to begin with.

Id.

Former 8 C.F.R. § 274a.13(d), in contrast,

specifically guaranteed Plaintiffs the right to have their

applications for work authorization adjudicated within ninety

days, or required issuance of EADs: “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.” This passage contains no conditional language like the

word “indefinitely” to suggest that the entitlement at issue

would inure only at the pleasure of the agency. In fact,

specific time periods are mapped out in the text of the

regulation itself. Plaintiffs here therefore had, unlike the

plaintiffs in Durable, a vested right to receive the benefits at

issue.

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.

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 State s District Judge

D ated: May 18, 2021

Brooklyn, New York