Jaddou

Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT November 21, 202

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

MARIA YAZMIN VALENCIA LOPEZ, et al., §

Plaintiffs,

VS. § CIVIL ACTION NO. 4:24-cv-2128

UR M. JADDOU, :

Defendant. :

§

ORDER

Defendant Ur M. Jaddou, Director of U.S. Citizenship and Immigration Services filed a

Motion to Dismiss or, Alternatively, Motion to Sever and Dismiss before this Court. (Doc. No. 11).

Plaintiffs responded, (Doc. No. 12), and Defendant replied, (Doc. No. 16). After carefully

considering the pleadings and the applicable law, the Court GRANTS in part and DENIES in part

Defendant’s motion.

I. BACKGROUND

This case involves applications for U nonimmigrant status, also known as the “U visa,”

under the Immigration and Nationality Act (“INA”). In 2000, Congress created a new visa

classification—U nonimmigrant status—when it passed the Victims of Trafficking and Violence

Protection Act. Pub. L. No. 106-386, § 1513(a)(2)(A), 114 Stat. 1464, 1533 (2000). The U visa

provides temporary legal status to noncitizens who were victims of certain qualifying crimes and

who are helpful to law enforcement in the investigation or prosecution of those crimes. /d. The

statute also allows some of the U visa applicant’s qualifying family members to receive derivative

U nonimmigrant status, depending on the applicant’s age. 8 U.S.C.A. § 1101(U)(ii); USCIS, Policy

Manual, Vol. 3, Part C, Ch. 1, https://www.uscis.gov/policy-manual/volume-3-part-c.

When it created the U visa, Congress imposed a statutory cap, only allowing the U.S.

Citizenship and Immigration Services (“USCIS”) to issue 10,000 U visas each year, not including

those issued to derivative family members. 8 U.S.C. § 1184(p)(2)(A). Anticipating that the number

of U visa applicants would eventually exceed the annual statutory cap, USCIS created the U visa

waiting list. See 8 C.F.R. § 214.14(d)(2). Once the numerical limit on U visas is reached in a

particular year, all remaining submitted petitions that are deemed approvable, but are not granted

a U visa solely because the cap was already reached, are placed on the U visa waiting list. Jd. After

a petitioner is placed on the waiting list, USCIS “will grant” the petitioner parole or designate one

for deferred action status, and “in its discretion, [USCIS] may authorize employment” for them.

Id.

By 2011, the number of U visa applicants began to exceed the annual statutory cap of

10,000. USCIS, Number of Form I-918, Petition for U Nonimmigrant Status by Fiscal Year,

Quarter, and Case Status, Fiscal Years 2009-2024,

https://www.uscis.gov/sites/default/files/document/data/i9 1 8u_visastatistics_fy2024_q1.xlsx (last

visited Oct. 30, 2025). As of September 2024, 238,892 principal U visa petitions were pending

before USCIS. Jd.

In a 2008 amendment to the INA, Congress gave USCIS discretion to grant employment

authorization to noncitizens with pending “bona fide” U nonimmigrant status petitions. 8 U.S.C.

§ 1184(p)(6). As a result, USCIS implemented a “bona fide determination” process to determine

which pending U visa petitions were “bona fide” and thus, those petitioners were eligible for

discretionary interim benefits of work authorization and deferred action. USCIS, Policy Manual,

Vol. 3, Part C, Ch. 5. These benefits are considered “interim” because U visa petitioners can receive

them while they wait for the full benefit of a U visa, which is limited by the statutory cap. Jd. Ch.

4.

According to USCIS, the U visa program now involves “three distinct adjudicative

processes:” (1) the bona fide determination process; (2) waiting list adjudication; and (3) final

adjudication. Jd.! In its Policy Manual, USCIS describes the “bona fide determination” process as

follows:

During the [bona fide determination] process, USCIS first determines whether a

pending petition is bona fide. Second, USCIS, in its discretion, determines whether

the petitioner poses a risk to national security or public safety, and otherwise merits

a favorable exercise of discretion. If USCIS grants the alien a Bona Fide

Determination Employment Authorization Document . . . as a result of the [bona

fide determination] process, USCIS then also exercises its discretion to grant that

alien deferred action for the period of the [bona fide determination employment

authorization]. USCIS generally does not conduct waiting list adjudications for

aliens who USCIS grants [bona fide determination employment authorizations] and

deferred action to; these petitioners’ next adjudicative step is final adjudication

when space is available under the statutory cap.

Id. Ch. 5. If USCIS ultimately decides the U visa petition is not bona fide, then a waiting list

adjudication is initiated for that petition. Jd. Ch. 6. Unlike the bona fide determination, waiting list

adjudication involves a full file review and analysis of the U visa eligibility requirements. Jd. Ch.

7, Ch. 6. At the conclusion of this waiting list review, USCIS either denies the petition or places

the petitioner on the waiting list. Jd. Ch. 6. Final adjudication then occurs when space under the

statutory cap is available. Jd. Ch. 7. During the final adjudication USCIS conducts another full

review of the petition. Jd. Neither a favorable bona fide determination nor placement on the waiting

list guarantee a grant of U visa status. Jd.

' USCIS maintains a “Bona Fide Determination Process Flowchart” to visually illustrate its process for adjudicating

visa petitions. © Appendix: Bona Fide Determination Process Flowchart, — USCIS,

https://www.uscis.gov/sites/default/files/document/policy-manual-resources/A ppendix-

BonaFideDeterminationProcessFlowchart.pdf (last visited Oct. 30, 2025).

U visa petitions, at times, can remain pending before any kind of adjudication for years. 7

As of October 2025, the USCIS reported that 80% of U visas are processed within 28.5 months.

Id. During that time, petitioners remain without legal status and without work authorization for

what Plaintiffs allege to be a seemingly “indefinite” period of time. See USCIS, Policy Manual,

Vol. 3, Part C, Ch. 4; (Doc. No. 12 at 19). Describing this process as the “undocumented twilight,”

Plaintiffs claim they are suffering from exactly that. (Doc. No. 12 at 19).

In this case, Plaintiffs are 47 individuals with U visa petitions pending before USCIS. (Doc.

No. 11 at 6). For the most part, Plaintiffs’ petitions have all been pending for different lengths of

time, from the shortest, that has been pending for three months, to the longest, that has been

pending for seventy-two months. (Doc. 1 at 21, 24). In this lawsuit, Plaintiffs allege that Defendant

has unlawfully and unreasonably delayed both the initial bona fide determination and the waiting

list determination regarding their U visa petitions. (Doc. No. 1 at 42-43). As a result of this alleged

delay, Plaintiffs claim they remain without work authorization and deferred action, which are

benefits U visa petitioners can receive while they wait for availability under the statutory cap. Id.

Plaintiffs bring their claims under § 706(1) of the Administrative Procedure Act (“APA”) and ask

this Court to “compel agency action unlawfully withheld or unreasonably delayed.” (Doc. | at 42

(quoting 5 U.S.C. § 706(1))). Plaintiffs also ask this Court to issue a writ of mandamus compelling

Defendant to adjudicate their bona fide determination, waiting list placement, and interim U visa

benefits. (Ud. at 44).

2 Case Processing Times, USCIS, https://egov.uscis.gov/processing-times/ (last visited Oct. 30, 2025). Notably,

Defendant cited this same USCIS resource in her motion to dismiss in October 2024, and at that time, USCIS reported

that 80% of U visas were processed within 54.5 months. (Doc. No. || at 8). It is not clear to the Court, nor relevant to

this litigation at this time, why there has been such a significant change in average processing times. Nevertheless, the

notes U visa processing time for 80% of applicants seems to have reduced by about 26 months in the last year.

Defendant’s Rule 12(b)(1) motion to dismiss urges this Court to dismiss, or sever and

dismiss, Plaintiffs’ claims because: (1) this Court lacks subject matter jurisdiction under the

jurisdiction stripping provision of the INA; (2) this Court lacks subject matter jurisdiction based

on Plaintiffs’ failure to show the required injury-in-fact and redressability for Article III standing;

and (3) the 47 Plaintiffs have been improperly joined under Federal Rule of Civil Procedure 21.

(Doc. No. 11 at 6-7).

It is important to note that Defendant has only filed a motion to dismiss under Rule 12(b)(1)

challenging this Court’s jurisdiction to hear Plaintiffs’ case. Defendant has not filed a Rule 12(b)(6)

motion to dismiss Plaintiffs’ complaint for failure to state a claim. At this stage in the proceedings,

this Court is only to determine whether or not it has jurisdiction to hear this case. It is not examining

the merits of Plaintiffs’ claims, nor is this Court instructing USCIS to make any kind of

determination in Plaintiffs’ U visa petitions.

Il. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(1)

Federal courts are courts of limited jurisdiction and must have statutory or constitutional

power to adjudicate a claim. Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006,

1010 (5th Cir. 1998). A federal court has original jurisdiction to hear a suit when it is asked to

adjudicate a case or controversy that arises under federal-question or diversity jurisdiction. U.S.

Const., art. III, § 2, cl. 1; 28 U.S.C. §§ 1331-32. Whether a federal court has jurisdiction must

“be established as a threshold matter” and “is inflexible and without exception.” Webb v. Davis,

940 F.3d 892, 896 (Sth Cir. 2019) (quoting Steel Co. v. Citizens for a Better Env't, 523 US. 83,

94-95 (1998)). A Rule 12(b)(1) motion to dismiss allows a party to challenge the exercise of the

Court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). In analyzing a motion to dismiss under

Rule 12(b)(1), a court may consider: (1) the complaint alone; (2) the complaint supplemented by

undisputed facts or evidence in the record; or (3) the complaint supplemented by undisputed facts

plus the court's resolution of disputed facts. Ramming v. United States, 281 F.3d 158, 161 (Sth Cir.

2001). Plaintiff, as the party asserting jurisdiction, bears the burden of proof to defeat a Rule

12(b)(1) motion to dismiss. Jd.

Iii. ANALYSIS

A. Statutory Background

It is important to remember that Plaintiffs bring two of their claims under the APA. Under

Section 706(1) of the APA, courts can “compel agency action unlawfully withheld or unreasonably

delayed.” 5 U.S.C. § 706(1). That being the case, § 706 of the APA does not apply where “(1)

statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.”

5 U.S.C. § 701(a)(1), (2).

In immigration cases, 8 U.S.C. § 1252(a)(2)(B)(ii) explicitly precludes judicial review of

“any other decision or action of the Attorney General or the Secretary of Homeland Security the

authority for which is specified under this subchapter to be in the discretion of the Attorney General

or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). “This subchapter” in clause

(ii) refers to “Title 8, Chapter 12, Subchapter II, of the United States Code, codified at 8 U.S.C. §§

1151-1381.” Kucana v. Holder, 558 U.S. 233, 239 n.3 (2010). In other words, § 1252(a)(2)(B)(i)

bars judicial review of any decision or action that is made discretionary by statutes within 8 U.S.C.

§§ 1151-1381. Section 1184(p), which provides the requirements applicable to U visas, falls within

this specified statutory range. Thus, judicial review is explicitly prohibited of any decision which

§ 1184(p) makes discretionary. See § 1252(a)(2)(B)(ii).

With this necessary statutory background established, the Court turns to Defendant’s

arguments in her motion to dismiss.

B. Subject Matter Jurisdiction over APA § 706(1) Claims

Plaintiffs and Defendant dispute whether four distinct parts of the U visa adjudication

process are discretionary and thus precluded from judicial review. Those parts of the process are:

(1) the bona fide determination; (2) the granting of interim benefits of work authorization and

deferred action if the petition is deemed as “bona fide”; (3) the waiting list determination; and (4)

the granting of deferred action if placed on the waiting list. (Doc. No. 11 at 10, 12); (Doc. No. 12

at 13, 20).

i. The bona fide determination and the granting of the related interim benefits

of work authorization and deferred action are both unreviewable.

Defendant argues first that USCIS’s grant of interim benefits to those petitioners it deems

as “bona fide” is a discretionary act because of the statute’s construction. (Doc. No. 11 at 10). Next,

Defendant contends that under Patel v. Garland, 596 U.S. 328 (2022), the initial bona fide

determination itself is also discretionary because it is a factual predicate to the discretionary grant

of interim benefits. (/d.).

Plaintiffs disagree. They argue that USCIS’s Policy Manual binds it to make bona fide

determinations on all U visa applications, which, in effect, makes the bona fide determination non-

discretionary, and therefore, USCIS has to do it. (Doc. No. 12 at 21). Plaintiffs concede that if

USCIS determines a petition is bona fide, it has discretion over whether it grants work

authorization. (/d.). That being said, Plaintiffs insist if a bona fide determination is made, USCIS

must grant deferred action status, which is a non-discretionary act. (/d.).

First, USCIS’s decision to grant the interim benefits of work authorization and deferred

action as a result of the bona fide determination is discretionary. The relevant provision under the

INA states that “[t]he Secretary 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.” 8 U.S.C. §

1184(p)(6) (emphasis added). “[T]he word ‘may’ clearly connotes discretion.” Bouarfa v.

Mayorkas, 604 U.S. 6, 13-14 (2024) (internal quotation omitted). It follows that the decision to

grant work authorization to a U visa petitioner who has a pending, bona fide application is purely

discretionary, so Section 1252(a)(2)(B)(ii) makes it clear this Court has no jurisdiction to review

that decision under the APA. See Vimal S. P. v. Garland, No. 4:24-CV-04002, 2025 WL 2774400,

at *4 (S.D. Tex. Sept. 26, 2025); Hernandez v. Jaddou, No. 1:24-CV-00093, 2025 WL 2264604, at

*2 (S.D. Tex. Apr. 3, 2025) (both concluding the same).

Next, Defendant argues that the bona fide determination itself is also unreviewable because

it is a factual predicate to USCIS’s discretionary decision to grant interim benefits under Patel v.

Garland, 596 U.S. 328 (2022). (Doc. No. 11 at 12). Plaintiffs insist that USCIS’s factual findings

are not at issue because USCIS “refuses to decide the bona fides of Plaintiffs’ U visa petitions at

all.” (Doc. No. 12 at 22).

The Court finds that it also does not have jurisdiction to review the initial bona fide

determination. In Patel, the Supreme Court analyzed § 1252(a)(2)(B)(i), which strips courts of

jurisdiction to review any judgment granting relief under specific sections of immigration statutes.

Patel, 596 U.S. at 338. It interpreted § 1252(a)(2)(B)(i) broadly and held that federal courts lack

jurisdiction to review not only the “granting of relief’ but also any factual findings or “judgment

relating to the granting of relief.” Jd. at 339 (emphasis in original).

The Fifth Circuit, in Cheejati v. Blinkin, applied Patel’s holding to § 1252(a)(2)(B)(ii) and

concluded that if a policy is a practical application of the discretion afforded to the Attorney

General, then that policy is precluded from judicial review under § 1252(a)(2)(B)(ii). Cheejati v.

Blinken, 106 F.4th 388, 394 (Sth Cir. 2024), cert. denied, 145 S. Ct. 1126 (2025). Under Cheejati,

predicate factual findings of a discretionary decision are unreviewable, and a policy that is the

“practical application” of a discretionary decision is also unreviewable. Jd.

Here, the bona fide determination policy, laid out in USCIS’s Policy Manual, is the

practical application of USCIS’s discretionary decision to grant work authorization to the U visa

petitioners’ applications it deems as bona fide. See Vimal S. P. v. Garland, No. 4:24-CV-04002,

2025 WL 2774400, at *4 (S.D. Tex. Sept. 26, 2025) (concluding that judicial review of the bona

fide determination is precluded because that determination is a predicate to discretionary

employment authorizations); Hernandez v. Jaddou, No. 4:24-CV-00453, 2025 WL 819657, at *5

(S.D. Tex. Mar. 6, 2025) (Hanks, J.) (concluding the same).

This conclusion is also supported by the statutory language. Section 1252(a)(2)(B)(ii)’s bar

on jurisdiction applies not only to USCIS’s decision to grant or deny work authorization under

§ 1184(p)(6), but also to “any ... action” leading to that decision. See § 1252(a)(2)(B)(ii); Cheejati,

106 F.4th at 394.

The grant of deferred action after USCIS has determined a petition is “bona fide” is also

discretionary and unreviewable. Under USCIS’s bona fide determination policy, “[i]f USCIS

grants the alien a Bona Fide Determination Employment Authorization Document . . . as a result

of the [bona fide determination] process, USCIS then also exercises its discretion to grant that alien

deferred action for the period of the [bona fide determination employment authorization].” USCIS,

Policy Manual, Vol. 3, Part C, Ch. 6 (emphasis added).

Both the initial bona fide determination and the subsequent grant of work authorization and

deferred action are discretionary acts. Therefore, this Court lacks jurisdiction to review or compel

either of these discretionary acts under § 1252(a)(2)(B)(ii). Plaintiffs’ claims alleging Defendant

unlawfully delayed or withheld the bona fide determination and related interim benefits are

DISMISSED for lack of subject matter jurisdiction.

ii. The waiting list determination and the grant of deferred action or parole when

placed on the waiting list are reviewable.

Next, Defendant argues that Patel v. Garland, 596 U.S. 328 (2022), also supports finding

that this Court lacks jurisdiction to compel USCIS to adjudicate Plaintiffs’ waiting list eligibility.

(Doc. No. 11 at 12). Plaintiffs’ counter that the plain language of the federal regulation establishing

the U visa waiting list makes the waiting list determination nondiscretionary. (Doc. No. 12 at 16).

The regulation at issue provides:

(2) Waiting list. All eligible petitioners who, due solely to the cap, are not granted

U-I nonimmigrant status must be placed on a waiting list and receive written notice

of such placement... . USCIS will grant deferred action or parole to U-1

petitioners and qualifying family members while the U-1 petitioners are on the

waiting list. USCIS, in its discretion, may authorize employment for such

petitioners and qualifying family members.

8 C.F.R. § 214.14(d)(2) (emphasis added).

When determining the discretionary nature of an agency decision, words such as “shall” or

“must” generally make a decision nondiscretionary while words such as “may” imply discretion.

Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 171-72 (2016). Here, the regulation

unambiguously requires USCIS to place petitioners on the waiting list if they are eligible for U

visa status. See § 214.14(d)(2). Similarly, USCIS unambiguously must grant deferred action or

parole to any petitioners placed on the waiting list. Jd. Other courts within the Southern District of

Texas have reached this same conclusion. Vimal S. P., 2025 WL 2774400, at *5; Hernandez v.

Jaddou, No. 1:24-CV-00093, 2025 WL 2264604, at *2 (S.D. Tex. Apr. 3, 2025) (Olvera, J.).

Additionally, pursuant to the APA, the USCIS is required to complete matters received

“within a reasonable time,” 5 U.S.C. § 555(b), and courts are authorized to “compel agency action

10

unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1). Since the USCIS is required to

place eligible petitioners on the waiting list, within a reasonable time pursuant to 5 U.S.C. § 555(b),

the Court has jurisdiction to review the claims of alleged unreasonably delayed or unlawfully

withheld waiting list determinations pursuant to 5 U.S.C. § 706(1). MJL. v. McAleenan, 420 F.

Supp. 3d 588, 597 (W.D. Tex. 2019), report and recommendation adopted, No. 1:19-CV-477-LY,

2020 WL 10056215 (W.D. Tex. Jan. 24, 2020).

This Court has jurisdiction to consider Plaintiffs’ claims that USCIS has unreasonably

delayed the waiting list determination for Plaintiffs’ U visa petitions. USCIS “must” place eligible

petitioners on the waiting list and, if placed on the waiting list, petitioners “will” be granted

deferred action. 8 C.F.R. § 214.14(d)(2) (emphasis added)? Those agency actions are

nondiscretionary and thus, not exempted from judicial review under 8 U.S.C. § 1252(a)(2)(B)(ii).

C. Article II Standing

In a separate jurisdictional challenge, Defendant claims that Plaintiffs lack standing

because they fail to allege a sufficient injury-in-fact and the harm they complain of “cannot be

redressed by this Court.” (Doc. No. 11 at 17). In response, Plaintiffs argue first, that they have

suffered “profound injur[y],” and second, that their injuries are redressable by this Court. (Doc.

No. 12 at 25-27).

Standing “is an essential and unchanging part of the case-or-controversy requirement of

Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish Article III standing,

“a plaintiff must show: (i) that [he] suffered an injury in fact that is concrete, particularized, and

actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury

would likely be redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423

3 At this stage of the litigation, this Court has not evaluated the merits of Plaintiffs’ claims. Defendant’s present motion

only challenges this Court’s jurisdiction to hear Plaintiffs’ claims.

11

(2021) (citing Lujan, 504 U.S. at 560-61). “As the party invoking federal jurisdiction,” Plaintiffs

“bear the burden of demonstrating” standing to bring the claims alleged. Jd. at 2207. To establish

an injury-in-fact, a plaintiff “must show that he or she suffered ‘an invasion of a legally protected

interest” that goes beyond “conjectural or hypothetical.” Spokeo, Inc. v. Roberts, 578 U.S. 330,

339 (2016) (citing Lujan, 504 U.S. at 560). Redressability turns on whether the plaintiff

“personally would benefit in a tangible way from the court's intervention.” Steel Co. v. Citizens for

a Better Env't, 523 U.S. 83, 103 n.5 (1998). Here, injury-in-fact and redressability are the standing

elements at issue.

First, Plaintiffs have demonstrated a concrete injury-in-fact. In this case, Plaintiffs’ alleged

injury is the delay in determining the bona fide status or waiting list eligibility of their U visa

petitions, which has created a “lost opportunity to apply for immigration benefits” of work

authorization and deferred action. (/d.) (internal quotations omitted). “A plaintiff suffers a

constitutionally cognizable injury by the loss of an opportunity to pursue a benefit ... even though

the plaintiff may not be able to show that it was certain to receive that benefit had it been accorded

the lost opportunity.” Ecosystem Inv., Partners v. Crosby Dredging, L.L.C., 729 F. App'x 287, 292

(Sth Cir. 2018). Although the Fifth Circuit has not addressed applying this premise to immigration

benefits, other courts, both inside and outside of the Southern District of Texas, have found an

injury-in-fact in the same or similar circumstances. See Hernandez, 2025 WL 2264604, at *3

(Olvera, J.); Vimal S. P.,, 2025 WL 2774400, at *6; Hernandez, 2025 WL 819657, at *3 n.1 (Hanks,

J.) (collecting cases).

Plaintiffs have also demonstrated that their injury is redressable. Defendant argues that

Plaintiffs’ demanded relief would not give them any “tangible benefit or remedy their alleged

harm.” (Doc. No. I1 at 18). In her motion, Defendant characterized the harm at issue here as

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USCIS’s final issuance of employment authorization or a grant of deferred action, after the

petition’s waiting list placement. (/d.). In contrast, the Plaintiffs characterize the injury here as “the

opportunity to be considered for” interim benefits in the first place. (Doc. No. 12 at 26). Plaintiffs

are not asking the Court to order USCIS to deem Plaintiff’s petitions as “bona fide” or to grant

them deferred action. Instead, Plaintiffs ask the Court to compel USCIS to “make . . . waiting list

determinations without further delay.” (Doc. No. | at 7).

Defendant has mischaracterized the injury Plaintiffs ask this Court to redress. When

properly framed as the lost opportunity to seek interim waiting list benefits, the Plaintiffs injury is

remediable by a court order requiring a waiting list determination within a reasonable time. See

Hernandez, 2025 WL 2264604, at *3 (Olvera, J.) (“If this Court finds Defendant has unreasonably

delayed determination of Plaintiffs’ Waitlist eligibility and deferred action or parole, it may grant

the requested relief [of injunctive relief compelling USCIS to adjudicate their eligibility for waiting

list placement].”). Other courts have reached this same conclusion when presented with the same

or a similar concrete injury. See, e.g., id; Vimal S. P., 2025 WL 2774400, at *6; De Sousa v. Dir.

of U.S. Citizenship & Immigr. Servs., 720 F. Supp. 3d 794, 802-03 (N.D. Cal. 2024) (“When

properly framed as the lost opportunity to seek parole, the . . . Plaintiffs’ injury is plainly

remediable by a court order requiring waiting list decisions within a reasonable time.”); Reyes

Olmos v. U.S. Citizenship & Immigr. Servs., 785 F. Supp. 3d 459, 471-72 (D. Neb. 2025).4

The Court recognizes that one sister court previously found that similar U visa-petitioner plaintiffs did not have

standing due to a lack of redressability. Hernandez, 2025 WL 819657, at *3 (Hanks, J.). That case, however, can be

distinguished from the case at hand. In Hernandez, the court’s analysis addressed the bona fide determination, whereas,

in this case, the standing inquiry’s focus is on the waiting list determination. See id. at *3—4. This Court proceeds in

line with the other cases from within this District which are cited above.

Additionally, the Court finds it notable that in each of the above cited cases, Defendant’s Rule 12(b)(1) motion to

dismiss was accompanied with a Rule 12(b)(6) component as well. Here, as the Court has previously pointed out, only

a Rule 12(b)(1) motion is before the Court.

13

Plaintiffs have sufficiently met Article III’s injury-in-fact and redressability requirements.

Therefore, this Court has jurisdiction to review Plaintiffs’ waiting list determination claims.

D. Improper Joinder

Finally, Defendant argues that even if the Court finds that it has subject matter jurisdiction

over Plaintiffs’ claims, it “should, nevertheless, sever and dismiss without prejudice the claims of

all but the lead Plaintiff and her derivative family member because the claims are improperly

joined.” (Doc. No. 11 at 19-20).

Rule 20 governs permissive joinder and “allow[s] joinder of plaintiffs when (1) their claims

arise out of the ‘same transaction, occurrence, or series of transactions or occurrences’ and when

(2) there is at least one common question of law or fact linking all claims.” Acevedo v. Allsups

Convenience Stores, Inc., 600 F.3d 516, 521 (5th Cir. 2010); Fed. R. Civ. P. 20. “Generally,

permissive joinder ... is at the option of the plaintiffs, assuming they meet the requirements set

forth in Rule 20.” Applewhite v. Reichhold Chemicals, Inc., 67 F.3d 571, 574 (Sth Cir. 1995).

“However, even if this test is satisfied, district courts have the discretion to refuse joinder in the

interest of avoiding prejudice and delay, ensuring judicial economy, or safeguarding principles of

fundamental fairness.” Acevedo, 600 F.3d at 521 (internal citations omitted). The Court’s analysis

is guided by the Supreme Court's preference for “entertaining the broadest possible scope of action

consistent with fairness to the parties; joinder of claims, parties and remedies is strongly

encouraged.” United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966).

i. Prong One: Same Transaction, Occurrence, or Series of Transactions or

Occurrences

The Fifth Circuit has not yet articulated a test addressing the first prong of this test: what

constitutes the same transaction, occurrence, or series of transactions or occurrences. Wagner v.

Harris Cnty., No. 4:23-C V-02886, 2024 WL 1639910, at *2 (S.D. Tex. Apr. 15, 2024). However,

14

district courts within the Fifth Circuit generally assess whether there is some connection or logical

relationship between the claims. /d. (internal quotations omitted). “Claims arise out of the same

transactions or occurrences when the complaint alleges a defendant’s pattern or policy of behavior,

regardless of differences amongst the plaintiffs’ individual claims.” McConnell v. Sw. Bell Tel. L.P.,

No. 3:20-CV-01457-X, 2021 WL 1561435, at *3 (N.D. Tex. Apr. 21, 2021).

Here, Plaintiffs allege and challenge “a system of decision-making or widely-held policy”

which includes “USCIS’s policy and practice of arbitrarily and capriciously failing to assess the

merits of Plaintiffs’ petitions and grant interim benefits.” (Doc. No. 12 at 31). Plaintiffs contend

that “USCIS pursues a pattern or policy of delay” that “applies to each of the Plaintiffs in precisely

the same way.” (/d.). Defendants counter that each Plaintiff has “varied circumstances” and

“adjudication of each case turns on individual circumstances associated with establishing

eligibility for the benefit sought.” (Doc. No. 11 at 21-22).

Plaintiffs’ different backgrounds and circumstances do not prevent joinder of their claims

in this case because Plaintiffs do not allege that USCIS’s delay is specific to their individual

applications. “Plaintiffs allege that USCIS’ internal policies and practices have caused an

unreasonable delay in dealing with all applications for a U-visa.” Hernandez, 2025 WL 2264604,

at *4 (Olvera, J.). Since Plaintiffs allege injuries resulting from a common set of policies or

practices by USCIS, the Court finds that Plaintiffs satisfy the same transaction test. Wagner, 2024

WL 1639910, at *2.

ii. Prong Two: Common Question of Law or Fact

Plaintiffs have also satisfied the common question of law or fact test. “This test does not

require the claims to be identical; the presence of a single common question of law or fact is

sufficient.” Wagner, 2024 WL 1639910, at *2. Again, Plaintiffs are not alleging that USCIS’s delay

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is specific to their individual applications. Instead, Plaintiffs allege that “USCIS’s delays are not

owing to any factual difference in Plaintiffs’ petitions, but rather to a systemic failure to assess U

visa petitions within any time certain.” (Doc. No. 12 at 31). Resolution of the remaining claims in

this case is likely to revolve around a common set of operative facts pertaining to USCIS’s internal

policies and practices rather than numerous independent adjudications for each U visa petition.

Hernandez, 2025 WL 2264604, at *4 (Olvera, J.). Accordingly, Plaintiffs have satisfied this second

prong.

For these reasons, Plaintiffs’ claims should not be severed at this time. As the case

progresses, severing Plaintiffs’ claims may, however, become appropriate. Therefore, Defendant’s

Motion to Sever and Dismiss is DENIED without prejudice.

IV. CONCLUSION

Defendant’s Motion to Dismiss or, Alternatively, Motion to Sever and Dismiss is

GRANTED in part and DENIED in part. Plaintiffs’ claims related to the bona fide determination

and the granting of the “bona fide”-related interim benefits of work authorization and deferred

action are DISMISSED without prejudice for lack of subject matter jurisdiction. Plaintiffs’ claims

related to waiting list determination and subsequent deferred action, or parole remain, unsevered.

Defendant’s motion to sever is DISMISSED without prejudice.

The Defendant shall file an answer to the Plaintiffs’ remaining claims on or before

December 12, 2025.

It is so ordered. c

Signed on this the 2‘ _ day of November 2025.

NA I

Andrew S. Hanen

United States District Judge

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