U Visa v. Director, U.S. Citizenship and Immigration Services

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

U VISA APPELLANTS, No. 24-6824

D.C. No.

Plaintiffs - Appellants,

3:23-cv-04657-

RFL

v.

DIRECTOR, U.S. CITIZENSHIP OPINION

AND IMMIGRATION SERVICES,

Defendant - Appellee.

Appeal from the United States District Court

for the Northern District of California

Rita F. Lin, District Judge, Presiding

Argued and Submitted October 23, 2025

San Francisco, California

Filed September 14, 2026

Before: Richard A. Paez, Carlos T. Bea, and Danielle J.

Forrest, Circuit Judges.

Opinion by Judge Forrest;

Partial Concurrence and Partial Dissent by Judge Bea

2 U VISA APPELLANTS V. DIR., USCIS

SUMMARY*

Immigration/Administrative Procedure Act

In a case in which Plaintiffs sued the Director of the

United States Citizenship and Immigration Services

(USCIS) regarding their pending U-visa petitions, the panel

affirmed in part and reversed in part the district court’s

rulings, and remanded.

Plaintiffs are domestic U-visa petitioners who had not

received a decision on their petitions due to the yearly cap

on issuing U visas. Plaintiffs either had been placed on the

U-visa waiting list or received a determination that their visa

petition is “bona fide,” but had not received advance parole,

which would allow them to leave the United States with

permission to return.

Plaintiffs brought claims under the Administrative

Procedure Act (APA). In Claim 1, Plaintiffs whose petitions

had been deemed bona fide (BFD Plaintiffs) asserted that

USCIS had unlawfully delayed or withheld considering

them for the waiting list. In Claim 2, all Plaintiffs asserted

that USCIS had unlawfully delayed or withheld considering

them for advance parole. In Claim 3, Plaintiffs on the

waiting list (WLD Plaintiffs) asserted that they had been

arbitrarily and capriciously denied advance parole.

The panel held that granting parole to waitlisted U-visa

petitioners is discretionary, not mandatory. Under 8 C.F.R.

§ 214.14(d)(2), “USCIS will grant deferred action or parole”

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

U VISA APPELLANTS V. DIR., USCIS 3

to U-visa petitioners “while” they “are on the waiting

list.” Focusing on the word, “while,” Plaintiffs first

contended that if someone on the waiting list travels abroad,

USCIS must consider them for parole to enter (or reenter)

the United States. The panel concluded that, even though

Plaintiffs had not claimed that they planned to travel abroad,

this claim was ripe because the panel could make a firm

prediction based on undisputed evidence that any WLD

Plaintiff who leaves the United States will not be considered

for parole based on their waitlist status. Contrary to

Plaintiffs’ assertion, evidence that USCIS treats “or” in the

phrase “deferred action or parole” as meaning “and/or” for

petitioners who receive favorable waitlist determinations

while abroad and are granted advance parole does not mean

that “or” mandates a grant of both deferred action “and”

parole.

Plaintiffs’ second argument was based on 8 C.F.R.

§ 214.14(d)(3), which provides that a petitioner does not

accrue unlawful presence while on the waiting

list. Although this subsection indicates that USCIS has the

authority to grant advance parole to domestic members on

the waiting list, that does not mean that USCIS is required to

do so. Finally, Plaintiffs argued that because § 214.14(d)(2)

“authorizes” parole for waitlisted petitioners, § 212.5(f)

requires USCIS to issue them advance-parole

documents. The panel rejected this argument as circular.

The panel held that WLD Plaintiffs had standing to claim

that USCIS unlawfully withheld or unreasonably delayed

granting them advance parole (Claim 2) and arbitrarily and

capriciously denied them parole (Claim 3).

However, the panel concluded that the court lacked

statutory jurisdiction over those claims. Claim 2 was based

4 U VISA APPELLANTS V. DIR., USCIS

on a delayed- or non-action theory and was asserted under

§ 706(1) of the APA, which permits a court to “compel

agency action unlawfully withheld or unreasonably

delayed.” However, the APA does not permit courts to order

an agency to take discretionary action. The panel also

concluded that, to the extent that Claim 3 was still pending,

it did not challenge final agency action because there was no

evidence of parole denials. The panel thus affirmed the

district court’s dismissal of the WLD Plaintiffs’ claims.

Finally, the panel addressed the BFD Plaintiffs’

challenge to the rejection of Claim 1, which asserted that

USCIS unlawfully withheld, or unreasonably delayed,

considering them for inclusion on the waitlist. The district

court concluded that the BFD Plaintiffs had not shown an

injury-in-fact because being waitlisted would not

independently entitle them to be considered for parole. The

panel agreed, reasoning that the BFD Plaintiffs failed to

present facts indicating that waitlisted petitioners have more

opportunities to seek parole than non-waitlisted petitioners.

However, the panel concluded that the district court

erred by not considering the BFD Plaintiffs’ alternative

injury-in-fact arguments and remanded for further

proceedings on these issues and, if necessary, the merits of

Claim 1.

Concurring in part and dissenting in part, Judge Bea

joined the part of the opinion affirming the dismissal of the

Plaintiffs’ claim that sought to compel USCIS to grant them

advance parole. However, Judge Bea dissented from the

decision to remand the BFD Plaintiffs’ § 706(1) claim. In

Judge Bea’s view, regardless whether the BFD Plaintiffs had

standing, their claim should be dismissed for lack of

statutory jurisdiction. Their claim, which asserted that

U VISA APPELLANTS V. DIR., USCIS 5

USCIS had “unlawfully withheld” an adjudication of their

eligibility for the waiting list, rested on the assertion that

USCIS was required to conduct waiting-list adjudications

for every pending U-Visa petition. However, there is no

statutory provision or regulation requiring such

adjudications. Judge Bea wrote that the district court should

consider this issue on remand and determine whether

jurisdiction is lacking.

COUNSEL

Brad Banias (argued), Banias Law LLC, Charleston, South

Carolina, for Plaintiff-Appellant.

Aneesa Ahmed (argued) and Marie H. Feyche, Trial

Attorney; Office of Immigration Litigation; Cara E.

Alsterberg, Senior Litigation Counsel; William C. Silvis,

Assistant Director; Yaakov M. Roth, Acting Assistant

Attorney General; United States Department of Justice,

Washington, D.C.; for Defendant-Appellee.

OPINION

FORREST, Circuit Judge:

U visas are issued to crime victims who have suffered

“substantial physical or mental abuse” and “ha[ve] been

helpful, [are] being helpful, or [are] likely to be helpful” to

law enforcement. 8 U.S.C. § 1101(a)(15)(U)(i)–(ii). There is

a significant backlog in the issuance of U visas because

6 U VISA APPELLANTS V. DIR., USCIS

Congress capped the number that may be issued in any given

year. Plaintiffs are a group of over 150 U-visa petitioners

living in the United States who have not received a decision

on their visa petitions because of the statutory cap. Instead,

they have been funneled down one of two interim paths: they

either have been placed on the waiting list for receiving a U

visa or they have received a determination that their U visa

petition is “bona fide.” Both paths have afforded Plaintiffs

some interim benefit, notably deferral of removal and work

authorization. But Plaintiffs have not received advance

parole, which would allow them to leave the United States

with guaranteed permission to return. As a result, Plaintiffs

allege that they have spent years unable to visit family and

friends abroad.

Plaintiffs sued the Director of the United States

Citizenship and Immigration Services (USCIS) under the

Administrative Procedure Act (APA). The Plaintiffs on the

waiting list (WLD Plaintiffs) assert that they have been

arbitrarily and capriciously denied advance parole. The

Plaintiffs whose visa petitions have been deemed bona fide

(BFD Plaintiffs) assert that USCIS has unlawfully delayed

or withheld considering them for the waiting list. And all

Plaintiffs assert that USCIS has unlawfully delayed or

withheld considering them for advance parole. The district

court rejected Plaintiffs’ claims either on the pleadings or at

summary judgment.

We affirm in part, reverse in part, and remand for further

proceedings on the BFD Plaintiffs’ single separate claim.

There is an antecedent question relevant to Plaintiffs’ claims:

whether granting parole to waitlisted U-visa petitioners is

discretionary or mandatory. Because we conclude that parole

is discretionary, we lack jurisdiction under the APA to order

USCIS to consider Plaintiffs for this relief. We also lack

U VISA APPELLANTS V. DIR., USCIS 7

statutory jurisdiction over the WLD Plaintiffs’ separate

claim challenging the denial of parole because they have not

shown that USCIS took final action. As to the BFD

Plaintiffs’ separate claim, the district court correctly held

that their alleged parole-related injuries do not constitute a

sufficient injury-in-fact to confer standing, but the district

court erred by failing to address the BFD Plaintiffs’ other

injury theories, and we remand for it to do so.

U-VISA FRAMEWORK

The U visa was established under the Victims of

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

106-386, § 1513, 114 Stat. 1464 (2000) (codified at 8 U.S.C.

§ 1101(a)(15)(U)). U visas are available for crime victims

(principal petitioners) who have “suffered substantial

physical or mental abuse” from the criminal activity,

“possess[] information concerning” such activity, and

“ha[ve] been helpful, [are] being helpful, or [are] likely to be

helpful” to the authorities, as well as select qualifying family

members (derivatives). 8 U.S.C. § 1101(a)(15)(U)(i)–(ii). U-

visa holders receive lawful nonimmigrant status and work

authorization for up to four years. 8 U.S.C. § 1184(p)(3)(B),

(p)(6); 8 C.F.R. § 274a.12(a)(19).

Only 10,000 U visas may be issued each fiscal year to

principal petitioners. 8 U.S.C. § 1184(p)(2). This statutory

cap has been reached every fiscal year since 2010. I-918,

Petition for U Nonimmigrant Status, U.S. Citizenship &

Immigr. Servs. 1 Currently, USCIS is reviewing petitions

filed in or before April 2017, prioritizing the oldest petitions

first. Id.

1

Available at https://www.uscis.gov/I-918 [ https://perma.cc/324F-

PZUK] (current as of June 5, 2026).

8 U VISA APPELLANTS V. DIR., USCIS

A. Waiting List

To address the backlog of U-visa petitions, USCIS

issued a regulation creating a waiting list and authorizing

two forms of interim relief:

All 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. . . . 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).2 The first form of interim relief—

deferred action—“is an exercise of prosecutorial discretion

that defers the removal of the alien based on the alien’s case

being made a lower priority for removal” and “does not

confer any immigration status.” New Classification for

Victims of Criminal Activity; Eligibility for “U”

Nonimmigrant Status, 72 Fed. Reg. 53014-01, 53015 n.3

(Sept. 17, 2007); 1 U.S. Citizenship & Immigr. Servs.,

Policy Manual, Pt. I, Ch. 1 [hereinafter USCIS Policy

Manual].3 The second form of interim relief—parole—“is

2

The Sixth Circuit has concluded that the act of placing petitioners on

the waitlist is “nondiscretionary per DHS regulations.” Barrios Garcia

v. U.S. Dep’t of Homeland Sec., 25 F.4th 430, 443 (6th Cir. 2022). We

do not address that issue here.

3

Available at https://www.uscis.gov/policy-manual/volume-1-part-i-

chapter-1 [https://perma.cc/L9YJ-D7PL] (current as of May 8, 2026).

Volume 1, Part I (Deferred Action) of the Policy Manual was added

U VISA APPELLANTS V. DIR., USCIS 9

permission given by [the Department of Homeland Security]

that allows an alien to physically enter the United States

temporarily” and “is not deemed to be an admission to the

United States.” 72 Fed. Reg. 53014-01, 53015 n.3; see 8

U.S.C. § 1182(d)(5)(A) (“[P]arole . . . shall not be regarded

as an admission of the alien.”). At issue here is “advance

parole,” which “is an administrative procedure” that

“permit[s] aliens to leave the country and to reenter lawfully

without jeopardizing pending applications for discretionary

relief.”4 Navarro-Aispura v. INS, 53 F.3d 233, 235 (9th Cir.

1995).

B. Bona Fide Determination

Before U-visa petitioners can receive the interim relief

available to those on the waiting list, they must be placed on

the waiting list. But there is also a backlog for waitlist

adjudications. See, e.g., U.S. Citizenship & Immigr. Servs.,

Humanitarian Petitions: U Visa Processing Times 5 (2021).5

during the pendency of this appeal. See U.S. Citizenship & Immigr.

Servs., Policy Alert: Bonafide Determination Process for Victims of

Qualifying Crimes, and Employment Authorization and Deferred Action

for Certain Petitioners (2026),

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

updates/20260508-DeferredAction.pdf [https://perma.cc/C4EW-

5RMC] [hereinafter Deferred Action Policy Alert]; 1 USCIS Policy

Manual, Pt. I, https://www.uscis.gov/policy-manual/volume-1-part-i

[https://perma.cc/ZV57-SS3Z] (last visited May 22, 2026).

4

The parties refer to advance parole as “advance parole,” “advanced

parole,” and “waiting list parole.” We use the term “advance parole.” See

Hassan v. Chertoff, 593 F.3d 785, 788 (9th Cir. 2010).

5

Available at

https://www.uscis.gov/sites/default/files/document/reports/USCIS-

Humanitarian-Petitions.pdf [https://perma.cc/J4DQ-ZV38].

10 U VISA APPELLANTS V. DIR., USCIS

For example, in 2019, it took an average of 41.5 months for

the agency to decide whether a U-visa petitioner should be

placed on the waiting list. See id. In response to the

increasing volume of petitions and the “growing backlog,”

USCIS created an alternative interim process in 2021:

USCIS will “provide [Employment Authorization

Documents (EAD)] and deferred action to noncitizens with

pending, bona fide petitions who meet certain discretionary

standards.” U.S. Citizenship & Immigr. Servs., Policy Alert:

Bonafide Determination Process for Victims of Qualifying

Crimes, and Employment Authorization and Deferred Action

for Certain Petitioners 2 (2021).6

The first step in this alternative interim process is for

USCIS to decide whether a petition is bona fide. According

to USCIS’s Policy Manual, a principal petitioner’s

application (Form I-918) is bona fide if it is complete and the

agency has received the petitioner’s background and security

results from biometric screening. 3 USCIS Policy Manual,

Pt. C, Ch. 5.7 USCIS then determines whether the petitioner

poses a risk to national security or public safety and

considers other relevant discretionary factors before

granting any interim relief.8 Id. Bona fide determinations are

6

Available at

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

updates/20210614-VictimsOfCrimes.pdf [https://perma.cc/YM7K-

PMJD].

7

Available at https://www.uscis.gov/policy-manual/volume-3-part-c-

chapter-5 [https://perma.cc/HQ9G-KKBA] (current as of May 8, 2026).

8

The new Deferred Action Part I enumerates 15 discretionary

considerations. 1 USCIS Policy Manual, Pt. I, Ch. 5,

https://www.uscis.gov/policy-manual/volume-1-part-i-chapter-5

U VISA APPELLANTS V. DIR., USCIS 11

made for derivative petitioners as well. Id. If a petitioner

receives relief under the bona-fide-determination path,

“USCIS generally does not conduct waiting list

adjudications.” Id. But if USCIS declines to exercise its

discretion to grant interim relief to a petitioner with an

otherwise bona fide petition, the petitioner “is evaluated for

waiting list eligibility and still has the opportunity to obtain

employment authorization and a grant of deferred action if

deemed eligible for waiting list placement.” Id.

Although petitioners who receive a favorable bona fide

determination may, like all noncitizens (including those on

the waiting list), seek parole at a port of entry or by filing a

USCIS Form I-131, there is no separate provision in

USCIS’s policies for petitioners who receive a favorable

bona fide determination to apply for parole based on that

determination. See 3 USCIS Policy Manual, Pt. C, Ch. 5.

And only those who are waitlisted receive complete visa-

eligibility determinations. 3 USCIS Policy Manual Pt. C,

Ch. 6 (“While the BFD process does not include a full

analysis of eligibility requirements, USCIS conducts a full

adjudication necessary to determine eligibility for U

nonimmigrant status as part of the waiting list process.”).9

BACKGROUND

A. Plaintiffs’ Claims

Plaintiffs are U-visa petitioners (principal and

derivative) who reside in the United States. A few have

[https://perma.cc/U5LX-FG8Q] (last updated May 8, 2026); see supra

n.3.

9

Available at https://www.uscis.gov/policy-manual/volume-3-part-c-

chapter-6 [https://perma.cc/XTD8-AUBE] (current as of May 8, 2026).

12 U VISA APPELLANTS V. DIR., USCIS

received favorable waitlist determinations, but most have

received only a favorable bona fide determination. Because

all Plaintiffs received favorable interim determinations, they

have all received deferred action and employment

authorization.

Plaintiffs assert three claims against USCIS under the

APA. First, the BFD Plaintiffs allege that the agency

“unlawful[ly] withh[eld] or unreasonabl[y] delay[ed]

waiting list decisions.” Second, all Plaintiffs allege that the

agency “unlawful[ly] withh[eld] or unreasonabl[y]

delay[ed] . . . waiting list parole.” And third, the WLD

Plaintiffs assert that the agency “arbitrar[ily] and

capricious[ly] deni[ed] advanced parole.” Claims 1 and 2 are

brought under § 706(1) of the APA, which permits courts to

“compel agency action unlawfully withheld or unreasonably

delayed,” 5 U.S.C. § 706(1), so long as the challenged action

is nondiscretionary, Norton v. S. Utah Wilderness All.

(SUWA), 542 U.S. 55, 64 (2004). Claim 3 was brought under

§ 706(2), which permits courts to “hold unlawful and set

aside agency action, findings, and conclusions” for one of

several enumerated reasons. 5 U.S.C. § 706(2).

B. Motion to Dismiss

USCIS moved to dismiss all three claims for lack of

standing and subject-matter jurisdiction, and, alternatively,

to dismiss Claims 2 and 3 for failure to state a claim. As to

the BFD Plaintiffs, the district court rejected USCIS’s

standing challenge but dismissed the joint Claim 2 as to

them, reasoning that their challenge to the withholding or

delay of advance parole based on waiting list status was not

ripe. As to the WLD Plaintiffs, the district court concluded

that they have standing, but it dismissed their challenges to

the withholding or denial of advance parole because courts

U VISA APPELLANTS V. DIR., USCIS 13

cannot compel an agency to take discretionary action and

because the WLD Plaintiffs failed to plead that they sought

and were denied parole. Thus, the district court allowed only

Claim 1, brought by the BFD Plaintiffs, to proceed past the

pleading stage.

C. Motions for Summary Judgment

The parties subsequently cross-moved for summary

judgment on Claim 1. The BFD Plaintiffs divided the claim

into two subparts: (a) unlawful withholding of waitlist

determinations and (b) unreasonable delay in issuing waitlist

determinations. They argued that USCIS violated its duty to

consider them for the waiting list as a matter of law.

Recognizing that whether USCIS has a duty to consider

petitioners who have received a favorable bona fide

determination for inclusion on the waiting list controls

whether the agency unreasonably delayed making waitlist

determinations (and that the unreasonable-delay question

would require discovery), the BFD Plaintiffs did not move

for summary judgment on that portion of the claim.

USCIS moved for summary judgment on the entirety of

Claim 1, again asserting that the BFD Plaintiffs lacked

standing. USCIS presented a declaration from Sharon Orise,

the Adjudications Division Chief for USCIS’s Service

Center Operations Directorate. Orise stated that “USCIS, as

a matter of discretion, may issue an Advance Parole

Document to a noncitizen who is currently inside the United

States who seeks to travel abroad,” but the agency “has not

used this authority to provide advance parole to individuals

inside the United States based on placement on the U visa

waiting list.” She further explained that “[p]lacement on the

waiting list does not create a separate basis on which to apply

for advance parole.” Rather, “U visa petitioners inside the

14 U VISA APPELLANTS V. DIR., USCIS

United States will only be considered for deferred action,”

and “[o]nce deferred action has been granted to a noncitizen

on the waiting list, no further mechanism exists for them to

apply for[] or be considered for parole based on their

placement on the waiting list.”

The district court raised a concern, however, that Orise

had “not squarely address[ed]” Plaintiffs’ argument “that

these rules only applied to applications for advance parole

that were made while in the United States” because “U visa

petitioners on the waiting list in the United States could

travel abroad . . . [and] seek either parole at the border or

advance parole at an embassy or consulate abroad, and then

receive such parole to reenter the United States based on

their waiting list status.” But the district court also noted that

Plaintiffs had not presented any evidence supporting their

assertion that waitlisted petitioners in the United States could

subsequently travel abroad and receive parole due to their

waitlist status.

The district court gave the parties an opportunity to

submit supplemental evidence on this issue. The Plaintiffs

failed to do so, conceding that they have “no evidence of U

visa petitioners living in the United States who received

waiting list decisions and were able to obtain parole to travel

abroad by virtue of their placement on the waiting list.”

Instead, they presented evidence of principal petitioners who

had received bona fide determinations being waitlisted as a

result of litigation so that their derivative petitioners located

abroad could be considered for waitlist placement and parole

to enter the United States and evidence of parole being

U VISA APPELLANTS V. DIR., USCIS 15

granted to a principal petitioner who received a waitlist

determination while residing outside the United States.10

USCIS submitted a supplemental declaration from Orise

explaining that if a U-visa petitioner with a waitlist

determination or a bona fide determination were to leave and

try to re-enter the United States, they would receive no

benefit from either determination in applying for parole.

Petitioners located in the United States when placed on the

waiting list “are considered for deferred action and are not

subsequently considered for parole even if they depart the

United States” thereafter. Orise acknowledged that there

have been instances when domestic petitioners with bona

fide determinations have received waitlist determinations

because of legal action pending against USCIS, but the

purpose was to allow derivative family members located

abroad to enter the United States while the primary applicant

waited for a U visa. In these situations, the principal

petitioner was not considered for parole if they were placed

on the waiting list while in the United States and the

derivative family members were converted to deferred

action after they entered the United States because parole

only permits an entry into the country.11 See 72 Fed. Reg.

53014-01, 53015 n.3.

10

These circumstances are not present here because all Plaintiffs reside

in the United States and none of them have alleged that they have a

derivative petitioner located abroad. We, therefore, have no occasion to

consider the scope of USCIS’s regulatory obligations towards principal

or derivative petitioners who reside abroad.

11

During the summary judgment proceedings, USCIS moved to dismiss

BFD Plaintiff Haroon Ishtiaq’s claim as moot because he received a

waitlist determination due to litigation involving his overseas

derivatives. Ishtiaq did not dispute that his waitlist determination mooted

Claim 1 as to him, but he argued that he (like the WLD Plaintiffs) is

16 U VISA APPELLANTS V. DIR., USCIS

The district court granted USCIS’s motion for summary

judgment, concluding that the BFD Plaintiffs had not shown

they suffered an injury-in-fact, as required for standing. The

district court found that “the undisputed evidence”

established that placement on the waiting list would have

“no impact whatsoever on the ability of a U visa petitioner

in the United States to seek advance parole” and would not

give the BFD Plaintiffs “any advantage in the consideration

for parole,” and also concluded that being placed on the

waiting list does not entitle petitioners to parole. The district

court also denied the WLD Plaintiffs’ motion for

jurisdictional discovery.

Plaintiffs timely appealed the district court’s rulings.

DISCUSSION

We have appellate jurisdiction over this appeal under 28

U.S.C. § 1291. We review de novo the district court’s

dismissal of Claims 2 and 3. E.g., Osheske v. Silver Cinemas

Acquisition Co., 132 F.4th 1110, 1113 (9th Cir. 2025);

Twitter, Inc. v. Paxton, 56 F.4th 1170, 1173 (9th Cir. 2022).

Likewise, we review de novo the district court’s grant of

summary judgment for USCIS on Claim 1 based on lack of

standing. Hajro v. U.S. Citizenship & Immigr. Servs., 811

F.3d 1086, 1098 (9th Cir. 2016). But we review “[t]he

district court’s factual findings on jurisdictional issues” for

clear error. Id.

Because the nature of parole for waitlisted U-visa

petitioners—whether it is discretionary or mandatory—is

entitled to advance parole. Because the court had already dismissed the

WLD Plaintiffs’ claims, it granted USCIS’s motion to dismiss Ishtiaq.

While it is clear Ishtiaq may not proceed as a BFD Plaintiff, USCIS does

not dispute that he may now proceed as a WLD Plaintiff.

U VISA APPELLANTS V. DIR., USCIS 17

foundational to Plaintiffs’ claims, we start there. We then

consider whether the district court erred in dismissing the

WLD Plaintiffs’ claims and granting summary judgment for

USCIS on the BFD Plaintiffs’ Claim 1.

A. Waitlist Determinations

The U-visa waitlist procedure is governed by regulation.

Of particular relevance, the regulations provide: “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). Plaintiffs make three

arguments for why USCIS is legally mandated to grant

parole to all waitlisted petitioners. We consider these

arguments in turn.12

1. Ongoing-Duty Theory

Plaintiffs first advance an ongoing-duty theory that

focuses on the phrase “while the U-1 petitioners are on the

12

USCIS contends that whether to grant parole to waitlisted petitioners

is a matter of discretion and, as such, we lack subject-matter jurisdiction

under 8 U.S.C. § 1252(a)(2)(B)(ii), which prohibits courts from

reviewing discretionary “decision[s] or action[s] of the Attorney General

or the Secretary of Homeland Security.” However, “a federal court

always has jurisdiction to determine its own jurisdiction.” United States

v. Ruiz, 536 U.S. 622, 628 (2002); see also Hassan, 593 F.3d at 789–90

(addressing § 1152(a)(2)(B)(ii) only after determining the challenged

action was discretionary). Because we ultimately conclude that we lack

statutory jurisdiction over the WLD Plaintiffs’ claims and remand for the

district court to determine Article III jurisdiction over the BFD Plaintiffs’

claims, we do not consider whether 8 U.S.C. § 1252(a)(2)(B)(ii)’s

jurisdictional limitations apply to Plaintiffs’ claims.

18 U VISA APPELLANTS V. DIR., USCIS

waiting list.”13 Id. (emphasis added). Plaintiffs assert that the

word “while” means “throughout the time that” or “as long

as” and, therefore, USCIS must “grant parole or

consideration for parole for overseas members of the waiting

[list] for as long as the principal U visa applicant is on the

waiting list.” In other words, Plaintiffs contend that if

someone on the waiting list travels abroad, regardless of

where they were when they were waitlisted, USCIS must

consider them for parole to enter (or reenter) the United

States.

USCIS summarily argues that Plaintiffs’ ongoing-duty

theory is not ripe because they all reside in the United States

and have not alleged that they have plans to travel abroad.

The ripeness doctrine, drawn from both Article III and

prudential concerns, serves “to prevent the courts, through

avoidance of premature adjudication, from entangling

themselves in abstract disagreements over administrative

policies” and “to protect the agencies from judicial

interference until an administrative decision has been

formalized and its effects felt in a concrete way by the

challenging parties.” Nat’l Park Hosp. Ass’n v. Dep’t of

Interior, 538 U.S. 803, 807–08 (2003) (quoting Abbott

Lab’ys v. Gardner, 387 U.S. 136, 148–49 (1967)). For cases

raising ripeness challenges to “benefit-conferring

regulation[s],” we have adopted the “firm prediction” rule:

13

The parties disagree on whether Plaintiffs’ argument about the

ongoing-duty theory was properly preserved for appeal. Even if this

argument was forfeited, we exercise our discretion to address it because

it is a pure question of law, the district court addressed it on the merits,

and it was fully briefed by the parties. See Ruiz v. Affinity Logistics

Corp., 667 F.3d 1318, 1322 (9th Cir. 2012) (quoting In re Mercury

Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010)).

U VISA APPELLANTS V. DIR., USCIS 19

If it is inevitable that the challenged rule will

operate to the plaintiff’s disadvantage—if the

court can make a firm prediction that the

plaintiff will apply for the benefit, and that

the agency will deny the application by virtue

of the rule—then there may be a justiciable

controversy that the court may find prudent

to resolve.

Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431,

1435–36 (9th Cir. 1996) (citation modified) (quoting Reno

v. Catholic Social Servs., Inc., 509 U.S. 43, 69 (1993)

(O’Connor, J., concurring)). Here, we can make a “firm

prediction” based on USCIS’s undisputed evidence that any

WLD Plaintiff who leaves the United States will not be

considered for, or granted, parole based on their waitlist

status (or lack thereof). Cf. Pakdel v. City & County of San

Francisco, 594 U.S. 474, 479 (2021) (per curiam) (“Once

the government is committed to a position . . . , potential

ambiguities evaporate and the dispute is ripe for judicial

resolution.”). Accordingly, the dispute about whether it is

lawful to withhold parole from waitlisted U-visa petitioners

is ripe.

“Regulations are interpreted according to the same rules

as statutes, applying traditional rules of construction,” and

our “starting point is the plain language.” United States v.

Shih, 73 F.4th 1077, 1092 (9th Cir. 2023) (citation

modified). The waitlist regulation provides that “USCIS will

grant deferred action or parole.” 8 C.F.R. § 214.14(d)(2)

(emphasis added). “The ordinary and contemporary meaning

of the term [‘or’] is sometimes ‘either . . . or . . . but not both’

and other times ‘and/or,’” which could permit both. United

States v. Gallegos, 613 F.3d 1211, 1215 (9th Cir. 2010). But

20 U VISA APPELLANTS V. DIR., USCIS

“[w]e have consistently defined ‘or’ as indicating separate

alternatives.” Id.; see U.S. Commodity Futures Trading

Comm’n v. Monex Credit Co., 931 F.3d 966, 976 (9th Cir.

2019) (“When Congress places ‘or’ between two words, we

assume that Congress intended the two terms as

alternatives.”); Encino Motorcars, LLC v. Navarro, 584 U.S.

79, 87 (2018) (explaining that “‘or’ is ‘almost always

disjunctive’” and is naturally read to connect alternatives

(citation omitted)); Azure v. Morton, 514 F.2d 897, 900 (9th

Cir. 1975) (“As a general rule, the use of a disjunctive in a

statute indicates alternatives and requires that they be treated

separately.”).

Contrary to Plaintiffs’ assertion, the evidence that

USCIS treats “or” as meaning “and/or” for petitioners who

receive favorable waitlist determinations while living abroad

such that they are granted parole in order to enter the United

States does not mean that “or” mandates “and.” “And/or”

(which permits “A or B or both”) is not equivalent to “and”

(which requires both A and B). See Antonin Scalia & Bryan

A. Garner, Reading Law: The Interpretation of Legal Texts,

Ch. 12 (1st ed. 2012). Regardless of whether the waitlist

regulation is best read to say either that “USCIS will grant

deferred action or parole” or that “USCIS will grant deferred

action or parole [or both],” neither reading leads to the

conclusion that USCIS must grant parole to petitioners who

have been granted deferred action while in the United

States.14

14

One of our sister circuits recently reached a similar conclusion in an

unpublished decision. See Arenales-Salgado-De-Oliveira v. Dir., U.S.

Citizenship & Immigr. Servs., No. 24-12360, 2026 WL 2043163, at *7–

8 (11th Cir. 2026) (per curiam). Several district courts have also reached

similar conclusions. See Argueta v. Jaddou, No. 4:23-CV-3002, 2023

U VISA APPELLANTS V. DIR., USCIS 21

Additionally, we are unpersuaded by Plaintiffs’ assertion

that, because the regulation states that petitioners will be

granted deferred action or parole “while” on the waiting list,

USCIS must grant parole based on a petitioner’s choice to

leave the country after being placed on the waitlist and

receiving deferred action. Accepting Plaintiff’s definition

that “while” means “throughout the time that; as long as,”

that meaning does not require USCIS, after granting

functional interim relief pursuant to 8 C.F.R. § 214.14(d)(2),

to change the relief granted based on a petitioner’s chosen

location. 15 There is no evidence that USCIS withdraws a

petitioner’s deferred-action status when she leaves the

country—the petitioner simply does not benefit from this

relief while abroad. Cf. Arenales-Salgado-De-Oliveira v.

Dir., U.S. Citizenship & Immigr. Servs., No. 24-12360, 2026

WL 2043163, at *8 (11th Cir. 2026) (per curiam) (explaining

that the petitioners’ argument that domestic WLD holders

WL 8082113, at *8 (D. Neb. Nov. 21, 2023) (“[I]ndividuals who have

received favorable WLDs are entitled to ‘deferred action or parole,’ not

both.”); Kothari v. Dir. of U.S. Citizenship & Immigr. Servs., No. 3:24-

C-50101, 2025 WL 732075, at *7–8 (N.D. Ill. Jan. 24, 2025) (rejecting

Plaintiff’s reading of § 214.14(d)(2) that would have the court find “that

USCIS must grant both deferred action and parole”). The court in

Kothari specifically addressed the argument that Plaintiffs make here

about petitioners who were granted parole when placed on the waiting

list while located overseas and then later granted deferred action: “First,

and most obviously, the fact that USCIS sometimes grants both parole

and deferred action to members of the waiting list living abroad is not

evidence that USCIS must grant both to all waitlisted petitioners: it is

merely an example of USCIS’s exercising its discretion.” 2025 WL

732075, at *8.

15

Again, because all Plaintiffs in this case reside in the United States, we

have no occasion to decide the scope of 8 C.F.R. § 214.14(d)(2)’s

requirements for petitioners or derivatives initially placed on the waitlist

while overseas.

22 U VISA APPELLANTS V. DIR., USCIS

would travel abroad and “no longer have deferred action”

was “a hypothetical” and irrelevant when all the petitioners

were present in the United States). And where a waitlisted

petitioner has been granted deferred action while residing in

the United States, the waitlist regulation is satisfied because

the petitioner has received one of the remedies while on the

waiting list.

2. Section 214.14(d)(3)

Plaintiffs also argue that the next subsection of the

waitlist regulation—§ 214.14(d)(3)—“only works if all

members of the waiting list are entitled to parole.” Section

214.14(d)(3) concerns a U-visa petitioner’s accrual of

unlawful presence in the United States. It provides that

“[d]uring the time a petitioner . . . who was granted deferred

action or parole is on the waiting list,” she will not accrue

unlawful presence. 8 C.F.R. § 214.14(d)(3).

Plaintiffs do not explain why this subsection must be

read to reach their conclusion that parole is mandatory for

domestic petitioners who have been placed on the waiting

list. It is true that, because unlawful presence accrues only

while a noncitizen is present in the United States,

subdivision (d)(3) does not apply to waitlist members who

are abroad. Thus, the inclusion of “parole” in a subdivision

applicable only to waitlist members in the United States

contemplates that USCIS could exercise its discretion and

adopt a process to grant these individuals advance parole.

But Plaintiffs overread the regulatory text. Specifically, they

provide no reason why subsection (d)(3) should be construed

as requiring parole for domestic members on the waiting list.

That this subsection indicates USCIS has the legal authority

to adopt such a process does not mean that USCIS is required

U VISA APPELLANTS V. DIR., USCIS 23

to do so. Without any development, Plaintiffs’ argument on

this point is unpersuasive.

3. Section 212.5(f)

Finally, Plaintiffs argue that because § 214.14(d)(2)

“authorizes” parole for waitlisted petitioners, § 212.5(f)

requires USCIS to issue them advance-parole documents.

Section 212.5(f), titled “Advance Authorization,” states:

“When parole is authorized for an alien who will travel to

the United States without a visa, the alien shall be issued an

appropriate document authorizing travel.” According to

Plaintiffs, because the waitlist regulation permits the agency

to grant parole to petitioners on the waiting list, all waitlisted

petitioners are “authorized” for parole, thereby triggering

§ 212.5(f).

This is a circular argument, presupposing that whenever

USCIS is authorized to grant parole, it must do so.

“Authorized” means to be “endowed with authority;

sanctioned by authority; having or done with legal or official

approval.” Authorized, Merriam-Webster.16 Just because an

agency can do something, does not mean that it must.

Section 212.5(f) cannot reasonably be interpreted as

requiring USCIS to grant parole under § 214.14(d)(2) for

waitlisted petitioners. Only when USCIS has decided to

exercise its power to grant “legal or official approval” for

parole is a petitioner “authorized” for parole and entitled to

receive parole documents under § 212.5(f). This

interpretation is consistent with our prior conclusion that

Congress gave the Secretary of Homeland Security

discretion to grant parole under 8 U.S.C. § 1182(d)(5). See,

16

Available at https://www.merriam-webster.com/dictionary/authorized

[https://perma.cc/FS5L-46S2] (last visited Feb. 3, 2026).

24 U VISA APPELLANTS V. DIR., USCIS

e.g., Hassan v. Chertoff, 593 F.3d 785, 789–90 (9th Cir.

2010); see also Arenales-Salgado, 2026 WL 2043163, at *8

(“Just because [deferred action and parole] are available for

the [USCIS] to choose from does not mean that [it] has

authorized one or the other for any particular U-visa

petitioner.”).

In sum, Plaintiffs’ arguments that USCIS is required to

grant parole to waitlisted U-visa petitioners fail to persuade.

And we reach the contrary conclusion: the governing

regulation grants USCIS discretion to grant parole; it does

not mandate that USCIS grant this relief. With this

foundational issue resolved, we now turn to the Plaintiffs’

claims.

B. WLD Plaintiffs’ Claims

The WLD Plaintiffs assert that USCIS unlawfully

withheld or unreasonably delayed granting them advance

parole (Claim 2) and arbitrarily and capriciously denied

them advance parole (Claim 3). On appeal, the WLD

Plaintiffs collapsed these claims, arguing only that they must

be considered for advance parole. 17 USCIS re-raises its

standing challenge, asserting that because the court cannot

compel USCIS to grant advance parole, any claimed injury

is not redressable.

17

The phrase “arbitrary and capricious” does not appear anywhere in the

Opening Brief and is used only in reference to the BFD Plaintiffs in the

Reply Brief. Therefore, arguably the WLD Plaintiffs have abandoned

Claim 3. See Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir.

2017).

U VISA APPELLANTS V. DIR., USCIS 25

1. Standing

Article III of the Constitution limits the judicial power of

courts to hearing “cases” and “controversies.” U.S. Const.

art. III, § 2; Lujan v. Defs. of Wildlife, 504 U.S. 555, 559

(1992). The standing doctrine is one means of “identify[ing]

those disputes which are appropriately resolved through the

judicial process.” Lujan, 504 at 560 (citation omitted). The

Supreme Court has held “that the irreducible constitutional

minimum of standing contains three elements”: (1) “injury

in fact—an invasion of a legally protected interest which is

(a) concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical”; (2) causation—“a causal

connection between the injury and the conduct complained

of”; and (3) redressability—that it is “likely, as opposed to

merely speculative, that the injury will be redressed by a

favorable decision.” Id. at 560–61 (citation modified).

“As a general rule, when the question of jurisdiction and

the merits of the action are intertwined, dismissal for lack of

subject matter jurisdiction is improper.” See Williston Basin

Interstate Pipeline Co. v. Exclusive Gas Storage Leasehold

& Easement in Cloverly Subterranean, 524 F.3d 1090, 1094

(9th Cir. 2008) (internal quotation marks and alterations

omitted) (quoting Safe Air for Everyone v. Meyer, 373 F.3d

1035, 1039 (9th Cir. 2004)). As we explained in Williston

Basin,

“[I]f the right of the petitioners to recover

under their complaint will be sustained if the

Constitution and laws of the United States are

given one construction and will be defeated if

they are given another,” then the court has

26 U VISA APPELLANTS V. DIR., USCIS

jurisdiction over the dispute, and cannot

dismiss on jurisdictional grounds.

Id. (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 89 (1998)). The party invoking federal jurisdiction bears

the burden of proving standing. Lujan, 504 U.S. at 561.

Here, USCIS argues the WLD Plaintiffs cannot satisfy

the first or third elements of standing. We disagree. The

proper interpretation of the waitlist regulation dictates

whether the WLD Plaintiffs have been injured by USCIS not

considering them for advance parole and whether that injury

is redressable. Neither USCIS nor the district court

addressed causation, but “we have an independent obligation

to consider” each element of standing. See Bowen v.

Energizer Holdings, Inc., 118 F.4th 1134, 1149 (9th Cir.

2024) (quoting ACLU of Nev. v. Lomax, 471 F.3d 1010, 1015

(9th Cir. 2006)). We conclude that the WLD Plaintiffs have

demonstrated a “causal connection between the injury”

(withholding of parole) “and the conduct complained of”

(USCIS not affording waitlisted petitioners advance parole).

Lujan, 504 U.S. at 560 (citation omitted). Thus, the WLD

Plaintiffs have standing to bring their claims.

2. Statutory Jurisdiction

With Article III satisfied, we next consider whether we

have statutory jurisdiction over the WLD Plaintiffs’ claims.

The APA permits judicial review only of final agency action.

5 U.S.C. § 704; SUWA, 542 U.S. at 62–63.18 An agency’s

18

We have treated the finality requirement as both an issue of ripeness

and “an independent jurisdictional requirement.” Ukiah Valley Med. Ctr.

v. F.T.C., 911 F.2d 261, 264 n.1 (9th Cir. 1990). No matter how it is

classified, “a finding of finality, or of an applicable exception, is

U VISA APPELLANTS V. DIR., USCIS 27

ongoing policy or program generally is not itself a final

agency action under the APA. See, e.g., Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 890–91 (1990); Cobell v.

Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001). An exception

exists where “plaintiffs claim that a governmental action was

unlawfully withheld or unreasonably delayed” because

agencies cannot “effectively prevent judicial review of their

policy determinations by simply refusing to take final

action.” Cobell, 240 F.3d at 1095.

Here, Claim 2 is based on a delayed- or non-action

theory and is asserted under § 706(1) of the APA, which

permits a court to “compel agency action unlawfully

withheld or unreasonably delayed.” Although a “failure to

act” is treated as final action in this context, we have

jurisdiction over a § 706(1) claim “only where a plaintiff

asserts that an agency failed to take a discrete agency action

that it is required to take.” SUWA, 542 U.S. at 64; see San

Luis Unit Food Producers v. United States, 709 F.3d 798,

803–04 (9th Cir. 2013). Because USCIS is not required to

grant parole to domestic waitlisted U-visa petitioners that

were granted deferred action, we lack statutory jurisdiction

over the WLD Plaintiffs’ claim seeking to compel USCIS to

take this action.

To the extent that Claim 3, which alleges USCIS

arbitrarily and capriciously denied WLD Plaintiffs advance

parole, is still pending, it likewise does not challenge final

agency action. This claim was brought under § 706(2) of the

APA, which allows courts to “hold unlawful or set aside

agency action” that is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law.” 5

essential when the court’s reviewing authority depends on one of the

many statutes permitting appeal only of ‘final’ agency action.” Id.

28 U VISA APPELLANTS V. DIR., USCIS

U.S.C. § 706(2)(A). But the WLD Plaintiffs offer no

evidence of any final “action, findings, [or] conclusions” by

USCIS denying them parole. See 5 U.S.C. § 706(2). As the

district court concluded, the WLD Plaintiffs do not allege or

present any evidence that they requested advance parole or

that USCIS denied them advance parole. And as previously

discussed, USCIS’s grant of deferred action to petitioners on

the waitlist does not preclude it from also granting parole

under either § 214.14(d)(2) or under the processes available

to all noncitizens attempting to enter the United States.

While Orise’s declaration indicates that, as a matter of

policy, waitlisted domestic petitioners are not given parole,

the application of this policy alone is not enough to establish

final agency action. See Cobell, 240 F.3d at 1095.

For these reasons, we affirm the district court’s dismissal

of the WLD Plaintiffs’ claims.19

C. BFD Plaintiffs’ Claim

Finally, the BFD Plaintiffs challenge the rejection of

Claim 1, which asserts that USCIS unlawfully withheld, or

unreasonably delayed, considering them for inclusion on the

waitlist. On summary judgment, the district court concluded

that the BFD Plaintiffs had not shown an injury-in-fact

sufficient to establish standing because being waitlisted

would not independently entitle them to be considered for

parole under current USCIS policy. Plaintiffs counter that

they have standing to challenge the bona-fide-determination

policy because waitlisted petitioners are entitled to parole

19

Because the APA’s jurisdictional limits are dispositive, we do not

address the parties’ additional arguments about 8 U.S.C.

§ 1252(a)(2)(B)(ii)’s jurisdictional limitations.

U VISA APPELLANTS V. DIR., USCIS 29

and they have suffered other injuries by not receiving a

waitlist determination.

The lost opportunity to pursue a benefit—even where the

government retains discretion to ultimately deny the

benefit—can be a constitutionally cognizable procedural

injury. See, e.g., Serrato v. Clark, 486 F.3d 560, 566–67 (9th

Cir. 2007); Abboud v. INS, 140 F.3d 843, 847 (9th Cir.

1998); see generally 13A Wright & Miller’s Federal Practice

and Procedure § 3531.4 (3d ed. 2025) (collecting cases). To

constitute a sufficient injury to establish standing, the

deprivation of a procedural right must “affect the plaintiff in

a personal and individual way” and “actually exist.”

Chennette v. Porch.com, Inc., 50 F.4th 1217, 1221 (9th Cir.

2022) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 339

(2016)). The Supreme Court has made clear that “without

some concrete interest that is affected by the deprivation—a

procedural right in vacuo—is insufficient to create Article

III standing.” Summers v. Earth Island Inst., 555 U.S. 488,

496 (2009); see Spokeo, 578 U.S. at 340–42. Therefore, here

the BFD Plaintiffs must demonstrate that their “concrete

interest” was adversely affected by being deprived of a

waitlist determination.20 See Summers, 555 U.S. at 496.

20

Some courts have concluded that there can be no standing “when there

is no plausible prospect that any benefit would have resulted from the

foreclosed opportunity.” Wright & Miller, supra. (collecting cases). We

have not explicitly adopted this rationale in relation to the injury-in-fact

requirement, but we have discussed a similar concept in the

redressability context: “Redressability is satisfied so long as the

requested remedy would amount to a significant increase in the

likelihood that the plaintiff would obtain relief that directly redresses the

injury suffered.” Matsumoto v. Labrador, 122 F.4th 787, 801 (9th Cir.

2024) (citation modified). Other courts have discussed the lack of

plausible relief if the alleged lost opportunity were provided in both

30 U VISA APPELLANTS V. DIR., USCIS

1. Ability to Obtain Parole

The BFD Plaintiffs first assert that receiving a favorable

bona-fide determination but not a waitlist determination

undermines their ability to obtain advance parole. This

claimed injury does not meet Article III’s injury-in-fact

requirement. The district court found that the undisputed

facts established that U-visa petitioners with waitlist

determinations who have received deferred action and U-

visa petitioners with bona-fide determinations who have

received deferred action are in the same position with respect

to parole—neither determination impacts whether advance

parole will be granted. The Orise declarations provide

uncontroverted evidence that domestic U-visa petitioners are

not considered for parole and that being waitlisted does not

provide petitioners who have received deferred action a

separate pathway to obtain parole, regardless of whether

parole is requested before or after departing the United

States.

Because the BFD Plaintiffs failed to present facts

indicating that waitlisted petitioners have more opportunities

to seek parole than non-waitlisted petitioners or that

injury and redressability analyses. See, e.g., Ranger Cellular v. F.C.C.,

348 F.3d 1044, 1050 (D.C. Cir. 2003) (injury and redressability); Friends

for Ferrell Parkway, LLC v. Stasko, 282 F.3d 315, 324–25 (4th Cir.

2002) (injury); Carroll v. Hill, 37 F.4th 1119, 1122 (6th Cir. 2022)

(injury); see also Kothari, 2025 WL 732075, at *11 (finding that the lost

opportunity to be considered for parole is an injury, but that it is not

redressable); Argueta, 2023 WL 8082113, at *8 (finding no injury-in-

fact because plaintiffs with BFDs would not gain anything by receiving

WLDs, so it is a bare procedural injury). We need not decide whether the

plausibility of relief is properly considered in assessing whether there is

an injury-in-fact because here the undisputed evidence definitively

establishes that the BFD Plaintiffs did not lose additional opportunities

to obtain parole.

U VISA APPELLANTS V. DIR., USCIS 31

placement on the waitlist creates “any opportunity to be

considered for parole that was previously unavailable” to

domestic BFD Plaintiffs, their lost-parole-opportunity

theory of injury necessarily fails.

2. Other Injury Theories

Although the district court addressed only the BFD

Plaintiffs’ alleged parole-related injury, Plaintiffs have

advanced various other alleged harms resulting from the

deprivation of a WLD. They assert that (1) the bona-fide-

determination interim path delays adjudication of their

eligibility for a U visa, risking loss of evidence, unlike

petitioners placed on the waitlist, who receive full eligibility

determinations at the time of adjudication and are

subsequently reviewed for “continuing eligibility,” 3 USCIS

Policy Manual Pt. C, Ch. 7 21 ; (2) unlawful presence is

accrued following a bona fide determination but not a

waitlist determination; and (3) the bona-fide-determination

path is a creature of policy, and therefore subject to

rescission and change, while the waiting-list path is

governed by regulation. 22 Relevant to the last point,

21

Available at https://www.uscis.gov/policy-manual/volume-3-part-c-

chapter-7 [https://perma.cc/C8SJ-ZMN6] (current as of Aug. 12, 2026).

22

Because we remand for further consideration of the BFD Plaintiffs’

alternative injury-in-fact arguments, we need not decide whether to

excuse Plaintiffs’ forfeiture of their unlawful-presence argument, which

was raised for the first time in their Reply brief, or whether USCIS

waived a forfeiture defense by discussing this issue at oral argument and

offering to submit supplemental briefing. See, e.g., Smith v. U.S.

Customs & Border Prot., 741 F.3d 1016, 1020 n.2 (9th Cir. 2014) (“[W]e

generally decline to consider new arguments raised for the first time on

appeal, especially when they are raised for the first time in the reply

brief.” (citations omitted)); United States v. Ngumezi, 980 F.3d 1285,

1288 (9th Cir. 2020) (“But the government has not made a forfeiture

32 U VISA APPELLANTS V. DIR., USCIS

Plaintiffs highlighted the unstable nature of the BFD Policy

in a recent letter alerting the Court of USCIS’s Policy Alert

about changes to deferred action and the accrual of unlawful

presence for those with deferred action. See Deferred Action

Policy Alert, supra, n.3.

Because the district court did not address the BFD

Plaintiffs’ alternative injury-in-fact arguments, USCIS has

not meaningfully addressed these arguments, and the recent

USCIS policy changes may necessitate additional factual

development to evaluate these arguments, we remand for

further proceedings on these issues and, if necessary, the

merits of Claim 1.23

CONCLUSION

This appeal largely is resolved by our conclusion that 8

C.F.R. § 214.14(d)(2) gives USCIS discretion to grant

parole to waitlisted U-visa petitioners in the United States

who have received deferred action. Although the WLD

Plaintiffs have standing to challenge the agency’s

withholding of advance parole, their claims were properly

dismissed because there is no statutory jurisdiction as to

Claim 2 because the APA does not permit courts to order an

argument. Instead, it has addressed the issue on the merits and invited us

to do so as well. We conclude that the government has forfeited any

claim of forfeiture, so we proceed to consider the merits.”).

23

The dissent argues that a remand is unnecessary because “regardless

whether the BFD Plaintiffs have standing, their claim must be dismissed

for lack of statutory jurisdiction” under the APA, Dissent at 33–34.

Although the dissent frames this approach as resolving statutory

jurisdiction, it in fact addresses a significant merits question—and

creates a split with our sister circuits—without first deciding whether

constitutional jurisdiction exists. See Dissent at 42–49. We decline to

follow that order of operations. See Steel Co., 523 U.S. at 97 n.2.

U VISA APPELLANTS V. DIR., USCIS 33

agency to take discretionary action and because, to the extent

it is still being advanced, Claim 3 does not concern final

agency action. As to the BFD Plaintiffs, although the district

court correctly rejected their parole-related injury in

assessing whether they have standing to assert Claim 1, it

erred by not considering their alternative injury theories.

AFFIRMED IN PART; REVERSED IN PART;

REMANDED.24

BEA, Circuit Judge, concurring in part and dissenting in

part:

Our decision rightly affirms the dismissal of the

Plaintiffs’ claim under § 706(1) of the Administrative

Procedure Act (APA) that seeks to compel U.S. Citizenship

and Immigration Services (USCIS) to grant them advance

parole. See Op. 24–27. USCIS is not “required” to make

parole determinations, and we lack jurisdiction over a

§ 706(1) claim that seeks to compel an agency to take a

discretionary action. I thus join that part of the opinion in

full.1 See Op. 24–27.

But I part ways regarding the majority’s decision to

remand the claim of the “BFD Plaintiffs” so that the district

court may analyze whether they have Article III standing.

Maj. Op. 31–32. As I see it, regardless whether the BFD

Plaintiffs have standing, their claim must be dismissed for

24

The parties shall each bear their own costs on appeal.

1

I also concur in the dismissal of the waiting-list Plaintiffs’ claim under

5 U.S.C. § 706(2)(A) because it does not challenge “final agency action.”

See Op. 27–28.

34 U VISA APPELLANTS V. DIR., USCIS

lack of statutory jurisdiction. The BFD Plaintiffs seek relief

under § 706(1) of the APA, which permits a court to “compel

agency action unlawfully withheld or unreasonably

delayed.”

The BFD Plaintiffs’ § 706(1) claim asserted that USCIS

had “unlawfully withheld” an adjudication of their eligibility

for the waiting list and sought an injunction that would order

USCIS to adjudicate their waiting-list eligibility within

fourteen days. Their claim rested on the assertion that

USCIS was required to conduct waiting-list adjudications

for every pending U-Visa petition. But “a claim under

§ 706(1) can proceed only where a plaintiff asserts that an

agency failed to take a discrete agency action that it is

required to take,” and in this case, there is no statutory

provision or regulation that requires USCIS to adjudicate

every U-Visa petition to determine whether each petitioner

is eligible for the waiting list. Norton v. S. Utah Wilderness

All. (SUWA), 542 U.S. 55, 64 (2004) (emphasis in original).

Therefore, the BFD Plaintiffs’ claim under § 706(1) to

“compel” USCIS to adjudicate their eligibility for the

waiting list cannot proceed.

I would thus dismiss the BFD Plaintiffs’ claim for lack

of jurisdiction and affirm the district court’s decision in full.

Because a federal court must assure itself of its jurisdiction,

the district court should consider this issue on remand and

dismiss the BFD Plaintiffs’ claim if it determines that

jurisdiction is lacking.

I respectfully dissent in part.

U VISA APPELLANTS V. DIR., USCIS 35

I

A.

The majority opinion ably describes the complicated

statutory and regulatory scheme that governs this case. See

Maj. Op. 7–11. I provide a brief background to orient the

reader.

The U-Visa Program, so-called because the legislation

that created it is codified at 8 U.S.C. § 1101(a)(15)(U), was

established as part of the Victims of Trafficking and

Violence Protection Act of 2000. The Secretary of

Homeland Security, who has delegated his authority to

USCIS, may grant “U nonimmigrant status” (U Visa) to

certain aliens who have been victims of serious crimes and

have assisted law enforcement in investigating or

prosecuting those crimes. 8 U.S.C. §§ 1101(a)(15)(U)(i)(I)–

(IV); 8 C.F.R. § 214.14. U-Visa holders receive lawful

status and work authorization for up to four years. 8 U.S.C.

§ 1184(p)(3)(B); 8 C.F.R. § 274a.12(a)(19).

To receive a U Visa, a victim of a qualifying criminal

activity must file a petition known as Form I-918. The

petitioner must also file a separate form, completed and

signed by a law enforcement officer, which certifies that the

petitioner was helpful in a law enforcement investigation or

prosecution. 8 U.S.C. § 1184(p)(1); 8 C.F.R.

§ 214.14(c)(2)(i). USCIS has exclusive jurisdiction to

adjudicate U-Visa petitions and determines U-Visa

eligibility on a case-by-case basis. 8 C.F.R. § 214.14(c)(1).

Because the analysis can involve credibility assessments and

difficult issues of proof, especially for certain crimes like

human trafficking or domestic violence, USCIS may ask the

petitioner to supplement his petition with additional

evidence. Id. § 214.14(c)(2)(ii).

36 U VISA APPELLANTS V. DIR., USCIS

By statute, only 10,000 U Visas may be issued per year.

8 U.S.C. § 1184(p)(2). The demand for U Visas is far greater

than the supply. Each year, tens of thousands more petitions

are filed than the number of U Visas that may be issued

under the statutory cap. This creates an ever-growing

backlog that currently exceeds 250,000 unreviewed

petitions. See U.S. Citizenship & Immigr. Servs., USCIS

Application and Petition Form Types (Form I-918) (Fiscal

Year 2026, Quarter 2).

USCIS recognized that many petitioners who would

otherwise be eligible to receive U Visas were not receiving

them solely because of the statutory cap. So, in 2007,

USCIS, through notice-and-comment rulemaking, created

the waiting-list program (codified at 8 C.F.R.

§ 214.14(d)(2)). Through this program, U-Visa petitioners

with meritorious petitions could receive interim benefits

notwithstanding the statutory cap. USCIS uses the same

procedures and substantive standards to determine eligibility

for the waiting list and for a U Visa. See USCIS Policy

Manual, Vol. 3, Pt. C, Ch. 6 (“USCIS conducts a full

adjudication necessary to determine eligibility for U

nonimmigrant status as part of the waiting list process.”).2

The only difference is that USCIS begins reviewing petitions

for the waiting list and placing eligible petitioners on the

waiting list only after USCIS issues its 10,000th U-Visa in a

fiscal year. Once that statutory cap has been reached, USCIS

continues to review pending U-Visa petitions using its

“normal process to determine eligibility.” Interim Rule,

2

“The Policy Manual contains the official policies of USCIS and . . . is

to be followed by all USCIS officers in the performance of their

duties[.]” Policy Manual, supra, About the Policy Manual,

https://www.uscis.gov/policy-manual [https://perma.cc/E4CV-CM83].

U VISA APPELLANTS V. DIR., USCIS 37

Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg.

53027 (Sept. 17, 2007). If USCIS determines that a

petitioner satisfies the requirements to receive a U Visa, and

thus, that he would have received a U Visa if not for the

statutory cap, USCIS “must” place him on the waiting list.

8 C.F.R. § 214.14(d)(2). Those on the waiting list receive

certain benefits: deferred action, work authorization, and

eligibility for parole; they also do not accrue unlawful status

while they remain in the United States. Id. §§ 214.14(d)(2),

(3).

After the waiting list was created, the number of U-Visa

petitions filed each year grew rapidly, from 6,850 in 2009 to

37,287 in 2017. See U.S. Citizenship & Immigr. Servs.,

Number of Form I-918, Petition for U Nonimmigrant Status

Statistics by Fiscal Year, Quarter, and Case Status (Fiscal

Years 2009-2020). This increase overwhelmed USCIS. As

discussed above, determining eligibility for either waiting-

list placement or a U Visa required USCIS to conduct a full

review of the petition. Unable to increase its operational

capacity sixfold within eight years, USCIS accumulated a

backlog of U-Visa petitions. At the beginning of 2016, the

average interval between filing and a waiting-list

determination was 12 months; by the end of 2020, it

exceeded 50 months. See U.S. Citizenship & Immigr.

Servs., Humanitarian Petitions: U Visa Processing Times 4–

5 (2021).

In 2021, USCIS circulated a policy memorandum that

created the Bona Fide Determination Policy (“BFD Policy”).

U.S. Citizenship & Immigr. Servs., Policy Alert: Bona Fide

Determination Process for Victims of Qualifying Crimes

(“BFD Policy Alert”) (June 14, 2021). The BFD Policy

created an alternative, streamlined procedure by which U-

Visa petitioners could receive benefits, namely, work

38 U VISA APPELLANTS V. DIR., USCIS

authorization and deferred action, before USCIS had

completed a full adjudication of their petition. See id. In

2008, Congress had authorized DHS to grant work

authorization to aliens who have “pending, bona fide”

applications for a U Visa, 8 U.S.C. § 1184(p)(6), and USCIS

exercised its authority under § 1184(p)(6) to create the BFD

Policy. See U.S. Citizenship & Immigr. Servs., BFD Policy

Alert.

Under the BFD Policy, a petitioner could receive

benefits once he established that his U-Visa petition was

“bona fide,” a far less demanding standard that involved only

a threshold review of whether the petition was properly filed,

complete, and supported by the required initial evidence.

Policy Manual, Vol. 3, Pt. C, Ch. 5. Compared with the

waiting-list program, which required a “full adjudication

necessary to determine eligibility” for U-Visa status, the

BFD process was a more streamlined means of

administering interim benefits to U-Visa applicants whose

petitions were in the backlog. Policy Manual, Vol. 3, Pt. C,

Ch. 6.

The BFD process was created in response to the growing

backlog of petitions and the agency’s recognition that it

needed a more efficient way to process petitions than the

waiting-list program. A faster process like the BFD was

necessary, USCIS stated, because the status quo (which

forced USCIS to conduct a lengthy adjudication on every

petition to determine eligibility) was forcing USCIS to divert

resources from other programs toward the U-Visa program:

“As of June 14, 2021, USCIS is unable to

adjudicate the tens of thousands of petitions

for the waiting list . . . in a single fiscal year

without incurring a negative impact in other

U VISA APPELLANTS V. DIR., USCIS 39

humanitarian programs and fee-based

applications or petitions. . . . USCIS must

allocate resources among the competing

adjudicative priorities and balance the

number of resources that can be assigned to

the U visa program. . . . [T]he BFD process

enables USCIS to review petitions more

efficiently . . . than the waiting list process

alone, which requires a full adjudicative

review of eligibility for [U-1] nonimmigrant

status.” Policy Manual, Vol. 3, Pt. C, Ch. 5,

Appendix.

Like waiting-list members, BFD recipients receive work

authorization and deferred action. Unlike waiting-list

members, BFD recipients continue to accrue unlawful status

and are not considered for parole. Policy Manual, Vol. 3, Pt.

C, Ch. 5. Notably, if a U-Visa petitioner is granted bona fide

status, USCIS will “generally” not consider him for the

waiting list. Id. Rather, USCIS next reviews a BFD

recipient’s petition during “final adjudication” of the U-Visa

petition. Id.

B.

Let’s turn to the present case. The BFD Plaintiffs sued

USCIS under § 706(1) of the APA. That provision permits

a court to “compel agency action unlawfully withheld or

unreasonably delayed.” 5 U.S.C. § 706(1). The BFD

Plaintiffs alleged that USCIS was unlawfully withholding

their “waiting list decisions.” The BFD Plaintiffs argued that

the USCIS regulation that created the waiting-list program,

8 C.F.R. § 214.14(d)(2), imposed on USCIS a binding

obligation to conduct waiting-list determinations for every

U-Visa petitioner. The BFD Plaintiffs then pointed to

40 U VISA APPELLANTS V. DIR., USCIS

USCIS’s guidance document establishing the BFD Policy,

which stated that “USCIS will generally not conduct waiting

list adjudications for [aliens] who have been granted BFD,”

as proof that the agency had disregarded its duty under 8

C.F.R. § 214.14(d)(2) to provide waiting list determinations

to them. The BFD Plaintiffs brought their claim under 5

U.S.C. § 706(1) and asserted that USCIS was unlawfully

withholding or unreasonably delaying a waiting-list

determination. To remedy this allegedly unlawful failure to

act, the BFD Plaintiffs sought an injunction that would

“[o]rder USCIS to make WLDs for all Plaintiffs in 14 days.”

The district court dismissed the BFD Plaintiffs’ claim for

lack of Article III standing. De Sousa, et al. v. Director, U.S.

Citizenship & Immigr. Servs., 755 F. Supp. 3d 1266, 1275

(N.D. Cal. 2024). But the court did not consider whether the

BFD Plaintiffs’ claim under § 706(1) of the APA had

satisfied the “independent jurisdictional requirement” that it

challenge “final agency action.” Ukiah Valley Med. Ctr. v.

FTC, 911 F.2d 261, 264 n.1 (9th Cir. 1990); 5 U.S.C.

§§ 551(13), 702, 704. Nevertheless, we may do so on

appeal.

II

The BFD Plaintiffs seek relief for USCIS’s purported

“failure” to issue waiting-list determinations. “Failures to

act are sometimes remediable under the APA, but not

always.” SUWA, 542 U.S. at 61. “[W]e have jurisdiction

over a § 706(1) claim ‘only where a plaintiff asserts that an

agency failed to take a discrete agency action that it is

required to take.’” Maj. Op. 27 (quoting SUWA, 542 U.S. at

64). We do not have such a case here, and on remand, the

district court may recognize the jurisdictional defect and

dismiss the claim on that ground.

U VISA APPELLANTS V. DIR., USCIS 41

A.

The APA provides a cause of action for “[a] person

suffering legal wrong because of agency action, or adversely

affected or aggrieved by agency action within the meaning

of a relevant statute.” 5 U.S.C. § 702. Where, as here, no

other statute authorizes judicial review, the APA permits

judicial review only of challenges to “final agency action.”

Id. § 704. And the APA sets out the scope of review for an

agency’s failure to act in § 706(1): “The reviewing court

shall . . . compel agency action unlawfully withheld or

unreasonably delayed.”

In Norton v. Southern Utah Wilderness Alliance, the

seminal decision interpreting § 706(1), the Supreme Court

held that “a claim under § 706(1) can proceed only where a

plaintiff asserts that an agency failed to take a discrete

agency action that it is required to take.” 542 U.S. at 64

(emphases in original). “In this circuit, the final agency

action requirement has been treated as jurisdictional.” San

Francisco Herring Ass’n v. Dep’t of the Interior, 946 F.3d

564, 571 (9th Cir. 2019).

Consistent with SUWA, we have held that “the operation

of § 706(1) is restricted to discrete actions that are

unequivocally compelled by statute or regulation.” Vietnam

Veterans of Am. v. CIA, 811 F.3d 1068, 1081 (9th Cir. 2016).

The requirement must be “so clearly set forth that it could

traditionally have been enforced through a writ of

mandamus.” Hells Canyon Pres. Council v. U.S. Forest

Serv., 593 F.3d 923, 932 (9th Cir. 2010) (citation omitted).

The legal obligation must take the form of a “‘specific,

unequivocal command,’” SUWA, 542 U.S. at 64 (quoting

ICC v. New York, N.H. & H.R. Co., 287 U.S. 178, 204

(1932)), or an order to take a “‘precise, definite act . . . about

42 U VISA APPELLANTS V. DIR., USCIS

which [the agency] ha[s] no discretion whatever.’” Id.

(quoting United States ex rel. Dunlap v. Black, 128 U.S. 40,

46 (1888)). “Specific, unequivocal commands” that a court

may enforce under § 706(1) are rare, but a clear example is

a date-certain statutory deadline. Biodiversity Legal Found.

v. Badgley, 309 F.3d 1166, 1177 n.11, 1178 (9th Cir. 2002)

(recognizing a claim under § 706(1) to compel agency action

when “Congress has specifically provided a deadline for

performance” and the agency has not performed “within the

mandated time frame”).

B.

The BFD Plaintiffs’ § 706(1) claim does not fall within

these narrow limits and should have been dismissed.

1.

The BFD Plaintiffs identify the USCIS regulation

establishing the waiting-list program as the source of the

“unequivocal command” necessary to sustain their § 706(1)

claim. To be sure, “an agency can create a non-discretionary

duty by binding itself through a regulation carrying the force

of law.” Elec. Priv. Info. Ctr. v. Internal Revenue Serv., 910

F.3d 1232, 1244 (D.C. Cir. 2018); see also Vietnam

Veterans, 811 F.3d at 1081 (9th Cir. 2016). But the waiting-

list regulation does not impose any legal obligation on

USCIS to adjudicate the BFD Plaintiffs’ petitions, let alone

a “specific, unequivocal command” to do so.

The waiting-list regulation provides, in relevant part:

“All eligible petitioners who, due solely to

the cap, are not granted U-1 nonimmigrant

status must be placed on a waiting list and

U VISA APPELLANTS V. DIR., USCIS 43

receive written notice of such placement.” 8

C.F.R. § 214.14(d)(2).

The BFD Plaintiffs rest their § 706(1) claim on the

regulation’s language that all eligible U-Visa petitioners

“must be placed on a waiting list.” 8 C.F.R. § 214.14(d)(2)

(emphasis added). They contend that “USCIS has a duty to

make WLDs under § 214.14(d)(2)” and that the court should

“compel USCIS to make WLDs for Plaintiffs.” But the text

of the regulation cannot bear this weight.

The mandatory duty imposed by the regulation—that

USCIS “must” place certain petitioners on the waiting list—

extends only to “eligible petitioners who, due solely to the

cap, are not granted U-1 nonimmigrant status.” 8 C.F.R.

§ 214.14(d)(2). The term “eligible petitioner” does not

encompass every U-Visa petitioner. Rather, an “eligible”

petitioner is one whose application USCIS has reviewed

under its “normal process” and whom USCIS has deemed

eligible. Interim Rule, Eligibility for “U” Nonimmigrant

Status, 72 Fed. Reg. 53027 (Sept. 17, 2007).

The mandatory duty to place petitioners on the waiting

list does not extend to any petitioner unless USCIS has

deemed him “eligible” following a “full adjudication.”

Policy Manual, Vol. 3, Pt. C, Ch. 6. The BFD Plaintiffs,

who have received only a bona fide determination, are not

“eligible petitioner[s]” within the meaning of the regulation.

See 8 C.F.R. § 214.14(d)(2). The Policy Manual (which

binds USCIS officials) makes clear that a determination that

a petition is “bona fide” is not equivalent to a determination

that the petitioner is “eligible” for purposes of the waiting

list: “The BFD process only provides a basic review of the

principal petition for U nonimmigrant status and does not

require the petitioner to establish eligibility for U

44 U VISA APPELLANTS V. DIR., USCIS

nonimmigrant status[.]” Policy Manual, Vol. 3, Pt. C, Ch.

5, Appendix. The BFD Plaintiffs admit that they have

received only a BFD, not a full waiting-list determination.

That fact is the basis of their claim, which seeks an order

compelling USCIS to adjudicate their eligibility for the

waiting list. Because the BFD Plaintiffs have not been

deemed “eligible,” USCIS’s mandatory duty to place

eligible petitioners on the waiting list does not apply to them.

See 8 C.F.R. § 214.14(d)(2).

Because USCIS owes the BFD Plaintiffs no duty to place

them on the waiting list, there is no “unequivocal command”

that they may enforce under § 706(1). SUWA, 542 U.S. at

64 (citation omitted). Accordingly, the BFD Plaintiffs’

claim should be dismissed for lack of jurisdiction. See San

Luis Unit Food Producers v. United States, 709 F.3d 798,

803–04 (9th Cir. 2013).

2.

Alternatively, the BFD Plaintiffs contend that, although

USCIS is not required to place them on the waiting list,

USCIS must adjudicate whether they are eligible for

waiting-list placement. Both the Fourth and Sixth Circuits

have sided with the BFD Plaintiffs on this issue and held that

8 C.F.R. § 214.14(d)(2) imposes a binding obligation on

USCIS to conduct waiting-list adjudications. See Gonzalez

v. Cuccinelli, 985 F.3d 357, 374 n.10 (4th Cir. 2021);

Barrios Garcia v. U.S. Dep’t of Homeland Sec., 25 F.4th

430, 443 (6th Cir. 2022) (“USCIS’s regulations mandate the

placement of U-visa-eligible petitioners on the waitlist. So

the federal courts may determine whether USCIS unlawfully

withheld or unreasonably delayed the placement of the

principal petitioners on the U-visa waitlist under § 706(1).”).

But this argument has several defects.

U VISA APPELLANTS V. DIR., USCIS 45

First, this theory relies on an erroneous construction of

the waiting-list regulation. See 8 C.F.R. § 214.14(d)(2).

That regulation, as discussed above, imposes a mandatory

duty on USCIS to place an eligible U-Visa petitioner on the

waiting list, but says nothing about a mandatory duty to

adjudicate U-Visa petitions. See id. (“All eligible

petitioners . . . must be placed on a waiting list[.]”). A

requirement that eligible petitioners “must be placed” on the

waiting list does not mandate that USCIS take the antecedent

step of adjudicating every U-Visa petition to determine

eligibility for the waiting list. The USCIS Policy Manual

reflects the distinction between placement of eligible

petitioners and the logically prior step of adjudication to

determine eligibility. Policy Manual, Vol. 3, Pt. C, Ch. 6

(“USCIS conducts a full adjudication necessary to

determine eligibility for U nonimmigrant status as part of the

waiting list process . . . officers may . . . gather additional

information necessary to adjudicate for waiting list

placement.”) (emphases added). The waiting-list regulation

does not reference a duty to adjudicate claims at all, let alone

impose this duty in “specific, unequivocal” terms. SUWA,

542 U.S. at 63.

Second, there is no other statutory provision or

regulation that imposes an unequivocal duty on USCIS to

adjudicate waiting-list eligibility for any petitioners.

The waiting list was created as an exercise of USCIS’s

discretionary authority to administer the U-Visa program; no

statutory provision mandates it. Several courts have implied

both that USCIS has a nondiscretionary duty to process and

adjudicate applications and that a court may redress an

unreasonable delay in doing so under § 706(1) of the APA.

See, e.g., Calderon-Ramirez v. McCament, 877 F.3d 272,

275 (7th Cir. 2017) (“[T]here is no dispute that Ramirez has

46 U VISA APPELLANTS V. DIR., USCIS

a right to adjudication for both the waiting list and a U-

visa.”). But there are no regulations that impose a mandatory

duty to adjudicate these claims. The statute establishes

eligibility criteria, specifies the immigration benefits that

USCIS is authorized to grant, and mandates that USCIS

issue no more than 10,000 U Visas per year, but nowhere

does it impose a duty on USCIS to adjudicate claims. See 8

U.S.C. §§ 1101(a)(15)(U) (statutory eligibility criteria),

1184(p) (adjudicatory procedures, USCIS’s duties and

authority, and the statutory cap). By regulation, USCIS has

committed to granting a U Visa to a petitioning alien when

he satisfies the statutory criteria. 8 C.F.R. § 214.14(c)(5)(i).

USCIS has made a similar commitment to petitioners

who meet the criteria for the waiting list, as discussed above.

8 C.F.R. § 214.14(d)(2). But nowhere does USCIS have a

duty to adjudicate these claims. Any implied obligation is

insufficient to sustain a claim under § 706(1), which requires

an obligation to be “so clearly set forth that it could

traditionally have been enforced through a writ of

mandamus.” Vietnam Veterans, 811 F.3d at 1081.

Therefore, we (and the district court on remand) lack

jurisdiction over this claim and should dismiss it. Lovo v.

Miller, 107 F.4th 199, 216 (4th Cir. 2024) (“[B]ecause

neither Congress nor USCIS itself has ever bound USCIS to

adjudicate these applications, the federal courts lack

jurisdiction to consider Plaintiffs’ APA claim.”).

Finally, a court’s exercise of jurisdiction over USCIS’s

general practice of processing U-Visa petitions would

violate general principles of administrative law, which teach

that courts lack the authority to direct how an agency

allocates its own resources. In re Barr Lab’ys, Inc., 930 F.2d

72, 76 (D.C. Cir. 1991) (“[W]e have no basis for reordering

agency priorities. The agency is in a unique—and

U VISA APPELLANTS V. DIR., USCIS 47

authoritative—position to view its projects as a whole,

estimate the prospects for each, and allocate its resources in

the optimal way.”).

If a court were to exercise jurisdiction over whether

USCIS “unlawfully withheld” or “unreasonably delayed”

waiting-list adjudications, the court would inevitably

substitute its own discretion for that of the agency. The pace

of U-Visa adjudications depends on USCIS’s decisions

about training, hiring, and investing in the U-Visa program,

all factors that are within the agency’s discretion. With

regard to the increase in waiting-list processing times around

2020, USCIS explained that it “attempted to keep up with

this increase [in petitions and processing times] by shifting

resources as well as hiring and training new officers; yet,

despite these attempts, the burden quickly outpaced

resources given competing demands and priorities across

the agency.” Policy Manual, Vol. 3, Pt. C, Ch. 5, Appendix

(emphasis added). Processing times for immigration visas

also depend on internal agency priorities, American foreign

policy, global events, and national security concerns. The

authority to adjust USCIS’s allocation of resources and

priorities in response to the various matters that affect U-

Visa processing times (e.g., how to respond to consular

shortages or geopolitical exigencies) belongs to USCIS, not

to a federal court. See Heckler v. Chaney, 470 U.S. 821,

831–32 (1985) (“The agency is far better equipped than the

courts to deal with the many variables involved in the proper

ordering of its priorities.”); Blanco de Belbruno v. Ashcroft,

362 F.3d 272, 280 (4th Cir. 2004) (Wilkinson, J.) (“The

agency operates in an environment of limited resources, and

how it allocates those resources to address the burden of

increasing claims is a calculation that courts should be loath

to second guess.”).

48 U VISA APPELLANTS V. DIR., USCIS

Moreover, a court would have no jurisdiction to grant the

BFD Plaintiffs their requested injunction, which would order

USCIS to make waiting-list determinations for all BFD

Plaintiffs within fourteen days. As part of USCIS’s

discretion to allocate its resources and energies, USCIS has

the discretion to decide whether to adjudicate the BFD

Plaintiffs’ petitions within two weeks or at a later date. See

SUWA, 542 U.S. at 71 (explaining that “judicial decree

compelling immediate [agency action] would divert [the

agency’s] energies from other projects throughout the

country that are in fact more pressing.”). The BFD Plaintiffs

do not identify any statutory provision or regulation that

requires USCIS to adjudicate their petitions immediately

rather than any of the 250,000 other petitions in the backlog,

so their § 706(1) claim fails for this additional reason.

Given the lack of a clear statutory or regulatory

command to USCIS to adjudicate petitions for the waiting

list, no court may exercise jurisdiction over APA claims that

would require it to superintend USCIS’s “day-to-day”

administration of the U-Visa program. See SUWA, 542 U.S.

at 66. Such “pervasive oversight by federal courts over the

manner and pace of agency compliance . . . is not

contemplated by the APA.” Id. at 67. Thus, the BFD

Plaintiffs’ claim under § 706(1) to “compel” USCIS to

adjudicate their eligibility for the waiting-list program

cannot proceed. On remand, the district court should dismiss

that claim for this reason.3

3

Because USCIS has not “unlawfully withheld” waiting-list

adjudications from the BFD Plaintiffs, it follows that the agency has not

“unreasonably delayed” these adjudications, either. SUWA, 542 U.S. at

63 n.1 (“Of course § 706(1) also authorizes courts to ‘compel agency

action . . . unreasonably delayed’—but a delay cannot be unreasonable

U VISA APPELLANTS V. DIR., USCIS 49

* * *

The BFD Plaintiffs’ claim under § 706(1) did not assert

that USCIS had “failed to take a discrete agency action that

it is required to take.” SUWA, 542 U.S. at 64. We lack

jurisdiction and should have dismissed the claim. On

remand, the parties may raise this issue, and the district court

could correct our oversight. I respectfully dissent in part.

with respect to action that is not required.”); In re A Cmty. Voice, 878

F.3d 779, 784 (9th Cir. 2017) (“an agency cannot unreasonably delay

that which it is not required to do”).