Thomas Taylor v. James McCament

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-1943

THOMAS TAYLOR,

Plaintiff-Appellant,

v.

JAMES W. MCCAMENT, Acting Director, U.S. Citizenship &

Immigration Services, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16-cv-10754 — Amy J. St. Eve, Judge.

____________________

ARGUED OCTOBER 26, 2017 — DECIDED NOVEMBER 17, 2017

____________________

Before FLAUM, RIPPLE, and MANION, Circuit Judges.

FLAUM, Circuit Judge. Appellant Thomas Taylor applied for

a U-visa in 2014. United States Citizenship and Immigration

Services (“USCIS”) determined that Taylor was eligible, but

placed him on a waiting list because the relevant statute

prohibits the agency from issuing more than 10,000 U-visas

per year. Taylor filed suit in district court, alleging that

2 No. 17-1943

USCIS’s prior delay in promulgating regulations for the U-

visa program caused the backlog in applications. He asserted

claims under the Administrative Procedure Act (“APA”) and

the Mandamus Act, and asked the court to compel USCIS to

immediately issue 80,000 U-visas to those on the waiting list.

The district court determined that Taylor lacked standing and

accordingly dismissed his complaint for lack of subject matter

jurisdiction. We affirm.

I. Background

On October 28, 2000, Congress created a new

nonimmigrant visa classification—the “U-visa”—for any

alien who is the victim of a qualifying crime in the United

States and who assists law enforcement in the investigation or

prosecution of that crime. See Victims of Trafficking and

Violence Protection Act of 2000 (Victims Protection Act), Pub.

L. No. 106-386, 114 Stat. 1464 (codified at 8 U.S.C.

§ 1101(a)(15)(U)). The purpose of the U-visa program is to

strengthen law enforcement efforts, while simultaneously

offering protection to victims. See Victims Protection Act, Pub

L. No. 106-386, § 1513(a)(2), 114 Stat. 1464. To that end,

Congress gave the Attorney General “discretion to convert

the status of such nonimmigrants to that of permanent

residents when doing so is justified on humanitarian grounds,

for family unity, or is otherwise in the public interest.” Id.

§ 1513(a)(2)(C). An individual can apply for lawful

permanent resident status once they have possessed a U-visa

for three years. See 8 U.S.C. § 1255(m); see also 8 C.F.R.

§ 245.24(a)(1).

No. 17-1943 3

Although the Victims Protection Act was enacted in 2000,

the relevant agencies 1 failed to subsequently create any

regulations or procedures to enable individuals to apply for

U-visas. In 2005, Congress included a provision in the

Violence Against Women Act (“VAWA”) directing the

Secretary of Homeland Security to issue regulations for the

Victims Protection Act “[n]ot later than 180 days after the

enactment of this Act.” Pub. L. 109-162, § 828, 119 Stat. 2960

(2006). Because VAWA was signed into law on January 5, 2006,

USCIS had a deadline of July 4, 2006 to issue the regulations

for U-visas.

In September 2007—nearly seven years after enactment of

the Victims Protection Act and more than a year after the

Congressionally mandated regulation deadline—USCIS

issued interim regulations with procedures for victims

seeking U-visas. See New Classification for Victims of

Criminal Activity; Eligibility for “U” Nonimmigrant Status,

72 Fed. Reg. 53,014-01 (Sept. 17, 2007). By the end of fiscal year

2008, the agency had received 12,151 petitions, but it placed

the vast majority (12,092) on hold pending the issuance of

final regulations. See U.S. DEP’T OF HOMELAND SEC., OFFICE OF

THE CITIZENSHIP AND IMMIGRATION SERVS. OMBUDSMAN,

IMPROVING THE PROCESS FOR VICTIMS OF HUMAN TRAFFICKING

AND CERTAIN CRIMINAL ACTIVITY: THE T AND U VISA 7 (2009),

1 Prior to March 1, 2003, the Immigration and Naturalization Service

(“INS”) was responsible for adjudicating visa petitions. However, in 2002

Congress dismantled the INS and created a new agency: the Department

of Homeland Security (“DHS”). See Homeland Security Act of 2002, Pub.

L. No. 107–296, 116 Stat. 2135. Congress established USCIS as a

department within DHS, and transferred all responsibility for visa

petitions from the INS to USCIS. See id. § 451(b).

4 No. 17-1943

https://www.dhs.gov/xlibrary/assets/cisomb_tandu_visa_rec

ommendation_2009-01-26.pdf.

The agency promulgated final regulations in December

2008, and those regulations went into effect in January 2009.

See Adjustment of Status to Lawful Permanent Resident for

Aliens in T or U Nonimmigrant Status, 73 Fed. Reg. 75,540-01

(Dec. 12, 2008). Only then did USCIS begin to issue U-visas in

large numbers. See U.S. DEP’T OF HOMELAND SEC., USCIS,

NUMBER OF FORM I-918, PETITION FOR U NONIMMIGRANT

STATUS, BY FISCAL YEAR, QUARTER, AND CASE STATUS (2009-

2017), https://www.uscis.gov/sites/default/files/USCIS/Resou

rces/Reports%20and%20Studies/Immigration%20Forms%20

Data/Victims/I918u_visastatistics_fy2017_qtr3.pdf

[hereinafter U-visa Statistics].

Even after USCIS finally began to issue U-visas, however,

it was not able to provide a U-visa to all eligible applicants

because the Victims Protection Act limits the number of U-

visas that may be issued each fiscal year to 10,000. See 8 U.S.C.

§ 1184(p)(2) (“The number of aliens who may be issued visas

or otherwise provided status as nonimmigrants … in any

fiscal year shall not exceed 10,000.”). Once the fiscal year limit

is reached, eligible U-visa applicants are placed on a waiting

list. 8 C.F.R. § 214.14(d)(2). USCIS reviews the petitions on the

waiting list based on the date they were filed, with the oldest

petitions receiving the highest priority. Id. While on the

waiting list, USCIS grants the petitioner and qualifying family

members deferred action, a discretionary form of relief that

defers removal and confers employment authorization

benefits. Id. The number of U-visa petitions has steadily

increased since 2009, and USCIS has reached the statutory cap

each year since fiscal year 2010. See U-visa Statistics, supra.

No. 17-1943 5

Taylor, a citizen of Ireland, entered the United States in

2000 on a visitor’s visa. In October 2008, Taylor was the victim

of perjury, a qualifying crime under the Victims Protection

Act. After the Federal Bureau of Investigation certified that

Taylor had provided the necessary assistance, Taylor applied

for a U-visa on June 9, 2014. Although USCIS determined that

Taylor was eligible, the agency placed him on the waiting list

due to the annual cap. On September 7, 2016, USCIS granted

Taylor deferred action. Taylor is still on the waiting list. 2

On November 21, 2016, Taylor filed a petition for

declaratory judgment in the Northern District of Illinois

against the Director of USCIS and the Secretary of DHS.

Taylor alleged that defendants unreasonably delayed

implementing regulations for the U-visa program, thus

depriving him of U-visa status and delaying his eligibility for

lawful permanent resident status. According to Taylor,

because the agencies were authorized to issue 10,000 U-visas

per year between 2000 and 2008 but failed to do so, they

wrongfully withheld a total of 80,000 U-visas. Thus, Taylor

asked the court to compel USCIS to immediately issue 80,000

U-visas to those who are currently on the waiting list

pursuant to its authority under the Mandamus Act and the

APA.

The district court dismissed Taylor’s petition on two

independent grounds. First, the court held that it lacked

subject matter jurisdiction because Taylor did not have

standing. Second, the court held that, even if Taylor had

2 At oral argument Taylor’s counsel estimated that Taylor has

approximately 30,000–35,000 applicants ahead of him on the waiting list.

6 No. 17-1943

standing, he had failed to state a claim under either the

Mandamus Act or the APA. This appeal followed.

II. Discussion

We review a district court’s dismissal for lack of subject

matter jurisdiction under Rule 12(b)(1) de novo. See Silha v.

ACT, Inc., 807 F.3d 169, 172 (7th Cir. 2015). Where, as here,

plaintiff’s complaint is facially sufficient but external facts call

the court’s jurisdiction into question, we “may properly look

beyond the jurisdictional allegations of the complaint and

view whatever evidence has been submitted on the issue to

determine whether in fact subject matter jurisdiction exists.”

Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th

Cir. 2009) (quoting Evers v. Astrue, 536 F.3d 651, 656–57 (7th

Cir. 2008)).

Article III limits the jurisdiction of federal courts to

“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. To

have the requisite constitutional standing to bring suit in

federal court, a plaintiff must have “(1) suffered an injury in

fact, (2) that is fairly traceable to the challenged conduct of the

defendant, and (3) that is likely to be redressed by a favorable

judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547

(2016), as revised (May 24, 2016) (citing Lujan v. Defs. of Wildlife,

504 U.S. 555, 560–61 (1992)). “The plaintiff, as the party

invoking federal jurisdiction, bears the burden of establishing

these elements.” Id. If the plaintiff lacks standing, the federal

court lacks subject matter jurisdiction and the suit must be

dismissed under Rule 12(b)(1).

Defendants-Appellees argue that Taylor cannot satisfy

any of the three standing requirements. We only discuss

No. 17-1943 7

redressability because it is dispositive of the standing

analysis.

In identical circumstances, the Northern District of Illinois

has held that a favorable judicial decision would not redress

plaintiffs’ injuries. See Patel v. Rodriguez, No. 15-cv-486,

2015 WL 6083199 (N.D. Ill. Oct. 13, 2015). Like Taylor, the

plaintiffs in Patel challenged the agency’s delay in

implementing regulations for the Victims Protection Act and

sought to compel USCIS to issue 80,000 U-visas immediately.

Id. at *1. The court reasoned that, even if it ordered USCIS to

issue 80,000 U-visas, the agency would not be able to do so

because of the annual statutory cap. Id. at *5. Looking to the

statutory language, the court explained that “[t]he term ‘shall’

… denotes a clear congressional directive,” and therefore

“USCIS lacks the authority to exceed [the fiscal year limit].”

Id. (citing Iddir v. INS, 301 F.3d 492–501 (7th Cir. 2002)). This,

combined with the fact that the statutory cap had already

been reached for the year in question, meant that “there

[were] simply no U-visas to issue, much less 80,000.” Id. at *5.

Because the court was “unable to provide relief,” it concluded

that plaintiffs lacked standing. Id. We find this reasoning

persuasive.

Our decision in Iddir v. INS is also instructive. The

appellants in Iddir sought a writ of mandamus to compel the

INS to adjudicate their visa petitions under the Diversity Visa

Lottery Program. 301 F.3d at 493–94. The relevant statute

provided that, once an individual was randomly chosen for

the Diversity Visa Lottery Program, their petition had to be

completed and adjudicated before the end of the fiscal year to

obtain a visa. Id. Although the appellants completed their

petitions on time, INS failed to adjudicate their petitions

8 No. 17-1943

within the one-year statutory window. Id. at 494–95. INS

argued that it “[could not] issue the visas regardless of the

outcome of any adjudication” because “the visas expired at

the end of the fiscal year.” Id. at 500.

The panel held that mandamus relief was not appropriate

because the INS did not have a clear duty to adjudicate the

petitions. See id. at 500–01. Although we did not directly

address standing, we acknowledged that “the issues of duty

and potential relief are entangled in this unique statutory

situation.” Id. at 500. And we explained that “the relief the

appellants currently seek is illusory, because even if the INS

adjudicated the applications today, visas could not be

issued.” Id. This was so because “the statute unequivocally

states that the applicants only remain eligible ‘through the

end of the specific fiscal year for which they were selected.’”

Id. at 501 (quoting 8 U.S.C. § 1154(a)(1)(I)(ii)). Based on this

deadline, we concluded that “the INS lacks the statutory

authority to award the relief sought by the plaintiffs.” Id.

I agreed with the majority’s result, but wrote separately

because I thought the plaintiffs’ claims should be dismissed

on mootness grounds. Id. at 501–02 (opinion of Flaum, J.). I

explained that “it is the INS’s lack of power to grant effectual

relief—not its lack of duty—that makes the claims

nonjusticiable.” Id. at 502. And I concluded that, “because the

INS lacks the capability to issue visas to DV lottery winners

after the fiscal year for which they were selected to apply

ends, no viable remedy is available to plaintiffs and, therefore,

their claims are moot.” Id. The district court below similarly

dismissed the plaintiffs’ claims on mootness grounds. See

Iddir v. INS, 166 F. Supp. 2d 1250, 1258–60 (N.D. Ill. 2001)

(concluding that “[a]ny order by this court compelling the

No. 17-1943 9

INS to adjudicate plaintiffs’ applications would be a futile

act” because “the INS cannot issue visa numbers that do not

exist to plaintiffs”).

Although my Iddir opinion focused on mootness, its

reasoning is equally applicable in the standing context. After

all, those two concepts are interrelated: “Mootness is ‘the

doctrine of standing set in a time frame: The requisite

personal interest that must exist at the commencement of the

litigation (standing) must continue throughout its existence

(mootness).’” Parvati Corp. v. City of Oak Forest, Ill., 630 F.3d

512, 516 (7th Cir. 2010) (quoting Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). The

reasoning in Iddir suggests that a plaintiff loses standing—i.e.,

their claim becomes moot—if the relevant agency loses

statutory authority to award the relief sought. 301 F.3d at 500–

02. It follows that a plaintiff similarly lacks standing where

the agency never had statutory authority to give the plaintiff

the relief he seeks.

Here, as in Patel and Iddir, the agency lacks the statutory

authority to give plaintiff the relief sought. The statute clearly

provides that “[t]he number of aliens who may be issued visas

or otherwise provided [U-visas] … in any fiscal year shall not

exceed 10,000.” 8 U.S.C. § 1184(p)(2)(A) (emphasis added).

Taylor admits that the U-visa limit was reached in fiscal year

2016, and the U-visa limit has been reached for fiscal year 2017

as well. See USCIS, USCIS Grants All Available U Visas for Fiscal

Year 2017 (Aug. 30, 2017), https://www.uscis.gov/news/alerts

/uscis-grants-all-available-u-visas-fiscal-year-2017. Thus,

even if a court ordered USCIS to immediately issue 80,000 U-

visas, the agency would lack the statutory authority to do so.

10 No. 17-1943

At oral argument, Taylor claimed that Iddir is

distinguishable because, unlike the expired visas at issue in

Iddir, his petition is still viable. This fact, however, does not

alter our conclusion. Although USCIS retains statutory

authority to adjudicate Taylor’s petition in the future, that is

not the relief Taylor seeks here. Rather, he asks us to compel

USCIS to immediately issue 80,000 U-visas to those on the

waiting list. 3 Accordingly, our redressability analysis hinges

on whether a court can effectively give him that relief. Based

upon our reasoning in Iddir, the answer to that question is no.

See 301 F.3d at 500–01 (describing the relief sought as

“illusory” where the relevant agency lacks the statutory

authority to award that relief).

In a final effort to avoid dismissal, Taylor argues that this

Court has authority to redress his injury under the APA.

However, this argument conflates the constitutional standing

requirement with the merits of Taylor’s claim. Although the

APA gives a reviewing court authority to compel non-

discretionary agency action that is unreasonably delayed, 5

U.S.C. §§ 706(1), 701(a)(1), it has no bearing on the threshold

question of whether Taylor has standing to bring a claim

3 To be clear, even if Taylor simply sought to compel USCIS to

immediately adjudicate only his petition, the agency would still lack

authority to provide that relief. USCIS regulations state that “[p]riority on

the waiting list will be determined by the date the petition was filed with

the oldest petitions receiving the highest priority.” 8 C.F.R. § 214.14(d)(2).

Defendants argue that this regulation is entitled to judicial deference and,

by failing to respond to this argument in his reply brief, Taylor waived

any argument to the contrary. See United States v. Farris, 532 F.3d 615, 619

(7th Cir. 2008). Thus, USCIS lacks authority to leap-frog Taylor over other

waitlisted applicants.

No. 17-1943 11

under the APA in the first instance. If Taylor lacks

constitutional standing, this Court cannot review his claims at

all, let alone determine whether there was an unreasonable

delay or a non-discretionary duty. In other words, even if a

reviewing court had authority under the APA to compel

USCIS to issue 80,000 U-visas, Taylor has not explained how

USCIS could comply with such a court order in light of the

statutory cap. Thus, he has not shown that a favorable judicial

decision would give him the relief he seeks.

In sum, Taylor lacks standing. 4 We recognize that the

agency’s delay has adversely impacted Taylor and those who

are similarly situated, but only Congress can provide the

relief they seek.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court.

4 Because we conclude that dismissal was appropriate on this ground,

we need not address whether Taylor has stated a claim under the APA or

the Mandamus Act.