Adueva v. Mayorkas

Decision Date09 August 2021
Docket Number17-cv-03350 (DLI)
PartiesDINA ADUEVA, et al., Plaintiffs, v. ALEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland Security, et al., Defendants.
CourtU.S. District Court — Eastern District of New York


Sixty-five plaintiffs[1] (Plaintiffs) filed this action seeking declaratory and injunctive relief under the Administrative Procedure Act (“APA”), 5 U.S.C §§ 551 et seq; the Declaratory Judgment Act, 28 U.S.C. § 2201; and the Mandamus Act, 28 U.S.C § 1361, for adjudication of employment authorization and issuance of interim employment authorization incident to their pending applications for U nonimmigration status under 8 U.S.C. § 1101(a)(15)(U). See, Compl., Docket (“Dkt.”) Entry No. 1. The suit is against defendants Alejandro Mayorkas, in his official capacity as Secretary of the Department of Homeland Security (“DHS”), Tracy Renaud, in his official capacity as Senior Official Performing the Duties of the Director of the United States Citizenship and Immigration Services (“USCIS”), Laura Zuchowski, in her official capacity as Director of the Vermont Service Center of USCIS and Mark Hazuda, in his official capacity as Director of the Nebraska Service Center of USCIS (collectively Defendants).[2] Id.

Defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. See, Defs.' Mem. in Supp. of Mot. to Dismiss the Compl., or in the Alternative, for Summ. J. (“Defs.' Br.”), Dkt. Entry No. 18. Plaintiffs cross-moved for summary judgment concurrently with their opposition to Defendants' motion to dismiss. See, Pls.' Mem. in Supp. for Cross-Mot. for Summ. J. and in Opp'n to Defs.' Mot. to Dismiss, or in the Alternative, for Summ. J. (“Pls.' Br.”), Dkt. Entry No. 22. The parties subsequently filed their respective replies. See, Defs.' Reply Mem. of Law (“Defs.' Reply”), Dkt. Entry No. 32; Pls.' Reply Mem. of Law (“Pls.' Reply”), Dkt. Entry No. 36. The parties also submitted supplemental authorities. See, Dkt. Entry Nos. 39, 42-43, 45-47, 50-51. For the reasons set forth below, Defendants' motion for summary judgment is denied, and Plaintiffs' cross-motion for summary judgment is granted.


The following facts are taken from the parties' Local Civil Rule 56.1(a) statements, affidavits, and exhibits. Unless otherwise noted, these facts are not in dispute. As it must the Court has considered only facts recited by Plaintiffs and Defendants in their respective Rule 56.1(a) statements and responses that are established by admissible evidence and disregarded conclusory allegations and legal arguments contained therein. See, Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) ([W]here there are no[] citations or where the cited materials do not support the factual assertions in the [s]tatements, the Court is free to disregard the assertion.”) (internal quotation marks and citations omitted).

I. U Visa Application Process

In October of 2000, Congress created the U nonimmigrant status (“U Visa”) program with the passage of Victims of Trafficking and Violence Protection Act of 2000 (“VTVPA”). See, Pub. L. No. 106-386, § 1513(b), 114 Stat. 1464, 1534 (2000) (codified at 8 U.S.C. § 1101(a)(15)(U)). Congress enacted this nonimmigrant classification to “offer[] protection to victims” of serious crimes such as domestic violence, sexual assault and human trafficking, and to “facilitate the reporting of crimes to law enforcement officials by trafficked, exploited, victimized, and abused aliens who are not in lawful immigration status.” VTVPA § 1513(a)(2)(A)-(B), 114 Stat. at 153334. In 2002, Congress created USCIS, a component of DHS, assigning to it immigration and naturalization matters, including the adjudication of immigrant visa petitions. See, Homeland Security Act of 2002, Pub. L. No. 107-296, § 441, 116 Stat. 2135, 2193 (2002).

An individual is eligible for a U Visa if the individual was: (1) a victim of qualifying criminal activity; (2) has suffered substantial physical or mental harm as a result; and (3) has been helpful to law enforcement in the investigation or prosecution of the crime. See, 8 U.S.C. § 1101(a)(15)(U). In order to obtain a U Visa, the eligible individual must submit a Form I-918, Petition for U Nonimmigrant Status, along with a written and sworn certification from law enforcement personnel stating that the applicant was a victim of a qualifying crime and helpful in the investigation or prosecution thereof. See, 8 C.F.R. § 214.14(c).

The U Visa program has a statutory cap of 10, 000 principal visas, known as U-1 Visas, per year. 8 U.S.C. § 1184(p)(2); See also, 8 C.F.R. § 214.14(d)(1). On October 17, 2007, anticipating that the statutory cap in 8 U.S.C. § 1184(p)(2) would be exceeded within the first few fiscal years of enactment, USCIS created a regulatory waiting list process, which is set forth in 8 C.F.R. § 214.14(d)(2). Under this regulatory waiting list system, there is a two-step adjudication process for the U Visa program. See, Defs,' Br. at 3-5; Decl. of Dustin J. Stubbs (“Stubbs Decl.”), Dkt. Entry No. 19, at ¶ 8. First, USCIS reviews U Visa petitions to determine whether they can be placed on the waiting list. Id. If USCIS approves the petition, but a visa is not available due to the statutory cap, the petitioner is placed on the waiting list until the visa can be approved. See, 8 C.F.R. § 214.14(d)(2) (“Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving highest priority.”). Second, when a new fiscal year begins and additional 10, 000 U Visas become available, petitions on the waiting list are reviewed to ensure the petitioners remain eligible, and eligible petitioners are granted U nonimmigrant status in the order of filing. Stubbs Decl. at ¶ 8.

The number of new U Visa petitions filed each year has increased over the last several years. Id. at ¶ 7. In Fiscal Year 2009, USCIS received 6, 835 new U Visa petitions. Id. at ¶¶ 6-7. In Fiscal Year 2016, USCIS received 35, 044 new U Visa petitions. Id. at 7. By the end of that fiscal year, there were 86, 980 principal U Visa petitions pending, an increase of approximately 23, 000 principal petitions pending since the year before. Id. At the end of March 2017, over 97, 000 U-1 Visa petitions were pending, including those already placed on the waiting list, and over 168, 000 pending petitions overall, including petitions of the principal petitioners' family members. Id.

The combination of the adjudicatory process, large number of applications filed each year, and annual statutory cap has led to exceptionally long processing times. Id. at ¶¶ 7, 10-12. As of August 13, 2020, USCIS was adjudicating U Visa petitions filed before December 9, 2015, over four years from the time of filing. See, USCIS Processing Time Information for the Vermont Service Center, (last visited August 13, 2020).

II. Process for Obtaining an Employment Authorization Document (“EAD”)

When a U Visa petitioner receives the U Visa, he or she also receives an Employment Authorization Document (“EAD”), allowing the petitioner to work legally in the United States. See, 8 C.F.R. § 214.14(c)(7) (“An alien granted U-1 nonimmigrant status is employment authorized incident to status. USCIS automatically will issue an initial [EAD] to such aliens who are in the United States.”). All eligible petitioners who are not granted U nonimmigrant status because of the 10, 000-person statutory fiscal year cap must be placed on a waiting list by USCIS and notified of the placement. 8 C.F.R. § 214.14(d)(2). USCIS “will grant deferred action” to the principal petitioner and derivative family members who are in the United States while the principal petition is on the waiting list and, “in its discretion, [USCIS] may authorize employment for such petitioners and qualifying family members.” Id.

On December 23, 2008, after the above regulatory waiting list system had been in place for approximately one year and cognizant of the administrative backlog, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act (“TVPRA”), which amended 8 U.S.C. § 1184(p)(6). See, TVPRA, Pub. L. 110-457, 122 Stat. 5044. Section 1184(p)(6) specifies that [t]he Secretary [of Homeland Security] may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 1101(a)(15)(U).” 8 U.S.C. § 1184(p)(6).

At the time Plaintiffs submitted their Forms I-918 and EAD applications, 8 C.F.R. § 274a.13(d) provided that “USCIS will adjudicate the application within 90 days from the date of receipt of the application.... Failure to complete the adjudication within 90 days will result in the grant of an employment authorization document for a period not to exceed 240 days.” 8 C.F.R. § 274a.13(d). On January 17, 2017, a revised version of § 274a.13(d) went into effect, eliminating both the ninety-day proceeding requirement for EAD applications and issuance of interim EADs. See, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, ” 81 Fed.Reg. 82, 398, 82, 401 (Nov. 18, 2016).

Prior to the release of a new version of Form I-918 in February 2017, an applicant could apply for an EAD concurrently with his or her U Visa petition by checking “Yes” in response to Part 2, Question 7 of Form I-918, which stated “I want an Employment Authorization Document.” See, Suppl. Decl. of Carolien Hardenbol (“Suppl. ...

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