Bustos v. Mayorkas
| Decision Date | 02 September 2021 |
| Docket Number | CV 20-1348 KG/SMV |
| Parties | JAZMIN LIZBETH CISNEROS BUSTOS, et al., Plaintiffs, v. ALEJANDRO MAYORKAS, U.S. Secretary of Homeland Security; [1] TRACY RENAUD, Acting Deputy Director of U.S. Citizenship and Immigration Services; [2] US CITIZENSHIP AND IMMIGRATION SERVICES, an agency of the United States; MERRICK B. GARLAND, U.S. Attorney General;[3]CHRISTOPHER WRAY, Director of Federal Bureau of Investigation; and the FEDERAL BUREAU OF INVESTIGATIONS; in their official capacity, Defendants. |
| Court | U.S. District Court — District of New Mexico |
On March 5, 2021, Defendants filed a motion seeking dismissal of Plaintiffs' Complaint. Doc. 4. Plaintiffs are foreign nationals who have applied for U visas. Their three-count Complaint alleges: (1) Plaintiffs have a right to a declaratory judgment that Defendants have violated the law and caused them harm by failing to adjudicate their petitions for U visa status within a reasonable time; (2) Plaintiffs have a right to relief under the Administrative Procedures Act (APA) because Defendants have unreasonably delayed adjudicating their U visa petitions; and (3) Plaintiffs have a claim for mandamus relief under 28 U.S.C. § 1361. Doc 1 ¶¶ 140, 147, 5. In their motion, Defendants contend that Counts Two and Three are not properly before the Court because either (1) the Court lacks subject matter jurisdiction over Plaintiffs' claims under Federal Rule of Civil Procedure (Rule) 12(b)(1), or (2) the Plaintiffs have failed to state plausible claims under Rule 12(b)(6). The Motion is fully briefed.[4]
After considering the parties' briefing, the record of the case, and the applicable law, the Court will grant Defendants' Motion, in part, and will deny it in part.
Visas grant foreign nationals lawful admission into the United States. Generally, visas fall into one of two groups immigrant or nonimmigrant. Foreign nationals who wish to live permanently in the United States must acquire an immigrant visa, while those seeking temporary residence must obtain a nonimmigrant visa. See 8USC§ 1101(15) ( that “[t]he term ‘immigrant' means every alien except an alien who is within one of the following classes of nonimmigrant aliens”). The Immigration and Nationality Act (“INA”), 66 Stat 163, as amended, 8 U.S.C. § 1101 et seq., outlines the visa categories and delineates the procedures for obtaining them. See § 1151 (); § 1101(15) ().
One category of nonimmigrant visa is commonly known as a “U visa” because it is described in subsection (U) of the statute that defines it, § 1101(a)(15)(U). The U visa program was created in 2000 by the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, § 1513(a)(2)(B), 114 Stat. 1464, 1533 (codified at 8 U.S.C. § 1101(a)(15)(U). Authority to promulgate regulations implementing the time and conditions of nonimmigrant admission resides in the Attorney General. § 8 U.S.C. § 1184(a)(1).
The United States Citizenship and Immigration Services (USCIS) administers the U visa program. See 6 U.S.C. § 271(b)(1) (); see also 8 U.S.C. §§ 1103(a)(1), (g)(1) ( powers and duties), 1184(p)(6) ( process). To demonstrate eligibility for a U visa, petitioners must show that they have (1) suffered substantial physical or mental abuse as a result of having been a victim of criminal activity, and (2) that they possess information about that criminal activity, (3) that will be helpful to law enforcement authorities. §1101(a)(15)(U)(i)(I)-(IV). Certain family members of the petitioner are also eligible for derivative U visa status. § 1101(a)(15)(U)(ii).
Only 10, 000 U visas are available within a calendar year. 8 U.S.C. § 1184(p)(2)(A). Derivative petitions are not subject to the cap but depend on the principal petition. Id. § 1184(p)(2)(B); 8 C.F.R. § 214.14(f)(2). Because the demand for U visas exceeds supply, petitioners usually pass through two stages in the petition process.
First, the petitioner must apply for the U visa by filling out form 1-918, Petition for U Nonimmigrant Status. See 8. C.F.R. § 214.14(c)(1) ( application process). If USCIS determines that the applicant meets the eligibility requirements, the approved petitioner either receives U visa status or, if the U visa cap has been met that year, the eligible petitioner is put on a waitlist until a U visa becomes available. § 214.14(d). Each year, U visas are distributed to those on the waitlist in date order, so the petitioners who have been on the waitlist the longest are typically the first to receive an available U visa. § 214.14(d)(2) (). Those on the waitlist remain there from five to ten years before receiving U visa status. Once a petitioner receives U visa status, the petitioner is entitled to temporary lawful residence and an employment adjustment document (EAD). 8 U.S.C. § 1184(p)(3)(B), see also 8 C.F.R. §§ 214.14(c)(7) (). After a nonimmigrant with U visa status has been continuously physically present in the United States for three years, the nonimmigrant may apply for an adjustment of status to that of a person admitted for permanent residence. 8 U.S.C.A. § 1255(m).
While on the waiting list, a petitioner and qualifying family members in the United States receive deferred action or parole. 8 C.F.R. § 214.14(d)(3). “Deferred action” is an INS practice of declining “to institute proceedings, terminate proceedings, or declin[ing] to execute a final order of deportation.” Reno v. Am-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999) (internal quotations and citation omitted). “Parole” permits the Attorney General to allow a nonimmigrant to be temporarily present in the United States. But parole is not a legal admission to the United States as defined by the INA. See 8 U.S.C. § 1182(d)(5)(A). Waitlisted petitioners are not entitled to EADs, except “USCIS, in its discretion may authorize [EADs] for those on the waitlist.” § 1184(p)(6).
On June 14, 2021, USCIS announced a new policy that for certain petitioners accelerates processing of U visa petitions. Doc. 9-1 (). Doc. 9-1. The new policy implements language in § 1184(p)(6) that permits the Secretary of Homeland Security to “grant work authorization [EADs] to any alien who has a pending, bona fide application for nonimmigrant status under section 1101(a)(15)(U) of this title.” See id. at 1-2 n.6. The policy states that “[d]ue to drastic increases in the volume of U nonimmigrant petitions and a growing backlog awaiting placement on the waiting list for final adjudication, ” USCIS will conduct an initial bona fide determination (BFD) review of pending petitions. Id. at 2. Applicants for U visas may receive a BFD if (1) “the principal petition is bona fide, ” (2) the principal petitioner does not “pose a risk to national security or public safety, ” and (3) “the principal petitioner warrants a favorable exercise of discretion to receive employment authorization under INA 214(p)(6).” Id. A BFD exempts the petitioner from full waiting list adjudication and grants the petitioner and qualifying family members EADs and deferred action for four years. Id. If the petitioner does not receive a BFD, the petitioner's application will be set aside for full administrative waitlist review. Id.
All 90 Plaintiffs are nonimmigrants who are either “victims of serious crimes, or close family members of the direct victims who qualify for derivative status.” Doc. 1 ¶ 2. Sometime between November 2016 and January 2019, each Plaintiff completed the 1-918 Petition for Nonimmigrant status. Id. § 6. Seventy-five of the Plaintiffs have filed applications for EADs with their U visas. Id. § 7. As of July 21, 2021, none of the Plaintiffs had received U visas, waitlist placement, BFDs, or EADs. Id. § 8, Doc. 9 at 2.
Plaintiffs' claims rest on allegations that Defendants have unreasonably delayed processing their U visa petitions. Defendants argue that the Court does not have subject matter jurisdiction over these claims, because the pace at which USCIS processes a U visa petition or an EAD is a discretionary decision shielded from judicial review. Alternatively, Defendants assert that under Rule 12(b)(6) the Court must dismiss the Complaint, because Plaintiffs have not alleged facts that support their allegations that USCIS has unreasonably delayed processing their U visa petitions or EAD applications.
Federal courts are courts of limited jurisdiction that “possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (citation omitted). Congress has granted federal courts jurisdiction over claims arising under federal law. See 28 U.S.C. § 1331; Mims v. Arrow Fin. Servs., 565 U.S. 368, 379 (2012) (discussing the origin of federal question jurisdiction). Federal courts must presume that they retain jurisdiction over a federal question unless Congress “expressly or by fair implication” divests it. Mims, 565 U.S. at 379. “[I]n the main [federal courts] have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. Id. at 376
Complaints may be facially or factually...
To continue reading
Request your trial