Catholic Charities Cyo v. Chertoff, C 07-1307 PJH.

• Decision Date: 22 December 2008
• Docket Number: No. C 07-1307 PJH.,C 07-1307 PJH.
• Citation: 622 F.Supp.2d 865
• Parties: CATHOLIC CHARITIES CYO, et al., Plaintiffs, v. Michael CHERTOFF, et al., Defendants.
• Court: U.S. District Court — Northern District of California

622 F.Supp.2d 865

CATHOLIC CHARITIES CYO, et al., Plaintiffs, v. Michael CHERTOFF, et al., Defendants.

No. C 07-1307 PJH.

United States District Court, N.D. California.

December 22, 2008.

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Angela Catherine Viramontes, Carlos R. Holguin, Peter Anthony Schey, Cynthia Lucas, Daniel Joseph Sharp, Andres Bustamante, Bustamante and Associates, PLC, Los Angeles, CA, Ivy Chloe Lee, API Legal Outreach, Victor Murray Hwang, Asian Pacific Islander Legal Outreach, San Francisco, CA, James Parry Eyster, Ann Arbor, MI, Julie E. Dinnerstein, Sanctuary for Families, Brooklyn, NY, Kenneth William Babcock, Kirsten Marie Kreymann, Santa Ana, CA, for Plaintiffs.

Ila Casy Deiss, United States Attorney's Office, San Francisco, CA, Jeffrey S. Robins, Victor M. Lawrence, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants.

ORDER GRANTING MOTION TO DISMISS

PHYLLIS J. HAMILTON, District Judge.

The motion of defendants Michael Chertoff, Security ("the Secretary"); U.S. Department of Homeland Security ("DHS"); and U.S. Citizenship and Immigration Services ("USCIS") to dismiss the first amended complaint ("FAC") for lack of subject matter jurisdiction and failure to state a claim came on for hearing before this court on June 25, 2008. Plaintiffs appeared by their counsel Peter A. Schey and Carlos R. Holguin, and defendants appeared by their counsel Jeffrey S. Robins. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS the motion.

STATUTORY AND REGULATORY BACKGROUND

With the enactment of the Victims of Trafficking and Violence Protection Act of 2000 ("VTVPA"), Congress created the "U" nonimmigrant classification ("U" visa) for victims of certain qualifying crimes. VTVPA, Pub.L. 106-386, 114 Stat. 1464 (2000), codified at §§ 101(a)(15)(U), 214(p), and 245(m) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101(a)(15)(U), 1184(p), and 1255(m).¹

The VTVPA, permits nonimmigrants (undocumented immigrants) who are victims of serious crimes and who assist law enforcement in investigating and prosecuting those crimes to apply for and receive "U" visas. The duration of the "U" visa is four years. An immigrant who has held a "U" visa for three years may apply for lawful permanent resident status.

Congress enacted the "U" visa provision in order to

strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes described in section 101(a)(15)(U)(iii) of the Immigration and Nationality Act committed against aliens, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States. This visa will encourage law enforcement officials to better serve immigrant crime victims and to prosecute crimes committed against aliens.

VTVPA, Pub.L. 106-386, at § 1513(a)(2)(A). Congress intended that the "U" visa provision would facilitate the reporting of crimes to law enforcement officials by "trafficked, exploited, victimized, and abused aliens who are not in lawful immigration status" and would give "law enforcement officials a means to regularize the status of cooperating individuals during investigations or prosecutions." Id. at § 1513(a)(2)(B).

The "U" nonimmigrant visa is available for issuance to an alien who,

(i) subject to [8 U.S.C. § 1184(p)], . . . files a petition for status under this subparagraph, if the Secretary of Homeland Security determines that—

(I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii);

(II) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity described in clause (iii);

(III) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and

(IV) the criminal activity described in clause (iii) violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States;

(ii) if accompanying, or following to join, the alien described in clause (i)—

(I) in the case of an alien described in clause (i) who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause, and parents of such alien; or

(II) in the case of an alien described in clause (i) who is 21 years of age or older, the spouse and children of such alien; and

(iii) the criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnaping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes;

8 U.S.C. § 1101(a)(15)(U)(i)-(iii).

A petitioner may not submit an "U" visa application without first obtaining a law enforcement certification ("LEC") from a federal, state, or local law enforcement official, prosecutor, judge, or other federal, state, or local authority investigating the criminal activity described in § 1101(a)(15)(U)(iii), above, stating that the alien "has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of" such criminal activity, investigating specific criminal activity. See 8 U.S.C. § 1184(p)(1). The certification may also be provided by a DHS official whose ability to provide such certification is not limited to information concerning immigration violations. Id.

Congress also empowered the Attorney General² with discretion to convert the status of such immigrants to that of permanent residents "when doing so is justified on humanitarian grounds, for family unity, or is otherwise in the public interest." See VTVPA, Pub.L. 106-386, at § 1513(a)(2)(C). Thus, under 8 U.S.C. § 1255(m), the Secretary "may adjust the status of an alien admitted into the United States (or otherwise provided nonimmigrant status) under [the "U" visa provision of § 1101(a) (15)(U)] to that of an alien lawfully admitted for permanent residence . . . ." 8 U.S.C. § 1255(m)(1).

In addition, if the Secretary has approved the adjustment of status of an alien under subsection (1), the Secretary "may adjust the status of or issue an immigrant visa to a spouse, a child, or in the case of an alien child, a parent who did not receive a nonimmigrant visa [under the "U" visa provision of § 1101(a)(15)(U)] if the Secretary considers the grant of such status or visa necessary to avoid extreme hardship." 8 U.S.C. § 1255(m)(3).

When it enacted the VTVPA, Congress did not provide a deadline for the affected agencies to promulgate regulations with regard to the "U" visas. In 2005, Congress passed the Violence Against Women Act ("VAWA 2005"), which the president signed on January 5, 2006. That act required the Attorney General, the Secretary of Homeland Security, and the Secretary of State to promulgate regulations to implement the "U" visa sections of the VTVPA "not later than 180 days after the date of enactment." VAWA 2005, Pub.L. 109-162 at § 828, 119 Stat. 2960, 3006, codified at 8 U.S.C. § 1101. Thus, the deadline for promulgation of the "U" visa regulations was July 4, 2006.

In the absence of final regulations, the Department of Homeland Security operated from interim guidance with regard to the "U" visa applications. On August 30, 2001 and on October 8, 2003, the Immigration and Naturalization Service ("INS") and USCIS³ issued interim guidance to establish interim procedures to be followed while the agencies acted to promulgate regulations implementing the "U" visa and its protections. Mem. from Michael D. Cronin to Michael A. Pearson, re VTVPA Policy—"T" and "U" Nonimmigrant Visas (Aug. 30, 2001); Mem. from William R. Yates to Director, Vermont Service Center, re Centralization of Interim Relief for U Nonimmigrant Status Applications (Oct. 3, 2003).

This guidance, now superceded by the interim final regulations, allowed potential "U" victims who established prima facie eligibility for "U" non-immigrant status to be placed in deferred action, paroled, or granted stays of removal, and to be granted work authorization to work in the United States, to ensure that they were not removed from the country before the agency could determine whether they were eligible for relief. The guidance also provided that such victims might receive work authorization.

Prior to the promulgation of the final regulations, there was no formal application to be used for "U" visas. The October 3, 2003 guidance provided that aliens who believed they qualified for interim relief could submit correspondence along with evidentiary proof addressing the four criteria listed in 8 U.S.C. § 1101(a)(15) (U)(i)(I)-(IV). If the applicant did not submit sufficient information to establish prima facie eligibility, or was otherwise determined to be...