Doe v. Mayorkas

Decision Date28 October 2021
Docket NumberCIVIL 5:21-cv-02430-JMG
Parties#1 JANE DOE, et al., Plaintiffs, v. ALEJANDRO MAYORKAS, et al., Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania


Plaintiff Jane Doe #1, an unauthorized immigrant physically present in the United States, has been waiting four years for adjudication of her U Visa petition. She seeks an Order from this Court requiring the Government to make a decision on her application, one way or another. The Department of Homeland Security (DHS), as Defendant, claims this Court has no authority to consider Plaintiff's request. It argues that Congress has delegated to the Secretary of DHS the discretion over adjudicating such Visas, to the specific exclusion of the federal courts. In granting the motion in part, we find that the case is properly before us and that Plaintiff has properly stated claims upon which relief can be granted.

A. Introduction

Plaintiff Jane Doe #1 is a Mexican citizen who entered the United States with her exhusband in 2002. Compl. ¶ 50, ECF No. 1. She is not . . . legally authorized to be present in the United States.” Id. ¶ 21. Her daughter, Jane Doe #2, entered the United States in 2005 and is a recipient of the Deferred Action for Childhood Arrivals Program. Id. ¶ 22.

Jane Doe #1 endured “constant physical and mental abuse from her husband” after she immigrated to the United States. Id. ¶ 54. In 2003, she secured a protection from abuse order, which her ex-husband subsequently violated. Id. ¶¶ 54-55. Jane Doe #1 reported the violation of the protective order to the police, answered all questions posed to her by responding officers, described what her husband did to her, and identified where he might be found.” Id. ¶ 56. Her exhusband ultimately pleaded guilty to criminal contempt. Id. ¶ 57.

On March 6, 2017, Jane Doe #1 filed a Form I-918 petition for a U Visa, along with a supplemental petition on Jane Doe #2's behalf. Id. ¶¶ 59-60. Four years have passed and the United States Citizenship and Immigration Service (USCIS) has taken no further action. Id. ¶ 61.

B. Statutory and Regulatory Framework

Resolution of this motion turns on interpretation of a complex statutory and regulatory scheme. An overview of the relevant authorities follows.

i. The U Visa Program

In October 2000, Congress amended the Immigration and Nationality Act (INA) and created the U Visa program. See 8 U.S.C. § 1101(a)(15)(U). U Visas afford qualified individuals with temporary resident status and employment authorization. See 8 U.S.C. § 1184(p)(3)(B). Qualified individuals include “victims of rape and other specified crimes who have cooperated, or are likely to cooperate, in the investigation and prosecution of those crimes.” Contreras Aybar v. Sec'y U.S. Dep't of Homeland Sec., 916 F.3d 270, 272 (3d Cir. 2019) (citing 8 U.S.C. § 1101(a)(15)(U)(i)).[1]

“If an individual wishes to apply for a U Visa, they must submit a Form I-918 Petition for U Nonimmigrant Status along with a sworn certification from law enforcement personnel stating that the individual applying for a U Visa was a victim of a qualifying crime, has information about the qualifying crime, and has been helpful to an investigation or prosecution regarding the qualifying crime.” Doe #1 v. Wolfe, No. 1:20-cv-02339, 2021 WL 4149186, at *1 (M.D. Pa. Sept. 13, 2021) (citing 8 C.F.R. § 214.14(c)).

Only 10, 000 U Visas can be issued each year. See 8 U.S.C. § 1184(p)(2)(A).[2] Once USCIS reaches this annual cap, [a]ll eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list.” 8 C.F.R. § 214.14(d)(2) (emphasis added). USCIS grants deferred action[3] to “U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list.” Id. Individuals on the waitlist are also eligible to receive work authorization. Id.

In sum, there are “three stages in the U-Visa process: (1) application submitted but not yet approved; (2) application approved and alien placed on a waiting list; and (3) U-Visa granted.” Gonzalez v. Cuccinelli, 985 F.3d 357, 361 (4th Cir. 2021); see also Barrios Garcia v. U.S. Dep't of Homeland Sec., ___ F.4th ___, 2021 WL 4144034, at *2 (6th Cir. Sept. 13, 2021). Plaintiffs in this case remain in the first stage.

ii. Bona Fide Determination Process

“The Secretary [of Homeland Security] may grant work authorization to any alien who has a pending, bona fide application” for a U Visa. 8 U.S.C. § 1184(p)(6) (emphasis added).

Pursuant to this language, in June 2021, USCIS implemented a new “Bona Fide Determination Process” (the “BFD process”). See USCIS, POLICY MANUAL, Vol. 3, Part C, Ch. 5, (last visited Oct. 18, 2021). “The BFD process provides an opportunity for certain petitioners to receive [work authorization] and deferred action while their petitions are pending.” Id.

Pending U Visa petitions now proceed along one of two possible tracks. First, USCIS “determines whether a pending petition is bona fide.” Id. A bona fide petition is one “made in good faith; without fraud or deceit.” Id. (quoting Black's Law Dictionary (11th ed. 2019)). Petitions that are not bona fide are evaluated for waitlist eligibility. Id. By contrast, for bona fide petitions, USCIS evaluates “whether the petitioner poses a risk to national security or public safety by reviewing the results of background checks, and considers other relevant discretionary factors.” Id. “If USCIS determines a principal petitioner and any other qualifying family members have a bona fide petition and warrant a favorable exercise of discretion, USCIS issues them [work authorization] and grants deferred action.” Id. USCIS has created a helpful flowchart that depicts these parallel tracks.[4]

In sum, deferred action and work authorization are no longer exclusive to petitioners placed on the U Visa waitlist; bona fide petitioners can also receive those benefits.

A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction

The Government first moves to dismiss for lack of subject-matter jurisdiction. FED. R. CIV. P. 12(b)(1). When faced with such a motion, courts must first determine whether it presents a “facial” or “factual” attack. The former “is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court.” Const. Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). The latter “is an argument that there is no subject matter jurisdiction because the facts of the case . . . do not support the asserted jurisdiction.” Id.

The instant motion presents a facial attack. Defs.' Mem. 8, ECF No. 14. As a result, the Rule 12(b)(6) standard of review applies: the Court accepts the Complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the Plaintiffs' favor. Aichele, 757 F.3d at 358.

B. Motion to Dismiss for Failure to State a Claim

The Government also moves to dismiss for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Although the plausibility standard does not impose a probability requirement, it does require a pleading to show more than a sheer possibility that a defendant has acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations omitted). In other words, “there must be some showing sufficient to justify moving the case beyond the pleadings to the next stage of litigation.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008).

Third Circuit courts deploy a three-step analysis when faced with motions to dismiss. First, the Court identifies “the elements [the] plaintiff must plead to state a claim.” Connelly, 809 F.3d at 787 (quoting Iqbal, 556 U.S. at 675). Next, the Court identifies “allegations that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 679). Finally, the Court assumes the veracity of well-pleaded factual allegations, “and then determine[s] whether they plausibly give rise to an entitlement to relief.” Id. (quoting Iqbal, 556 U.S. at 679). For purposes of this analysis, the Court “accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff.” Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011).


Plaintiffs raise two claims. The first claim arises under the Administrative Procedure Act (APA). Count I asks the Court to conclude: (1) that USCIS has violated its “nondiscretionary obligation to determine Jane Doe #1's eligibility for placement on the U-visa waiting list within a reasonable time”; (2) if USCIS determines that Jane Doe #1 qualifies for the waitlist, USCIS has a “nondiscretionary duty to place her on the waiting list, grant her deferred action, and grant her employment authorization”; and (3) if USCIS places Jane Doe #1 on the waitlist, USCIS has a “nondiscretionary duty to grant Jane Doe #2, her qualifying family member, deferred action.” Compl. ¶¶ 63-65.

The second claim arises...

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