Garcia v. U.S. Dep't of Homeland Sec.

• Decision Date: 10 February 2022
• Docket Number: Nos. 21-1037/1056/1063,No. 21-5022,s. 21-1037/1056/1063,21-5022
• Parties: Edmer Eudulio BARRIOS GARCIA (21-1037); Douglas Arguijo (21-1056); Ardiles Yasdami Mendez Mendez and Limny Erivelba Lopez Mazariegos (21-1063), Plaintiffs-Appellants, v. U.S. DEPARTMENT OF HOMELAND SECURITY et al., Defendants-Appellees. Sudhaben Pankajkumar Patel, Pankajkumar Ishwarlal Patel, Nikiben Pankajkumar Patel, and Sahilkumar Pankajkumar Patel (21-5022), Plaintiffs-Appellants, v. Tracy Renaud, Senior Official Performing the Duties of the Director for U.S. Citizenship and Immigration Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

25 F.4th 430

Edmer Eudulio BARRIOS GARCIA (21-1037); Douglas Arguijo (21-1056); Ardiles Yasdami Mendez Mendez and Limny Erivelba Lopez Mazariegos (21-1063), Plaintiffs-Appellants,

v.U.S. DEPARTMENT OF HOMELAND SECURITY et al., Defendants-Appellees.

Sudhaben Pankajkumar Patel, Pankajkumar Ishwarlal Patel, Nikiben Pankajkumar Patel, and Sahilkumar Pankajkumar Patel (21-5022), Plaintiffs-Appellants,

v.Tracy Renaud, Senior Official Performing the Duties of the Director for U.S. Citizenship and Immigration Services, Defendant-Appellee.

Nos. 21-1037/1056/1063

No. 21-5022

United States Court of Appeals, Sixth Circuit.

Argued: July 21, 2021

Decided and Filed: February 10, 2022

ARGUED: Bradley B. Banias, WASDEN BANIAS, LLC, Charleston, South Carolina, for all Appellants. Elizabeth R. Veit, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees in 21-1037 and 21-1063. T. Monique Peoples, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees in 21-1056 and 21-5022. ON BRIEF: Bradley B. Banias, WASDEN BANIAS, LLC, Charleston, South Carolina, for all Appellants. James Betzold, BETZOLD LAW PLC, Holland, Michigan, for Appellants in 21-1037, 21-1056, and 21-1063. T. Monique Peoples, Elizabeth R. Veit, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Before: SILER, MOORE, and DONALD, Circuit Judges.

AMENDED OPINION

KAREN NELSON MOORE, Circuit Judge.

Edmer Eudulio Barrios Garcia, Doublas Arguijo, Ardiles Yasdami Mendez Mendez, and Sudhaben Pankajkumar Patel are noncitizens. They were victims of grave crimes; they cooperated with law enforcement. They applied for U-visas and authorization to work; Mendez Mendez and Patel sought derivative U-visas and work authorization for some of their family members. These noncitizens have waited years for U.S. Citizenship and Immigration Services (USCIS)—a division of the Department of Homeland Security (DHS)—to adjudicate their applications. Plaintiffs have been and remain unable to obtain lawful employment, to visit their family members who live abroad, or to attain deferred-action status that would protect them from removal from this country. Plaintiffs sued USCIS and DHS, alleging that the agencies have unreasonably delayed placing the principal applicants on the U-visa waitlist and adjudicating Plaintiffs’ work-authorization applications. While this appeal pended, USCIS announced a new program for persons with pending U-visa applications known as the "Bona Fide Determination Process." The parties contest whether this nascent program moots Plaintiffs’ claims.

We must decide whether this case is moot, whether the Administrative Procedure Act (APA) allows the federal courts to review Plaintiffs’ two claims, the scope of our review, and the claims’ sufficiency. We hold that the issuance of the Bona Fide Determination Process moots no part of this case. We further hold that 5 U.S.C. § 701(a)(1), 8 U.S.C. § 1252(a)(2)(B)(ii), and 5 U.S.C. § 701(a)(2) do not prevent the federal courts from reviewing claims that USCIS has unreasonably delayed placing principal petitioners on the U-visa waitlist and adjudicating prewaitlist work-authorization applications. We hold that the federal courts may compel USCIS to place principal petitioners on the U-visa waitlist when an unreasonable delay has occurred per 5 U.S.C. § 706(1). We conclude that 8 U.S.C. § 1184(p)(6) and the Bona Fide Determination Process require USCIS to decide whether a U-visa application is "bona fide" before the agency can exercise its discretion and decide whether principal petitioners and their qualifying family members may receive Bona Fide Determination Employment Authorization Documents. We thus hold that 5 U.S.C. § 706(1) permits the federal courts to hasten an unduly delayed "bona fide" determination. But we also hold that § 706(1) does not allow the federal courts to force USCIS to adjudicate prewaitlist work-authorization applications.

To that end, we conclude that Plaintiffs have pleaded sufficient facts that the principal petitioners’ delayed waitlist determinations have harmed Plaintiffs’ health and welfare; Plaintiffs’ waitlist claim should thus survive the Government's motions to dismiss. Although we cannot review Plaintiffs’ work-authorization claim, the implementation of the Bona Fide Determination Process during this appeal compels us to conclude that Plaintiffs should be permitted to amend their complaints should they wish to challenge any delayed "bona fide" determinations. We thus REVERSE and REMAND .

I. BACKGROUND

Congress has authorized DHS to grant U-visas to noncitizen victims of serious crimes who cooperate with law enforcement and to the noncitizens’ qualifying family members. See 8 U.S.C. §§ 1103(a)(1), 1101(a)(15)(U) ; 8 C.F.R. § 214.14(a)(10). Management of the U-visa application process is delegated to USCIS, an agency within DHS. See 6 U.S.C. § 112(b)(1) ; 8 C.F.R. § 214.14. Noncitizens can petition for U-nonimmigrant status by filing an I-918 form and for work authorization by filing an I-765 form; they can seek U-nonimmigrant status for their qualifying family members by filing a supplement to the I-918 form. See 8 C.F.R. § 214.14(c)(1), (c)(7), (f)(2), (f)(7). The principal petitioner must be granted U-nonimmigrant status in order for any qualifying family member to receive derivative U-nonimmigrant status. See id. § 214.14(d)(2), (f)(2) ; USCIS, POLICY MANUAL , Vol. 3, Part C, Ch. 2, § B, https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-2 (last visited July 27, 2021).

Congress capped the number of U-visas that can be granted to principal applicants at 10,000. See 8 U.S.C. § 1184(p)(2)(A). The cap does not apply to qualifying family members. See id. § 1184(p)(2)(B) ; 8 C.F.R. 214.14(f)(6)(i). But far more than a myriad of persons are eligible for and have sought U-visas. In 2020, USCIS received 22,358 U-visa applications from victims of crime and 14,090 derivative petitions from the victims’ family members. As of last year, there were 161,708 pending U-visa applications and 108,366 pending derivative petitions. USCIS, NUMBER OF FORM I 918, PETITION FOR U NONIMMIGRANT STATUS BY FISCAL YEAR, QUARTER, AND CASE STATUS , https://www.uscis.gov/sites/default/files/document/reports/I918u_visastatistics_fy2020_qtr4.pdf.

To accommodate this deluge of applications, DHS promulgated a three-step waitlist framework for U-visa applicants: (1) a U-visa application is submitted; (2) an application is approved and the petitioner is put on the U-visa waitlist; and (3) a U-visa is granted. See 8 C.F.R. § 214.14.

First, a person petitions USCIS for U-nonimmigrant status for themselves and derivative U-nonimmigrant status for their qualifying family members by filing an I-918 form and appropriate supplements. See 8 U.S.C. § 1101(a)(15)(U)(i) ; 8 C.F.R. § 214.14(c)(1), (f)(1), (f)(2). USCIS considers whether the principal applicant is eligible for a U-visa. See 8 U.S.C. § 1101(a)(15)(U)(i), (iii). Under 8 U.S.C. § 1184(p)(6), "[t]he [DHS] Secretary may grant work authorization to any [noncitizen] who has a pending, bona fide application for nonimmigrant status under section 1101(a)(15)(U) of this title." But, until June 14, 2021, DHS had never implemented a regime to grant work authorization to persons with "pending, bona fide" U-visa applications. We return to this later.

Second, if USCIS decides that the principal petitioner qualifies for a U-visa but cannot be granted the visa solely because of the 10,000-person cap, USCIS approves the application and the applicant "must be placed on [the] waiting list" per DHS regulations. 8 C.F.R. § 214.14(d)(2). When a principal petitioner is placed on the waitlist, they and their qualifying family members "will" be accorded deferred-action status, and USCIS maintains "discretion" to grant them work authorization. Id.

Third, USCIS grants the principal applicant's U-visa and accords U-nonimmigrant status to the petitioner and their qualifying family members. Id. § 214.14(c)(5), (f)(6). USCIS automatically issues employment authorization to the noncitizens per 8 U.S.C. § 1184(p)(3)(B) —which stipulates that "the Attorney General shall ... provide the [noncitizen] with employment authorization"—and DHS regulations, see 8 C.F.R. 214.14(c)(7), (f)(7).

Edmer Eudulio Barrios Garcia, Doublas Arguijo, Ardiles Yasdami Mendez Mendez, and Sudhaben Pankajkumar Patel are noncitizens. They were victims of serious crimes, and they cooperated with law enforcement. They have applied for U-visas—becoming principal petitioners—and work authorization. Mendez Mendez and Patel have sought derivative U-nonimmigrant status and work authorization for some of their family members. USCIS has not placed the principal petitioners on the U-visa waitlist; nor has the agency approved the noncitizens’ work-authorization applications. So all these noncitizens are stuck at step one of the three-tier waitlist framework.

The principal petitioners and their qualifying family members sued USCIS and DHS, raising two claims. Plaintiffs complain that the agencies have unreasonably delayed or unlawfully withheld placing the principal petitioners on the U-visa waitlist and adjudicating Plaintiffs’ work-authorization applications. See Barrios Garcia R. 22 (First Am. Compl. at 11–24) (Page ID #151–64); Arguijo R. 28 (Second Am. Compl. at 11–24) (Page ID #207–20); Mendez Mendez R. 20 (First Am. Compl. at 12–24) (Page ID #121–33); Patel R. 1 (Compl. at 11–19) (Page ID #11–19).

The Western District of Michigan dismissed Barrios Garcia's, Arguijo's and the Mendez Mendezes’ cases and the Eastern District of Kentucky dismissed the Patels’ suit. The Michigan district court found that the federal courts lack subject-matter jurisdiction to consider the waitlist and work-authorization claims; the Kentucky district court found that it had subject-matter jurisdiction over the former but not the latter claim. Both courts found that Plaintiffs had failed to state a claim that USCIS had unreasonably...