Gonzalez v. Cissna
| Decision Date | 06 March 2019 |
| Docket Number | No. 4:18-CV-131-BO, No. 7:18-CV-136-BO, No. 4:18-CV-132-BO,No. 7:18-CV-135-BO,7:18-CV-135-BO |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Ansberto Fernandez GONZALEZ, Plaintiff, v. L. Frank CISSNA, Director of United States Citizenship and Immigration Services, and United States Citizenship and Immigration Services, Defendants. Vilma Olivares Salguero, Plaintiff, v. L. Frank Cissna, Director of United States Citizenship and Immigration Services, and United States Citizenship and Immigration Services, Defendants. Camelia Guerrero Antonio and Jacinto Perez Acosta, Plaintiffs, v. L. Frank Cissna, Director of United States Citizenship and Immigration Services, and United States Citizenship and Immigration Services, Defendants. Maria Elena Maldonado Juarez, Plaintiff, v. L. Frank Cissna, Director of United States Citizenship and Immigration Services, and United States Citizenship and Immigration Services, Defendants. |
Bradley B. Banias, Barnwell Whaley Patterson & Helms, LLC, Charleston, SC, Christopher M. Hinnant, Barnwell Whaley Patterson & Helms PLLC, Wilmington, NC, for Plaintiff.
Lori B. Warlick, U.S. Attorney's Office, Raleigh, NC, for Defendants.
This matter is before the Court on defendants' motions. Defendants have moved to stay their answer deadline [DE 12], to dismiss plaintiff Gonzalez's complaint [DE 13], to obtain an extension of time to file a motion to dismiss the consolidated case [DE 18], and to dismiss the consolidated case [DE 20]. Defendants have also moved to seal some of the filings. [DE 15, 22, 27]. All of these matters have been fully briefed and are ripe for disposition. For the reasons that follow, defendants' motion to stay the answer deadline [DE 11] and first motion to dismiss [DE 13] are DENIED AS MOOT, defendants' motion for an extension of time [DE 18] is GRANTED, defendants' second motion to dismiss [DE 20] is GRANTED, and the motions to seal [DE 15, 22, 27] are GRANTED.
Plaintiffs are citizens of Mexico and Honduras who have completed U.S. Citizenship and Immigration Services (USCIS) Form I-918 and petitioned for U Nonimmigrant Status under 8 U.S.C. § 1101(a)(15)(U). Plaintiffs each filed their U-Visa petitions at least 30 months ago, between June 2015 and July 2016, and their petitions have not yet been processed. Each of the plaintiffs either checked a box on their U-Visa petitions indicating that they requested work authorization or completed Form I-765 to apply for work authorization. As of February 2019, defendants had not taken any action on plaintiffs' U-Visa petitions or work authorization requests and had not yet placed any of the plaintiffs on the U-Visa waiting list. While waiting for the adjudication of their U-Visa petitions and work authorizations, each plaintiff also submitted a Freedom of Information Act (FOIA) request on June 25, 2018. In November 2018, USCIS produced documents in response to plaintiffs' FOIA requests.
In October 2000, Congress passed the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, 114 Stat. 1464, amending the Immigration and Nationality Act and creating the U-Visa Program. The U-Visa Program is meant to provide immigration relief to certain crime victims who cooperate with law enforcement in the investigation or prosecution of a crime. 8 U.S.C. § 1101 (a)(15)(U). To qualify, a petitioner must demonstrate "that he or she has suffered substantial physical or mental abuse as a result of having been a victim of a qualifying crime, has credible or reliable information about the crime, has or is helping law enforcement in prosecuting the crime, and is admissible to the United States." 8 C.F.R. § 214.14(b) ; 8 F.C.R. § 214.1(a)(3). To apply, a petitioner must submit Form I-918 along with a sworn certification from a law enforcement officer stating that the petitioner was a victim of a qualifying crime and helpful in the resulting investigation or prosecution. 8 C.F.R. § 214.14. Defendant USCIS then reviews and processes the petition at one of two service centers, mostly in the order in which the petitions are received. USCIS policy authorizes the agency, at its discretion, to expedite the adjudication of certain petitions provided they meet certain criteria. See USCIS, Policy Manual, Volume 1, Part A, Chapter 12 (Feb. 12, 2019). Otherwise, petitions are processed in the order they were filed.
USCIS can only issue 10,000 U Visas per fiscal year. 8 U.S.C. § 1184(p)(2). The number of U-Visa petitions submitted each year greatly exceeds that statutory cap. There is also a large backlog of U-Visa petitions and as of January 2019, the processing date was November 2014. In other words, on average, a petitioner must wait 50 months to receive a waiting list decision after filing a U-Visa petition. Once the statutory cap of 10,000 visas has been reached for a fiscal year, "[a]ll eligible petitioners who, due solely to the cap, are not granted U-1 non-immigrant status must be placed on a waiting list." 8 C.F.R. § 214.14(d)(2). Prior to placement on the waiting list, USCIS conducts a substantive review of the petition to determine whether the statutory cap is the sole obstacle to the granting of a U Visa.
When a petitioner receives a U Visa, he or she also receives corresponding employment authorization. But when a U-Visa petitioner is placed on the waiting list, "in its discretion, USCIS may authorize employment for such petitioners and qualifying family members." 8 C.F.R. § 214.14(d)(2). In December 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act, Pub. L. 110-457, 122 Stat. 5044. The statute included a new provision, codified at 8 U.S.C. § 1184(p)(6), providing that the Secretary of the Department 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) of this title." Defendants interpret 8 U.S.C. § 1184(p)(6) as a discretionary statute and have not "separately implemented" it. [DE 21, p. 13]. So, to summarize, there are currently two routes to work authorization: receipt of a U Visa or, subject to USCIS's discretion, placement on the waiting list. Here, plaintiffs request a third route, arguing that 8 U.S.C. § 1184(p)(6) requires USCIS to timely adjudicate work authorizations for petitioners who have not yet been placed on the waiting list or received a U Visa.
In July 2018, plaintiffs initiated the instant actions against USCIS and its director. Plaintiffs assert five causes of action: (1) that USCIS has unreasonably failed to provide them with work authorizations under 8 U.S.C. § 1184(p)(6), in violation of the "Mandamus Act"; (2) that USCIS has unreasonably delayed the adjudication of their work authorizations under 8 U.S.C. § 1184(p)(6), in violation of the Administrative Procedure Act (APA); (3) that USCIS has unreasonably delayed the adjudication of their work authorization applications, Form I-765, in violation of the APA; (4) that USCIS has unreasonably delayed placing plaintiffs on the U-Visa waiting list, in violation of the APA; and (5) that USCIS has unlawfully withheld documents in response to plaintiffs' FOIA requests. Plaintiffs amended their complaints in November 2018, and in December 2018 the Court consolidated the above-captioned cases for the purposes of discovery and motions filing.
In January 2019, defendants moved to dismiss plaintiffs' complaints under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. [DE 20]. Plaintiffs have responded in opposition.
At the outset, the Court denies as moot defendants' motion to stay the deadline to respond to one of plaintiff Gonzalez's claims and denies as moot defendants' first motion to dismiss, given that since that time the above-captioned cases have been consolidated and amended complaints have been filed. For good cause shown, in light of the complexity and consolidated nature of the case, defendants' motion for an extension of time is allowed, and defendants' second motion to dismiss is therefore timely.
Defendants have moved to dismiss two of plaintiffs' causes of action for lack of subject-matter jurisdiction under Rule 12(b)(1). The existence of subject-matter jurisdiction is a threshold question that a court must address before considering a case's merits. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 88-89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). "Subject-matter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt." Ashcroft v. Iqbal , 556 U.S. 662, 671, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). When subject-matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction to survive the motion. Evans v. B.F. Perkins Co. , 166 F.3d 642, 647-50 (4th Cir. 1999). When a facial challenge to subject-matter jurisdiction is raised, the facts alleged by the plaintiff in the complaint are taken as true, "and the motion must be denied if the complaint alleges sufficient facts to invoke subject-matter jurisdiction." Kerns v. United States , 585 F.3d 187, 192 (4th Cir. 2009). The Court can consider evidence outside the pleadings without converting the motion into one for summary judgment. See, e.g. , Evans , 166 F.3d at 647.
Defendants have also moved to dismiss all of plaintiffs' causes of action for failure to state a claim upon which relief can be granted under Rule 12(b)(6). When considering a motion to dismiss under Rule 12(b)(6), "the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari , 7 F.3d 1130, 1134 (4th Cir. 1993). A complaint must state a...
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