Gonzalez v. Cuccinelli
| Decision Date | 14 January 2021 |
| Docket Number | No. 19-1435,19-1435 |
| Citation | 985 F.3d 357 |
| Parties | Ansberto Fernandez GONZALEZ; Vilma Olivares Salguero; Camelia Guerrero Antonio; Jacinto Perez Acosta, Plaintiffs – Appellants and Maria Elena Maldonado Juarez, Plaintiff, v. Kenneth T. CUCCINELLI, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services; United States Citizenship and Immigration Services, Defendants – Appellees. Asista; Tahirih Justice Center; Freedom Network (USA) ; Coalition to Abolish Slavery & Trafficking; Casa de Esperanza; National Resource Center on Domestic Violence ; National Domestic Violence Hotline; National Immigrant Justice Center ; Immigration Center for Women and Children, Amici Supporting Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Bradley Bruce Banias, BARNWELL, WHALEY, PATTERSON, AND HELMS, Charleston, South Carolina, for Appellants. Lori B. Warlick, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, Joshua B. Royster, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellees. Julie Carpenter, Richard Caldarone, TAHIRIH JUSTICE CENTER, Falls Church, Virginia; Sejal Zota, ASISTA IMMIGRATION ASSISTANCE, Suffield, Connecticut, for Amici Curiae Non-Profit Organizations.
Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Richardson wrote the opinion, in which Judge Harris and Judge Quattlebaum join.
This case presents a challenge to agency delay and inaction. Plaintiffs are aliens unlawfully present in the United States who seek U-Visas as victims of serious crimes who cooperated with law enforcement. They allege that the Department of Homeland Security has unlawfully withheld or unreasonably delayed adjudication of their U-Visa petitions and their applications for work authorization pending U-Visa approval. Those claims implicate interests that deserve our respect and protection, where we are so empowered. But we lack the power to review Plaintiffs’ work-authorization claims here because the agency is not required to adjudicate Plaintiffs’ requests. We may, however, review Plaintiffs’ claim that Homeland Security unreasonably delayed adjudicating their U-Visa petitions, and that claim cannot be dismissed at this early stage. We therefore dismiss Plaintiffs’ claims relating to their requests for pre-waiting-list work authorization and remand Plaintiffs’ claim relating to U-Visa adjudications.
The Immigration and Nationality Act entrusts Homeland Security with discretionary authority to grant "U nonimmigrant status" to eligible unlawful aliens who are victims of serious crime and who cooperate with law enforcement. That status carries with it important benefits, including protections against deportation and work authorization. But Congress capped the number of U-Visas at 10,000 per year—meaning not all eligible U-Visa applications can be approved. In response, the agency created a "waiting list" for applicants whose applications have been approved and who would have been granted a U-Visa but for the statutory cap. Once on this waiting list, the alien is provided deferred-action status and may be granted work authorization. But before the application is approved and the alien is placed on the waiting list, the agency provides neither deferred-action status nor work authorization. As a result, there are now 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.
About a year after this three-tier regulatory scheme was created, Congress authorized Homeland Security to grant work authorization to aliens who have "pending, bona fide" applications for a U-Visa. 8 U.S.C. § 1184(p)(6). Before this, Homeland Security had relied on its alleged inherent authority to grant work authorizations only to those placed on the waiting list. But despite this new discretionary authority, the agency has not relied on it to expand work authorization beyond those placed on the waiting list. Thus, it has not exercised its discretion to grant work authorizations for aliens who have applied but who have not yet been placed on the waiting list.
Here, Plaintiffs in the first stage—those with pending applications who have not been approved for the waiting list—challenge the agency's delay and inaction. Plaintiffs concede—as they must—that the agency has discretion over whether to grant a U-Visa, to place someone on the waiting list, and to grant work authorization. Rather than challenge the agency's authority over their benefits , they focus on the agency's failure to timely adjudicate their requests. To that end, they allege that the agency has (1) unlawfully withheld or unreasonably delayed adjudication of their claims for pre-waiting-list work authorization, see UJA 9–14 (Cause of Action One, Two, and Three), and (2) unreasonably delayed adjudication of their claims for placement on the U-Visa waiting list, see UJA 14–19 (Cause of Action Four). The district court was unconvinced and dismissed these claims, holding that it lacked jurisdiction over most of the claims for pre-waiting-list work authorizations and that, in any event, all the claims failed on the merits. Plaintiffs now appeal that decision.
We hold that the first three causes of action must be dismissed, and the remaining claim remanded. The work-authorization claims fall beyond our jurisdiction. Under the Administrative Procedure Act and All Writs Act, we can only compel faster agency action if the agency is required to act. But neither congressional statutes nor agency regulations compel the agency to adjudicate these requested pre-waiting-list work authorizations. Without casting doubt on the importance of agency accountability or of providing relief to the aliens among us, we are bound by the narrow role left for us by Congress. In contrast, we reverse the district court's dismissal of the fourth cause of action and hold that Plaintiffs pleaded sufficient facts at this stage to avoid dismissal of their claim of unreasonable delay in placing them on the waiting list.
The Immigration and Nationality Act ("INA") provides the Executive Branch broad authority over the admission of aliens into the United States—as well as the conditions of such admission. See Pub. L. No. 82-414, § 101, 66 Stat. 163 (1952) (). Among other duties, the INA charges the Secretary of Homeland Security "with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens." 8 U.S.C. § 1103(a)(1) ( exceptions); see also id. § 1103(g) (). And the Secretary "shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter." 8 U.S.C. § 1103(a)(3). The Secretary has, in turn, delegated much of that authority to the United States Customs and Immigration Service ("USCIS"). See 6 U.S.C. § 112(b)(1) (); see also 8 C.F.R. § 2.1.
One important aspect of that delegated authority is USCIS's responsibility for administering the U-Visa Program. 8 C.F.R. § 214.14(c)(1). The U-Visa classification covers eligible aliens who are victims of serious crime and who cooperate with law enforcement. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, § 1513(a)(2)(B), 114 Stat. 1464, 1533 (2000) (codified at 8 U.S.C. § 1101(a)(15) ) ("Victims of Trafficking Act"). Established in 2000, this classification provides a set of immigration protections and privileges (including work authorization) for aliens who are both eligible for and granted U-Visas by the agency. See 8 U.S.C. § 1101(a)(15)(U) (); 8 U.S.C. § 1184(p) ().
Congress amended this program in the Violence Against Women and Department of Justice Reauthorization Act of 2005 ("Violence Against Women Act"), Pub. L. 109-162, 119 Stat. 2960 (2006). This Act directed the Secretary of Homeland Security to promulgate regulations implementing the statutory U-Visa provisions. Id. § 828. To comply with this statutory mandate, USCIS—wielding the Secretary's delegated authority—promulgated regulations to govern the conferral of U-Visas. See 72 Fed Reg. 53,036 (Sept. 17, 2007) (codified at 8 C.F.R. § 214.14 ); see also 72 Fed. Reg. 54,813 (Sept. 27, 2007) ; 74 Fed. Reg. 55,738 (Oct. 28, 2009) ; 78 Fed. Reg. 18,472 (March 27, 2013) ; 81 Fed. Reg. 91,670 (Dec. 19, 2016).
These statutory and regulatory provisions—the Victims of Trafficking Act, the Violence Against Women Act, and the USCIS regulations—provide the basic framework for the U-Visa Program as it currently stands. To apply for a U-Visa, an alien must file a petition with USCIS. See 8 U.S.C. § 1101(a)(15)(U)(i) ; 8 C.F.R. § 214.14(c)(1). An alien qualifies if the Secretary of Homeland Security (and USCIS as his designee) determines that the alien: (1) "has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity"; (2) "possesses information concerning [the] criminal activity"; (3) "has been helpful, is being helpful, or is likely to be helpful to [government officials] investigating or prosecuting [the] criminal activity"; and (4) the criminal activity is a covered...
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