Gonzalez v. U.S. Dep't of Homeland Sec.
| Decision Date | 10 November 2020 |
| Docket Number | No. 2:20-cv-1262 WBS JDP,2:20-cv-1262 WBS JDP |
| Citation | 500 F.Supp.3d 1115 |
| Court | U.S. District Court — Eastern District of California |
| Parties | Berta Alicia Lujano GONZALEZ, Jose Luis Salazar Jaramillo, Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, United States Citizenship and Immigration Services, Chad F. Wolf, Acting Secretary of United States Department of Homeland Security, and Kenneth T. Cuccinelli, Senior Official Performing the Duties of the Director, USCIS, Defendants. |
James Leo Betzold, PHV, Pro Hac Vice, Betzold Law, PLC, Holland, MI, Jody L. Winter, Lloyd Winter, PC, Fresno, CA, for Plaintiffs.
Audrey Benison Hemesath, Govt, United States Attorney's Office, Sacramento, CA, for Defendants.
Plaintiffs Berta Alicia Lujano Gonzalez and Jose Luis Salazar Jaramillo brought this action against the United States Department of Homeland Security ("DHS"), the United States Citizenship and Immigration Service ("USCIS"), Chad Wolf, Acting DHS Secretary, and Kenneth Cuccinelli, Senior Official Performing the Duties of the Director, USCIS, (collectively "defendants") alleging unlawful delays in the processing of their requests for nonimmigrant classification and work authorization. Defendants have moved to dismiss plaintiffs’ claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (See Defs.’ Mot. to Dismiss (Docket No. 14).)
Federal Rule of Civil Procedure 12(b)(6) allows for dismissal when the plaintiff's complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The inquiry before the court is whether, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor, the complaint has stated "a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction is appropriate if the complaint, considered in its entirety, fails to allege facts on its face that are sufficient to establish subject matter jurisdiction. In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984-85 (9th Cir. 2008). A defendant can challenge subject matter jurisdiction in one of two ways--through a facial attack or a factual attack. A facial attack "accepts the truth of the plaintiff's allegations but asserts that they are ‘insufficient on their face to invoke federal jurisdiction.’ " Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). A factual attack "contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings." Id. "The plaintiff bears the burden of proving by a preponderance of the evidence that each of the requirements for subject-matter jurisdiction has been met." Id.
This case arises out of defendants’ delay in responding to plaintiffs’ applications for "U Nonimmigrant Status" and employment authorization in October 2016. Federal question jurisdiction under 28 U.S.C. § 1331 is predicated upon the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 - 706.
In October 2000, as part of the Victims of Trafficking and Violence Protection Act of 2000 ("VTVPA"), Pub. L. 106-386, 114 Stat. 1464, Congress created the U nonimmigrant classification (the "U visa"). See 8 U.S.C. § 1101(a)(15)(U). An individual is eligible for a U visa if USCIS determines that the individual (1) is a victim of a qualifying crime committed in the United States; (2) has suffered physical or mental abuse as a result; (3) has credible or reliable information about the crime; (4) has been, is being, or is likely to be helpful to law enforcement in investigating or prosecuting the crime; and (5) is admissible to the United States. 8 U.S.C. § 1182(a) ; 8 C.F.R. §§ 214.14(b), 214.14(c), 214.1(a)(3)(i).
An individual may apply for a U visa using a "Form I-918" petition. 8 U.S.C. § 1101(a)(15)(U). Upon approval by USCIS, the petitioner receives lawful U-1 nonimmigration status and employment authorization for four years. 8 U.S.C. § 1184(p)(6). He or she may also petition for certain qualifying relatives. 8 U.S.C. § 1101(a)(15)(U)(ii).
The number of aliens who may be issued a U visa in the United States is limited by statute to 10,000 per year. See 8 U.S.C. § 1184(p)(2)(A). USCIS has enacted rules establishing a regulatory waitlist process for petitions that would be approvable but for the fact that the annual statutory cap had already been met. See 8 C.F.R. § 214.14(d)(2). Submission of a petition does not automatically place a petitioner on the regulatory waitlist; USCIS must first determine that the petition submitted would be approvable in all respects. See id. Part of this process involves verifying that the petitioner has submitted a required certification from a "Federal, State, or local law enforcement official, prosecutor, judge, or other Federal, State, or local authority investigating criminal activity" stating that the petitioner "has been helpful, is being helpful, or is likely to be helpful" to the authority in investigating a qualifying crime. See 8 U.S.C. §§ 1101(a)(15)(U)(i)(III)-(IV) ; 8 U.S.C. § 1184(p)(1).
Once USCIS determines that a petition is grantable in all respects, the petitioner "must be placed on [the] waiting list and receive written notice of such placement." 8 C.F.R. § 214.14(d)(2). However, no statute or regulation requires USCIS to determine whether a petition is eligible for placement on the regulatory waitlist within a specified period of time or in any particular order. USCIS regulations merely require that "[p]riority on the waiting list ... be determined by the date the petition was filed with the oldest petitions receiving the highest priority." Id.
When USCIS places a petition on the regulatory waitlist, the petitioner and his or her qualifying family members receive "deferred action" (a discretionary determination by the federal government to defer a removal action of the petitioner and qualifying family members), provided they are in the United States. Id.
Non-citizens are only lawfully permitted to work in the United States if they are lawfully admitted for permanent residence or otherwise authorized to be employed. 8 U.S.C. § 1324a ; 8 C.F.R. § 274a.12. USCIS is required by statute to grant work authorization in the form of "employment authorization documents" to petitioners who receive a U visa. See 8 U.S.C. § 1184(p)(3)(B). Additionally, 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). Petitioners may receive employment authorization documents once they have been placed on the waitlist, but USCIS regulations leave this decision to the agency's discretion. See 8 C.F.R. § 214.14(d)(2) ().
Under the USCIS regulations, petitioners for a U visa do not need to submit a separate request or fill out separate paperwork to obtain work authorization, because the Form I-918 petition contains a box petitioners can check to indicate they are also seeking work authorization and thus "serves the dual purpose of requesting U nonimmigrant status and ... employment authorization." New Classification for Victims of Criminal Activity; Eligibility for "U" Nonimmigrant Status, 72 Fed. Reg. 53,014, 53,029 (Sep. 17, 2007). U visa petitioners placed on the waitlist are also eligible for employment authorization based on the fact that they have been granted deferred action, but they must apply separately to receive employment authorization documents. 8 C.F.R. § 274a.12(c)(14) ; 8 C.F.R. § 1.2 ; 8 C.F.R. § 103.2(a)(1).
Former 8 C.F.R. § 274a.13(d) required USCIS to adjudicate applications for work authorization within 90 days. See 8 C.F.R. § 274a.13(d) (2016). If the application for work authorization was not adjudicated within 90 days of USCIS’ receipt, the regulation called for USCIS to grant interim employment authorization documents that expire after a period of no greater than 240 days. See id.
Effective January 17, 2017, however, the 90-day processing deadline and authorization to issue interim employment authorization documents were eliminated via rulemaking. See 81 Fed. Reg. 82398 (Nov. 18, 2016) ("Final Rule"). As a result of the Final Rule, 8 C.F.R. § 274a.13(d) no longer requires that USCIS adjudicate work authorization applications within 90 days, and no longer authorizes the agency to issue interim employment authorization documents.
Plaintiffs submitted I-918 petitions to obtain U visas and work authorization in October 2016, along with required certifications verifying that they had in fact been victims of a qualifying crime and had or were likely to be helpful to law enforcement authorities in investigating the crime. (FAC ¶¶ 48-54.) Plaintiffs submitted their petitions before the amendments to 8 C.F.R. § 274a.13(d), which removed USCIS’ 90-day processing deadline, went into effect in January 2017. (See id. ) To date, USCIS has not issued a decision as to whether to place plaintiffs on the...
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