Moreno v. Wolf

Decision Date01 September 2021
Docket NumberCIVIL ACTION FILE NO. 1:20-CV-3921-TWT
Citation558 F.Supp.3d 1357
Parties Mauricio Garcia MORENO, et al., Plaintiffs, v. Chad F. WOLF in his official capacity as Acting Secretary of Homeland Security, et al., Defendants.
CourtU.S. District Court — Northern District of Georgia

Danielle M. Claffey, Kuck Baxter Immigration, LLC, Atlanta, GA, for Plaintiffs.

Trishanda L. Treadwell, Department of Justice, Atlanta, GA, for Defendants.


THOMAS W. THRASH, JR., United States District Judge

This action arises out of the United States Citizenship and Immigration Services’ ("USCIS") allegedly unreasonable delay in adjudicating U-visa applications and related work authorization under the Immigration and Nationality Act ("INA"). It is before the Court on the DefendantsMotion to Dismiss [Doc. 7]. For the reasons set forth below, the Court GRANTS in part and DENIES in part the DefendantsMotion to Dismiss [Doc. 7].

I. Background

Plaintiff Mauricio Garcia Moreno ("Moreno") is a native and citizen of Mexico who entered the United States unlawfully in May 2001. (Compl. ¶ 18.) His spouse, Plaintiff Nadia Sadruddin Hamid ("Hamid"), is a native and citizen of India who entered the United States on a K-1 visa as the fiancée of a U.S. citizen in May 2003. (Id. , Ex. A at 34.) She currently has no lawful status. (Id. , Ex. A at 36.) In February 2010, Moreno was the victim of an armed robbery while working as a convenience store cashier in Alexander City, Alabama. (Id. , Ex. A at 20–21.) He assisted law enforcement with the investigation and received a Form I-918B from the Alexander City Police Department to certify his helpfulness. (Id. , Ex. A at 20.) Although Moreno suffered no physical injuries during the robbery, a psychosocial evaluation found that he bears psychological effects from the incident, including anxiety and post-traumatic stress disorder

. (Id. , Ex. A at 89–92.) Based on these events, on May 11, 2016, Moreno and Hamid applied for U nonimmigrant status, known as a U-visa, and work authorization with the USCIS. (Id. , Ex. A.)

The U-visa program grants lawful temporary resident status and work authorization to an individual who (1) "has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity" in the United States; (2) "possesses credible and reliable information ... concerning the qualifying criminal activity"; and (3) "has been helpful, is being helpful, or is likely to be helpful to a certifying agency in the investigation or prosecution of the qualifying criminal activity[.]" 8 C.F.R. § 214.14(b) ; see also 8 U.S.C. §§ 1101(a)(15)(U), 1184(p)(3). The USCIS is permitted to issue only 10,000 U-visas per year. 8 U.S.C. § 1184(p)(2). Because there are far more applications than available U-visas, the USCIS has established a regulatory waitlist where meritorious applications are placed until a U-visa becomes available. 8 C.F.R. § 214.14(d)(2). While on the waitlist, an applicant and his qualifying family members automatically receive deferred action or parole and, in the discretion of the USCIS, may receive work authorization. Id. However, the USCIS does not extend any benefits, including deferred action and work authorization, to an applicant and his family prior to certifying their eligibility for the waitlist. (Defs.’ Mot. to Dismiss, at 10–11.)

The Plaintiffs filed this action on September 21, 2020, after waiting more than four years for the USCIS to adjudicate their U-visa applications. (Compl. ¶ 4.) To date, the USCIS has neither issued U-visas to the Plaintiffs nor placed their applications on the waitlist; consequently, the Plaintiffs have not yet received work authorization. (Id. ¶ 14.) The Plaintiffs assert seven causes of action against the Defendants, which can be summarized as follows: (1) claims under the Administrative Procedure Act ("APA") and the Mandamus Act for unreasonable delay in adjudicating the Plaintiffs’ U-visa applications to determine their eligibility for the waitlist;1 (2) claims under the APA and the Mandamus Act for failure to issue the Plaintiffs work authorization pending review of their U-visa applications under 8 U.S.C. § 1184(p)(6) ;2 (3) claims under the APA and the Mandamus Act for failure to issue the Plaintiffs interim work authorization within 90 days of filing their U-visa applications under 8 C.F.R. § 274a.13(d) ;3 and (4) a claim under the APA for failure to follow notice-and-comment procedures in repealing 8 C.F.R. § 274a.13(d).4 (Id. ¶¶ 43–78.) The Defendants move to dismiss all claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim. (Defs.’ Mot. to Dismiss, at 1.)

II. Legal Standard

A complaint should be dismissed under Rule 12(b)(1) only where the court lacks jurisdiction over the subject matter of the dispute. Fed. R. Civ. P. 12(b)(1). "Because a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case[.]" Smith v. GTE Corp. , 236 F.3d 1292, 1299 (11th Cir. 2001). Attacks on subject matter jurisdiction come in two forms: "facial attacks" and "factual attacks." Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A. , 104 F.3d 1256, 1260 (11th Cir. 1997). Facial attacks on the complaint "require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Id. at 1261 (internal quotation marks, citation, and punctuation omitted). On a facial attack, therefore, "a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion[.]" Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990).

A complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state a "plausible" claim for relief. Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ; Fed. R. Civ. P. 12(b)(6). A complaint may survive a motion to dismiss for failure to state a claim even if it is "improbable" that a plaintiff would be able to prove those facts; even if the possibility of recovery is extremely "remote and unlikely." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. See Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A. , 711 F.2d 989, 994–95 (11th Cir. 1983) ; see also Sanjuan v. American Bd. of Psychiatry & Neurology, Inc. , 40 F.3d 247, 251 (7th Cir. 1994) (noting that at the pleading stage, the plaintiff "receives the benefit of imagination"). Generally, notice pleading is all that is required for a valid complaint. See Lombard's, Inc. v. Prince Mfg., Inc. , 753 F.2d 974, 975 (11th Cir. 1985), cert. denied , 474 U.S. 1082, 106 S.Ct. 851, 88 L.Ed.2d 892 (1986). Under notice pleading, the plaintiff need only give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. See Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).

III. Discussion

The Plaintiffs assert subject matter jurisdiction under 28 U.S.C. § 1331 (the general federal question statute) and 28 U.S.C. § 1361 (the Mandamus Act). (Compl. ¶ 15.) "The federal question statute confers jurisdiction on the district courts over actions ‘arising under’ federal law," including the APA. Grinberg v. Swacina , 478 F. Supp. 2d 1350, 1355 (S.D. Fla. 2007). Mandamus, meanwhile, "is an extraordinary remedy available only in the clearest and most compelling of cases." Serrano v. United States Att'y Gen. , 655 F.3d 1260, 1263 (11th Cir. 2011). To obtain mandamus relief, a plaintiff must show that (1) he has a clear right to the relief requested; (2) the defendant has a clear duty to act; and (3) no other adequate remedy is available. See id. Where, as here, a plaintiff invokes "the Court's mandamus jurisdiction to compel action but not to direct the exercise of judgment or discretion, mandamus jurisdiction is coextensive with the remedies available under the APA. Courts apply the same principles and standards both to determine jurisdiction and to assess the merits of both claims." Grinberg , 478 F. Supp. 2d at 1354–55 (internal citation and emphasis omitted). Therefore, the Court merges its analysis of the Plaintiffs’ APA and mandamus claims on this motion to dismiss.

A. Counts I and III: Unreasonable Delay in Determining Eligibility for U-Visa Waitlist
1. Subject Matter Jurisdiction

The Plaintiffs first claim that the USCIS has unreasonably delayed adjudicating their U-visa applications to determine their eligibility for the waitlist, in violation of the APA. See 5 U.S.C. § 555(b) ("[E]ach agency shall proceed to conclude a matter presented to it ... within a reasonable time[.]"). The Defendants, however, argue that the Court lacks jurisdiction over this claim under 8 U.S.C. § 1252(a)(2)(B)(ii). (Defs.’ Mot. to Dismiss, at 18.) Section 1252(a)(2)(B)(ii) forbids a court from reviewing "any other decision or action of ... the Secretary of Homeland Security the authority for which is specified under this subchapter to be in [his] discretion[.]" 8 U.S.C. § 1252(a)(2)(B). According to the Defendants, the USCIS has discretion to adjudicate U-visa applications at its own pace—and judicial review is thus barred—because Congress did not impose a statutory timeline. (Defs.’ Mot. to Dismiss, at 19–20.) The Defendants claim support for their argument in 8 U.S.C. § 1184(a)(1), which permits the USCIS to enact regulations for admitting nonimmigrants to the United States, including as part of the U-visa program. (Id. )

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