Patel v. Cissna

• Decision Date: 20 August 2019
• Docket Number: CASE NO. 4:18-CV-230 (CDL)
• Parties: Chandubhai Mohanlal PATEL, Plaintiff, v. L. Frank CISSNA, Director, United States Citizenship and Immigration Services, and United States Citizenship and Immigration Services, Defendants.
• Court: U.S. District Court — Middle District of Georgia

400 F.Supp.3d 1373

Chandubhai Mohanlal PATEL, Plaintiff,

v.L. Frank CISSNA, Director, United States Citizenship and Immigration Services, and United States Citizenship and Immigration Services, Defendants.

CASE NO. 4:18-CV-230 (CDL)

United States District Court, M.D. Georgia, Columbus Division.

Signed August 20, 2019

Jerry Britt Thames, J Britt Thames Attorney at Law, Macon, GA 31210, Bradley B. Banias, Charleston, SC, for Plaintiff.

Bowen Reichert Shoemaker, US Attorney's Office, Macon, GA, for Defendants.

ORDER

CLAY D. LAND, CHIEF U.S. DISTRICT COURT JUDGE

Congress has authorized the issuance of a special visa, known as a "U Visa," for a person who is not a citizen of the United States, who is the victim of certain designated crimes committed in the United States, and who qualifies based upon other specific criteria. Plaintiff, a citizen of India, applied for a U Visa over four years ago. The United States Citizenship and Immigration Services ("USCIS") has yet to make a decision on Plaintiff's eligibility for the U Visa or even on his eligibility to be placed on the U Visa "waiting list." The importance of being placed on the waiting list derives from the connection between his status on the waiting list and his ability to obtain employment in the United States. Once a petitioner is placed on the U Visa waiting list, he may be granted authorization to work in the United States. In addition to permitting work authorizations for persons on the waiting list, Congress has authorized USCIS to preliminarily determine whether bona fide U Visa applicants should be provided with work authorizations prior to being placed on the waiting list. USCIS interprets this Congressional authority to be permissive and not mandatory. And its current policy is not to implement a program for determining the eligibility of pre-waiting list U Visa applicants for work authorizations. All applicants must wait until they are officially placed on the U Visa waiting list to receive work authorization. Consequently, the USCIS refuses to evaluate whether Plaintiff qualifies for this work authorization because he has not yet made it onto the U Visa waiting list. Thus, Plaintiff occupies the unenviable position of waiting for over four years to be placed on the waiting list with no action on his application; and while he waits, he cannot work.

Plaintiff simply wants to work while he awaits a decision on his U Visa. He seeks a work authorization prior to being placed on the waiting list. And he argues that Congress has authorized USCIS to give him one. He claims the USCIS is required by statute to at least evaluate whether U Visa applicants qualify for work authorization before they are placed on the U Visa waiting list. According to Plaintiff, this statute gives the USCIS discretion to grant eligible U Visa applicants with pending, bona fide U Visa applications work authorization before the USCIS adjudicates whether the applicant is eligible for placement on the U Visa waiting list. But, USCIS refuses to implement this pre-waiting-list-work-authorization statute and continues to evaluate whether an applicant would qualify for work authorization only at the time it decides whether to place him on the U Visa waiting list. Understandably frustrated by his legal limbo and unable to obtain work authorization in the four-plus years that the USCIS has taken to determine his eligibility for placement on the U Visa waiting list, Plaintiff follows what he has perhaps learned is part of the American way—file a lawsuit.

Plaintiff sues the USCIS and its director pursuant to the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. ("APA"). He asks this Court to order Defendants to adjudicate his eligibility for a temporary work authorization before they decide his eligibility for placement on the U Visa waiting list. He also asks this Court to order Defendants to process his eligibility for the U Visa waiting list promptly, which would allow him to obtain work authorization if granted. During this U Visa process, Plaintiff also sought records from Defendants pursuant to the Freedom of Information Act ("FOIA"). He alleges that they refused to provide those records, and he therefore asserts a FOIA claim under 5 U.S.C. § 552.

Plaintiff's requests don't seem extreme. He is not demanding that this Court order that he be provided with a visa or a work authorization. He simply wants this Court to order Defendants to evaluate whether he qualifies for the relief that Congress has authorized. But reasonableness, common sense, and compassionate public policy are not the guideposts for this Court's subject matter jurisdiction. The Court must closely examine what Congress actually required Defendants to do before determining whether it has the judicial power to order anything. Plaintiff does not dispute that Congress left to Defendants' discretion the decision whether to grant any eligible applicants work authorization at the pre-waiting list stage. But he argues that Defendants did not have the discretion to refuse to adjudicate whether he qualified for pre-waiting list work authorization. Defendants respond that Congress left it completely within their discretion to implement the pre-waiting list work authorization program, which includes their right not to process pre-waiting list work authorization claims. They argue that this Court cannot order Defendants to do something that Congress has not mandated be done. Accordingly, they contend that they are not subject to this Court's jurisdiction for Plaintiff's claim that this Court should order them to decide whether Plaintiff is eligible for a pre-waiting list work authorization.

Defendants do acknowledge that they are required to act upon Plaintiff's request to be placed on the U Visa waiting list. But they insist that their timetable for making a decision on Plaintiff's eligibility for the waiting list is reasonable. Plaintiff alleges that four years is long enough, and that Defendants' delay has been unreasonable.

As explained in the remainder of this Order, Congress has arguably established eligibility criteria, albeit vague ones, for the issuance of pre-waiting list work authorization (i.e., whether a bona fide application is pending); but it has not clearly required Defendants to implement the pre-waiting list work authorization program and adjudicate requests for this discretionary relief. Thus, Plaintiff is not entitled to an order from this Court directing Defendants to adjudicate his eligibility for a pre-waiting list work authorization. The Court has no subject matter jurisdiction to enter such an order. Defendants do have a duty to evaluate in a reasonable manner Plaintiff's request to be placed on the U Visa waiting list. And Plaintiff has pled sufficient facts to avoid dismissal of this claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has also alleged sufficient facts to support his FOIA claim. Consistent with the above and as explained more fully below, Defendants' motion to dismiss (ECF No. 14) is granted as to Plaintiff's claim that he is entitled to have his eligibility for a pre-waiting list work authorization adjudicated under 8 U.S.C. § 1184(p)(6), denied as to Plaintiff's claim that Defendants have unreasonably delayed determining whether Plaintiff should be placed on the U Visa waiting list, and denied as to Plaintiff's FOIA claim. Plaintiff's motion for partial summary judgment (ECF No. 16) on his claim that the Court dismisses today is terminated as moot.

STANDARDS

Defendants' motion to dismiss Plaintiff's pre-waiting list work authorization claim for lack of subject matter jurisdiction and their motion to dismiss Plaintiff's waiting list and FOIA claims for failure to state a claim are evaluated under similar standards. Because Defendants assert a facial challenge to the Court's subject matter jurisdiction, the Court accepts the factual allegations in Plaintiff's complaint to be true and determines whether those allegations authorize the Court to decide the claim. See Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990) (per curiam). Similarly, in evaluating Defendants' motion to dismiss for failure to state a claim, the Court accepts Plaintiff's factual allegations as true. Instead of determining whether the Court has jurisdiction to decide the claims, the Court must evaluate whether those facts "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); Fed. R. Civ. P. 12(b)(6).

BACKGROUND

I. Statutory and Regulatory Background

In October 2000, Congress enacted the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, 114 Stat. 1464, which amended the Immigration and Nationality Act and created the U Visa program. See 8 U.S.C. § 1101(a)(15)(U). To qualify for a U Visa, an applicant must show that he "suffered substantial physical or mental abuse as a result of having been a victim" of a qualifying crime in the United States, has "credible and reliable information" about the crime, and "has, is, or is likely to provide assistance to the investigation or prosecution of the" criminal activity. 8 C.F.R. § 214.14(b). An applicant's qualifying family members may also apply for a derivative U Visa. Id. § 214.14(f).

To apply for a U Visa, the petitioner must submit an I-918 Petition for U Nonimmigrant Status as well as a U Visa certification from a certifying agency stating that the foreign national possesses important information about the crime and will cooperate with the investigation or prosecution. See id. § 214.14(c)(1), (c)(2)(i). The USCIS typically processes these applications in the order received. Id. § 214.14(d)(2). If a petitioner's U Visa application is granted, the petitioner receives a U Visa and work authorization...