Patel v. Rodriguez
| Decision Date | 13 October 2015 |
| Docket Number | No. 15-cv-486,15-cv-486 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | KALPESHKUMAR PATEL and MAGANBHAI PATEL, Plaintiffs, v. LEON RODRIGUEZ, Director, U.S. Citizenship and Immigration Services and JEH JOHNSON, Secretary, Department of Homeland Security, Defendants. |
MEMORANDUM OPINION AND ORDER
The Court grants Defendants' motions to dismiss [14] and [21]. Plaintiffs' claim to compel the USCIS to issue 80,000 U-visas nunc pro tunc is dismissed with prejudice. Their claim for unreasonable delay regarding their U-visa applications is dismissed without prejudice. And their claim for their families' parole is dismissed as moot. Civil case terminated.
Plaintiffs Kalpeshkumar and Maganbhai Patel ("Plaintiffs") filed suit against the heads of the United States Citizenship and Immigration Services ("USCIS") and the Department of Homeland Security ("DHS") (collectively "Defendants") on January 19, 2015, requesting declaratory and mandamus relief with regard to their waitlisted applications for nonimmigrant "U-status." Defendants subsequently filed the instant motion to dismiss, claiming that the Court lacks jurisdiction to hear Plaintiffs' claims and that the claims are insufficient under Rule 12(b)(6).
Immigration is governed by the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101-1503, and its accompanying regulations. In October 2000, Congress enacted the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 105-386, 114. Stat. 1464, which amended the INA and created a new nonimmigrant visa classification for certain aliens who have been victims of serious crimes. See 8 U.S.C. § 1101(a)(15)(U). Five years later, Congress passed the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162, 828, 119 Stat. 3066, which directed the Secretary of Homeland Security to promulgate regulations implementing Section 1101(a)(15)(U).
The USCIS published those rules — the "U-visa regulations" — in 2007. In essence, they allow an alien who both (i) falls victim to a serious crime and (ii) provides meaningful assistance to law enforcement, to apply for a U-visa. See 8 C.F.R. § 214.14(d)(2); 8 U.S.C. § 1184. There is, however, a cap on the number of U-visas that may be issued each year, 8 U.S.C. § 1184(p)(2)(B), and that cap has been reached every year since 2009, (see Pl.'s Br. [Dkt. # 19] at 4), which leaves many U-visa applicants waiting. Anticipating this situation, the USCIS further provided that any U-visa applicants whose petitions are denied because of the cap will be placed on a waiting list and granted "deferred action"1 or "parole,"2 allowing them to remain in the country and maintain employment. 8 C.F.R. § 214.14(d)(2). Better still, the regulations also provide that qualifying family members of waitlisted applicants will receive deferred action or parole, too. Id.
In the instant case, Plaintiffs claim they and their families fit the above criteria, but that the USCIS is frustrating the process by delaying their U-visa applications and wrongfully withholding parole for their families.
On November 13, 2012, Plaintiffs were victims of an armed robbery in Indiana. (Compl., ¶ 15, 16.) Roughly six months later, they each applied for U-visas but were informed that none were available and that their applications would be put on the waiting list. (Id.) Both were then granted deferred action and authorized to work in the United States. (Id.) Unfortunately, though, being in the United States is somewhat of a catch-22 for them: Kalpeshkumar's daughter and Maganbhai's wife are both in India and are otherwise inadmissible aliens. (Id. ¶¶ 19-20.) And because neither family member is in the United States, the USCIS determined that they did not qualify for deferred action, leaving parole as the only avenue for admission. (Id. ¶ 28.) Plaintiffs have since been waiting for that to happen, or, in the alternative, to have their U-visa applications approved. But after two years, they are tired of waiting and decided to sue.
Although it is unclear from the Complaint, Plaintiffs appear to assert two distinct causes of action. First, Plaintiffs contend that the USCIS delayed promulgating U-visa regulations for eight years despite a congressional mandate to do so since October 2000, and that their placement on the waiting list for U-visas was caused by that delay. (Id. ¶¶ 31, 32.) Moreover, on Plaintiffs' account, because the USCIS is required to issue 10,000 U-visas per year, it follows that there is a backlog of 80,000 unused U-visas. (Id.) Accordingly, they seek relief under the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act ("APA") (codified in scattered sections of 5 U.S.C.), and request the Court to compel the USCIS to issue 80,000 U-visas nunc pro tunc. (Compl. at 9.)
Second, Plaintiffs argue that irrespective of their U-visa applications, the USCIS is required to grant their families parole, since 8 C.F.R. § 214.14(d)(2) provides that qualifying family members of waitlisted applicants will be granted either deferred action or parole as well. (Compl. ¶¶ 33-36.) Thus, they seek relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, the Mandamus Act, and the APA, and request the Court to (i) declare the USCIS's practice of not automatically granting parole to qualifying family members as "arbitrary and capricious," and (ii) compel the USCIS to grant parole to their qualifying family members. (Compl. at 9.)
For purposes of a motion to dismiss under either Rule 12(b)(1) or Rule 12(b)(6), the court accepts all well-pleaded factual allegations as true and construes all reasonable inferences in the plaintiff's favor. Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir. 2012). To survive a Rule 12(b)(6) motion, the complaint must set forth a "'short and plain statement of the claim showing that the pleader is entitled to relief.'" Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (citations omitted). A Rule 12(b)(1) motion, in contrast, challenges federal jurisdiction, and the plaintiff bears the burden of establishing the elements necessary for jurisdiction, including standing, have been met. Scanlan, 669 F.3d at 841-42. In ruling on a 12(b)(1) motion, the court may look outside of the complaint's allegations and consider whatever evidence has been submitted on the issue of jurisdiction. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995).
Defendants present several interrelated challenges to Plaintiffs' claims. First, Defendants assert that the Court lacks jurisdiction to hear this case under the APA and the Mandamus Act. Second, Defendants contend that Plaintiffs lack Article III standing. And lastly, they argue thateven if Plaintiffs' claims were somehow reviewable, they would still fail under Rule 12(b)(6). The Court will address each issue in turn.
I. Jurisdiction
Courts can do almost nothing without first having subject-matter jurisdiction over a case. Johnson v. Wattenbarger, 361 F.3d 991, 993 (7th Cir. 2004). To that end, Plaintiffs allege jurisdiction under several statutes, but only two are relevant to this motion: the APA and the Mandamus Act.3 Section 702 of the APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Section 706 of the APA further provides:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—(1) compel agency action unlawfully withheld or unreasonably delayed.
5 U.S.C. § 706(1). While the APA does not itself grant subject-matter jurisdiction to review agency action, the federal-question statute, 28 U.S.C. § 1331, in conjunction with the APA does. Califano v. Sanders, 430 U.S. 99, 105 (1977). Jurisdiction under the Mandamus Act is more straightforward: "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361.
At first glance, Plaintiffs allege precisely the sorts of claims contemplated by both statutes: they ask the Court to compel the USCIS to take action on their allegedly delayed U-visa applications and to grant their families parole that has been unlawfully withheld. Defendants, however, argue that agency actions that are either "nonfinal" or "discretionary" are beyond the Court's jurisdiction. See, e.g., Pittson Coal Group v. Sebben, 448 U.S. 105, 121 (1988) (); 5 U.S.C. § 704 (); 5 U.S.C. § 701(a) (). And since Plaintiffs' applications are still pending, and the decision to deny or grant U-visas/parole is discretionary, Defendants believe that the Court lacks the power to adjudicate this matter. Defendants are mistaken.
Putting aside whether the challenged actions are final or discretionary, courts in this circuit and others are split on whether these issues are properly considered jurisdictional to begin with.4 A careful analysis is therefore appropriate. At the outset, it is important to distinguish "true jurisdictional limitations [from] other types of rules." Minn-Chem, Inc. v. Agrium Inc., 683 F.3d 854, 851 (7th Cir. 2012). "Because the consequences that attach to the jurisdictional label may be so drastic," the...
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