Pulido v. Cuccinelli

• Decision Date: 27 October 2020
• Docket Number: Civil Action No. 2:19-03050-MBS
• Citation: 497 F.Supp.3d 79
• Court: U.S. District Court — District of South Carolina
• Parties: Arturo Jimenez PULIDO, Teresa Ramirez Hernandez, and AYRR (a minor), Plaintiffs, v. Ken CUCCINELLI, Interim Director, United States Citizenship and Immigration Services, to be Named, Acting Secretary, United States Department of Homeland Security, and Donald Neufeld, Associate Director of Service Center Operations, Defendants.

497 F.Supp.3d 79

Arturo Jimenez PULIDO, Teresa Ramirez Hernandez, and AYRR (a minor), Plaintiffs,

v.Ken CUCCINELLI, Interim Director, United States Citizenship and Immigration Services, to be Named, Acting Secretary, United States Department of Homeland Security, and Donald Neufeld, Associate Director of Service Center Operations, Defendants.

Civil Action No. 2:19-03050-MBS

United States District Court, D. South Carolina, Charleston Division.

Signed October 27, 2020

Filed October 29, 2020

Dana S. Fields, Dana Fields LLC, North Charleston, SC, for Plaintiffs.

William H. Jordan, US Attorneys Office, Columbia, SC, for Defendants.

OPINION AND ORDER

MARGARET B. SEYMOUR, Senior United States District Judge

This matter is before the court on the motion to dismiss filed by Defendants Ken Cuccinelli, Interim Director of the United States Citizenship and Immigration Services ("USCIS"), To be Named, Acting Secretary, United States Department of Homeland Security, and Donald Neufeld, Associate Director of Service Center Operations (collectively "Defendants"). ECF No. 8. Plaintiffs Arturo Jimenez Pulido, Teresa Ramirez Hernandez, and AYRR, a minor, (collectively "Plaintiffs") filed their response in opposition to Defendants’ Motion to Dismiss, ECF No. 10, to which Defendants filed a reply, ECF No. 12. The court has subject matter jurisdiction over this matter pursuant to 28 U.S.C § 1331. For the reasons explained below, Defendants’ Motion to Dismiss is granted in part and denied in part.

BACKGROUND

U Visa Program

In 2000 Congress created the U nonimmigrant visa ("U Visa") with the passage of the Victims of Trafficking and Violence Protection Act. Pub. L. No. 106–386, 114 Stat. 1464, codified at 8 U.S.C. § 1101(a)(15)(U). Set aside for immigrant victims of serious crimes, Congress intended the U Visa program to strengthen the ability of law enforcement agencies to detect, investigate, and prosecute crimes, while also protecting the victims of those crimes. Victims of Criminal Activity: U Nonimmigrant Status, U.S. Citizenship and Immigration Services (August 8, 2018, 11:48 AM), https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status. In order for a petitioner to qualify for the U Visa, the Department of Homeland Security ("DHS") must determine that: (1) the petitioner has "suffered substantial physical or mental abuse as a result of having been a victim of criminal activity"; (2) the petitioner "possesses information concerning [the] criminal activity"; (3) the petitioner "has been, is, or is likely to be helpful" to government officials regarding the criminal activity; and, (4) the criminal activity at issue "occurred in the United States." 8 U.S.C. § 1101(a)(15)(U)(i)(I-IV). A "principal" petitioner may file one or more "derivative" petitions on behalf of certain family members. 8 U.S.C. § 1101(a)(15)(U)(ii) ; 8 C.F.R. § 214.14(f)(2). A petitioner must be admissible to the United States or obtain a waiver of inadmissibility. 8 U.S.C. § 1182(a) ; 8 C.F.R. § 214.1(a)(3)(i). The petitioner bears the burden of establishing eligibility. 8 C.F.R. § 214.14(c)(4).

In 2002, Congress created USCIS and assigned it the following functions: (1) adjudications of immigrant visa petitions; (2) adjudications of naturalization petitions; (3) adjudications of asylum and refugee applications; (4) adjudications performed at service centers; and (5) "all other adjudications performed by the Immigration and Naturalization Service immediately before the effective date specified in section 455." Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002).

To obtain a U Visa, the petitioner must file a Petition for U Nonimmigrant Status (Form I-918), a biometric fee or fee waiver request, and "initial evidence" in accordance with instructions to Form I-918. 8 C.F.R. § 214.14(c)(1). The petitioner must also submit a Form I-918, Supplement B (U Nonimmigrant Status Certification), which is a form signed by a designated law enforcement official within six months immediately preceding the submission of petitioner's application to the USCIS. 8 C.F.R. § 214.14(c)(2)(i). This form certifies that the petitioner has been, is being, or is likely to be helpful to the investigation or prosecution of qualifying criminal activity. 8 C.F.R. § 214.14(c)(2)(i). Furthermore, the petitioner must submit documentation that he has suffered direct or proximate harm from the criminal activity; materials related to the petitioner's physical or mental abuse as a victim of the criminal activity; information the petitioner possesses regarding the criminal activity; evidence of the petitioner's helpfulness to law enforcement; evidence that the criminal activity violated United States law or occurred in the United States; and a personal statement. See 8 C.F.R. §§ 214.14(a)(14), (b), (c)(2). Congress enacted a statutory cap of 10,000 U-Visas each fiscal year. 8 U.S.C. § 1184(p)(2)(A).

Defendants assert that Congress directed the Secretary of DHS to promulgate regulations for the U Visa statute, ECF No. 8 at 4 (citing Violence Against Women Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960, 3066 (2006)), and that DHS did so in 2007, giving USCIS sole jurisdiction over U Visa petitions, id. (citing 8 C.F.R. § 214.14 ).

On October 17, 2007, USCIS published a rule creating a regulatory waiting list procedure to accommodate meritorious U-Visa petitions that exceed the annual statutory cap. 8 C.F.R. § 214.14(d)(2). The waiting list provision reads:

All eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement. Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority. In the next fiscal year, USCIS will issue a number to each petition on the waiting list, in the order of highest priority, providing the petitioner remains admissible and eligible for U nonimmigrant status. After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed. USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list. USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members.

8 C.F.R. § 214.14(d)(2).

On December 23, 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act (the "TVPRA"), Pub. L. 110-457, 122 Stat. 5044. The TVPRA specifies that the "Secretary [of DHS] may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 1101(a)(15)(U) of this title." 8 U.S.C. § 1184(p)(6). The employment authorization document allows U Visa applicants to seek lawful employment while they await adjudication of their petitions.

Up until January 2017, the regulation governing authorization of employment provided that "USCIS will adjudicate the [employment authorization document] application within 90 days from the date of receipt of the application," and additionally that "[f]ailure to complete the adjudication within 90 days will result in the grant of an employment authorization document for a period not to exceed 240 days." 8 C.F.R. § 274a.13(d).¹ The U status application form allows for U status principal applicants to request work authorization on the same form used to request U status. This one-step process comported with the rationale in the contemporaneous rulemaking:

For principal aliens seeking their first [work authorization] based upon U nonimmigrant status, USCIS will use the information contained in the Form I-918 to automatically generate [work authorization], such that a separate request for [work authorization] is not necessary .... USCIS has designed the Form I-918 so that it serves the dual purpose of requesting U nonimmigrant status and employment authorization to streamline the application process. Therefore, principal aliens will not have to file additional paperwork to obtain an initial [work authorization].

New Classification for Victims of Criminal Activity; Eligibility for "U" Nonimmigrant Status, 72 Fed. Reg. 53,014 (Sep. 17, 2007).

Factual and Procedural History

Plaintiff Pulido is a citizen of Mexico. In 2013, he was the victim of felonious assault and battery, first degree, and armed robbery, and he reported the assault to law enforcement and assisted law enforcement in the investigation of the crime. Following these events, Plaintiff Pulido filed an I-918, Petition for U Nonimmigrant Status ("I-918 Petition"), in which he requested work authorization, also known as an Employment Authorization Document ("EAD")² and he filed for derivative benefits for his wife, Plaintiff Teresa Ramirez Hernandez, and step-son, Plaintiff AYRR. USCIS received the application package on or around January 29, 2016. As of the time he filed his complaint, Plaintiff Pulido alleges his U Visa application package has been pending at the Vermont Service Center for three years and nine months with no decision regarding eligibility for placement on the wait list or issuance of an EAD. ECF No. 1 at ¶ 30.

Plaintiffs initiated this action on October 28, 2019, by filing a complaint asserting the following: USCIS unreasonably delayed adjudicating Plaintiff Pulido's U Visa application and granting his employment authorization in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 555(b) ; and USCIS has unreasonably delayed the initial prima facie determination of the U Visa application, violating Plaintiffs’ due process rights. ECF No. 1. Plaintiffs seek an order from the court declaring it is unreasonable...