Rodriguez v. Nielsen, 16-CV-7092 (MKB)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtMARGO K. BRODIE, United States District Judge
Decision Date30 September 2018
PartiesCRISTIAN RODRIGUEZ, Plaintiff, v. KIRSTJEN NIELSEN, Secretary of Homeland Security, L. FRANCIS CISSNA, Director of United States Citizenship And Immigration Services, MICHAEL PAUL, Director of United States Citizenship and Immigration Services Vermont Service Center, MARK HAZUDA, Director of United States Citizenship and Immigration Services Nebraska Service Center, and DONALD NEUFELD, Director of United States Citizenship and Immigration Services Service Center Operations, Defendants.
Docket Number16-CV-7092 (MKB)

CRISTIAN RODRIGUEZ, Plaintiff,
v.
KIRSTJEN NIELSEN, Secretary of Homeland Security,
L. FRANCIS CISSNA, Director of United States Citizenship And
Immigration Services, MICHAEL PAUL, Director of United States Citizenship
and Immigration Services Vermont Service Center,
MARK HAZUDA, Director of United States Citizenship
and Immigration Services Nebraska Service Center, and
DONALD NEUFELD, Director of United States Citizenship and
Immigration Services Service Center Operations, Defendants.

16-CV-7092 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 30, 2018


MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff Cristian Rodriguez1 commenced the above-captioned action on December 23, 2016, and filed an Amended Complaint on June 14, 2017, against Defendants Kirstjen Nielsen, L. Francis Cissna, Laura Zuchowski, Mark Hazuda, and Donald Neufeld.2 (Compl., Docket Entry No. 1; Am. Compl., Docket Entry No. 17.) Plaintiff asserts claims under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (the "APA"), and seeks declaratory,

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mandamus, and injunctive relief in connection with Defendants' delay in processing his petition for U nonimmigrant status ("U Visa")3 and determining his eligibility to receive an Employment Authorization Document ("EAD"). (Am. Compl.)

Currently before the Court are Defendants' motion to dismiss the Amended Complaint, or, in the alternative, for summary judgment, and Plaintiff's cross-motion for summary judgment. (Defs. Mot. to Dismiss or for Summ. J. ("Defs. Mot."), Docket Entry No. 34; Defs. Mem. in Supp. of Defs. Mot. ("Defs. Mem."), Docket Entry No. 35-37; Pl. Mot. for Summ. J. ("Pl. Mot."), Docket Entry No. 38; Pl. Mem. in Supp. of Pl. Mot. ("Pl. Mem."), Docket Entry No. 39.) For the reasons set forth below, the Court denies Defendants' motion for summary judgment and grants in part and denies in part Plaintiff's motion for summary judgment.

I. Background

a. Plaintiff's U Visa petition

Plaintiff, a native and citizen of Ecuador, filed his petition for a U Visa in August of 2015. (Form I-918 Petition for U Nonimmigrant Status ("Form I-918"), annexed to Decl. of Joseph A. Marutollo ("Marutollo Decl.") as Ex. A, Docket Entry No. 36-1; Decl. of Cristian Rodriguez ("Pl. Decl.") ¶ 3, annexed to Decl. of Michael Wishnie ("Wishnie Decl.") as Ex. E, Docket Entry No. 39-7.) He has lived in the United States since 2004, and currently resides in Queens, New York with his girlfriend and her six-year old daughter, both of whom he supports financially. (Pl. Decl. ¶¶ 5, 9-10.) Plaintiff has physical custody of his seven-year old son on weekends. (Id. at ¶ 8.)

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i. November of 2011 incident

On November 28, 2011, an individual impersonating a police officer broke into Plaintiff's apartment (the "November 2011 Incident"). (Pl. Statement of Undisputed Facts Pursuant to Local R. 56.1 ("Pl. 56.1") ¶ 2, Docket Entry No. 39.) The intruder stole a knife from the kitchen and attempted to enter a locked bedroom, where Plaintiff was hiding with his then one-year-old son and his son's mother. (Id. ¶ 3.) Plaintiff and his family were trapped inside their bedroom for thirty minutes. (Id. ¶ 4.) After the assailant left, Plaintiff called the police. (Id. ¶ 5.)

When the police arrived, Plaintiff accompanied them around the neighborhood and identified the assailant. (Id. ¶ 6.) Plaintiff also identified a knife located on the assailant's person as the one stolen from his kitchen. (Id. ¶ 7.) The intruder was charged with several crimes in connection with the break-in, and ultimately pleaded guilty to burglary in the second degree. (Id. ¶¶ 8-9.) Plaintiff did not apply for U Visa status immediately after this incident.

ii. July of 2014 Order of removal

Although the factual circumstances are unclear, prior to the November 2011 Incident, immigration authorities detained Plaintiff in June of 2007. (Immigration Court Decision, annexed to Marutollo Decl. as Exhibit C, Docket Entry 36-4.) Over seven years later, on July 14, 2014, an Immigration Judge ordered Plaintiff removed from the United States. (Id.) Plaintiff appealed to the Board of Immigration Appeals ("BIA"), but the BIA dismissed the appeal on November 20, 2015. (Id.) Plaintiff moved to reopen the removal proceedings but the BIA denied his motion. (Id.)

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iii. Plaintiff's application for a U Visa

Prior to the BIA's denial, on April 9, 2015, Carmencita N. Gutierrez, Director of the Office of Immigrant Affairs at the Queens County District Attorney's Office, completed and signed a Form I-918 Supplement B, U Nonimmigrant Status Certification in support of Plaintiff's U Visa petition. (Defs. Resp. to Pl. Statement of Undisputed Facts Pursuant to Local R. 56.1 ("Defs. Resp. 56.1") ¶ 10, Docket Entry No. 41.) In a letter appended to the Form I-918 Supplement B, Gutierrez stated that Plaintiff was "helpful to the investigation and prosecution of the crimes committed against him." (Gutierrez Letter, annexed to Wishnie Decl. as Exhibit C, Docket Entry No. 39-5.)

On August 11, 2015, one month after the BIA dismissed Plaintiff's appeal, Plaintiff submitted a U Visa petition, including a Form I-918 Petition for U Nonimmigrant Status ("Form I-918 U Visa Petition"), to the United States Citizenship and Immigration Services ("USCIS"). (Defs. Resp. 56.1 ¶ 13.) On August 14, 2015, Plaintiff received notice from USCIS's Vermont Service Center acknowledging that it had received his U Visa petition on August 12, 2015. (Id. ¶ 20.)

As of the filing of the parties' cross-motions, USCIS had neither reviewed Plaintiff's U Visa petition nor granted him an EAD. (Id. ¶¶ 21, 27, 29.) The USCIS website currently shows an estimated U Visa petition processing time of four years at the Vermont Service Center.4 (Id. ¶ 22; https://egov.uscis.gov/processing-times/ (last updated Sept. 29, 2018).)

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b. Statutory and regulatory framework

i. U Visa program

In October of 2000, Congress passed the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, 114 Stat. 1464, which amended the Immigration and Nationality Act ("INA"), and created the U Visa program. See 8 U.S.C. § 1101(a)(15)(U). Congress enacted the U Visa program to provide immigration relief to certain victims of crime who cooperate with law enforcement in the investigation or prosecution of a crime. Id. USCIS, a component of the United States Department of Homeland Security ("DHS"), (Defs. Mem. 1), failed to promulgate regulations implementing the U Visa program for several years until Congress directed the agency to do so within 190 days in the Violence Against Women and Department of Justice Reauthorization Act of 2005 ("Violence Against Women Act"), Pub. L. 109-162, 119 Stat. 2960.

To qualify for a U Visa, a petitioner must demonstrate "that he or she has suffered substantial physical or mental abuse as a result of having been a victim of a qualifying crime, has credible or reliable information about the crime, has or is helping law enforcement in prosecuting the crime, and is admissible to the United States." 8 C.F.R. § 214.14(b); 8 C.F.R. § 214.1(a)(3).

To apply for a U Visa, a petitioner is required to submit a Form I-918 U Visa Petition along with a written and sworn certification from law enforcement personnel stating that the petitioner was a victim of a qualifying crime and helpful in the investigation or prosecution that followed.5 8 C.F.R. § 214.14. After a petitioner submits an application, USCIS reviews and processes the application in the order received at either its Vermont Service Center or the

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Nebraska Service Center. 8 C.F.R. § 214.14(d)(2). If USCIS approves a U Visa petition, the petitioner will receive a U Visa and an EAD for four years. 8 U.S.C. § 1184(p)(3). The number of U Visas that USCIS can issue in each fiscal year is limited by statute to 10,000. 8 U.S.C. § 1184(p)(2).

On October 17, 2007, anticipating that USCIS would begin to receive meritorious U Visa petitions exceeding the annual statutory cap of 10,000 within the first few fiscal years after enactment of the U Visa program, USCIS published a rule creating a regulatory waiting list procedure (the "waiting list"). 8 C.F.R. § 214.14. Pursuant to this process, once the 10,000 statutory cap has been reached for the fiscal year, "[a]ll eligible petitioners who, due solely to the cap, are not granted U-1 non-immigrant status must be placed on a waiting list." See 8 C.F.R. § 214.14(d)(2). Accordingly, prior to a petitioner's entry on the waiting list, USCIS conducts a substantive review of the petition and determines whether it is meritorious. At the beginning of each new fiscal year, USCIS reviews U Visa petitions from the waiting list to ensure the petitioners remain eligible and grants U Visas in the order in which the petitions were filed until the 10,000 visas are allocated. (Decl. of Dustin J. Stubbs in Supp. of Defs. Mot. ("Stubbs Decl.") ¶ 8, Docket Entry No. 37.)

The number of new U Visa petitions filed each year has increased significantly over the last several years, as has the number of U Visa petitions on the waitlist and the petitions waiting to be adjudicated for waitlist status. (Defs. Mem. 4 (citing USCIS Form I-918 Petition Chart, https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/Victims/I918u_visastatistics_fy2017_qtr2.pdf (last visted Sept. 30, 2018)).) In fiscal year 2009, USCIS received 6,835 new U Visa petitions. (Id.) In fiscal year 2016, USCIS received 35,044 new U Visa petitions, and by the end of fiscal year 2016, there

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were 86,980 U Visa petitions pending. (Id.) As of March of 2017, there were over 97,000 pending U Visa petitions, including those already placed on the waiting list. (Id.)

ii. Process for obtaining an EAD

When a U Visa petitioner receives a U Visa, they also receive employment authorization. (Defs. Mem. 2.) Pursuant to 8 C.F.R. § 214.14(d)(2), once USCIS places a U Visa...

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