Tista v. Jaddou
| Decision Date | 29 December 2021 |
| Docket Number | Civ. No. 21-cv-0479 MIS/JFR |
| Citation | 577 F.Supp.3d 1219 |
| Parties | Norma Saldana TISTA and Zenaida Garcia Saldana, Plaintiffs, v. Ur Mendoza JADDOU, Director of the United States Citizenship and Immigration Service (USCIS), Defendant. |
| Court | U.S. District Court — District of New Mexico |
Jasmine A. McGee, New Mexico Immigrant Law Center, Albuquerque, NM, for Plaintiffs.
Christine Hyojin Lyman, U.S. Attorney's Office, Albuquerque, NM, for Defendant.
THIS MATTER is before the Court on Defendant's Motion to Dismiss and Memorandum in Support, filed on July 14, 2021. ECF No. 9. Plaintiffs responded on July 28, 2021. ECF No. 13. Defendant replied on August 11, 2021. ECF No. 15. Having considered the parties’ submissions, the record, and the relevant law, the Court will grant the Motion in part and deny it in part.
In an effort to encourage noncitizens to report violent crimes to law enforcement, Congress created a path to legal status for noncitizens who have been victims of certain crimes and who assist law enforcement in prosecuting the perpetrator. ECF No. 1 at 4, ¶ 12. The path to status is through a "U visa." 8 U.S.C. § 1101(a)(15)(U). Congress capped the number of U visas per fiscal year at 10,000, which has led to an enormous backlog. 8 U.S.C. § 1184(p)(2)(A) ; ECF No. 1 at 4–6.
To address the backlog, regulations require the agency tasked with adjudicating U visa petitions, the United States Citizenship and Immigration Services (USCIS), to create a waitlist. 8 C.F.R. § 214.14(d)(2). The regulation provides that "[a]ll eligible petitioners who, due solely to the cap, are not granted [a U visa] must be placed on a waiting list and receive written notice of such placement." Id. (emphasis added). The regulation goes on to discuss the priority of petitions once on the waitlist and concludes with: Id. (emphasis added). Thus, the waitlist, in effect, provides a layer of protection against prosecution for immigration violations while petitioners await official U visas.
Plaintiffs applied for U visas on February 21, 2017. ECF No. 1 at 1. Defendant has taken no action since that date, not even to put Plaintiffs on the waitlist. Id. Plaintiffs ask the Court for an order directing Defendant to process their petitions and make a waitlist determination. Id. Plaintiffs bring these claims under the Administrative Procedure Act (APA) (Count I) and the Mandamus Act (Count II).
Plaintiffs’ claims rest on allegations that Defendant has unreasonably delayed processing their U visa petitions and making the required waitlist determinations. Defendant moves to dismiss Plaintiffs’ claims under Federal Rule of Civil Procedure Rule 12(b)(1), arguing that the Court does not have subject-matter jurisdiction over these claims because the pace at which USCIS processes a U visa petition is a discretionary decision shielded from judicial review by statute. Alternatively, Defendant moves to dismiss Plaintiffs’ claims under Rule 12(b)(6), arguing that the Court must dismiss the Complaint because Plaintiffs have not alleged facts that support their allegations that USCIS has unreasonably delayed processing their U visa petitions.
"Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress." Henry v. Off. of Thrift Supervision , 43 F.3d 507, 511 (10th Cir. 1994). "[T]he party invoking federal jurisdiction," generally the plaintiff, "bears the burden of establishing its existence." Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Rule 12(b)(1) allows defendants to raise the defense of the court's "lack of subject-matter jurisdiction" by motion. Fed. R. Civ. P. 12(b)(1).
Rule 12(b)(1) motions to dismiss "generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject-matter jurisdiction is based." Ruiz v. McDonnell , 299 F.3d 1173, 1180 (10th Cir. 2002). A facial attack "questions the sufficiency of the complaint," and when "reviewing a facial attack ... a district court must accept the allegations in the complaint as true." Holt v. United States , 46 F.3d 1000, 1002 (10th Cir. 1995), abrogated on other grounds by Cent. Green Co. v. United States , 531 U.S. 425, 437, 121 S.Ct. 1005, 148 L.Ed.2d 919 (2001).
Plaintiffs seek relief under the APA, which provides that a reviewing court "shall compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). The reviewing court's authority under the APA applies generally to agency action "except to the extent that ... (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." Id. § 701(a)(1)–(2). Defendant argues that both (1) and (2) preclude judicial review of Plaintiffs’ claims and strip the Court of subject-matter jurisdiction over this case. As to (1), the statute that precludes judicial review, Defendant asserts that the Immigration and Nationality Act (INA) contains a jurisdiction-stripping provision that applies to this case. As to (2), the action committed to agency discretion by law, Defendant asserts that the INA commits the pace of adjudication of U visas to agency discretion.
Defendant asserts that a statute, 8 U.S.C. § 1252(a)(2)(B)(ii), precludes judicial review of Plaintiffs’ claims, see § 701(a)(1); and therefore the Court does not have subject-matter jurisdiction in this case. In context, the statute reads:
8 U.S.C. § 1252 (emphasis added). A simple textual review of the statute, read in context, strongly suggests that § 1252(a)(2)(B)(ii) refers to judicial review of orders of removal.3 Courts do not have jurisdiction to review the types of orders of removal and collateral issues outlined in § 1252. Plaintiffs’ claims in this case have nothing to do with any order of removal, or any of the collateral issued outlined in the statute, but rather focus on the agency's lack of action on their U visa petitions. Therefore, the Court finds that the plain text of § 1252 does not independently preclude review of Plaintiffs’ claims.
Defendant also argues that a separate statutory provision, 8 U.S.C. § 1184, grants the Attorney General (AG) unfettered discretion in U visa cases and therefore, in the context of § 1252, judicial review is precluded. The statute reads:
Id. (emphasis added). The paragraph goes on to discuss the AG's authority to regulate bond requirements and outline a few specific categories of nonimmigrants that are beyond the scope of the AG's authority. See id. Clearly, § 1184 does apply to U visas because they are "nonimmigrant" visas. However, here again, a textual review of the statute does not support Defendant's position. The language does not give the AG "discretion"; rather, it states that the AG may prescribe regulations to govern the admission of U visa applicants. The word "discretion" is found nowhere in the text of § 1184(a). The authority to prescribe regulations is simply not synonymous with "discretion." After all, regulations have the force and effect of law. See United States v. Mead Corp. , 533 U.S. 218, 226–27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). The authority to promulgate regulations, which have the binding effect of law, is inherently distinct from a grant of discretion.5 Thus, the Court does not find that § 1184(a) operates to preclude judicial review in the context of § 1252(a)(2)(B)(ii). Nor does § 1184(a) grant the AG inherent discretion over the pace of U visa adjudications such that § 701(a)(2) precludes judicial review.
The caselaw also supports this conclusion. See, e.g., Kucana v. Holder , 558 U.S. 233, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). In Kucana , the Supreme Court examined the language of § 1252(a)(2)(B)(ii) and found that the statutory language "any other decision or action of the Attorney General ... the authority for which is specified under this subchapter to be in the discretion of the Attorney General" indicates that "Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General's discretionary authority in the statute." Id. at 247, 130 S.Ct. 827 (emphasis added). The Supreme Court found that the omission of the word "regulation" in § 1252(a)(2)(B)(ii) showed that Congress did not intend to extend the jurisdictional bar to "decisions specified as discretionary by...
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