Vasquez v. Mayorkas
| Decision Date | 10 September 2021 |
| Docket Number | CIVIL 5:20-cv-00025 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | NOLVIA HERNANDEZ VASQUEZ, Plaintiff, v. ALEJANDRO MAYORKAS, Secretary of the United States Department of Homeland Security, et al., Defendants. |
This matter is before the court on then-defendants'-Chad Wolf former Acting Secretary of the U.S. Department of Homeland Security (DHS); Mark Koumans, former Acting Director of U.S Citizenship and Immigration Services (USCIS); and Donald Neufeld, former Associate Dkector of Service Center Operations-motion to dismiss, ECF No. 14. These three individuals no longer hold these public offices. Pursuant to Federal Rule of Civil Procedure ("Rule") 25(d) [1] they have been automatically substituted by Alejandro Mayorkas, Secretary of DHS; Ur M. Jaddou, Dkector of USCIS; and Connie Nolan, Acting Associate Dkector of Service Center Operations Dkectorate (collectively "the defendants"). Plaintiff Nolvia Hernandez Vasquez opposes the motion to dismiss, ECF No. 19, and the defendants' filed a reply, ECF No. 20. For the reasons explained herein, the defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART.
The Immigration and Nationality Act ("INA") "provides the executive branch broad authority" to admit aliens into the United States and establish conditions for admission. Gonzalez v. Cuccinelli, 985 F.3d 357, 362 (4th Cir. Jan. 14, 2021) (). The INA charges the Secretary of DHS with the administration and enforcement of the INA, along with "all other laws relating to the immigration and naturalization of aliens," and dictates that the Secretary "shall establish such regulations...as he deems necessary for carrying out his authority under the provisions of this chapter." 8 U.S.C. § 1103(a). The Secretary has delegated much of this authority to USCIS. See 8 C.F.R. § 2.1; see also 6 U.S.C. § 112(b)(1) ().
Through this delegation, USCIS is responsible for administering the U-Visa program which, if granted, provides certain immigration protections and privileges, including work authorization, to eligible aliens who are victims of serious crime and cooperate with law enforcement. See 8 C.F.R. § 214.14(c)(1) (delegating authority to USCIS); 8 U.S.C. § 1101(a)(15)(U) (). Congress established the program in 2000 and capped the number of U-Visas that can be issued at 10, 000 per fiscal year. See 8 U.S.C. § 1184(p). In 2005, Congress amended the program "and directed the Secretary of [DHS] to promulgate regulations implementing the statutory U-Visa provisions." Cuccinelli, 985 F.3d at 362 (citing Pub. L. 109-162, 119 Stat. 2960 (2006)). USCIS, through its delegated authority, promulgated these regulations, which provide the framework for the U-Visa program today. Cuccinelli. 985 F.3d at 362-63 (citing relevant regulations).
An alien must file a petition with USCIS to apply for a U-Visa. 8 U.S.C. § 1101(a)(15)(U)(i); 8 C.F.R § 214.14(c)(1).
An alien qualifies if the Secretary of Homeland Security (and USCIS as his designee) determines that the alien: (1) "has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity"; (2) "possesses information concerning [the] criminal activity"; (3) "has been helpful, is being helpful, or is likely to be helpful to [government officials] investigating or prosecuting [the] criminal activity"; and (4) the criminal activity is a covered offense that "violated the laws of the United States or occurred in the United States.. .or the territories and possessions of the United States."
Cuccinelli, 985 F.3d at 363 (citing 8 U.S.C. §§ 1101(a)(15)(U)(i)(I)-(IV); 8 U.S.C. § 1101(a)(15)(U)(iii) (listing covered offenses)). "The petitioning alien must also be generally 'admissible' or must obtain a discretionary waiver of inadmissibility from USCIS." Cuccinelli, 985 F.3d at 363 (citing 8 U.S.C § 1182(a); 8 C.F.R. § 214.1(a)(3)(i); 8 C.F.R. § 214.14(c)(2)(iv); 8 U.S.C. § 1182(d)(3)(A)(ii), (d)(14); 8 C.F.R. § 212.17).
Given the statutory cap, an alien is not automatically issued a U-Visa if USCIS approves their petition. Cuccinelli, 985 F.3d at 363. Given this gap, DHS instructed that aliens whose petitions are approved "must be placed on a waiting list" with "priority on the waiting list...determined by the date the petition was filed." 8 C.F.R. § 214.14(d)(2) ("the oldest petitions receiving the highest priority," with some exceptions not at issue in this case). Once on the waiting list, USCIS will not initiate removal proceedings against the alien, also known as "deferred action," and USCIS may, in its discretion, provide work authorization.[2] Id.
In 2008, Congress amended the U-Visa program again to, among other things, give the Secretary of DHS the express authority to "grant work authorization to any alien who has a pending, bona fide application." See Pub. L. 110-457, 122 Stat. 5044 (codified at 8 U.S.C. § 1184(p)(6)). At the time, DHS was already granting work authorizations to aliens on the waiting list under its inherent authority. After the amendment, DHS could, in its discretion, grant work authorizations for petitioners who had not yet been placed on the waiting list but had a bona fide application pending.
The Fourth Circuit, in reviewing nearly identical claims, summarized this "three-tiered structure for aliens seeking a U-Visa" as follows:
First, if an alien has not been granted a U-Visa or been placed on the waiting list, then the agency provides neither discretionary nor mandatory immigration status or work authorizations. Second, if an alien is eligible for U-Visa status but cannot be awarded a visa because of the statutory cap, that alien must be placed on the waiting list and is then entitled to deferred action and may be granted work authorization. See 8 C.F.R. § 214.14(d)(2); see also 8 C.F.R. § 274a.l2(c)(14). And third, if an alien is granted U-Visa status, then the alien is entitled to temporary lawful residency and must be granted work authorization.
Cuccinelli, 985 F.3d at 364 (emphasis in original) (citing 8 U.S.C. § 1184(p)(3)(B); 8 C.F.R. § 214.14(c)(7)).
Plaintiff is a native and citizen of Honduras who, at the time she filed her complaint in April 2020, was 31 years old. Compl., ECF No. 1, at ¶ 3. Plaintiff entered the United States "without inspection" in 2009 and has not left since. Id. at ¶ 11. On December 17, 2015, Plaintiff was hit by a drunk driver on U.S. 250 in Augusta County, Virginia. Id. at ¶ 12; Death Certificate and Articles, ECF No. 1-4, at 2. Tragically, Plaintiffs five-year-old son was killed in the accident. See Death Certificate and Articles, ECF No. 1-4, at 2. Plaintiffs ankle was crushed, her lung collapsed, and she "has suffered substantial psychological harm in the form of emotional pain, in the loss of her only child." Compl., ECF No. 1, at ¶¶ 12-13. Plaintiff cooperated with the police investigation and the drunk driver was sentenced to 10.5 years in prison for aggravated involuntary manslaughter and driving under the influence. Id. at ¶ 15 .
Plaintiff filed a petition for a U-Visa, also known as a 1-918, on June 21, 2016. See U-Visa Petition, ECF No. 1-2. USCIS, through its Vermont Service Center, confirmed its receipt of her application on June 30, 2016. See 1-918 Notice of Action, ECF No. 1-3. That same day, Plaintiff also submitted a companion application for advance permission to enter as a nonimmigrant, also known as a 1-192, which she describes as an application to pardon her unlawful entry and presence in the United States. Compl, ECF No. 1, at ¶ 18 (citing 1-192 Notice of Action, ECF No. 1-6). USCIS instructs aliens to [3] As the court reads Plaintiffs complaint and opposition to the motion to dismiss, Plaintiff considers the 1-192 as part of her U-Visa adjudication and is not bringing any claims specifically related to her 1-192 adjudication.
Plaintiff was subsequently "requested to submit her biometrics to the USCIS on August 10, 2016," and did so. Compl., ECF No. 1, at ¶ 20. She has not received any further information since then. Id. at % 21. As far as the court is aware, her application is still pending.[4]
On April 3, 2020, Plaintiff filed her "original complaint for writ of mandamus and declaratory judgment," which includes one count of action but seeks eight types of relief requesting the court to: (1) issue a writ of mandamus ordering DHS to make a determination as to whether Plaintiff is eligible for a U-Visa; (2) enjoin the defendants from further delaying adjudication of her "application"; (3) declare that DHS's failure to process her petition violates the Administrative Procedures Act ("APA"), 5 U.S.C § 706(1); (4) order DHS to make a determination in her case under the same regulation; (5) declare that USCIS has not determined whether or not she should be placed on the waiting list for a U-Visa within a reasonable amount of time, in violation of the APA, 5 U.S.C. § 555(b); (6) order USCIS to "make a 'waiting list' adjudication on Plaintiffs application, permitting her to...
To continue reading
Request your trial