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holding that plaintiff's unreasonable delay claims for U-visa waitlist eligibility were categorically unreviewable
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CIVIL ACTION FILE No. 1:20-CV-3553-SCJ
2021-05-20
Silvia HIDALGO CANEVARO and Roberto Correa Garcia, Plaintiffs, v. Chad F. WOLF, in his official capacity as Acting Secretary of Homeland Security, Mark Koumans, in his official capacity as Acting Director of the U.S. Citizenship and Immigration Services; and Laura Zuchowski, in her official capacity as Director of the Vermont Service Center of the U.S. Citizenship and Immigration Services, Defendants.
Danielle M. Claffey, Kuck Baxter Immigration, LLC, Atlanta, GA, for Plaintiffs. Trishanda L. Treadwell, Department of Justice, Atlanta, GA, for Defendants.
Danielle M. Claffey, Kuck Baxter Immigration, LLC, Atlanta, GA, for Plaintiffs.
Trishanda L. Treadwell, Department of Justice, Atlanta, GA, for Defendants.
ORDER
STEVE C. JONES, UNITED STATES DISTRICT JUDGE
This matter appears before the Court on Defendants’ Motion to Dismiss. (Doc. No. [11]). Plaintiffs Silvia Hidalgo Canevaro and Roberto Correa Garcia filed their Complaint for Injunctive and Mandamus Relief (Doc. No. [1]) on August 27, 2020. They ask this Court to (1) assume jurisdiction over this matter; (2) declare that Defendants are in violation of 5 U.S.C. §§ 555(b), 706(1), and 706(2)(A), 8 U.S.C. § 1184(p)(6), and 8 C.F.R. § 214.14(d)(2) ; (3) issue a preliminary and permanent injunction requiring that Defendants, their agents, employees, and successors in office: (a) determine Plaintiffs’ eligibility for placement on the U Visa waitlist, pursuant to 8 C.F.R. § 214.14(d)(2) ; and (b) timely adjudicate Plaintiffs’ employment applications while their U Visa petitions remain pending, pursuant to 8 U.S.C. § 1184(p)(6) ; and (4) award reasonable attorneys’ fees and costs pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504, 28 U.S.C. § 2412.
All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted by the Court's docketing software.
I. BACKGROUND
Plaintiff Silvia Hidalgo Canevaro ("Ms. Hidalgo") is a native and citizen of Peru. In the Complaint, she alleges that she entered the United States in 2001 on a B-2 tourist visa. Doc. No. [1], ¶ 18. Ms. Hildago overstayed her 2001 B-2 visa, had two children in the United States (in 2003 and 2005) and, in 2013, married Plaintiff Roberto Correro Garcia ("Mr. Garcia"). Id. ¶¶ 18-19. Mr. Garcia is a native and citizen of Mexico who has been present in the United States since 2002 without lawful status. Id. ¶ 19.
Ms. Hidalgo alleges that she was the victim of a robbery on January 24, 2007. Id. ¶ 31; Doc. No. [1-1], 20. The case against the perpetrator was closed in February 2008. Doc. No. [1-1], 21. On or about October 11, 2017, Ms. Hidalgo petitioned for U nonimmigrant status (known as a "U Visa") for herself and Mr. Garcia by submitting Forms I-918 and I-918A. Doc. No. [1], ¶¶ 33–34. Plaintiffs’ U Visa applications are pending. Id. ¶ 34.
Plaintiffs bring this action under the Administrative Procedure Act, 5 U.S.C. §§ 500 et seq. ("APA"), alleging that the United States Citizenship and Immigration Services ("USCIS") has unreasonably delayed adjudicating their U Visa petition and placing them on the U Visa waitlist. Id. ¶ 6. Plaintiffs also allege that USCIS has unreasonably delayed or unlawfully withheld their work authorizations under 8 U.S.C. § 1184(p)(6). Id. ¶¶ 3–4. Plaintiffs seek a writ of mandamus to compel an immediate determination that they are eligible to be placed on the U Visa waitlist and receive work authorizations. Id. at 13. Finally, Plaintiffs seek to recover attorneys’ fees under the Equal Access to Justice Act. Id.
A. Victims of Trafficking and Violence Protection Act of 2000
In October 2000, Congress enacted the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, 114 Stat. 1464, which amended the Immigration and Nationality Act and created the U Visa program. See 8 U.S.C. 1101(a)(15)(U). To qualify for a U Visa, an applicant must show that he "suffered substantial physical or mental abuse as a result of having been a victim" of a qualifying crime in the United States, has "credible and reliable information" about the crime, and "has, is, or is likely to provide assistance to the investigation or prosecution of the" criminal activity. 8 C.F.R. § 214.14(b). An applicant's qualifying family members may also apply for a derivative U Visa. Id. § 214.14(f).
In 2006, Congress directed the Secretary of the Department of Homeland Security ("DHS") to promulgate regulations for the U Visa. See Violence Against Women Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960, 3066 (2006). DHS did so in 2007, giving USCIS sole jurisdiction over U Visa petitions. 8 C.F.R. § 214.14. Approved petitioners outside the United States can apply for a U Visa at a U.S. Embassy or consulate overseas and then seek admission as a U nonimmigrant at a designated port of entry. 8 C.F.R. § 214.14(c)(5)(i)(B).
To apply for a U Visa, the petitioner must submit an I-918 Petition for U Nonimmigrant Status as well as a U Visa certification from a certifying agency stating that the foreign national possesses important information about the crime and will cooperate with the investigation or prosecution. See id. § 214.14(c)(1), (c)(2)(i). The USCIS typically processes these applications in the order received. Id. § 214.14(d)(2). If a petitioner's U Visa application is granted, the petitioner receives a U Visa and work authorization that lasts four years. 8 U.S.C. § 1184(p)(3).
B. Statutory Cap and Waitlist
Congress capped the number of principal U Visas at 10,000 per year. 8 U.S.C. § 1184(p)(2). USCIS has met this cap every year since 2010. Doc. No. [11], 6. Although USCIS originally estimated that it would receive 12,000 principal U Visa petitions per year (see 72 Fed. Reg. 53014, 53033 ), the number of U Visa petitions has greatly increased since the inception of the program and far exceeds the anticipated numbers. Doc. No. [11], 7. Between 2015 and 2018, USCIS received more than 30,000 principal U Visa petitions each year, and, "at last official count, there were over 150,000 pending petitions." Id. Processing the petitions has been further delayed "because of the coronavirus pandemic, agency office closings, and threatened furloughs." Id.
In 2007, anticipating that the statutory cap would be met within the first few years of enactment, USCIS created a regulatory waiting list process. 8 C.F.R. § 214.14(d)(2) ; 72 Fed. Reg. 53014 (Sept. 17, 2007). After USCIS determines a U Visa petition is approvable, but a visa is not available due to the statutory cap, the petitioner must be placed on the waiting list. 8 C.F.R. § 214.14(d)(2). "Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority." Id. Placement on the waiting list is important for two main reasons. First, when a petitioner is placed on the waiting list, the petitioner and any qualifying family members "will" receive deferred action if they are in the United States. Id. Second, "USCIS, in its discretion, may authorize employment" for wait-listed petitioners and qualifying family members. Id.
II. LEGAL STANDARD
A. Motion to Dismiss
Defendants move pursuant to both Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). See Doc. No. [11], 1. An action may proceed in this Court only if federal subject matter jurisdiction exists. Lifestar Ambulance Serv., Inc. v. United States, 365 F.3d 1293, 1295 (11th Cir. 2004), cert. denied, 543 U.S. 1050, 125 S.Ct. 866, 160 L.Ed.2d 770 (2005). Under Rule 12(b)(1), subject matter jurisdiction can be challenged facially or factually. Lawrence v. Dunbar, 919 F.2d 1525, 1528–1529 (11th Cir. 1990). Facial attacks on the complaint "require[ ] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Id. at 1529. Thus, "[o]n a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion." Id. Factual attacks, on the other hand, challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id. This is an attack on the "trial court's jurisdiction—its very power to hear the case." Id. "[N]o presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating the merits of the jurisdictional claims." Id.
When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court accepts the factual allegations made in the complaint as true and construes them in the light most favorable to the plaintiff. Speaker v. U.S. Dep't. of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). A complaint will be dismissed for failure to state a claim only if the facts as pled do not state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
In order to state a plausible claim, a complaint must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "[W]hile notice pleading may not require that the pleader allege a specific fact to cover every element or allege with precision each element of a claim, it is still necessary that a complaint contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1282–83 (11th Cir. 2007) (quotations omitted). Additionally, courts may address a statute of limitations defense on a Rule 12(b)(6) motion when "it is apparent from the face of the complaint that the claim is time-barred." Patel v. Diplomat 1419VA Hotels, LLC, 605 F. App'x 965, 966 (11th Cir. 2015).
B. APA and Review of Agency Inaction
The APA requires federal administrative agencies to address matters presented to them within a reasonable time. 5 U.S.C. § 555(b) ("With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it ...."). The APA further instructs federal courts to "compel agency action unlawfully withheld or unreasonably delayed ...." 5 U.S.C. § 706(1). However, the scope of review is limited: " § 706(1) empowers a court only to compel an agency to perform a ministerial or non-discretionary act, or to take action upon a matter, without directing how it shall act." Norton v. S. Utah Wilderness All., 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (quotations omitted). Thus, "a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Id. (emphasis in original).
C. Mandamus Act
Under 28 U.S.C. § 1361, otherwise known as the Mandamus Act, the district court has original jurisdiction over a mandamus action "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. "[M]andamus is an extraordinary remedy which should be utilized only in the clearest and most compelling of cases." Cash v. Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003) (quoting Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969) ). "Although the issuance of a writ of mandamus is ‘a legal remedy, it is largely controlled by equitable principles and its issuance is a matter of judicial discretion.’ " Id. at 1257–58 (quoting Carter, 411 F.2d at 773 ).
III. DISCUSSION
The Court concludes that it lacks jurisdiction to require USCIS to (1) determine Plaintiffs’ waitlist eligibility and (2) adjudicate their employment authorization applications. Even assuming the Court did have jurisdiction over these claims, however, Plaintiffs’ claims are due to be dismissed under Federal Rule of Civil Procedure 12(b)(6).
A. The Court Lacks Subject Matter Jurisdiction Over Plaintiffs’ Claims
1. Plaintiffs’ claim regarding USCIS's failure to place them on the waiting list is non-reviewable under the APA and INA
The Court lacks subject matter jurisdiction over Plaintiffs’ waitlist claim because they have not alleged a failure to take a non-discretionary action. Importantly, Plaintiffs do not argue that UCSIS is refusing to determine whether they are eligible to be waitlisted. Their claims are based only on the length of time it is taking USCIS to determine their waitlist eligibility. The Court finds such claims are non-reviewable.
Both the APA and INA preclude judicial review of discretionary agency functions. See 5 U.S.C. § 701(a) (providing that the APA does not apply where "statutes preclude judicial review" or "agency action is committed to agency discretion by law"); 8 U.S.C. § 1252(a)(2)(B)(ii) (prohibiting review of any "decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security"). And the Eleventh Circuit has confirmed that, in the absence of a clear duty to perform a discrete action, the Court has no power to review an agency action and no power to issue a writ of mandamus. Cash, 327 F.3d at 1257–58 (11th Cir. 2003) ; Jallali v. Sec'y, U.S. Dep't of Educ., 437 F. App'x 862, 865 (11th Cir. 2011) (per curiam).
In the context of adjustment of status applications, which are also filed with USCIS, many courts in this Circuit have found that claims of unreasonably delayed consideration are not reviewable. This is because (1) adjudication of adjustment of status applications are explicitly committed to agency discretion and (2) there is no congressionally mandated timeline for consideration of adjustment of status applications. See, e.g., Orabi v. Chertoff, 562 F. Supp. 2d 1377, 1380 (N.D. Ga. 2007) (finding court did not have jurisdiction over claim of delayed consideration of change of status application); Eldeeb v. Chertoff, 619 F. Supp. 2d 1190, 1204 (M.D. Fla. 2007) (holding court lacked jurisdiction because "the pace of adjudication of an I485 application is a discretionary function" of the USCIS); Torres v. Chertoff, No. 1:07CV01649 WSD, 2007 WL 4261742, at *5 (N.D. Ga. Nov. 30, 2007) (finding APA "expressly preclude[ed] jurisdiction" over complaint regarding pace of adjustment of status application consideration).
Other courts have reached the opposite conclusion, holding that USCIS has a non-discretionary duty to process applications within a "reasonable time," and, thus, the courts have mandamus jurisdiction. See e.g., Gelfer v. Chertoff, 2007 WL 902382 *2 (N.D. Cal. 2007).
The same reasoning applies to U Visa applications. Like adjustment of status applications, adjudication of U Visa applications is statutorily committed to the discretion of the Secretary, and by extension, USCIS. See 8 U.S.C.A. § 1101(a)(15)(U)(i) (providing that U Visas shall be provided to applicants "if the Secretary of Homeland Security determines that" they meet eligibility criteria); 8 C.F.R. § 214.14(c)(1) ("USCIS has sole jurisdiction over all petitions for U nonimmigrant status."). And Congress did not set a time period within which the Secretary must adjudicate U Visa applications. See 8 C.F.R. § 214.14(c)(5) (setting no time limit for USCIS's "de novo review of the petition and evidence"). Certainly, it did not set a time by which an application must be considered for waitlist eligibility. See 8 C.F.R. § 214.14(d)(2).
It is true that federal regulations provide that "eligible petitioners" who are not granted U Visas solely due to the statutory cap "must be placed on the waiting list and receive written notice of such placement." Id. (emphasis added). USCIS has not yet determined whether Plaintiffs are "eligible petitioners," and thus, they are not yet entitled to be waitlisted. Plaintiffs have not alleged that USCIS is refusing or neglecting to determine their eligibility—only that its efforts to do so are taking too long. Because there are no requirements, statutory or regulatory, regarding when USCIS must determine which petitioners are waitlist eligible, Plaintiffs’ claims are non-reviewable. See Eldeeb, 619 F. Supp. 2d at 1204 ("[I]f [the plaintiff's] application has not been adjudicated because the pace is slow, but the [US]CIS is still acting on it, then this Court is without subject matter jurisdiction to review the matter."); contra Patel v. Cissna, 400 F. Supp. 3d 1373, 1384 (M.D. Ga. 2019).
The Court agrees with its colleague in the Middle District of Florida:
[G]overnment efforts should control the pace of processing such an application. If the government is putting forth a reasonable effort, which can be ... measured by the actions that it takes, then the resulting pace is what it is, whatever it may be. When a court attempts to increase the pace of the agency, either the agency will have to expend much more effort to accommodate, quite possibly a disproportionate amount of effort on that particular item, or it will not be able to effectively complete its task.
Eldeeb, 619 F. Supp. 2d at 1203. "While the Court would like all applications to be processed immediately, it is not for the Court to create its own jurisdictional review authority or to second-guess those officials entrusted with processing applications. That function was reserved for Congress by the Constitution." Torres, No. 1:07CV01649 WSD, 2007 WL 4261742, at *6 (citing U.S. Const. art. III § 1). Because U Visa applications are (1) committed to the discretion of the DHS Secretary and by extension, USCIS, and (2) because there is no non-discretionary mandate that applications be assessed for waitlist eligibility in any given time, this Court lacks subject matter jurisdiction over Plaintiffs’ claims. For the same reasons, Plaintiffs are not entitled to mandamus relief. Mandamus relief is only appropriate when: (1) the plaintiff has a clear right to the relief requested; (2) the defendant has a clear duty to act; and (3) "no other adequate remedy is available." Cash, 327 F.3d at 1258 (quoting Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980) ). Put another way, a writ of mandamus "is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty." Id. (quoting Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) ). Plaintiffs are not entitled to mandamus relief because they are not yet "eligible petitioners" and thus do not have a clear right to be waitlisted. There is also no clear duty to consider their applications for waitlist eligibility within a given time. They also have another avenue of relief: waiting for the administrative process to play out, like every other U Visa applicant waiting for a waitlist determination.
2. Plaintiffs’ claim regarding USCIS's failure to issue them work authorizations under § 1184(p)(6) is non-reviewable under the APA
The Court rejects Plaintiffs’ argument that § 1884(p)(6) "impose[s] a non-discretionary duty on USCIS to adjudicate applications for [work authorizations] with pending U Visa petitions." Doc. No. [1], ¶ 41. Indeed, the language of § 1884(p)(6) is facially discretionary: "The Secretary 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. § 1884(p)(6) (emphasis added); see also Gonzalez v. Cuccinelli, 985 F.3d 357 (4th Cir. 2021) ("[N]othing in § 1184(p)(6) requires the agency to do anything."). Thus, even if Plaintiffs were already on the waitlist, there would be no non-discretionary duty to grant them work authorizations.
Although 8 U.S.C. § 1884(p)(6) sets criteria for work authorization eligibility, i.e., that the pending application be bona fide, it does not require DHS or UCSIS to "implement the pre-waiting list work authorization program and adjudicate requests for this discretionary relief." Patel, 400 F. Supp. 3d at 1376–77 ; see also Gonzalez, 985 F.3d at 371 ("The term ‘pending, bona fide application’ merely sets forth a prerequisite that the agency must satisfy if it chooses, in its discretion, to conduct an adjudication."). This criterion "does not transform the discretionary ‘may’ into a mandatory ‘shall.’ The decision to adjudicate remains discretionary." Gonzalez, 985 F.3d at 371.
"Absent a non-discretionary duty in the instant case, under § 701(2), this Court is without jurisdiction under the APA to review the pace at which" UCSIS is considering whether Plaintiffs are bona fide petitioners eligible for work authorizations. Eldeeb, 619 F. Supp. 2d at 1209. Plaintiffs are "not entitled to an order from this Court directing Defendants to adjudicate [their] eligibility for a pre-waiting list work authorization. The Court has no subject matter jurisdiction to enter such an order." Patel, 400 F. Supp. 3d at 1376–77 ; see also Gonzalez, 985 F.3d at 361 (dismissing claims for lack of jurisdiction "because the agency was not required to adjudicate their requests for work authorization—meaning that the failure to adjudicate these claims was not unlawful and the delay in adjudicating these claims was not unreasonable").
B. Alternatively, Plaintiffs’ Waitlist Delay Claim Fails to State a Claim Upon Which Relief Can Be Granted
Assuming, arguendo , this Court does have jurisdiction over Plaintiffs’ waitlist delay claim, it is still due to be dismissed pursuant to Rule 12(b)(6). As aforementioned, some courts have found subject matter jurisdiction in cases challenging the pace of application processing. See supra n.2; see also Patel, 400 F. Supp. 3d at 1383. These courts do so "by calling the pace of processing an application a non-discretionary act," and defining "an acceptable pace" as "a ‘reasonable pace.’ " Eldeeb, 619 F. Supp. 2d at 1203 (quoting Qiu v. Chertoff, 2007 WL 1831130, at *2–3 ). If USCIS is acting reasonably, even courts exercising jurisdiction "would take no action." Id.
The Court does not engage in this alternative analysis on Plaintiffs’ work authorization claim as it clearly lacks subject matter jurisdiction on that claim.
Under the APA, an agency shall, "within a reasonable time ... proceed to conclude a matter presented to it." 5 U.S.C. § 555(b). In evaluating whether delay is reasonable or unreasonable, courts often look to the six factors set forth in Telecommunications Research and Action Center v. FCC, 750 F. 2d 70, 80 (D.C. Cir. 1984) (" TRAC"). Those factors are: (1) "the time agencies take to make decisions must be governed by a ‘rule of reason’ "; (2) "where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply the content for this rule of reason"; (3) "delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake"; (4) "the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority"; (5) "the court should also take into account the nature and extent of the interests prejudiced by delay"; and (6) "the court need not ‘find any impropriety lurking behind agency lassitude’ to hold that agency action is ‘unreasonably delayed.’ " Id. at 80 (quoting Pub. Citizen Health Rsch. Grp. v. Comm'r, Food & Drug Admin., 740 F.2d 21, 34 (D.C. Cir. 1984) ).
As Defendants note, the Eleventh Circuit has not expressly adopted the TRAC factors. However, district courts in this Circuit had applied the TRAC factors in administrative inaction/delay cases. See, e.g., Patel, 400 F. Supp. 3d at 1383 ; Atlanta Reg'l Comm'n v. U.S. Army Corps of Eng'rs, No. 1:14-cv-03593-RWS, 2017 WL 11499759, at *8 (N.D. Ga. Sept. 29, 2017). Other Circuits have done so as well. See, e.g., Gonzalez, 985 F.3d at 375.
First, the Court finds that consideration of U Visa applicants’ waitlist eligibility is governed by a "rule of reason." USCIS processes U Visa applications for waitlist eligibility in the order they are received, i.e., on a "first in, first out basis," with some prescribed exceptions. Doc. No. [11], 9. Indeed, granting Plaintiffs’ requested relief would undermine this rule of reason by "simply mov[ing] all other [petitioners] back one space and produc[ing] no net gain." Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003). Courts "have no basis for reordering agency priorities," ( In re Barr Lab'ys, Inc., 930 F.2d 72, 76 (D.C. Cir. 1991) ), and this Court will not second-guess USCIS's processing policies.
USCIS may, in its discretion, expedite decisions on U Visa applications in certain limited circumstances, including where an applicant has been placed in ICE removal proceedings. Doc. No. [11], 10, n.11. Further, because qualifying family members are not subject to 8 U.S.C. § 1184(p)(2), and because derivative petitions depend upon the principal petition, USCIS "endeavors to adjudicate group filings together, even if derivative petitions are filed after the principal petition." Id. (citing 8 C.F.R. § 214.14(f)(2) ).
Plaintiffs seem to argue that the adjudication of family members’ petitions together (even where a derivative petition is filed later) makes USCIS's processing scheme unreasonable. Doc. No. [17], 23. The Court disagrees. There is nothing unreasonable about adjudicating all family members’ applications at once. Nor is it unreasonable, or "absurd," as Plaintiffs argue, that applicants who are placed in removal proceedings are prioritized. Doc. No. [17], 23–24. This policy does not "reward" applicants in removal proceedings—it seeks to ensure that applicants eligible for a U Visa are not deported.
The second factor does not apply in this matter because, as discussed supra, Congress provided no timetable or other indication of the speed with which it expects the agency to process U Visa applications for waitlist eligibility. Indeed, the Court agrees with Defendants that "the 10,000 U visa cap and the regulatory waitlist suggest that Congress understood that the U visa process would necessitate a long timetable." Doc. No. [11], 25. USCIS has issued all 10,000 congressionally authorized U Visas for a decade. Despite the increasing number of applications and lengthy waitlist, Congress has taken no action to increase that limit.
The third factor acknowledges that delays are less tolerable where peoples’ welfare is at stake. The Court is sensitive to Plaintiffs’ argument that they are in danger of being deported and separated from their children. However, while it is true that Plaintiffs’ U Visa applications have been pending for three years, they created a far longer delay for themselves by waiting ten years after the qualifying incident occurred to apply. See Doc. No. [1-1], 21, 24 (noting that the robbery occurred in January of 2007 and the criminal case was closed in February of 2008). Additionally, as discussed supra, it is likely that their U Visa petitions would be expedited if they were placed in removal proceedings. Finally, presumably every U Visa applicant waiting to be considered for waitlist eligibility is in the same position, and thus a juridically-sanctioned re-ordering of USCIS's process would net no prioritization of human welfare.
For similar reasons, the fourth and fifth factors also do not weigh in favor of Plaintiffs’ requested relief. "The effect of compelling USCIS to adjudicate Plaintiff[s’] [ ] application[s] would be simply to bump [them] to the front of the queue." Alkassab v. Rodriguez, No. 2:16-cv-1267-RMG, 2017 WL 1232428, at *5 (D.S.C. Apr. 3, 2017). Plaintiffs have identified no facts to support their being placed in the front of any line, particularly over others who have waited longer for a waitlist eligibility determination. Thus, the effect of their requested relief would be to further delay "agency activities of a higher or competing priority"—eligibility determinations for applications "ahead" of Plaintiffs in line. The Court cannot justify prioritizing Plaintiffs’ interests over the interests of these applicants.
Finally, Plaintiffs have not alleged, and the Court does not find, any improper motives in USCIS's delayed consideration of their application. Indeed, the explanation is simply that "USCIS has been (and continues to be) inundated with U visa petitions." Doc. No. [11], 4. Defendants have taken actions, "including adding a second Service Center site and additional officers to assist with erasing the backlog." Id. at 31. There is nothing to suggest impropriety.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. No. [11]) is GRANTED . Plaintiffs’ Complaint is DISMISSED .
IT IS SO ORDERED this 20th day of May, 2021.