Opinion
CIVIL ACTION NO. 1:20-CV-03831-JPB
2021-07-22
MD Fojle HASAN, Plaintiff, v. Chad WOLF, Acting Secretary of U.S. Department of Homeland Security, et al., Defendants.
H. Glenn Fogle, Jr., The Fogle Law Firm, LLC, Atlanta, GA, for Plaintiff. Y. Soo Jo, Office of the United States Attorney, Atlanta, GA, for Defendants.
H. Glenn Fogle, Jr., The Fogle Law Firm, LLC, Atlanta, GA, for Plaintiff.
Y. Soo Jo, Office of the United States Attorney, Atlanta, GA, for Defendants.
ORDER
J. P. BOULEE, United States District Judge
This matter is before the Court on Chad F. Wolf, Kenneth T. Cuccinelli and Tracy Renaud's (collectively, "Defendants") Motion to Dismiss [Doc. 12]. This Court finds as follows:
MD Fojle Hasan ("Plaintiff") is a native and citizen of Bangladesh. [Doc. 1, p. 2]. On June 12, 2017, he applied for a U nonimmigrant visa ("U-Visa") by filing with the United States Citizenship and Immigration Services ("USCIS") an I-918 Petition for U Nonimmigrant Status ("the Petition"). Id. A U-Visa affords temporary immigration benefits to certain aliens who are victims of violent crimes. On January 24, 2018, Plaintiff submitted a related Application for Employment Authorization ("the Application"). Id. at 3. Although pending for more than three years, USCIS has not adjudicated either the Petition or the Application.
While Plaintiff was visiting the United States on a B-2 Visa, he was the victim of an armed robbery and felonious assault.
Asserting that Defendants have unreasonably delayed adjudication of both, Plaintiff filed his Original Complaint for Writ of Mandamus and Declaratory Judgment ("Complaint") against Defendants on September 16, 2020. Proceeding under both the Administrative Procedure Act ("APA") and the Mandamus Act, Plaintiff seeks an order compelling Defendants to adjudicate his Petition and Application. Id. at 15. On December 1, 2020, Defendants filed the instant Motion to Dismiss seeking dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). [Doc. 12].
In the alternative, Defendants also moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Because the Court lacks subject matter jurisdiction over Plaintiff's Complaint, the Court need not and does not rule on this alternative argument.
LEGAL STANDARD
A defendant may challenge subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) either facially or factually. Douglas v. United States, 814 F.3d 1268, 1274-75 (11th Cir. 2016). A facial attack requires the court to examine the complaint, taken as true, to determine whether the plaintiff has sufficiently alleged a jurisdictional basis. Id. at 1274. On the other hand, a factual attack requires the court to examine matters outside the pleadings to determine whether the plaintiff has sufficiently alleged a basis for the court's jurisdiction. Id. at 1278. In a factual attack, the plaintiff's claims are not taken as true. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Moreover, a factual challenge places the burden of proving jurisdiction on the plaintiff. OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002).
DISCUSSION
The issue here is whether this Court has jurisdiction to compel Defendants, under either the APA or the Mandamus Act, to adjudicate Plaintiff's Petition and Application. As a starting point, it is important to recognize that jurisdiction is limited under both the APA and the Mandamus Act. The principal purpose of this limited jurisdiction is "to protect agencies from undue judicial interference" and "to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve." Norton v. S. Utah Wilderness All., 542 U.S. 55, 66, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004).
The APA authorizes suit by a person suffering a legal wrong because of agency action or inaction. 5 U.S.C. § 702. In the context of an agency's failure to act, 5 U.S.C. § 706(1) provides that a reviewing court shall "compel agency action unlawfully withheld or unreasonably delayed." Importantly, the Supreme Court of the United States has made clear that agency delays or "failures to act are sometimes remediable under the APA, but not always." Norton, 542 U.S. at 62, 124 S.Ct. 2373. In fact, a claim under the APA can only proceed where a plaintiff asserts "that an agency failed to take a discrete agency action that it is required to take. " Id. at 64, 124 S.Ct. 2373. The limitation to discrete agency action precludes broad programmatic attacks while the limitation to required agency action rules out agency action that is not demanded by law. Id. The Supreme Court has given the following example: "when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency's discretion, a court can compel the agency to act, but has no power to specify what the action must be." Id. In Norton, the Supreme Court clarified that "[t]he prospect of pervasive oversight by federal courts over the manner and pace of agency compliance with ... congressional directives is not contemplated by the APA." Id. at 67, 124 S.Ct. 2373.
Similarly, the Mandamus Act provides that district courts have original jurisdiction to compel officers or employees of the United States or any agency thereof to perform duties owed to a plaintiff. 28 U.S.C. § 1361. Mandamus, which is an extraordinary remedy, 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 v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003). In other words, mandamus "is intended to provide a remedy for a plaintiff ... only if the defendant owes him a clear nondiscretionary duty." Id.
There are two additional limitations on this Court's jurisdiction important for this case—one in the APA and the other in the Immigration and Nationality Act ("INA"). First, 5 U.S.C. § 701(a)(2), a provision of the APA, precludes review of "agency action [that] is committed to agency discretion by law." Second, the INA strips this Court of "jurisdiction to review any other 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." 8 U.S.C. § 1252(a)(2)(B)(ii). Under this provision, courts are precluded from reviewing discretionary decisions or actions of USCIS. Orabi v. Chertoff, 562 F. Supp. 2d 1377, 1380-81 (N.D. Ga. 2007).
In this case, Plaintiff does not allege that Defendants have refused to act or will never adjudicate his Petition and Application. Instead, Plaintiff contends that Defendants are proceeding too slowly. Thus, this case hinges on whether Defendants’ pace of adjudication is a non-discretionary duty. Plaintiff concedes that the ultimate decision whether to grant or deny the Petition and the Application is discretionary but argues that the adjudication leading to that discretionary decision is a mandatory duty. In response, Defendants argue that the pace of adjudication is not subject to judicial review, as Congress left the process entirely to the agency's discretion. The Eleventh Circuit Court of Appeals has not yet addressed the issue.
Like other courts throughout the country, district courts within the Eleventh Circuit are divided on the question of whether the APA or the Mandamus Act provides a jurisdictional basis to review claims that USCIS has unreasonably delayed the adjudication of an immigration application. Many courts within this circuit have found that these claims are not reviewable. See, e.g., Hidalgo Canevaro v. Wolf, No. 1:20-3553, 540 F.Supp.3d 1235, 1241–42 (N.D. Ga. May 20, 2021) (collecting cases); Orabi v. Chertoff, 562 F. Supp. 2d 1377, 1380 (N.D. Ga. 2007) (determining that the court did not have jurisdiction over a delayed adjudication claim relating to a change of status application); Eldeeb v. Chertoff, 619 F. Supp. 2d 1190, 1204 (M.D. Fla. 2007) (holding that the court lacked jurisdiction because "the pace of adjudication of an I-485 application is a discretionary function" of USCIS); Torres v. Chertoff, No. 1:07-CV-01649, 2007 WL 4261742, at *5 (N.D. Ga. Nov. 30, 2007) (determining that the APA "expressly precludes jurisdiction" over complaint regarding pace of adjudication). On the other hand, other courts have found jurisdiction. See, e.g., Choudhry v. Chertoff, No. 1:07-CV-426, 2007 WL 9706374, at *3 (N.D. Ga. Mar. 12, 2007) (concluding that the APA imposes a non-discretionary duty upon the government to process applications within a reasonable time period); Patel v. Cissna, 400 F. Supp. 3d 1373, 1383 (M.D. Ga. 2019) (stating that "[t]here is no dispute that [the defendants] are required by law to decide whether to place [the plaintiff] on the waiting list"); Abdi v. Chertoff, No. 6:08-cv-292, 2008 WL 4371351, at *4 (M.D. Fla. Sept. 22, 2008) (holding that the plaintiff's right to have his application adjudicated implicates a right to have the application adjudicated in a reasonable time). What divides these courts is whether the pace of processing applications is discretionary. The federal appellate courts that have addressed the issue have not created any consensus either. In 2010, the Fifth Circuit Court of Appeals determined that, in the context of an I-485 application, it was without subject matter jurisdiction to address a pace of adjudication claim under either the APA or the Mandamus Act because "how" USCIS chooses to adjudicate an application is discretionary in the absence of a specific deadline or even a time frame for adjudication of applications. Bian v. Clinton, 605 F.3d 249, 253-55 (5th Cir. 2010), vacated as moot, 2010 WL 3633770 (5th Cir. Sept. 16, 2010). More recently, the Fourth Circuit Court of Appeals held that a pace of adjudication claim was reviewable. Gonzalez v. Cuccinelli, 985 F.3d 357, 374 n.10 (4th Cir. 2021). In Gonzalez, however, "[t]he court relegated that holding to a footnote that did not discuss or consider" the jurisdictional bars and "instead based its holding on the fact that Congress mandated that the agency pass implementing regulations of the U-Visa program." Butanda v. Wolf, No. 1:20-cv-01155, 516 F.Supp.3d 1243, 1251 n.2 (D. Colo. Feb. 1, 2021).
I. The I-918 Petition
This Court will begin by analyzing whether it can compel Defendants to adjudicate Plaintiff's Petition. For this Court to have jurisdiction, it must find that Defendants have a non-discretionary duty as to the pace of adjudicating Plaintiff's Petition.
Through the INA, Congress empowered the executive branch to oversee the process and conditions of admitting aliens into the United States. See Pub. L. No. 82-414, § 101, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. § 1101 ). A great deal of that authority has been delegated to USCIS. Relevant to this case, USCIS is responsible for administering the U-Visa Program, which was established in 2000 for certain victims of serious crimes who cooperate with law enforcement. 8 C.F.R. § 214.14(c)(1). See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386 § 1513(a)(2)(B), 114 Stat. 1464, 1533 (2000) (codified at 8 U.S.C. § 1101(a)(15) ). Aliens approved for a U-Visa are entitled to temporary resident status and employment authorization. 8 U.S.C. § 1184(p)(3).
In 2005, Congress amended the U-Visa Program in the Violence Against Women and Department of Justice Reauthorization Act. Pub. L. 109-162, 119 Stat. 2960 (2006). Under this Act, the Secretary of Homeland Security was directed to promulgate regulations to implement the statutory U-Visa provisions, which the Secretary did in 2007. Under the regulations, the Secretary gave USCIS sole jurisdiction over U-Visa petitions. 8 C.F.R. § 214.14.
Congress capped the number of U-Visas at 10,000 per year. 8 U.S.C. § 1184(p)(2). Anticipating that the statutory cap would be met, USCIS created a regulatory waiting list process. 8 C.F.R. § 214.14(d)(2) ; 72 Fed. Reg. 53014 (Sept. 17, 2007). Under the pertinent regulation, after USCIS determines that 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). Waiting list priority is determined by the date on which the petition was filed, with the oldest receiving the highest priority. Id. Placement on the waiting list is important because the petitioner will receive deferred action if they are in the United States and USCIS may authorize employment for wait-listed petitioners. Id.
As detailed previously, neither the APA nor the Mandamus Act provides jurisdiction over a claim that an agency failed to take a discretionary action. Review of the statutory and regulatory provisions pertaining to the U-Visa Program demonstrates that the pace of adjudicating U-Visa petitions is statutorily committed to the discretion of the Secretary, and by extension, USCIS. See 8 U.S.C. § 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."). Yes, USCIS must adjudicate petitions. But how it does that is left to its discretion. Through these statutes and regulations, Congress gave the Attorney General the authority to devise the system for processing petitions—and ultimately the decision to grant or deny them. In other words, these provisions grant discretion not only over the ultimate decision to adjust an alien's status but also over the promulgation of regulations to create the process by which an alien's status may be adjusted. Necessarily included in this discretion is the pace of adjudication. "Otherwise, the grant of discretion would be illusory, given that courts could drastically alter the regulations prescribed by dictating what pace of adjudication the regulations must permit." Beshir v. Holder, 10 F. Supp. 3d 165, 174 (D.D.C. 2014).
The absence of a congressionally imposed deadline or timeframe to complete the adjudication supports the conclusion that the pace of adjudication is discretionary. Congress knows how to, and often does, prescribe timelines for nonimmigrant admission when it wants to. For example, under 8 U.S.C. § 1184(c)(2)(C), Congress requires the Attorney General to "provide a process for reviewing and acting upon petitions" for nonimmigrant admission filed by an alien employed by certain American corporations "within 30 days after the date a completed petition has been filed." As another example, 8 U.S.C. § 1184(c)(6)(D) requires the Attorney General to adjudicate the petition of an alien who seeks to work in the motion picture or television industry in "no more than 14 days."
Here, Congress did not set a deadline within which the Secretary must adjudicate the petitions. "With no specific deadline in the statute, Congress has left to ... administrative discretion the time in which [to] complete [the] review of such applications." Beshir, 10 F. Supp. 3d at 176. If Congress intended to constrain USCIS to adjudicate a petition within a specific amount of time, Congress would have provided a time limitation in the statute itself.
It is important to note that Plaintiff never alleges that Defendants are refusing to adjudicate his petition—only that they are taking too long. This case presents not a failure to act, but allegations that action is not happening quickly enough. Because U-Visa petitions are (1) committed to the discretion of USCIS, and (2) because there is no non-discretionary mandate that petitions be assessed in any given time, this Court lacks subject matter jurisdiction over Plaintiff's claims. For either the APA or the Mandamus Act to apply, Defendants must be legally required to do something. Because Defendants are not legally required to adjudicate Plaintiff's Petition within a specific time period, dismissal is appropriate.
The Court is not unsympathetic to Plaintiff, but "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 v. Chertoff, No. 1:07-CV-01649, 2007 WL 4261742, at *6 (N.D. Ga. Nov. 30, 2007). Compelling Defendants to act here would lead to "pervasive interference" with Defendants’ own ordering of priorities. See Norton, 542 U.S. at 71, 124 S.Ct. 2373. For example, a judicial decree compelling immediate adjudication of Plaintiff's Petition would divert Defendants’ energies from other petitions throughout the country that may be more pressing—like petitions for those individuals in removal proceedings or petitions that have been pending for a longer amount of time. "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 v. Chertoff, 619 F. Supp. 2d 1190, 1203 (M.D. Fla. 2007) (holding that the pace of adjudication for an I-485 application is a discretionary function).
II. The Application for Work Authorization
Plaintiff also asks this Court to compel Defendants to adjudicate his Application. The statutory provision at issue is 8 U.S.C. § 1184(p)(6), which states that "[t]he Secretary may grant work authorization to any alien who has a pending, bona fide application" for a U-Visa. 8 U.S.C. § 1184(p)(6) (emphasis added). The implementing regulation for § 1184(p)(6) provides that "USCIS, in its discretion, may authorize employment for such petitioners." 8 C.F.R. § 214.14(d)(2) (emphasis added).
The language of both the statute and the implementing regulation is "facially discretionary." See Hidalgo Canevaro v. Wolf, No. 1:20-cv-3553, 540 F.Supp.3d 1235, 1243 (N.D. Ga. May 20, 2021) ; see also Gonzalez v. Cuccinelli, 985 F.3d 357, 366 (4th Cir. 2021) ("[N]othing in § 1184(p)(6) requires the agency to do anything."). The statute states clearly and unambiguously that "[t]he Secretary may grant work authorization to any alien who has a pending, bona fide application." "Thus, it is clear that the Secretary could grant Plaintiff a work authorization if his application is bona fide. But, there is nothing in the language to suggest that he must. There is certainly no ‘specific, unequivocal command’ that he do so." Patel v. Cissna, 400 F. Supp. 3d 1373, 1379 (M.D. Ga. 2019).
This Court recognizes that § 1184(p)(6) sets criteria for work authorization eligibility, i.e., that the pending application be bona fide. However, that language does not require the Secretary or USCIS to adjudicate requests for this discretionary relief. See Hidalgo Canevaro, 540 F.Supp. at 1243–44. "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. For even if the agency finds an applicant meets the ‘pending, bona fide’ standard, the agency may still deny her a work authorization." Gonzalez, 985 F.3d at 371. "Congress may have contemplated that the Secretary would implement a process for determining whether an applicant should be provided a work authorization, ... but it left the ultimate determination to the Secretary, who would presumably decide what to do in his discretion based upon a myriad of factors, including the best use of available limited resources." Patel, 400 F. Supp. 3d at 1379.
Moreover, in addition to the discretionary language in the statute and regulation, "Congress has shown that it knows how to require an agency to implement a provision and adjudicate claims, especially within a certain timeframe." Gonzalez, 985 F.3d at 367. As just one example, in 2006, Congress mandated that "[n]ot later than 180 days after the date of enactment," the Secretary "shall promulgate regulations to implement the provisions contained in the Battered Immigrant Women Protection Act of 2000." Pub. L. No. 109-162, § 828, 119 Stat. 2960, 3066 (2006) (codified as amended at 8 U.S.C. § 1101 (2006) ). No such mandatory language is present here. Instead, Congress stated that the Secretary may grant work authorizations to bona fide applicants.
In sum, this Court finds that Defendants are not required to implement or adjudicate pre-waiting-list work authorizations, making Defendants’ failure to adjudicate Plaintiff's Application in a timely manner unreviewable. Gonzalez, 985 F.3d at 371. In other words, absent a non-discretionary duty or a clear duty to act, this Court is without jurisdiction under the APA and the Mandamus Act to review the pace at which USCIS adjudicates Plaintiff's Application. Because this Court has no subject matter jurisdiction to enter such an order, dismissal of this claim is proper. See Hidalgo Canevaro, 540 F.Supp.3d at 1243–44 (finding that the court was without jurisdiction to review the pace of adjudication for a work authorization application).
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss [Doc. 12] is GRANTED , and Plaintiff's Complaint is DISMISSED without prejudice. The Clerk is DIRECTED to close this case.
A dismissal for lack of subject matter jurisdiction is "entered without prejudice." Yeh Ho v. Sabocik, 775 F. App'x 551, 555 (11th Cir. 2019).
SO ORDERED this 22nd day of July, 2021.