Opinion
Case No. 1:20-cv-460
2020-12-16
Ardiles Yasdami Mendez MENDEZ and Limmy Erivelba Lopez Mazariegos, Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
James Leo Betzold, Betzold Law PLC, Holland, MI, for Plaintiffs. Ryan D. Cobb, U.S. Attorney, Grand Rapids, MI, for Defendants.
James Leo Betzold, Betzold Law PLC, Holland, MI, for Plaintiffs.
Ryan D. Cobb, U.S. Attorney, Grand Rapids, MI, for Defendants.
OPINION AND ORDER
PHILLIP J. GREEN, United States Magistrate Judge
This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff's Second Amended Complaint. (ECF No. 21). The parties consented to proceed in this Court for all proceedings, including trial and an order of final judgment. 28 U.S.C. § 636(c)(1). Accordingly, the Honorable Janet T. Neff referred this case to the undersigned. For the reasons discussed herein, Defendants’ motion to dismiss (ECF No. 21) will be granted and this action terminated.
BACKGROUND
In 2000, Congress amended federal immigration law through passage of the Victims of Trafficking and Violence Protection Act of 2000. See Pub. L. No. 106-386, 114 Stat. 1464 (2000) (codified at 8 U.S.C. § 1101(a)(15)(U) ). This amendment created the U-Visa, a new category of immigrant visa available to aliens who are victims of certain crimes and who assist law enforcement in the investigation and prosecution of such crime. See 8 U.S.C. § 1101(a)(15)(U). The United States Citizenship and Immigration Service (USCIS), a department within the Department of Homeland Security (DHS), is the agency responsible for adjudicating visa applications. See M.J.L. v. McAleenan , 420 F.Supp.3d 588, 591 (W.D. Tex. 2019).
Federal law provides that no more than 10,000 U-Visas may be issued in any fiscal year. 8 U.S.C. § 1184(p)(2). Once this statutory cap is attained, U-Visa applicants are placed on a waiting list. See 8 C.F.R. § 214.14(d). According to this regulation, "[p]riority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority." Id. As of 2017, the U-Visa waiting list exceeded 175,000 applicants. See Calderon-Ramirez v. McCament , 877 F.3d 272, 276 (7th Cir. 2017). Pursuant to current law, the Secretary of DHS "may grant work authorization to any alien who has a pending, bona fide [U-Visa] application...." 8 U.S.C. § 1184(p)(6).
In their amended complaint, Plaintiffs seek relief against: (1) DHS; (2) USCIS; (3) Acting Secretary of DHS, Chad Wolf; and (4) Acting Secretary of USCIS, Kenneth Cuccinelli. (ECF No. 20). Plaintiffs Mendez and Mazariegos assert that they submitted applications for a U-Visa and for work authorization pending the adjudication of his U-Visa application on February 26, 2018, and March 19, 2018, respectively. Plaintiffs further assert that they submitted to USCIS a request under the Freedom of Information Act (FOIA) for their "alien registration file," but that such has been unlawfully withheld.
Plaintiffs assert three claims for relief: (1) their applications for a U-Visa have been unreasonably delayed; (2) their request for work authorization pending resolution of their U-Visa application has been unreasonably delayed; and (3) Defendant USCIS has unlawfully denied Plaintiffs’ FOIA request. Defendants argue that this Court lacks subject matter jurisdiction over Plaintiffs’ claims and, in the alternative, that Plaintiffs’ allegations fail to state a claim on which relief may be granted. Defendants also argue that the Court lacks jurisdiction to resolve Plaintiffs’ FOIA claims.
Defendants initial motion to dismiss (ECF No. 15) is hereby dismissed as moot as the complaint to which it was directed was subsequently amended and superseded.
ANALYSIS
I. U-Visa and Work Authorization Claims
A. Subject Matter Jurisdiction
Plaintiffs assert that their applications for a U-Visa and work authorization have been unreasonably delayed. Plaintiffs’ claims are asserted pursuant to the Administrative Procedures Act (APA), which mandates that "within a reasonable time, each agency shall proceed to conclude a matter presented to it." 5 U.S.C. § 555(b). While federal law authorizes courts to "compel agency action unlawfully withheld or unreasonably delayed," 5 U.S.C. § 706(1), the APA articulates two significant limitations on this authority. Specifically, the APA prohibits judicial review where (1) "statutes preclude judicial review," or (2) the "agency action is committed to agency discretion by law." 5 U.S.C. § 701. Thus, the APA authorizes the Court to review claims of "unreasonable delay" unless review is precluded by statute or concerns a matter committed to agency discretion. See M.J.L. , 420 F.Supp.3d at 594-95. Relevant to the present matter is a provision of federal law that provides that "no court shall have jurisdiction to review" any "decision or action" that is "in the discretion of the Attorney General or the Secretary of Homeland Security." 8 U.S.C. § 1252(a)(2)(B)(ii).
1. Work Authorization
Plaintiffs made requests for work authorization pending resolution of their U-Visa application pursuant to 8 U.S.C. § 1184(p)(6). They claim that they have been unreasonably delayed. The relevant statutory provision explicitly states that "[t]he Secretary [of Homeland Security] 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). As courts recognize, this provision explicitly grants to the Secretary of DHS the discretion whether to grant an application for work authorization. See, e.g., Patel v. Cissna , 400 F.Supp.3d 1373, 1379-80 (M.D. Ga. 2019) ; M.J.L. , 420 F.Supp.3d at 598-99. Because this claim concerns a matter left to the discretion of the Secretary of DHS, the Court lacks jurisdiction to review such. See, e.g., Patel , 400 F.Supp.3d at 1379-83 ; M.J.L. , 420 F.Supp.3d at 598-99.
2. U-Visa
The decision whether to grant a U-Visa is a matter left to the discretion of the Secretary of DHS. See, e.g., L.D.G. v. Holder , 744 F.3d 1022, 1024 (7th Cir. 2014) ("[t]he decision whether to grant a U Visa is statutorily committed to the discretion of the Secretary of Homeland Security ... and is exercised through USCIS"). There does not appear to be any dispute that the USCIS has an affirmative, non-discretionary, duty to adjudicate U-Visa applications. See, e.g., Calderon-Ramirez , 877 F.3d at 276. Thus, the Court would appear to have jurisdiction over a claim that the USCIS has refused to adjudicate a U-Visa application.
But Plaintiffs do not allege that the USCIS has refused to process their U-Visa applications. Instead, they assert that decisions regarding their U-Visa application have been unreasonably delayed. Thus, the jurisdictional question raised by Plaintiffs’ claims is whether the pace at which a U-Visa application is adjudicated is a matter of discretion, which lies beyond this Court's jurisdiction. This is a question that has divided courts. See, e.g., M.J.L. , 420 F.Supp.3d at 595-97 (the "nondiscretionary duty" to adjudicate U-Visa applications encompasses claims regarding the pace of adjudication); Beshir v. Holder , 10 F.Supp.3d 165, 172-77 (D.D.C. 2014) (the absence of an adjudication timeline or deadline in the relevant statute gives to the USCIS the discretion to determine the pace at which U-Visa applications are adjudicated). The Court finds the latter position far more persuasive and consistent with the authority identified above.
In support of its conclusion that the pace of U-Visa adjudication was not discretionary, the M.J.L. court first observed that "the USCIS has a nondiscretionary statutory duty to adjudicate U Visas." M.J.L. , 420 F.Supp.3d at 595. From this, the court reasoned that "[t]he secretary cannot be charged with immigration administration and simultaneously have no duty to administrate. Such a result is irrational." Id. at 595-96. Thus, the court found that challenges to the pace of adjudication of a U-Visa application were within its jurisdiction. Id. at 597.
This Court finds this logic unpersuasive for two reasons. First, it conflates the Secretary's obligation to adjudicate U-Visa applications with questions regarding the pace of such adjudication. Stated differently, this analysis fails to recognize a distinction between (a) a claim that the Secretary has refused to adjudicate a U-Visa application and (b) a claim that the adjudication process is simply proceeding too slowly. The Court can certainly envision a circumstance in which an adjudication delay is so lengthy that such is fairly characterized as a refusal to adjudicate. But the M.J.L. court's analysis did not rest upon, or recognize, such a distinction. Moreover, neither the facts in that case nor the facts in the present case would support a finding that the delay suffered by Plaintiffs is fairly characterized as a refusal to adjudicate.
Second, the analysis by the M.J.L. court simply disregards the fact that the relevant statutes contain no language (1) establishing a deadline within which U-Visa applications must be adjudicated or (2) articulating guidelines or factors relevant to the question of the pace of adjudication. As the Beshir court recognized, when Congress wanted to impose on immigration officials an affirmative obligation to perform an act within a certain time frame, Congress included such language in the relevant statute. See Beshir , 10 F.Supp.3d at 176 ; see also, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania , ––– U.S. ––––, 140 S.Ct. 2367, 2381, 207 L.Ed.2d 819 (2020) (a "fundamental principle" of statutory interpretation is that "absent provisions cannot be supplied by the courts," a principle which "applies not only to adding terms not found in the statute, but also to imposing limits on an agency's discretion that are not supported by the text").
Accordingly, the Court finds that it lacks subject matter jurisdiction to resolve Plaintiffs’ claims that their U-Visa applications have been unreasonably delayed. As discussed below, however, even if the Court were to resolve this jurisdictional question differently, the result would be the same as Plaintiffs have failed to articulate any basis for relief.
B. Failure to State a Claim
Plaintiffs argue that their applications for a U-Visa have been unreasonably delayed and requests that the Court enter an Order mandating that Defendants process their U-Visa application within thirty days. Defendants counter that Plaintiffs’ allegations fail to state a claim on which relief may be granted.
A claim must be dismissed for failure to state a claim on which relief may be granted unless the "[f]actual allegations [are] enough to raise a right for relief above the speculative level on the assumption that all of the complaint's allegations are true." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court need not accept as true, however, factual allegations which are "clearly irrational or wholly incredible." Denton v. Hernandez , 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992).
As the Supreme Court has held, to avoid dismissal, a complaint must contain "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This plausibility standard "is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." If the complaint simply pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of ‘entitlement to relief.’ " Id. As the Court further observed:
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice ... Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss ... Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not "show[n]" – "that the pleader is entitled to relief."
Id. at 678-79, 129 S.Ct. 1937 (internal citations omitted).
When resolving a claim under the APA that an agency's mandatory adjudication determination has been unreasonably delayed, the Court considers the six factors articulated in Telecommunications Research & Action Center v. FCC , 750 F.2d 70 (D.C. Cir. 1984), generally referred to as the TRAC factors. See, e.g., Gonzalez v. Cissna , 364 F.Supp.3d 579, 585 (E.D.N.C. 2019) ; Yan Chen v. Nielsen , 2018 WL 1221130 at *1-2 (E.D.N.Y., Mar. 8, 2018).
The TRAC 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, such may inform the 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 effect of expediting delayed action on agency activities of a higher or competing priority; (5) the nature and extent of the interests prejudiced by delay; and (6) a finding of impropriety is not a prerequisite for finding that agency action is unreasonably delayed. See Gonzalez , 364 F.Supp.3d at 585 ; Yan Chen , 2018 WL 1221130 at *1-2. Consideration of these factors compel a finding that Defendants’ motion to dismiss be granted.
The first factor does not weigh in Plaintiffs’ favor. U-Visa applications are generally adjudicated in order of submission "with a select few petitions being expedited subject to criteria set forth by the agency." Gonzalez , 364 F.Supp.3d at 585. This constitutes a rule of reason. Ibid. The second factor likewise does not advance Plaintiffs’ position as Congress has failed to articulate a timeframe within which it expects U-Visa applications to be processed. With respect to the third and fifth factors, while the Court recognizes that the delays in processing U-Visas enacts a very real cost in terms of human health and welfare, such does not by itself render the delay in this case unreasonable. This is especially the case where the delay in adjudicating Plaintiffs’ U-Visa applications, less than 34 months, is significantly shorter than the average adjudication time of 52 months. See Guerra Rocha v. Barr , 951 F.3d 848, 850 (7th Cir. 2020). In sum, consideration of these factors does not support a finding that the delay in adjudication of Plaintiffs’ U-Visa applications is unreasonable.
This conclusion is strengthened by consideration of the fourth factor. Courts have concluded that, absent allegations that an applicant has been treated differently from other applicants, claims by U-Visa applicants to move ahead of other applicants should be rejected. See, e.g., Xiaobin Xu v. Nielsen , 2018 WL 2451202 at *2 (E.D.N.Y., May 31, 2018) (regarding the fourth factor, "it is appropriate to refuse to grant relief, even though all the other factors considered in TRAC favor it, where a judicial order putting the petitioner at the head of the queue would simply move all others back one space and produce no net gain"); Gonzalez , 364 F.Supp.3d at 585 (same); Yan Chen , 2018 WL 1221130 at *2 (same). Plaintiffs do not allege that they are being treated differently from other U-Visa applicants. Rather, they merely object to the delay in processing their applications. Thus, this factor strongly, if not dispositively, weighs against Plaintiffs’ position.
In sum, Plaintiffs’ allegations fail to state a claim on which relief may be granted. Accordingly, with respect to Plaintiffs’ claim that adjudication of their U-Visa applications has been unreasonably denied, the Court grants Defendants’ motion to dismiss on the alternative ground that Plaintiffs’ allegations fail to state a claim on which relief may be granted.
II. Freedom of Information Act (FOIA) Claims
In their amended complaint, Plaintiffs allege that they filed their FOIA requests with USCIS on September 8, 2020. (ECF No. 20, PageID.133). In response to the present motion, however, Plaintiffs have submitted evidence that they submitted their FOIA requests on August 31, 2020. (ECF No. 24-1, PageID.191-206). Defendants agree that Plaintiffs submitted their FOIA requests on August 31, 2020. (ECF No. 22, PageID.160).
Pursuant to federal law, an agency to which a FOIA request has been submitted shall, "within 20 days (excepting Saturdays, Sundays, and legal public holidays)," determine "whether to comply with such request." 5 U.S.C. § 552(a)(6)(A)(i). In "unusual circumstances," however, the agency is permitted an additional "ten working days" to satisfy this obligation. 5 U.S.C. § 552(a)(6)(B). Defendant USCIS invoked this additional time to respond to Plaintiffs’ FOIA requests. (ECF No. 24-2, PageID.191-93, 199-201).
In the event an applicant is dissatisfied with the agency's response to his FOIA request, he may pursue an administrative appeal. 5 U.S.C. § 552(a)(6)(A). Exhaustion of this administrative appeal process is "a jurisdictional prerequisite in the Sixth Circuit." Sharkey v. Federal Bureau of Investigation , 2017 WL 3336617 at *6 (N.D. Ohio, Aug. 4, 2017) (citation omitted). Accordingly, if a plaintiff asserts a FOIA claim before exhausting this administrative remedy, such claim must be dismissed for lack of subject matter jurisdiction. Ibid. It must be noted, however, that a FOIA applicant "shall be deemed to have exhausted his administrative remedies" if the agency simply fails to respond to the FOIA request within the time-period articulated above. 5 U.S.C. § 552(a)(6)(C).
In this case, USCIS was afforded until October 14, 2020, to respond to Plaintiffs’ FOIA requests. Plaintiffs, however, submitted their current amended complaint on September 30, 2020. (ECF No. 20). Accordingly, because Plaintiffs asserted their FOIA claims prior to exhausting their administrative remedies, the Court is without jurisdiction to resolve their claims.
Plaintiffs attempt to avoid this result by arguing that Defendant USCIS "fail[ed] to lawfully invoke the 10-day extension." According to Plaintiffs, because USCIS is not entitled to the additional ten-day period discussed above, the deadline for USCIS to respond to their FOIA request was September 29, 2020. Plaintiffs further argue that, because USCIS failed to respond by that date, their amended complaint, filed the next day, does not run afoul of the FOIA exhaustion requirement. While Plaintiff may disagree with the agency's invocation of the "unusual circumstances" exception to gain additional time to process their FOIA request, Plaintiff has failed to demonstrate that USCIS unlawfully invoked this exception or otherwise acted improperly in this regard.
The relevant statute provides that the "unusual circumstances" exception can be invoked where any of the following circumstances exist: (1) a need to search for and collect the requested records from "field facilities or other establishments" separate from the office processing the request; (2) a need to search for and collect a voluminous number of separate and distinct records; or (3) a need to consult with "another agency having a substantial interest in the determination" or "among two or more components of the agency having substantial subject-matter interest" in the material requested. 5 U.S.C. § 552(a)(6)(B)(iii).
In support of its invocation of the "unusual circumstances" exception, USCIS relied on the following justification: (1) the need to locate, compile, and review records from "multiple offices, both at headquarters and in the field"; and (2) the possibility that USCIS "may also need to consult with another agency or other component of [DHS] that have a substantial interest in the responsive information." (ECF No. 24-1, PageID.191-93, 199-201). These assertions are hardly unreasonable and are consistent with the statute's requirements. While Plaintiffs may disagree with this determination and find such to be nothing more than bureaucratic "boilerplate," they have failed to demonstrate that USCIS unlawfully or improperly invoked the "unusual circumstances" exception. Accordingly, the Court lacks jurisdiction to resolve Plaintiffs’ FOIA claims.
The Court notes that Plaintiffs assert in their response to the present motion that USCIS failed to respond to their FOIA requests by the extended deadline of October 14, 2020. (ECF No. 24, PageID.189). This assertion fails to alter the outcome in this matter for two reasons. First, this assertion is not supported by admissible evidence. Second, it does not change the fact that Plaintiffs asserted the present FOIA claims prior to expiration of the relevant deadline.
CONCLUSION
For the reasons articulated herein, Defendants’ original motion to dismiss (ECF No. 15) is dismissed as moot and Defendants’ Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 21) is granted and this matter is terminated. A Judgment consistent with this Opinion and Order will enter.