Opinion
CIVIL ACTION FILE NO. 1:20-CV-3921-TWT
2021-09-01
Mauricio Garcia MORENO, et al., Plaintiffs, v. Chad F. WOLF in his official capacity as Acting Secretary of Homeland Security, et al., 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.
OPINION AND ORDER
THOMAS W. THRASH, JR., United States District Judge
This action arises out of the United States Citizenship and Immigration Services’ ("USCIS") allegedly unreasonable delay in adjudicating U-visa applications and related work authorization under the Immigration and Nationality Act ("INA"). It is before the Court on the Defendants’ Motion to Dismiss [Doc. 7]. For the reasons set forth below, the Court GRANTS in part and DENIES in part the Defendants’ Motion to Dismiss [Doc. 7].
I. Background
Plaintiff Mauricio Garcia Moreno ("Moreno") is a native and citizen of Mexico who entered the United States unlawfully in May 2001. (Compl. ¶ 18.) His spouse, Plaintiff Nadia Sadruddin Hamid ("Hamid"), is a native and citizen of India who entered the United States on a K-1 visa as the fiancée of a U.S. citizen in May 2003. (Id. , Ex. A at 34.) She currently has no lawful status. (Id. , Ex. A at 36.) In February 2010, Moreno was the victim of an armed robbery while working as a convenience store cashier in Alexander City, Alabama. (Id. , Ex. A at 20–21.) He assisted law enforcement with the investigation and received a Form I-918B from the Alexander City Police Department to certify his helpfulness. (Id. , Ex. A at 20.) Although Moreno suffered no physical injuries during the robbery, a psychosocial evaluation found that he bears psychological effects from the incident, including anxiety and post-traumatic stress disorder. (Id. , Ex. A at 89–92.) Based on these events, on May 11, 2016, Moreno and Hamid applied for U nonimmigrant status, known as a U-visa, and work authorization with the USCIS. (Id. , Ex. A.)
The U-visa program grants lawful temporary resident status and work authorization to an individual who (1) "has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity" in the United States; (2) "possesses credible and reliable information ... concerning the qualifying criminal activity"; and (3) "has been helpful, is being helpful, or is likely to be helpful to a certifying agency in the investigation or prosecution of the qualifying criminal activity[.]" 8 C.F.R. § 214.14(b) ; see also 8 U.S.C. §§ 1101(a)(15)(U), 1184(p)(3). The USCIS is permitted to issue only 10,000 U-visas per year. 8 U.S.C. § 1184(p)(2). Because there are far more applications than available U-visas, the USCIS has established a regulatory waitlist where meritorious applications are placed until a U-visa becomes available. 8 C.F.R. § 214.14(d)(2). While on the waitlist, an applicant and his qualifying family members automatically receive deferred action or parole and, in the discretion of the USCIS, may receive work authorization. Id. However, the USCIS does not extend any benefits, including deferred action and work authorization, to an applicant and his family prior to certifying their eligibility for the waitlist. (Defs.’ Mot. to Dismiss, at 10–11.)
The Plaintiffs filed this action on September 21, 2020, after waiting more than four years for the USCIS to adjudicate their U-visa applications. (Compl. ¶ 4.) To date, the USCIS has neither issued U-visas to the Plaintiffs nor placed their applications on the waitlist; consequently, the Plaintiffs have not yet received work authorization. (Id. ¶ 14.) The Plaintiffs assert seven causes of action against the Defendants, which can be summarized as follows: (1) claims under the Administrative Procedure Act ("APA") and the Mandamus Act for unreasonable delay in adjudicating the Plaintiffs’ U-visa applications to determine their eligibility for the waitlist; (2) claims under the APA and the Mandamus Act for failure to issue the Plaintiffs work authorization pending review of their U-visa applications under 8 U.S.C. § 1184(p)(6) ; (3) claims under the APA and the Mandamus Act for failure to issue the Plaintiffs interim work authorization within 90 days of filing their U-visa applications under 8 C.F.R. § 274a.13(d) ; and (4) a claim under the APA for failure to follow notice-and-comment procedures in repealing 8 C.F.R. § 274a.13(d). (Id. ¶¶ 43–78.) The Defendants move to dismiss all claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim. (Defs.’ Mot. to Dismiss, at 1.)
These are styled as Counts I and III in the Complaint.
These are styled as Counts II and VI in the Complaint.
These are styled as Counts IV and VII in the Complaint.
This is styled as Count V in the Complaint.
II. Legal Standard
A complaint should be dismissed under Rule 12(b)(1) only where the court lacks jurisdiction over the subject matter of the dispute. Fed. R. Civ. P. 12(b)(1). "Because a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case[.]" Smith v. GTE Corp. , 236 F.3d 1292, 1299 (11th Cir. 2001). Attacks on subject matter jurisdiction come in two forms: "facial attacks" and "factual attacks." Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A. , 104 F.3d 1256, 1260 (11th Cir. 1997). 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 1261 (internal quotation marks, citation, and punctuation omitted). On a facial attack, therefore, "a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion[.]" Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990).
A complaint should be dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state a "plausible" claim for relief. Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ; Fed. R. Civ. P. 12(b)(6). A complaint may survive a motion to dismiss for failure to state a claim even if it is "improbable" that a plaintiff would be able to prove those facts; even if the possibility of recovery is extremely "remote and unlikely." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. See Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A. , 711 F.2d 989, 994–95 (11th Cir. 1983) ; see also Sanjuan v. American Bd. of Psychiatry & Neurology, Inc. , 40 F.3d 247, 251 (7th Cir. 1994) (noting that at the pleading stage, the plaintiff "receives the benefit of imagination"). Generally, notice pleading is all that is required for a valid complaint. See Lombard's, Inc. v. Prince Mfg., Inc. , 753 F.2d 974, 975 (11th Cir. 1985), cert. denied , 474 U.S. 1082, 106 S.Ct. 851, 88 L.Ed.2d 892 (1986). Under notice pleading, the plaintiff need only give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. See Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).
III. Discussion
The Plaintiffs assert subject matter jurisdiction under 28 U.S.C. § 1331 (the general federal question statute) and 28 U.S.C. § 1361 (the Mandamus Act). (Compl. ¶ 15.) "The federal question statute confers jurisdiction on the district courts over actions ‘arising under’ federal law," including the APA. Grinberg v. Swacina , 478 F. Supp. 2d 1350, 1355 (S.D. Fla. 2007). Mandamus, meanwhile, "is an extraordinary remedy available only in the clearest and most compelling of cases." Serrano v. United States Att'y Gen. , 655 F.3d 1260, 1263 (11th Cir. 2011). To obtain mandamus relief, a plaintiff must show that (1) he 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. See id. Where, as here, a plaintiff invokes "the Court's mandamus jurisdiction to compel action but not to direct the exercise of judgment or discretion, mandamus jurisdiction is coextensive with the remedies available under the APA. Courts apply the same principles and standards both to determine jurisdiction and to assess the merits of both claims." Grinberg , 478 F. Supp. 2d at 1354–55 (internal citation and emphasis omitted). Therefore, the Court merges its analysis of the Plaintiffs’ APA and mandamus claims on this motion to dismiss.
A. Counts I and III: Unreasonable Delay in Determining Eligibility for U-Visa Waitlist
1. Subject Matter Jurisdiction
The Plaintiffs first claim that the USCIS has unreasonably delayed adjudicating their U-visa applications to determine their eligibility for the waitlist, in violation of the APA. See 5 U.S.C. § 555(b) ("[E]ach agency shall proceed to conclude a matter presented to it ... within a reasonable time[.]"). The Defendants, however, argue that the Court lacks jurisdiction over this claim under 8 U.S.C. § 1252(a)(2)(B)(ii). (Defs.’ Mot. to Dismiss, at 18.) Section 1252(a)(2)(B)(ii) forbids a court from reviewing "any other decision or action of ... the Secretary of Homeland Security the authority for which is specified under this subchapter to be in [his] discretion[.]" 8 U.S.C. § 1252(a)(2)(B). According to the Defendants, the USCIS has discretion to adjudicate U-visa applications at its own pace—and judicial review is thus barred—because Congress did not impose a statutory timeline. (Defs.’ Mot. to Dismiss, at 19–20.) The Defendants claim support for their argument in 8 U.S.C. § 1184(a)(1), which permits the USCIS to enact regulations for admitting nonimmigrants to the United States, including as part of the U-visa program. (Id. )
Courts within this district and beyond have arrived at different conclusions when addressing this issue. Some courts have sided with the Defendants’ argument that agency delay is insulated from judicial review absent a statutory deadline to adjudicate U-visa applications. See, e.g., Hasan v. Wolf , No. 1:20-CV-03831-JPB, 550 F.Supp.3d 1342 (N.D. Ga. July 22, 2021) ; Hidalgo Canevaro v. Wolf , No. 1:20-CV-3553-SCJ, 540 F.Supp.3d 1235 (N.D. Ga. May 20, 2021) ; Butanda v. Wolf , 516 F.Supp.3d 1243 (D. Colo. 2021). Other courts have found that claims of unreasonable delay are reviewable, distinguishing (1) the USCIS's discretion to grant or deny U-visa applications from (2) the agency's non-discretionary duty to actually adjudicate those applications in the first place. See, e.g., Gonzalez v. Cuccinelli , 985 F.3d 357, 374 n.10 (4th Cir. 2021) ; Mondragon Tinoco v. Mayorkas , No. 1:20-cv-4787-MLB, 2021 WL 3603373 (N.D. Ga. Aug. 13, 2021) ; Uranga v. USCIS , 490 F. Supp. 3d 86 (D.D.C. 2020) ; Patel v. Cissna , 400 F. Supp. 3d 1373 (M.D. Ga. 2019). The Court finds the latter line of decisions more persuasive.
The Supreme Court has emphasized that section 1252(a)(2)(B)(ii) "speaks of authority ‘specified’—not merely assumed or contemplated—to be in the Attorney General's discretion." Kucana v. Holder , 558 U.S. 233, 243 n.10, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). In other words, judicial review is barred "only when Congress itself set[s] out the Attorney General's discretionary authority in the statute." Id. at 247, 130 S.Ct. 827. The Defendants do not cite, nor has the Court found, any provision in the INA where Congress specified that the USCIS has discretion to indefinitely delay adjudicating U-visa applications. It is not enough to infer discretion from the absence of a statutory deadline; Congress must have "state[d] explicitly or in detail" that discretion. Id. at 243 n.10, 130 S.Ct. 827 (quoting Webster's New Collegiate Dictionary 1116 (1974)). While the USCIS may promulgate regulations for certain aspects of the U-visa program, see 8 U.S.C. § 1184(a)(1), that authority does not amount to "unfettered discretion ... [to] simply not adjudicate a [U-visa] petition." Pulido v. Cuccinelli , 497 F. Supp. 3d 79, 89 (D.S.C. 2020).
A comparison of discretionary and non-discretionary language in other provisions of the INA confirms this reading. For example, in Urena-Tavarez v. Ashcroft , 367 F.3d 154, 159–60 (3d Cir. 2004), the statute at issue contained phrases such as "in the Attorney General's discretion," "sole discretion," and "may," which the court found to preclude its jurisdiction. See also Spencer Enters., Inc. v. United States , 345 F.3d 683, 690 (9th Cir. 2003) (collecting discretionary provisions of the INA). By contrast, when a statute does not use explicit discretionary language, courts routinely find that section 1252(a)(2)(B)(ii) does not bar judicial review. See, e.g., Nethagani v. Mukasey , 532 F.3d 150, 154–55 (2d Cir. 2008) (holding the Attorney General's statutory authority to " ‘determine[ ]’ or ‘decide[ ]’ that the alien was convicted of a particularly serious crime" did not make his decision discretionary); Soltane v. United States Dep't of Justice , 381 F.3d 143, 147–48 (3d Cir. 2004) (holding specific eligibility requirements and the term "shall" in a statute conferred a non-discretionary duty); Spencer , 345 F.3d at 691–92 (same).
As in these latter statutes, Congress gave the USCIS a non-discretionary duty to adjudicate U-visa applications when it required the agency to "promulgate regulations" implementing the program. Pub. L. No. 109-162, § 828, 119 Stat. 2960, 3066 (2006); see also Gonzalez , 985 F.3d at 374, n.10. It follows then that the agency must perform this duty to adjudicate applications "within a reasonable time" under the APA. 5 U.S.C. § 555(b). "The absence of a specified deadline within which action must be taken does not change the nature of USCIS’[s] obligation from one that is ministerial to a matter within the agency's discretion." Saini v. USCIS , 553 F. Supp. 2d 1170, 1176 (E.D. Cal. 2008). Adjudication must occur within a reasonable time because "a contrary position would permit the USCIS to delay indefinitely, a result Congress could not have intended." Id. (internal quotation marks, citation, and alterations omitted); see also Mondragon Tinoco , 2021 WL 3603373, at *5 ("Were it otherwise, USCIS could hold U-Visa petitions in abeyance indefinitely, without providing any reasoned basis for doing so, and thwart Congress's mandate that USCIS adjudicate U-Visa petitions.").
While the Court resolves this jurisdictional question on the text of the INA, its holding also aligns with the well-settled presumption favoring judicial review of administrative action. As the Supreme Court explained in Kucana :
[w]hen a statute is "reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review." Gutierrez de Martinez v. Lamagno , 515 U.S. 417, 434, 115 S. Ct. 2227, 132 L.Ed.2d 375 (1995). We have consistently applied that interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction. See, e.g., INS v. St. Cyr , 533 U.S. 289, 298, 121 S. Ct. 2271, 150 L.Ed.2d 347 (2001) ; [Reno v. ] Catholic Social Services, Inc. , 509 U.S. [43,] 63–64, 113 S. Ct. 2485 [,125 L.Ed.2d 38 (1993)] ; McNary [v. Haitian Refugee Center, Inc.] , 498 U.S. [479,] 496, 111 S. Ct. 888 [,112 L.Ed.2d 1005 (1991)]. Because the "presumption favoring interpretations of statutes [to] allow judicial review of administrative action" is "well-settled," Catholic Social Services, Inc. , 509 U.S. at 63–64, 113 S. Ct. 2485 (quoting McNary , 498 U.S. at 496, 111 S. Ct. 888 ), the Court assumes that "Congress legislates with knowledge of" the presumption, id. , at 496, 111 S. Ct. 888. It therefore takes "clear and convincing evidence" to dislodge the presumption. Catholic Social Services, Inc. , 509 U.S. at 64, 113 S. Ct. 2485 (internal quotation marks omitted).
558 U.S. at 251–52, 130 S.Ct. 827. There is no such clear and convincing evidence to dislodge the presumption in this case.
For these reasons, the Court concludes that it has jurisdiction over the Plaintiffs’ claim that the USCIS has unreasonably delayed adjudicating their U-visa applications to determine their eligibility for the waitlist. The Plaintiffs seek relief under the APA (Count I) and the Mandamus Act (Count III) in connection with this claim. Because the APA provides a remedy for unreasonably delayed agency action, 5 U.S.C. § 706(1), the Plaintiffs cannot demonstrate a necessary element for mandamus: that they "lack[ ] an adequate alternative remedy for obtaining relief." Serrano , 655 F.3d at 1264. The Court thus dismisses Count III for lack of mandamus jurisdiction. See id. (affirming dismissal of a mandamus claim where an adequate remedy was available under the APA); Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla. , 641 F.3d 1259, 1268 (11th Cir. 2011) ("The availability of relief under the [APA] ... forecloses a grant of a writ of mandamus.").
2. Failure to State a Claim
The Defendants also seek dismissal of Count I for failure to state a claim, arguing that the delay in adjudicating the Plaintiffs’ U-visa applications is not unreasonable as a matter of law. (Defs.’ Mot. to Dismiss, at 25–33.) In short, the Court cannot determine the reasonableness of the USCIS's delay in the context of this motion to dismiss. See, e.g., Gonzalez , 985 F.3d at 375 (vacating dismissal of an unreasonable delay claim because the "Plaintiffs have pled sufficient facts to allege a plausible claim"); Patel , 400 F. Supp. 3d at 1383–84 (collecting cases that declined to dismiss unreasonable delay claims on Rule 12(b)(6) motions). "A claim of unreasonable delay is necessarily fact dependent and thus sits uncomfortably at the motion to dismiss stage and should not typically be resolved at that stage." Gonzalez , 985 F.3d at 375 ; see also Yu v. Brown , 36 F. Supp. 2d 922, 935 (D.N.M. 1999) ("What constitutes an unreasonable delay in the context of immigration applications depends to a great extent on the facts of the particular case.").
Without clear guidance from the Supreme Court, most courts follow the six-factor test articulated by the D.C. Circuit in Telecommunications Research & Action Center v. FCC , 750 F.2d 70 (D.C. Cir. 1984) (" TRAC "), to evaluate a claim of unreasonable delay. The six 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 in the enabling statute, that statutory scheme may supply 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 in order to hold that agency action is unreasonably delayed.
Id. at 80. At this early stage, when the Court's review is "limited to the four corners of the complaint," the Plaintiffs have pleaded sufficient facts to survive a motion to dismiss. Wilchombe v. TeeVee Toons, Inc. , 555 F.3d 949, 959 (4th Cir. 2009). The Complaint alleges that the Plaintiffs filed qualifying U-visa applications in 2016 (Compl. ¶ 4), the USCIS has failed to adjudicate the applications for more than four years (id. ), and the long wait harms the Plaintiffs’ health and welfare by placing them at risk of separation from each other and their child (id. ¶¶ 5, 14, 42). Therefore, the Court declines to dismiss Count I for failure to state a claim. Whether the delay in adjudicating the Plaintiffs’ visa application has been unreasonable may be revisited at summary judgment when the Court is not confined to the allegations of the pleadings.
B. Counts II and VI: Failure to Adjudicate Work Authorization Under 8 U.S.C. § 1184(p)(6)
The Plaintiffs next claim that the USCIS has failed to adjudicate their requests for work authorization before determining their eligibility for the U-visa waitlist, in violation of 8 U.S.C. § 1184(p)(6). Section 1184(p)(6) provides that "[t]he Secretary [of Homeland Security] 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. § 1184(p)(6). According to the Defendants, the Court lacks jurisdiction over this claim because section 1184(p)(6) is discretionary and creates no duty for the USCIS to adjudicate work authorization prior to placing an applicant on the waitlist. (Defs.’ Mot. to Dismiss, at 20–21.) The Plaintiffs counter that the use of "may" in section 1184(p)(6) only confers discretion over the ultimate work-authorization decision, not discretion to refuse to make any decision. (Pls.’ Br. in Opp'n to Defs.’ Mot. to Dismiss, at 9–10.) The Plaintiffs allege that the statute contains specific eligibility criteria (i.e. , "pending, bona fide") that the USCIS must implement and the Court may use to guide its review. (Id. at 13–14.)
Upon review, the Court concludes that section 1184(p)(6) creates only authority—but no obligation—for the USCIS to adjudicate pre-waitlist work authorization, thereby precluding jurisdiction over this claim. Under the APA, a court may compel "agency action" that has been "unlawfully withheld or unreasonably delayed[.]" 5 U.S.C. § 706(1). "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. " Norton v. Southern Utah Wilderness All. , 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (emphasis in original). "[N]othing in § 1184(p)(6) requires the [USCIS] to do anything. In fact, the statute shows the agency action is discretionary: ‘Secretary may grant work authorization.’ " Gonzalez , 985 F.3d at 366 (emphasis in original) (quoting 8 U.S.C. § 1184(p)(6) ). It is well-settled that "the term ‘shall’ customarily connotes a command, whereas the term ‘may’ typically indicates authorization without obligation." Air Line Pilots Ass'n, Int'l v. U.S. Airways Grp., Inc. , 609 F.3d 338, 342 (4th Cir. 2010) ; see also Yusim v. Department of Labor , 645 F. App'x 967, 969 (11th Cir. 2016) (holding the Department of Labor had no duty to act under a regulation that stated it "may participate" as a party or amicus curiae in a proceeding).
The Plaintiffs attest that "the statutory, regulatory, and sub-regulatory history of work authorization for U-status applicants ... demonstrates that [C]ongress intended implementation of § 1184(p)(6) and the [USCIS] in fact took steps to implement it." (Pls.’ Br. in Opp'n to Defs.’ Mot. to Dismiss, at 15.) However, as the Fourth Circuit explained in Gonzalez , the history of section 1184(p)(6) only confirms its discretionary nature:
When Congress created the U-Visa program in 2000 as part of the Victims of Trafficking Act, it did not require the Secretary to implement it through regulations. For years, the agency did not pass regulations implementing the U-Visa program and no U-Visas were issued. In 2006, as part of the Violence Against Women Act, Congress mandated that the agency promulgate regulations to implement the program .... In response, USCIS promulgated regulations to govern the conferral of U-Visas in 2007 and the first U-Visa was issued in 2008. But no part of the 2008 Trafficking Victims Protection Reauthorization Act—which added the permissive work-authorization provision in § 1184(p)(6) —requires the Secretary to implement that provision or adjudicate each work-authorization petition. Congress explicitly required the Secretary to implement the U-Visa program but remained silent about implementing work-authorization adjudications. This confirms that implementing the latter is not required.
985 F.3d at 367–68 (internal citations omitted). While Congress may have contemplated that the USCIS would implement section 1184(p)(6) —indeed, the Plaintiffs cite a statement from the bill's sponsors suggesting as much (Pls.’ Br. in Opp'n to Defs.’ Mot. to Dismiss, at 20)—the statutory language left that decision to the agency. Finally, the Plaintiffs ask the Court to adopt the reasoning in Rodriguez v. Nielsen , No. 16-CV-7092 (MKB), 2018 WL 4783977 (E.D.N.Y. Sept. 30, 2018), which held that section 1184(p)(6) contains specific eligibility criteria (i.e. , "pending, bona fide") for the USCIS to implement. The Rodriguez court relied on INS v. St. Cyr , 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), for the principle that, "when a statute provides specific standards of eligibility for a benefit or relief, an individual applying for that relief has a right to a ruling, even if the outcome of that ruling is discretionary." 2018 WL 4783977, at *10 (emphasis in original) (internal quotation marks and citation omitted). Although the phrase "bona fide" has no statutory definition, the court cited a regulatory definition in a different context as instructive for determining what constitutes a bona fide application. See id. at *11. This Court, however, declines to follow Rodriguez because St. Cyr and the given administrative law principle are inapplicable here. See, e.g., Mondragon Tinoco , 2021 WL 3603373, at *8 ; Uranga , 490 F. Supp. 3d at 99–101 ; Patel , 400 F. Supp. 3d at 1380–82.
First, St. Cyr addressed the distinct question of habeas corpus jurisdiction in immigration proceedings, reaffirming that Congress must provide a clear statement of intent to repeal habeas jurisdiction. 533 U.S. at 298–300, 121 S.Ct. 2271. As many courts have observed, St. Cyr "is best limited to those issues." Gonzalez , 985 F.3d at 370 ; see also Uranga , 490 F. Supp. 3d at 100–01. Second, and more importantly, even if Rodriguez is correct that an agency must implement a statute with specific eligibility standards, section 1184(p)(6) contains no such standards. The "pending, bona fide" language that the Plaintiffs seize on is not defined in statute or regulation and is susceptible to various plausible interpretations. For example, as the Plaintiffs posit, a "bona fide" application could mean any petition that is made in good faith and without fraud or deceit. (Pls.’ Br. in Opp'n to Defs.’ Mot. to Dismiss, at 13.) Or it could be interpreted more narrowly to mean any petition that likely qualifies for a U-visa. "Nothing about the ‘standard’ guides [the USCIS's] discretion" such that the agency must carry out section 1184(p)(6). Gonzalez , 985 F.3d at 371 (analogizing to similarly broad "standards" that were held unreviewable).
For these reasons, the Court concludes that it lacks jurisdiction to consider the Plaintiffs’ claim that the USCIS has unlawfully failed to adjudicate their requests for pre-waitlist work authorization. The Court dismisses Count II for APA relief because the Plaintiffs have identified no "agency action unlawfully withheld," 5 U.S.C. § 706(1), and Count VI for mandamus relief because the Plaintiffs have identified no "clear duty to act" on the part of the USCIS. Serrano , 655 F.3d at 1263.
C. Counts IV and VII: Failure to Issue Interim Work Authorization Under 8 C.F.R. § 274a.13(d)
The Plaintiffs next claim that the USCIS failed to issue them interim work authorization within 90 days of requesting the benefit, in violation of 8 C.F.R. § 274a.13(d). (Compl. ¶¶ 58–62, 73–78.) When the Plaintiffs applied for work authorization in May 2016, section 274a.13(d) provided that the "USCIS will adjudicate the application within 90 days from the date of receipt of the application" and "[f]ailure to complete the adjudication within 90 days will result in the grant of an employment authorization document for a period not to exceed 240 days." 8 C.F.R. § 274a.13(d) (2016). On January 17, 2017, the USCIS revised section 274a.13(d) to eliminate the 90-day timeline for adjudicating work-authorization requests and granting interim work authorization. The Defendants argue that the Plaintiffs have failed to state a claim for interim work authorization because revised section 274a.13(d) governs their applications. (Defs.’ Mot. to Dismiss, at 35–36.) Alternatively, they assert that, even if former section 274a.13(d) applies here, the 90-day clock does not start until the USCIS makes a merits decision on the Plaintiffs’ underlying U-visa applications. (Id. at 37–38.)
The Court refers to the version of the regulation that was in effect prior to January 17, 2017, as "former section 274a.13(d)" and the version that went into effect on January 17, 2017, as "revised section 274a.13(d)."
The first question before the Court is whether revised section 274a.13(d) applies retroactively to the Plaintiffs’ work-authorization applications. Those applications had been pending for more than 90 days when the revised regulation took effect, and the Plaintiffs thus arguably qualified for interim work authorization under former section 274a.13(d). Under Landgraf v. USI Film Products , 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the proper consideration is whether revised section 274a.13(d) has an impermissible "retroactive effect": that is, whether it "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past." 511 U.S. at 269, 114 S.Ct. 1483 (internal quotation marks and citations omitted). As the Supreme Court held, the analysis of whether a provision is impermissibly retroactive is guided by "familiar considerations of fair notice, reasonable reliance and settled expectations." Landgraf , 511 U.S. at 270, 114 S.Ct. 1483. "When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive." Id. at 273, 114 S.Ct. 1483. An individual's rights "vest" when he has "availed himself of them or [taken] action that enhanced their significance to him in particular." Fernandez-Vargas v. Gonzales , 548 U.S. 30, 44 n.10, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). Significantly, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive. Id. at 275, 114 S.Ct. 1483. The regulatory change at issue here was just such a procedural rule, governing the timeframe during which a merits-based adjudication was to be completed rather than changing the requirements at issue. In Gonzalez , the Fourth Circuit determined that revised section 274a.13(d) may apply retroactively because it affects only administrative procedure and not substantive rights:
Plaintiffs here gave up no rights to their detriment in reliance on a 90-day adjudication. Whether they ultimately obtain the relief desired is not impacted by the repeal of [former section 274a.13(d) ]; what is impacted is how long they will wait for that determination. Nor did Plaintiffs apply for work authorizations because of the 90-day timeline.
985 F.3d at 374. The Court agrees. The Plaintiffs had fair notice of changes to the regulation before filing their work-authorization applications and could not have reasonably relied on former section 274a.13(d) because the USCIS has never issued interim work authorization to individuals in their circumstance. (Defs.’ Mot. to Dismiss, at 36.)
D. Count V: Failure to Follow Notice-and-Comment Procedures in Repealing 8 C.F.R. § 274a.13(d)
Finally, the Plaintiffs claim that the USCIS repealed former 8 C.F.R. § 274a.13(d) without following required notice-and-comment procedures, in violation of the APA. The Defendants seek dismissal of this claim, attesting that the agency did in fact observe the proper procedures. (Defs.’ Mot. to Dismiss, at 24.) Because the Plaintiffs do not respond to this argument in opposition to the motion to dismiss, the claim is deemed abandoned. (See generally Pls.’ Br. in Opp'n to Defs.’ Mot. to Dismiss.) See Barnes v. AstraZeneca Pharmaceuticals LP , 253 F. Supp. 3d 1168, 1171 (N.D. Ga. 2017) (citing Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta , 219 F.3d 1301, 1326 (11th Cir. 2000) ). Even so, the Court finds that the Plaintiffs have failed to state a claim: the USCIS published its proposed changes to former section 274a.13(d) in the Federal Register in December 2015, 80 Fed. Reg. at 81,928 –29, permitted public comment on the proposal for two months, id. at 81,900, and finalized the new regulation in November 2016. 81 Fed. Reg. at 82,398. The Complaint contains no factual allegations to the contrary. Therefore, the Court dismisses Count V.
IV. Conclusion
For the reasons set forth above, the Defendants’ Motion to Dismiss [Doc. 7] is GRANTED in part and DENIED in part. Counts II, III, VI, and VII are dismissed for lack of subject matter jurisdiction, and Counts IV and V are dismissed for failure to state a claim. Therefore, the only remaining claim is Count I.
SO ORDERED, this 1st day of September, 2021.