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holding that an "examination [of § 1184(p)(6)] readily" establishes that the Government was not under a "'specific, unequivocal command' to make determination" regarding work authorization, and thus, the Court lacked jurisdiction over the plaintiff's claim
Summary of this case from Ramires v. WolfOpinion
CASE NO. 4:18-CV-230 (CDL)
2019-08-20
Chandubhai Mohanlal PATEL, Plaintiff, v. L. Frank CISSNA, Director, United States Citizenship and Immigration Services, and United States Citizenship and Immigration Services, Defendants.
Jerry Britt Thames, J Britt Thames Attorney at Law, Macon, GA 31210, Bradley B. Banias, Charleston, SC, for Plaintiff. Bowen Reichert Shoemaker, US Attorney's Office, Macon, GA, for Defendants.
Jerry Britt Thames, J Britt Thames Attorney at Law, Macon, GA 31210, Bradley B. Banias, Charleston, SC, for Plaintiff.
Bowen Reichert Shoemaker, US Attorney's Office, Macon, GA, for Defendants.
ORDER
CLAY D. LAND, CHIEF U.S. DISTRICT COURT JUDGE
Congress has authorized the issuance of a special visa, known as a "U Visa," for a person who is not a citizen of the United States, who is the victim of certain designated crimes committed in the United States, and who qualifies based upon other specific criteria. Plaintiff, a citizen of India, applied for a U Visa over four years ago. The United States Citizenship and Immigration Services ("USCIS") has yet to make a decision on Plaintiff's eligibility for the U Visa or even on his eligibility to be placed on the U Visa "waiting list." The importance of being placed on the waiting list derives from the connection between his status on the waiting list and his ability to obtain employment in the United States. Once a petitioner is placed on the U Visa waiting list, he may be granted authorization to work in the United States. In addition to permitting work authorizations for persons on the waiting list, Congress has authorized USCIS to preliminarily determine whether bona fide U Visa applicants should be provided with work authorizations prior to being placed on the waiting list. USCIS interprets this Congressional authority to be permissive and not mandatory. And its current policy is not to implement a program for determining the eligibility of pre-waiting list U Visa applicants for work authorizations. All applicants must wait until they are officially placed on the U Visa waiting list to receive work authorization. Consequently, the USCIS refuses to evaluate whether Plaintiff qualifies for this work authorization because he has not yet made it onto the U Visa waiting list. Thus, Plaintiff occupies the unenviable position of waiting for over four years to be placed on the waiting list with no action on his application; and while he waits, he cannot work. Plaintiff simply wants to work while he awaits a decision on his U Visa. He seeks a work authorization prior to being placed on the waiting list. And he argues that Congress has authorized USCIS to give him one. He claims the USCIS is required by statute to at least evaluate whether U Visa applicants qualify for work authorization before they are placed on the U Visa waiting list. According to Plaintiff, this statute gives the USCIS discretion to grant eligible U Visa applicants with pending, bona fide U Visa applications work authorization before the USCIS adjudicates whether the applicant is eligible for placement on the U Visa waiting list. But, USCIS refuses to implement this pre-waiting-list-work-authorization statute and continues to evaluate whether an applicant would qualify for work authorization only at the time it decides whether to place him on the U Visa waiting list. Understandably frustrated by his legal limbo and unable to obtain work authorization in the four-plus years that the USCIS has taken to determine his eligibility for placement on the U Visa waiting list, Plaintiff follows what he has perhaps learned is part of the American way—file a lawsuit.
Plaintiff sues the USCIS and its director pursuant to the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. ("APA"). He asks this Court to order Defendants to adjudicate his eligibility for a temporary work authorization before they decide his eligibility for placement on the U Visa waiting list. He also asks this Court to order Defendants to process his eligibility for the U Visa waiting list promptly, which would allow him to obtain work authorization if granted. During this U Visa process, Plaintiff also sought records from Defendants pursuant to the Freedom of Information Act ("FOIA"). He alleges that they refused to provide those records, and he therefore asserts a FOIA claim under 5 U.S.C. § 552.
Plaintiff's requests don't seem extreme. He is not demanding that this Court order that he be provided with a visa or a work authorization. He simply wants this Court to order Defendants to evaluate whether he qualifies for the relief that Congress has authorized. But reasonableness, common sense, and compassionate public policy are not the guideposts for this Court's subject matter jurisdiction. The Court must closely examine what Congress actually required Defendants to do before determining whether it has the judicial power to order anything. Plaintiff does not dispute that Congress left to Defendants' discretion the decision whether to grant any eligible applicants work authorization at the pre-waiting list stage. But he argues that Defendants did not have the discretion to refuse to adjudicate whether he qualified for pre-waiting list work authorization. Defendants respond that Congress left it completely within their discretion to implement the pre-waiting list work authorization program, which includes their right not to process pre-waiting list work authorization claims. They argue that this Court cannot order Defendants to do something that Congress has not mandated be done. Accordingly, they contend that they are not subject to this Court's jurisdiction for Plaintiff's claim that this Court should order them to decide whether Plaintiff is eligible for a pre-waiting list work authorization.
Defendants do acknowledge that they are required to act upon Plaintiff's request to be placed on the U Visa waiting list. But they insist that their timetable for making a decision on Plaintiff's eligibility for the waiting list is reasonable. Plaintiff alleges that four years is long enough, and that Defendants' delay has been unreasonable.
As explained in the remainder of this Order, Congress has arguably established eligibility criteria, albeit vague ones, for the issuance of pre-waiting list work authorization (i.e., whether a bona fide application is pending); but it has not clearly required Defendants to implement the pre-waiting list work authorization program and adjudicate requests for this discretionary relief. Thus, Plaintiff is not entitled to an order from this Court directing Defendants to adjudicate his eligibility for a pre-waiting list work authorization. The Court has no subject matter jurisdiction to enter such an order. Defendants do have a duty to evaluate in a reasonable manner Plaintiff's request to be placed on the U Visa waiting list. And Plaintiff has pled sufficient facts to avoid dismissal of this claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has also alleged sufficient facts to support his FOIA claim. Consistent with the above and as explained more fully below, Defendants' motion to dismiss (ECF No. 14) is granted as to Plaintiff's claim that he is entitled to have his eligibility for a pre-waiting list work authorization adjudicated under 8 U.S.C. § 1184(p)(6), denied as to Plaintiff's claim that Defendants have unreasonably delayed determining whether Plaintiff should be placed on the U Visa waiting list, and denied as to Plaintiff's FOIA claim. Plaintiff's motion for partial summary judgment (ECF No. 16) on his claim that the Court dismisses today is terminated as moot.
STANDARDS
Defendants' motion to dismiss Plaintiff's pre-waiting list work authorization claim for lack of subject matter jurisdiction and their motion to dismiss Plaintiff's waiting list and FOIA claims for failure to state a claim are evaluated under similar standards. Because Defendants assert a facial challenge to the Court's subject matter jurisdiction, the Court accepts the factual allegations in Plaintiff's complaint to be true and determines whether those allegations authorize the Court to decide the claim. See Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990) (per curiam). Similarly, in evaluating Defendants' motion to dismiss for failure to state a claim, the Court accepts Plaintiff's factual allegations as true. Instead of determining whether the Court has jurisdiction to decide the claims, the Court must evaluate whether those facts "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); Fed. R. Civ. P. 12(b)(6).
BACKGROUND
I. Statutory and Regulatory Background
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).
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).
The USCIS can only issue 10,000 U Visas per fiscal year. 8 U.S.C. § 1184(p)(2). In 2007, the USCIS began anticipating that it would receive meritorious U Visa petitions exceeding this statutory cap. To respond to this potential backlog, the USCIS created a regulatory waiting list program. 8 C.F.R. § 214.14(d)(2). Under this program, once the statutory cap has been reached for the fiscal year, "[a]ll eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive notice of such placement." Id. The USCIS conducts a substantive review of the petition to determine whether it is meritorious before placing the petitioner on the U Visa waiting list. Once on the waiting list, USCIS grants the applicant and his family members deferred action or parole and the "USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members." Id. When a foreign national has a work authorization, he can acquire a social security number and Georgia driver's license. Compl. ¶¶ 35-36, ECF No. 1.
The USCIS does not grant any benefits to petitioners whose cases have not yet been reviewed for placement on the waiting list. Thus, these petitioners are not issued a work authorization. A year after the USCIS created the U Visa waiting list, Congress added language to 8 U.S.C. § 1184(p)(6) stating that the "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). Defendants never implemented this amendment and do not grant work authorization to petitioners prior to their placement on the U Visa waiting list. Nor do they even evaluate whether someone has a pending, bona fide application.
II. Plaintiff's U Visa Petition
Plaintiff was the victim of armed robbery in the United States and suffered physical and mental abuse because of the crime. Compl. ¶¶ 38, 40. A certifying agency issued Plaintiff a U Visa certification. Id. ¶¶ 42-45. On July 31, 2015, Plaintiff submitted a U Visa petition to USCIS on behalf of himself, and later on behalf of his spouse as a derivative. Id. ¶¶ 46-47. In his U Visa petition, Plaintiff checked "yes" to the statement "I want an Employment Authorization Document." Id. ¶ 49. USCIS has not taken any adjudicatory action on Plaintiff's or his spouse's petitions, which have been pending for more than four years. Id. ¶ 53.
On October 24, 2018, Plaintiff filed a FOIA request for his alien registration file with USCIS and for information regarding USCIS's U Visa processing. Id. ¶ 60. Defendants have not produced the requested information. Id. ¶ 160.
DISCUSSION
Plaintiff asserts three claims in this action: (1) a mandamus claim under the Mandamus Act and the APA based on Defendants' failure to take any action on his request for work authorization pursuant to § 1184(p)(6) (" § 1184(p)(6) claim"); (2) an APA claim arising from Defendants' delay in deciding whether to place Plaintiff on the U Visa waiting list ("APA delay claim"); and (3) a FOIA claim based on Defendants' failure to respond to his document request ("FOIA claim").
Plaintiff seeks mandamus type relief for the enforcement of § 1184(p)(6) under both the Mandamus Act and the APA. These are arguably two separate claims. For the sake of simplicity and because it makes no difference to the Court's analysis, the Court refers to these claims collectively as Plaintiff's § 1184(p)(6) claim.
I. Plaintiff's § 1184(p)(6) Claim
Relying upon the Mandamus Act and the APA, Plaintiff asks the Court to compel Defendants to adjudicate his work authorization request pursuant to § 1184(p)(6). Both the Mandamus Act and the APA authorize district courts to compel agency action unlawfully withheld. See 28 U.S.C. § 1361 (allowing courts under the Mandamus Act "to compel an officer or employee of the United States or an agency thereof to perform a duty owed to the plaintiff"); 5 U.S.C. § 706(1) (noting that under the APA courts shall "compel agency action unlawfully withheld or unreasonably delayed"). But, before the Court can grant such extraordinary relief, Plaintiff must establish that Defendants had a clear, non-discretionary duty to adjudicate his work authorization request pursuant to § 1184(p)(6). See Carter v. Seamans , 411 F.2d 767, 773 (5th Cir. 1969) (noting mandamus relief is only appropriate when there is "a clear duty on the part of the defendant to do the act in question") ; Fanin v. U.S. Dep't of Veterans Affairs , 572 F.3d 868, 877-78 (11th Cir. 2009) (noting an APA claim "may proceed only ‘where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take ’ " (quoting Norton v. S. Utah Wilderness All. ("SUWA "), 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) ). It is well established that judicial compulsion of agency action is limited to the enforcement of "specific, unequivocal command[s]" that the agency had "no discretion whatever" to deny. SUWA , 542 U.S. at 63, 124 S.Ct. 2373.
In Bonner v. City of Prichard , 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
In SUWA , the Supreme Court noted that the APA's requirement that action be legally required derives from the traditional practice of compelling agency action using writs of mandamus. SUWA , 542 U.S. at 63, 124 S.Ct. 2373. Because the APA's requirement derives from mandamus tradition, the same standard should apply to both mandamus and APA claims.
The obvious analytical starting point is ascertaining the "specific, unequivocal, non-discretionary command" that the Court is being asked to enforce. That command should be found in the text of the applicable statute, here § 1184(p)(6). It states clearly and unambiguously that "[t]he Secretary [of Homeland Security] may grant work authorization to any alien who has a pending, bona fide [U visa application]." 8 U.S.C. § 1184(p)(6). That's it. The Secretary "may" grant work authorizations to those who have "pending, bona fide" applications. 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. And there is no limitation placed on his discretion not to grant a work authorization. Moreover, nothing in the plain language of the statute requires him to evaluate whether a petitioner's application is bona fide. Congress may have contemplated that the Secretary would implement a process for determining whether an applicant should be provided a work authorization prior to being placed on the U Visa waiting list, 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. Plaintiff recognizes that the statute says the Secretary "may" grant work authorization and concedes that, pursuant to that language, § 1184(p)(6) gives the agency complete discretion to grant or deny a work authorization request. Plaintiff argues, however, that the agency has a non-discretionary duty to implement § 1184(p)(6) by adjudicating eligible requests for work authorization, even if it ultimately decides to deny the requests. But where does that conclusion come from? It must be based upon something more than "it just makes sense." Before the Court can order an agency of the Executive Branch to do something, it must be convinced that the agency has a clear, non-discretionary duty to do it. So, the precise issue is whether Congress imposed a clear, non-discretionary duty upon Defendants to adjudicate § 1184(p)(6) requests.
As previously noted, the language of the statute does not support Plaintiff's argument. There is no statutory or regulatory language "specifically" and "unequivocally" requiring Defendants to implement § 1184(p)(6) and adjudicate work authorization requests pursuant to that provision. The text of the statute simply states that the Secretary "may" provide work authorization, not that Defendants must adjudicate every petition to determine whether the petitioner would be eligible for work authorization. See Yusim v. Dep't of Labor , 645 F. App'x 967, 969 (11th Cir. 2016) (per curiam) (emphasis added) (dismissing an APA claim because agency regulations stated the Department of Labor "may participate as a party" at any stage of proceedings and, therefore, did not require the Department of Labor to intervene on the plaintiff's behalf (citing 29 C.F.R. § 1978.108(a)(1) ); cf. Choudhry v. Chertoff , No. 1:07-CV-426-CAP, 2007 WL 9706374, at *4 (N.D. Ga. Mar. 12, 2007) (emphasis added) (noting the government had a non-discretionary duty to adjudicate an alien's adjustment of status application based on language in a regulation stating an applicant "shall be notified of the decision of the director, and, if the application is denied, the reasons for the denial" (quoting 8 C.F.R. § 245.2(a)(5) ).
Plaintiff argues that, despite the absence of language requiring Defendants to adjudicate these work authorization requests, the Court can infer that "passing a law with specific eligibility requirements alone [gives the appropriate agency a clear, non-discretionary duty to implement that law]." Mem. in Opp'n to Def.'s Mot. to Dismiss 3, ECF No. 15. At least one district judge has adopted this reasoning in the § 1184(p)(6) context. The Court finds the rationale of that opinion unpersuasive and the precedent upon which it relies distinguishable on the facts and the law.
In Rodriguez v. Nielsen , the district court found that § 1184(p)(6) contains specific eligibility requirements. No. 16-CV-7092 (MKB), 2018 WL 4783977, *13 (E.D.N.Y. Sept. 30, 2018). Citing to INS v. St. Cyr , 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the court pronounced that whenever Congress authorizes an Executive Branch agency to take some action and places specific eligibility requirements on the authorization, then the agency must adjudicate whether an applicant qualifies under the eligibility requirements. Id. at *10-*11. The court then reasons that because § 1184(p)(6) states that Defendants may grant work authorization to pre-waiting list applicants who have filed bona fide applications, then Defendants must evaluate whether those applications are bona fide. Id. at *11, *13.
To follow this rationale, the Court must make the dubious conclusion that Congress clearly intended for Defendants to adjudicate eligibility even though Congress did not specifically state what the single "eligibility" requirement, "bona fide," meant. It is not defined in the statute. It could mean that a superficial review of the application reveals that it is generally in order—that it is signed and does not appear fraudulent. Or it could mean that, if everything in it is true, then the person likely qualifies for a U Visa, so it is bona fide. Or maybe it just means there is no obvious reason not to let the applicant work while waiting to get on the waiting list. The point is, we don't know what Congress meant by the phrase "bona fide" because they did not specify the eligibility requirement. Even if there is some general principle that when Congress specifically enumerates eligibility requirements, it presumptively intended for the agency to develop a process for determining whether those requirements have been met, § 1184(p)(6) is not the poster child for the application of this principle. Congress's loose "eligibility" requirement here, however, is consistent with an intent to vest the Secretary with maximum discretion.
More importantly, the precedential foundation for this principle is distinguishable from the circumstances in the present case. Rodriguez and Plaintiff rely upon INS v. St. Cyr , 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). They both pluck the following quotation from that opinion: "[e]ligibility that was ‘governed by specific statutory standards’ provided ‘a right to a ruling on an applicant's eligibility,’ even though the actual granting of relief was ‘not a matter of right under any circumstances, but rather is in all cases a matter of grace.’ " St. Cyr , 533 U.S. at 307-08, 121 S.Ct. 2271 (quoting Jay v. Boyd , 351 U.S. 345, 353-54, 76 S.Ct. 919, 100 L.Ed. 1242 (1956) ). But they ignore the context. The issue in St. Cyr was whether Congress by enacting the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), which vested substantial discretion in the Attorney General to decide whether aliens under certain circumstances could avoid deportation, eliminated judicial review of those decisions by the Attorney General. The Court, after providing a detailed and historical analysis of the importance of the writ of habeas corpus and the limitations on its suspension, concluded that Congress did not eliminate habeas corpus relief for aliens. Id. at 298-314, 121 S.Ct. 2271.
The Supreme Court prefaced its holding with arguable dicta that included the following. Noting that the judicial branch had traditionally reviewed Executive Branch legal determinations in the context of discretionary relief through habeas corpus, the Court pointed out the "distinction between eligibility for discretionary relief, on the one hand, and the favorable exercise of discretion, on the other hand." Id. at 307, 121 S.Ct. 2271. Quoting a law review article, the Court acknowledged the "strong tradition in habeas corpus law ... that subjects the legally erroneous failure to exercise discretion, unlike a substantively unwise exercise of discretion, to inquiry on the writ." Id. (alteration in original) (quoting Neuman, Jurisdiction and the Rule of Law after the 1996 Immigration Act, 113 Harv. L. Rev. 1963, 1991 (2000) ). And, in this context, with all of its constitutional implications related to the Great Writ, the Court stated the language relied upon by Plaintiff here: "Eligibility [meaning eligibility for discretionary relief] that was ‘governed by specific statutory standards’ provided ‘a right to a ruling on an applicant's eligibility,’ even though the actual granting of relief was ‘not a matter of right under any circumstances, but rather is in all cases a matter of grace.’ " Id. at 307-08, 121 S.Ct. 2271 (quoting Jay , 351 U.S. at 353-54, 76 S.Ct. 919 ). Thus, as the Court explained, "even though the actual suspension of deportation authorized by [prior law] was a matter of grace, ... a deportable alien had a right to challenge the Executive's failure to exercise the discretion authorized by law." Id. at 308, 121 S.Ct. 2271. The Court then found that "[t]he exercise of the District Court's habeas corpus jurisdiction to answer a pure question of law in this case is entirely consistent with the exercise of jurisdiction in [prior precedent]." Id. Therefore, under the pre-AEDPA and pre-IIRIRA law, an alien could challenge certain decisions by the Board of Immigration Appeals through a habeas corpus proceeding. Id. The Court went on to decide that the plaintiff in St. Cyr could likewise challenge the Attorney General's decision that, as a matter of statutory interpretation, he was not eligible for discretionary relief. Neither AEDPA nor IIRIRA barred such habeas petitions.
A fair reading of the Supreme Court's opinion in St. Cyr readily reveals that the Court never intended for its citation to traditional habeas corpus principles, some of which were likely dicta for its decision, to be interpreted as supporting the conclusion advanced by Plaintiff here. In fact, the case St. Cyr relied on for the statement that Plaintiff has plucked from the opinion to support his argument, Jay v. Boyd , 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242 (1956), was not even based on the principle that statutory standards of eligibility, alone, create a duty to adjudicate eligibility. Indeed, in that case, the agency's duty to adjudicate applications was explicitly mandated in regulations, not based solely on a presumption. See Jay , 351 U.S. at 351-52, 76 S.Ct. 919 (noting regulations required a "written decision" on an application with "a discussion of the evidence relating to the alien's eligibility for such relief and the reasons for granting or denying such application"). The Court rejects Plaintiff's broad assertion that every statute providing eligibility requirements for a discretionary benefit, no matter how vague and undefined, mandates agency adjudication.
Whether this Court has jurisdiction to decide Plaintiff's § 1184(p)(6) claim is a matter of simple statutory interpretation. That determination can, and must, be made by first examining the statutory text. Because that examination readily yields the answer, the inquiry must end there. This Court has no authority to read into that language rights and duties that do not appear. See Yarbrough v. Decatur Housing Auth. , 931 F.3d 1322, 1326–27, 2019 WL 3521728, at *4 (11th Cir. 2019) (en banc). Plaintiff argues that when Congress stated in the statutory language that the Secretary "may grant work authorization to any alien who has a pending, bona fide [application]," Congress also meant that the Secretary "shall determine for each alien who has filed an application for a U Visa whether the application is bona fide, and if it is, whether the applicant should receive a temporary work authorization while a determination is being made as to whether the alien should be placed on the U Visa waiting list." Notwithstanding the absence of any such mandatory language in the statute, Plaintiff maintains that the Secretary was under a "specific, unequivocal command" to make that determination. SUWA , 542 U.S. at 63, 124 S.Ct. 2373. He was not. While policy-making by judicial fiat may be seductive, it is constitutionally infirm. This Court refuses to succumb to the temptation.
No failing argument can end without the predictable parade of horribles that will ensue if the argument is rejected. And Plaintiff's counsel does not disappoint. Plaintiff warns that if the Court rejects his reasoning, Defendants will be given free license not to implement any of the benefits Congress intended under the Immigration and Nationality Act. This argument is unpersuasive. First, it has not been established, and it would be inappropriate for this Court to opine in advisory fashion, that all provisions in the INA fail to include language that is clear, unambiguous, and mandatory. Second, it ignores the fundamental principle that Congress, within certain constitutional limits, has the authority and responsibility to determine our Nation's immigration policy. Nothing prevents Congress from stating its intention by enacting statutory language that is clear and unequivocal. If Congress wishes to impose a non-discretionary, mandatory duty upon an agency, it generally has the authority, and knows how, to do so. This Court, however, has no authority to rewrite a statute that is clear and unambiguous and then order an agency of the Executive Branch to comply with this Court's handiwork.
In sum, Defendants do not have a specific, unequivocal duty to adjudicate work authorization requests for persons who are waiting to be placed on the waiting list pursuant to § 1184(p)(6). Therefore, the Court does not have jurisdiction under either the Mandamus Act or the APA to adjudicate his claims related to § 1184(p)(6). See Cash v. Barnhart , 327 F.3d 1252, 1257-58 (11th Cir. 2003) (finding a court lacked subject matter jurisdiction over a mandamus claim because there was no clear duty to act); Jallali v. Sec'y, U.S. Dep't of Educ. , 437 F. App'x 862, 865 (11th Cir. 2011) (per curiam) (dismissing APA claim for lack of subject matter jurisdiction when agency action was not "required").
II. Plaintiff's Claim Related to the U Visa Waiting List
The Court finds that Plaintiff has sufficiently stated a claim under the APA for Defendants' delay in deciding whether to place Plaintiff on the U Visa waiting list. There is no dispute that Defendants are required by law to decide whether to place Plaintiff on the waiting list and have not yet done so. Nevertheless, Defendants argue that the delay here was reasonable as a matter of law.
Some courts have found a six-factor test developed by the D.C. Circuit in Telecommunications Research and Action Center v. Federal Communications Commission , 750 F.2d 70 (D.C. Cir. 1984) to be helpful in analyzing unreasonable delay claims. 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 in order to hold that agency action is "unreasonably delayed." ’ " Id. at 80 (quoting Public Citizen Health Research Grp. v. Comm'r, Food & Drug Admin. , 740 F.2d 21, 34 (D.C. Cir. 1984) ).
"What constitutes an unreasonable delay in the immigration context ‘depends to a great extent on the facts of the particular case.’ " Haus v. Nielsen , No. 17 C 4972, 2018 WL 1035870, at *3 (N.D. Ill. Feb. 23, 2018) (quoting Yu v. Brown , 36 F. Supp. 2d 922, 935 (D.N.M. 1999) ); see also Gelfer v. Chertoff , No. C06-06724 WHA, 2007 WL 902382, at *2 (N.D. Cal. Mar. 22, 2007) (finding it "premature" at the motion to dismiss stage "to consider the exact sources of the delay to determine whether the delay was actually unreasonable under the circumstances").
Based on the facts alleged in Plaintiff's complaint, the Court cannot find as a matter of law that Defendants' four-year delay in deciding whether to place Plaintiff on the U Visa waiting list was reasonable. Other courts have similarly resisted drawing arbitrary lines as a matter of law for unreasonable delay claims. See Haus , 2018 WL 1035870, at *4 ("[T]he Court is not prepared to hold on a motion to dismiss for failure to state a claim that the three-year delay in reviewing [plaintiff's] U visa petitions for placement on the waiting list is reasonable as a matter of law."); Solis v. Cissna , No. CV 9:18-00083-MBS, 2018 WL 3819099, at *4-*5 (D.S.C. Aug. 10, 2018) (finding U Visa applicant stated an unreasonable delay claim for 37-month delay). Defendant, relying upon the D.C. Circuit's six-part test, argues that Plaintiff cannot satisfy all six factors of that test, and thus Plaintiff's claim fails as a matter of law. Even if Plaintiff has not sufficiently alleged satisfaction of the fourth factor—the competing priorities factor—the Court is unpersuaded that this factor (or the satisfaction of all six factors) is necessarily dispositive. Other courts seem to agree. See Muwekma Tribe v. Babbitt , 133 F. Supp. 2d 30, 40 (D.D.C. 2000) ("[E]xtensive or repeated delays are unacceptable notwithstanding competing interests."). The Court also refuses to accept Defendants' implicit invitation to rely upon evidence outside the pleadings at this motion to dismiss stage. For all of these reasons, the Court denies Defendants' motion to dismiss Plaintiff's claim related to the U Visa waiting list.
III. FOIA Claim
Defendants seek dismissal of Plaintiff's FOIA claim because he does not allege what documents he considers withheld or any facts about how they have been withheld. After reviewing the complaint and construing all reasonable inferences in Plaintiff's favor, the Court finds Plaintiff alleges enough facts to avoid dismissal at this stage. Plaintiff alleged that he filed a FOIA request on October 24, 2018 for the entirety of his alien registration file with USCIS and information on USCIS's U Visa processing, Compl. ¶ 60, and that USCIS withheld those documents. Id. ¶ 160. These allegations placed Defendants on notice of the nature of his claim. The Court denies Defendants' motion to dismiss his FOIA claim.
CONCLUSION
The Court grants Defendants' motion to dismiss Plaintiff's § 1184(p)(6) mandamus claims. But, the Court denies Defendants' motion to dismiss Plaintiff's APA unreasonable delay claim related to the U Visa waiting list and denies Defendants' motion to dismiss Plaintiff's FOIA claim.
Plaintiff's partial motion for summary judgment (ECF No. 16) seeks summary judgment only on his claims related to § 1184(p)(6). Because the Court dismisses those claims, the Court terminates Plaintiff's motion as moot.
IT IS SO ORDERED, this 20th day of August, 2019.