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M.J.L. v. McAleenan

United States District Court, W.D. Texas, Austin Division

November 13, 2019

M.J.L. AND R.R.R., Plaintiffs
v.
KEVIN MCALEENAN, ACTING SECRETARY OF U.S. HOMELAND SECURITY, WILLIAM BARR, ATTORNEY GENERAL OF THE UNITED STATES AND HEAD OF THE UNITED STATES DEPARTMENT OF JUSTICE, KENNETH CUCCINELLI II, [1]DIRECTOR OF UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, LAURA ZUCHOWSKI, [2]DIRECTOR OF UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES VERMONT SERVICE CENTER, LOREN MILLER, [3] DIRECTOR OF UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, AND DONALD NEUFELD, DIRECTOR OF UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES SERVICE CENTER OPERATIONS, Defendants

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          SUSAN HIGHTOWER, UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE LEE YEAKEL, UNITED STATES DISTRICT JUDGE

         Before this Court are Defendants' Motion and Memorandum in Support of Defendants' Motion to Dismiss, filed July 31, 2019 (Dkt. No. 20); Plaintiffs' Opposition to Defendants' Motion to Dismiss, [4] filed August 15, 2019 (Dkt. No. 23); Defendants' Reply in Support of Motion to Dismiss (Dkt. No. 24); and Plaintiffs' Surreply, filed August 28, 2019 (Dkt. No. 29). On August 29, 2019, the District Court referred the above motion to the undersigned Magistrate Judge for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.

         I. BACKGROUND

         A. The U Visa Classification

         In October 2000, Congress amended the Immigration and Nationality Act (“INA”), 8 U.S.C. Ch. 12, creating a new non-immigrant visa classification known as the “U Visa” for any alien who is the victim of a qualifying crime in the United States and who assists law enforcement in the investigation or prosecution of that crime. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (2000) (codified at 8 U.S.C. § 1101(a)(15)(U)). The purpose of the U Visa program “is to strengthen the ability of law enforcement agencies to investigate and prosecute such crimes as domestic violence, sexual assault, and trafficking in persons, while offering protection to alien crime victims in keeping with the humanitarian interests of the United States.” New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53014-01 (Sept. 17, 2007).

         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.[5] 8 U.S.C. § 1101(a)(15)(U); 8 C.F.R. § 214.14(c)(1). To qualify for a U Visa, an applicant must submit an I-918 Petition for U Nonimmigrant Status (“U Visa Petition”) and 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).

         The USCIS has the sole discretion whether to grant or deny a U Visa. 8 U.S.C. § 1101(a)(15)(U). 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). Additionally, after three years of continued physical presence on a U Visa, a nonimmigrant may apply to adjust her status to a lawful permanent resident. 8 U.S.C. § 1255(m)(1).

         The number of aliens who may be issued U Visas is capped at 10, 000 per fiscal year. 8 U.S.C. § 1184(p)(2). In 2007, the USCIS created a regulatory waiting list program to respond to the backlog[6] of U Visa applications. 8 C.F.R. § 214.14(d)(2) (“Waiting List”). Thus, once the fiscal year limit is reached, “[a]ll eligible petitioners who, due solely to the cap, are not granted [U Visa] nonimmigrant status must be placed on a waiting list and receive written notice of such placement.” Id. While on the Waiting List, the USCIS “will grant deferred action or parole to [U Visa] petitioners” on removal, and “in its discretion, may authorize employment for such petitioners and qualifying family members.” Id. The USCIS does not grant any benefits to petitioners whose cases have not yet been reviewed for placement on the Waiting List.

         In 2008, Congress amended the INA again and added the following language: “The Secretary [of DHS] 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). The USCIS, however, “never implemented this amendment and do[es] 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.” Patel v. Cissna, 2019 WL 3945659, at *3 (M.D. Ga. Aug. 20, 2019).

         B. Plaintiffs' Lawsuit

         M.J.L and R.R.R.[7] (“Plaintiffs”) are natives and citizens of Mexico. In 2013, Plaintiffs' five-year-old daughter was sexually abused by her kindergarten teacher while the family was living in Austin, Texas. Plaintiffs cooperated with the Travis County District Attorney's Office in the investigation, conviction, and, in 2015, sentencing of the perpetrator. Thus, Plaintiffs contend that they have complied with all statutory and regulatory requirements for U Visas due to their victimization and subsequent cooperation with law enforcement authorities.

         In January 2017, Plaintiffs submitted their Petitions for U Visas and Applications for Employment Authorization (“AEA”) pursuant to 8 U.S.C. § 1184(p)(6). See Exh. A to Dkt. No. 1.[8]To date, USCIS has not adjudicated Plaintiffs' U Visa Applications, added Plaintiffs to the Waiting List, or granted Plaintiffs' AEAs. Plaintiffs complain that they have no way to lawfully earn a living and are subject to removal by defendants while indefinitely waiting for the adjudication of their U Visas and petitions for work authorization. Plaintiffs further aver that: “Defendants are circumventing Congressional intent and mandates by affirmatively and unapologetically avoiding their duties to preliminarily adjudicate U Visa applications for waitlist placements in a reasonable and timely manner, and refusing to grant EADs [Employment Authorization Decisions] under 8 USC 1184(p)(6).” Dkt. No. 23 at p. 3.

         Accordingly, on May 3, 2019, Plaintiffs filed this lawsuit against the Defendants, seeking an order to compel them to adjudicate Plaintiffs' U Visa Applications and add Plaintiffs to the Waiting List. Specifically, Plaintiffs' Petition alleges that: (1) Defendants failed to comply with their statutory obligation to process their U Visa applications and to place them on the U Visa Waiting List within a reasonable time, in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 555(b); (2) Defendants violated their duty to add Plaintiffs to the Waiting List and should be ordered under the Mandamus Act, 28 U.S.C. § 1361, to perform that duty; (3) Defendants failed to issue work authorizations to Plaintiffs within a reasonable time, in violation of § 555(b) of the APA and 8 U.S.C. § 1184(p)(6); and (4) Defendants' refusal to comply with their non-discretionary duty to provide Plaintiffs with a ruling on their work authorizations constitutes agency inaction or unreasonable delay, in violation of 5 U.S.C. § 706(1) of the APA.

         On July 31, 2019, Defendants filed the instant Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that this Court lacks jurisdiction to review any of Plaintiffs' claims because “the pace of adjudication is wholly within the agency's statutory discretion and outside of this Court's jurisdiction to review.” Dkt. No. 20 at p. 2. Alternatively, Defendants argue that Plaintiffs have failed to state a claim for relief and their claims therefore must be dismissed under Federal Rule of Civil Procedure 12(b)(6).

         II. LEGAL STANDARDS

         A. Rule 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject matter jurisdiction as a defense to suit. Federal district courts are courts of limited jurisdiction and may exercise only jurisdiction expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home Builders Assn. of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citation omitted). In ruling on a Rule 12(b)(1) motion, the court may consider any one of the following: (1) the complaint alone; (2) the complaint plus undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the court's resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming, 281 F.3d at 161.

         B. ...


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