Ruder Calderon-Ramirez v. Leon Rodriguez, et al

Filing

Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; David F. Hamilton, Circuit Judge and Sara Darrow, District Court Judge. [6888295-1] [6888295] [16-4220]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 16-4220
RUDER M. CALDERON-RAMIREZ,
Plaintiff-Appellant,
v.
JAMES W. MCCAMENT, Acting
Director, United States Citizenship
and Immigration Services, and
ELAINE C. DUKE, Acting Secretary of
Homeland Security,
Defendants-Appellees.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 8089 — Milton I. Shadur, Judge.

ARGUED OCTOBER 23, 2017 — DECIDED DECEMBER 5, 2017

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Before BAUER and HAMILTON, Circuit Judges, and DARROW,*
District Judge.
BAUER, Circuit Judge. Ruder Calderon-Ramirez, a native and
citizen of Guatemala, filed a petition for U Nonimmigrant
Status on February 5, 2015. Due to a significant backlog,
Ramirez is waiting to be evaluated for the waiting list. On
August 15, 2016, he filed a petition for writ of mandamus in the
Northern District of Illinois requesting that the district court
compel Leon Rodriguez, Director of Homeland Security, and
Jeh Johnson, Secretary of Homeland Security, (collectively,
“Defendants”), to adjudicate his U-visa petition. Ramirez
argues the wait to be placed on the waiting list is unreasonable.
The district court granted the Defendants’ motion to dismiss.
Ramirez now appeals. For the reasons set forth below, we
affirm.
I. BACKGROUND
In October 2000, Congress created the U-visa through the
passage of the Victims of Trafficking and Violence Protection
Act of 2000 (“the Act”), Pub. L. No. 106-386, Div. A, 114 Stat.
1464 (2000), codified at inter alia, 8 U.S.C. § 1101(a)(15)(U). The
Act created a new nonimmigrant visa classification that
permits immigrants who are victims of serious crimes and who
assist law enforcement to apply for and receive a nonimmigrant visa called a U-visa. Id. The U-visa provides legal
status to petitioners and qualifying family members to apply
for work authorization and remain in the United States. Id. In

*

Of the United States District Court for the Central District of Illinois,
sitting by designation.

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order to qualify, the Department of Homeland Security must
determine that: (1) the petitioner “suffered substantial physical
or mental abuse as a result of having been a victim of criminal
activity ”; (2) the petitioner “possesses information concerning
[the] criminal activity”; (3) the petitioner has been, is, or is
likely to be helpful to government officials regarding the
criminal activity; and, (4) the criminal activity at issue occurred
in or violated the laws of the United States. 8 U.S.C.
§ 1101(a)(15)(U)(i)(I-IV).
Congress enacted a statutory cap of 10,000 U-visas each
fiscal year. 8 U.S.C. § 1184(p)(2)(A). Because of this cap, a
waiting list exists for petitioners seeking adjudication. 8 C.F.R.
§ 214.14(d)(2). This results in two separate waiting periods
and two adjudications for each petitioner—one for placement
on the waiting list and one to receive a U-visa. United States
Citizenship and Immigration Services (“USCIS”) will grant
eligible petitioners and qualifying family members on the
waiting list deferred action and work authorization while they
wait for final adjudication. Id. However, those who are waiting
to be placed on the waiting list are not granted this benefit.
Ramirez, a native and citizen of Guatemala, entered the
United States in April 2002 and has remained here since. On
August 16, 2014, he was stabbed in his back and leg during a
felonious assault.
On February 5, 2015, USCIS received Ramirez’s Form I-918,
Petition for U Nonimmigrant Status, Form I-192, Application
for Advance Permission to Enter as a Nonimmigrant, and to
waive his entry without inspection into the country. Since then,

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Ramirez has been waiting for his petition to be evaluated so he
can be placed on the waiting list.
On August 15, 2016, two years after the attack and a year
and a half after filing his petition, Ramirez requested the
district court to issue an order compelling the Defendants to
adjudicate his U-visa petition through mandamus relief or, in
the alternative, under the Administrative Procedures Act
(“APA”). In response, the Defendants filed a motion to dismiss
for failure to state a claim. After a hearing, the district court
granted the Defendants’ motion to dismiss both claims.
Ramirez now appeals.
II. DISCUSSION
We review a district court’s grant of a motion to dismiss for
failure to state a claim de novo. Volling v. Kurtz Paramedic Servs.,
Inc., 840 F.3d 378, 382 (7th Cir. 2016). “To survive a motion to
dismiss, 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, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “We accept as true
all of the well-pleaded facts in the complaint and draw all
reasonable inferences in favor of the plaintiff[-appellant].”
Kubiak v. City of Chicago, 810 F.3d 476, 480–81 (7th Cir. 2016).
A. Mandamus Relief
District courts have the authority to issue a writ of mandamus to compel an agency to perform a duty owed to a plaintiff.
28 U.S.C. § 1361. “Mandamus relief will be granted if the
plaintiff can demonstrate that the three enumerated conditions
are present: (1) a clear right to the relief sought; (2) that the

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defendant has a duty to do the act in question; and (3) no other
adequate remedy is available.” Iddir v. I.N.S., 301 F.3d 492, 499
(7th Cir. 2002).
To determine what right is owed to the plaintiff, we look to
the statute enacted by Congress. Id. Looking at the Act, there
is no dispute that Ramirez has a right to adjudication for both
the waiting list and a U-visa. Rather, Ramirez argues that the
delay he has endured to be placed on the U-visa waiting list is
unreasonable, and thus, he has a right to immediate adjudication.
In Iddir, we found that the former Immigration and Naturalization Services had a “duty to adjudicate the appellants’
applications in a reasonable period of time.” Id. at 500. While
Iddir dealt with the Diversity Visa Lottery Program rather than
the U-visa we face, we find this same standard applicable here.
Furthermore, 8 C.F.R. 214.14(d)(2) states, “[p]riority on the
waiting list will be determined by the date the petition was
filed with the oldest petitions receiving the highest priority.”
Thus, due to the significant backlog of U-visa applications, we
must determine whether Ramirez has a right to skip ahead of
other petitioners who filed an application before Ramirez, but
who are also waiting for adjudication for the U-visa waiting
list.
Ramirez fails to set forth any facts that differentiate himself
from other petitioners waiting ahead of him for adjudication.
The appellees did concede at oral argument that there are
instances when the Immigrations and Customs Enforcement
can and will expedite a petition. However, Ramirez fails to
present a situation appropriate to warrant such an action. With

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nothing in the record to suggest his wait time has been any
more unreasonable than other petitioners waiting in the same
line, we have no reason to grant mandamus relief.
B. Administrative Procedure Act Relief
Ramirez also seeks relief under the APA, arguing that
USCIS has a nondiscretionary duty to process his application
and that he has experienced an unreasonable delay. The APA
specifically states that, “within a reasonable time, each agency
shall proceed to conclude a matter presented to it.” 5 U.S.C.
§ 555(b). Additionally, the APA provides, “[t]he reviewing
court shall compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1).
While both parties agree that USCIS has a duty to process
Ramirez’s application, the Act and corresponding regulation
fail to enumerate a timeframe that USCIS is required to process
U-visa petitions for the waiting list. Thus, we must determine
whether Ramirez’s wait has been unreasonable.
USCIS is dealing with an exponentially increasing number
of U-Visa applications. Since 2009, the U-Visa backlog has
increased from 21,138 to 177,340 pending applications.** Prior
to August 2016, USCIS had one service center processing
applications. In August 2016, USCIS began distributing U-visa
petitions to a second service center in response to the increas-

**

U.S. CITIZENSHIP & IMMIGRATION SERVS., Number of Form I-918, Petition for
U Nonimmigrant Status, by Fiscal Year, Quarter, and Case Status 2009-2017,
https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20a
nd%20Studies/Immigration%20Forms%20Data/Victims/I918u_visastatist
ics_fy2017_qtr3.pdf (last visited Nov. 29, 2017).

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ing backlog. USCIS argues that this change will take time to be
felt by petitioners. Due to the circumstances USCIS faces and
the agency’s recent changes to alleviate the backlog, we do not
find Ramirez’s wait to be unreasonable at this time. Thus, relief
under the APA must also be denied.
III. CONCLUSION
For the foregoing reasons, the district court’s grant of the
defendants’ motion to dismiss is AFFIRMED.