Thomas Taylor v. James McCament, et al

Filing

Filed opinion of the court by Judge Flaum. AFFIRMED. Joel M. Flaum, Circuit Judge; Kenneth F. Ripple, Circuit Judge and Daniel A. Manion, Circuit Judge. [6884639-1] [6884639] [17-1943]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1943
THOMAS TAYLOR,
Plaintiff-Appellant,
v.
JAMES W. MCCAMENT, Acting Director, U.S. Citizenship &
Immigration Services, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cv-10754 — Amy J. St. Eve, Judge.

____________________
ARGUED OCTOBER 26, 2017 — DECIDED NOVEMBER 17, 2017
____________________
Before FLAUM, RIPPLE, and MANION, Circuit Judges.
FLAUM, Circuit Judge. Appellant Thomas Taylor applied for
a U-visa in 2014. United States Citizenship and Immigration
Services (“USCIS”) determined that Taylor was eligible, but
placed him on a waiting list because the relevant statute
prohibits the agency from issuing more than 10,000 U-visas
per year. Taylor filed suit in district court, alleging that

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USCIS’s prior delay in promulgating regulations for the Uvisa program caused the backlog in applications. He asserted
claims under the Administrative Procedure Act (“APA”) and
the Mandamus Act, and asked the court to compel USCIS to
immediately issue 80,000 U-visas to those on the waiting list.
The district court determined that Taylor lacked standing and
accordingly dismissed his complaint for lack of subject matter
jurisdiction. We affirm.
I. Background
On October 28, 2000, Congress created a new
nonimmigrant visa classification—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 (Victims Protection Act), Pub.
L. No. 106-386, 114 Stat. 1464 (codified at 8 U.S.C.
§ 1101(a)(15)(U)). The purpose of the U-visa program is to
strengthen law enforcement efforts, while simultaneously
offering protection to victims. See Victims Protection Act, Pub
L. No. 106-386, § 1513(a)(2), 114 Stat. 1464. To that end,
Congress gave the Attorney General “discretion to convert
the status of such nonimmigrants to that of permanent
residents when doing so is justified on humanitarian grounds,
for family unity, or is otherwise in the public interest.” Id.
§ 1513(a)(2)(C). An individual can apply for lawful
permanent resident status once they have possessed a U-visa
for three years. See 8 U.S.C. § 1255(m); see also 8 C.F.R.
§ 245.24(a)(1).

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Although the Victims Protection Act was enacted in 2000,
the relevant agencies 1 failed to subsequently create any
regulations or procedures to enable individuals to apply for
U-visas. In 2005, Congress included a provision in the
Violence Against Women Act (“VAWA”) directing the
Secretary of Homeland Security to issue regulations for the
Victims Protection Act “[n]ot later than 180 days after the
enactment of this Act.” Pub. L. 109-162, § 828, 119 Stat. 2960
(2006). Because VAWA was signed into law on January 5, 2006,
USCIS had a deadline of July 4, 2006 to issue the regulations
for U-visas.
In September 2007—nearly seven years after enactment of
the Victims Protection Act and more than a year after the
Congressionally mandated regulation deadline—USCIS
issued interim regulations with procedures for victims
seeking U-visas. See New Classification for Victims of
Criminal Activity; Eligibility for “U” Nonimmigrant Status,
72 Fed. Reg. 53,014-01 (Sept. 17, 2007). By the end of fiscal year
2008, the agency had received 12,151 petitions, but it placed
the vast majority (12,092) on hold pending the issuance of
final regulations. See U.S. DEP’T OF HOMELAND SEC., OFFICE OF
THE CITIZENSHIP AND IMMIGRATION SERVS. OMBUDSMAN,
IMPROVING THE PROCESS FOR VICTIMS OF HUMAN TRAFFICKING
AND CERTAIN CRIMINAL ACTIVITY: THE T AND U VISA 7 (2009),
1

Prior to March 1, 2003, the Immigration and Naturalization Service
(“INS”) was responsible for adjudicating visa petitions. However, in 2002
Congress dismantled the INS and created a new agency: the Department
of Homeland Security (“DHS”). See Homeland Security Act of 2002, Pub.
L. No. 107–296, 116 Stat. 2135. Congress established USCIS as a
department within DHS, and transferred all responsibility for visa
petitions from the INS to USCIS. See id. § 451(b).

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https://www.dhs.gov/xlibrary/assets/cisomb_tandu_visa_rec
ommendation_2009-01-26.pdf.
The agency promulgated final regulations in December
2008, and those regulations went into effect in January 2009.
See Adjustment of Status to Lawful Permanent Resident for
Aliens in T or U Nonimmigrant Status, 73 Fed. Reg. 75,540-01
(Dec. 12, 2008). Only then did USCIS begin to issue U-visas in
large numbers. See U.S. DEP’T OF HOMELAND SEC., USCIS,
NUMBER OF FORM I-918, PETITION FOR U NONIMMIGRANT
STATUS, BY FISCAL YEAR, QUARTER, AND CASE STATUS (20092017), https://www.uscis.gov/sites/default/files/USCIS/Resou
rces/Reports%20and%20Studies/Immigration%20Forms%20
Data/Victims/I918u_visastatistics_fy2017_qtr3.pdf
[hereinafter U-visa Statistics].
Even after USCIS finally began to issue U-visas, however,
it was not able to provide a U-visa to all eligible applicants
because the Victims Protection Act limits the number of Uvisas that may be issued each fiscal year to 10,000. See 8 U.S.C.
§ 1184(p)(2) (“The number of aliens who may be issued visas
or otherwise provided status as nonimmigrants … in any
fiscal year shall not exceed 10,000.”). Once the fiscal year limit
is reached, eligible U-visa applicants are placed on a waiting
list. 8 C.F.R. § 214.14(d)(2). USCIS reviews the petitions on the
waiting list based on the date they were filed, with the oldest
petitions receiving the highest priority. Id. While on the
waiting list, USCIS grants the petitioner and qualifying family
members deferred action, a discretionary form of relief that
defers removal and confers employment authorization
benefits. Id. The number of U-visa petitions has steadily
increased since 2009, and USCIS has reached the statutory cap
each year since fiscal year 2010. See U-visa Statistics, supra.

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Taylor, a citizen of Ireland, entered the United States in
2000 on a visitor’s visa. In October 2008, Taylor was the victim
of perjury, a qualifying crime under the Victims Protection
Act. After the Federal Bureau of Investigation certified that
Taylor had provided the necessary assistance, Taylor applied
for a U-visa on June 9, 2014. Although USCIS determined that
Taylor was eligible, the agency placed him on the waiting list
due to the annual cap. On September 7, 2016, USCIS granted
Taylor deferred action. Taylor is still on the waiting list. 2
On November 21, 2016, Taylor filed a petition for
declaratory judgment in the Northern District of Illinois
against the Director of USCIS and the Secretary of DHS.
Taylor alleged that defendants unreasonably delayed
implementing regulations for the U-visa program, thus
depriving him of U-visa status and delaying his eligibility for
lawful permanent resident status. According to Taylor,
because the agencies were authorized to issue 10,000 U-visas
per year between 2000 and 2008 but failed to do so, they
wrongfully withheld a total of 80,000 U-visas. Thus, Taylor
asked the court to compel USCIS to immediately issue 80,000
U-visas to those who are currently on the waiting list
pursuant to its authority under the Mandamus Act and the
APA.
The district court dismissed Taylor’s petition on two
independent grounds. First, the court held that it lacked
subject matter jurisdiction because Taylor did not have
standing. Second, the court held that, even if Taylor had

2

At oral argument Taylor’s counsel estimated that Taylor has
approximately 30,000–35,000 applicants ahead of him on the waiting list.

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standing, he had failed to state a claim under either the
Mandamus Act or the APA. This appeal followed.
II. Discussion
We review a district court’s dismissal for lack of subject
matter jurisdiction under Rule 12(b)(1) de novo. See Silha v.
ACT, Inc., 807 F.3d 169, 172 (7th Cir. 2015). Where, as here,
plaintiff’s complaint is facially sufficient but external facts call
the court’s jurisdiction into question, we “may properly look
beyond the jurisdictional allegations of the complaint and
view whatever evidence has been submitted on the issue to
determine whether in fact subject matter jurisdiction exists.”
Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th
Cir. 2009) (quoting Evers v. Astrue, 536 F.3d 651, 656–57 (7th
Cir. 2008)).
Article III limits the jurisdiction of federal courts to
“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. To
have the requisite constitutional standing to bring suit in
federal court, a plaintiff must have “(1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016), as revised (May 24, 2016) (citing Lujan v. Defs. of Wildlife,
504 U.S. 555, 560–61 (1992)). “The plaintiff, as the party
invoking federal jurisdiction, bears the burden of establishing
these elements.” Id. If the plaintiff lacks standing, the federal
court lacks subject matter jurisdiction and the suit must be
dismissed under Rule 12(b)(1).
Defendants-Appellees argue that Taylor cannot satisfy
any of the three standing requirements. We only discuss

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redressability because it is dispositive of the standing
analysis.
In identical circumstances, the Northern District of Illinois
has held that a favorable judicial decision would not redress
plaintiffs’ injuries. See Patel v. Rodriguez, No. 15-cv-486,
2015 WL 6083199 (N.D. Ill. Oct. 13, 2015). Like Taylor, the
plaintiffs in Patel challenged the agency’s delay in
implementing regulations for the Victims Protection Act and
sought to compel USCIS to issue 80,000 U-visas immediately.
Id. at *1. The court reasoned that, even if it ordered USCIS to
issue 80,000 U-visas, the agency would not be able to do so
because of the annual statutory cap. Id. at *5. Looking to the
statutory language, the court explained that “[t]he term ‘shall’
… denotes a clear congressional directive,” and therefore
“USCIS lacks the authority to exceed [the fiscal year limit].”
Id. (citing Iddir v. INS, 301 F.3d 492–501 (7th Cir. 2002)). This,
combined with the fact that the statutory cap had already
been reached for the year in question, meant that “there
[were] simply no U-visas to issue, much less 80,000.” Id. at *5.
Because the court was “unable to provide relief,” it concluded
that plaintiffs lacked standing. Id. We find this reasoning
persuasive.
Our decision in Iddir v. INS is also instructive. The
appellants in Iddir sought a writ of mandamus to compel the
INS to adjudicate their visa petitions under the Diversity Visa
Lottery Program. 301 F.3d at 493–94. The relevant statute
provided that, once an individual was randomly chosen for
the Diversity Visa Lottery Program, their petition had to be
completed and adjudicated before the end of the fiscal year to
obtain a visa. Id. Although the appellants completed their
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within the one-year statutory window. Id. at 494–95. INS
argued that it “[could not] issue the visas regardless of the
outcome of any adjudication” because “the visas expired at
the end of the fiscal year.” Id. at 500.
The panel held that mandamus relief was not appropriate
because the INS did not have a clear duty to adjudicate the
petitions. See id. at 500–01. Although we did not directly
address standing, we acknowledged that “the issues of duty
and potential relief are entangled in this unique statutory
situation.” Id. at 500. And we explained that “the relief the
appellants currently seek is illusory, because even if the INS
adjudicated the applications today, visas could not be
issued.” Id. This was so because “the statute unequivocally
states that the applicants only remain eligible ‘through the
end of the specific fiscal year for which they were selected.’”
Id. at 501 (quoting 8 U.S.C. § 1154(a)(1)(I)(ii)). Based on this
deadline, we concluded that “the INS lacks the statutory
authority to award the relief sought by the plaintiffs.” Id.
I agreed with the majority’s result, but wrote separately
because I thought the plaintiffs’ claims should be dismissed
on mootness grounds. Id. at 501–02 (opinion of Flaum, J.). I
explained that “it is the INS’s lack of power to grant effectual
relief—not its lack of duty—that makes the claims
nonjusticiable.” Id. at 502. And I concluded that, “because the
INS lacks the capability to issue visas to DV lottery winners
after the fiscal year for which they were selected to apply
ends, no viable remedy is available to plaintiffs and, therefore,
their claims are moot.” Id. The district court below similarly
dismissed the plaintiffs’ claims on mootness grounds. See
Iddir v. INS, 166 F. Supp. 2d 1250, 1258–60 (N.D. Ill. 2001)
(concluding that “[a]ny order by this court compelling the

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INS to adjudicate plaintiffs’ applications would be a futile
act” because “the INS cannot issue visa numbers that do not
exist to plaintiffs”).
Although my Iddir opinion focused on mootness, its
reasoning is equally applicable in the standing context. After
all, those two concepts are interrelated: “Mootness is ‘the
doctrine of standing set in a time frame: The requisite
personal interest that must exist at the commencement of the
litigation (standing) must continue throughout its existence
(mootness).’” Parvati Corp. v. City of Oak Forest, Ill., 630 F.3d
512, 516 (7th Cir. 2010) (quoting Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). The
reasoning in Iddir suggests that a plaintiff loses standing—i.e.,
their claim becomes moot—if the relevant agency loses
statutory authority to award the relief sought. 301 F.3d at 500–
02. It follows that a plaintiff similarly lacks standing where
the agency never had statutory authority to give the plaintiff
the relief he seeks.
Here, as in Patel and Iddir, the agency lacks the statutory
authority to give plaintiff the relief sought. The statute clearly
provides that “[t]he number of aliens who may be issued visas
or otherwise provided [U-visas] … in any fiscal year shall not
exceed 10,000.” 8 U.S.C. § 1184(p)(2)(A) (emphasis added).
Taylor admits that the U-visa limit was reached in fiscal year
2016, and the U-visa limit has been reached for fiscal year 2017
as well. See USCIS, USCIS Grants All Available U Visas for Fiscal
Year 2017 (Aug. 30, 2017), https://www.uscis.gov/news/alerts
/uscis-grants-all-available-u-visas-fiscal-year-2017. Thus,
even if a court ordered USCIS to immediately issue 80,000 Uvisas, the agency would lack the statutory authority to do so.

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At oral argument, Taylor claimed that Iddir is
distinguishable because, unlike the expired visas at issue in
Iddir, his petition is still viable. This fact, however, does not
alter our conclusion. Although USCIS retains statutory
authority to adjudicate Taylor’s petition in the future, that is
not the relief Taylor seeks here. Rather, he asks us to compel
USCIS to immediately issue 80,000 U-visas to those on the
waiting list. 3 Accordingly, our redressability analysis hinges
on whether a court can effectively give him that relief. Based
upon our reasoning in Iddir, the answer to that question is no.
See 301 F.3d at 500–01 (describing the relief sought as
“illusory” where the relevant agency lacks the statutory
authority to award that relief).
In a final effort to avoid dismissal, Taylor argues that this
Court has authority to redress his injury under the APA.
However, this argument conflates the constitutional standing
requirement with the merits of Taylor’s claim. Although the
APA gives a reviewing court authority to compel nondiscretionary agency action that is unreasonably delayed, 5
U.S.C. §§ 706(1), 701(a)(1), it has no bearing on the threshold
question of whether Taylor has standing to bring a claim

3

To be clear, even if Taylor simply sought to compel USCIS to
immediately adjudicate only his petition, the agency would still lack
authority to provide that relief. USCIS regulations state that “[p]riority on
the waiting list will be determined by the date the petition was filed with
the oldest petitions receiving the highest priority.” 8 C.F.R. § 214.14(d)(2).
Defendants argue that this regulation is entitled to judicial deference and,
by failing to respond to this argument in his reply brief, Taylor waived
any argument to the contrary. See United States v. Farris, 532 F.3d 615, 619
(7th Cir. 2008). Thus, USCIS lacks authority to leap-frog Taylor over other
waitlisted applicants.

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under the APA in the first instance. If Taylor lacks
constitutional standing, this Court cannot review his claims at
all, let alone determine whether there was an unreasonable
delay or a non-discretionary duty. In other words, even if a
reviewing court had authority under the APA to compel
USCIS to issue 80,000 U-visas, Taylor has not explained how
USCIS could comply with such a court order in light of the
statutory cap. Thus, he has not shown that a favorable judicial
decision would give him the relief he seeks.
In sum, Taylor lacks standing. 4 We recognize that the
agency’s delay has adversely impacted Taylor and those who
are similarly situated, but only Congress can provide the
relief they seek.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.

4 Because we conclude that dismissal was appropriate on this ground,

we need not address whether Taylor has stated a claim under the APA or
the Mandamus Act.