Patel et al v. Cuccinelli
OPINION & ORDER 11 SEALED MOTION : 1)The Patels claim that USCIS has unreasonably delayed granting them work authorizations under 8 U.S.C.§ 1184(p)(6) (Count I) is dismissed for lack of subject-matter jurisdictio n;2)The Patels claim that USCIS has unreasonably delayed adjudication of their petitions for U-status visas (Count II) is DISMISSED for failure to state a claim; and3)The Patels claim under the Equal Access to Justice Act is DISMISSED for failure to state a claim. Signed by Judge Karen K. Caldwell on 1/8/21.(SYD)cc: COR
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION -- LONDON
SUDHABEN PANKAJKUMAR PATEL, et al.,
CIVIL NO. 6:20-101-KKC
OPINION AND ORDER
KENNETH CUCCINELLI, Senior Official
Performing the Duties of the Director, U.S.
Citizenship and Immigration Services,
*** *** ***
Defendant Kenneth Cuccinelli, Senior Official Performing the Duties of the
Director, U.S. Citizenship and Immigration Services (“USCIS”) moves to dismiss (DE
11) the plaintiffs’ claims. For the following reasons, the motion will be granted.
With this action, the plaintiffs allege unreasonable delays by USCIS at two points
in the processing of so-called “U-status” immigration petitions. In 2000, Congress
created the U-status nonimmigrant visa classification after finding that immigrant women
and children are often the targets of crimes and that these victims must be able to report
the crimes to law enforcement and “fully participate” in the investigation and prosecution
of the perpetrators. Victims of Trafficking and Violence Protection Act of 2000, Pub. L.
No. 106-386, § 1513(a)(1)(A), (B), 114 Stat. 1464. The U-status nonimmigrant
classification is intended for certain foreign nationals who are the victims of qualifying
crimes that occurred in the United States. 8 U.S.C. § 1101(a)(15)(U).
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To petition for U-status, a foreign national must submit a certification from a law
enforcement official, prosecutor, or judge stating that the petitioner was the victim of a
qualifying crime, that she possesses information about the crime, and that she has or will
cooperate in the in the investigation or prosecution of the crime. 8 U.S.C. § 1184(p)(1); 8
C.F.R. § 214.14(c)(2)(i). The petitioner can also petition for U-status for qualifying
family members. 8 C.F.R. § 214.14(f)(1).
Plaintiff Sudhaben Pankajkumar Patel is a citizen and national of India who
currently resides in Harlan County, Kentucky. She alleges she was the victim of an
assault in Kansas, where she and her family previously lived. (DE 1, Complaint, ¶ 51.)
She filed a petition for U-status on December 22, 2016. (DE 1, Complaint, ¶ 54.) On the
same date, she petitioned for derivative U-status for her husband, daughter, and son, who
are co-plaintiffs in this action. (DE 1, Complaint, ¶¶ 50, 57.)
The Patels complain that the delays have been unreasonable at two steps in the
processing of their petitions. (DE 1, Complaint, ¶ 48: First & Second Causes of Action.)
First, once a foreign national has a “pending, bona fide application” for U-status,
USCIS “may grant” her work authorization. 8 U.S.C.A. § 1184(p)(6).) In her U-status
petition, Patel requested work authorization, but she alleges that USCIS has taken no
action on her petition, including the requested work authorization, since she filed it.
Second, the Patels complain about USCIS’s delay in placing them on the waiting
list for U-status. The agency can grant a maximum of only 10,000 U-status petitions each
year. 8 U.S.C. § 1184(p)(2)(A). The number of applications exceed 10,000. Thus, the
implementing regulations provide that all “eligible petitioners” who are not granted Ustatus “due solely to the cap . . . must be placed on a waiting list.” 8 C.F.R.
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§214.14(d)(2). Being on the waiting list is important because USCIS grants “deferred
action” or “parole” to petitioners and their qualifying family members while the
petitioners are on the waiting list. Id. Deferred action and parole protect the petitioner
from removal. Oceguera v. Albence, No. 1:20-CV-1235, 2020 WL 4369219, at *2 (M.D.
Pa. July 30, 2020). See also Dep't of Homeland Sec. v. Regents of the Univ. of California,
140 S. Ct. 1891, 1911 (2020) (“The defining feature of deferred action is the decision to
defer removal . . . .”); 8 U.S.C. § 1182(d)(5)(A). In addition, “in its discretion,” USCIS
“may authorize employment” for the petitioners on the waiting list and the qualifying
family members. 8 C.F.R. §214.14(d)(2).
The Patels complain that USCIS’s delay in placing them on the waiting list is
USCIS typically processes U-status visa petitions in the order they are received.
§ 214.14(d)(2). If a petitioner's U-status application is granted, the petitioner receives a
U-status visa that lasts four years with possible extensions. 8 U.S.C. § 1184(p)(6).
The Patels assert two claims against USCIS. With Count I, they assert that USCIS
has “unreasonably delayed or unlawfully withheld pre-waiting list work authorization” in
violation of 8 U.S.C. § 1184(p)(6). Count II asserts that USCIS has unreasonable delayed
placing the Patels on the waiting list for a U-status visa as required by 8 C.F.R.
USCIS moves to dismiss the complaint. It argues that the complaint must be
dismissed under Federal Rule of Civil Procedure 12(b)(1) because the Court does not
have subject-matter jurisdiction over the claims. USCIS also argues that the complaint
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must be dismissed under Federal Rule of Civil Procedure 12(b)(6) because it fails to state
Subject Matter Jurisdiction
The Court will first address USCIS’s arguments regarding the Court’s subject
matter jurisdiction. The existence of subject matter jurisdiction is a threshold question
that a court must address before considering a case's merits. Am. Telecom Co. v. Republic
of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007) (citing Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 101 (1998)). “Subject-matter jurisdiction cannot be forfeited or
waived and should be considered when fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662,
671 (2009). “When a defendant challenges subject matter jurisdiction through a motion to
dismiss, the plaintiff bears the burden of establishing jurisdiction.” Hodgepeth v.
Tennessee, 215 F.3d 608, 611 (6th Cir. 2000).
In their complaint, the Patels assert this Court has jurisdiction to consider their
claims under the so-called federal question statute, 28 U.S.C. § 1331, which provides that
federal district courts have subject-matter jurisdiction over “all civil actions arising under
the Constitution, laws, or treaties of the United States.” An action “arises under” federal
law “within the meaning of § 1331 . . . if ‘a well-pleaded complaint establishes either that
federal law creates the cause of action or that the plaintiff's right to relief necessarily
depends on resolution of a substantial question of federal law.’” Empire HealthChoice
Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006) (quoting Franchise Tax Bd. of Cal. v.
Constr. Laborers Vacation Trust, 463 U.S. 1, 27–28 (1983)).
The Patels assert that this action arises under a federal law called the
Administrative Procedure Act, 5 U.S.C. §§ 500 et seq. (DE 1, Complaint, ¶ 7.) That act
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provides that individuals can assert a claim for judicial review of an “agency action.” 5
U.S.C.A. § 702. Here, the plaintiffs do not ask for review of an agency action; rather,
they ask this Court to rule on the legality of agency “inaction.” When the APA speaks of
“agency action,” however, it includes the “failure to act.” Pub. Citizen, Inc. v. Fed.
Energy Regulatory Comm'n, 839 F.3d 1165, 1172 (D.C. Cir. 2016) (citing 5 U.S.C. §§
551(13), 702). The APA provides that the federal court conducting the review of agency
inaction can “compel agency action unlawfully withheld or unreasonably delayed.” 5
U.S.C. §706 (1).
The APA’s judicial-review provisions do not apply, however, where the “agency
action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This means “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. S. Utah Wilderness
All., 542 U.S. 55, 64 (2004). Action is “legally required” if the statute provides a
“specific, unequivocal command” to an agency or orders “a precise, definite act . . . about
which [an official has] no discretion whatever.” Id. at 63.
Thus, a claim that an agency unlawfully withheld or unreasonably delayed an
action that is committed to the agency’s discretion does not “arise under” the APA.
“Since the APA does not apply, Plaintiff has no cause of action arising under federal
law.” Torres v. Chertoff, No. 1:07CV01649 WSD, 2007 WL 4261742, at *6 (N.D. Ga.
Nov. 30, 2007). This means the Court has no federal-question jurisdiction of the claim
under 28 U.S.C. § 1331. See Alvarado v. Table Mountain Rancheria, 509 F.3d 1008,
1019–20 (9th Cir. 2007) (holding that, if a claim does not assert that an agency failed to
take a discrete agency action that it is required, the “claim may be dismissed for lack of
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jurisdiction.”); Eason Land Co., LLC v. U.S. Dep't of the Interior, Sec'y, 703 F. App'x
498, 500 (9th Cir. 2017) (“Because the Whites do not challenge a failure to take or
unreasonably delay a discrete agency action that is legally compelled, the district court
did not have subject matter jurisdiction over their § 706(1) claim.”)
USCIS argues that the two decisions the Patels complain about – the decision to
grant work authorizations to individuals with pending applications under 8 U.SC.
§ 1184(p)(6) and the decision to place the Patels on the waiting list for the U-status visa –
are both committed to the agency’s discretion. Thus, USCIS argues, the Court has no
subject-matter jurisdiction over either of the Patels’ claims.
A. The decision whether to grant work authorizations to U-status
petitioners under 8 U.S.C. § 1184(p)(6) is discretionary.
As to work authorizations, the statute provides, “The Secretary 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.A. § 1184(p)(6). As one court
has explained, “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.” Patel v. Cissna, 400 F. Supp. 3d 1373, 1375 (M.D. Ga. 2019).
USCIS simply does not grant work authorization to petitioners prior to their
placement on the U-status waiting list. Nor do they even evaluate whether someone has a
pending, bona fide application. Id. at 1378. Instead, USCIS “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.” Id. at 1376.
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By its plain terms, the statute does not require that USCIS grant work
authorizations to applicants with a pending, bona fide application. It merely permits the
agency to grant work authorizations to such applicants. Because the granting of work
authorizations to individuals with a pending, bona fide application is wholly
discretionary, the Court has no jurisdiction over a claim that the secretary has failed to
grant them or has failed to do so within a reasonable time. Count I must be dismissed for
lack of subject-matter jurisdiction. See Gonzalez v. Cissna, 364 F. Supp. 3d 579, 584
(E.D.N.C. 2019), appeal docketed, No. 19-1435 (4th Cir. Apr. 23, 2019) (“The statute
clearly gives USCIS the discretion to grant work authorizations to aliens with pending,
bona fide U-Visa applications . . . and, as such, the Court lacks jurisdiction over the claim
and it must be dismissed.”); Patel, 400 F. Supp. 3d at 1377 (stating that Congress “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 prewaiting list work authorization. The Court has no subject matter jurisdiction to enter such
B. USCIS has a nondiscretionary duty to adjudicate whether petitioners
are eligible for the U-status visa.
As to the decision to place an applicant on the waiting list, the regulation provides
that, “[a]ll eligible [U-status] petitioners who, due solely to the [10,000 visas per year]
cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive
written notice of such placement.” 8 C.F.R. § 214.14(d)(2). This means, if the agency
decides a petitioner is eligible for a U-status visa, but the agency is unable to grant the
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visa because the maximum number for the year have already been granted, then the
agency has no discretion – it must place that petitioner on the waiting list.
If USCIS. had determined that the Patels were eligible for a U-status visa but that
the visa cap had been reached for the year, then this Court would certainly have
jurisdiction over a claim that the agency had failed to place them on the waiting list. The
agency has no discretion in that situation; it must place the eligible petitioners on the
But the agency has not yet decided that any of the plaintiffs are eligible for the Ustatus visa. And, as the Court understands it, it is this agency inaction that forms the basis
for the Patels’ claim in Count II. The plaintiffs’ complaint is that USCIS has
unreasonably delayed a decision on whether they are eligible for the U-status visa.
There is no statute that prescribes a precise time within which USCIS must
determine whether the plaintiffs are eligible for the U-status visa. Some courts have
concluded, in the context of an application to adjust an immigrant’s status to lawful
permanent resident under 8 U.S.C. § 1255(a), that, in the absence of a statute or
regulation that prescribes the time within which an agency must reach a decision, the
agency’s “pace of adjudication is discretionary and thus not reviewable.” Beshir v.
Holder, 10 F. Supp. 3d 165, 174 (D.D.C. 2014).
In Orlov v. Howard, 523 F. Supp. 2d 30 (D.D.C. 2007), the court explained, “[i]f
Congress intended to constrain the USCIS to adjudicate an application within a specific
amount of time, this Court believes it would have provided a time limitation as it did in
8 U.S.C. § 1447(b), which provides that a determination on a naturalization application
must be made within 120 days after an examination is conducted.” Id. at 34. “In the
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absence of statutorily prescribed time limitations or statutory factors to guide USCIS in
crafting regulations for the adjustment process, it is difficult to determine how the pace of
processing an application could be anything other than discretionary.” Id. at 35.
The Fifth Circuit also addressed the issue in the context of an application to adjust
status, albeit in a decision that was later vacated as moot. Bian v. Clinton, 605 F.3d 249,
253 (5th Cir. 2010), vacated as moot, No. 09-10568, 2010 WL 3633770 (5th Cir. Sept.
16, 2010). In Bian, the court determined federal courts do not have jurisdiction over the
pace of adjudicating applications to adjust status. The court found it important that
8 U.S.C. § 1255 “does not specify a deadline or even a time frame for adjudication of
applications, instead committing not only the USCIS's decision but also any ‘regulations’
necessary for making such a decision to agency discretion.” Id.
Similarly, in Safadi v. Howard, 466 F. Supp. 2d 696 (E.D. Va. 2006), the court
noted that the statute governing applications for adjustment of status, instead of placing
time limits on the processing of adjustment applications, “simply provides that the
adjustment application process is subject to the regulations that USCIS may elect to
prescribe.” Id. at 699. The court found that Congress’s intent in such a situation was “to
confer on USCIS discretion over not just the adjustment of status decision, but also the
process employed to reach that result, and to exclude from judicial review the exercise of
all that discretion” including “the pace at which the process proceeds.” Id.
Likewise, in Beshir, the court concluded, “Granting the Attorney General and the
Secretary the discretion to promulgate regulations governing the process of adjudication
necessarily includes a grant of discretion over the pace of adjudication. Beshir, 10 F.
Supp. 3d at 174.
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USCIS points out that Congress gave the secretary of Homeland Security
similarly broad discretion to establish regulations governing nonimmigrant admissions,
including the adjudication of U-status nonimmigrant visa petitions. See 8 U.S.C.
§ 1184(a)(1). Nevertheless, USCIS points to no case holding that there is no federal
subject-matter jurisdiction over the precise claims at issue in this case: that the USCIS
has unreasonably delayed review of U-status visa applications. In its reply brief, USCIS
argues that the Eastern District of North Carolina found no subject-matter jurisdiction
over such a claim in Gonzalez v. Cissna, 364 F.Supp. 3d 579 (E.D.N.C. 2019). This is not
an accurate reading of that case.
In Gonzalez, the plaintiff made multiple claims including the two that the Patels
make in this case: that USCIS had “unreasonably delayed the adjudication of their work
authorizations under 8 U.S.C. § 1184(p)(6), in violation of the Administrative Procedure
Act (APA)” and that USCIS had “unreasonably delayed placing plaintiffs on the U-Visa
waiting list, in violation of the APA.” Id. at 582-83.
As to the claim that USCIS had unreasonably delayed adjudication of work
authorizations under § 1184(p)(6), the court determined “it is a challenge to an agency
action which is committed by statute to the agency's discretion. As such, the Court lacks
subject-matter jurisdiction to consider it.” Id. at 584. This Court agrees with that ruling
as explained above. USCIS is not required to issue work authorizations under
§ 1184(p)(6) at all. Thus, this Court has no jurisdiction over a claim that they have failed
to do that task or that they have failed to do it quickly enough.
As to the claim that “USCIS has unreasonably delayed placing plaintiffs on the UVisa waiting list, in violation of the APA,” this appears to be the same claim that the
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plaintiffs make here: that the USCIS has unreasonably delayed its adjudication of their
eligibility for the U-status visa and, thus, placement on the waiting list. The North
Carolina court exercised jurisdiction over that claim and addressed it on the merits. Id. at
585 (“With respect to plaintiffs' unreasonable-delay claim to U-Visa adjudication under
the APA, however, the Court must consider the six-factor test set forth in Telecomms.
Research and Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (‘TRAC ‘)”). After
analyzing those factors, the court concluded, “it is clear that plaintiffs have not stated
sufficient facts to state an APA unreasonable-delay claim to USCIS’s processing of UVisa petitions, so the fourth cause of action must be dismissed.”). See also Uranga v.
U.S. Citizenship & Immigration Servs., No. CV 20-0521 (ABJ), 2020 WL 5763633, at
*10, n.2 (D.D.C. Sept. 28, 2020).
The Patels cite multiple other federal cases in which the court determined that
claims for unreasonable delays in waiting-list decisions raise a federal question. The
Court finds their reasoning persuasive for several reasons.
First, the Patels’ complaint is not that USCIS has not determined that they are
eligible for a U-status visa, a decision that is clearly discretionary. Their complaint is that
the USCIS has failed to adjudicate their eligibility for the visa at all.
“The decision whether to grant a U Visa is statutorily committed to the discretion
of the Secretary of Homeland Security, see 8 U.S.C. § 1101(a)(15)(U), and is exercised
through USCIS . . .” L.D.G. v. Holder, 744 F.3d 1022, 1024 (7th Cir. 2014); 8 U.S.C.
§ 1101(a)(15)(U); 8 C.F.R. § 214.14(c)(1); 6 U.S.C. § 271(b)(1). But, while the USCIS's
decision to grant or deny a U-status visa petition is discretionary, “the USCIS has a
nondiscretionary statutory duty to adjudicate U Visas.” M.J.L. v. McAleenan, 420 F.
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Supp. 3d 588, 595 (W.D. Tex. 2019). “The secretary cannot be charged with immigration
administration and simultaneously have no duty to administrate. Such a result is
irrational.” Nigmadzhanov v. Mueller, 550 F. Supp. 2d 540, 546 (S.D.N.Y. 2008)
Before the Seventh Circuit, USCIS agreed that it had a “a duty to process
[petitioner's U-status visa] application” Calderon-Ramirez v. McCament, 877 F.3d 272,
276 (7th Cir. 2017). See also Patel v. Cissna, 400 F. Supp. 3d at 1383 (“There is no
dispute that Defendants are required by law to decide whether to place Plaintiff on the
waiting list and have not done so.”); Lopez v. Cissna, 2018 WL 5013830, at *4 (D.S.C.
Oct. 15, 2018). Cf. Ayyub v. Blakeway, 2010 WL 3221700, at *4 (W.D. Tex. Aug. 13,
2010) (holding that, while the USCIS has the discretion to grant or deny an application
for naturalization, the agency is without discretion to make no determination at all); Saini
v. USCIS, 553 F. Supp. 2d 1170, 1176 (E.D. Cal. 2008) (concluding that “the duty to act
on an application, as opposed to what action will be taken, is not discretionary on the part
of the USCIS”); Nigmadzhanov v. Mueller, 550 F. Supp. 2d 540, 546 (S.D.N.Y. 2008)
(concluding that the agency “has a non-discretionary duty to adjudicate adjustment of
status applications” but an “unfettered (and hence, unreviewable) discretion whether to
grant or deny an application.”); Kim v. Ashcroft, 340 F. Supp. 2d 384, 389 (S.D.N.Y.
2004) (“[T]he decision of whether to grant or deny an adjustment application is wholly
discretionary” but [w]hether to adjudicate an adjustment application is not
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As to the lack of a timeframe set forth in the statute, “[t]he absence of a specified
deadline within which action must be taken does not change the nature of USCIS’
obligation from one that is ministerial to a matter within the agency's discretion.”
Saini v. U.S. Citizenship & Immigration Servs., 553 F. Supp. 2d 1170, 1176 (E.D. Cal.
2008). “[B]y necessary implication the adjudication must occur within a reasonable
period of time, since a contrary position would permit the USCIS to delay indefinitely, a
result Congress could not have intended.” M.J.L., 420 F. Supp. 3d at 597 (quoting Saini,
553 F. Supp. 2d at 1176). The APA itself requires that an agency adjudication be
concluded “within a reasonable time.” 5 U.S.C. § 555(b). Further, the APA authorizes
federal courts to “compel agency action unlawfully held or unreasonably delayed.” 5
U.S.C. § 706(1)).
Finally, the Supreme Court “has long applied ‘a strong presumption favoring
judicial review of administrative action.’” M.J.L., 420 F. Supp. 3d at 594 (quoting Mach
Mining, LLC v. E.E.O.C., 575 U.S. 480, 486 (2015)). “Unless ‘there is persuasive reason
to believe’ that Congress intended to preclude judicial review, the Court will not preclude
review.” Id. (quoting PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S.
Ct. 2051, 2060 (2019)).
For all these reasons, this Court has subject-matter jurisdiction to review
Plaintiffs' APA claim that the USCIS failed to adjudicate their eligibility for U-status
visas within a reasonable time. See, e.g., M.J.L., 420 F. Supp. 3d at 597; Lopez, 2018
WL 5013830, at *4.
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Motion to Dismiss for Failure to State a Claim
USCIS argues the Patels have failed to state a claim that the agency has
unreasonably delayed the adjudication of their U-status visa petitions. As it must on such
a motion, the Court will assume that the factual allegations in the complaint are true.
Scheid v. Fanny Farms Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (quoting
Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir. 1983)). In resolving the motion,
the Court will consider these allegations and may also consider certain other information,
including “matters of public record, orders, items appearing in the record of the case, and
exhibits attached to the complaint.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.
2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir.1997)). Further,
“documents that a defendant attaches to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff's complaint and are central to her claim.”
Id. (citation omitted).
The Patels argue that the motion to dismiss is premature. They argue, “without a
complete record or discovery, the Court will not have the information necessary to
engage in judicial review of the Agency’s Rule 12(b)(6) motion.” (De 12, Mem. at 16.)
On a Rule 12(b)(6) motion, however, the issue is whether the complaint contains
“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft, 556 U.S. at 678 (internal quotations omitted). The question raised by
USCIS’s motion is whether the Patels have made sufficient allegations in the complaint
to state a claim that USCIS has unreasonably delayed the adjudication of their eligibility
for the U-status visa and, thus, automatic placement on the waiting list. The Court can
and must answer that question without discovery.
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The Patels argue that, when a complaint seeks judicial review of an agency
decision, the facts alleged in the complaint are “irrelevant” and, thus, motions to dismiss
are improper. (DE 12, Mem. at 16.) The cases the Patels cite in support of this argument
involve judicial review of an agency action, in which the appropriate standard for review
is whether the action was “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” Camp v. Pitts, 411 U.S. 138, 142 (1973) (quoting 5 U.S.C.
These cases do not hold that the facts alleged in the plaintiff’s complaint are
irrelevant. Instead, they hold that, under the arbitrary-and-capricious standard of
reviewing an agency action, discovery in the district court is generally inappropriate. This
is because “the focal point for judicial review should be the administrative record already
in existence, not some new record made initially in the reviewing court.” Id. See also
Rempfer v. Sharfstein, 583 F.3d 860 (D.C. Cir. 2009) (explaining that, when a party seeks
review of an agency action under the APA, a district court’s review is limited to the
agency record and, thus, plaintiffs are not ordinarily entitled to augment the agency's
record with either discovery or testimony presented in the district court); American
Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083-84 (D.C. Cir. 2001) (explaining that
the question of whether an agency acted in an arbitrary and capricious manner is a legal
one and “[a]bsent very unusual circumstances the district court does not take testimony.”)
The Patels also cite Atieh v. Riordan, 727 F.3d 73 (1st Cir. 2013), in which the
court agreed “that judicial review of the agency's decision must proceed on the
administrative record.” Id. at 75. From that premise, the First Circuit determined that, the
plausibility standard on a motion to dismiss “has no place in APA review.” Id. at 76. This
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is because, “[t]he plausibility standard is a screening mechanism designed to weed out
cases that do not warrant either discovery or trial” and “APA review . . . involves neither
discovery nor trial.” Id.
Even assuming this holding is correct, with an unreasonable-delay claim like the
one at issue here, there is no administrative record that will form the basis for this Court’s
review. There is a difference between lawsuits that challenge a final agency action – like
that at issue in Atieh – and those that seek to compel an agency to act when the agency
has taken no action, like the claim at issue here. Friends of the Clearwater v. Dombeck,
222 F.3d 552, 560 (9th Cir. 2000).
As discussed, when a plaintiff challenges a final agency action, judicial review
normally is limited to the administrative record in existence at the time of the agency's
decision.” Id. “An action to compel an agency to [act], however, is not a challenge to a
final agency decision, but rather an action arising under 5 U.S.C. § 706(1), to ‘compel
agency action unlawfully withheld or unreasonably delayed.’” Id. “In such cases, review
is not limited to the record as it existed at any single point in time, because there is no
final agency action to demarcate the limits of the record.” Id. “The reason for this rule is
that when a court is asked to review agency inaction before the agency has made a final
decision, there is often no official statement of the agency's justification for its actions or
inactions.” San Francisco BayKeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002).
Because the Patels’ unreasonable-delay claim does not seek review of a final
agency decision and will not depend solely on the administrative record, screening the
claim for plausibility is appropriate. In the one case cited by the plaintiffs on this issue
that involved an unreasonable-delay claim, the court denied USCIS’s motion to dismiss,
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not because the motion was premature or otherwise inappropriate, but because the court
found the plaintiffs’ allegations sufficient to state a claim. Solis v. Cissna, No. CV 9:1800083-MBS, 2018 WL 3819099, at *5 (D.S.C. Aug. 10, 2018).
The question on this motion is whether the allegations asserted by the Patels, if
ultimately proved to be true, would establish an unreasonable-delay claim. The Patels
argue that, to survive a motion to dismiss, they only need allege that an agency action has
been “unreasonably delayed” without any supporting facts. (DE 12, Response at 19.) The
mere allegation that USCIS has unreasonably delayed action on their applications,
however, is a legal conclusion. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice” to state a claim. Ashcroft, 556
U.S. at 678. For purposes of a motion to dismiss, the Court “must take all of the factual
allegations in the complaint as true,” but the Court does not “accept as true a legal
conclusion couched as a factual allegation.” Id. To survive a motion to dismiss, the
factual allegations in the complaint “must be enough to raise a right to relief above the
speculative level.” Id. The plaintiff must plead enough facts to “state a claim to relief
that is plausible on its face” and to nudge his claim “across the line from conceivable to
plausible.” Id. at 680.
As to the kinds of facts that a plaintiff must allege to state an unreasonable-delay
claim, USCIS argues that the Court should consider the six-factor test set forth in
Telecommunications Research and Action Center (‘TRAC”) v. Federal Communications
Commission, 750 F.2d 70 (D.C. Cir. 1984). These 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
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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)).
These factors are not “ironclad,’ but rather are intended to provide “useful
guidance in assessing claims of agency delay.” Id. In determining whether the Patels have
sufficiently alleged an unreasonable-delay claim, the Court will consider the TRAC
factors as a useful guide. Nevertheless, the Patels do not necessarily need to make
allegations in the complaint regarding each of these factors to state an unreasonable-delay
claim. Moreover, allegations other than those set forth in the TRAC framework may help
to support the claim. “Each case must be analyzed according to its own unique
circumstances . . . Each case will present its own slightly different set of factors to
consider.” Air Line Pilots Ass'n, Int'l v. Civil Aeronautics Bd., 750 F.2d 81, 86 (D.C. Cir.
1984). A plaintiff must, however, allege facts from which it can be inferred that the
agency’s delay has been unreasonable.
In their complaint, the Patels allege that “there is no rule of reason controlling
USCIS’s U status waiting list decisions.” (DE 1, Complaint, ¶ 92.) They allege that the
agency does not decide eligibility for the waiting list on a “first in, first out basis.” (DE 1,
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Complaint, ¶ 93.) Instead, the Patels allege, USCIS “systematically prioritizes later filed
petitions over earlier filed petitions for U-status waiting list decisions.” (DE 1,
Complaint, ¶ 94.)
In response to the agency’s motion to dismiss, the Patels explain that USCIS
generally adjudicates U-status applications on a “first in, first out basis.” (DE 12,
Response at 22.) The Patels argue, however, that the agency’s exceptions to this policy
destroy the rule. They complain that the agency expedites U-status waiting list decisions
for various reasons outlined in the agency’s policy manual, for U-status applicants that
are in removal proceedings, and for U-status applicants that have final orders of removal.
The Patels also complain that USCIS adjudicates the applications of the principal
applicant’s family members (“derivative” applications) when it adjudicates the
principal’s application, which presumably moves the derivative applications ahead of the
applications of other principals. (DE 12, Response at 22.)
The agency’s process of adjudication is guided by a general rule that has some
exceptions. This constitutes a rule of reason. “USCIS's processing of first-filed petitions
before later-filed petitions, with a select few petitions being expedited subject to criteria
set forth by the agency, constitutes a ‘rule of reason’ under the first TRAC factor.”
Gonzalez, 364 F. Supp. at 584–86; See also Uranga 2020 WL 5763633, at *11. The
Patels do not allege that USCIS is not following its normal rules in processing their
applications or any other application.
The Patels have alleged an important interest at stake in the agency adjudication:
the ability to legally remain in the country. Their immigration status impacts not just their
economic wellbeing, but also their general health and welfare. The Patels allege that their
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petitions have been pending for about 48 months, which is a significant amount of time,
especially given the importance of the interest at stake.
Congress has announced that “[i]t is the sense of Congress that the processing of
an immigration benefit application should be completed not later than 180 days after the
initial filing of the application.” 8 U.S.C. § 1571(b). The provision applies to U-status
visa petitions. While this preamble is not binding, it is nonetheless at least an “indication
of the speed with which [Congress] expects the agency to proceed.” TRAC, 750 F.2d at
80. “[A]fter all, Congress had the option of saying nothing on the subject at all.” Uranga,
2020 WL 5763633, at *12.
The Patels allege, however, that it currently takes USCIS about 55 months to
make waiting-list decisions. (DE 1, Complaint, ¶ 48.) Thus, the Patels do not allege that
USCIS is somehow processing their U-Status applications differently than other
applicants or that their applications have been delayed beyond the norm. Uranga, 2020
WL 5763633, at *13 (“It is notable that plaintiff does not point to any unique
considerations that warrant an expedited review of his U-visa petition; nor does he
contend that the agency has treated him unfairly, or differently than any of the other tens
of thousands of applicants who have also waited far too long. “)
In determining whether the Patels’ claim should move forward to discovery, the
Court will also consider the effect of granting the Patels the relief they seek: an order
requiring the agency to make waiting-list decisions for all of them within 30 days. (DE 1,
Complaint, ¶ 144.) This comports with the fourth factor in the TRAC framework under
which “the court should consider the effect of expediting delayed action on agency
activities of a higher or competing priority.”
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USCIS argues that, if this Court orders that the Patels’ applications be moved to
the front of the line for processing, that will delay the processing of the applications that
are currently at the front of the line. The D.C. Circuit has declined to grant relief, even
though all the other TRAC factors favored the plaintiff, where “a judicial order putting
[the petitioner] at the head of the queue [would] simply move[ ] all others back one space
and produce[ ] no net gain.” Uranga, 2020 WL 5763633, at *12 (quoting Mashpee
Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003)).
The Patels seem to argue that moving their applications to the front of the line
would not affect the processing of any other application because U-status applications
can be processed concurrently. This cannot be. There is currently a backlog of U-status
visa applications, enough to cause the 55-month delay in waiting list decisions that the
Patels allege in their complaint. Moving any application to the front of any line for
processing would necessarily move others in that line back a space. See Uranga, 2020
WL 5763633, at *12 (Concluding that, where “[t]here are currently more than 152,000
pending principal U-visa applications, and there are only three service centers that
process them,” requiring USCIS to immediately adjudicate the plaintiff's U-status waitlist
eligibility “would merely move him up the line, and move everyone else back.”)
The Patels seek an order that would expedite the processing of their petitions.
“[T]hat would have . . . the effect of allowing the plaintiffs to jump the line, functionally
solving their delay problem at the expense of other similarly situated applicants.” Am.
Hosp. Ass'n v. Burwell, 812 F.3d 183, 192 (D.C. Cir. 2016). See also Alkassab v.
Rodriguez, No. 2:16-CV-1267-RMG, 2017 WL 1232428, at *5 (D.S.C. Apr. 3, 2017)
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(“The effect of compelling USCIS to adjudicate Plaintiff's asylum application would be
simply to bump him to the front of the queue, thwarting the Government's efforts to
prioritize certain groups of applicants (applications filed by children are, for example,
The Patels argue that, if their unreasonable-delay claim must be dismissed simply
because an order moving them to the front of the line will delay the processing of other
applications, then no plaintiff could ever state a claim for an unreasonably delayed
immigration benefit. The Court does not find that the Patels’ claim must be dismissed for
this reason alone. Instead, the Court has determined that, according to the Patels’
allegations, USCIS follows a rule of reason in processing U-status visa applications,
which consists of a general rule with exceptions. There is no allegation that USCIS has
not followed that rule of reason in processing the Patels’ applications. The processing of
the Patels’ applications has, thus far, not taken longer than the usual wait time for such
applications. In these circumstances, the Court agrees with the Fourth Circuit’s
admonition that USCIS “operates in an environment of limited resources, and how it
allocates these resources to address the burden of increasing claims is a calculation that
courts should be loathe to second guess.” Blanco de Belbruno v. Ashcroft, 362 F.3d 272,
280 (4th Cir. 2004).
The Patels have failed to state a claim that the USCIS has unreasonable delayed
an adjudication of their U-status visa petitions. Accordingly, that claim and their claim
for attorney’s fees under the Equal Access to Justice Act must be dismissed.
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For all these reasons, the Court hereby ORDERS that USCIS’s motion to
dismiss (DE 11) is GRANTED as follows:
1) The Patels’ claim that USCIS has unreasonably delayed granting them work
authorizations under 8 U.S.C.§ 1184(p)(6) (Count I) is dismissed for lack of
2) The Patels’ claim that USCIS has unreasonably delayed adjudication of their
petitions for U-status visas (Count II) is DISMISSED for failure to state a
3) The Patels’ claim under the Equal Access to Justice Act is DISMISSED for
failure to state a claim.
Dated January 08, 2021
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