Berduo v. Cissna et al

Filing 25

ORDER granting in part and denying in part 17 Motion to Dismiss. Defendants Motion to Dismiss Plaintiffs APA claim is Denied. Defendants Motion to Dismiss Plaintiffs mandamus and due process claims is Granted. Details set forth in Order. Signed by Honorable Margaret B Seymour on 10/12/2018.(vdru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Lorena Roblero Berduo,

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Plaintiff,
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v.
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L. Frank Cissna, Director, United States
)
Citizenship and Immigration Services,
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and United States Citizenship and
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Immigration Services,
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Defendants.
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____________________________________)

Civil Action No: 9:18-00082-MBS
OPINION AND ORDER

This matter is before the court on Defendants L. Frank Cissna and United States
Citizenship and Immigration Services’ (“USCIS”) (collectively “Defendants”) Motion to
Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 17. Plaintiff Lorena
Roblero Berduo (“Plaintiff”) filed her response in opposition to Defendants’ Motion to Dismiss,
ECF No. 20, to which Defendants replied. ECF No. 21. The court has federal question
jurisdiction over this matter pursuant to 28 U.S.C § 1331. For the reasons explained below,
Defendants’ Motion is granted in part and denied in part.1

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Also pending before the court are eight actions identical in their claims and requests for relief.
See Perez, et al. v. Cissna, et al., 2:18-cv-00069-MBS; Lopez, et al. v. Cissna, et al., 2:18-cv00071-MBS; Santiago, et al. v. Cissna, et al., 2:18-cv-00074-MBS; Gutierrez v. Cissna, et al.,
2:18-cv-00076-MBS; Mata v. Cissna, et al., 2:18-cv-00073-MBS; Martinez v. Cissna, et al.,
2:18-cv-00077-MBS; Solis, et al. v. Cissna, et al., 9:18-cv-00083-MBS; Urias, et al. v. Cissna, et
al., 9:18-cv-00093-MBS. On May 30, 2018, the court held a hearing on the then pending motion
to dismiss in Solis v. Cissna (hereafter, “Solis”), and on August 10, 2018, issued an opinion and
order granting the motion in part and denying it in part. Solis, 9:18-cv-00083-MBS, ECF No. 35.

I.

BACKGROUND

In 2000 Congress created the U nonimmigrant visa (“U-Visa”) with the passage of the
Victims of Trafficking and Violence Protection Act. Pub. L. No. 106–386, 114 Stat. 1464,
codified at 8 U.S.C. § 1101(a)(15)(U). Set aside for immigrant victims of serious crimes, the UVisa program was intended to strengthen the ability of law enforcement agencies to detect,
investigate, and prosecute crimes, while also protecting the victims of those crimes. Victims of
Criminal Activity: U Nonimmigrant Status, U.S. Citizenship and Immigration Services (October
9, 2018, 2:47 PM), https://www.uscis.gov/humanitarian/victims-human-trafficking-othercrimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-unonimmigrant-status. In order for a petitioner to qualify for the U-Visa, the Department of
Homeland Security must determine that: (1) the petitioner has “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 the United States.” 8 U.S.C. § 1101(a)(15)(U)(i)(I-IV). The
petitioner bears the burden of establishing eligibility. 8 C.F.R. § 214.14(c)(4).
To obtain a U-Visa, the petitioner must file a Petition for U Nonimmigrant Status (Form
I-918), a biometric fee or fee waiver request, and “initial evidence” in accordance with
instructions to the Form I-918 with USCIS. 8 C.F.R. § 214.14(c)(1). The petitioner must also
submit a Form I-918, Supplement B (U Nonimmigrant Status Certification), which is a form
signed by a designated law enforcement official within six months immediately preceding the
submission of petitioner’s application to the USCIS. 8 C.F.R. § 214.14(c)(2)(i). This form
certifies that the petitioner has been, is being, or is likely to be helpful to the investigation or

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prosecution of qualifying criminal activity. 8 C.F.R. § 214.14(c)(2)(i). Furthermore, the
petitioner must submit documentation that she has suffered direct or proximate harm from the
criminal activity; materials related to the petitioner’s physical or mental abuse as a victim of the
criminal activity; information the petitioner possesses regarding the criminal activity; evidence
of the petitioner’s helpfulness to law enforcement; evidence that the criminal activity violated
United States law or occurred in the United States; and a personal statement. See 8 C.F.R. §§
214.14(a)(14), (b), (c)(2).
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). The Waiting List provision reads:
All eligible petitioners who, due solely to the cap, are not granted U-1
nonimmigrant status must be placed on a waiting list and receive written notice of
such placement. Priority on the waiting list will be determined by the date the
petition was filed with the oldest petitions receiving the highest priority. In the next
fiscal year, USCIS will issue a number to each petition on the waiting list, in the
order of highest priority, providing the petitioner remains admissible and eligible
for U nonimmigrant status. After U-1 nonimmigrant status has been issued to
qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant
numbers for that fiscal year will be issued to new qualifying petitioners in the order
that the petitions were properly filed. USCIS will grant deferred action or parole to
U-1 petitioners and qualifying family members while the U-1 petitioners are on the
waiting list. USCIS, in its discretion, may authorize employment for such
petitioners and qualifying family members.
8 C.F.R. § 214.14(d)(2).
Plaintiff’s Amended Complaint
Plaintiff is a Mexican national who resides in Beaufort County, South Carolina. ECF No.
15 at ¶ 1. According to her Amended Complaint, Plaintiff was the victim of criminal domestic
violence in the United States and therefore qualifies as a victim of a felonious assault. Id. at ¶
25. Plaintiff alleges that she suffered substantial physical and mental abuse as a result of the

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crime; that the crime was the direct and proximate cause of such harm; a certifying agency
determined that she was the victim of a qualifying crime; a certifying agency determined that she
was helpful in the investigation or prosecution of the crime; and that a certifying agency issued a
U-Visa certification to her. Id. at ¶¶ 27-32. Plaintiff asserts that she submitted a U-Visa
application to USCIS on May 18, 2015. Id. at ¶ 33.
Plaintiff alleges that by May 20, 2015, the Vermont Service Center processed the
application and it was ready for adjudication. ECF No. 15 at ¶ 34. According to Plaintiff, since
December 14, 2015, her application has been “adjudications ready,” sitting on a shelf located at
“1129 – LEM4_SHLF – 1129.” Id. at ¶ 36. Plaintiff further alleges that USCIS has made UVisa Waiting List decisions on other U-Visa applications that were filed after her application.
Id. at ¶ 38. Plaintiff contends that because later filed applications have been adjudicated before
her application, USCIS does not adjudicate U-Visa Waiting List decisions in the order in which
they are received. Id. at ¶¶ 40-42. As such, Plaintiff explains, there is no “line” with regard to
the Waiting List. Id. at ¶ 95. Plaintiff asserts that, “[b]ecause USCIS has made U-Visa Waiting
List decisions on applications that were filed after Plaintiff’s, USCIS is treating Plaintiff
differently than it treats other U-Visa applicants.” Id. at ¶ 50. Plaintiff further claims that the
processing times published on USCIS’s website are inaccurate, and that the delay Plaintiff has
experienced is longer than the processing time published. Id. at ¶¶ 43, 44.
Plaintiff ultimately states three claims: (1) that USCIS has not met its ministerial duty to
“make U-Visa Waiting List decisions for eligible U-Visa applicants,” pursuant to 8 C.F.R. §
214.14(d)(2), and, as such, Plaintiff is entitled to mandamus relief; (2) that USCIS has
unreasonably delayed adjudicating Plaintiff’s U-Visa application in violation of the
Administrative Procedure Act (“APA”) 5 U.S.C. § 555(b); and (3) that USCIS has unreasonably

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delayed the initial prima facie determination on the U-Visa application,2 violating Plaintiff’s due
process rights. ECF No. 15 at ¶¶ 59–69, 70–107, 108–119.
Plaintiff seeks an order from the court declaring that it is unreasonable for USCIS to
delay its decision to place a U-Visa petitioner on the Waiting List for thirty-four months. ECF
No. 15 at ¶ 127. Additionally, Plaintiff seeks an order from the court compelling USCIS to
make decisions about whether to place U-Visa petitioners on the U-Visa Waiting List. Id. at ¶
128. Plaintiff further seeks an order from the court compelling USCIS to make a decision within
seven days about whether to place Plaintiff on the Waiting List. Id. at ¶ 129. Plaintiff also seeks
an order from the court compelling USCIS to comply with its constitutional, statutory, and
regulatory obligation in making U-Visa Waiting List Decisions. Id. at ¶ 130. Lastly, Plaintiff
requests reasonable attorney’s fees and the entire cost of litigation. Id. at ¶ 131.
II.

LEGAL STANDARD

A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be
granted tests the legal sufficiency of a complaint. Schatz v. Rosenberg, 943 F.2d 455, 489 (4th
Cir. 1991). While the complaint need not be minutely detailed, it must provide enough factual
details to put the opposing party on fair notice of the claim and the grounds upon which it rests.
Bell Atl. Corp. v. Twombly, 550 U.S 544, 555 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47
(1957)).
In order to withstand a motion to dismiss, a complaint must contain factual content that
allows the court to reasonably infer the defendant is liable for the alleged misconduct. Ashcroft
v. Iqbal, 556 U.S 662, 678 (2009). “Facts that are ‘merely consistent with’ liability do not

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At the hearing on the motion to dismiss in Solis, Defendants claimed that there is no “prima
facie determination” as to U-Visa eligibility. Solis, 9:18-cv-00083, ECF No. 30.
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establish a plausible claim to relief.” United States ex rel. Nathan v. Takeda Pharms. N. Am.,
Inc., 707 F.3d 451, 455 (4th Cir. 2013) (quoting Ashcroft, 556 U.S. at 678). The court must
accept the allegations in the complaint as true, and all reasonable factual inferences must be
drawn in favor of the party opposing the motion. Id. at 679. If the court determines that those
factual allegations can “plausibly give rise to an entitlement to relief,” dismissal is not warranted.
Id. To determine plausibility, a court is to “draw on its judicial experience and common sense.”
Id. “But where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” Id. (citing Fed. R. Civ. P. 8(a)(2)).
III.

DISCUSSION

A. Mandamus Relief
Plaintiff contends that she has alleged sufficient facts to state a claim for mandamus
relief, and, as such, Defendants’ Motion to Dismiss should be denied. The mandamus remedy is
a “drastic one” reserved for “extraordinary situations” involving the performance of official acts
or duties. Kerr v. United States Dist. Court for the N. Dist. of Cal., 426 U.S. 394, 402 (1976).
Accordingly, as a condition for issuance of the writ, the party seeking it must satisfy “the burden
of showing that his right to issuance of the writ is clear and indisputable.” Kerr, 426 U.S. at 403.
To that end, she must demonstrate not only that she has a clear right to the relief sought but also
that the responding party has a clear duty to perform the act amounting to the relief sought. See
In re First Fed. Sav. & Loan Ass’n of Durham, 860 F.2d 135, 138 (4th Cir. 1988). While the
writ is recognized at law, it is administered with equitable principles in the interest of justice and
at the discretion of the issuing court. Kerr, 426 U.S. at 403.

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Central to Plaintiff’s Amended Complaint is the belief that USCIS has stopped making
U-Visa Waiting List determinations, or, alternatively, that USCIS has stopped making U-Visa
Waiting List decisions for U-Visa petitioners who are not in removal proceeding or subject to a
final order of removal. ECF No. 15 at ¶¶ 51–52. Thus, Plaintiff requests a court order
compelling USCIS to make U-Visa Waiting List determinations for pending U-Visa
Applications. Id. at ¶¶ 68–69.
Since Plaintiff’s Amended Complaint was filed, the court has become aware of two
stipulated dismissals of substantively similar complaints assigned to this court. See Erika Janeth
Esparza Hernandez, et al. v. Cissna, et al., 2:18-cv-00075-MBS; Estela Cruz Hernandez, et al. v.
Cissna, et al., 9:18-cv-00081-MBS. The stipulated dismissals state, “United States Citizenship
and Immigration Services has begun to adjudicate Plaintiffs’ petitions for U nonimmigrant
status. Accordingly, the parties stipulate and agree that this action should be dismissed.” Erika
Janeth Esparza Hernandez, ECF No. 19; Estela Cruz Hernandez, ECF No. 25.
Based on these dismissals, the court finds that Defendants are in fact adjudicating
applications.3 The court concludes that Plaintiff has failed to state a plausible claim for the
extraordinary remedy of mandamus relief. Defendants’ Motion is granted as to Plaintiff’s
mandamus claim.
B. APA Relief
Courts have jurisdiction under the APA to hear claims brought against an agency for
unreasonable delay so long as judicial review is not precluded by statute and agency action is not
committed to agency discretion by law. 5 U.S.C. §§ 701–706; see Asheville Tobacco Bd. of

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On July 16, 2018, the court held a status conference with the parties in Solis regarding the
stipulated dismissals. Solis, 9:18-cv-0083 at ECF No. 34.
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Trade, Inc. v. Fed. Trade Comm’n, 294 F.2d 619, 627 (4th Cir. 1961). The APA provides that,
“[w]ith due regard for the convenience and necessity of the parties or their representatives and
within a reasonable time, each agency shall proceed to conclude a matter presented to it.” 5
U.S.C. § 555(b). Moreover, § 706 of the APA states that the reviewing court “shall compel
agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). “Thus, 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) (emphasis in original).
As of the date her Amended Complaint was filed, Plaintiff’s application had been
pending for thirty-four months. ECF No. 15 at ¶ 71. Plaintiff contends that placing petitioners
on the Waiting List is not a discretionary decision, and that Defendants have a duty under the
APA to take action to determine whether or not a U-Visa petitioner should be placed on the
Waiting List. Id. at ¶¶ 72–73. Plaintiff alleges that she is entitled to agency action, that the
agency action has been unreasonably delayed because no action has been taken in her case in
thirty-four months, and that she has been adversely affected or aggrieved as a result of the delay.
ECF No. 20 at 4. Plaintiff contends she has alleged sufficient facts to state a plausible claim
under the APA. Id. The court agrees.
Because Plaintiff seeks adjudication of her application within a reasonable time, the court
has jurisdiction under the APA to hear Plaintiff’s claim. Alkassab v. Rodriguez, No. 2:16-CV1267-RMG, 2017 WL 1232428, at *5 (D.S.C. Apr. 3, 2017) (citing Kim v. Ashcroft, 340 F.
Supp. 2d 384, 393 (S.D.N.Y. 2004) (noting the difference between a cognizable APA claim
where a plaintiff seeks adjudication of his application within a reasonable time, and where a
plaintiff seeks review of a decision denying his application)). The court in Kim explained, “the

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[United States Bureau of Citizenship & Immigration Services] simply does not possess
unfettered discretion to relegate aliens to a state of ‘limbo,’ leaving them to languish there
indefinitely. This result is explicitly foreclosed by the APA.” Kim, 340 F. Supp. 2d at 393.
The court finds that Plaintiff’s Amended Complaint states “enough facts to state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (2007). Therefore, the court
denies Defendants’ Motion to Dismiss Plaintiff’s APA claim.
C. Due Process
When evaluating due process claims, courts consider (1) whether there is a property or
liberty interest at stake, and (2) whether a process unconstitutionally deprived someone of that
interest. See Stewart v. Bailey, 7 F.3d 384, 392 (4th Cir. 1993). A party who is unable to
identify a property or liberty interest cannot successfully assert a due process claim. See Smith v.
Ashcroft, 295 F.3d 425, 429 (4th Cir. 2002). The mere expectation of a statutory benefit is not
enough, but a statute that grants an entitlement and “meaningfully” limits the discretion of those
who provide the entitlement triggers constitutional protections. See id. at 429–30. Statutes that
only provide discretionary relief, therefore, do not create a property or liberty interest subject to
the Due Process Clause. See id. at 430.
U-Visas are a discretionary form of relief. See 8 C.F.R. §§ 214.14(c)(4), (c)(5)(i)
(“USCIS will determine, in its sole discretion, the evidentiary value of previously or
concurrently submitted evidence, including Form I–918, Supplement B, ‘U Nonimmigrant Status
Certification.’”); 8 C.F.R. § 214.14(c)(5)(i) (“If USCIS determines that the petitioner has met the
requirements for U–1 nonimmigrant status, USCIS will approve Form I–918.”); see also
Maldonado-Guzman v. Sessions, 715 F. App’x 277, 284 (4th Cir. 2017) (citing Torres-Tristan v.
Holder, 656 F.3d 653, 656 n.3 (7th Cir. 2011) (“A person who meets the statutory criteria is only

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eligible for … a [U]-visa, [and is] not entitled to one as a matter of right.”)); Wright v. INS, 379
F.2d 275 (6th Cir. 1967) (“An alien does not obtain a vested right upon approval of a visa
petition”).
Plaintiff contends that she has a legitimate claim of entitlement to a decision on whether
she should be placed on the Waiting List within a reasonable amount of time. ECF No. 15 at ¶
109; ECF No. 20 at 10. The court finds that Plaintiff’s application does not create a liberty or
property interest because the U-Visa is a discretionary form of relief. Defendants’ Motion to
Dismiss Plaintiff’s due process claim is granted.
IV.

CONCLUSION

For these reasons, Defendants’ Motion to Dismiss is denied in part and granted in part.
Defendants’ Motion to Dismiss Plaintiff’s APA claim is DENIED. Defendants’ Motion to
Dismiss Plaintiff’s mandamus and due process claims is GRANTED.
IT IS SO ORDERED.

/s/Margaret B. Seymour_________
Margaret B. Seymour
Senior United States District Judge
October 12, 2018
Charleston, South Carolina

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