1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 BERTA ALICIA LUJANO GONZALEZ, No. 2:20-cv-1262 WBS JDP JOSE LUIS SALAZAR JARAMILLO 13 Plaintiffs, 14 ORDER RE: DEFENDANTS’ MOTION v. TO DISMISS 15 UNITED STATES DEPARTMENT OF 16 HOMELAND SECURITY, UNITED STATES CITIZENSHIP AND IMMIGRATION 17 SERVICES, CHAD F. WOLF, Acting Secretary of United States 18 Department of Homeland Security, and KENNETH T. CUCCINELLI, 19 Senior Official Performing the Duties of the Director, USCIS, 20 Defendants. 21
22 ----oo0oo---- 23 Plaintiffs Berta Alicia Lujano Gonzalez and Jose Luis 24 Salazar Jaramillo brought this action against the United States 25 Department of Homeland Security (“DHS”), the United States 26 Citizenship and Immigration Service (“USCIS”), Chad Wolf, Acting 27 DHS Secretary, and Kenneth Cuccinelli, Senior Official Performing 28 1 the Duties of the Director, USCIS, (collectively “defendants”) 2 alleging unlawful delays in the processing of their requests for 3 nonimmigrant classification and work authorization. Defendants 4 have moved to dismiss plaintiffs’ claims under Federal Rules of 5 Civil Procedure 12(b)(1) and 12(b)(6). (See Defs.’ Mot. to 6 Dismiss (Docket No. 14).) 7 I. Legal Standard 8 A. Failure to State a Claim 9 Federal Rule of Civil Procedure 12(b)(6) allows for 10 dismissal when the plaintiff’s complaint fails to state a claim 11 upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The 12 inquiry before the court is whether, accepting the allegations in 13 the complaint as true and drawing all reasonable inferences in 14 the plaintiff’s favor, the complaint has stated “a claim to 15 relief that is plausible on its face.” Bell Atl. Corp. v. 16 Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard is 17 not akin to a ‘probability requirement,’ but it asks for more 18 than a sheer possibility that a defendant has acted unlawfully.” 19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare 20 recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Id. 22 B. Lack of Subject Matter Jurisdiction 23 Dismissal under Rule 12(b)(1) for lack of subject 24 matter jurisdiction is appropriate if the complaint, considered 25 in its entirety, fails to allege facts on its face that are 26 sufficient to establish subject matter jurisdiction. In re 27 Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 28 981, 984-85 (9th Cir. 2008). A defendant can challenge subject 1 matter jurisdiction in one of two ways--through a facial attack 2 or a factual attack. A facial attack “accepts the truth of the 3 plaintiff's allegations but asserts that they are ‘insufficient 4 on their face to invoke federal jurisdiction.’” Leite v. Crane 5 Co., 749 F.3d 1117, 1121 (9th Cir. 2014). A factual attack 6 “contests the truth of the plaintiff's factual allegations, 7 usually by introducing evidence outside the pleadings.” Id. 8 “The plaintiff bears the burden of proving by a preponderance of 9 the evidence that each of the requirements for subject-matter 10 jurisdiction has been met.” Id. 11 II. Factual Background and Relevant Allegations 12 This case arises out of defendants’ delay in 13 responding to plaintiffs’ applications for “U Nonimmigrant 14 Status” and employment authorization in October 2016. (See 15 generally First Amended Compl. (“FAC”) (Docket No. 9).) Federal 16 question jurisdiction under 28 U.S.C. § 1331 is predicated upon 17 the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. 18 A. The “U Visa” Program 19 In October 2000, as part of the Victims of Trafficking 20 and Violence Protection Act of 2000 (“VTVPA”), Pub. L. 106-386, 21 114 Stat. 1464, Congress created the U nonimmigrant 22 classification (the “U visa”). See 8 U.S.C. § 1101(a)(15)(U). 23 An individual is eligible for a U visa if USCIS determines that 24 the individual (1) is a victim of a qualifying crime committed in 25 the United States; (2) has suffered physical or mental abuse as a 26 result; (3) has credible or reliable information about the crime; 27 (4) has been, is being, or is likely to be helpful to law 28 enforcement in investigating or prosecuting the crime; and (5) is 1 admissible to the United States. 8 U.S.C. § 1182(a); 8 C.F.R. §§ 2 214.14(b), 214.14(c), 214.1(a)(3)(i). 3 An individual may apply for a U visa using a “Form I- 4 918” petition. 8 U.S.C. § 1101(a)(15)(U). Upon approval by 5 USCIS, the petitioner receives lawful U-1 nonimmigration status 6 and employment authorization for four years. 8 U.S.C. 7 § 1184(p)(6). He or she may also petition for certain qualifying 8 relatives. 8 U.S.C. § 1101(a)(15)(U)(ii). 9 B. The Regulatory Waitlist 10 The number of aliens who may be issued a U visa in the 11 United States is limited by statute to 10,000 per year. See 8 12 U.S.C. § 1184(p)(2)(A). USCIS has enacted rules establishing a 13 regulatory waitlist process for petitions that would be 14 approvable but for the fact that the annual statutory cap had 15 already been met. See 8 C.F.R. § 214.14(d)(2). Submission of a 16 petition does not automatically place a petitioner on the 17 regulatory waitlist; USCIS must first determine that the petition 18 submitted would be approvable in all respects. See id. Part of 19 this process involves verifying that the petitioner has submitted 20 a required certification from a “Federal, State, or local law 21 enforcement official, prosecutor, judge, or other Federal, State, 22 or local authority investigating criminal activity” stating that 23 the petitioner “has been helpful, is being helpful, or is likely 24 to be helpful” to the authority in investigating a qualifying 25 crime. See 8 U.S.C. §§ 1101(a)(15)(U)(i)(III)-(IV); 8 U.S.C. § 26 1184(p)(1). 27 Once USCIS determines that a petition is grantable in 28 all respects, the petitioner “must be placed on [the] waiting 1 list and receive written notice of such placement.” 8 C.F.R. § 2 214.14(d)(2). However, no statute or regulation requires USCIS 3 to determine whether a petition is eligible for placement on the 4 regulatory waitlist within a specified period of time or in any 5 particular order. USCIS regulations merely require that 6 “[p]riority on the waiting list . . . be determined by the date 7 the petition was filed with the oldest petitions receiving the 8 highest priority.” Id. 9 When USCIS places a petition on the regulatory 10 waitlist, the petitioner and his or her qualifying family members 11 receive “deferred action” (a discretionary determination by the 12 federal government to defer a removal action of the petitioner 13 and qualifying family members), provided they are in the United 14 States. Id. 15 C. U-Related Employment Authorization 16 Non-citizens are only lawfully permitted to work in the 17 United States if they are lawfully admitted for permanent 18 residence or otherwise authorized to be employed. 8 U.S.C. § 19 1324a; 8 C.F.R. § 274a.12. USCIS is required by statute to grant 20 work authorization in the form of “employment authorization 21 documents” to petitioners who receive a U visa. See 8 U.S.C. § 22 1184(p)(3)(B). Additionally, the Secretary of Homeland Security 23 “may grant work authorization to any alien who has a pending, 24 bona fide application for [a U visa].” 8 U.S.C. § 1184(p)(6). 25 Petitioners may receive employment authorization documents once 26 they have been placed on the waitlist, but USCIS regulations 27 leave this decision to the agency’s discretion. See 8 C.F.R. § 28 214.14(d)(2) (“USCIS, in its discretion, may authorize employment 1 for such petitioners [who are placed on the waitlist] and 2 qualifying family members.”). 3 Under the USCIS regulations, petitioners for a U visa 4 do not need to submit a separate request or fill out separate 5 paperwork to obtain work authorization, because the Form I-918 6 petition contains a box petitioners can check to indicate they 7 are also seeking work authorization and thus “serves the dual 8 purpose of requesting U nonimmigrant status and . . . employment 9 authorization.” New Classification for Victims of Criminal 10 Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 11 53,014, 53,029 (Sep. 17, 2007). U visa petitioners placed on the 12 waitlist are also eligible for employment authorization based on 13 the fact that they have been granted deferred action, but they 14 must apply separately to receive employment authorization 15 documents. 8 C.F.R. § 274a.12(c)(14); 8 C.F.R. § 1.2; 8 C.F.R. § 16 103.2(a)(1). 17 D. The 90-Day Adjudication Timeframe and Interim Employment Authorizations 18 19 Former 8 C.F.R. § 274a.13(d) required USCIS to 20 adjudicate applications for work authorization within 90 days. 21 See 8 C.F.R. § 274a.13(d) (2016). If the application for work 22 authorization was not adjudicated within 90 days of USCIS’ 23 receipt, the regulation called for USCIS to grant interim 24 employment authorization documents that expire after a period of 25 no greater than 240 days. See id. 26 Effective January 17, 2017, however, the 90-day 27 processing deadline and authorization to issue interim employment 28 authorization documents were eliminated via rulemaking. See 81 1 Fed. Reg. 82398 (Nov. 18, 2016) (“Final Rule”). As a result of 2 the Final Rule, 8 C.F.R. § 274a.13(d) no longer requires that 3 USCIS adjudicate work authorization applications within 90 days, 4 and no longer authorizes the agency to issue interim employment 5 authorization documents. 6 E. Plaintiffs’ Claims 7 Plaintiffs submitted I-918 petitions to obtain U visas 8 and work authorization in October 2016, along with required 9 certifications verifying that they had in fact been victims of a 10 qualifying crime and had or were likely to be helpful to law 11 enforcement authorities in investigating the crime. (FAC ¶¶ 48- 12 54.) Plaintiffs submitted their petitions before the amendments 13 to 8 C.F.R. § 274a.13(d), which removed USCIS’ 90-day processing 14 deadline, went into effect in January 2017. (See id.) To date, 15 USCIS has not issued a decision as to whether to place plaintiffs 16 on the regulatory waitlist, grant deferred action, or issue 17 employment authorization documents. (Id.) 18 Plaintiffs allege that USCIS has unreasonably delayed 19 in processing their I-918 petitions, “as Plaintiff believes (and 20 Defendants can confirm) other applicants who have filed their I- 21 918 applications after theirs were filed have already been placed 22 on the waitlist or have been issued employment authorization 23 documents and/or granted deferred action status by USCIS.” (See 24 FAC ¶¶ 55-56.) Plaintiffs further allege that USCIS has issued 25 fewer waitlist determinations each year since 2018, despite an 26 increase in U visa applications being filed. (See FAC ¶ 57.) 27 Plaintiffs filed this lawsuit in June 2020, 28 approximately 44 months after submitting their I-918 petitions. 1 (See Docket No. 1.) Plaintiffs’ First Amended Complaint sets 2 forth five claims for relief, styled as “Causes of Action.” (See 3 FAC ¶¶ 61-170.) In the First Cause of Action, plaintiffs claim 4 that defendants violated APA § 706(1) by unreasonably delaying or 5 unlawfully withholding a decision on plaintiffs’ requests for 6 work authorization under 8 U.S.C. § 1184(p)(6) and 8 C.F.R. § 7 274a.12(c)(14). (See FAC ¶¶ 61-85.) In the Second Cause of 8 Action, plaintiffs claim that defendants violated APA § 706(1) by 9 unreasonably delaying or unlawfully withholding a decision on 10 plaintiffs’ requests for work authorization under the version of 11 8 C.F.R. § 274a.13(d) in effect when plaintiffs submitted their 12 petitions by failing to adjudicate their requests for work 13 authorization within 90 days and by failing to issue interim 14 employment authorization documents. (See FAC ¶¶ 86-102.) In the 15 Third Cause of Action, plaintiffs claim that defendants violated 16 the APA, 5 U.S.C. § 555(b), § 706(1) by unreasonably delaying or 17 unlawfully withholding a determination as to whether plaintiffs 18 belong on the regulatory waitlist for a U visa. (See FAC ¶¶ 103- 19 55.) In the Fourth Cause of Action, plaintiffs claim that 20 defendants violated the Freedom of Information Act (“FOIA”), 5 21 U.S.C. § 552(a)(6)(A)(i), by withholding documents requested by 22 plaintiffs that make up their alien registration files. (See FAC 23 ¶¶ 156-64.) In the Fifth Cause of Action, plaintiffs claim they 24 are entitled to attorney’s fees under the Equal Access to Justice 25 Act, 5 U.S.C. § 504; 28 U.S.C. § 2412. (See FAC ¶¶ 164-70.) 26 III. Discussion 27 A. First Cause of Action 28 Section 1184(p)(6) states that “[t]he Secretary may 1 grant work authorization to any alien who has a pending, bona 2 fide application for nonimmigrant status under section 3 1101(a)(15)(U) of this title.” 8 U.S.C. § 1184(p)(6). 4 Defendants contend that the APA and the Immigration and 5 Nationality Act (“INA”) deprive the court of jurisdiction to hear 6 plaintiff’s claim that they have unlawfully withheld or 7 unreasonably delayed issuing a decision under the statute because 8 their decision whether to issue employment authorization 9 documents under the statute is purely discretionary. (See Defs.’ 10 Mot. to Dismiss at 15-17.) The court agrees. 11 Although section 706(1) of the APA states that a 12 “reviewing court shall compel agency action unlawfully withheld 13 or unreasonably delayed,” 5 U.S.C. § 706(1), section 701 limits 14 judicial review of agency action when “(1) statutes preclude 15 judicial review; or (2) agency action is committed to agency 16 discretion by law.” 5 U.S.C. § 701(a). “[A] claim under 17 § 706(1) can proceed only where a plaintiff asserts that an 18 agency failed to take a discrete agency action that it is 19 required to take.” Norton v. S. Utah Wilderness Alliance, 542 20 U.S. 55, 64 (2004) (emphasis in original). 21 Similarly, the INA states that “no court shall have 22 jurisdiction to review any other decision or action of . . . the 23 Secretary of Homeland Security the authority for which is 24 specified under this subchapter to be in the discretion of the 25 Attorney General or the Secretary of Homeland Security . . . .” 26 8 U.S.C. § 1252(a)(2)(B)(ii). 27 Section 1184(p)(6) clearly grants defendants discretion 28 to adjudicate requests for work authorization. See Gonzalez v. 1 Cissna, 364 F. Supp. 579, 584 (E.D.N.C. 2019); Uranga, 2020 WL 2 5763633, at *7-*10; Ramires, 2020 WL 6146393, at *4. The statute 3 states that “[t]he Secretary may grant work authorization” to a 4 petitioner with a pending, bona fide application, but nothing in 5 the statute indicates that the Secretary is required to evaluate 6 whether a petitioner’s application is bona fide or whether work 7 authorization is warranted prior to the petitioner being placed 8 on the waitlist. See 8 U.S.C. § 1184(p)(6) (emphasis added). 9 The use of the word “may” is a clear grant of discretion to 10 USCIS. See Uranga, 2020 WL 5763633, at *8; Maine Cmty. Health 11 Options v. United States, 140 S. Ct. 1308, 1320 (2020) (“Unlike 12 the word ‘may,’ which implies discretion, the word ‘shall’ 13 usually connotes a requirement.”); Rastelli v. Warden Metro. 14 Corr. Ctr., 782 F.2d 17, 23 (2d Cir. 1986) (“The use of . . . 15 ‘may review’ instead of ‘shall review’ suggests a discretionary 16 rather than mandatory process.”). The statute does not mandate 17 that USCIS grant work authorization to pending, bona fide 18 applicants, or even direct USCIS to promulgate regulations 19 interpreting what makes an application “bona fide” or otherwise 20 implementing the statute. See Ramires, 2020 WL 6146393 at *4. 21 By contrast, section 1184(p) does place a clear duty on 22 USCIS to grant employment authorization to petitioners who 23 receive a U visa. See 8 U.S.C. § 1184(p)(3)(B) (“the Attorney 24 General shall, during the period those aliens are in lawful 25 temporary resident status under that subsection, provide the 26 aliens with employment authorization.” (emphasis added)). 27 Additionally, section 1184(p)(6) itself utilizes mandatory 28 language multiple times when addressing certain extensions of U 1 visas: 2 The authorized period of status of an alien as a nonimmigrant under section 3 1101(a)(15)(U) of this title shall be for a period of not more than 4 years, but shall 4 be extended upon certification from a . . . law enforcement official, prosecutor, judge, 5 or other . . . authority investigating or prosecuting criminal activity described in 6 section 1101(a)(15)(U)(iii) of this title that the alien's presence in the United 7 States is required to assist in the investigation or prosecution of such 8 criminal activity . . . . Such alien's nonimmigrant status shall be extended beyond 9 the 4-year period authorized under this section if the alien is eligible for relief 10 under section 1255(m) of this title and is unable to obtain such relief because 11 regulations have not been issued to implement such section and shall be extended 12 during the pendency of an application for adjustment of status under section 1255(m) 13 of this title. 14 8 U.S.C. § 1184(p)(6) (emphasis added). 15 Only in the last sentence of section 1184(p)(6) did 16 Congress state that the “Secretary may grant work authorization 17 to any alien who has a pending, bona fide application . . . .” 18 Id. In other words, Congress knew the words to choose if had 19 intended to require the Secretary to adjudicate every U visa 20 application to determine if it was bona fide and, thus, whether 21 work authorization should issue. See Lindley v. FDIC, 733 F.3d 22 1043, 1056 (11th Cir. 2013) (“[W]here Congress knows how to say 23 something but chooses not to, its silence is controlling.”). 24 Accordingly, the court concludes that section 25 1184(p)(6) places the decision whether to award work 26 authorization to petitioners who have not yet been placed on the 27 regulatory waitlist within USCIS’ discretion. Because the APA 28 1 and the INA preclude judicial review of discretionary decisions 2 by USCIS, the court lacks subject matter jurisdiction over 3 plaintiffs’ claim. See 5 U.S.C. § 701(a); 8 U.S.C. 4 § 1252(a)(2)(B)(ii). The First Cause of Action of plaintiffs’ 5 FAC (FAC ¶¶ 61-85) will therefore be dismissed. 6 B. Second Cause of Action 7 The version of 8 C.F.R. § 274a.13(d) that was in effect 8 at the time plaintiffs filed their petitions for a U visa stated 9 “USCIS will adjudicate the application within 90 days from the 10 date of receipt of the application” and “[f]ailure to complete 11 the adjudication within 90 days will result in the grant of an 12 employment authorization document for a period not to exceed 240 13 days.” 8 C.F.R. § 274a.13(d) (2016). In other words, USCIS was 14 required to adjudicate a request for employment authorization 15 within 90 days of receiving a petitioner’s application, and if it 16 failed to do so, it was required to issue the petitioner interim 17 employment authorization documents for a period no greater than 18 240 days. See id. 19 Under the current version of the regulation, however, 20 USCIS is no longer required to adjudicate applications for work 21 authorization within 90 days and is not authorized to issue 22 interim employment authorization documents. See 8 C.F.R. § 23 274a.13(d). Defendants contend that the court should apply the 24 current version of the regulation, and that under this version, 25 the court does not have jurisdiction to review plaintiff’s claim 26 because USCIS is under no legal obligation to act. See Norton, 27 542 U.S. at 64 (“[A] claim under § 706(1) can proceed only where 28 a plaintiff asserts that an agency failed to take a discrete 1 agency action that it is required to take.”). 2 To determine whether subject matter jurisdiction over 3 this claim exists, then, the court must first determine which 4 version of 8 C.F.R. § 274a.13(d) to apply. Because the 2016 5 version of the regulation was in effect when plaintiffs filed 6 their petitions, and was still in effect when the 90-day period 7 expired and the issuance of interim employment authorization 8 documents was mandatory, the court concludes that it applies, for 9 the reasons discussed below. 10 “The principle that the legal effect of conduct should 11 ordinarily be assessed under the law that existed when the 12 conduct took place has timeless and universal human appeal.” 13 Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 14 (1990). “Elementary considerations of fairness dictate that 15 individuals should have an opportunity to know what the law is 16 and to conform their conduct accordingly; settled expectations 17 should not be lightly disrupted.” Landgraf v. USI Film Prods., 18 511 U.S. 244, 265 (1994). “Retroactivity is not favored in the 19 law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). 20 “Congressional enactments and administrative rules will 21 [therefore] not be construed to have retroactive effect unless 22 their language requires this result.” Id. “By the same 23 principle, a statutory grant of legislative rulemaking authority 24 will not, as a general matter, be understood to encompass the 25 power to promulgate retroactive rules unless that power is 26 conveyed by Congress in express terms.” Id. 27 To determine whether a statute or regulation may be 28 retroactively applied, courts generally employ a two-step 1 framework. Landgraf, 511 U.S. at 265. First, the court looks to 2 whether Congress expressly provided that the statute be applied 3 retroactively. Id. at 270. If “the statute contains no such 4 express command,” a court moves on to the second step, which 5 examines whether the law has a “retroactive effect.” Id. at 280. 6 This analysis requires an assessment of “the nature and extent of 7 the change in the law and the degree of connection between the 8 operation of the new rule and a relevant past event,” as well as 9 “whether the new provision attaches new legal consequences to 10 events completed before its enactment.” Id. at 270. A statute 11 is impermissibly retroactive if it “takes away or impairs vested 12 rights acquired under existing laws, or creates a new obligation, 13 imposes a new duty, or attaches a new disability, in respect to 14 transactions or considerations already past.” Id. at 269 15 (internal quotation marks and citations omitted). 16 To determine whether rights have “vested,” the court 17 looks to whether the person has “availed himself of them or 18 [taken] action that enhanced their significance to him in 19 particular.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 44 n.10 20 (2006). Any action taken must “elevate [the expectation] above 21 the level of hope,” and therefore actions that do little to 22 substantially further the individual's expectation of relief are 23 insufficient to create a vested right. Id. 24 Here, there is no provision in the immigration statutes 25 that explicitly authorizes USCIS to promulgate retroactive rules, 26 and defendants do not contend otherwise. (See Defs.’ Mot. to 27 Dismiss at 19-20.) The court will therefore move on to the 28 second step of the Landgraf analysis and ask whether applying the 1 amended regulation would take away “vested rights [that were] 2 acquired under existing laws.” Vartelas v. Holder, 566 U.S. 257, 3 266 (2012). 4 Plaintiffs applied for work authorization on October 3, 5 2016, when they submitted their Form I-918 petition for a U visa. 6 See 72 Fed. Reg. 53,014, 53,029 (Sep. 17, 2007) (indicating that 7 the Form I-918 petition “serves the dual purpose of requesting U 8 nonimmigrant status and . . . employment authorization”). At the 9 time, they had the right to have the request adjudicated within 10 90 days, or USCIS was required to issue interim employment 11 authorization documents. 8 C.F.R. § 274a.13(d) (2016). 12 Plaintiffs availed themselves of this right by submitting their 13 petition for a U visa and work authorization. See Fernandez- 14 Vargas, 548 U.S. at 44 n.10; Uranga, 2020 WL 5763633, at *15 15 (holding that applying amended version of 8 C.F.R. § 274a.13(d) 16 would interfere with right of plaintiff that vested when he 17 applied for work authorization); Rodriguez v. Nielson, No. 16-CV- 18 7092 (MKB), 2018 WL 4783977, at *18 (E.D.N.Y. Sept. 30, 2018) 19 (same). 20 Contrary to defendants’ assertions (see Defs.’ Reply at 21 6-8 (Docket No. 19)), plaintiffs took action in reliance on the 22 prior version of the regulation that elevated their expectation 23 of having their work authorization requests adjudicated “above 24 the level of hope.” See Fernandez-Vargas, 548 U.S. at 44 n.10. 25 Specifically, plaintiffs volunteered their identities--along with 26 their status as undocumented aliens--to local and federal law 27 enforcement agencies and agreed to cooperate in ongoing law 28 enforcement investigations with the expectation that they would 1 be placed on the waitlist for a U visa and receive a 2 determination as to their requests for work authorization within 3 90 days, as provided by the regulation in force at the time. 4 (See FAC ¶¶ 44, 48-49, 87.) 5 While plaintiffs could have applied for work 6 authorization through other channels, the regulation in place at 7 the time provided that if they applied in conjunction with their 8 application for a U visa, they would have their requests 9 adjudicated within 90 days or, if USCIS did not make a 10 determination within that time period, they would receive interim 11 employment authorization documents for up to 240 days. See 8 12 C.F.R. § 274a.13(d) (2016). Because the regulation’s language 13 was that of a guarantee (i.e., USCIS “will adjudicate the 14 application within 90 days,” and “failure to complete the 15 adjudication within 90 days will result” in the issuance of 16 interim employment documents), filing a request for a work 17 authorization along with a U visa elevated plaintiff’s 18 expectations “above the level of hope.” See id. 19 Defendants cite to Durable Mfg. Co. v. U.S. Dep’t of 20 Labor, 578 F.3d 497, 503 (7th Cir. 2009), and Labojewski v. 21 Gonzales, 407 F.3d 814, 822 (7th Cir. 2005), to argue that the 22 filing of an application for an administrative benefit, including 23 a visa petition, does not create a vested right in that benefit. 24 The court finds those cases distinguishable, however. In 25 Durable, the Seventh Circuit held that a revised regulation did 26 not have an impermissibly retroactive effect with regard to two 27 applications for labor certifications that were approved after 28 the new regulation took effect. See Durable, 578 F.3d 497, 503- 1 504. The court reasoned that merely filing an application for a 2 labor certification did not give the applicants a vested right to 3 a labor certification because the agency would still have to make 4 a final determination as to the applicant’s qualification for the 5 certification. See id. “[No] new legal consequences would 6 affect the application as a result of the amended” regulation 7 because the agency would still had to evaluate the merits of the 8 application. See id. 9 The court in Durable also held that the new regulation 10 did not have an impermissibly retroactive effect as to thirteen 11 labor certification applications that had been approved before 12 the new regulation went into effect, because the prior regulation 13 had only given applicants the right to an “indefinite” labor 14 certification, meaning their duration was not fixed and the 15 agency could revoke or extinguish the validity of their 16 certifications at any time. See id. The applicants could not 17 expect their certifications to be permanent and therefore did not 18 have a vested right in them. Id. 19 The right guaranteed by 8 C.F.R. § 274a.13(d) (2016) 20 differs from the one at issue in Durable because it specifically 21 guaranteed plaintiffs the right to have their application for 22 work authorization adjudicated within 90 days. The regulation 23 stated that “USCIS will adjudicate the application within 90 days 24 from the date of receipt of the application.” 8 C.F.R. § 25 274a.13(d) (2016). This 90-day period had completely elapsed 26 prior to enactment of the revised regulation, so unlike the 27 applicants in Durable, no “final determination” remained to be 28 made before adjudication of their applications. See Durable, 578 1 F.3d 497, 503-504. Because the prior regulation also guaranteed 2 that “[f]ailure to complete the adjudication within 90 days will 3 result in the grant of an employment authorization document for a 4 period not to exceed 240 days,” 8 C.F.R. § 274a.13(d) (2016), 5 plaintiffs had a more legitimate expectation in receiving interim 6 employment authorization documents than the applicants in 7 Durable. See Durable, 578 F.3d 497, 503-504. 8 Similarly, Labojewski is distinguishable because it 9 dealt with a situation in which the applicant had not yet applied 10 for the benefit at issue prior to the change in law. See 11 Labojewski, 407 F.3d at 822. There, the Seventh Circuit held 12 that a change in law did not have an impermissibly retroactive 13 effect merely because the applicants had satisfied a prerequisite 14 for obtaining a change in immigration status (re-entering the 15 country) prior to the change in law. See id. Because the 16 applicants had failed to actually apply for the change in status 17 before the law changed, they did not have a “reasonable reliance” 18 on being eligible under the old criteria. Id. Labojewski thus 19 does not apply here because plaintiffs had already successfully 20 applied for work authorization and had their 90-day period vest 21 under the regulation prior to its revision. See 8 C.F.R. § 22 274a.13(d) (2016). 23 Defendants’ reliance on INS v. St. Cyr, 533 U.S. 289, 24 321 (2001), and Mejia v. Gonzales, 499 F.3d 991, 997 (9th Cir. 25 2007), is also misplaced. Defendants argue that these cases 26 stand for the proposition that a regulation is impermissibly 27 retroactive only if it “completely vitiates” a plaintiff’s 28 rights, as opposed to merely “adversely affecting” those rights, 1 such as by delaying the plaintiff’s ability to obtain what he is 2 owed. (See Defs.’ Reply at 18-19.) Defendants argue that the 3 amended version of 8 C.F.R. § 274a.13(d) did not interfere with a 4 vested right because it did not completely vitiate plaintiffs’ 5 right to obtain work authorization, it only deferred the issuance 6 of work authorization to the time at which their U visa 7 application was adjudicated. (See id.) However, this argument 8 mischaracterizes the nature of the right plaintiffs had under 8 9 C.F.R. § 274a.13(d) as it existed when they petitioned for work 10 authorization. As discussed above, 8 C.F.R. § 274a.13(d) (2016) 11 guaranteed plaintiffs the right to have their application for 12 work authorization adjudicated within 90 days, not the right to 13 work authorization itself. If USCIS could not adjudicate the 14 plaintiffs’ requests within 90 days, the regulation guaranteed 15 plaintiffs the right to interim employment authorization 16 documents. Id. Thus, the 2017 revisions did “completely 17 vitiate” plaintiffs’ rights--under current regulations, 18 plaintiffs no longer have the right to have their applications 19 for work authorization adjudicated within 90 days, and they no 20 longer have a right to interim employment authorization 21 documents. See 8 C.F.R. § 274a.13(d). 22 Thus, when plaintiffs applied for work authorization, 23 they had a vested right to adjudication of their requests within 24 90 days, and by January 1, 2017, 90 days after USCIS received 25 plaintiffs’ petitions, they had a vested right to interim work 26 authorization documents. See Fernandez-Vargas, 548 U.S. at 44 27 n.10. Because application of the revised rule--effective January 28 17, 2017--would strip plaintiffs of their vested rights, the 1 court finds that application of the revised version of the 2 regulation would “have a retroactive effect” that Congress did 3 not authorize. See Uranga, 2020 WL 5763633, at *15; Rodriguez, 4 2018 WL 4783977, at *18. The version of 8 C.F.R. § 274a.13(d) in 5 effect when plaintiffs filed their petitions for U visas musst 6 therefore be applied. See Landgraf, 511 U.S. at 265. 7 In their reply, defendants argue for the first time 8 that, even under the prior version of 8 C.F.R. § 274a.13(d), the 9 court lacks subject matter jurisdiction over plaintiffs’ claim 10 because those regulations do not trigger a mandatory duty to act 11 until defendants make a threshold determination as to whether a 12 petitioner is eligible for work authorization. (See Defs.’ Reply 13 at 5.) Not only is this argument waived because it was raised 14 for the first time in defendants’ reply brief, see Bazuaye v. 15 INS, 79 F.3d 118, 120 (9th Cir. 1996), the court finds the 16 argument unpersuasive. 17 Defendants’ argument runs counter to the plain language 18 of 8 C.F.R. § 274a.13(d) (2016), which unequivocally states: 19 “USCIS will adjudicate the application within 90 days from the 20 date of receipt of the application,” not within 90 days of USCIS 21 performing a threshold determination of a petitioner’s 22 eligibility for the underlying benefit. Indeed, in the Final 23 Rule repealing the prior version of 8 C.F.R. § 274a.13(d), DHS 24 stated that it was eliminating the 90-day deadline and interim 25 employment authorization document provisions because “it believed 26 that the 90-day time frame was ‘outdated and no longer 27 reflect[ed] the operational realities of the Department’ and it 28 ‘constrain[ed] DHS’ ability to maintain necessary levels of 1 security when application receipt volumes suddenly increase.’” 2 Uranga, 2020 WL 5763633, at *16 (quoting 80 Fed. Reg. 81,900, 3 81,929). Such statements would not have been necessary if the 4 90-day clock only began running once defendants had evaluated the 5 merits of a petitioner’s claim. 6 Thus, USCIS was required to adjudicate plaintiffs’ 7 requests for work authorization within 90 days of receiving their 8 Form I-918 petition or, if it could not do so, issue interim 9 employment authorization documents for up to 240 days. See 8 10 C.F.R. § 274a.13(d) (2016). Because this decision was legally 11 required, and not left up USCIS’ discretion, the court has 12 subject matter jurisdiction to review plaintiffs’ claim under the 13 APA. Defendants’ motion to dismiss the claim presented in 14 plaintiffs’ Second Cause of Action will therefore be denied. See 15 5 U.S.C. § 706(1), § 701(a)(2); Norton, 542 U.S. at 64. 16 C. Third Cause of Action 17 Plaintiffs’ claim of unreasonable delay in issuing a 18 waitlist determination for their U visa petitions rests on USCIS 19 regulations, which state: “[a]ll eligible petitioners who, due 20 solely to the cap, are not granted U–1 nonimmigrant status must 21 be placed on a waiting list and receive written notice of such 22 placement.” 8 U.S.C. § 214.14(d)(2). Although USCIS regulations 23 do not establish a deadline or timeframe by which the agency must 24 make a determination regarding waitlist placement, the APA 25 provides that, “within a reasonable time, each agency shall 26 proceed to conclude a matter presented to it.” 5 U.S.C. § 27 555(b). Plaintiffs also argue that reviewing courts are required 28 to “compel agency action unlawfully withheld or unreasonably 1 delayed” under the APA. See 5 U.S.C. § 706(1). 2 Defendants argue that plaintiffs’ claim must fail 3 because “the mere passage of time is insufficient to sustain a 4 claim of unreasonable delay.” (See id. (citing Mashpee Wampanoag 5 Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 6 2003).) In other words, defendants argue that plaintiffs’ FAC 7 does not “plausibly suggest[]” an entitlement to relief under the 8 APA because it merely alleges that plaintiffs’ U visa 9 applications had been pending for 47 months at the time they 10 filed the FAC. See Twombly, 550 U.S. at 557. 11 To determine whether an agency’s delay is reasonable 12 under the APA, the court will have to balance six so-called 13 “TRAC” factors, established in Telecommunications Research and 14 Action Center v. Federal Communications Commission, 750 F.2d 70 15 (D.C. Cir. 1984) (“TRAC”): 16 (1) the time agencies take to make decisions must be governed by a “rule of reason”; 17 (2) where Congress has provided a timetable or other indication of the speed with which 18 it expects the agency to proceed in the enabling statute, that statutory scheme may 19 supply the content for this rule of reason; 20 (3) delays that might be reasonable in the sphere of economic regulation are less 21 tolerable when human health and welfare are at stake; 22 (4) the court should consider the effect of expediting delayed action on agency 23 activities of a higher or competing priority; 24 (5) the court should also take into account 25 the nature and extent of the interests prejudiced by delay; and 26 (6) the court need not “find any impropriety lurking behind agency lassitude in order to 27 hold that agency action is ‘unreasonably delayed.’” 28 1 Brower v. Evans, 257 F.3d 1058, 1068 (9th Cir. 2001) (quoting 2 TRAC, 750 F.2d at 80). 3 Plaintiffs’ complaint alleges facts that, if true, 4 would tend to show defendant’s delay was unreasonable under each 5 of the TRAC factors. See id. For instance, the FAC alleges that 6 USCIS’ waitlist decisions are not governed by a “rule of reason,” 7 TRAC, 750 F.2d at 80, because USCIS “systematically prioritizes 8 later filed petitions over earlier filed petitions,” contrary to 9 the agency’s assertions that that it makes waitlist decisions on 10 a “first in, first out” basis. (See FAC ¶¶ 108-109.) Plaintiffs 11 further allege that, even if USCIS’ waitlist decisions are 12 governed by a rule of reason, USCIS has ignored that rule in this 13 case by processing U visa waitlist decisions for applicants that 14 filed their applications after plaintiffs. (See FAC ¶¶ 115-116.) 15 The FAC also addresses the “nature and extent of the 16 interests prejudiced by the delay.” TRAC, 750 F.2d at 80. 17 Plaintiffs allege that they are unable to acquire deferred 18 action, work authorization, a social security number, or 19 government-approved identification (i.e., a “Real ID”), and that 20 they are in jeopardy of being physically removed from the United 21 States. See FAC ¶¶ 122-26. Because the court will have to 22 employ the TRAC framework when it evaluates the merits of 23 plaintiffs’ claim that defendant’s delay was unreasonable, 24 plaintiffs’ allegations go beyond merely asserting that they have 25 been waiting too long and are sufficient to state “a claim to 26 relief that is plausible on its face.” See Twombly, 550 U.S. at 27 557. 28 Defendants argue that the court should find under the 1 TRAC factors that their delay in processing plaintiffs’ petitions 2 was reasonable as a matter of law. (See Defs.’ Mot. to Dismiss 3 at 10-15.) They contend that USCIS’ practice of processing U 4 visa petitions in the order they are received, with some 5 petitions being expedited subject to criteria set forth by the 6 agency, constitutes a “rule of reason” under TRAC that is 7 reasonable under the six-factor test. (See id. (citing TRAC, 750 8 F.2d at 80).) Without asking the court to take judicial notice 9 of any information outside the scope of plaintiffs’ FAC, 10 defendants cite to a number of reports, USCIS statements, and 11 USCIS webpages to argue that delays in the processing of U visa 12 petitions for waitlist eligibility result primarily from the 13 overall number of petitions filed, which have increased almost 14 every year since 2009, not wrongful conduct on the part of the 15 agency. (See id. at 7, 11.) 16 The court is unable to find that defendant’s delay was 17 reasonable at the motion to dismiss stage. “Resolution of a 18 claim of unreasonable delay is ordinarily a complicated and 19 nuanced task requiring consideration of the particular facts and 20 circumstances before the court.” Mashpee, 336 F.3d at 1100; see 21 also Yu v. Brown, 36 F. Supp. 2d 922, 935 (D.N.M. 1999) (“What 22 constitutes an unreasonable delay in the context of immigration 23 applications depends to a great extent on the facts of the 24 particular case.”). Adopting defendant’s argument would require 25 the court to look beyond the face of plaintiffs’ complaint and, 26 without the benefit of the administrative record, evaluate facts 27 concerning USCIS’ general practices, whether those practices were 28 followed in this case, and the number of U visa petitions filed 1 over the past several years. See Sprewell v. Golden State 2 Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (“Review [of a motion 3 to dismiss under Rule 12(b)(6)] is limited to the contents of the 4 complaint.”). 5 While some district courts have found that evaluating 6 the reasonableness of USCIS’ delay in issuing U visa waitlist 7 determinations under TRAC is appropriate at the motion to dismiss 8 stage, see, e.g., Uranga v. U.S. Citizenship & Immigration 9 Services, No. 20-0521 ABJ, 2020 WL 5763633, at *11-14 (D.D.C. 10 Sep. 28, 2020), this court agrees with other district courts that 11 have found that it would be “‘premature’ at the motion to dismiss 12 stage ‘to consider the exact sources of the delay to determine 13 whether the delay was actually unreasonable under the 14 circumstances.’” See Gelfer v. Chertoff, No. C06-06724 WHA, 2007 15 WL 902382, at *2 (N.D. Cal. Mar. 22, 2007) (finding it 16 “premature” at the motion to dismiss stage “to consider the exact 17 sources of the delay to determine whether the delay was actually 18 unreasonable under the circumstances”); Ramires v. Wolf, No. 19 1:20-cv-203 KWR SMV, 2020 WL 6146393, at *3 (D.N.M. Oct. 20, 20 2020) (quoting Gelfer, 2007 WL 902382, at *2); Patel v. Cissna, 21 400 F. Supp. 3d 1373, 1383 (M.D. Ga. 2019) (““[T]he Court is not 22 prepared to hold on a motion to dismiss for failure to state a 23 claim that the three-year delay in reviewing [plaintiff's] U visa 24 petitions for placement on the waiting list is reasonable as a 25 matter of law.”); M.J.L. v. McAleenan, 420 F. Supp. 3d 588, 598 26 (W.D. Tex. 2019) (“the Court finds that it is premature to 27 address these factors at the motion to dismiss stage and before 28 discovery has been completed.”) 1 Defendants finally argue that the FAC fails to state a 2 claim under the APA because the APA reserves matters of agency 3 management priorities to the agency’s discretion, thereby 4 precluding judicial review. (See Defs.’ Mot. to Dismiss at 12 5 (citing 5 U.S.C. § 701; Heckler v. Chaney, 470 U.S. 821, 831-32 6 (1985)). According to defendants, USCIS’ determination as to the 7 order in which it will evaluate outstanding U visa petitions 8 “reflect[s] the agency’s determination as to the best allocation 9 of its resources and calls upon its particular expertise and, 10 therefore, is a matter committed to its discretion.” (See id.) 11 Defendants argue that granting plaintiffs’ requested relief would 12 interfere with the agency’s management priorities by “putting the 13 petitioner at the head of the queue . . . simply mov[ing] all 14 others back one space and produce no net gain.” (See id. at 14 15 (quoting Xiaobin Xu v. Nielsen, No. 18-cv-2048 (BMC), 2018 WL 16 2451202, at *2 (E.D.N.Y. May 31, 2018) (quoting Mashpee, 336 F.3d 17 at 1100)).) This, defendants argue, would result in “unwarranted 18 line-skipping” for plaintiffs with the means to hire counsel and 19 would delay adjudication of other U visa petitions filed earlier 20 in time. (See id.) 21 It is true that courts should generally defer to 22 agencies’ assessments of where their resources should be devoted, 23 absent constitutional or legal restraints. See Heckler, 470 U.S. 24 at 831-32 (the “agency is far better equipped than the courts to 25 deal with the many variables involved in the proper ordering of 26 priorities”). However, the APA commands courts to “compel agency 27 action unlawfully withheld or unreasonably delayed” when the 28 agency is under a mandatory legal duty to act. See 5 U.S.C. 1 § 706(1), § 701(a). Here, USCIS was required by regulation to 2 place “[a]ll eligible petitioners who, due solely to the cap, are 3 not granted U–1 nonimmigrant status . . . on a waiting list.” 8 4 U.S.C. § 214.14(d)(2). Because plaintiffs claim that USCIS has 5 unreasonably delayed in complying with this mandate, the APA 6 provides for judicial review. See 5 U.S.C. § 706(1), § 701(a). 7 Concerns that other petitioners for U visas may be prejudiced by 8 granting plaintiffs’ requested relief because of “line skipping” 9 do not preclude judicial review of plaintiffs’ claims. The court 10 must evaluate plaintiffs’ claim based on the facts of the case 11 before it. 12 To the extent that defendants argue “line skipping” or 13 agency resource concerns are relevant to the reasonableness of 14 the agency’s delay as to plaintiffs under the fourth TRAC factor, 15 which requires the court to consider “the effect of expediting 16 delayed action of agency activities of a higher or competing 17 priority,” the court can take these concerns into account in its 18 ultimate evaluation of all the TRAC factors. See TRAC, 750 F.2d 19 at 80. Dismissal at the motion to dismiss stage is therefore not 20 warranted based solely on that consideration. 21 In sum, the Third Cause of Action of plaintiff’s FAC 22 adequately states a claim of unreasonable delay. See Twombly, 23 550 U.S. at 557. Defendants’ motion to dismiss that claim 24 pursuant to Fed. R. Civ. P. 12(b)(6) must accordingly be denied. 25 D. Fourth Cause of Action 26 Finally, defendants argue that plaintiffs’ FOIA claims- 27 -contained in their Fourth Cause of Action--are moot because 28 defendants have fully responded to plaintiffs’ FOIA requests. 1 (See Defs.’ Mot. to Dismiss at 21.) “As with other types of 2 civil cases, a suit under the FOIA can be rendered moot by events 3 subsequent to its filing.” Yonemoto v. Dep’t of Veterans 4 Affairs, 686 F.3d 681, 689 (9th Cir. 2012), overruled on other 5 grounds by Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 6 F.3d 987 (9th Cir. 2016). “The production of all nonexempt 7 material, ‘however belatedly,’ moots FOIA claims.” Papa v. 8 United States, 281 F.3d 1004, 1013 (9th Cir. 2002) (quoting Perry 9 v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982)). 10 Plaintiff Lujano Gonzales concedes that her FOIA claim 11 is moot because defendant produced all nonexempt material in its 12 possession prior to litigation. (See Pls.’ Opp’n at 3.) The 13 court will therefore dismiss plaintiff Lujano Gonzales’ FOIA 14 claim for lack of subject matter jurisdiction. See Fed. R. Civ. 15 P. 12(b)(1). 16 Plaintiff Salazar Jaramillo concedes that defendant has 17 adequately responded to his FOIA request since the filing of the 18 FAC. (See Pls.’ Opp’n at 3.) However, plaintiff argues that his 19 claim is not moot because he is still entitled to costs and 20 attorney fees under FOIA. See 5 U.S.C. § 552(a)(4)(E)(i). 21 “Claims for attorneys’ fees ancillary to the case 22 survive independently under the court’s equitable jurisdiction, 23 and may be heard even though the underlying case has become 24 moot.” Cammermeyer v. Perry, 97 F.3d 1235, 1238 (9th Cir. 1996) 25 (quoting Williams v. Alioto, 625 F.2d 845, 848 (9th Cir. 1980)). 26 “The existence of an attorneys’ fees claim thus does not 27 resuscitate an otherwise moot controversy.” Id. (citing Diamond 28 v. Charles, 476 U.S. 54, 70-71 (1985)). eee ene een ne nn nnn anne en en nn I NE OS OE ONO
1 Since plaintiff does not contest defendants’ 2 representation that they have produced all nonexempt material in 3 their possession in response to plaintiff’s FOIA request, and 4 plaintiff Salazar Jaramillo’s claim for attorney’s fees cannot 5 resuscitate his underlying FOIA claim, see Cammermeyer, 97 F.3d 6 | at 1238, plaintiff’s FOIA claim is moot and will be dismissed for 7 lack of subject matter jurisdiction. See Papa v. United States, 8 281 F.3d at 1013; Fed. R. Civ. P. 12(b) (1). Defendants’ motion 9 | to dismiss the Fourth Cause of Action of plaintiffs’ FAC will 10 therefore be granted. (FAC TT 156-64.) 11 IT IS THEREFORE ORDERED that defendant’s motion to 12 dismiss be, and the same hereby is, GRANTED as to the First and 13 Fourth Causes of Action and DENIED as to Second and Third Causes 14 of Action of the FAC. The First Cause of Action and the Fourth 15 Cause of Action of the First Amended Complaint are hereby 16 DISMISSED.! 17 | Dated: November 10, 2020 tleom ah. A. be—~ 18 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 1 The court expresses no opinion at this time as to whether plaintiffs are entitled to attorney’s fees based on their 28 | FOIA claims. 29