1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ANH PHAM, et al., Case No.: 23-cv-1058-W-KSC
11 Plaintiffs, ORDER GRANTING IN PART, 12 v. DENYING IN PART, AND CONTINUING IN PART MOTION 13 UR JADDOU, Director, U.S. Citizenship TO DISMISS AND ORDER TO and Immigration Services, 14 SHOW CAUSE [Doc. 13] Defendant. 15 16 17 This case concerns the Government’s delay in adjudicating nonimmigrant “U” 18 visas. Plaintiffs seek a court order requiring the United Stated Citizenship and 19 Immigration Services (“USCIS”) to adjudicate the Plaintiffs’ U-visa petitions within 20 30 days, without any allegation regarding other petitioners awaiting agency adjudication 21 who are not parties to this case. On August 21, 2023, Plaintiffs filed their First Amended 22 Complaint (“FAC”). (Doc. 7, FAC.) On September 14, 2023, Defendant filed her 23 motion to dismiss. (Doc. 13, Motion.) On October 2, 2023, Plaintiffs responded in 24 opposition. (Doc. 14, Oppo.) On October 6, 2023, Defendant filed her reply brief. (Doc. 25 15, Reply.) The Court decides the matter on the papers submitted and without oral 26 argument. See Civ.L.R. 7.1(d.1). For the following reasons, the Court GRANTS IN 27 PART and DENIES IN PART Defendant’s motion to dismiss and enters an ORDER 28 TO SHOW CAUSE. (Doc. 13.) 1 I. LEGAL BACKGROUND 2 The U.S. Department of Homeland Security’s Secretary determines the 3 admissibility to the United States of nonimmigrants, for a limited time or purpose, and 4 the process by which nonimmigrants are admitted. See 8 U.S.C. §§ 1101(a)(15), 5 1184(a)(1). In October 2000, Congress created the “U Visa Program” under 6 subsection 1101(a)(15)(U), to admit certain nonimmigrants who were victims of crime 7 and who cooperated with law enforcement. See Victims of Trafficking and Violence 8 Protection Act of 2000 (“VTVPA”), Pub. L. No. 106-386, 114 Stat. 1464 (2000) 9 (codified at 8 U.S.C. § 1101(a)(15)(U)); see also 8 C.F.R. § 214.14 (providing regulatory 10 procedures for “alien victims of certain criminal activity” to apply to USCIS with Form I- 11 918). USCIS is the federal agency responsible for adjudicating visa petitions. 6 U.S.C. 12 § 271(b)(1); see also 8 U.S.C. §§ 1103(a)(1), (g)(1) (explaining powers and duties), 13 1184(p)(6) (explaining process). 14 To be eligible for a U-1 visa, USCIS must determine that a principal U-1 petitioner 15 (1) “has suffered substantial physical or mental abuse as a result of having been a victim” 16 of statutorily qualified criminal activity, (2) has credible and reliable information about 17 statutorily qualified criminal activity, (3) has been, is being, or is likely to be helpful to 18 law enforcement investigating or prosecuting criminal activity,1 and (4) the criminal 19 activity violated the laws of the United States or occurred in the United States or its 20 territories and possessions. 8 U.S.C. § 1101(a)(15)(U)(i)(I)–(IV). 21 Each year, only 10,000 nonimmigrant, principal U-1 visas are available. 8 U.S.C. 22 § 1184(p)(2); 8 C.F.R. § 214.14(d). Derivative U-2 visas are available to eligible family 23 members of principal U visa holders only after the principal U-1 visa is granted. 8 U.S.C. 24
25 26 1 A U visa petitioner must acquire U-status certification from a certifying agency regarding the helpful information the petitioner has contributed or will contribute to the investigation or prosecution. 8 C.F.R. 27 § 214.14(c)(2)(i). Plaintiffs allege that these certifying agencies are de facto “sponsors” of the petitioner’s U status “because the law enforcement agency needs them to be present in the United States 28 1 § 1101(a)(15)(U)(ii); see also id. at § 1184(p)(2)(B); 8 C.F.R. § 214.14(f)(6)(i). 2 Derivative U-2 visas are not subject to the annual 10,000 visa cap. 8 U.S.C. 3 § 1184(b)(2)(B). However, derivative petitioners are not eligible for a U-2 visa unless 4 and until their principal U-1 family member’s petition is granted. 8 C.F.R. 5 § 214.14(f)(6)(i) (“USCIS may not approve Form I–918, Supplement A [petition for a 6 derivative U-2 visa] unless it has approved the principal alien's Form I–918 [petition for 7 principal U-1 visa].”). 8 USCIS implemented a regulatory waiting list for U visa processing in 2007. (FAC 9 at ¶ 49 (quoting 8 C.F.R. § 214.14(d)(2)).)2 USCIS exceeded 10,000 principal U-1 visa 10 petitions for the first time in fiscal year 2010. (Id. at ¶ 50.) Demand for nonimmigrant 11 U-1 visas continues to outpace the limited number available. (See id. at ¶¶ 50–56.) 12 13 II. FACTUAL BACKGROUND 14 Plaintiffs are twenty-four individual foreign nationals currently residing in the 15 United States. (FAC at 3–5.) Plaintiffs are all petitioners for either principal U-1 visas as 16 victims of crimes who provided law enforcement assistance (the “Principal Plaintiffs”) or 17 derivative U-2 visas as qualified family members who hope to accompany or follow to 18 join their relative after the principal visa is granted (the “Derivative Plaintiffs”). The 19 Principal Plaintiffs are Anh Pham, Eustolia Yeraldin Rangel Garcia, Ashwajit Bhikkhu, 20 Praveen Salota, Sandip Chaudhari, Manuel Ariza Barrera, Darwin Ruiz, Rameshbhai 21
22 2 The waiting list regulation states, “All eligible petitioners who, due solely to the cap, are not 23 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 24 oldest petitions receiving the highest priority. In the next fiscal year, USCIS will issue a number to each 25 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 26 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 27 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 28 1 Patel, Ketankumar Chaudhari, Maria Siddiqui, Nazneen Begum, Janitze A. Marquez 2 Lopez, Hosana Demacedo, Fouzan Mohammed, and Vipulkumar Patel. (Id. at 11–13.) 3 The Derivative Plaintiffs are Hugo Isaac Chavez, Mayra Calix, Bhartiben Patel, 4 Nimeshkumar Patel, Jameel Shaik, RAS, Jose Demacedo, JFCR, and Kushboo Patel. (Id. 5 at 11–13.) 6 Plaintiffs allege Defendant, the Director of USCIS, “skipped over” them in 7 prioritizing the consideration and granting of available U visas or withheld or 8 unreasonably delayed the adjudication of their petitions by issuing U visas to petitioners 9 whose petitions post-date Plaintiffs’ filing dates. Plaintiffs allege that this action violated 10 USCIS’s own regulation, 8 C.F.R. § 214.14(d)(2), requiring that “the oldest petitions 11 receive[] the highest priority.” (Id. at 10–11.) The FAC alleges that, both, (1) all 12 Plaintiffs filed their U-visa petitions on or before June 30, 2017, (id. at 3, 13) and (2) 13 “[a]ll of the Plaintiffs in this case filed before July 31, 2017,” (id. at ¶ 53.) Plaintiffs 14 allege that as of August 31, 2023, USCIS issued U visas for principal petitioners whose 15 filing date is “as late as June 30, 2017.” (FAC at 10.) 16 Plaintiffs in this case comprise “eligible petitioners who, due solely to the cap, are 17 not granted U-1 or U-2 [principal or derivative, respectively] nonimmigrant status, 18 whether or not they’ve been placed on the waiting list.” (Id. at 13.) “All of the Plaintiffs 19 in this case filed before July 31, 2017,” (id.; see also id. at ¶ 53), and “[a]ll Plaintiffs filed 20 their Forms I-918 on or before June 30, 2017,” (id. at 13). The FAC also alleges that 21 “USCIS has issued U visas to hundreds of U visa applicants that filed their U visas after 22 July 31, 2016.” (Id. at ¶ 61.) Plaintiffs allege that they exhausted and “constructively 23 exhausted” all administrative remedies. (Id. at 6.) 24 Plaintiffs allege two claims. The first, under the Administrative Procedure Act 25 (“APA”), 5 U.S.C. § 702, is based on USCIS’s “unlawful withholding” or “unreasonable 26 delay” of a “final decision on [Plaintiffs’] U visas,” by jumping over their petitions or 27 “skipping” their petitions in the process of adjudication. (FAC at 3.) Plaintiffs alleged 28 this conduct is arbitrary and is an unlawful withholding or an unreasonable delay of their 1 final visa decisions under the APA. (Id.) The FAC pleads that this wrong deprives 2 Plaintiffs of actual immigration status, deprives them of accruing time toward their 3 adjustment of status application, and prevents them from acquiring advance parole to 4 travel abroad. (Id. at 14–15.) The second claim alleged is for attorney fees under the 5 Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, based upon USCIS’s alleged 6 APA violation. 7 The FAC fails to allege any individual Plaintiff’s placement on, or status with 8 regard to, the regulatory waiting list, set forth at 8 C.F.R. § 214.14(d)(2). (See generally 9 FAC.) Therefore, Plaintiffs do not allege whether, within the regulatory framework, they 10 are (1) “qualifying petitioners on the waiting list” or (2) “new qualifying petitioners” 11 whom the waiting list requires USCIS process after those on the waiting list. See 8 12 C.F.R. § 214.14(d)(2) (“After U-1 nonimmigrant status has been issued to qualifying 13 petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal 14 year will be issued to new qualifying petitioners in the order that the petitions were 15 properly filed” (emphasis added)). Instead, Plaintiffs allege that by skipping over them 16 and deciding later-filed petitions, Defendant violated USCIS’s own regulation that “the 17 oldest petitions receive[] the highest priority.” See 8 C.F.R. § 214.14(d)(2). Plaintiffs 18 allege that USCIS’s regulatory waiting list is irrelevant to the order of processing because 19 “USCIS does not follow it,” USCIS does not decide the oldest applications first, and 20 USCIS has no uniform process for issuing U visas. (Compl. at ¶ 104.) Plaintiffs seek a 21 court order compelling Defendant to adjudicate their petitions within thirty days, without 22 regard to any other petitioners who are not a party to this case but who may be ahead of 23 Plaintiffs, pursuant to the waiting list or otherwise. The FAC is silent regarding non- 24 party petitioners whether similarly situated to Plaintiffs or not. 25 26 III. SUBJECT MATTER JURISDICTION 27 Federal Rule of Civil Procedure 12(b)(1) allows a party to move for dismissal 28 based on a lack of subject matter jurisdiction. Once the moving party challenges 1 jurisdiction, the burden is on the party asserting jurisdiction to prove otherwise. 2 Kokkonen v. Guardian Life Ins. of Am., 511 U.S. 375, 377 (1994). “A jurisdictional 3 challenge under Rule 12(b)(1) may be made on the face of the pleadings or by presenting 4 extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th 5 Cir. 2003). Here, the Court considers the extrinsic evidence submitted by Defendant, 6 three USCIS final decisions on three Plaintiffs’ petitions. (Doc. 13-1; Doc. 16.) These 7 three final agency decisions are government records whose accuracy cannot reasonably 8 be questioned. Plaintiffs do not object to them. Moreover, the FAC does not complain 9 about the outcome of Plaintiffs’ petitions (i.e., whether USCIS grants or denies them); 10 rather, the FAC complains that the petitions remain pending without final agency 11 decision while other, later-filed petitions receive decisions. As such, the Court takes 12 judicial notice of the three Exhibits, under Fed. R. Evid. 201(b)(2), (c)(1), on its own 13 motion. 14 The federal district courts have “original jurisdiction over all civil actions arising 15 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. When a 16 court lacks subject matter jurisdiction, it lacks the power to proceed, and its only 17 remaining function is to dismiss. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 18 (1998). Plaintiffs’ FAC alleges two causes of action, the first arising under the APA, 5 19 U.S.C. §§ 553, 706, and the second seeking attorney fees under EAJA. The claims arise 20 under federal law. 21 Defendant, however, argues that the Court lacks subject matter jurisdiction because 22 Plaintiffs’ claims are moot for two reasons: (1) Plaintiff Praveen Salota’s claim is moot 23 because USCIS denied her U-visa petition in 2021; and (2) all of Plaintiffs’ claims are 24 moot because (a) during the prior fiscal year, in effect as of the filing of Plaintiff’s 25 Complaint and Defendant’s Motion, the congressional cap on U visas had been exhausted 26 such that USCIS could not grant more and (b) during the current fiscal year, USCIS will 27 continue to process all petitions according to the first in, first out policy, including 28 1 Plaintiffs. In her Reply brief, Defendant also challenges the Court’s subject matter 2 jurisdiction on grounds of standing. 3 Standing is a critically important jurisdictional limitation, “an essential and 4 unchanging part of the case-or-controversy requirement of Article III.” Lujan v. 5 Defenders of Wildlife, 504 U.S. 555, 560 (1991); Ya-Wen Hsiao v. Scalia, 821 Fed App’x 6 680, 682 (9th Cir. 2020). The federal courts must consider it even if the parties do not 7 raise it. United States v. Hays, 515 U.S. 737, 742 (1995). Plaintiffs bear the burden of 8 establishing standing. Central Delta Water Agency v. United States, 306 F.3d 938, 947 9 (9th Cir. 2002). Lack of Article III standing requires dismissal for lack of subject matter 10 jurisdiction under Fed. R. Civ. P. 12(b)(1). Maya v. Centex Corp., 658 F.3d 1060, 1067 11 (9th Cir. 2011). “[S]tanding and ripeness pertain to a federal courts’ subject matter 12 jurisdiction.” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 13 2010). To satisfy Article III standing, a plaintiff must show (1) he has suffered an “injury 14 in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural 15 or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; 16 and (3) it is likely as opposed to merely speculative, that the injury will be redressed by a 17 favorable decision. See Friends of the Earth, Inc. v. Laidlaw Evnt’l Srvs. (TOC), Inc. 528 18 U.S. 167, 180–81 (2000). “[T]o establish standing under the APA[, as here,] a plaintiff 19 must show injury in fact, causation, a likelihood of redressability, and that he falls ‘within 20 the zone of interests to be protected or regulated by the underlying statute in question.’” 21 Catholic Chartities CYO v. Chertoff, 622 F.Supp.2d 865, 879 (C.D. Cal. 2008) (quoting 22 Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1001 (9th Cir. 1988)). 23 “Mootness is a jurisdictional issue. It can be described as the doctrine of standing 24 set in a time frame.” Maldonado v. Holder, 781 F.3d 1107, 1112 (9th Cir. 2015) (cleaned 25 up). “For a dispute to remain live without being dismissed as moot, ‘[t]he parties must 26 continue to have a personal stake in the outcome of the lawsuit.’” Id. at 1112 (quoting 27 Lewis v. Continental Bank Corp., 494 U.S. 472, 478 (1990) (internal quotation marks 28 omitted)). “It is the doctrine of mootness, not standing, that addresses whether an 1 intervening circumstance has deprived the plaintiff of a personal stake in the outcome of 2 the lawsuit.” West Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587, 2607, 213 L. Ed. 2d 3 896 (2022) (cleaned up). “The distinction matters because the Government [challenging 4 jurisdiction], not [Plaintiffs], bears the burden to establish that a once-live case has 5 become moot.” Id. (citing Friends of the Earth, Inc. v. Laidlaw Environmental Servs. 6 (TOC), Inc., 528 U.S. 167, 189 (2000)). 7 8 A. Final Decision On A Plaintiff’s Petition Moots That Plaintiff’s Claims 9 USCIS rendered its final decision on three individual Plaintiffs’ petition, and those 10 final decisions were proffered to the Court. The claims of those individual Plaintiffs are 11 moot and must be dismissed for lack of subject matter jurisdiction. USCIS rendered its 12 final decision and denied Plaintiff Praveen Salota’s U-visa petition on September 22, 13 2021. (Doc. 13-2, Motion Exhibit, Exh. 1.) Salota conceded in briefing that his petition 14 was denied and that his claims are therefore moot. (Response at 2 n.1.) “Plaintiffs agree 15 that Plaintiff Salota’s delay claim is moot [].” (Id.) While Defendant’s motion was fully 16 briefed and pending, Defendant also submitted to the Court the final decisions on the 17 petitions of Plaintiffs Sandip Chaudhari, dated November 28, 2023, and Manuel Ariza 18 Barrera, dated December 1, 2023. (Doc. 16, Exh. A, B.) All of Plaintiffs’ claims seek an 19 end to any unlawful withholding or unreasonable delay of a final U-visa decision and an 20 order that USCIS must make a final U-visa decision within thirty days. The individual 21 plaintiffs who have received USCIS’s final decision on their petitions have received the 22 relief requested. Accordingly, such individual plaintiffs no longer have “a personal stake 23 in the outcome of the lawsuit,” rendering their claims moot. For these reasons, the Court 24 GRANTS IN PART the Rule 12(b)(1) motion and DISMISSES Plaintiffs Praveen 25 Salota, Sandip Chaudhari, and Manuel Ariza Barrera from this case for lack of subject 26 matter jurisdiction. 27 28 1 B. The Remaining Principal Plaintiffs’ Claims Are Not Moot 2 The remaining Principal Plaintiffs’ claims are not moot because the parties 3 continue to have a personal stake in the outcome. Defendant argued that all claims are 4 moot because the exhaustion of 10,000 U visas (during the fiscal year in effect at the time 5 the motion was filed) precluded any action by USCIS. See 8 U.S.C. § 1184. According 6 to Defendant, the agency lacked any authority to grant any further U visas during that 7 fiscal year.3 However, Defendant’s first mootness argument is itself rendered moot by 8 the passage of time. The beginning of new FY2024, and the renewed pool of 10,000 U 9 visas, occurred before the motion was fully briefed. The parties agree that, on October 1, 10 2023, USCIS’s new fiscal year began, making available 10,000 new U visas under the 11 annual statutory cap. (See Motion at 10; Response at 2.)4 Defendant can now issue 12 FY2024 final decisions granting and denying U visas and is not barred by any statutory 13 cap on grants until the 10,000 cap is exhausted for this fiscal year. Accordingly, the 14 parties continue to have a personal stake in the outcome: Defendant’s stake is in the 15 processing of U visa petitions pursuant to law, regulations, policy, and procedure; 16 Plaintiffs’ stake is in receiving, according to law, regulations, policy, and procedure, a 17 final decision on their pending petitions for U visas. The Court cannot conclude that this 18 case is moot when (1) the parties agree that some number, greater than zero and less than 19 10,000, of U-1 visas are currently available under the statutory cap and (2) the parties 20 continue to dispute the speed at which (or the process by which) USCIS should 21 adjudicate those pending U visa petitions. 22 23
24 25 3 The parties did not address, and the Court does not consider, USCIS’s continuing ability to issue denials to any petitioners whose petitions did not meet the eligibility requirements for U visas, even after 26 the annual allotment of 10,000 visas is used.
27 4 The federal government’s fiscal year runs from the first day of October of one calendar year through the last day of September of the next calendar year. Fiscal Year 2024 (“FY2024”) runs from 28 1 Next Defendant argues that the case is moot, even after the October 1 availability 2 of 10,000 new U visas, because USCIS now resumes processing petitions on a first in, 3 first out order, including Plaintiffs’ petitions. Defendant argues that directing USCIS to 4 process Plaintiffs’ petitions within 30 days would require USCIS to process Plaintiffs’ 5 petitions “out of order.” That may be so, but it does not address how Plaintiffs’ claim for 6 relief is moot. Defendant also argues that USCIS has “initiated the adjudication process,” 7 and therefore, the Court cannot provide the requested relief. However, Defendant does 8 not provide any declaration or other evidence with respect to the named Plaintiffs that 9 would permit the Court to state that the “agency [has begun] to spin its bureaucratic cogs 10 toward decision” on any specific Plaintiff’s application. See Markandu v. Thompson, No. 11 07-CV-4538, 2008 WL 11510675, at *3, 2008 U.S. Dist. LEXIS 46136, at *7 (D.N.J. 12 June 11, 2008) (addressing a mandamus action where defendant agency filed a 13 declaration averring that a denial was forthcoming on the plaintiff’s own application for 14 asylum.) For these reasons, the Court has subject matter jurisdiction over the remaining 15 Plaintiff’s APA claim and any resulting EAJA fees. 16 17 C. Derivative Plaintiffs’ Claims May Not Be Ripe 18 Defendant raised, as part of her Rule 12(b)(6) motion, an issue that calls into 19 question the Court’s subject matter jurisdiction over the Derivative Plaintiffs’ claims in 20 the FAC. Neither party briefs this issue—that is, whether the Court has jurisdiction over 21 Derivative Plaintiffs’ claims and, in particular, whether the Derivative Plaintiffs’ claims 22 are ripe where the associated principal petitions are not yet granted. Having an 23 independent obligation to review its own jurisdiction, the Court determines that 24 additional briefing is prudent. 25 Plaintiffs allege that they are all currently residing within the United States. 26 Accordingly 8 C.F.R. § 214.14(f)(6)(i) governs USCIS’s ability to grant the petitions of 27 Derivative Plaintiffs. This regulation prohibits USCIS from granting any Derivative 28 Plaintiff’s petition for a U-2 visa unless and until that person’s associated principal 1 petition is granted. 8 C.F.R. § 214.14(f)(6)(i). The federal courts have an obligation to 2 review their subject matter jurisdiction, including ripeness and mootness, whether it is 3 raised by any party. City & Cnty. of San Francisco v. Garland, 42 F.4th 1078, 1084 (9th 4 Cir. 2022) (citing Ray Charles Found. v. Robinson, 795 F.3d 1109, 1116 (9th Cir. 2015); 5 Burrell v. Burrell (In re Burrell), 415 F.3d 994, 997 (9th Cir. 2005)). Article III’s case or 6 controversy requirement depends in part upon the ripeness doctrine. The requirement 7 that a case or controversy be ripe for adjudication is “peculiarly a question of timing” that 8 “prevents courts, through avoidance of premature adjudication, from entanglement in 9 theoretical or abstract disagreements that do not yet have a concrete impact on the 10 parties.” 18 Unnamed “John Smith” Prisoners v. Meese, 871 F.2d 881, 883 (9th Cir. 11 1989) (citing Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985)). 12 The FAC alleges that all Plaintiffs’ petitions are awaiting final decision “whether 13 or not they’ve been placed on the waiting list.” (FAC at ¶ 88.) The Derivative Plaintiffs 14 seek a court order mandating USCIS adjudicate their petitions within thirty days. (Id. at 15 122.) However, the processing of derivative petitions is not identical to the processing of 16 principal petitions because a derivative (U-2) visa may not be granted before the 17 associated principal petition is granted. 8 C.F.R. § 214.14(f)(6)(i) (“USCIS may not 18 approve Form I-918, Supplement A unless it has approved the principal alien’s Form I- 19 918.”) Although the Derivative Plaintiffs are not subject to the 10,000 cap, USCIS may 20 not grant their petition until their associate principal’s U-1 visa is granted. Id. The 21 Derivative Plaintiffs did not allege that their associated principal’s petition was granted. 22 (See FAC.) If the Court could determine with certainty from the FAC that the Derivative 23 Plaintiffs’ petitions are dependent upon a named Principal Plaintiff, then by virtue of the 24 FAC, the Court could conclude that Derivative Plaintiffs’ claim are not yet ripe because 25 no named Principal Plaintiff’s petition has been granted. The Court would have to 26 dismiss such Derivative Plaintiffs for lack of subject matter jurisdiction. The FAC does 27 not permit the conclusion whether all Derivative Plaintiffs’ petitions are associated with 28 the principal petition of a named Plaintiff whose petition has not been granted. 1 Accordingly, the Court enters an Order to Show Cause to ensure that it does not take 2 action on claims over which it has no subject matter jurisdiction. Plaintiffs bear the 3 burden to establish jurisdiction, and accordingly, the Court orders Plaintiffs to respond to 4 the Order to Show Cause first. 5 6 IV. FAILURE TO STATE A CLAIM FOR RELIEF 7 Defendant also moves to dismiss the FAC for failure to state a claim upon which 8 relief may be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) 9 tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n., 720 F. 2d 10 578, 581 (9th Cir. 1983). A complaint may be dismissed as a matter of law either for 11 lack of a cognizable legal theory or for insufficient facts under a cognizable theory. 12 Balisteri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the 13 motion, a court must “accept all material allegations of fact as true and construe the 14 complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty., 487 15 F. 3d 1246, 1249 (9th Cir. 2007). 16 To survive a motion to dismiss, a complaint must contain “a short and plain 17 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. 18 P. 8(a)(2). The Supreme Court has interpreted this rule to mean that “[f]actual allegations 19 must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 20 Twombly, 550 U.S. 554, 555 (2007). The allegations in the complaint must “contain 21 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 22 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 23 Well-pled allegations in the complaint are assumed true, but a court is not required to 24 accept legal conclusions couched as facts, unwarranted deductions, or unreasonable 25 inferences. Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State 26 Warriors, 266 F. 3d 979, 988 (9th Cir. 2001). 27 Grounded on 5 U.S.C. §§ 555(b), 706, Plaintiffs allege two theories of their APA 28 claim to compel agency action: (1) USCIS wrongfully “skipped” them in the order of 1 processing U visas, in other words, Plaintiffs’ petitions should have been adjudicated 2 before others already adjudicated that were filed later than Plaintiffs, and (2) USCIS has 3 unreasonably delayed the review and adjudication of their petitions. (FAC 3, 5 at ¶ 28, 4 14–16.) 5 Under the APA, an agency shall, with “due regard for the convenience and 6 necessity of the parties or their representatives and within a reasonable time . . . proceed 7 to conclude a matter presented to it.” 5 U.S.C. § 555(b). Section 706(1) of the APA 8 grants courts authority to “compel agency action unlawfully withheld or unreasonably 9 delayed.” 5 U.S.C. § 706(1). Plaintiffs first allege that Defendant violated the APA by 10 unlawfully withholding final decisions on Plaintiffs’ petitions because she failed to 11 adjudicate U-visa petitions “from oldest to newest,” in compliance with 8 C.F.R. 12 § 214.14(d)(2), and Defendant decided later-filed petitions before those of Plaintiffs. 13 (FAC at 14–15.) Second, Plaintiffs allege that Defendant violated the APA by 14 unreasonably delaying final adjudication of the petitions under the five TRAC factors, set 15 forth in Telecom. Res. & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984). 5 (FAC at 16 15.) With respect to the unreasonable delay allegations, Plaintiffs claim that (1) no rule 17 sets the amount of time for USCIS to issue a U visa and (2) even if the time for issuance 18 is governed by the regulatory waiting list created by 8 C.F.R. § 214.14(d)(2), USCIS does 19 not comply with that rule. Plaintiffs allege that USCIS’s processing is arbitrary and not 20 uniform. (FAC at 15.) 21 22 23 24 5 The five factors announced in Telecomm. Res. & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70 (D.C. Cir. 25 1984), are used to determine whether agency delay is unreasonable. Plaintiffs allege that the TRAC factors favor them. Other district courts have addressed the TRAC factors to resolve a Rule 12 challenge 26 to a delay complaint, Assadian v. Oudkirk, No. 22-cv-921-RBM-BGS, 2023 U.S. Dist. LEXIS 170892 (S.D. Cal. Sep. 25, 2023); Ferro v. Mayorkas, No. 23-cv-2033-SB-MRW, 2023 WL 4291841, 2023 U.S. 27 Dist. LEXIS 106722 (C.D. Cal. June 16, 2023), or a motion for preliminary injunction, Jain v. Renaud, No. 21-cv-3115-VKD, 2021 WL 2458356, 2021 U.S. Dist. LEXIS 113113 (N.D. Cal. June 16, 2021). 28 1 Challenging the sufficiency and legal propriety of the APA claims, Defendant 2 argues that Plaintiffs cannot state a claim for unlawful withholding because they 3 improperly base their claim on factual allegations that they were skipped over or 4 processed out of order, allegations that Defendant argues are speculative and based on 5 unreasonable inferences. Whether Defendant skipped over Plaintiffs’ petitions or 6 processed their petitions out of order is a question of fact that cannot be resolved at this 7 stage of proceedings where there is no declaration or evidence from Defendant regarding 8 the applicability of the regulatory waiting list to the Plaintiffs. Defendant offers multiple 9 factual disputes in support of its 12(b)(6) motion that cannot be resolved on this motion 10 and absence of supporting declarations or exhibits. Counsel’s arguments disputing the 11 pleading’s facts are not properly considered on a Rule 12 motion. Accordingly, 12 Defendant failed to demonstrate that the Principal Plaintiffs’ APA claim is insufficiently 13 pled. For the above reasons regarding jurisdiction and the Order to Show Cause, the 14 Court reserves any consideration of the Derivative Plaintiffs’ APA claim until such time 15 as jurisdiction is demonstrated. 16 Finally, Plaintiffs allege a cause of action distinct from their APA claim for 17 attorney fees under EAJA. Their EAJA cause of action may not proceed as a separate 18 cause of action. Instead, their request for attorney fees survives Defendant’s motion as a 19 legal basis for recovery of fees and expenses as permitted by law. “EAJA does not 20 provide an independent cause of action for litigants in federal court; instead, it simply 21 ‘authorizes the payment of fees to the prevailing party in an action against the United 22 States.’” Thomas v. Paulson, 507 F. Supp. 2d 59, 62 n.2 (D.D.C. 2007) (quoting 23 Scarbrough v. Principi, 541 U.S. 401, 405 (2004)). “Except as otherwise specifically 24 provided by statute, a court shall award to a prevailing party other than the United States 25 fees . . . in any civil action (other than cases sounding in tort), including proceedings for 26 judicial review of agency action, brought by or against the United States . . . unless the 27 court finds the position of the United States was substantially justified or that special 28 circumstances make an award unjust.” Id. at § 2412(d)(1)(A). Plaintiffs’ prayer for 1 EAJA fees stands or falls with their APA claim. Because the APA claims of some 2 Plaintiffs survive the motion to dismiss, their request for EAJA fees survive. To the 3 extent that Plaintiffs plead EAJA fees as a cause of action, that claim is DISMISSED for 4 failure to state a claim upon which relief may be granted. 5 6 V. CONCLUSION 7 For the foregoing reasons, the Court 8 - GRANTS IN PART the Rule 12(b)(1) motion to dismiss as to individual 9 Plaintiffs who received final decisions on their U visa petitions; and, 10 accordingly, DISMISSES for lack of subject matter jurisdiction the claims of 11 Plaintiffs Praveen Salota, Sandip Chaudhari, and Manuel Aziza Barrera; 12 - DENIES IN PART the Rule 12(b)(1) motion to dismiss as to the remaining 13 Principal Plaintiffs and CONTINUES the Rule 12(b)(1) motion with respect to 14 Derivative Plaintiffs for later consideration in compliance with this Order; 15 - ORDERS the parties to SHOW CAUSE why the Court should not dismiss for 16 lack of subject matter jurisdiction or failure to state a claim, the Derivative 17 Plaintiffs in the absence of an allegation that their associated principal petition 18 has been granted a U-1 visa. In so doing, the parties may also address any Rule 19 12(b) argument that remains unresolved by this Order. Accordingly, Plaintiffs 20 may file a memorandum brief on or before February 27, 2024, not to exceed 21 five pages excluding declarations or exhibits. Defendant may file a response 22 memorandum, not to exceed five pages excluding declarations or exhibits, 23 within 14 days of the date Plaintiffs file their memorandum. If Defendant files 24 a response memorandum, Plaintiffs may reply within 7 days of the opposition’s 25 filing with a memorandum brief not to exceed three pages. If Plaintiffs do not 26 timely file a memorandum brief, Defendant may file a memorandum brief on or 27 before February 29, 2024. There shall be no personal appearances or oral 28 argument pursuant to Local Civil Rule 7.1(d.1); l - DENIES IN PART, without prejudice to further argument permitted by this 2 Order to Show Cause, Defendant’s Rule 12(b)(6) motion to dismiss the APA 3 cause of action; and 4 - GRANTS IN PART Defendant’s Rule 12(b)(6) motion to dismiss the alleged 5 second EAJA cause of action, as a distinct cause, but permits to proceed 6 Plaintiffs’ request for EAJA fees on the basis of Plaintiffs’ APA cause of 7 action. 8 IT IS SO ORDERED. 9 Dated: February 5, 2024 \ 10 [pe Lor 11 Hn. 1 omas J. Whelan 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28