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Solis v. Cissna

United States District Court, D. South Carolina, Beaufort Division

July 11, 2019

Tomasa Romero Solis, Heriberto Gonzalez Najera, Anareli Mendiola Romero, Edgar Mendiola Romero, and Uan Carlos Mendiola Romero, Plaintiffs,
v.
L. Frank Cissna, Director, United States Citizenship and Immigration Services, and United States Citizenship and Immigration Services, Defendant.

          OPINION AND ORDER

          Margaret B. Seymour, United States District Judge.

         This matter is before the court on the motion for summary judgment filed by Plaintiffs Tomasa Romero Solis, Heriberto Gonzalez Najera, Anareli Mendiola Romero, Edgar Mendiola Romero, and Uan Carlos Mendiola Romero's (collectively, “Solis Plaintiffs”) and the cross motion for summary judgment filed by Defendant L. Frank Cissna, United States Citizenship and Immigration Services' (“USCIS”) (“Defendant, ” “USCIS, ” or “Agency”). The court has federal question jurisdiction over this matter pursuant to 28 U.S.C § 1331. For the reasons explained below, Plaintiffs' motion is granted and Defendant's motion is denied.

         BACKGROUND

         Statutory and Regulatory Framework

         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 U Visa 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 (July 1, 2019, 3:29 PM), https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status. In order for a petitioner to qualify for a 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). A “principal” petitioner may file one or more “derivative” petitions on behalf of certain family members. 8 U.S.C. § 1101(a)(15)(U)(ii); 8 C.F.R. § 214.14(f)(2). A petitioner must be admissible to the United States or obtain a waiver of inadmissibility. 8 U.S.C. § 1182(a); 8 C.F.R. § 214.1(a)(3)(i). The petitioner bears the burden of establishing eligibility. 8 C.F.R. § 214.14(c)(4).

         In 2002, Congress created USCIS and assigned it the following functions: (1) adjudications of immigrant visa petitions; (2) adjudications of naturalization petitions; (3) adjudications of asylum and refugee applications; (4) adjudications performed at service centers; and (5) “all other adjudications performed by the Immigration and Naturalization Service immediately before the effective date specified in section 455.” Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat 2135 (2002).

         To obtain a U Visa, the petitioner must file with USCIS 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. 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 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 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 as a result of 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 cooperation with 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).

         On October 17, 2007, USCIS published a rule creating a regulatory waiting list procedure to accommodate meritorious U Visa petitions that exceed the annual statutory cap. 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).

         On December 23, 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act (the “TVPRA”), Pub. L. 110-457, 122 Stat. 5044. The TVPRA specifies that the “Secretary [of DHS] may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 1101(a)(15)(U) of this title.” 8 U.S.C. § 1184(p)(6). The employment authorization document (“EAD”) allows U Visa applicants to seek lawful employment while they await adjudication of their petitions.

         Up until January 2017, the regulation governing authorization of employment provided that “USCIS will adjudicate the [EAD] application within 90 days from the date of receipt of the application, ” and additionally that “[f]ailure to complete the adjudication within 90 days will result in the grant of an employment authorization document for a period not to exceed 240 days.” 8 C.F.R. § 274a.13(d).[1] See ECF No. 65-1 at 5. The U status application form allows for U status principal applicants to request work authorization on the same form used to request U status. This one-step process comported with the rationale in the contemporaneous rulemaking:

For principal aliens seeking their first [work authorization] based upon U nonimmigrant status, USCIS will use the information contained in the Form I-918 to automatically generate [work authorization], such that a separate request for [work authorization] is not necessary . . . . USCIS has designed the Form I-918 so that it serves the dual purpose of requesting U nonimmigrant status and employment authorization to streamline the application process. Therefore, principal aliens will not have to file additional paperwork to obtain an initial [work authorization].

         New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53, 014 (Sep. 17, 2007). See ECF No. 65-1 at 4. USCIS also updated the instructions for work authorization applications to take into account the one-step process for requesting work authorization. See ECF No. 66-1. Those instructions stated:

K. U-1 Nonimmigrant-(a)(19). If you are applying for initial employment authorization as a U-1 nonimmigrant, file Form I-765 only if you did not request an employment authorization document when you applied for U nonimmigrant status. If you have been granted U nonimmigrant status and this is a request for a renewal or replacement of an employment authorization document, file Form I-765 along with evidence of your U nonimmigrant status, such as an approval notice.

Id. at 6. See ECF No. 65-1 at 5.

         Procedural History

         The Solis Plaintiffs initiated this action on January 9, 2018, by filing a complaint asserting the following: USCIS unreasonably delayed adjudicating Plaintiff Tomasa Romero Solis's (“Plaintiff Solis”) U Visa application in violation of the Administrative Procedure Act (“APA”) 5 U.S.C. § 555(b); USCIS unlawfully failed to respond to Plaintiff Solis's Freedom of Information Act (“FOIA”) request; and USCIS unreasonably delayed the initial prima facie determination on the U Visa application, violating Plaintiffs' due process rights. ECF No. 1. Plaintiffs in eight similar cases filed substantively identical complaints.[2] Plaintiffs in all nine cases (“Plaintiffs”) asked the court to order Defendant to (1) make a decision about whether to place the Plaintiffs on the U Visa waiting list, and (2) produce Plaintiffs' alien registration files under FOIA. ECF No. 1. Defendant filed a motion to dismiss, which was mooted by the Solis Plaintiffs' filing of the amended complaint. ECF Nos. 14, 17.

         The amended complaint, which is the operative pleading, omitted the FOIA claim and asserted the following three claims: (1) USCIS has not met its ministerial duty to make U Visa waiting list decisions for eligible U Visa Applicants, therefore, Plaintiffs are entitled to mandamus relief; (2) USCIS has unreasonably delayed adjudicating Plaintiffs' U Visa applications in violation of the APA; and (3) USCIS has unreasonably delayed the initial prima facie determination on the U Visa application, violating Plaintiffs' due process rights. ECF No. 17.[3]

         Defendant again filed a motion to dismiss, ECF No. 18, which the Parties briefed, and on which the court held a hearing, ECF No. 30. The Parties filed supplemental briefs pursuant to the court's direction, ECF Nos. 31, 32, and the court thereafter held a telephonic status conference. ECF No. 34. On August 10, 2018, the court issued an opinion and order granting the motion to dismiss as to the claims for mandamus relief and violation of procedural due process. The court denied the motion to dismiss as to the APA claim. ECF No. 35. The APA claim is therefore the sole claim remaining before the court. Shortly thereafter, Defendant filed an answer, ECF No. 37, the court entered a scheduling order, ECF No. 38, and the Parties stipulated to a briefing schedule for producing the certified administrative record and filing and briefing an associated motion for summary judgment.

         On September 5, 2018, the Solis Plaintiffs filed a combined motion for judgment on the pleadings and motion to strike parts of Defendant's answer, ECF No. 40, which the parties briefed, and on which the court held a hearing, ECF No. 49. Defendant also filed a motion to consolidate this action with the other eight cases pending before this court. ECF No. 47. Plaintiffs stipulated to the motion to consolidate, ECF No. 50, and the court granted the motion on December 4, 2018, ECF No. 57.[4] On November 28, 2018, the court issued an opinion and order denying the motion for judgment on the pleadings and granting in part and denying in part the motion to strike, granting Defendant leave to replead its answer. ECF No. 52. Defendant filed its amended answer on December 11, 2018. ECF No. 59.

         The Solis Plaintiffs filed their motion for summary judgment on December 21, 2018. ECF Nos. 65, 66. Defendant filed its response and cross motion for summary judgment on February 22, 2019. ECF No. 77. The Solis Plaintiffs filed their joint reply in support of summary judgment and response to Defendant's motion on March 8, 2019, ECF No. 78, and Defendant filed its reply on March 22, 2019, ECF No. 79.[5] The Solis Plaintiffs seek two forms of relief: an order compelling Defendant to issue work authorization immediately under 8 U.S.C. § 1184(p)(6); and an order compelling Defendant to render a decision within 30 days on their eligibility to be placed on the waiting list. ECF No. 65-1 at 2. Defendant seeks summary judgment in its favor that the delay in adjudicating Plaintiffs' petitions is reasonable.

         LEGAL STANDARD

         Summary judgment is appropriate when the materials in the record show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” and a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Rule 56(c) provides guidance on how parties to an action shall reference the evidence of record to show that a fact cannot be or alternatively is genuinely disputed. Fed.R.Civ.P. 56(c). However, in a case arising under the APA, “the ordinary summary judgment standard under Rule 56(c) [] does not apply.” Hyatt v. U.S. Patent & Trademark Office, 146 F.Supp.3d 771, 780 (E.D. Va. 2015). In an action asserting unreasonable delay, such as here, summary judgment “serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA.” Id. (quoting Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006)).

         UNDISPUTED FACTS

         The following facts are material to the disposition of the motions for summary judgment and are not disputed.

         Individual Plaintiffs

         Plaintiff Solis is a national and citizen of Mexico. Stipulated Record (“SR”) at 0020, 0036, 0037, 0039, 0089, 0093.[6] On March 2, 2015, Plaintiff Solis filed an I-918, Petition for U Nonimmigrant Status (“I-918 Petition”). SR at 0106, 0113. In her I-918 Petition, Plaintiff Solis requested work authorization. SR at 0021. Plaintiff Solis concurrently filed an I-918 Supplement A Petition for Qualifying Family Member of U-1 Recipient (“Supplement A Petition”) for her husband, Heriberto Gonzalez Najera. SR at 0116. The same day, Heriberto Gonzalez Najera filed an I-765 Application for Employment Authorization. SR at 0149. Also on March 2, 2015, Plaintiff Solis filed Supplement A Petitions for her children Anareli Mendiola Romero, SR at 0170, Edgar Mendiola Romero, SR at 0186, and Juan Carlos Mendiola Romero, SR at 0202. On March 6, 2015, USCIS determined Plaintiff Solis's I-918 Petition was complete and sent a notice of receipt to Plaintiff Solis's attorney of record. SR at 0106. As of the date Plaintiffs filed their motion for summary judgment, USCIS had taken no adjudicatory action on the principal or supplemental petitions, which had then been pending for three years and nine months, or 45 months. In March 2019, USCIS issued requests for evidence to Plaintiffs Solis and Heriberto Gonzalez Najera. ECF No. 79 at 7 n.4. ECF Nos. 79-4, 79-5.

         Plaintiff Aldemira Morales Perez is a national and citizen of Mexico. On September 25, 2015, Plaintiff Perez filed an I-918 Petition, in which she sought work authorization. ECF No. 66 at ¶ 15.[7] Plaintiff Perez concurrently filed a Supplement A Petition for her husband, Leobardo Roblero Gonzalez. Id. at ¶ 17. The same day, Leobardo Roblero Gonzalez filed an I- 765 Application for Employment Authorization. Id. at ¶ 18. Also on September 25, 2015, Plaintiff Perez filed Supplement A Petitions for her children Osmar Roblero Morales, Dulce Maria Roblero Morales, Exal Eduardo Roblero Morales, and Rita Edali Roblero Morales. Id. at ¶¶ 19-22. On September 28, 2015, USCIS determined Plaintiff Perez's I-918 Petition was complete and sent a notice of receipt to Plaintiff Perez's attorney of record. Id. at ¶ 16. USCIS has since taken no adjudicatory action on the principal or supplemental petitions, which had been pending for three years and three months, or 39 months, as of the date the Solis Plaintiffs filed their motion for summary judgment. Id. at ¶¶ 23-24.

         Plaintiff Adrian Hernandez Lopez is a national and citizen of Mexico. On November 15, 2015, Plaintiff Lopez filed an I-918 Petition, in which he sought work authorization. ECF No. 66 at ¶¶ 27-28. Plaintiff Lopez concurrently filed a Supplement A Petition for his wife, Adela Morales Gonzalez. Id. at ¶ 30. That same day, Adela Morales Gonzalez filed an I-765 Application for Employment Authorization. Id. at ¶ 31. On November 13, 2015, USCIS determined Plaintiff Lopez's I-918 Petition was complete and sent a notice of receipt to Plaintiff Lopez's attorney of record. Id. at ¶ 29. USCIS has since taken no adjudicatory action on the principal or supplemental petitions, which had been pending for three years and one month, or 37 months, as of the date the Solis Plaintiffs filed their motion for summary judgment. Id. at ¶¶ 32-33.

         Plaintiff Andrea Pioquinto Mata is a national and citizen of Mexico. On October 23, 2015, Plaintiff Mata filed an I-918 Petition, in which she sought work authorization. ECF No. 66 at ¶¶ 36-37. On October 26, 2015, USCIS determined Plaintiff Mata's I-918 Petition was complete and sent a notice of receipt to Plaintiff Mata's attorney of record. Id. at ¶ 38. USCIS has since taken no adjudicatory action on Plaintiff Mata's petition, which had been pending for three years and one month, or 37 months, as of the date the Solis Plaintiffs filed their motion for summary judgment. Id. at ¶¶ 39-40.

         Plaintiff Catalina Aurelia Garcia Santiago is a national and citizen of Mexico. On January 12, 2015, Plaintiff Santiago filed an I-918 Petition, in which she sought work authorization. ECF No. 66 at ¶¶ 43-44. Plaintiff Santiago concurrently filed a Supplement A Petition for her husband, Vinicio Alberto Perez Gutierrez. Id. at ¶ 46. That same day, Vinicio Alberto Perez Gutierrez filed an I-765 Application for Employment Authorization. Id. at ¶ 47. On January 13, 2015, USCIS determined Plaintiff Santiago's I-918 Petition was complete and sent a notice of receipt to Plaintiff Santiago's attorney of record. Id. at ¶ 45. As of the date the Solis Plaintiffs filed their motion for summary judgment USCIS had taken no adjudicatory action on the principal or supplemental petitions, which had been pending for three years and eleven months, or 47 months. Id. at ¶¶ 48-49. In March 2019, USCIS notified Plaintiffs Santiago and Vinicio Alberto Perez Gutierrez that they are eligible to be placed on the waiting list. ECF No. 79 at 7 n.4; ECF Nos. 79-1, 79-2.

         Plaintiff Francisco Eusebio Perez Gutierrez is a national and citizen of Mexico. On November 9, 2015, Plaintiff Gutierrez filed an I-918 Petition, in which he sought work authorization. ECF No. 66 at ¶¶ 52-53. On November 12, 2015, USCIS determined Plaintiff Gutierrez's I-918 Petition was complete and sent a notice of receipt to Plaintiff Gutierrez's attorney of record. Id. at ¶ 54. USCIS has since taken no adjudicatory action on Plaintiff Gutierrez's petition, which had been pending for three years and one month, or 37 months, as of the date the Solis Plaintiffs filed their motion for summary judgment. Id. at ¶¶ 55-56. Plaintiff Maria de Jesus Solano Martinez is a national and citizen of Mexico. On June 8, 2015, Plaintiff Martinez filed an I-918 Petition, in which she sought work authorization. ECF No. 66 at ¶¶ 59-60. On June 10, 2015, USCIS determined Plaintiff Martinez's I-918 Petition was complete and sent a notice of receipt to Plaintiff Martinez's attorney of record. Id. at ¶ 61. USCIS has since taken no adjudicatory action on Plaintiff Martinez's petition, which had been pending for three years and six months, or 42 months, as of the date the Solis Plaintiffs filed their motion for summary judgment. Id. at ¶¶ 62-63.

         Plaintiff Lorena Imelda Roblero Berduo is a national and citizen of Mexico. On May 18, 2015, Plaintiff Berduo filed an I-918 Petition, in which she sought work authorization. ECF No. 66 at ¶¶ 66-67. On May 20, 2015, USCIS determined Plaintiff Berduo's I-918 Petition was complete and sent a notice of receipt to Plaintiff Berduo's attorney of record. Id. at ¶ 68. USCIS has since taken no adjudicatory action on Plaintiff Berduo's petition, which had been pending for three years and seven months, or 43 months, as of the date the Solis Plaintiffs filed their motion for summary judgment. Id. at ¶¶ 69-70.

         Plaintiff Evelia Barrientos Urias is a national and citizen of Mexico. On March 2, 2015, Plaintiff Urias filed an I-918 Petition, in which she sought work authorization. ECF No. 66 at ¶¶ 73-74. Plaintiff Urias concurrently filed a Supplement A Petition for her husband, Gilberto Garcia Uriostegui. Id. at ¶ 76. That same day, Gilberto Garcia Uriostegui filed an I-765 Application for Employment Authorization. Id. at ¶ 77. On March 4, 2015, USCIS determined Plaintiff Urias's I-918 Petition was complete and sent a notice of receipt to Plaintiff Urias's attorney of record. Id. at ¶ 75. USCIS has since taken no adjudicatory action on Plaintiff Urias's petition, which had been pending for three years and nine months, or 45 months, as of the date the Solis Plaintiffs filed their motion for summary judgment. Id. at ¶¶ 78-79. In March 2019, USCIS issued a request for evidence to Plaintiff Urias. ECF No. 79 at 7 n.4. ECF No. 79-3.

         There is no dispute regarding the contents of Plaintiffs' petitions.

         USCIS's Allocation of Resources

         In 2017, the last reported fiscal year, USCIS's operating budget was $4, 179, 364. Dept. of Homeland Security, FY 2019 Budget in Brief at 70. Congressional appropriations accounted for only 2.85 percent of the budget ($119, 139, 000) and USCIS generated the remaining 97.15 percent of its budget by charging fees for certain benefit applications. Id. In setting fees, USCIS balances its mission of administering benefits against the need to ...


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