United States District Court, E.D. North Carolina
TERRENCE W. BOYLE, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on defendants' motions.
Defendants have moved to stay their answer deadline [DE 12],
to dismiss plaintiff Gonzalez's complaint [DE 13], to
obtain an extension of time to file a motion to dismiss the
consolidated case [DE 18], and to dismiss the-consolidated
case [DE 20]. Defendants have also moved to seal some of the
filings. [DE 15, 22, 27]. All of these matters have been
fully briefed and are ripe for disposition. For the reasons
that follow, defendants' motion to stay the answer
deadline [DE 11] and first motion to dismiss [DE 13] are
DENIED AS MOOT, defendants' motion for an extension of
time [DE 18] is GRANTED, defendants' second motion to
dismiss [DE 20] is GRANTED, and the motions to seal [DE 15,
22, 27] are GRANTED.
are citizens of Mexico and Honduras who have completed U.S.
Citizenship and Immigration Services (USCIS) Form 1-918 and
petitioned for U Nonimmigrant Status under 8 U.S.C. §
1101(a)(15)(U). Plaintiffs each filed their U-Visa petitions
at least 30 months ago, between June 2015 and July 2016, and
their petitions have not yet been processed. Each of the
plaintiffs either checked a box on their U-Visa petitions
indicating that they requested work authorization or
completed Form 1-765 to apply for work authorization. As of
February 2019, defendants had not taken any action on
plaintiffs' U-Visa petitions or work authorization
requests and had not yet placed any of the plaintiffs on the
U-Visa waiting list. While waiting for the adjudication of
their U-Visa petitions and work authorizations, each
plaintiff also submitted a Freedom of Information Act (FOIA)
request on June 25, 2018. In November 2018, USCIS produced
documents in response to plaintiffs' FOIA requests.
October 2000, Congress passed the Victims of Trafficking and
Violence Protection Act of 2000, Pub. L. 106-386, 114 Stat.
1464, amending the Immigration and Nationality Act and
creating the U-Visa Program. The U-Visa Program is meant to
provide immigration relief to certain crime victims who
cooperate with law enforcement in the investigation or
prosecution of a crime. 8 U.S.C. § 1101(a)(15)(U). To
qualify, a petitioner must demonstrate "that he or she
has suffered substantial physical or mental abuse as a result
of having been a victim of a qualifying crime, has credible
or reliable information about the crime, has or is helping
law enforcement in prosecuting the crime, and is admissible
to the United States." 8 C.F.R. § 214.14(b); 8
F.C.R. § 214.1(a)(3). To apply, a petitioner must submit
Form 1-918 along with a sworn certification from a law
enforcement officer stating that the petitioner was a victim
of a qualifying crime and helpful in the resulting
investigation or prosecution. 8 C.F.R. § 214.14.
Defendant USCIS then reviews and processes the petition at
one of two service centers, mostly in the order in which the
petitions are received. USCIS policy authorizes the agency,
at its discretion, to expedite the adjudication of certain
petitions provided they meet certain criteria. See
USCIS, Policy Manual, Volume 1, Part A, Chapter 12 (Feb. 12,
2019). Otherwise, petitions are processed in the order they
can only issue 10, 000 U Visas per fiscal year. 8 U.S.C.
§ 1184(p)(2). The number of U-Visa petitions submitted
each year greatly exceeds that statutory cap. There is also a
large backlog of U-Visa petitions and as of January 2019, the
processing date was November 2014. In other words, on
average, a petitioner must wait 50 months to receive a
waiting list decision after filing a U-Visa petition. Once
the statutory cap of 10, 000 visas has been reached for a
fiscal year, "[a]ll eligible petitioners who, due solely
to the cap, are not granted U-l non-immigrant status must be
placed on a waiting list." 8 C.F.R. § 214.14(d)(2).
Prior to placement on the waiting list, USCIS conducts a
substantive review of the petition to determine whether the
statutory cap is the sole obstacle to the granting of a U
petitioner receives a U Visa, he or she also receives
corresponding employment authorization. But when a U-Visa
petitioner is placed on the waiting list, "in its
discretion, USCIS may authorize employment for such
petitioners and qualifying family members." 8 C.F.R.
§ 214.14(d)(2). In December 2008, Congress enacted the
William Wilberforce Trafficking Victims Protection
Reauthorization Act, Pub. L. 110-457, 122 Stat. 5044. The
statute included a new provision, codified at 8 U.S.C. §
1184(p)(6), providing that the Secretary of the Department of
Homeland Security "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." Defendants interpret 8 U.S.C. § 1184(p)(6)
as a discretionary statute and have not "separately
implemented" it. [DE 21, p. 13]. So, to summarize, there
are currently two routes to work authorization: receipt of a
U Visa or, subject to USCIS's discretion, placement on
the waiting list. Here, plaintiffs request a third route,
arguing that 8 U.S.C. § 1184(p)(6) requires USCIS to
timely adjudicate work authorizations for petitioners who
have not yet been placed on the waiting list or received a U
2018, plaintiffs initiated the instant actions against USCIS
and its director. Plaintiffs assert five causes of action:
(1) that USCIS has unreasonably failed to provide them with
work authorizations under 8 U.S.C. § 1184(p)(6), in
violation of the "Mandamus Act"; (2) that USCIS has
unreasonably delayed the adjudication of their work
authorizations under 8 U.S.C. § 1184(p)(6), in violation
of the Administrative Procedure Act (APA); (3) that USCIS has
unreasonably delayed the adjudication of their work
authorization applications, Form 1-765, in violation of the
APA; (4) that USCIS has unreasonably delayed placing
plaintiffs on the U-Visa waiting list, in violation of the
APA; and (5) that USCIS has unlawfully withheld documents in
response to plaintiffs' FOIA requests. Plaintiffs amended
their complaints in November 2018, and in December 2018 the
Court consolidated the above-captioned cases for the purposes
of discovery and motions filing.
January 2019, defendants moved to dismiss plaintiffs'
complaints under Federal Rule of Civil Procedure 12(b)(1) for
lack of subject-matter jurisdiction and Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted. [DE 20]. Plaintiffs have responded in
outset, the Court denies as moot defendants' motion to
stay the deadline to respond to one of plaintiff
Gonzalez's claims and denies as moot defendants'
first motion to dismiss, given that since that time the
above-captioned cases have been consolidated and amended
complaints have been filed. For good cause shown, in light of
the complexity and consolidated nature of the case,
defendants' motion for an extension of time is allowed,
and defendants' second motion to dismiss is therefore
have moved to dismiss two of plaintiffs' causes of action
for lack of subject-matter jurisdiction under Rule 12(b)(1).
The existence of subject-matter jurisdiction is a threshold
question that a court must address before considering a
case's merits. Steel Co. v. Citizens for a Better Env
't, 523 U.S. 83, 88-89 (1998). "Subject-matter
jurisdiction cannot be forfeited or waived and should be
considered when fairly in doubt." Ashcroft v.
Iqbal, 556 U.S. 662, 671 (2009) (citation omitted). When
subject-matter jurisdiction is challenged, the plaintiff has
the burden of proving jurisdiction to survive the motion.
Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th
Cir. 1999). When a facial challenge to subject-matter
jurisdiction is raised, the facts alleged by the plaintiff in
the complaint are taken as true, "and the motion must be
denied if the complaint alleges sufficient facts to invoke
subject-matter jurisdiction." Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009). The Court can
consider evidence outside the pleadings without converting
the motion into one for summary judgment. See, e.g.,
Evans, 166 F.3d at 647.
have also moved to dismiss all of plaintiffs' causes of
action for failure to state a claim upon which relief can be
granted under Rule 12(b)(6). When considering a motion to
dismiss under Rule 12(b)(6), "the court should accept as
true all well-pleaded allegations and should view the
complaint in a light most favorable to the plaintiff."
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993). A complaint must state a claim for relief that is
facially plausible. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). Facial plausibility means that the
court can "draw the reasonable inference that the
defendant is liable for the misconduct alleged," as
merely reciting the elements of a cause of action with the
support of conclusory statements does not suffice.
Iqbal, 556 U.S. at 678. The Court need not accept
the plaintiffs legal conclusions drawn from the facts, nor
need it accept unwarranted inferences, unreasonable
conclusions, or arguments. Philips v. Pitt County Mem.
Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Plaintiffs' mandamus ...