JAIME PEREZ BRUNO EDITH PEREZ LARA PATRICIO RAMÍREZ SANCHEZ JORGE LUIS SANCHEZ HERRERA CAN KUTLUOZEN ANA SALAZAR CALDERON ARMANDO LOVERA DIANA AYCACHI MAMANI SANDRO GARCIA MARTINEZ RIGOBERTO GIL BERNARDINO RUBICELA GIL BERNARDINO ABDULLAH ASGHAR JESICA AUXILIADORA MARENCO ALGUERA FRANCIS ANDREA RUIZ MARENCO ENKHBAYAR NYAMSAMBUU BAYARMAA DAMBADORJ FRANCISCO JORGE RAMIREZ SONIA VERONICA CHAVEZ MORENO MARIA RIVERA GONZALES LUIS HERNANDEZ JUAN ESQUIVEL LORENA RODRIGUEZ ANA MENJIVAR JOS TORRES LUIS ANTONIO YANEZ AGUIRRE CLAUDIA AGUIRRE LOPEZ MARCO ANTONIO YANEZ ALBA MARCO ALEJANDRO YANEZ AGUIRRE VIRIDIANA BERENICE MIGUEL DONATO JESUS SOLORZANO JUAREZ MILTON ALVAREZ MARTINEZ ERIKA RIVAS SARA ESPINOZA MARTINEZ VERONICA ARECELY RODRÍGUEZ AYALA GLENDA PACHECO CARRANZA ESTELA CARRANZA JORGE PACHECO CHUMBA ENRIQUE FELIX TORRES FRANCISCO ESPINOZA SOSA ROBINSON ANDRES BENITEZ GONZALEZ RUTH ANGELES LESLIE ZUREIDY BENITEZ ANGELES FLOR CARRILLO MORALES BLANCA UVIDIA MENDOZA MENDOZA SERGIO DELGADO GALLEGOS OCTAVIO LUJAN GARCIA JEZDIN BRISELDA ESPINOZA ARIAS LESLY DENISSE LUJAN ESPINOZA CAMILA YAMILETH LUJAN ESPINOZA YESICA LILIANA MUELA PANDO MELVIN ALEJA PIMENTEL CLAUDIA RECINOS RAMIREZ NORMA ANGELICA DELGADO CHAVEZ CARLOS GERARDO SANCHEZ MARTINEZ CARLOS GERARDO SANCHEZ DELGADO ANGELICA JIMENA SANCHEZ DELGADO DUNG NGOC THI NGUYEN LIEN NGOC THI LE HUY NGOC NGUYEN ERIKA JUDITH LLAMAS SOLTERO NAVEEN SURAPANENI ROLAND VILLAMOR BATTSEREN BAATAR HETULKUMAR PATEL MARTHA ANTONIO GUTIERREZ FLOR DE MARIA LIU MARTINEZ KAMALPREET SINGH v. DIRECTOR OF CITIZENSHIP IMMIGRATION SERVICES (2025)

ORDER ON MOTION TO DISMISS

This matter comes before the Court on the Motion to Dismiss (or “Motion”), filed by Defendant Director of U.S. Citizenship and Immigration Services (“Defendant” or “USCIS”). [Doc. 11, filed June 18, 2024]. Plaintiffs have responded in opposition, [Doc. 14], and Defendant has replied, [Doc. 17]. The Court finds that oral argument would not materially assist in the disposition of the Motion to Dismiss. Upon review of the Motion and the related briefing, the applicable case law, and the entire docket, the Motion to Dismiss is respectfully GRANTED in part and DENIED in part.

BACKGROUND

Plaintiffs are 68 non-citizens who have applied for lawful nonimmigrant status under 8 U.S.C. § 1101(a)(15)(U), also known as a “U visa.” See [Doc. 1 at ¶¶ 1–69]. U visas are available in certain circumstances to victims of qualifying crimes and their immediate family members. See § 1101(a)(15)(U). Plaintiffs seek an order from the Court compelling USCIS to take action related to their pending U visa applications. [Doc. 1 at 59–60].

I. Legal Background

Congress created the U visa program through the Victims of Trafficking and Violence Protection Act of 2000 (“VTVPA”), Pub. L. 106-386, 114 Stat. 1464. The VTVPA was intended to “strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and [certain] other crimes ․ while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States.” Pub. L. 106-386, § 1513(a)(2)(A). The statute authorizes USCIS to issue U visas to victims of specified crimes who cooperate with law enforcement authorities in the investigation or prosecution of the crime. 8 U.S.C. § 1101(a)(15)(U)(i), (iii). A principal U visa petitioner may also apply for a derivative U visa for immediate family members. 8 U.S.C. § 1101(a)(15)(U)(ii); 8 C.F.R. § 214.14(f). When USCIS approves a U visa petition, the individual receives lawful nonimmigrant status and employment authorization for up to four years. See 8 U.S.C. §§ 1184(p)(3)(B), (p)(6); 8 C.F.R. § 274a.12(a)(19).

The VTVPA limits the number of principal U visas available each year to 10,000. 8 U.S.C. § 1184(p)(2). Anticipating the statutory cap would be met soon after enactment, 72 Fed. Reg. 53,014, 53,027 (Sept. 17, 2007), USCIS promulgated regulations establishing a waiting list process, see 8 C.F.R. § 214.14(d)(2). An eligible petitioner who cannot receive a U visa “due solely to the cap ․ must be placed on a waiting list.” Id. When granting new U visas, USCIS prioritizes the petitioners who have been waiting the longest. Id.

USCIS can grant some interim benefits to U visa petitioners on the waiting list. Congress authorized USCIS to “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). Once USCIS places a petitioner on the waitlist, “USCIS will grant deferred action or parole to [U visa] petitioners and qualifying family members while the [U visa] petitioners are on the waitlist.” 8 C.F.R. § 214.14(d)(2). “Deferred action” means that, as an “exercise in administrative discretion,” “no action will thereafter be taken to proceed” with an applicant's removal. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999) (quotation omitted). Parole allows a non-citizen to enter the United States temporarily while investigation of eligibility for admission takes place. See Succar v. Ashcroft, 394 F.3d 8, 15 (1st Cir. 2005).

Due to the “growing backlog awaiting placement on the waiting list,” USCIS issued a Policy Alert creating a bona fide determination (“BFD”) process for petitioners on the waiting list. See [Doc. 1-5 (“BFD Policy Alert”)]. Under the BFD process, USCIS can grant employment authorization and deferred action for four years to petitioners and qualifying family members once it determines their U visa application is bona fide, without “completing a full waiting list adjudication.” [Id. at 2.] The BFD Policy Alert explains that “USCIS will generally not conduct waiting list adjudications for noncitizens who have been granted BFD [employment authorization] and deferred action. Instead, their next adjudicative step will be final adjudication for [U visa] nonimmigrant status when space is available under the statutory cap.” [Id.]. Put differently, once a petitioner receives a BFD, USCIS will not grant them a waiting list decision (“WLD”). But the BFD Policy Alert does not provide for a grant of parole to petitioners who receive a BFD. See [id.]; De Sousa v. Dir. of U.S. Citizenship & Immigr. Servs., 720 F. Supp. 3d 794, 799 (N.D. Cal. 2024).

For Plaintiffs, the critical difference between a BFD and a WLD is the availability of parole. Plaintiffs specifically seek advance parole. See, e.g., [Doc. 1 at ¶ 414]. Advance parole “is issued to an alien residing in the United States who has an unexpected need to travel abroad and whose conditions of stay do not otherwise allow for readmission to the United States.” Succar, 394 F.3d at 15 n.7. Thus, advance parole would permit a petitioner on the waitlist “to leave the country and to reenter lawfully without jeopardizing pending applications for discretionary relief.” Navarro-Aispura v. INS, 53 F.3d 233, 235 (9th Cir. 1995).

II. Factual Background

The Court draws the following facts from the Complaint, [Doc. 1], and assumes they are true for purposes of the Motion.¹ Plaintiffs allege that they have each submitted a U visa petition to USCIS and currently reside in the United States. See generally [id.]. Forty-one Plaintiffs allege that they are principal petitioners; twenty-seven Plaintiffs allege that they are derivative petitioners related to a principal petitioner. [Id. at ¶¶ 1–69]. One Plaintiff, Kamalpreet Singh (“Mr. Singh”), alleges that USCIS placed him on the waiting list but did not grant him advance parole. [Id. at ¶ 187]. The remaining Plaintiffs have received BFDs but have not received a WLD (“BFD Plaintiffs”). [Id. at ¶¶ 146–83]; see also infra note 2. And because USCIS has not placed them on the waiting list, the BFD Plaintiffs allege that they have been unable to request advance parole. See [Doc. 1 at ¶¶ 146–87]. Plaintiffs allege that USCIS's failure to grant them WLDs and advance parole has prevented them from traveling internationally, which has caused them to miss birthdays, funerals, weddings, graduations, and dozens of other important moments with their families. See generally [id. at ¶¶ 146–87].

Plaintiffs bring four claims. First, they allege that USCIS has unlawfully withheld or unreasonably delayed WLDs for the BFD Plaintiffs (“Count One”). [Id. at ¶¶ 316–38]. Second, Plaintiffs allege that USCIS has unreasonably delayed WLDs for Plaintiffs Hetulkumar Patel (“Mr. Patel”), Martha Antonio Gutierrez (“Ms. Gutierrez”), and Flor De Maria Liu Martinez (“Ms. Liu Martinez”) (“Count Two”). [Id. at ¶¶ 339–91].² Third, Plaintiffs allege that USCIS has unlawfully withheld advance parole from Mr. Singh ³ after granting him a WLD (“Count Three”). [Id. at ¶¶ 392–97]. Fourth, Plaintiffs allege that USCIS's denial of advance parole to Mr. Singh was arbitrary and capricious (“Count Four”). [Id. at ¶¶ 398–404]. Plaintiffs assert all four claims under the Administrative Procedure Act (“APA”). 5 U.S.C. §§ 702, 706(1).

In the Motion, USCIS asks the Court to dismiss all four claims. See [Doc. 11]. USCIS contends that Plaintiffs lack standing to assert Count One, that Count Two should be dismissed as moot, and that Counts Three and Four should be dismissed as unreviewable under the APA. [Id.]. The Court considers the respective arguments below.

LEGAL STANDARD

Defendant's standing and mootness arguments implicate the Court's subject matter jurisdiction. See In re Yellow Cab Coop. Ass'n, 132 F.3d 591, 594 (10th Cir. 1997). Under Rule 12(b)(1), a court may dismiss an action for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “Dismissal under Rule 12(b)(1) is not a judgment on the merits of the plaintiff's claim. Instead, it is a determination that the court lacks authority to adjudicate the matter.” Creek Red Nation, LLC v. Jeffco Midget Football Ass'n, 175 F. Supp. 3d 1290, 1293 (D. Colo. 2016). “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013) (quotation omitted). The burden of establishing jurisdiction rests with the party asserting jurisdiction. Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017). Attacks on subject matter jurisdiction may take two different forms—a facial attack or a factual attack—which implicate different analytical frameworks. The United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) has explained that

Motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may take one of two forms. First, a party may make a facial challenge to the plaintiff's allegations concerning subject matter jurisdiction, thereby questioning the sufficiency of the complaint. In addressing a facial attack, the district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. In addressing a factual attack, the court does not presume the truthfulness of the complaint's factual allegations, but has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).

United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001) (quotations and citations omitted)).

Here, the Court construes Defendant's challenge to the Court's subject matter jurisdiction as a facial attack. Although Defendant has attached documents to its Motion, [Doc. 11-1; Doc. 11-2; Doc. 11-3], the documents are only submitted to clarify the conflicting allegations in the Complaint as to whether USCIS granted BFDs to Mr. Patel, Ms. Gutierrez, and Ms. Liu Martinez. Compare [Doc. 1 at ¶ 339 (alleging no BFD or WLD for these three Plaintiffs)], with [id. at ¶¶ 184, 186 (listing Mr. Patel and Ms. Liu Martinez as BFD Plaintiffs)]. Plaintiffs do not dispute that Plaintiffs Patel, Gutierrez, and Liu Martinez have now received BFDs. [Doc. 14 at 1 n.1]. Because the Parties agree on the sole jurisdictional fact challenged by the Motion, the Court treats the Motion as a facial attack and takes as true the Complaint's factual allegations outside of paragraph 339. See Scull v. Wolf, No. 20-cv-01624-NYW, 2020 WL 7384842, at *1 n.2 (D. Colo. Dec. 16, 2020) (construing motion as facial attack where defendant described its challenge as “primarily facial” and plaintiff did not dispute the sole factual issue raised in the motion).

ANALYSIS

I. Count One: Unlawful Withholding or Unreasonable Delay of WLDs

Defendant argues that Count One should be dismissed for lack of standing. [Doc. 11 at 9–12]. “The standing inquiry ensures that a plaintiff has a sufficient personal stake in a dispute to ensure the existence of a live case or controversy which renders judicial resolution appropriate.” Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004). To establish standing, a plaintiff must show he (1) suffered an injury in fact that (2) is fairly traceable to the defendant's conduct and (3) can be redressed by a favorable judicial decision. See Baker v. USD 229 Blue Valley, 979 F.3d 866, 871 (10th Cir. 2020). Because the elements of standing “are not mere pleading requirements but rather an indispensable part of the plaintiff's case,” a plaintiff must demonstrate each element of standing “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). “In addressing standing at the motion-to-dismiss stage of the[ ] proceedings, [courts] must accept as true all material allegations of the complaint, and must construe the complaint in favor of the Plaintiffs, as complaining parties.” Coll v. First Am. Title Ins. Co., 642 F.3d 876, 892 (10th Cir. 2011) (cleaned up).

USCIS focuses on the injury-in-fact element of standing. [Doc. 11 at 9–11]. USCIS contends that the BFD Plaintiffs have not suffered an injury in fact because “they have already received all the interim benefits of a favorable waitlist review determination: deferred action and [employment authorization].” [Id. at 10]. USCIS claims that for Plaintiffs living in the United States, receiving a BFD does not qualify them for advance parole, because USCIS, in practice, only grants advance parole to petitioners located outside the United States. [Id.]; see also [Doc. 17 at 6]. Plaintiffs respond that a BFD deprives Plaintiffs of a WLD and the opportunity to apply for advance parole, which constitutes an injury in fact. See [Doc. 14 at 2–3]. Plaintiffs further argue that a BFD-holder's inability to apply for advance parole prevents the BFD Plaintiffs from traveling abroad because they could not obtain parole for reentry. [Id. at 3].

The injury-in-fact requirement “involves invasion of a legally protected interest that is concrete, particularized, and actual or imminent.” Citizen Ctr. v. Gessler, 770 F.3d 900, 910 (10th Cir. 2014). To satisfy this requirement, a plaintiff must allege more than “a bare procedural violation, divorced from any concrete harm.” Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016). “[A] plaintiff suffers a constitutionally cognizable injury by the loss of an opportunity to pursue a benefit ․ even though the plaintiff may not be able to show that it was certain to receive that benefit had it been accorded the lost opportunity.” CC Distribs., Inc. v. United States, 883 F.2d 146, 150 (D.C. Cir. 1989); accord Ecosystem Inv. Partners v. Crosby Dredging, LLC, 729 F. App'x 287, 292–93 (5th Cir. 2018) (describing “a well-established line of cases holding that loss of a non-illusory opportunity to pursue a benefit constitutes injury in fact”). Although the Tenth Circuit has not addressed this precise issue, it has recognized in other contexts that a loss of an opportunity for a benefit constitutes an injury in fact—even when the benefit is not guaranteed. See Wyoming ex rel. Sullivan v. Lujan, 969 F.2d 877, 881 (10th Cir. 1992).

The weight of authority from other Circuits indicates that even in the immigration context, where the ultimate benefit sought lies within agency discretion, a lost opportunity may still establish injury in fact. See Garcia v. Sessions, 873 F.3d 553, 556 (7th Cir. 2017) (holding that denial of right to apply for asylum was an injury in fact, even though government's decision of whether to grant asylum would be wholly discretionary); Mantena v. Johnson, 809 F.3d 721, 731 (2d Cir. 2015) (“[E]ven if USCIS ultimately decides not to grant [the plaintiff] a green card, the ‘lost opportunity is itself a concrete injury.’ ” (quoting Patel v. U.S. Citizenship & Immigr. Servs., 732 F.3d 633, 638 (6th Cir. 2013))). Applying the “lost opportunity” theory of injury, district courts have held in identical circumstances that a U visa applicant living in the United States who receives a BFD rather than a WLD suffers a concrete injury by virtue of the lost opportunity to seek advance parole. See, e.g., Jesus v. Jaddou, No. 2:23-cv-00034-GWC, slip op. at 10–12 (D. Vt. June 13, 2024) (holding that deprivation of opportunity to be considered for advanced parole constituted injury in fact); De Sousa, 720 F. Supp. 3d at 802 (“[W]hile USCIS retains discretion to deny advance parole in the end, the BFD Plaintiffs have suffered a concrete injury by losing the opportunity to even be considered for it.”); Mir v. Jaddou, No. 4:23-cv-03046-JFB-MDN, slip op. at 11–12 (D. Neb. Dec. 8, 2023) (“[R]egardless of how USCIS may implement the regulation, the language allows for it to grant parole to those on the waitlist, a benefit the bona fide determination process does not contemplate.”). But see Argueta v. Jaddou, No. 4:23-cv-03002-BCB, 2023 WL 8082113, at *8 (D. Neb. Nov. 21, 2023) (holding that individuals with BFDs did not establish injury in fact because USCIS has discretion to grant parole, so plaintiffs were “not denied anything to which they [were] entitled”).

This Court is persuaded that the BFD Plaintiffs have adequately alleged an injury in fact. USCIS does not dispute that petitioners with a BFD cannot be considered for advance parole. For petitioners with WLDs living in the United States, it is true that USCIS may choose not to grant parole pursuant to agency practice. But those discretionary decisions are distinct from cases holding that a lost opportunity is not a cognizable injury where the plaintiff was otherwise unqualified or ineligible for the benefit sought. See Aguilar-Alvarez v. Holder, 528 F. App'x 862, 868 (10th Cir. 2013) (holding that inmate seeking to file habeas petition lacked standing because inmate's habeas action was time-barred and any opportunity to pursue habeas relief would be “illusory”); Day v. Bond, 500 F.3d 1127, 1135 (10th Cir. 2007) (observing that “in a case concerning the denial of an equal opportunity to compete, ․ the plaintiff must show he is not disqualified from competing because of nondiscriminatory eligibility criteria”). USCIS's regulations make clear that any U visa petitioner with a WLD is eligible to be considered for advance parole. 8 C.F.R. § 214.14(d)(2). Because the denial of a WLD carries with it the loss of parole consideration, that denial is more than a mere procedural violation and constitutes an injury in fact.

The Court also finds that the BFD Plaintiffs have adequately alleged the two remaining elements of standing. USCIS's refusal to consider WLD for the BFD Plaintiffs is redressable by court order. See De Sousa, 720 F. Supp. 3d at 803 (“When properly framed as the lost opportunity to seek parole, the BFD Plaintiffs’ injury is plainly remediable by a court order requiring waiting list decisions within a reasonable time.”). Similarly, the BFD Plaintiffs’ lost opportunity is traceable to the USCIS conduct and policies at issue in this case. Accordingly, the Motion is DENIED as to Count One.

II. Count Two: Unreasonably Delayed WLDs

Count Two alleges that USCIS has unreasonably delayed WLDs and taken no action on the U visa petitions for Plaintiffs Hetulkumar Patel, Martha Antonio Gutierrez, and Flor De Maria Liu Martinez. [Doc. 1 at ¶ 339]. However, as discussed above, it is undisputed that all three of these Plaintiffs have received BFDs. See [Doc. 11-1; Doc. 11-2; Doc. 11-3; Doc. 14 at 1 n.1]. USCIS argues that this development means Count Two should be dismissed as moot. [Doc. 11 at 8–9]. Plaintiffs counter that Mr. Patel, Ms. Gutierrez, and Ms. Liu Martinez can now proceed under the same theory advanced in Count One. [Doc. 14 at 1 n.1].

The Court respectfully agrees with Plaintiffs. “[A] case becomes moot when a plaintiff no longer suffers actual injury that can be redressed by a favorable judicial decision.” Ind v. Colo. Dep't of Corrs., 801 F.3d 1209, 1213 (10th Cir. 2015) (quotation omitted). Count Two explicitly seeks WLDs, not BFDs, for Plaintiffs Patel, Gutierrez, and Liu Martinez. See, e.g., [Doc. 1 at ¶¶ 371–75, 416]. And the Court has already found that a BFD and WLD are not equivalent, such that denial of a WLD in favor of a BFD is a cognizable injury. See supra Part I. Thus, Plaintiffs Patel, Gutierrez, and Liu Martinez continue to suffer an injury redressable by favorable decision, even though their theory of recovery is now identical to the BFD Plaintiffs covered by Count One. The Motion is respectfully DENIED as to Count Two.

III. Counts Three and Four: Unlawful Withholding of Advanced Parole

Counts Three and Four allege respectively that USCIS unlawfully withheld advanced parole from Mr. Singh and, in doing so, acted arbitrarily and capriciously. [Doc. 1 at ¶¶ 392–404]; see also 5 U.S.C. §§ 706(1), (2). USCIS argues that Counts Three and Four should be dismissed because USCIS's decision of whether to grant parole is discretionary and therefore unreviewable under the APA. [Doc. 11 at 13].⁴

The APA generally provides for judicial review of “agency action,” including an agency's failure to take agency action. 5 U.S.C. §§ 551(13), 702; see also Norton v. S. Utah Wilderness All., 542 U.S. 55, 62–63 (2004). However, the APA exempts from review “agency action [that] is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Discretion may be conferred or restrained by statute or by agency regulations that carry the force of law. See Norton, 542 U.S. at 65.

USCIS regulations state that “USCIS will grant deferred action or parole to [U visa] petitioners and qualifying family members while the [U visa] petitioners are on the waiting list.” 8 C.F.R. § 214.14(d)(2) (emphasis added). USCIS interprets the regulation's use of the word “or” to mean that it has discretion to grant petitioners with a WLD either deferred action or parole. [Doc. 11 at 13]. USCIS maintains that nothing in the regulation—or any other authority—requires it to grant both deferred action and parole. [Id.]. Plaintiffs, on the other hand, focus on the latter half of the regulation. They argue that the regulation's provision that USCIS will grant deferred action or parole “while” petitioners are on the waiting list creates an “ongoing duty” for USCIS to “issue both deferred action and parole depending on the needs of the WLD holder as long as (or while) the principal applicant is on the waiting list.” [Doc. 14 at 6]. Thus, Plaintiffs’ interpretation effectively reads the phrase “as needed” into the regulation: “USCIS will grant deferred action or parole to [U visa] petitioners and qualifying family members [as needed] while the [U visa] petitioners are on the waiting list.” [Id.].

The Court respectfully finds Plaintiffs’ interpretation unpersuasive. Section 214.14(d)(2)’s use of the word “or” plainly gives USCIS discretion to choose between deferred action and parole. See De Sousa, 720 F. Supp. 3d at 805 (“Under § 214.14(d)(2), USCIS is given the option of choosing to grant either deferred action or parole, and is not required to grant both.”); Arenales-Salgado-De-Olivera v. Jaddou, No. 23-cv-61167-CMA, 2024 WL 68291, at (S.D. Fla. Jan. 5, 2024) (“On its face, section 214.14(d)(2) can only be read one natural way: it mandates either advanced parole or deferred action, but not both, leaving USCIS a choice.”), appeal docketed, No. 24-12360 (11th Cir. July 22, 2024). The meaning of the word “or” may be “chameleonlike” in some cases, [Doc. 14 at 5–6], but the Court finds that the word's usual disjunctive meaning applies here, see, e.g., Encino Motorcars v. Navarro, 584 U.S. 79, 87 (2018) (“ ‘[O]r’ is almost always disjunctive.” (quotation omitted)). Plaintiffs’ attempt to slice and dice § 214.14(d)(2)—such that USCIS's two options are either “deferred action” or “parole to [U visa] petitioners and qualifying family members while the [U visa] petitioners are on the waiting list”—makes little sense. [Doc. 14 at 2–3]. That reading would leave the phrase “deferred action” adrift in the regulatory text; it would be unclear when, if ever, USCIS could grant deferred action to a petitioner on the waiting list. See N.M. Cattle Growers Ass'n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1285 (10th Cir. 2001) (“[Courts] will not construe a statute in a way that renders words or phrases meaningless, redundant, or superfluous.”). Moreover, Plaintiffs’ assertion that § 214.14(d)(2) requires USCIS to issue parole “depending on the needs of the WLD holder” has no support in the text of § 214.14(d)(2) or its neighboring subsections. Cf. Encino Motorcars, 584 U.S. at 87–88 (analyzing statutory text to assess whether conjunctive or disjunctive meaning of “or” applies). The Court concludes that § 214.14(d)(2) gives USCIS discretion to grant U visa petitioners on the waiting list either deferred action or parole.

Plaintiffs also argue that USCIS is required to grant advance parole based on the regulatory provision establishing advance parole. See [Doc. 14 at 8–10]. That regulation provides that “[w]hen parole is authorized for an alien who will travel to the United States without a visa, the alien shall be issued an appropriate document authorizing travel.” 8 C.F.R. § 212.5(f). Because § 212.5 does not define when parole is “authorized,” Plaintiffs suggest that § 214.14 should be read as “authorizing” parole for petitioners with WLDs. [Doc. 14 at 9–10]. Thus, Plaintiffs conclude that once a petitioner obtains a WLD, parole has been authorized, and § 212.5(f) requires USCIS to issue a parole document. [Id.].

This Court again concurs with the two courts who have already rejected Plaintiffs’ strained interpretation of § 212.5(f). See De Sousa, 720 F. Supp. 3d at 806; Arenales, 2024 WL 68291, at *11–12.⁵ Plaintiffs’ argument rests on two assumptions. First, that “authorized” means “allowed” or “permitted.” Arenales, 2024 WL 68291, at *12. Second, that the requirement that USCIS issue an “appropriate document authorizing travel” compels USCIS to issue “parole travel documents” with the legal effect of parole. [Doc. 14 at 4]. Taken together, Plaintiffs’ assumptions read § 212.5(f) to mean that parole is required anywhere parole is permitted. This interpretation is neither logical nor consistent with the broader statutory and regulatory scheme. Such a reading would effectively eliminate the meaning of the word “or” from § 214.14(d)(2), which gives USCIS a choice between parole and deferred action. De Sousa, 720 F. Supp. 3d at 806; see Duncan v. Walker, 533 U.S. 167, 174 (2001) (holding that a court's “duty” when performing statutory interpretation is “to give effect, if possible, to every clause and word of a statute” (quotation omitted)). Moreover, Plaintiffs’ interpretation would allow the regulation creating advance parole to supersede the statute that establishes parole in the first place, which authorizes the Secretary of Homeland Security to, “in his discretion,” parole noncitizens into the country. 8 U.S.C. § 1182(d)(5)(A). Adopting Plaintiffs’ position that § 212.5(f) strips USCIS of its otherwise discretionary parole authority would lead to the sort of absurd outcome that courts seek to avoid when interpreting statutes. See Robbins v. Chronister, 435 F.3d 1238, 1241 (10th Cir. 2006).

The Court therefore interprets “authorized” in § 212.5(f) to mean “grant” or “formally approve,” such that the regulation means that, when parole is granted, USCIS must issue appropriate documentation. See De Sousa, 720 F. Supp. 3d at 806; Authorize, Black's Law Dictionary (12th ed. 2024). As the courts in Arenales and De Sousa observed, this reading is consistent with both the plain meaning of the regulatory text and the broader statutory scheme. Arenales, 2024 WL 68291, at *12; De Sousa, 720 F. Supp. 3d at 806; see also FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“A court must therefore interpret the statute as a symmetrical and coherent regulatory scheme, and fit, if possible, all parts into a[ ] harmonious whole.” (cleaned up)). The Court concludes that “ ‘authorized’ in section 212.5(f) means via individualized determinations by USCIS—in this case, after it chooses between deferred action or parole under section 214.14(d)(2).” Arenales, 2024 WL 68291, at *12. And because this conclusion means that USCIS has discretion to grant deferred action or parole to U visa petitioners with WLDs, USCIS's decision not to grant advance parole to Mr. Singh is unreviewable under the APA. 5 U.S.C. § 701(a)(2). Accordingly, Counts Three and Four are respectfully DISMISSED without prejudice.⁶

CONCLUSION

For the reasons stated herein, IT IS ORDERED that:

(1) Defendant's Motion to Dismiss [Doc. 11] is GRANTED in part and DENIED in part;

(2) The Motion is respectfully DENIED as to Counts One and Two;

(3) Counts Three and Four are respectfully DISMISSED without prejudice; and

(4) Consistent with the Order dated September 24, 2024, and in light of the retirement of the Honorable Michael E. Hegarty, the Parties are DIRECTED to CONTACT the Chambers of the Honorable Timothy P. O'Hara within five (5) business days of this Order to set a Scheduling Conference.

FOOTNOTES

1.   Although the Motion raises arguments under Rule 12(b)(1), the Court presumes the truthfulness of the allegations in the Complaint because the Court construes the Motion as a facial attack on subject matter jurisdiction. See United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001).

2.   The Complaint contains conflicting allegations as to whether Hetulkumar Patel and Flor De Maria Liu Martinez received BFDs. See [Doc. 1 at ¶¶ 184, 186, 339; Doc. 11 at 6 n.3]. USCIS has attached documents to its Motion showing that Plaintiffs Patel, Gutierrez, and Liu Martinez have received BFDs. [Doc. 11-1; Doc. 11-2; Doc. 11-3]. Plaintiffs appear to concede in their Response that these three Plaintiffs, like all other Plaintiffs besides Mr. Singh, have received BFDs. [Doc. 14 at 1 n.1].

3.   Count Three refers to “Plaintiff Kamalpreet Singh and all Plaintiffs who receive WLDs,” [Doc. 1 at ¶ 392], but Mr. Singh is the only Plaintiff alleged to have received a WLD, [id. at ¶ 187]. See generally [id.]. The Court therefore addresses Count Three only as to Mr. Singh.

4.   USCIS contends that the Court's determination of whether the challenged agency action is committed to agency discretion should be analyzed under Rule 12(b)(6). [Doc. 11 at 13]. However, the Tenth Circuit generally treats the question of whether an agency action is reviewable under the APA as a matter of subject matter jurisdiction. See, e.g., Muscogee (Creek) Nation Div. of Housing v. U.S. Dep't of Hous. & Urb. Dev., 698 F.3d 1276, 1282 (10th Cir. 2012); Tsegay v. Ashcroft, 386 F.3d 1347, 1354 (10th Cir. 2004). But see Califano v. Sanders, 430 U.S. 99, 107 (1977) (“[T]he APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action.”). The Court follows Tenth Circuit precedent and addresses USCIS's challenge to Counts Three and Four under Rule 12(b)(1).

5.   The Court cautions Plaintiffs’ counsel against accusing opposing counsel of unfairly omitting adverse precedent, [Doc. 14 at 2 n.2], when Plaintiffs’ counsel has omitted any discussion of these adverse cases from their § 212.5(f) argument, see [id. at 8–10], despite citing them elsewhere in the Response, [id. at 2].

6.   Under Rule 12(b)(1), “[a] jurisdictional defect calls for a dismissal without prejudice.” Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006).

Nina Y. Wang United States District Judge