SALAS v. JADDOU (2025)

ORDER GRANTING MOTION TO DISMISS

Plaintiffs reside in Colorado but are natives of Mexico, Honduras, El Salvador, Guatemala, and Costa Rica. They do not have legal status to be in the United States. Between June 2019 and February 2024, Plaintiffs applied to the United States Citizenship and Immigration Services (USCIS) to receive what's known as a “U-Visa,” a temporary immigration status available for victims of certain crimes and their family members who aid in the investigation or prosecution of those crimes. Concurrent to these applications, Plaintiffs applied for employment authorization.

As of May 2024, USCIS had not processed the remaining Plaintiffs’ U-Visa or employment-authorization applications.¹ Given the length of delay—for some over five years—Plaintiffs filed suit. They bring three claims for relief. The first two, which are premised on the Administrative Procedure Act, assert Defendant has unreasonably delayed its determination of their applications. Plaintiffs’ third claim invokes this Court's power to issue writs of mandamus to compel the government action they claim is unreasonably delayed.

Defendant moved to dismiss Plaintiffs’ complaint for lack of jurisdiction and for failure to state a claim. Because the pace of adjudication of bona fides determinations and U-Visa and employment authorization applications are discretionary decisions that Congress has deprived federal courts of jurisdiction to review, see 8 U.S.C. § 1252(a)(2)(B)(ii), Defendant's motion must be granted and Plaintiffs’ suit dismissed.

BACKGROUND

Through the Immigration and Nationality Act, Congress empowered the Executive Branch to oversee the process and conditions of admitting aliens into the United States. See Pub. L. No. 82-414, 66 Stat. 163 (1952). Among other things, the Act charges the Secretary of the Department of Homeland Security with the duty to “establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under” the Act. 8 U.S.C. § 1103(a)(3). The Secretary has in turn delegated much of his authority to administer immigration to USCIS. See 8 C.F.R. § 2.1.

Administration of the U-Visa program, which garners its name from the subparagraph at which it is codified—8 U.S.C. § 1101(a)(15)(U), is among USCIS's delegated responsibilities. An alien may be entitled to U-Visa status if (1) “the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity”; (2) “the alien ․ possesses information concerning criminal activity”; (3) “the alien ․ has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity”; and (4) “the criminal activity ․ violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States.” 8 U.S.C. § 1101(a)(15)(U)(i). Aliens approved for a U-Visa are entitled to temporary resident status and employment authorization. 8 U.S.C. § 1184(p)(3).

No statutory provision requires USCIS to approve a U-Visa application, even if the application meets the statutory criteria. Congress has instead committed the decision of when to admit a U-Visa application—and the process for making that decision—to USCIS's discretion. See 8 C.F.R. § 214.14(c). Under that delegated authority, USCIS has said that it “will approve” a U-Visa application if the applicant meets the statutory definition in Section 1101(a)(15)(U). 8 C.F.R. § 214.14(c)(5)(i). But importantly, Congress has limited USCIS's authority to approve U-Visas by imposing a 10,000-visa-per-fiscal-year cap: “The number of aliens who may be issued visas or otherwise provided status as nonimmigrants under section 1101(a)(15)(U) of this title in any fiscal year shall not exceed 10,000.” 8 U.S.C. § 1184(p)(2). This means that depending on the number of U-Visa applications in a given year, many meritorious applicants may not receive a U-Visa.

And the reality is that there are many more U-Visa applications than U-Visas available. To accommodate these excess applications, USCIS and the Department of Homeland Security created a U-Visa waitlist: “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.” 8 C.F.R. § 214.14(d)(2). An applicant's priority on the wait list is “determined by the date the petition was filed with the oldest petitions receiving the highest priority.” Id. Once on the waiting list, a U-Visa applicant is granted deferred action of any deportation proceedings. Id.

As for work authorization, Congress has authorized the Department of Homeland Security to grant work authorization to aliens with pending U-Visa applications: “The Secretary 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 implementing regulation for Section 1184(p)(6) provides that “USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members.” 8 C.F.R. § 214.14(d)(2).

The upshot of these statutes and regulations is that the U-Visa process proceeds in three stages. At stage one, a U-Visa applicant whose application has not been processed by USCIS is not entitled to temporary resident status, deferred action, or work authorization. At stage two, a U-Visa applicant whose application has been processed and meets the statutory criteria will be placed on the waitlist. A stage-two applicant is entitled to deferred action and is eligible for work authorization. At stage three, a U-Visa applicant whose application has been approved is entitled to temporary resident status and employment authorization.

DISCUSSION

Plaintiffs are at stage one of the U-Visa process. They filed U-Visa applications and requests for work authorization at varying times over the last six years. To date, USCIS has not processed the remaining Plaintiffs’ applications. They thus seek, through this suit, to compel USCIS to adjudicate their applications. Defendant responds that its pace of adjudication of U-Visa and work authorization applications are discretionary matters not subject to judicial review. It accordingly attacks the complaint on its face, arguing that this Court lacks subject matter jurisdiction.² See Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003) (noting that 12(b)(1) motions take two forms: facial attack and attack based on evidence outside the complaint). Because I agree that this Court does not have subject-matter jurisdiction to adjudicate Plaintiffs’ claims, Defendant's motion to dismiss is granted. See id.

I. Jurisdiction Over Discretionary Immigration Decisions

Plaintiffs invoke two bases for jurisdiction: the Administrative Procedure Act and the All Writs Act. The Administrative Procedure Act generally permits a court to step in when an agency fails to act. A reviewing court must “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Relief under Section 706(1) is limited to an agency's failure “to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Section 706(1)’s “limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law.” Id. So “when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency's discretion, a court can compel the agency to act, but has no power to specify what the action must be.” Id. at 65, 124 S.Ct. 2373. Section 706(1) encompasses actions mandated by statute and by regulation. Id.

The All Writs Act, 28 U.S.C. § 1651, similarly empowers federal courts to compel an agency, usually through a writ of mandamus, to carry out some “specific, unequivocal command” required of it by law. Id. at 64, 124 S.Ct. 2373. A court may issue a writ of mandamus ordering an agency to act only if the act requested is “precise” and “definite,” “about which [an agency] had no discretion.” Id. A writ of mandamus may issue, in short, for only ministerial, non-discretionary duties. Id.

There are two additional limitations on this court's jurisdiction important for this case—one in the Administrative Procedure Act, the other in the Immigration and Nationality Act. First, the APA precludes review of “agency action [that] is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This limitation is the mirror image of Section 706(1)’s requirement that a court can only compel an agency to act when it has failed to take a discrete mandatory action. Second, the Immigration and Nationality Act strips this court of “jurisdiction to review any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this sub-chapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). The limitation in Section 1252(a)(2)(B)(ii) applies only to decisions or actions committed to agency discretion by statute; it does not apply to actions made discretionary by regulation alone. Kucana v. Holder, 558 U.S. 233, 246, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). “As courts have recognized, this [Section 1252(a)(2)(B)(ii)]’s meaning is refreshingly free from ambiguity and its terms are pellucidly clear: It means that courts are precluded from reviewing any discretionary decision or action of USCIS.” Safadi v. Howard, 466 F. Supp. 2d 696, 698 (E.D. Va. 2006) (collecting cases).

II. Bona Fides Determinations and U-Visa Waitlist

In their first and second claims for relief, Plaintiffs challenge the failure of Defendant to as yet make bona fides determinations of pending U-Visa applications, process those applications and place Plaintiffs on the U-Visa waiting list created by 8 C.F.R. § 214.14(d), and grant Plaintiffs’ work authorizations. See Dkt. 1 at 45–47. This Court lacks jurisdiction over these claims under 8 U.S.C. § 1252(a)(2)(B)(ii).

Congress has entrusted the timeline for processing U-Visa applications to the discretion of the Attorney General. Nowhere in the Immigration and Nationality Act has Congress prescribed a timeframe for processing U-Visa applications. To the contrary, the Congress gave the Attorney General the authority to devise the system for processing applications—and ultimately granting or denying them. See 8 U.S.C. § 1184(a) (“The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe.”). The lack of a Congressionally mandated timeline and the concomitant grant of discretion to determine the “time” and “conditions” of admitting U-Visa applicants renders the pace of adjudication non-reviewable under Section 1252. See Beshir v. Holder, 10 F. Supp. 3d 165, 173 (D.D.C. 2014) (holding that authority to promulgate regulations for process of adjustment of status under 8 U.S.C. § 1255(a) “grant discretion not only over the decision to adjust an alien's status but also over the promulgation of regulations to create the process by which an alien's status may be adjusted”); Orlov v. Howard, 523 F. Supp. 2d 30, 35 (D.D.C. 2007) (“In the absence of statutorily prescribed time limitations or statutory factors to guide USCIS in crafting regulations for the adjustment process, it is difficult to determine how the pace of processing an application could be anything other than discretionary.”); Safadi, 466 F. Supp. 2d at 699 (“The complete absence of any statutory time limits on the processing of adjustment applications” indicates Congress intended the pace of process for those applications to be wholly discretionary); see also Mahaveer, Inc. v. Bushey, No. CIV A. 04-1275(GK), 2006 WL 1716723, at *3 (D.D.C. June 19, 2006) (explaining that “by not providing any specific factors to guide the Attorney General in crafting such regulations [to govern the conditions of nonimmigrants’ entry into the United States], it can fairly be said that Congress intended the Attorney General to have full discretion in his or her decision making”).

Congress knows how to, and often does, prescribe timelines for nonimmigrant admission when it wants to. For example, Congress requires the Attorney General to “provide a process for reviewing and acting upon petitions” for nonimmigrant admission filed by an alien employed by certain American corporations “within 30 days after the date a completed petition has been filed.” 8 U.S.C. § 1184(c)(2)(C) (emphasis added). Likewise, under certain conditions, when an alien seeks to be admitted as a non-immigrant to work in the motion picture or television industry, Congress has required the Attorney General to adjudicate that alien's petition “in no more than 14 days.” Id. at § 1184(c)(6)(D). Indeed, Section 1184, let alone the rest of the Immigration and Nationality Act, is rife with Congressionally mandated deadlines. See, e.g., id. at § 1184(c)(3)(flush language); id. at § 1184(6)(B); id. at § 1184(d)(1). But for bona fide determinations and U-Visa applications, Congress has mandated no timeline. It has instead delegated the pace of adjudication to the sole discretion of the Attorney General in Section 1184(a). See BFP v. Resolution Tr. Corp., 511 U.S. 531, 537, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (“It is generally presumed that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another.”); see also Beshir, 10 F. Supp. 3d at 176 (“The absence of a congressionally-imposed deadline or timeframe to complete the adjudication of adjustment applications also supports the conclusion that the pace of adjudication is discretionary and thus not reviewable.”). This delegation renders U-Visa pace of adjudication nonreviewable under Section 1252(a)(2)(B)(ii). As a result, this Court lacks jurisdiction to review or compel Defendant's adjudication of the remaining Plaintiffs’ bona fides determinations and U-Visa applications.

III. Work Authorization Requests

Plaintiffs’ first and second claims for relief also ask this Court to compel Defendant to adjudicate their requests for work authorization while their U-Visa applications are pending. For similar reasons, this Court lacks jurisdiction over these claims under 5 U.S.C. § 702(a)(2) and 8 U.S.C. § 1252(a)(2)(B)(ii).

The statutory provision at issue, 8 U.S.C. § 1184(p)(6), is discretionary on its face: “The Secretary may grant work authorization to any alien who has a pending, bona fide application” for a U-Visa. Id. § 1184(p)(6) (emphasis added). This provision is permissive, not mandatory; it doesn't require Defendants to do anything. The statute requires no “discrete agency action,” Norton, 542 U.S. at 64, 124 S.Ct. 2373, that would bring it within the ambit of Section 706(1), and thus this Court lacks jurisdiction over any attempt to compel work authorization under 5 U.S.C. § 702(a)(2) and 8 U.S.C. § 1252(a)(2)(B)(ii).

This is true, too, of Section 1184(p)(6)’s implementing regulation. 8 C.F.R. § 214.14(d)(2) expressly states that the decision to grant work authorization pending a U-Visa application is discretionary: “USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members.” Id. § 214.14(d)(2) (emphasis added). At face value, then, a court is not permitted to direct action under either Section 1184(p)(6) or Section 214.14(d)(2) under Section 706(1) as interpreted by the court in Norton. Plaintiffs have admitted as much in their filing. See Dkt. 29 at 4, 8. Because Congress has entrusted the process for granting work authorizations to USCIS, that delegation of discretion means this Court lacks jurisdiction over Plaintiffs’ requests for relief.

IV. Writ of Mandamus

Plaintiffs’ third claim asks for a Writ of Mandamus to compel USCIS's adjudication of their U-Visa applications. See Dkt. 1 at 47–48. The only agency action that can be compelled under the APA is action that is legally required. See 5 U.S.C. § 706(1). And because the All Writs Act empowers a court to issue a writ of mandamus only for “a precise, definite act about which an agency had no discretion whatsoever,” see Norton, 542 U.S. at 64, 124 S.Ct. 2373 (cleaned up), resort to the writ to process U-Visa applications is inappropriate. Accordingly, Plaintiffs’ third claim for relief must also be rejected.

CONCLUSION

It is ORDERED that:

Defendant's Motion to Dismiss, Dkt. 23, is GRANTED. The Clerk of Clerk is directed to enter judgment in favor of Defendant and terminate the case.

FOOTNOTES

1.   Since October 2024, 42 of the 51 named Plaintiffs filed voluntarily dismissals because Defendant made determinations on their bona fides and U-Visa and work authorization applications. See Dkt. 17, 20, 26, 27, 31, 33.

2.   In the alternative, Defendant moves to dismiss for failure to state a claim under Rule 12(b)(6). But because this Court lacks subject matter jurisdiction over Plaintiffs’ complaint as explained below, I need not and do not rule on this alternative argument, nor whether Plaintiffs were properly joined under Fed. R. Civ. P. 20.

Daniel D. Domenico, United States District Judge