RODRIGUEZ HERNANDEZ v. SCOTT (2025)

ORDER ON MOTION TO DISMISS AMENDED COMPLAINT

Plaintiffs Shahory Sandrith Rodriguez Hernandez, Javier Yamit Zapata Diaz, and Liam Samuel Zapata Rodriguez bring this lawsuit against the United States Citizenship and Immigration Services (USCIS) seeking mandamus action on their applications for employment authorization. (Doc. 12.) Plaintiffs also request that the court compel USCIS to create a formal process for “U visa” applicants on USCIS's waiting list to apply for parole or advance parole. (See Docs. 12, 25.) Currently pending is Defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(2).

Statutory History

Because this case is related to an agency's application of federal immigration law, it is helpful to review some of the relevant statutory and regulatory provisions. In 2000, Congress created the “U visa” program by enacting 8 U.S.C. § 1101(a)(15)(U) as part of the Victims of Trafficking and Violence Protection Act of 2000. Pub. L. 106-386, § 1513, 114 Stat. 1464, 1533–37. The U visa program encourages noncitizens who are victims of certain crimes to report the crimes and assist law enforcement with investigation and prosecution. In exchange, a recipient of the visa may receive lawful nonimmigrant status and employment authorization for up to four years. 8 U.S.C. § 1184(p)(6). “A U visa generally entitles an eligible noncitizen to lawfully remain in the United States and to seek work authorization.” Meza Morales v. Barr, 973 F.3d 657 (7th Cir. 2020). Three years after receiving a U visa, a nonimmigrant may apply for status as a lawful permanent resident. 8 U.S.C. § 1255(m)(l).

The statutory requirements for the U visa program include proof of substantial physical or mental abuse due to serious listed crimes including sexual abuse, enslavement and trafficking, domestic violence, felony assault, and other listed crimes. Id. § 1101(a)(15)(U). A petitioner must provide a certification from a federal, state, or local law enforcement official or judge stating that the petitioner “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of such a crime. The maximum number of U visas was capped by statute at 10,000 per year (plus additional visas for qualifying family members). Id. § 1184(p)(2)(A).

It quickly became clear that the number of applications would greatly exceed 10,000 per year. In 2007, USCIS issued comprehensive regulations governing the U visa application process. New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53,014 (Sept. 17, 2007). These regulations now appear at 8 C.F.R. § 214.14. USCIS authorized a wait list for petitioners who met criteria for a U visa.

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․ 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); 72 Fed. Reg. 53,027 (Sept. 17, 2007).

The regulations at 8 C.F.R. § 214.14(d)(2) effectively provide applicants with favorable waiting list decisions (WLDs) permission to work and protection from removal. Deferred action, as provided for in the regulations, is “an act of administrative convenience to the government which gives some cases lower priority” for removal. Id. at § 274a.12(c)(14). Thus, foreign nationals with deferred action do not have immigrant or nonimmigrant status, but they do have protection from removal for the period authorized by USCIS. Parole, on the other hand, is a process by which USCIS can allow someone to lawfully enter the United States who would otherwise be inadmissible or ineligible for admission into the country. 8 U.S.C. § 1182(d)(5)(A); United States Citizenship & Immigration Serv., Humanitarian or Significant Public Benefit Parole for Noncitizens Outside the United States, https://www.uscis.gov/humanitarian/humanitarian_parole#:~:text=Parole% 20allows% 20an% 20individual% 2C% 20who,States% 20for% 20a% 20temporary% 20period. [https://perma.cc/58HD-RKGB]. Parole therefore allows waiting list applicants who are abroad to come to the United States. U visa applicants with WLDs therefore receive most of the privileges afforded to U visa recipients.²

Background

Plaintiffs are Colombian nationals who currently reside in the United States. (Doc. 12 ¶¶ 4–5, 7.) Plaintiffs applied for U visa status from abroad on November 8, 2017, and USCIS placed them on the U visa waiting list on July 20, 2023. (Id. ¶ 4.) On August 23, 2023, USCIS granted parole to Plaintiffs, who traveled to and were paroled into the United States on September 21, 2023. (Id. ¶ 5.) On September 22, 2023, Plaintiffs applied for employment authorization. (Id. ¶ 6.) Plaintiffs attempted to have their applications expedited to no avail. (Id. ¶¶ 7–9.) On December 27, 2023, Plaintiff Shahory Sandrith Rodriguez Hernandez filed a motion to proceed in forma pauperis, along with a proposed complaint alleging that USCIS still had not approved Plaintiffs’ applications for work authorization. (See Docs. 1, 1-2.) The complaint requested that the court compel USCIS to adjudicate Plaintiffs’ applications for employment authorization and, further, that the court compel USCIS to grant Plaintiff's advance parole, which would allow them to travel outside the United States.

Although the court denied Plaintiffs’ first motion to proceed in forma pauperis, the court granted Plaintiffs’ second such motion. (See Docs. 3, 4, 11.) Plaintiffs filed an amended complaint on March 11, 2024. (Doc. 12.) On November 13, 2024, Defendant filed a motion to dismiss the amended complaint, which is now pending before the court. (Doc. 21.)

Rule 12(b)(1) Standard

“Determining the existence of subject matter jurisdiction is a threshold inquiry and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicated it.” Morrison v. Nat'l Australia Bank, 547 F.3d 167, 170 (2d Cir. 2008.) “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Liranzo v. United States, 690 F.3d 78, 84 (2d Cir. 2012). “In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) a district court may consider evidence outside of the pleadings.” Morrison, 547 F.3d at 170.

Rule 12(b)(6) Standard

Courts afford pleadings filed by self-represented parties “special solicitude.” See Ceara v. Deacon, 916 F.3d 208, 213 (2d Cir. 2019) (internal quotation marks omitted). Thus, the court is required to read a self-represented plaintiff's complaint liberally and to hold it “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted). The court must construe a self-represented plaintiff's complaint to raise the strongest arguments it suggests. See Harris v. Miller, 818 F.3d 49, 56 (2d Cir. 2016) (per curiam).

Nevertheless, all complaints “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). In assessing a complaint, the court must “accept[ ] all factual allegations as true and draw[ ] all reasonable inferences in favor of the plaintiff.” United States ex rel. Chorches v. Am. Med. Response, Inc., 865 F.3d 71, 78 (2d Cir. 2017) (quoting Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 848 F.3d 561, 566 (2d Cir. 2016)) (internal quotation marks omitted). “Dismissal is appropriate when ‘it is clear from the face of the complaint ․ that the plaintiff's claims are barred as a matter of law.’ ” Biocad JSC v. F. Hoffman-La Roche, 942 F.3d 88, 93 (2d Cir. 2019) (alteration in original) (quoting Parkcentral Glob. Hub Ltd. v. Porsche Auto Holdings SE, 763 F.3d 198, 208–09 (2d Cir. 2014)).

Analysis

I. Employment Authorization

Defendant argues that Plaintiffs lack standing on their employment authorization claim because Defendant has already granted the requested relief. (Doc. 21 at 8.) As evidence, Defendant has attached to its motion employment authorization approval notifications for all three Plaintiffs, each dated March 10, 2024. (Docs. 21-1, 21-2.) In their response to Defendant's Motion to Dismiss, Plaintiffs do not discuss their request for employment authorization, and they have presented no evidence tending to show that USCIS has not acted on their applications. (See Doc. 22.)

“When a plaintiff asks a court to compel a federal official to act, and the federal official has already performed that act, the claim is moot, and, therefore, the court lacks subject matter jurisdiction.” Majon v. Johnson, 321 F. Supp. 3d 320, 323–24 (E.D.N.Y. 2018) (citing Barrett v. United States, 105 F.3d 793, 794 (2d Cir. 1996)). In adjudications before USCIS, “when a plaintiff asks the court to compel USCIS to adjudicate an application that is no longer pending at the time of the court's review, that claim is moot and USCIS's adjudications of the application divests the court of subject matter jurisdiction.” Almakalani v. McAleenan, 527 F. Supp. 3d 205, 222 (E.D.N.Y. 2021.) Because the evidence shows that USCIS has already acted on Plaintiffs’ employment authorization applications, Plaintiffs’ claim on that issue is moot. The Defendant's motion is GRANTED on this claim.

II. Parole

The amended complaint seeks an order “compel[ling] the defendant ․ to ․ grant travel authorization via advance parole based on being a member of the U nonimmigrant visa waiting list.” (Doc. 12 at 1.) Plaintiffs seek permission to travel abroad and return through the mechanism of “advance parole.” Advance parole allows some foreign nationals living in the United States to leave the United States and return without risk of abandoning their application for legal status. United States Citizenship & Immigration Serv., Adjudicator's Field Manual, https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm54-external.pdf [https://perma.cc/5LKC-PE63]. USCIS issues advance parole following submission of Form I-131. The form identifies the categories of non-citizens who may be eligible for advance parole. Individuals who have obtained U visa wait list status are not among these categories.

As the Government explains, the omission of U visa waitlist recipients is not an oversight. Section 214.14 of Title 8 of the Code of Federal Regulations requires USCIS to extend “deferred action or parole” to U visa applicants who have been placed on the waitlist. Plaintiffs in this case received parole while residing in Colombia. (Doc. 21-1.) The Government supplied the form letter informing them of the procedure for obtaining travel documents from the U.S. embassy or consulate in Colombia allowing them to travel to a United States port of entry. The authenticity of the letter and its import are not challenged. The letter explains that upon arrival, they must “submit an Application for Employment Authorization Form ․ which is the filing category for deferred action, not parole.” Id. Plaintiffs followed this procedure and received employment authorization after arriving in the United States. (Doc. 21-2.)

Plaintiffs’ status on the U visa waitlist limits their ability to return to their home country for family visits or other purposes. Deferred action status does not come with permission to travel abroad. 8 C.F.R. § 236.21(c)(1). If they leave the United States, they would have to re-apply for U visa status – a lengthy, expensive and uncertain process. And they would likely be unable to return to the United States. In similar cases across the United States, USCIS has consistently taken the position that § 214.14 grants the agency discretion to choose between deferred action and parole (or advance parole) for individuals on the U visa waitlist. That choice has been to exclude individuals on the U visa waitlist from advance parole.

Other district courts have consistently held that the Government's decision to grant deferred action rather than parole to waitlist recipients is not an abuse of discretion. In De Sousa v. Director of U.S. Citizenship and Immigration Services, 720 F. Supp. 3d 794, 805 (N.D. Cal. 2024), the district court held that because § 214.14 authorizes two forms of relief in the disjunctive, “USCIS is given the option of choosing to grant either deferred action or parole, and is not required to grant both.” The court's position recognized the use of the disjunctive “or” as well as the discretionary nature of advance parole itself. District courts reached similar decisions in Arenales-Salgado-De-Oliveira v. Jaddou, No. 23-CV-61167, 2024 WL 68291 *10 (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.”) (emphasis in original); Argueta v. Jaddou, No. 23-CV-30022023, WL 8082113 *7 (D. Neb. Nov. 21, 2023) (“A straightforward reading of [§ 214.14] ․ shows that Plaintiffs have no entitlement to advance parole if they have been issued deferred action.”); Patel v. Dir., United States Citizenship & Immigr. Servs., No. 23-cv-1072, 2024 U.S. Dis. LEXIS 206051 (M.D. Fla. Nov. 13, 2024) (“[T]he plain language of § 214.14(d)(2) invests USCIS with discretion to grant Plaintiffs either deferred action or parole – leaving USCIS a choice.”).

The court agrees with the other district courts that have considered the question. So long as USCIS extends the protection against removal afforded by either deferred action or parole, it may choose between these remedies. The agency's choice in this case was to offer deferred action. That choice was known to plaintiffs when they sought entry through the procedures of the U visa wait list. The court cannot rewrite the regulation to require USCIS to extend advance parole.

Because it is clear on the face of the regulations and the two documents submitted by USCIS that the agency has exercised its discretion in a manner consistent with the choice the law permits, the plaintiffs cannot succeed in their claim. For this reason, the court GRANTS the motion to dismiss pursuant to F. R. Civ. P. 12(b)(6).

Conclusion

Defendant's Motion to Dismiss (Doc. 21) is GRANTED.

FOOTNOTES

2.   Although the wait list process was designed to promptly provide U visa applicants with work authorization and protection from removal, it often takes years for USCIS to place petitioners on the waitlist. Thus, in 2008, Congress passed legislation allowing USCIS to issue work authorization to petitioners who had submitted a bona fide application for a U visa. The relevant provision now appears at 8 U.S.C. § 1184(p)(1)–(6). USCIS has since implemented a bona fide determination process that establishes an expedited procedure. Thus, there are now two distinct interim remedies for U visa petitioners. In this case, however, Plaintiffs have received waiting list decisions, so the court need not discuss the details of the bona fide determination process.

Geoffrey W. Crawford, District Judge