DE SOUSA v. DIRECTOR OF CITIZENSHIP AND IMMIGRATION SERVICES (2024)

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

Re: Dkt. No. 31

Plaintiffs are petitioners for U nonimmigrant status, which is available to victims of certain serious crimes, as well as their qualifying family members, who help law enforcement in investigating or prosecuting the crime. Because Congress has capped the number of U visas available each year, most applicants wait many years to obtain a U visa. U.S. Citizenship and Immigration Services (“USCIS”) created, by regulation, a waiting list program to grant provisional benefits to those who qualify for a U visa but have not been granted one due to the statutory cap. However, due to backlogs that left applicants waiting for years for a waiting list decision, USCIS created a more abbreviated form of review, known as a “bona fide determination.” For those who receive a favorable bona fide determination, USCIS does not provide waiting list decisions.

In the first cause of action, Plaintiffs who have received only bona fide determinations (“BFDs”) have sued USCIS for failing to give them waiting list determinations. Without a waiting list determination, these BFD Plaintiffs are ineligible for advance parole, a provisional benefit which would allow them to reenter the United States after traveling abroad while their U visa application remains pending. Absent such a grant of advance parole, the BFD Plaintiffs are forced to choose between abandoning their U visa application and waiting years to see loved ones living abroad, including some who are gravely ill.

USCIS has moved to dismiss these claims for lack of standing, arguing that the BFD Plaintiffs have suffered no injury-in-fact and that their injuries are not redressable because USCIS is not required to give them advance parole even if they receive a favorable waiting list decision. That motion is DENIED. Plaintiffs have been denied the opportunity to be considered for the valuable privilege of advance parole. Even if USCIS's common practice is to deny advance parole to those on the waiting list who reside in the United States, USCIS identifies nothing that legally precludes the grant of advance parole in those circumstances. Indeed, according to Plaintiffs’ counsel at the motion to dismiss hearing, U visa applicants who are on the waiting list and live in the United States routinely receive advance parole from U.S. embassies and consulates abroad to allow them to return after they travel internationally to see family. In any event, regardless of the common practice, the opportunity to be considered for a legally available form of relief is sufficient to support standing.

Plaintiffs also assert two other causes of actions alleging unlawful delay, withholding, and denial of advance parole, on the theory that they are automatically entitled to such parole upon a favorable waiting list determination. The BFD Plaintiffs do not yet have a waiting list determination rendering them eligible for advance parole, so their claims on this basis are not ripe. USCIS's motion to dismiss the BFD Plaintiffs’ advance parole claims for lack of subject matter jurisdiction is therefore GRANTED. There are some remaining Plaintiffs who have already received a waiting list determination, but to whom USCIS has not given advance parole. These WLD Plaintiffs’ claims are ripe, but fail on the merits because USCIS is not required to grant advance parole to those on the waiting list under the governing statute or regulations. USCIS's motion to dismiss their claims for failure to state a claim is GRANTED.

Accordingly, the sole surviving claim is the BFD Plaintiffs’ first cause of action for unlawful withholding or unreasonable delay of a waiting list determination.

I. BACKGROUND

A. Statutory and Regulatory Framework

The U visa program was created by Congress with the enactment of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106–386, 114 Stat. 1464. Its purpose was 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 also “offering protection to victims of such offenses in keeping with the humanitarian interests of the United States.” Pub. L. 106–386 at § 1513(a)(2)(A). Pursuant to this statute, USCIS may grant 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); 8 C.F.R. § 214.14. A petitioner's qualifying family members can also apply. 8 U.S.C. § 1101(a)(15)(U)(ii). Once issued a U visa, the petitioner receives lawful nonimmigrant status and work authorization for up to four years. 8 U.S.C. §§ 1184(p)(3)(B), (p)(6); 8 C.F.R. § 274a.12(a)(19).

Each year, however, only 10,000 principal U visas are available. 8 U.S.C. § 1184(p)(2). USCIS anticipated that the statutory limit would be met within the first few years of the U visa program, and indeed, this cap “has been reached each year since 2009.” (Dkt. No. 1-2 (Citizenship & Immigr. Servs. Ombudsman, Parole for Eligible U Visa Principal and Derivative Petitioners Residing Abroad (June 16, 2016))); 72 Fed. Reg. 53,014 (Sept. 17, 2007). In response, USCIS established a regulatory waiting list process. 8 C.F.R. § 214.14(d)(2). If USCIS determines that a U visa is approvable but cannot be granted “due solely” to the 10,000-person cap, the petitioner “must be placed on [the] waiting list.” Id. The wait time for issuance of a U visa is at least seven or eight years. USCIS prioritizes the U visa applications that have been pending the longest. 8 C.F.R. § 214.14(d)(2); USCIS Policy Manual Vol. 3, Part C, Ch. 7. As of October 2023, USCIS was issuing U visas only for petitions filed in or before July 2016. See https://www.uscis.gov/I-918 (last visited March 13, 2024).

But the waiting list has a backlog of its own. In 2020, for example, “the median processing time from receipt of a U visa petition until placement on the waiting list was 50.9 months.” USCIS, Humanitarian Petitions: U Visa Process Timings, Fiscal Year 2021 Report to Congress (available at https://www.uscis.gov/sites/default/files/document/reports/USCIS-Humanitarian-Petitions.pdf). USCIS has been repeatedly sued for allegedly lengthy delays in its issuance of waiting list decisions. See, e.g., Barrios Garcia v. U.S. Dep't of Homeland Sec., 25 F.4th 430, 452–54 (6th Cir. 2022); Gonzalez v. Cuccinelli, 985 F.3d 357, 374–76 (4th Cir. 2021).

Due to the “growing backlog awaiting placement on the waiting list,” USCIS issued a Policy Alert creating an abbreviated, substitute process: a bona fide determination. (Dkt. No. 1-3 (USCIS, Policy Alert: Bona Fide Determination Process for Victims of Qualifying Crimes, and Employment Authorization and Deferred Action for Certain Petitioners (June 14, 2021)).) The USCIS Policy Manual sets forth the procedures for that process. USCIS “determines whether a petition is bona fide based on the petitioner's compliance with initial evidence requirements and successful completion of background checks.” USCIS, Policy Manual, Vol. 3, Part C, Ch. 5 (available at https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-5). If a U visa petition is deemed bona fide, USCIS grants the petitioner “deferred action,” along with work authorization. Id. “Deferred action” refers to an “exercise in administrative discretion” under which “no action will thereafter be taken to proceed” with the applicant's removal. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 484 (1999). Petitioners who receive a bona fide determination are not considered for a waiting list determination. (Mot. at 9 (“[I]f for some reason a petitioner does not receive a BFD, only then does USCIS initiate a waiting list adjudication.” (citing USCIS Policy Manual Vol. 3, Part C, Ch. 6)).)

For the purposes of this case, the key distinction between bona fide determinations and waiting list decisions is the availability of parole. USCIS “will grant deferred action or parole,” as well as work authorization, to those placed on the waiting list. 8 C.F.R. § 214.14(d)(2). However, as implemented in the BFD Policy Alert and the USCIS Policy Manual, the BFD process does not provide for the grant of parole to those who receive bona fide determinations. See Arenales-Salgado-De-Oliveira v. Jaddou, No. 23-61167-CIV, 2024 WL 68291, at *3 (S.D. Fla. Jan. 5, 2024).

For U visa petitioners, this is a distinction with a significant difference. “The purpose of parole is to permit a non-citizen to enter the United States temporarily while investigation of eligibility for admission takes place.” Succar v. Ashcroft, 394 F.3d 8, 15 (1st Cir. 2005). There are several types of parole, id. at 15 n.7, and relevant here is advance parole. “As its name implies, ‘advance parole’ is simply parole that has been requested and authorized in advance based on an expectation that [an] alien will be presenting himself for inspection without a valid visa in the future.” Rais v. Holder, 768 F.3d 453, 457 n.2 (6th Cir. 2014) (citation omitted). Thus, advance parole permits petitioners “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). Without such status, U visa applicants are left waiting for years to see their family members abroad, because they cannot travel out of the country without jeopardizing their status. Plaintiffs describe missing their loved ones’ last moments of life, surgeries, major illnesses, funerals, and weddings, and being unable to go on religious pilgrimages, because of their inability to obtain advance parole. (FAC ¶¶ 231–320.) In some cases, Plaintiffs have been waiting for more than twenty years to go abroad to see family. (See, e.g., FAC ¶¶ 238, 244, 255, 261, 270.)

B. Factual Background

Plaintiffs are 164 non-citizens residing in the United States who have petitioned for U visas. (See FAC ¶¶ 1–164, 230–320.) Of these, 149 Plaintiffs have been issued bona fide determinations, but have yet to receive waiting list decisions (the “BFD Plaintiffs”). (See FAC ¶¶ 238–320.) The remaining 15 Plaintiffs have received favorable waiting list decisions and are on the waiting list (the “WLD Plaintiffs”).¹ (See FAC ¶¶ 230–37.) USCIS has granted deferred action to all Plaintiffs, but they allege that they are entitled to parole. (See FAC ¶¶ 230–320; Dkt. No. 31-2 at 2.)

Plaintiffs assert three claims under the Administrative Procedure Act, 5 U.S.C. § 706 et seq. The BFD Plaintiffs, under the first cause of action, assert that USCIS has unlawfully withheld or unreasonably delayed waiting list decisions. (FAC ¶¶ 317, 329, 339–40.) Next, under the second cause of action, all Plaintiffs allege USCIS has unlawfully withheld or unreasonably delayed granting them advance parole.² (FAC ¶¶ 391, 396–98.) Finally, the WLD Plaintiffs, under the third cause of action, maintain that USCIS has arbitrarily and capriciously denied them advance parole. (FAC ¶¶ 408, 411.) In response, USCIS filed a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 31.)

II. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(1)

A defendant may challenge the Court's subject matter jurisdiction by bringing a motion to dismiss under Rule 12(b)(1). “Dismissal for lack of subject matter jurisdiction is appropriate if the complaint, considered in its entirety, on its face fails to allege facts sufficient to establish subject matter jurisdiction.” In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984–85 (9th Cir. 2008). When considering a Rule 12(b)(1) motion, the Court “is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). The plaintiff bears the burden of proving subject matter jurisdiction. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). “Because standing and ripeness pertain to federal courts’ subject matter jurisdiction, they are properly raised in a Rule 12(b)(1) motion to dismiss.” Id.

B. Federal Rule of Civil Procedure 12(b)(6)

“To survive a motion to dismiss, a complaint 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When considering such a motion, the Court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). “Dismissal is appropriate when the complaint lacks a cognizable legal theory or sufficient factual allegations to support a cognizable legal theory.” Saloojas, Inc. v. Aetna Health of Cal., Inc., 80 F.4th 1011, 1014 (9th Cir. 2023) (quoting Beckington v. Am. Airlines, Inc., 926 F.3d 595, 604 (9th Cir. 2019)).

III. DISCUSSION

A. Subject Matter Jurisdiction

As a threshold matter, USCIS challenges the Court's subject matter jurisdiction over the Plaintiffs’ claims. Because Article III limits the jurisdiction of the federal courts to deciding only live cases or controversies, U.S. Const. art. III, § 2, the Court must confirm its subject matter jurisdiction before turning to the merits. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 95 (1998). As detailed below, the Court has subject matter jurisdiction over the BFD Plaintiffs’ claims in the first cause of action, and the WLD Plaintiffs’ claims in the second and third causes of action. The BFD Plaintiffs have standing to challenge USCIS's failure to grant them a waiting list determination, which deprives them of the opportunity to be considered for advance parole. However, their claims for issuance of advance parole, the second cause of action, are not yet ripe because they are eligible for such relief only after being placed on the waiting list. As for the WLD Plaintiffs, they have standing to challenge USCIS's failure to grant them advance parole in the second and third causes of action, though those claims fail on the merits for reasons explained in Section III.B.

1. BFD Plaintiffs

a. Withholding and Delay of Waiting List Determinations (First Cause of Action)

USCIS contests the BFD Plaintiffs’ standing under Article III. Such standing is “a necessary component of subject matter jurisdiction.” In re Palmdale Hills Prop., LLC, 654 F.3d 868, 873 (9th Cir. 2011). To establish standing, a plaintiff “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). In USCIS's view, the BFD Plaintiffs have neither suffered an injury-in-fact by not receiving waiting list decisions, nor shown that any court-ordered relief could redress this injury.

USCIS argues that the denial of waiting list decisions cannot constitute an injury-in-fact because the BFD Plaintiffs have been granted deferred action, so “there are no additional benefits these Plaintiffs would receive from a waiting list decision that they have not already received.” (Mot. at 17.) Even if the BFD Plaintiffs received waiting list decisions, USCIS maintains, they would not receive advance parole pursuant to agency practice. (Id.)

But USCIS misunderstands BFD Plaintiffs’ actual injury. By being denied waiting list decisions, the BFD Plaintiffs are deprived of an opportunity to be considered for advance parole. There is no dispute that those with bona fide determinations cannot be considered for advance parole. (See FAC ¶¶ 208, 210, 335–36; Mot. at 8–9, 16.) In contrast, advance parole is available as a form of relief to those on the waiting list, as USCIS acknowledges. (Mot. at 20 (quoting 8 C.F.R. § 214.14(d)(2) (“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.”))); see Arenales-Salgado-De-Oliveira, 2024 WL 68291, at *3 (“The principal distinction between a BFD and waiting list placement is parole, which the BFD Policy Alert makes no mention of.”); Mir v. Jaddou, No. 4:23-cv-3046, Dkt. No. 37 at 11–12 (D. Neb. Dec. 8, 2023) (concluding that bona fide determinations and waiting list decisions are “different, particularly with respect to the availability of advance parole”); Argueta v. Jaddou, No. 4:23-CV-3002, 2023 WL 8082113, at *4 (D. Neb. Nov. 21, 2023) (same).

It is well-settled that “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.” Teton Historic Aviation Found. v. U.S. Dep't of Def., 785 F.3d 719, 724 (D.C. Cir. 2015) (citation omitted); see also Serrato v. Clark, 486 F.3d 560, 566–67 (9th Cir. 2007). And in the immigration context, the Ninth Circuit has long held that a “lost opportunity” to receive an immigrant visa “represents a concrete injury” sufficient to confer standing. Abboud v. INS, 140 F.3d 843, 847 (9th Cir. 1998), superseded on other grounds by statute as stated in Hsiao v. Scalia, 821 F. App'x 680, 682–83 (9th Cir. 2020); see also 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 & Immigration Servs., 732 F.3d 633, 638 (6th Cir. 2013))).

The same logic extends to those seeking other discretionary immigration benefits, such as advance parole. And likewise, here, it is ultimately immaterial that there is no guarantee the BFD Plaintiffs will receive advance parole once placed on the waiting list. USCIS maintains that, in practice, if the BFD Plaintiffs were to receive a waiting list determination, because they are located in the United States, they would receive deferred action, not parole. (Mot. at 17.) Yet “regardless of how USCIS may implement [8 C.F.R. § 214.14(d)(2)], the language allows for it to grant parole to those on the waiting list, a benefit the bona fide determination process does not contemplate.” Mir, No. 4:23-cv-3046, Dkt. No. 37 at 12 (holding that “plaintiffs with bona fide determinations have alleged an adequate injury based on USCIS's denial to adjudicate their wait-list determinations,” because advance parole is available for waiting list members but not those with bona fide determinations). USCIS's regulations confer upon the agency discretion to grant advance parole to waiting list members regardless of whether they are located in the United States or abroad, and USCIS offers no policy or regulation foreclosing that possibility.

In sum, while 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. And the loss of that opportunity undoubtedly deprives the BFD Plaintiffs of a valuable benefit. Advance parole would allow them to travel outside of the United States and reenter. Navarro-Aispura, 53 F.3d at 235. Without advance parole, Plaintiffs allege that they have been separated from their families abroad for years—some for as many as over two decades (see, e.g., FAC ¶¶ 238, 244, 255, 261, 270)—resulting in an inability to provide care and support for family members, as well as missed funerals, last moments of a loved one's life, and other significant life events (see, e.g., FAC ¶¶ 232, 236, 242–44, 298). The BFD Plaintiffs’ injury is therefore enough for standing purposes.

Next, USCIS contests another element of Article III standing, the redressability of the BFD Plaintiffs’ injury. “[N]o federal court has jurisdiction to enter a judgment unless it provides a remedy that can redress the plaintiff's injury,” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801 (2021), so a plaintiff must show that “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision,” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). USCIS repeats its injury-in-fact argument, contending that a court order granting the relief the BFD Plaintiffs seek—waiting list decisions—would not provide redress because they would receive no additional benefits as a result. (See Mot. at 18.) But again, USCIS's argument is premised on a misunderstanding of the injury here. 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.

Accordingly, USCIS's motion to dismiss the first cause of action for lack of subject matter jurisdiction is denied.

b. Withholding and Delay of Advance Parole (Second Cause of Action)

While the BFD Plaintiffs also assert that they have been deprived of advance parole, this claim is unripe for judicial review. The ripeness doctrine is among the justiciability doctrines that courts “use to determine whether a case presents a live case or controversy.” Clark v. City of Seattle, 899 F.3d 802, 808 (9th Cir. 2018). Ripeness “is peculiarly a question of timing,” Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974), designed “to separate matters that are premature for review because the injury is speculative and may never occur from those cases that are appropriate for federal court action,” Portman v. County of Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993) (citation omitted). “[T]hrough avoidance of premature adjudication,” the ripeness doctrine prevents courts from “entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). Claims are ripe when they “can be decided without considering ‘contingent future events that may or may not occur as anticipated, or indeed may not occur at all.’ ” Addington v. U.S. Airline Pilots Ass'n, 606 F.3d 1174, 1179 (9th Cir. 2010) (quoting Cardenas v. Anzai, 311 F.3d 929, 934 (9th Cir. 2002)).

Here, the BFD Plaintiffs allege that they have not yet been placed on the waiting list. (FAC ¶¶ 177, 238–319.) It is by no means a foregone conclusion that a BFD Plaintiff will in fact receive a favorable waiting list determination. USCIS grants a favorable bona fide determination if the petition is made in good faith, the petitioner does not pose a risk to national security or public safety, and the petition otherwise merits a favorable exercise of discretion. USCIS Policy Manual Vol. 3, Part C, Ch. 5. By contrast, a favorable waiting list decision requires USCIS to conclude that the petitioner actually qualifies for a U visa but that one cannot be granted “due solely” to the statutory cap on the number of U visas granted each year. 8 C.F.R. § 214.14(d)(2). As such, the BFD Plaintiffs may or may not qualify for a favorable waiting list determination.

Placement on the waiting list, however, is a prerequisite to be eligible for parole under 8 C.F.R. § 214.14(d)(2). See id. (“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.”); Arenales-Salgado-De-Oliveira, 2024 WL 68291, at *7 (“To even be considered for waiting list parole, a petitioner must first receive a favorable waiting list decision.” (emphasis omitted)). Thus, at this time, the BFD Plaintiffs’ claim for advance parole is unripe, as it hinges on first being placed on the waiting list—a “contingent future event” that the Court can only speculate may occur. Addington, 606 F.3d at 1179 (citation omitted). Two other district courts to have considered this issue have reached the same conclusion, applying reasoning that this Court finds persuasive. See Bautista v. Cuccinelli, No. 1:20-CV-339, 2020 WL 13033218, at *2 (M.D.N.C. Oct. 28, 2020) (claim for parole unripe because “the plaintiffs are not on the U-visa waiting list and they are not yet eligible for parole under § 214.14(d)(2)”); Arenales-Salgado-De-Oliveira, 2024 WL 68291, at *7 (same).

Plaintiffs respond that, because their claims for waiting list decisions are ripe, so too are their claims for advance parole, as decisions for both are issued concurrently, according to Plaintiffs. (Opp. at 2; see FAC ¶ 400.) Even so, “USCIS's practice of granting waiting list parole at the same time as a favorable waiting list decision does not obviate the need for the prerequisite—placement on the waiting list.” Arenales-Salgado-De-Oliveira, 2024 WL 68291, at *7. As such placement has not yet occurred, and may never occur, the BFD Plaintiffs’ claim for advance parole is premature for judicial review.

Therefore, as to the BFD Plaintiffs, the second cause of action is dismissed for lack of subject matter jurisdiction.

2. WLD Plaintiffs

a. Withholding, Delay, and Denial of Advance Parole (Second and Third Causes of Action)

The WLD Plaintiffs allege that USCIS, as a matter of practice, does not grant advance parole to waiting list members residing in the United States. (See FAC ¶ 228.) As a result of this practice, the WLD Plaintiffs claim that they have been deprived of a form of relief to which they are legally entitled under applicable regulations. (See FAC ¶¶ 394, 413.) USCIS argues that the WLD Plaintiffs, like the BFD Plaintiffs, have similarly failed to satisfy the Article III standing requirements of injury-in-fact and redressability.

Although advance parole is an undeniably significant benefit for the reasons discussed above, USCIS contends that the WLD Plaintiffs are not injured and that their injury is not redressable because advance parole is a discretionary benefit that the law precludes courts from compelling USCIS to grant. (See Mot. at 2–3, 15–16.) But a plaintiff “does not lose standing to sue just because his claims may fail on the merits.” Inland Empire Waterkeeper v. Corona Clay Co., 17 F.4th 825, 834 (9th Cir. 2021); see also Warth v. Seldin, 422 U.S. 490, 500 (1975) (“[S]tanding in no way depends on the merits of the plaintiff's contention that particular conduct is illegal.”). Thus, whether Plaintiffs are ultimately entitled to advance parole under the U visa statutory and regulatory scheme is a merits question, not a jurisdictional one. See Arizona v. Yellen, 34 F.4th 841, 853 (9th Cir. 2022) (“[D]ifferences in what the [statutory provision] means and how it may be enforced go to the merits of [the plaintiff's] claims, and not to whether a court has jurisdiction to hear these claims.”).

Accordingly, as to the WLD Plaintiffs, USCIS's motion to dismiss the second and third causes of action for lack of subject matter jurisdiction is denied.

B. Motion to Dismiss the WLD Plaintiffs’ Claim for Advance Parole for Failure to State a Claim Under Federal Rule of Civil Procedure 12(b)(6)

Since the WLD Plaintiffs’ claims are justiciable, the next issue is whether they have stated claims upon which relief can be granted. The WLD Plaintiffs assert that USCIS has unlawfully withheld or unreasonably delayed advance parole, as well as arbitrarily and capriciously denied advance parole, in violation of the APA. (FAC ¶¶ 397–98, 413.) These claims are predicated on Plaintiffs’ view that they are entitled to advance parole as a matter of law. (FAC ¶¶ 394, 413; Opp. at 10–12.) USCIS disagrees, moving to dismiss both claims on the basis that the grant of advance parole is discretionary under a proper reading of the statutory and regulatory provisions.

As with all questions of statutory and regulatory interpretation, the Court begins with the text, and ends there as well if the text is clear. See Mountain Cmtys. for Fire Safety v. Elliott, 25 F.4th 667, 676 (9th Cir. 2022); United States v. Carter, 421 F.3d 909, 911 (9th Cir. 2005). “When the text of a statute or regulation is read, we look to its plain meaning.” GCB Commc'ns, Inc. v. U.S. S. Commc'ns, Inc., 650 F.3d 1257, 1265 n.12 (9th Cir. 2011); see also Perrin v. United States, 444 U.S. 37, 42 (1979) (“[U]nless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”).

Here, the text of 8 C.F.R. § 214.14(d)(2), the regulation establishing the waiting list, forecloses Plaintiffs’ argument. Section 214.14(d)(2) states in pertinent part that “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.” Id. (emphasis added). Plaintiffs insist that this regulation's “mandatory language” requires the grant of parole for waiting list members. (Opp. at 3; FAC ¶ 393.) But nothing in § 214.14(d)(2)’s text supports that reading. Critically, the two forms of relief are connected by the conjunction “or.” “When the word ‘or’ joins two terms,” courts ordinarily “apply a disjunctive reading,” treating “the two terms as alternatives.” U.S. Commodity Futures Trading Comm'n v. Monex Credit Co., 931 F.3d 966, 976 (9th Cir. 2019); see also Chavez v. Dep't of Health & Hum. Servs., 103 F.3d 849, 850 n.1 (9th Cir. 1996) (“or” is used to “ ‘give a choice of one among two or more things’ ” (quoting Black's Law Dictionary (6th ed. 1990))).

As such, the plain language of § 214.14(d)(2) makes clear that parole is a decision committed to the agency's discretion. 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. While Plaintiffs would have the Court conclude that “ ‘or’ really mean[s] ‘and,’ ” they offer no textual basis to overcome its ordinary, disjunctive meaning. Monex Credit, 931 F.3d at 976 (“[T]his is not an instance where a disjunctive meaning would produce absurd results and statutory context compels us to treat ‘or’ as if it were ‘and.’ ”). Indeed, courts have consistently rejected Plaintiffs’ reading of the regulation. See Argueta, 2023 WL 8082113, at *7 (“USCIS is not required to grant deferred action and parole to waiting list members; rather, USCIS need only grant one or the other.”); Argueta v. Jaddou, No. 4:23-CV-3002, 2024 WL 639863, at *3 (D. Neb. Feb. 15, 2024) (“Where § 214.14(d)(2) requires USCIS to ‘grant deferred action or parole,’ it plainly does not require USCIS to issue deferred action and parole.”); Arenales-Salgado-De-Oliveira, 2024 WL 68291, at *10 (“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.”). And just as in those cases, USCIS here has granted deferred action to the WLD Plaintiffs, so they have already received all the relief to which they are legally entitled under § 214.14(d)(2).

Despite § 214.14(d)(2)’s clear text, Plaintiffs respond that they are nonetheless entitled to parole because USCIS in practice allegedly does issue both deferred action and parole to waiting list members, at least for those living abroad. (See Opp. at 3–4; FAC ¶¶ 223–24.) But such a practice would be entirely consistent with the interpretation of § 214.14(d)(2) as giving USCIS the discretion to choose what relief to grant waiting list members. Again, all § 214.14(d)(2) requires is that USCIS grant at least one of deferred action or parole. By granting both, USCIS would simply be exercising its discretion to do so.

Plaintiffs alternatively argue that another regulation, 8 C.F.R. § 212.5(f), compels USCIS to grant advance parole to members of the waiting list. Section 212.5(f) provides, “When 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.” Id. This regulation, according to Plaintiffs, entitles waiting list members to advance parole because “parole is authorized” for them under § 214.14(d)(2). (Opp. at 4.) Although not expressly stated in their briefing, Plaintiffs’ reading of § 212.5(f) implicitly relies on construing the word “authorize” to mean “to permit.” See Washington County v. Gunther, 452 U.S. 161, 169 (1981). Because § 214.14(d)(2) permits USCIS to grant parole for waiting list members, the argument goes, USCIS is thus required to grant them advance parole under § 212.5(f).

By contrast, USCIS reads “authorize” to mean “grant.” (Reply at 9 (defining “authorization” as an “ ‘[o]fficial permission to do something; sanction or warrant [or t]he official document granting such permission’ ” (quoting Black's Law Dictionary (11th ed. 2019))).) To USCIS, then, § 212.5(f) merely requires the agency to provide the necessary travel documentation once it decides to grant advance parole to an individual non-citizen. (Mot. at 21–22; Reply at 8–9.)

Canons of statutory interpretation and precedent both preclude Plaintiffs’ proposed reading. First, Plaintiffs’ construction of § 212.5(f) impermissibly “reads out of existence” the disjunctive “or” in § 214.14(d)(2). Stand Up for California! v. U.S. Dep't of the Interior, 959 F.3d 1154, 1160 (9th Cir. 2020) (recognizing that “statutes should be ‘construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant’ ” (quoting Corley v. United States, 556 U.S. 303, 314 (2009))). By reading § 212.5(f) to mandate advance parole, Plaintiffs would nullify USCIS's discretion to choose between granting either deferred action or parole to waiting list members—a discretion clearly committed to the agency under § 214.14(d)(2)’s text, as discussed above. Plaintiffs’ reading thus “inappropriately deprive[s]” § 214.14(d)(2) “of its effect,” and must be rejected. Stand Up for California!, 959 F.3d at 1160; see also Arenales-Salgado-De-Oliveira, 2024 WL 68291, at *11 (rejecting the same argument that advance parole is mandatory under § 212.5(f), because such an “interpretation of [§] 212.5(f) renders the ‘or’ in [§] 214.14(d)(2) meaningless, as it deprives USCIS of its choice between parole and deferred action”).

USCIS's reading, in contrast, gives full force to both regulations, harmonizing them into a “coherent regulatory scheme.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (citation omitted); see also Morton v. C.R. Mancari, 417 U.S. 535, 551 (1974) (“When there are two acts upon the same subject, the rule is to give effect to both if possible.” (citation omitted)). Under that proper interpretation, “ ‘authorized’ in [§] 212.5(f) means via individualized determinations by USCIS—in this case, after it chooses between deferred action or parole under [§] 214.14(d)(2).” Arenales-Salgado-De-Oliveira, 2024 WL 68291, at *12.

Nor does Plaintiffs’ assertion that advance parole is mandatory comport with precedent. The Ninth Circuit has squarely held that advance parole decisions are discretionary under the applicable statutory and regulatory provisions. Hassan v. Chertoff, 593 F.3d 785, 789 (9th Cir. 2010) (per curiam); see also De Herrera v. Gonzales, 234 F. App'x 764, 765 (9th Cir. 2007) (“Advance parole is offered on a discretionary basis by the Attorney General.”); Samirah v. Holder, 627 F.3d 652, 663 (7th Cir. 2010) (“[T]he immigration statute makes the grant of advance parole discretionary.” (citing 8 U.S.C. § 1182(d)(5)(A))); Pozdniakov v. INS, 354 F.3d 176, 177 (2d Cir. 2003) (decision to grant advance parole “lies solely within the Attorney General's discretion, pursuant to 8 U.S.C. § 1182(d)(5)(A) and 8 C.F.R. § 212.5”). That settled understanding would be upended by compelling USCIS to grant advance parole whenever parole may be permitted, as Plaintiffs insist. Plaintiffs cite to no case law supporting a ruling that would fly in the face of those precedents.

Finally, Plaintiffs’ position fails for the additional reason that it would vitiate the Attorney General's discretion over advance parole decisions beyond the U visa context. Congress gave the Attorney General “discretionary authority to grant parole ‘for urgent humanitarian reasons or significant public benefit’ to any alien applying for admission to the United States.” United States v. Anaya-Acosta, 629 F.3d 1091, 1094 (9th Cir. 2011) (quoting 8 U.S.C. § 1182(d)(5)(A)); see also Torres v. Barr, 976 F.3d 918, 931 (9th Cir. 2020) (en banc) (“The parole process is purely discretionary.” (citation omitted)). Because the statute “authorizes” the Attorney General to grant parole, Plaintiffs’ reading of § 212.5(f) would mean that “any alien” seeking admission to the United States who could potentially be considered for parole “for urgent humanitarian reasons or significant public benefit” would be automatically entitled to advance parole under § 212.5(f). 8 U.S.C. § 1182(d)(5)(A). Given the breadth of that language, that could potentially mean that overwhelming numbers of those seeking entry at the border would qualify for advance parole, under Plaintiffs’ reading of the regulation. Plaintiffs’ interpretation of § 212.5(f) “would effectively eviscerate the agency's discretion” to grant advance parole. Arenales-Salgado-De-Oliveira, 2024 WL 68291, at *12 (rejecting identical interpretation of § 212.5(f) because, so read, “parole is ‘authorized’ for anyone who qualifies under [§] 1182(d)(5), making parole mandatory under [§] 212.5(f)”).

To mitigate this absurd result, Plaintiffs insisted at oral argument on this motion that their reading of § 212.5(f) should be cabined to U visa petitioners. But there is no principled basis to do so, as neither § 212.5(f)’s text nor any other statute or regulation imposes such an artificial limitation. Advance parole for all purposes—whether involving a U visa or not—is based on the same authorizing provision: Section 1182(d)(5)(A). Navarro-Aispura, 53 F.3d at 235 (“Advance parole is an administrative procedure derived from application of 8 U.S.C. § 1182(d)(5).”). That, of course, is the same statutory provision that provides the Attorney General with discretion over when to grant parole for humanitarian or public benefit reasons.

At bottom, nothing in the statutory and regulatory text, or the binding precedents construing those provisions, supports Plaintiffs’ view that they are legally entitled to advance parole. Instead, all those authorities confirm that USCIS retains the discretion to determine if advance parole will be granted.

Accordingly, the second cause of action for unlawful withholding or unreasonable delay of advance parole decisions under 5 U.S.C. § 706(1) fails as a matter of law. Claims under § 706(1) to compel agency action may be brought only where “there is a ‘specific, unequivocal command’ that the agency must act.” Vietnam Veterans of Am. v. Cent. Intel. Agency, 811 F.3d 1068, 1081 (9th Cir. 2016) (citation omitted). As Plaintiffs conceded at oral argument, such a claim must fail if USCIS retains the discretion not to grant advance parole.

As to the third cause of action for arbitrary and capricious denial of advance parole, Plaintiffs do not allege that any of them have actually received decisions denying them advance parole. To the extent that Plaintiffs argue that USCIS has implicitly denied advance parole by granting deferred action, a grant of deferred action does not legally preclude a grant of advance parole, because USCIS has the discretion to grant both if it chooses, as detailed above. And, to the extent that Plaintiffs challenge USCIS's practice of failing to grant advance parole to those on the U visa waiting list in the United States, the challenged action would not be a denial but instead a withheld or delayed decision under § 706(1), which would be precluded as described above.

Because Plaintiffs’ claims for relief in the second and third causes of action are premised on their erroneous legal theory that advance parole is mandatory, those claims fail as a matter of law and are dismissed without leave to amend. See Arenales-Salgado-De-Oliveira, 2024 WL 68291, at *12 (“Since Plaintiffs are not entitled to parole via section 214.14(d)(2), section 212.5(f), or otherwise, their claims [for arbitrary and capricious denial of advance parole and unlawful withholding or unreasonable delay of advance parole] fail and must be dismissed.”).

IV. CONCLUSION

For the foregoing reasons, USCIS's motion to dismiss for lack of subject matter jurisdiction is GRANTED as to the BFD Plaintiffs’ second cause of action and otherwise DENIED. USCIS's motion to dismiss the WLD Plaintiffs’ second and third causes of action for failure to state a claim is GRANTED. The case will proceed as to the only remaining claim, the BFD Plaintiffs’ first cause of action. Because this Order partially moots Plaintiffs’ motion for partial summary judgment (Dkt. No. 23), it is DENIED WITHOUT PREJUDICE to being refiled as to the surviving claim. An initial case management conference is set for April 17, 2024, at 10:00 a.m. via videoconference. The parties shall file a joint case management statement by April 10, 2024.

IT IS SO ORDERED.

FOOTNOTES

1.   These include the three plaintiffs—Vipulkumar Patel, as well as his derivatives, Manishaben Patel and D.P. (FAC ¶ 233)—who USCIS stated had pending requests for evidence regarding their petitions at the time of the amended complaint's filing. (Mot. at 3 n.2; Dkt. No. 31-2 at 2–3; Dkt No. 31-3.) At oral argument, the parties agreed that these plaintiffs have since been placed on the waiting list and received deferred action. (Dkt. No. 41 at 30:20–25, 31:1–3.)

2.   The amended complaint refers interchangeably to “waiting list parole” and “advance parole.” (See, e.g., FAC ¶ 396.) For clarity and consistency with agency practice, the Court uses the term “advance parole.”

RITA F. LIN, United States District Judge