PHAM v. SCOTT (2025)

ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND DENYING MOTION FOR DISCOVERY

This Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1), case concerns the alleged unreasonable delay or unlawful withholding of eight remaining Plaintiffs’ pending petitions for nonimmigrant U-1 visas based on their status as victims of crime. 8 U.S.C. §§ 1101(a)(15)(U), 1184(p). Congress limits the available U-1 visas each fiscal year to 10,000. Id. § 1182(p)(2)(A).² Plaintiffs argue that, in order for Defendant Director of U.S. Citizenship and Immigration Services (“USCIS”) to comply with applicable law and regulations, USCIS must process each petition in the precise order petitions were filed, absent a small number of exceptions. Defendant acknowledges that law, regulations, and policy require priority be given to the earliest filed petitions. She also contends that a single-file line of individual petitions cannot be processed in precise order, as that is not what the governing regulation requires and that would hold up the processing of later-filed petitions until each petition is adjudicated given the realities of the nationwide system of petition, review, investigation, and adjudication. She argues she is entitled to summary judgment because—according to law, regulations, and policies—petitions are processed in cohorts based on filing-date order, pursuant to 8 C.F.R. § 214.14(d)(2), and petitions will not necessarily receive final adjudications at the same time as other petitions filed on the same day for a number of reasons necessary to the nationwide system's process. Defendant argues that this does not render the overall process unlawful and does not unreasonably delay or unlawfully withhold the adjudication of Plaintiffs’ petitions.

Pending before the Court are motions regarding summary judgment. First, Plaintiffs filed a Fed. R. Civ. P. 56(d) motion, arguing that discovery beyond the initial disclosures already produced is necessary. (Rule 56(d) Mot. [Doc. 34].) Second, Defendant filed a motion for summary judgment arguing that Plaintiffs lack standing and that, if jurisdiction exists, she is entitled to summary judgment on Plaintiffs’ APA claim. (D's MSJ [Doc. 35].)³ Plaintiffs responded in opposition to Defendant's motion. (Ps’ Oppo. [Doc. 42].) Third, Plaintiffs filed their motion for summary judgment on the issue of standing alone. (Ps’ MSJ [Doc. 39].) Defendant responded in opposition to Plaintiffs’ motion on standing. (D's Oppo. [Doc. 43].) The parties also filed a Joint Statement of Disputed and Undisputed Material Facts. (Joint Stmt. [Doc. 44].) Defendant replied in support of her motion for summary judgment, (D's Reply [Doc. 45]), and opposed Plaintiffs’ Rule 56(d) motion (Oppo. to 56(d) [Doc.46]).

On January 8, 2025, the Court ordered additional briefing. (Doc. 47.) Plaintiff responded, (Ps’ Merits Oppo. [Doc. 48]), and Defendant replied (D's Merits Reply [Doc. 49]). The Court finds the motions fully briefed and the issues suitable for determination on the papers without oral argument. CivLR 7.1(d)(1).

FACTUAL AND PROCEDURAL BACKGROUND

The United States Government's fiscal year begins on October 1 of each calendar year. 31 U.S.C. § 1102. On that day each year, 10,000 U visas become available. 8 U.S.C.§ 1184(p)(2). Plaintiffs who remain in this case filed their I-918 petitions for U visas between January 17, 2017, and June 30, 2017; and their petitions remain pending now, for fiscal year 2025. (First Amended Complaint “FAC” [Doc. 7] ¶¶ 64–66, 73–75, 84, 86–87; see also Orise Decl. [Doc. 34-1] ¶ 46.) From 2009–2023, the number of annually filed petitions for nonimmigrant U visas has generally increased. (Annual Number of Petitions 2009-2024 [Doc. 49-3] at 1 (annual number of petitions received varying from 6,850 in 2009 to 37,287 in 2017 to 31,204 in 2023.) The parties do not dispute that the increasing number of annual applicants over time since 2010 has surpassed the 10,000 U visas available annually.

Plaintiffs allege that USCIS wrongfully skipped over them in processing order and that accordingly USCIS is unlawfully withholding or unreasonably delaying their adjudications. (FAC ¶¶ 99–101; Ps’ MSJ at 4.) Plaintiffs contend that, unless USCIS processes each individual petition from start to “actual issuance” in the order in which they were filed—absent limited exceptions applicable to fewer than a quarter of petitions—USCIS has no lawful process for review and adjudication. (Ps’ Oppo. at 3; Ps’ MSJ at 6–7; see also Banias Decl. [Doc. 34-4] ¶ 3.)⁴ Defendant argues that Plaintiffs’ allegations lack foundation and that, in light of Defendant's initial disclosures, Defendant is entitled to summary judgment for two reasons: (1) Plaintiffs lack standing because their claims are not redressable; and (2) Plaintiffs’ petitions are not unreasonably delayed or unlawfully withheld as a matter of law.

In her initial disclosures, Defendant produced,

(1) the sworn declaration of Sharon Orise, the Adjudications Division Chief for the Service Center Operations Directorate of USCIS, which explains the processing of petitions for U-1 visas and authenticates the other documents disclosed;

(2) an Excel spreadsheet containing three worksheets: all U visa petitions approved in FY 2023 (FY 2023 Cap Approvals [Ex. B-1]); all U visa petitions approved in FY 2024 (FY 2024 Cap Approvals [Ex. B-2]), and all petitions received before November 30, 2016, that are pending as of the time of briefing (FY 2024 Pending Received Prior to November 30, 2016 [Ex. B-3]);

(3) an Excel spreadsheet containing two worksheets: all U visa petitions received in FY 2016 (FY 2016 Receipts [Ex. C-1]); and all U visa petitions received in FY 2017 (FY 2017 Receipts [Ex. C-2]); and

(4) a printout of USCIS's Website stating that the statutory cap of 10,000 U visas was met for FY 2024 as of July 22, 2024 (Cap Date FY2024 [Ex. D]).

(D's MSJ at 12.)⁵

Each of the eight remaining Plaintiffs’ petitions has been identified within Defendant's processing system. (Orise Decl. ¶¶ 47–54.) The parties do not dispute the following facts. (Joint Stmt. at 2–3.)

Plaintiff Ashwajit Bhikku filed his petition on January 17, 2017, received a favorable BFD in 2023, and was granted employment authorization and deferred action. (FAC ¶ 73; Orise Decl. ¶ 47.)

Plaintiff Nazneen Begum filed on March 29, 2017, received a favorable waiting list adjudication in 2021, and was granted employment authorization and deferred action. (FAC ¶ 65; Orise Decl. ¶ 48.)

Plaintiff Fouzan Mohammed filed on March 29, 2017, received an unfavorable BFD in 2022, and was granted employment authorization and deferred action. (FAC ¶ 86; Orise Decl. ¶ 49.)

Plaintiff Anh Pham filed on April 21, 2017, received a favorable BFD in 2022, and was granted employment authorization and deferred action. (FAC ¶ 74; Orise Decl. ¶ 50.)

Plaintiff Vipulkumar Patel filed on April 21, 2017, received a favorable BFD in 2022, and was granted employment authorization and deferred action. (FAC ¶ 84; Orise Decl. ¶ 51.)

Plaintiff Janitze Marquez Lopez filed on May 10, 2017, received a favorable BFD in 2022, and was granted employment authorization and deferred action. (FAC ¶ 75; Orise Decl. ¶ 52.)

Plaintiff Hosana de Macedo filed on June 7, 2017, received a favorable BFD in 2023, and was granted employment authorization and deferred action. (FAC ¶ 64; Orise Decl. ¶ 53.)

Plaintiff Eustolia Rangel Garcia filed on June 30, 2017, received a favorable BFD in 2022, and was granted employment authorization and deferred action. (FAC ¶ 66; Orise Decl. ¶ 54.)

In the Joint Statement, the parties dispute whether Plaintiffs Bhikkhu, Begum, and Mohammed are entitled to receive final adjudications in the current fiscal year 2025. Plaintiffs contend that these three Plaintiffs’ petitions’ filing dates (January 17 and March 29 of 2017) are within the next 10,000 U visa applicants, entitling them to adjudication in FY 2025. Defendant contends that the earliest those three petitions could be finally adjudicated is during the FY 2025, but that they may be adjudicated later. (Joint Stmt. at 3–4.) The parties also jointly identify their factual dispute about whether “USCIS has no organized, rational processing pattern, rule, or policy for issuing the 10,000 U visas each fiscal year,” on the one hand, or whether some petitioners within a receipt-date cohort may not receive final cap adjudications at the same time as most other petitioners from that same cohort for many reasons that apply across the nationwide process. (Id.)

USCIS produced a spreadsheet of “Fiscal Year 2017 Receipts” and identified the specific row in the table capturing each Plaintiff's pending petition. (D's MSJ at 9–10; Orise Decl. ¶¶ 47–54; FY 2017 Receipts [Doc. 41].) The Fiscal Year 2017 Receipts demonstrate that many other petitioners filed on the same days Plaintiffs did. (See, e.g., FY 2017 Receipts at ll. 10620–10844 (showing petitions filed on the same day as Plaintiff Bhikku, January 17, 2017).) That spreadsheet also demonstrates that many petitioners who are not parties to this case filed their petitions earlier than Plaintiffs did in FY 2017 and were still awaiting final adjudications at the time of briefing. (See, e.g., id. at ll. 10, 45, 62, 72, 77, 97, 102, 107, 122, 143, 162, 188, 211, 213, 227, 238, 272, 280–81, 287, 289, 329, 334, 345, 347, 385, 447–48, 460, 495–97, 507, 516, 523–24, 538, 544, 556–57, 568, 574, 587, 601, 672, 679, 681, 687, 691, 695, 697–98, 702, 704, 708–09, 714, 722, 737, 748, 752, 771, 773, 777, 787, 789, 806, 825, 828, 831, 859–60, 863, 876, 880, 901, 904 ․ 10619.⁶ ) Sharon Orise explains this reality: “There are approximately 5,458 pending petitions that were filed prior to January 17, 2017 (the earliest filing date among the remaining Plaintiffs)—and 20,917 pending petitions that were filed prior to June 30, 2017 (the latest filing date among the remaining Plaintiffs).” (Orise Decl. ¶ 55.)⁷

Many petitioners, who are not parties to this case, filed their petitions on the same day as, for example, Plaintiff Bhikku, and are similarly awaiting adjudication. (See, e.g., FY 2017 Receipts at ll. 10620, 10621, 10623, 10624–28 ․ 10828–44.)⁸ This is true for each Plaintiff. (See id.) “The spreadsheets demonstrate that the agency prioritizes earlier-filed petitions in cap adjudications, and that Plaintiffs are not entitled to cap adjudications because their petitions, which were all filed in January 2017 or later, were filed after the November 30, 2016 FY 2024 cap ‘cut-off’ date and therefore are not current for cap adjudication.” (Id. ¶ 21.)

The earliest that each Plaintiff's petition could come up for adjudication is FY 2025, but each Plaintiff's petition may not be adjudicated in FY 2025. (Id. ¶¶ 47–54.) Defendant provided many undisputed facts explaining why petitions may not be adjudicated in lock-step, single-file order, while still comporting with a first-in, first-out policy. (D's MSJ at 21.) First, some petitions are more complex than others. (Orise Decl. ¶¶ 39–41.) Second, a petitioner's immigration file, which must be reviewed as part of the process, may be located at another service center or Department of Homeland Security location, as part of applications for other admissions into the country or other benefits, and may not be available for immediate review. (Id. ¶ 43.) Third, novel issues of a petitioner's eligibility for U visa will require more time or investigation. (Id. ¶ 44.) Fourth, unresolved background checks or national security checks may require more investigation or time. (Id.) Finally, any request from the agency to a petitioner for additional evidence regarding the petition will create a delay to give that petitioner time to respond and the agency time to review any new evidence submitted. (See id. ¶ 41.) During any of these necessary variations in process and time, USCIS does not hold all other petitions with similar filing dates to ensure a lock-step parity between filing date and adjudication date. Defendant adheres to a first-in, first-out priority of processing rule, as required by 8 C.F.R. § 214.14(d)(2), but need not ensure that each petition is finally adjudicated “out” in exactly the same order that the petitions arrived “in” to USCIS.

Finally, “[i]f USCIS were ordered to prioritize adjudication of the remaining Plaintiffs’ petitions when the FY 2025 cap opens on October 1, 2024, the agency would be skipping over between 5,458 and 20,917 earlier filed petitions, in violations of USCIS regulations [ ] and USCIS policy.” (Orise Decl. ¶ 56 (citing 8 C.F.R. 214.14(d)(2) and USCIS Policy Manual Volum 3, Part C, Chapter 7: Order of Adjudication); see also FY 2017 Receipts; D's MSJ at 17–18 (citing updated numbers of earlier filed petitions after the passage of time during briefing.).) According to Defendant's initial disclosures, Plaintiffs are all waiting for adjudication based on filing date, controlling regulation, and governing USCIS policy. (Orise Decl. ¶¶ 46–55.) Plaintiffs do not marshal facts to dispute this evidence; rather, they argue that they need facts, which they hope to find through discovery outside of the administrative record or initial disclosure.

LEGAL STANDARD

Summary judgment is proper when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are those that may affect the outcome of the case, and a dispute as to a material fact is genuine if there is sufficient evidence for a reasonably jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial. Fed. R. Civ. P. 56(c)(1); Anderson, 477 U.S. at 250, 106 S.Ct. 2505. The nonmoving party may not rest upon mere allegation or denials of his pleading but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256, 106 S.Ct. 2505.

All reasonable inferences must be drawn in the light most favorable to the nonmoving party. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). The Court need not “scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden “to identify with reasonable particularity the evidence that precludes summary judgment.” Id. To survive summary judgment, the nonmoving party “must set forth non-speculative evidence of specific facts, not sweeping conclusory allegations.” Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011). If the nonmoving party does not produce such evidence or offers evidence that is “merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted).

In response to a motion for summary judgment, the nonmoving party may request discovery. Fed. R. Civ. P. 56(d). “If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). Furthermore, “[r]equests for additional time to conduct discovery under Rule 56(d) do not give plaintiffs a free pass to conduct unlimited, wide-ranging, or burdensome discovery absent sufficient justification.” Hupp v. San Diego Cnty., No. 12-CV-0492-GPC-RBB, 2014 WL 3573337 at *9, 2014 U.S. Dist. LEXIS 99825 at *26 (S.D. Cal. Jul. 21, 2014); see also Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991) (citing predecessor Rule 56(f); Volk v. D.A. Davidson & Co. 816 F.2d 1406, 1416 (9th Cir. 1987)). For this reason, plaintiffs seeking discovery under Rule 56(d) bear the “burden of showing the trial court what facts it hoped to discover which would raise issues of material fact.” Ladd v. Law & Tech. Press, 762 F.2d 809, 811 (9th Cir. 1985); Terrell, 935 F.2d at 1018 (denial of Rule 56(d) motion is proper absent “the existence of additional essential and discoverable evidence:”); see also Ward v. Champen, 489 Fed. App'x 236, 237 (9th Cir. 2013) (citing Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1306 & n.1 (9th Cir. 1986)); Tokerud v. Pac. Gas & Elec. Co., 25 Fed. App'x 584, 586 (9th Cir. 2001). The filing of a Rule 56(d) motion does not preclude consideration of the merits of a motion for summary judgment. Fed. R. Civ. P. 56(d) (“When Facts Are Unavailable to the Nonmovant”); Harris v. Duty Free Shoppers Ltd. P'ship, 940 F.2d 1272, 1276 (9th Cir. 1991) (addressing Rule 56(f), the prior version of Rule 56(d)).

ANALYSIS

I. Plaintiffs Are Not Entitled to Additional Discovery Before Review of the Motions for Summary Judgment

Plaintiffs’ Rule 56(d) motion argues that the Court should not reach summary judgment until further discovery on “whether [USCIS] actually issues U visas based on when the applicant filed their application.” (Rule 56(d) Mot. at 2.) After review of the entire record, the Court determines that Plaintiffs are not entitled to additional discovery before consideration of the motions for summary judgment.

A. Plaintiffs’ Motion Fails to Satisfy the Requisite Burden

Plaintiffs here failed to satisfy the requisite burden because they failed to show what facts they hoped to discover that “would raise issues of material fact.” Ladd, 762 F.2d at 811. In support of their burden, Plaintiffs filed the affidavit of their counsel of record, Brad Banias. (Banias Decl. [Doc. 34-4].) Banias averred that Plaintiffs require three categories of factual discovery, (1) “the historic or projected U visa denial rate to determine the total number of U visa applicants who will receive decisions on their U visa application in fiscal year (FY) 2025;” (2) “a list of the ‘cut-off dates’ for FYs 2016, 2017, 2018, 2019, 2020, 2021, 2022, and a complete list of the approvals with filing dates for each of those fiscal years;” and (3) “all internal guidance that supports Defendant's claims” at specific paragraphs of the Declaration of Sharon Orise, dated August 16, 2024, filed by Defendant. (Banias Decl. at 1–2.) Plaintiffs are not entitled to the broad scope of discovery sought by the Banias Declaration for the following reasons.

Plaintiffs’ memorandum reveals why the requested data are overbroad and do not demonstrate how the requested facts are material. “Plaintiffs need additional data [in addition to the two spreadsheets produced by Defendant showing adjudication dates] to determine whether USCIS actually issues U visas based on filing date.” (Rule 56(d) Mot. at 2.) Plaintiffs also argue that this “case turns on whether Defendant ․ actually issues U visas based on when the applicant filed their application.” (Id.) But this position is not supported by Plaintiffs’ complaint.

First, the absence of any identified factual connection between an individual Plaintiff and, as requested, all “actually” issued U visas is fatal to this request in an APA claim. Nowhere in their Complaint do Plaintiffs allege as necessary to their individual claim “whether USCIS actually issues [all] U visas based on filing date.” (Id.) Instead, Plaintiffs—who are not a class, and do not represent all U-1 visa petitioners awaiting adjudication—seek an order mandating adjudication of their pending U visa petitions within thirty days on grounds that other petitioners, who filed after Plaintiffs, received adjudications before Plaintiffs. See 5 U.S.C. § 702(1); FAC at ¶¶ 87–90, 98, 119–24. Moreover, the requested information is not material to oppose Defendant's motion for summary judgment because it would not produce new or different information about where Plaintiffs’ petitions stand in the review process or the process by which Defendant will reach and adjudicate Plaintiffs’ petitions.

Second, Plaintiffs argue that Defendant violated her own “first in, first out” rule, 8 C.F.R. 214.14(d)(2), when she adjudicated any petition filed after Plaintiffs’ petitions were filed. (Rule 56(d) Mot. at 2.) Plaintiffs seek discovery as if they represented all U-1 visa petitioners challenging all of Defendant's acts and failures to act with respect to the processing of those petitions. To the extent Plaintiffs request discovery on this broad basis, the Court denies the requests as insufficiently specific to raise issues of fact material to any individual Plaintiff's APA claim for withholding or delay.

Not all of Plaintiffs’ discovery requests are so broad, however. First, they seek a “projected denial rate” or “data sufficient to calculate the denial rate for FYs 2023 or 2024.” (Id. at 3–4.) Without this data, Plaintiffs state they cannot “identify the last filing date for U visa issuance in FY 2025.” (Id. at 4.) Second, Plaintiffs seek the “historic, projected, or actual denial rate for U visas.” (Id.) Plaintiffs argue they need these facts to oppose Defendant's declaration that some Plaintiffs will not fall within the 10,000-U-visa cap for FY 2025. (Id.) Third, Plaintiffs claim a need for “the ‘cut off’ dates for FYs 2016, 2017, 2018, 2019, 2020, 2021, and 2022 and a complete list of the approvals for those FYs.” (Id.) This information is necessary, according to Plaintiffs, to oppose Defendant's representation in the Orise Declaration that “the applications that were approved well after the cut off dates for both 2023 and 2024 were accidents or approved in error.” (Id.) Finally, Plaintiffs seek “information about the process USCIS uses to issue and process U visas each FY to rebut” the Orise Declaration's “unsupported claims.” (Id.)⁹

As previously explained, Plaintiffs request three categories of discovery and state that each is necessary to establish a material fact to their claim or their defense to USCIS's summary judgment motion. Each of these three requests goes to the USCIS process for review and adjudication of all U visa petitions. There is nothing identified by Plaintiffs that impacts a named Plaintiff's standing or a specific U-1 petition or adjudication. And, to the extent that Plaintiffs seek to create their own list of all petitions filed before their own or on the same day as their own, in order to oppose summary judgment with an independent data set, the Court rejects this discovery as immaterial, overbroad, and likely to introduce error. The agency's production of its own administrative record is entitled to some presumption of propriety in light of its legal obligation to compile information considered. Cape Hatteras Access Pres. Alliance v. United States Dep't of Interior, 667 F. Supp. 2d 111, 114 (D.D.C. 2009). No factual foundation in this record undermines that presumption in this case. Plaintiffs’ allegations and arguments lacking evidentiary support are insufficient to overcome the presumption in this case.

Similarly, in De Sousa, plaintiffs sought discovery to learn how USCIS implemented parole under 8 C.F.R. § 214.14(d)(2). De Sousa v. Dir. of U.S. Citizenship & Imm. Servs., 755 F. Supp. 3d 1266, 1276 (N.D. Cal. 2024). There, the court denied the discovery because the “request is based merely on speculation.” Id. The De Sousa plaintiffs “only cursorily assert[ed] that such discovery ‘is likely sufficient to get all of the answers relevant to standing that Plaintiffs need to push forward with their case.’ ” Id. Although Plaintiffs here submit the declaration of their counsel, and no declaration supported the request in De Sousa, the basis for the motion's denial is similar.

Additional reasons support denial of discovery here. In both cases, Plaintiffs’ requests are for information about the agency's processing of any or all petitioners, rather than tailored requests that would yield material facts that could defeat summary judgment. In both cases, Plaintiffs do not describe “with any precision how such discovery could be helpful to the Court,” or its evaluation of delay as to any specific petitioner, especially where issues of law resolve the case. See De Sousa, 755 F. Supp. 3d at 1276 (citing LNS Enters. LLC v. Cont'l Motors, Inc., 22 F.4th 852, 865 (9th Cir. 2022)).

Finally, Defendant's sworn admissions render the requested discovery less likely to be helpful to the Court. First, there were a de minimis number of U-1 petitions processed out of order. (Orise Decl. ¶¶ 29–30, 32–34.) Second, the status of each individual Plaintiff's petition is explained by the agency in detail, and the projected future status of each Plaintiff's petition is addressed. (Id. ¶¶ 46–56.) Third, Defendant explains the pragmatic reality that while the agency complies with prioritizing adjudications “in filing date order to the greatest extent possible,” there are many sound reasons that adjudications will not ultimately be issued in the precise order of when the petitions were filed. (Id. ¶ 35.) Some of these reasons include varying complexity of cases and adjudicative steps and time needed to review petitions. (Id. ¶¶ 35–45.) Defendant declares under oath that after review of the Plaintiffs’ individual petitions, all are “consistent with the data” explained by Defendant and that the agency “is processing the petitions in the order in which they were filed.” (Id. ¶ 46.) In other words, despite a number of erroneously processed, out-of-order adjudications, Plaintiffs’ petitions are being processed in accordance with filing date priority. (See id. ¶¶ 20–56.) In the face of these facts, Plaintiffs do not specify the reason that Defendant's declaration is unsupported or what facts their proposed discovery would produce to create a material issue of fact. Neither do Plaintiffs argue or demonstrate that Defendant acted in bad faith in the creation of the administrative record that she initially produced. See Tokerud, 25 Fed. Appx. at 585–86.

B. Supplemental Bases Weigh In Favor of Discovery Denial

Even if Plaintiffs had met their burden to demonstrate the specific reasons for requested discovery and the material facts that might be produced, there are additional realities in this APA case that weigh against granting their Rule 56(d) motion. First, Plaintiffs’ APA claim, to compel agency action unlawfully withheld or unreasonably delayed, does not permit the broad, speculative discovery that Plaintiffs seek. 5 U.S.C. § 706(1); see also Dep't of Com. v. New York, 588 U.S. 752, 780–83, 139 S.Ct. 2551, 204 L.Ed.2d 978 (2019) (restating three settled rules regarding judicial review of agency action: (1) an agency must disclose the basis of its action; (2) judicial review is usually limited to agency's contemporaneous explanation in light of the administrative record; and (3) a court may not reject an agency's stated reasons for acting because other unstated reasons may exist). Instead, Plaintiffs’ operative complaint, which does not allege any constitutional violation, is resolved on the administrative record giving rise to the case. 5 U.S.C. § 706(1).

The scope of a federal court's review of administrative action, “[t]o the extent necessary to decision and when presented” permits an order to “compel agency action unlawfully withheld or unreasonably delayed,” as is alleged in this case. Id. In an APA case, the federal courts may also “hold unlawful and set aside agency action, findings, and conclusions found to be” violations of law as enumerated by the statute, including agency actions, findings, and conclusions found to be “arbitrary, capricious, an abuse of discretion or otherwise no in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. at § 706(2)(A), (C). However, in making such a determination, “the court shall review the whole record or those parts of it cited by a party.” Id. at § 706. The “whole record” refers to the administrative record. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743–44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985).

Plaintiff's APA claim is based solely on 5 U.S.C. § 706, and accordingly the discovery permitted in this case is limited to the administrative record. 5 U.S.C. § 706; Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996); accord Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. United States Dep't of Agric., 499 F.3d 1108, 1117 (9th Cir. 2007).

Limited judicial exceptions to the scope of discovery in APA cases do exist.

A court may only consider extra-record materials in the following circumstances: (1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) when the agency has relied on documents not in the record, or (3) when supplementing the record is necessary to explain technical terms or complex subject matter. The Ninth Circuit also permits extra-record documents when a plaintiff demonstrates bad faith by the agency. These exceptions are narrowly construed and applied.

Calif. v. United States Dep't of Homeland Sec., 612 F. Supp. 3d 875, 882 (N.D. Cal. 2020) (internal quotation marks and citations omitted); Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005). In addition, a “court should generally consider neither more nor less than what was before the agency at the time it made its decision,” and the agency is presumed to have properly compiled the administrative record. Cape Hatteras Access Pres. Alliance, 667 F. Supp. 2d at 114. Here, the challenged agency action may be defined as either the failure to act on Plaintiffs’ still-pending petitions or the decision to act on petitions filed later than Plaintiffs’ petitions in alleged violation of the “first-in, first-out” rule. Either way, Plaintiffs alleged a violation of the APA alone and prayed that this Court declare that Defendant unlawfully withheld and unreasonably delayed Plaintiffs’ “U visa decisions” and order Defendant “to make final U visa decision[s] for Plaintiffs within 30 days.” (FAC ¶¶ 119–24.) On the face of the operative complaint, there is no alleged basis for extra-record discovery as defined by section 706. Moreover, Plaintiffs’ Rule 56(d) motion does not explain how the requested discovery satisfies the statutory exceptions permitted by section 706. (Rule 56(d) Mot. at 4–5 (arguing that Plaintiffs satisfied Rule 56(d) but not addressing the limitation to discovery mandated by 5 U.S.C. § 706).

Finally, as explained next, the proposed discovery is not necessary or helpful to resolve Plaintiffs’ APA claim. Their claim is resolved, even as alleged by Plaintiffs, by application of the TRAC factors. Telecomms. Res. & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 79–80 (D.C. Cir. 1984). (FAC ¶¶ 101–113.) Plaintiffs declare that they need a list of “cut off dates” for fiscal years 2016–2022, inclusive, and a complete list of the approvals with filing dates for each of those fiscal years. But these facts are not material to an analysis of delay or withholding under the APA. See id.; TRAC, 750 F.2d 70, 79–80; Vaz v. Neal, 33 F.4th 1131, 1137–38 (9th Cir. 2022); Southwest Ctr. for Biological Diversity, 100 F.3d at 1450; Mayor of Baltimore v. Trump, 429 F. Supp. 3d 128, 137–38 (D. Md. 2019) (citing 5 U.S.C. § 706(2)); Dep't of Com., 588 U.S. at 780, 139 S.Ct. 2551. Plaintiffs seek facts that, if they exist, have no bearing under existing jurisprudence on the analysis of whether Defendant's delay or withholding is unreasonable or violates law. Plaintiffs make no showing that the agency's record is improperly compiled. Instead, they challenge the sufficiency of support for the agency official's declaration and argue that extra-record facts are necessary. But see Mayor of Baltimore, 429 F. Supp. 3d at 138 (collecting cases and explaining that the presumption of regularity accorded to agency action is not overcome by “mere allegations of bad faith”). “[A] plaintiff must put forth a ‘strong showing’ of impropriety to peer beyond the [administrative] record.” Id. (quoting Dep't of Com., 588 U.S. at 781, 139 S.Ct. 2551 (extra-record discovery into the mental processes of administrative may be justified on a strong showing of bad faith or improper behavior). For the foregoing reasons, Plaintiff's Rule 56(d) motion is denied.

II. Motions for Summary Judgment on APA Claim

Defendant moves for summary judgment on the record, arguing that (1) Plaintiffs’ claim is not redressable, and (2) if the Court finds the claims redressable, then Plaintiffs’ U visa adjudications have not been unreasonably delayed or unlawfully withheld. Plaintiffs move for partial summary judgment on the issue of standing alone, and oppose Defendant's motion on the merits of their APA claim.

The APA requires agencies to conclude matters “within a reasonable time.” 5 U.S.C. § 555. A person “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” Id. § 702. Reviewing courts have the power to “compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1). The question central to this dispute is whether Defendant has unreasonably delayed adjudication of Plaintiffs’ petitions or whether the adjudications are unlawfully withheld. The parties agree that the TRAC factors govern the reasonableness of delay.

A. Standing

Article III limits the federal courts’ jurisdiction to “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Article III standing or Constitutional standing enforces this Constitutional requirement. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). “The requisite elements of Article III standing are well established: ‘A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.’ ” Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 598, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

To meet this requirement, a plaintiff must show at the outset that its injuries likely, not speculatively, “will be redressed by a favorable decision.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (internal citations and quotation marks omitted). “[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, 592 U.S. 279, 291, 141 S.Ct. 792, 209 L.Ed.2d 94 (2021). Standing “in no way depends on the merits of the plaintiff's contention that particular conduct is illegal.” Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Inland Empire Waterkeeper v. Corona Clay Co., 17 F.4th 825, 834 (9th Cir. 2021). Here, Plaintiffs request that the Court order Defendant to adjudicate their petitions within 30 days or at the earliest date that the cap permits in the applicable year. While the Court concludes they are not entitled to such an Order as a matter of law, Plaintiffs have satisfied their “relatively modest” burden to establish redressability. Bennett v. Spear, 520 U.S. 154, 171, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Tucson v. City of Seattle, 91 F.4th 1318, 1325 (9th Cir. 2024).

The Court noted in a prior order that a Seventh Circuit panel held, in a similar case, that plaintiff U visa petitioners lacked standing because their claims were not redressable. See Taylor v. McCament, 875 F.3d 849 (7th Cir. 2017). The Taylor panel's conclusion relied on USCIS's lack of statutory authority to give plaintiff the relief sought, where approximately 30,000–35,000 petitioners preceded him on the waiting list. 875 F.3d at 854–55.¹⁰ Although the agency had statutory authority to adjudicate Taylor's petition in the future, it had no authority to immediately issue 80,000 U visas to those on the waiting list. Moreover, “even if Taylor simply sought to compel USCIS to immediately adjudicate only his petitions, the agency would still lack authority to provide that relief.” Id. at n.3 (emphasis in original). Because the authority to issue the requested relief was “illusory,” Taylor failed to show that a favorable judicial decision could give him the relief sought. Id. at 854.

Plaintiffs concede that the Court cannot order Defendant to adjudicate their petitions in a fiscal year in which the cap has been exhausted. Instead, they ask the Court to order USCIS adjudicate Plaintiffs’ petitions next, after entry of the order, as soon as statutorily permissible visas are available under the cap. Plaintiffs argue their claim is redressable—even when the annual cap is met and no visas are available to any petitioner—because their claim is capable of repetition but evading review (a doctrine permitting an exception to mootness). See Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 462, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007); San Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676, 703 (9th Cir. 2012). The Court need not here address the distinction between the redressability concerns it previously raised (in order to hear the parties’ legal briefing on that point) and Plaintiffs’ mootness authorities now. Neither is Plaintiffs’ standing in this case undermined by the rationale of the Northern District of California in De Sousa, 755 F. Supp. 3d at 1275. There, the evidence demonstrated that the relief requested by U visa petitioners would not change their chances of obtaining the advance parole they ultimately desired. Id.

In the absence of controlling authority to the contrary, the Court concludes that Plaintiffs meet their relatively modest burden to show their APA is redressable, where the requested relief both recognizes the cyclical renewal of 10,000 visas annually and also concedes that neither the Court nor USCIS can exceed the congressionally mandated annual limit. Plaintiffs sufficiently allege at the time of filing of this case that the federal courts are capable of vindicating their legal rights with an order to adjudicate their pending petitions at the earliest time permitted in light of the statutory annual cap. See Day v. Henry, 129 F.4th 1197, 1203 (9th Cir. 2025) (redressability requirement of standing is met where the district court is “capable of granting at least some relief,” even where plaintiffs have “inconsistently identified” the requested relief). For these reasons, Plaintiffs’ motion for summary judgment solely on the issue of their standing is granted and Defendant's motion for summary judgment is denied in relevant part.

B. The TRAC Factors Entitle Defendant to Summary Judgment on the Unreasonable Delay APA Claim on the Administrative Record

Defendant moves for summary judgment on grounds that the delay on Plaintiffs’ petitions is not unreasonable as a matter of law. The Ninth Circuit applies the TRAC factors in claims of agency delay under the APA. Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997).

The TRAC factors are, (1) the time agencies take to make decision must be governed by a “rule of reason[;]” (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason[;] (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake[;] (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority[;] and (5) the court should also take into account the nature and extent of the interests prejudiced by delay[;] and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’ ” TRAC, 750 F.2d at 80 (internal quotation marks and citations omitted). The TRAC factors also apply to allegations of agency unreasonable delay in adjudication of immigration-related petitions and petitions for nonimmigration entry into or visit in the United States. See, e.g., Sawahreh v. United States Dep't of State, 630 F. Supp. 3d 155 (D.D.C. 2022); Mosayebian v. Blinken, No. 24-CV-130-JLS-MMP, 2024 WL 3558378, 2024 U.S. Dist. LEXIS 131903 (S.D. Cal. July 25, 2024).

1. Factor One: Rule of Reason

The most important factor in the TRAC analysis is the first factor, the rule of reason, even though it is not determinative. NRDC v. US Env. Prot. Agency, 956 F.3d 1134, 1139 (9th Cir. 2020). “Consideration of the first factor requires an inquiry into whether there is any rhyme or reason for the Government's delay—in other words, whether the agency's response time ․ is governed by an identifiable rationale.” Poursohi v. Blinken, No. 21-cv-1960, 2021 WL 5331446, at *4, 2021 U.S. Dist. LEXIS 221350, at *12 (N.D. Cal. Nov. 16, 2021) (internal quotation marks omitted) (quoting Palakuru v. Renaud, 521 F. Supp. 3d 46, 50–51 (D.D.C. 2021)). Where a visa petitioner alleges unreasonable delay, the first factor requires courts to consider both the length of the delay and the reasons for the delay. Infracost, Inc. v. Blinken, 732 F. Supp. 3d 1240, 1254–55 (S.D. Cal. 2024) (collecting cases); Poursohi, 2021 WL 5331446, at *4–6, 2021 U.S. Dist. LEXIS 221350, at *12. Length of delay alone is not dispositive. Infracost, 732 F. Supp. 3d at 1255.

Here, the length of the delay is significant. Plaintiffs all filed their petitions in the first six months of 2017. In 2025, all still await adjudication. The eight years of delay, considered alone, weighs in Plaintiffs’ favor. See Infracost, 732 F. Supp. 3d at 1254–55 (collecting cases). However, the agency's explanations for the eight-year delay are compelling and do not lack reason, as other courts have concluded in the context of nonimmigrant visa adjudication or immigration benefits. See Kamath v. Campagnolo, No. SACV 21-01044-CJC(ADSx), 2021 WL 4913298, at *3, 2021 U.S. Dist. LEXIS 213298, at *7 (C.D. Cal. Aug. 13, 2021); Nibber v. USCIS, 2020 WL 7360215, at *5, 2020 U.S. Dist. LEXIS 235099, at *14 (D.D.C. Dec. 15, 2020) (noting that first-in, first-out is a rule of reason in the context of petitions for immigration benefits).

Congress set an annual cap on U-1 visa adjudications, rather than a deadline by which to adjudicate. 8 U.S.C. § 1182(p)(2)(A). The parties agree that the number of U visa petitions annually filed has outpaced the annual limit on U visas and increased the delay. Plaintiffs’ argument that their petitions were skipped over is supported by the record in this sense: Defendant's initial disclosures demonstrate that later-filed petitions may be adjudicated or receive final action before earlier-filed petitions for many reasons. (Orise Decl. ¶¶ 12, 21–28, 35–45.) This produces a skip, in one sense, but, contrary to Plaintiffs’ argument, it is not a skip that offends the processing system's legal or regulatory compliance. The record also supports the existence of agency errors in the order of processing that must be expected in a nationwide system reviewing thousands of petitions. (Id. ¶¶ 29–30; Number of Petitions [Doc. 49-3] at 1 (showing 238,892 petitions pending as of the end of the fiscal year 2024 reporting period)¹¹ .) The record does not support the conclusion, however, that Defendant will not adjudicate Plaintiffs’ petitions. Indeed, there appears no material fact to suggest that Plaintiffs’ petitions are being processed out of the established procedural order, once the unique nature of each petition is considered as part of the overall process. The material fact that most weighs in favor of the reasonableness of Defendant's processing under applicable rules, however, is that petitions are not fungible and are not subject to identical processing at each intermediate step of review or investigation. (Orise Decl. ¶¶ 39–55.) “[W]hile cap adjudication may begin on the same day for two different files, the final actions in the cases might take place at different times due to the varying complexity of the cases and the adjudicative steps needed.” (Id. ¶ 39.) This statement is not undermined by Plaintiffs’ arguments that (1) not all petitions in a given time range are adjudicated in the same fiscal year or (2) that “issuance dates” may vary up to eight months for a single filing date. (P's Merits Oppo. at 3–5.)

The first factor therefore weighs in Defendant's favor. Although the length of the delay on its own appears unreasonable, the reasons for the delay demonstrate that the response time is “governed by an identifiable rationale.” See Palakuru, 521 F. Supp. 3d at 50–51. This is especially true (1) in light of the fact that the number of petitioners continues to annually exceed the available visas as it has done for years and (2) because the first-in, first-out processing is not measured by comparing any single petition's filing and adjudication dates with another's but rather by comparison of cohort filing dates in light of the many variabilities in the review of any one petition. (Orise Decl. ¶¶ 18, 21, 29, 30, 35–37, 45–55.¹² ) This Court joins the others who have concluded that USCIS applies a rule of reason in complying with 8 C.F.R. § 214.14(d)(2) and USCIS policy for purposes of the first TRAC factor. See Nibber, 2020 WL 7360215, at *5.

2. Factor Two: Congressional Timetable or Indication of Speed

Second, courts consider whether Congress has provided “a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute.” TRAC, 750 F.2d at 80. In this case, the Court accords this factor slim weight because there is no congressionally assigned time within which USCIS must adjudicate petitions for principal U visas. Congress has instead limited the number of U visas that may be granted in a fiscal year to 10,000. 8 U.S.C. § 1182(p)(2). Congress has not adjusted this cap upwards, id., despite the fact that petitions have exceed the cap annually since 2010. (D's Merits Reply at 1.) This factor weighs in Defendant's favor but is not outcome determinative.

3. Factors Three and Five: Nature of Interest Prejudiced By Delay and Involvement of Health and Human Welfare

Courts often consider together the third and fifth TRAC factors: “delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake,” 750 F.2d at 80, and “the nature and extent of the interest prejudiced by delay,” id. at 70. Islam v. Heinauer, 32 F. Supp. 3d 1063, 1073 (N.D. Cal. 2014); Infracost, 732 F. Supp. 3d at 1256. The third factor favors Plaintiffs because at issue is not an economic regulation. The Court is persuaded that Plaintiffs’ welfare and future benefits regarding their status in the United States are at issue where the timing of adjudication on their U visas may implicate (1) the birthright citizenship of any children, 8 U.S.C. § 1255(m), and (2) their possible future status as a long-term nonimmigrant, impacting the ability and time in which they may reunite with family that may require international travel and advance parole. Defendant argues that the third and fifth factors are not at issue or weigh in favor of Defendant because Plaintiffs already received deferred action and employment authorization, both renewable until a final decision is rendered on their petitions. See USCIS Policy Manual, Vol. 3, Part C, Chs. 5, 6. Plaintiffs’ health and welfare are less impacted than U visa petitioners who have not received employment authorization and deferred action, but regardless, the third factor favors Plaintiffs.

4. Factor Four: Effect on Competing Priorities

Factor Four examines the impact of court-ordered agency action in light of other competing priorities—in this case, the effect of mandating the adjudication of Plaintiffs’ petitions within thirty days when thousands of other similarly situated petitioners precede Plaintiffs or equal them in processing order. The Southern District of California has already weighed this factor in the context of a complaint to expedite the Secretary of State's decision on a pending visa petition to benefit the Iranian national and resident spouse of a United States citizen. Mosayebian, 2024 WL 3558378, at *10–11. There, “factor four strongly favor[ed]” the Government, based upon the D.C. Circuit's and Ninth Circuit's prior refusal to grant relief when the order “would place the petitioner at the head of a queue of agency adjudications without producing a net gain.” Id. (quoting In re Barr Lab'ys, 930 F.2d 72, 75–76 (D.C. Cir. 1991) and citing Vaz, 33 F.4th at 1138). Similarly, here, Plaintiffs fail to demonstrate that their requested relief would not come at the expense of many similarly situated petitioners or many petitions filed earlier. At the time of briefing, 5,438 petitions filed before the earliest-filed Plaintiff were pending and 20,917 petitions filed before the latest-filed Plaintiff were pending. (Orise Decl. ¶ 56.) This is a system in which judicially mandated reprioritization should be disfavored absent allegations and evidence specific to the agency's treatment of an individual petitioner, which is wholly absent in this case. Here, judicial reprioritization would negatively impact many similarly situated non-parties. Factor Four weighs in favor of Defendant.

5. Factor Six: Agency Impropriety

The sixth TRAC factor—agency impropriety—is neutral in this case. 750 F.2d at 80. The absence of demonstrated impropriety does not weigh against Plaintiffs. Id. For the sixth factor to weigh in Plaintiffs’ favor, the Court must find that “the reason behind the delay is improper (e.g., intentional or motivated by animus).” Mosayebian, 2024 WL 3558378, at *11 (citing Sawahreh, 630 F. Supp. 3d at 164; Pub. Citizen Health Rsch. Grp. v. Comm'r, 740 F.2d 21, 34 (D.C. Cir. 1984); Babaei v. U.S. Dep't of State, 725 F. Supp. 3d 20, 31 (D.D.C. 2024)).

Overall, the balance of all the TRAC factors weighs in Defendant's favor, as courts in similar cases have concluded. See Infracost, 732 F. Supp. 3d at 1240; Mosayebian, 2024 WL 3558378; Poursohi, 2021 WL 5331446. Defendant demonstrated that the delay to Plaintiffs’ petitions, while substantial, is due to the application of a rule of reason in the processing of many other petitions and that granting the requested relief would detrimentally impact the lawful and reasonable processing of other similarly situated petitioners. Plaintiffs have not produced disputed material facts that would alter the balance of the TRAC factors to their favor. Moreover, Plaintiffs cannot do so, despite their Rule 56(d) motion, because the requested discovery would not alter the law's application to the material facts in the record. For these reasons, the Court grants Defendant's motion for summary judgment on the APA claim grounded on allegations of unreasonable delay.

C. Defendant Is Entitled to Summary Judgment on the Unlawful Withholding Theory of the APA Claim

Defendant is also entitled to summary judgment to the extent that Plaintiffs’ APA claim is based on alleged unlawful withholding because Plaintiffs fail to plausibly allege a distinct “withholding” claim under 5 U.S.C. § 706(1). (FAC ¶¶ 100, 120.) Plaintiffs fail to plead or to point the Court to any evidence that distinguishes any one of their petitions being “unlawfully withheld” as opposed to “unreasonably delayed.” See Tate v. Pompeo, 513 F. Supp. 3d 132, 147 n.6 (D.D.C. 2021), appeal dismissed, No. 21-5068, 2021 WL 3713559, 2021 U.S. App. LEXIS 40485 (D.C. Cir. July 22, 2021). To the extent that Plaintiffs suggest that their unlawful withholding claim is grounded in their argument that Defendant's processing is either wholly arbitrary or unlawful, the Court concludes that they have identified no fact to support such a conclusion in response to the evidence produced by Defendant. Nor would it be possible for additional discovery to produce such a fact because Defendants have demonstrated their compliance with the law's requirements in the processing of U-1 visa petitions despite a minimal number of erroneous exceptions. The existence of a minority of errors that result in a later-filed petition being adjudicated before an earlier-filed one does not render the entire process unlawful.

Finally, Plaintiffs do not allege or point to any evidence supporting a conclusion that Defendant must adjudicate their petitions within any deadline. (FAC ¶ 103.) “[A]n action is ‘unlawfully withheld’ if ‘Congress has specifically provided a deadline for performance’ and the agency has not met that deadline.” Alaska Indus. Dev. & Exp. Auth. v. Biden, 685 F. Supp. 3d 813, 857 (D. Alaska 2023) (quoting Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1177 n.11 (9th Cir. 2002)); see also Mosayebian, 2024 WL 3558378, at n.3 (dismissing “unlawfully withheld” basis for APA claim where no mandatory deadline for adjudication of plaintiff's I-130 petition existed). As previously explained, there is no congressional deadline within which Defendant must act on Plaintiffs’ petitions; instead, Congress has limited the available U visas. For these reasons, Defendant is entitled to summary judgment on the “unlawfully withheld” grounds of Plaintiffs’ APA claim, 5 U.S.C. § 706(1).

CONCLUSION

For the reasons explained here, Plaintiffs’ motion on the issue of standing [Doc. 39] is GRANTED to the extent that the Court concludes it has subject matter jurisdiction and Plaintiffs have standing; Plaintiffs’ Rule 56(d) motion [Doc. 34] is DENIED; and Defendant's motion for summary judgment [Doc. 35] is DENIED IN PART AND GRANTED IN PART. Defendant's motion for summary judgment [Doc. 35] on the issue of standing is DENIED, and her motion on the merits of Plaintiffs’ APA claim is GRANTED. The duplicate motion [Doc. 36] is denied as moot. The Court GRANTS summary judgment to Defendant.

Finally, the Clerk is instructed to amend the name of Defendant as explained in n.1 of this Order.

IT IS SO ORDERED.

FOOTNOTES

2.   All remaining Plaintiffs are principal petitioners for U-1 visas. 8 U.S.C. §§ 1101(a)(15)(U), 1184(p). Originally, derivative petitioner plaintiffs were also named in this case, 8 U.S.C. § 1184(p)(2)(B), but they have been dismissed. Throughout this opinion the Court refers simply to “U visa petitions,” but the congressional annual cap only applies to U-1 visa petitions, 8 U.S.C. § 1184(p)(2)(A), (B) (providing that the number of nonimmigrant aliens who may be issued U visas may not exceed 10,000 in any fiscal year). This fiscal year cap applies to all remaining Plaintiffs.

3.   Plaintiffs filed a duplicate of Defendant's motion for summary judgment. (Doc. 36.) The duplicate motion (Doc. 36) is denied as moot for the reasons stated by Plaintiffs’ counsel on September 3, 2024 (Doc. 37).

4.   Plaintiffs concede that some exceptions must apply to their model of prioritized processing, including “requests for evidence, notices of intent to deny, etc.” (Ps’ Oppo at 3.) But Plaintiffs reject the explanation of the procedure submitted by USCIS. (Pltfs’ Rule 56(d) Mot. at 2–4; Banias Decl. ¶ C (both challenging Orise Decl. ¶¶ 35–41).)

5.   Sharon Orise, who has been employed with USCIS for nearly twenty years, declares that the sources for the data produced in the spreadsheets are based on existing data and compiled based on the allegations that (1) Plaintiffs’ 2017 petitions had been skipped for final adjudication and (2) USCIS has the ability to produce a spreadsheet containing the data produced. (Orise Decl. ¶¶ 1, 20.)

6.   The Court does not suggest that every row in the omitted range is a pending petition. Rather, the pending petitions filed before the earliest Plaintiff's petition are too numerous to list here.

7.   Between the filing of this Order and the briefing of the motions for summary judgment, the number of pending petitions changed due to the fiscal year's reopening. The Court does not rely on any material fact in reaching its conclusions here that, if changed during litigation solely as a result of FY2025 opening, would alter the Court's analysis or conclusion. This reality of ever-changing numbers of pending petitions cautions against the federal district courts intervening in nationwide administrative processing to reorder the adjudication of one or several petitions amongst thousands, especially when many others awaiting decision were filed before or on the same day. The agency is charged with the resolution of these petitions in the first instance.

8.   Similarly, the pending petitions filed on the same day as Plaintiff Bhikku are too numerous to list here.

9.   Section 214.14(d)(2) provides the agency's waiting list for eligible U visa petitioners “who, due solely to the [annual 10,000] cap, are not granted U-1 nonimmigrant status.” 8 C.F.R. § 214.14(d)(2). Section 214.14(d)(2) requires that priority on the waiting list be “determined by the date the petition was filed with the oldest petitions receiving the highest priority, providing the petition remains admissible and eligible for U nonimmigrant status.” Id. It does not mandate a blanket first in, first out rule that requires single-file processing of all U-1 petitions without consideration of any other processing policy, as Plaintiffs suggest. 8 C.F.R. § 214.14(d)(2) (expressly providing for exceptions to its priority provisions, “providing the petitioner remains admissible and eligible for U nonimmigrant status”). Plaintiffs have not alleged their status on the waiting list. (Id.; FAC ¶ 88.)

10.   But see Shahi v. U.S. Dep't of State, 33 F.4th 927, 930 (7th Cir. 2022) (“We shall not try to conceal our skepticism about the jurisdictional characterizations of the dispositions in both Iddir[v. INS, 301 F.3d 492 (7th Cir. 2002)] and Taylor.”)

11.   USCIS posts on its Website that, as of the end of the first quarter of FY2025, the number of I-918 petitions awaiting decision are 409,196. (https://www.uscis.gov/tools/reports-and-studies/immigration-and-citizenship-data, filter for U Nonimmigrant Status (Form I-918) (last visited June 9, 2025)).

12.   Plaintiffs object that Sharon Orise's declaration contains “unsupported allegations,” including at paragraphs 36–37 (P's Merits Oppo. at 3.) The declaration under oath of the agency official or employee with decades of agency experience and knowledge of the petition process is not an unsupported allegation. The Court makes no review of or statement regarding the persuasiveness of a declaration under oath submitted by an agency employee who lacks the indicia of reliability and competence that Ms. Orise demonstrated.

Thomas J. Whelan, United States District Judge