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Taylor v. Scialabba

United States District Court, N.D. Illinois, Eastern Division

April 12, 2017

LORI SCIALABBA, Acting Director, U.S. Citizenship & Immigration Services, and JOHN KELLEY, Secretary, Department of Homeland Security, Defendants.



         Plaintiff Thomas Taylor (“Taylor”) brought the present Complaint against Defendants Lori Scialabba, Acting Director of U.S. Citizenship & Immigration Services, and John Kelley, Secretary of the Department of Homeland Security, collectively “Defendants, ” requesting declaratory and mandamus relief with regard to his waitlisted application for nonimmigrant “U-status.” Defendants have moved to dismiss Plaintiff's complaint contending that the Court lacks jurisdiction to hear Plaintiff's claims and that Plaintiff has failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants Defendants' motion.


         I. Statutory and Regulatory Framework

         Immigration is governed by the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-1503, and its accompanying regulations. In October 2000, Congress enacted the Victims of Trafficking and Violence Protection Act of 2000 (“Crime Victims Act”), Pub. L. 105-386, 114. Stat. 1464, which amended the INA and created a new nonimmigrant visa classification for certain aliens who have been victims of serious crimes. See 8 U.S.C. § 1101(a)(15)(U). Five years later, on January 5, 2006, Congress passed the Violence Against Women and Department of Justice Reauthorization Act of 2005 (“Violence Against Women Act”), Pub. L. 109-162, 828, 119 Stat. 3066, which directed the Secretary of Homeland Security to promulgate regulations implementing Section 1101(a)(15)(U) of the Crime Victims Act. The law mandated the Secretary of Homeland Security to promulgate regulations no later than 180 days after the Act was enacted, but United States Citizenship and Immigration Services (“USCIS”) only published these rules-the “U-visa regulations”-in September 2007, more than 180 days beyond the date that the Violence Against Women Act was enacted. (R. 1, Pl.'s Compl. ¶¶ 4-5.) As a result, USCIS did not begin issuing U-visas until 2009. (Id. ¶¶ 9, 34.)

         In essence, these regulations allow an alien who both (i) falls victim to a serious crime and (ii) provides meaningful assistance to law enforcement, to apply for a U-visa. See 8 C.F.R. § 214.14(d)(2); 8 U.S.C. § 1184. USCIS, however, has a cap on the number of U-visas that it may issue each year. 8 U.S.C. § 1184(p)(2)(B). The total number of aliens who may be issued a U-1 nonimmigrant visa, or granted U-1 nonimmigrant status, may not exceed 10, 000 in any fiscal year, not including visas for derivative family members. Id. Once the fiscal year limit of 10, 000 U-visas is met, USCIS may not grant any further U-visas until new visas become available the following fiscal year. (Pl.'s Compl. ¶ 10.) USCIS, however, grants eligible petitioners deferred action, a discretionary form of relief that defers any removal action and grants certain employment authorization benefits, since these petitioners are unable to acquire U-visas solely due to the fiscal limit. (Id.) These petitioners are placed on a waiting list. (Id.) The regulations provide that qualifying family members of waitlisted applicants will also receive deferred action. 8 C.F.R. § 214.14(d)(2).

         II. Facts

         Plaintiff, Thomas Taylor, a native and citizen of Ireland, resides in Cook County, Illinois and last entered the United States in April 2000 as a B-2 visitor. (Id. ¶ 21.) Plaintiff's wife, Josephine Cronnolly, is a qualifying family member who also entered the United States as a B-2 visitor. (Id.) In October 2008, Plaintiff was a victim of perjury in Chicago, Illinois, a crime that qualifies him to apply for a U-visa. (Id.) He applied for a U-visa and USCIS tentatively approved him for U nonimmigrant status and granted him deferred action on September 7, 2016. (Id.) Plaintiff alleges that although he is eligible to receive a U-visa, USCIS has not granted him a U-visa due solely to the fiscal year limit. (Id. ¶ 28.) As a result, USCIS placed Plaintiff and his wife on a waiting list until new visas become available. (Id.)

         Plaintiff alleges that USCIS delayed promulgating U-visa regulations for seven years, despite a congressional mandate to do so since October 2000, and that this delay directly caused him to be placed on a waiting list instead of receiving his U-visa immediately. (Id. ¶¶ 3, 28-29.) Plaintiff contends that because USCIS is required to issue 10, 000 U-visas per year, the seven-year delay caused a backlog of 80, 000 unused U-visas. (Id. ¶¶ 3, 29.) According to Plaintiff, not only has this delay deprived him of U-nonimmigrant status, it has also delayed his eligibility for lawful permanent residence status because the regulations require that an individual possess U-nonimmigrant status for three years prior to applying for lawful permanent residency, and Plaintiff's three-year period has not started because he has not yet received a U-visa. (Id.)

         Accordingly, Plaintiff seeks relief under the Mandamus Act, 28 U.S.C. § 1361, the Administrative Procedure Act (“APA”), 5 U.S.C. § 555(b), the Declaratory Judgment Act, 28 U.S.C. § 2201, and the INA, and requests the Court to compel the USCIS to issue 80, 000 U-visas, including Plaintiff's, nunc pro tunc. (Id. ¶ 14.)


         For purposes of a motion to dismiss under either Rule 12(b)(1) or Rule 12(b)(6), the Court accepts all well-pleaded factual allegations as true and construes all reasonable inferences in the plaintiff's favor. Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Under the federal notice pleading standards, a plaintiff's “factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Put differently, to survive a 12(b)(6) 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 Twombly, 550 U.S. at 570). A Rule 12(b)(1) motion, in contrast, challenges federal jurisdiction, and the plaintiff bears the burden of establishing the elements necessary for jurisdiction, including standing, have been met. Scanlan, 669 F.3d at 841-42. In ruling on a 12(b)(1) motion, the Court may look outside of the complaint's allegations and consider whatever evidence has been submitted on the issue of jurisdiction. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995).


         Defendants argue that Plaintiff's complaint fails because (1) Plaintiff lacks standing to bring a claim and (2) Plaintiff fails to state a claim under the APA or the Mandamus Act because the U-visa statute explicitly bars the relief Plaintiff requests by capping the ...

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