Ruder M. Calderon-Ramirez, Plaintiff-Appellant,
James W. McCament, Acting Director, United States Citizenship and Immigration Services, and Elaine C. Duke, Acting Secretary of Homeland Security, Defendants-Appellees.
October 23, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 16 C 8089 -
Milton I. Shadur, Judge.
Bauer and Hamilton, Circuit Judges, and Darrow, [*] District Judge.
Calderon-Ramirez, a native and citizen of Guatemala, filed a
petition for U Nonimmigrant Status on February 5, 2015. Due
to a significant backlog, Ramirez is waiting to be evaluated
for the waiting list. On August 15, 2016, he filed a petition
for writ of mandamus in the Northern District of Illinois
requesting that the district court compel Leon Rodriguez,
Director of Homeland Security, and Jeh Johnson, Secretary of
Homeland Security, (collectively, "Defendants"), to
adjudicate his U-visa petition. Ramirez argues the wait to be
placed on the waiting list is unreasonable. The district
court granted the Defendants' motion to dismiss. Ramirez
now appeals. For the reasons set forth below, we affirm.
October 2000, Congress created the U-visa through the passage
of the Victims of Trafficking and Violence Protection Act of
2000 ("the Act"), Pub. L. No. 106-386, Div. A, 114
Stat. 1464 (2000), codified at inter alia, 8 U.S.C.
§ 1101(a)(15)(U). The Act created a new nonimmigrant
visa classification that permits immigrants who are victims
of serious crimes and who assist law enforcement to apply for
and receive a nonimmigrant visa called a U-visa. Id.
The U-visa provides legal status to petitioners and
qualifying family members to apply for work authorization and
remain in the United States. Id. In order to
qualify, the Department of Homeland Security must determine
that: (1) the petitioner "suffered substantial physical
or mental abuse as a result of having been a victim of
criminal activity "; (2) the petitioner "possesses
information concerning [the] criminal activity"; (3) the
petitioner has been, is, or is likely to be helpful to
government officials regarding the criminal activity; and,
(4) the criminal activity at issue occurred in or violated
the laws of the United States. 8 U.S.C. §
enacted a statutory cap of 10, 000 U-visas each fiscal year.
8 U.S.C. § H84(p)(2)(A). Because of this cap, a waiting
list exists for petitioners seeking adjudication. 8 C.F.R.
§ 214.14(d)(2). This results in two separate waiting
periods and two adjudications for each petitioner-one for
placement on the waiting list and one to receive a U-visa.
United States Citizenship and Immigration Services
("USCIS") will grant eligible petitioners and
qualifying family members on the waiting list deferred action
and work authorization while they wait for final
adjudication. Id. However, those who are waiting to
be placed on the waiting list are not granted this benefit.
a native and citizen of Guatemala, entered the United States
in April 2002 and has remained here since. On August 16,
2014, he was stabbed in his back and leg during a felonious
February 5, 2015, USCIS received Ramirez's Form 1-918,
Petition for U Nonimmigrant Status, Form 1-192, Application
for Advance Permission to Enter as a Nonimmigrant, and to
waive his entry without inspection into the country. Since
then, Ramirez has been waiting for his petition to be
evaluated so he can be placed on the waiting list.
August 15, 2016, two years after the attack and a year and a
half after filing his petition, Ramirez requested the
district court to issue an order compelling the Defendants to
adjudicate his U-visa petition through mandamus relief or, in
the alternative, under the Administrative Procedures Act
("APA"). In response, the Defendants filed a motion
to dismiss for failure to state a claim. After a hearing, the
district court granted the Defendants' motion to dismiss
both claims. Ramirez now appeals.
review a district court's grant of a motion to dismiss
for failure to state a claim de novo. Volling v. Kurtz
Paramedic Sews., Inc., 840 F.3d 378, 382 (7th Cir.
2016). "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)). "We accept as true all of the
well-pleaded facts in the complaint and draw all reasonable
inferences in favor of the plaintiff [-appellant]."
Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th