United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE.
Haus, a native and citizen of Poland, filed this suit against
the Secretary of Homeland Security and the Director of U.S.
Citizenship and Immigration Services (USCIS) to compel action
on his petitions for U nonimmigrant status for himself and
his wife, which have been pending since November 20, 2014.
Haus seeks a writ of mandamus under 28 U.S.C. § 1361, as
well as relief under the Administrative Procedure Act, 5
U.S.C. §§ 555(b) and 706(1), alleging that the
delay in adjudicating the petitions is unreasonable.
Defendants have filed a motion to dismiss Haus's
complaint for failure to state a claim. For the reasons
stated below, the Court grants defendants' motion in part
and denies it in part.
October 2000, Congress created a new nonimmigrant visa-the U
visa-for immigrant victims of serious crimes who assist law
enforcement in the subsequent investigation or prosecution of
those crimes. See Victims of Trafficking and
Violence Protection Act of 2000, Pub. L. No. 106-386, 114
Stat. 1464 (codified at 8 U.S.C. § 1101(a)(15)(U)). The
U visa program is designed to encourage cooperation with law
enforcement agencies and enhance their ability to detect,
investigate, and prosecute crimes, while offering protection
to the victims of those crimes "in keeping with the
humanitarian interests of the United States."
Id. § 1513(a)(2). To qualify for a U visa, a
petitioner must have "suffered substantial physical or
mental abuse as a result of having been a victim" of
certain enumerated types of criminal activity, possess
information concerning the criminal activity, and be helpful
to law enforcement or other government officials in
investigating or prosecuting it. 8 U.S.C. §§
1101(a)(15)(U)(i)(I)-(III). Additionally, the criminal
activity at issue must have occurred in the United States or
violated U.S. law. Id. § 1101(a)(15)(U)(i)(IV).
Persons who qualify for a U visa may also submit derivative
petitions on behalf of qualifying family members.
Id. § 1101(a)(15)(U)(ii). Principal and
derivative U visa holders receive temporary legal status and
work authorization, and they may become eligible to adjust to
permanent resident status after three years. See Id.
§§ 1101(a)(15)(U), 1184(p)(6), § 1255(m).
has prohibited USCIS from issuing U visas to more than 10,
000 principal petitioners per fiscal year. Id.
§ 1184(p)(2). Once the limit is reached for the year,
USCIS places the remaining eligible U visa petitioners on a
waiting list. See 8 C.F.R. § 214.14(d)(2). The
agency determines waiting list priority "by the date the
petition was filed[, ] with the oldest petitions receiving
the highest priority." Id. Those who have
highest priority on the waiting list will be the first to
receive their visas in the following fiscal year, provided
that they remain admissible and eligible for U nonimmigrant
status. Id. Once USCIS finds a petitioner eligible
for a U visa and places him or her on the waiting list, the
petitioner and any qualifying family members become eligible
for deferred action or parole and work authorization while
they wait for a U visa to become available. Id.;
Taylor v. McCament, 875 F.3d 849, 852 (7th Cir.
number of U visa petitions filed per year has increased
dramatically over the last eight years, from 6, 835 principal
petitions in 2009 to 36, 531 in 2017; not surprisingly, the
10, 000 annual cap has been reached each year since
2010. As the waiting list for U visas continue
to grow, so does the backlog of petitions that, like
Haus's, have not even been evaluated for possible
placement on the waiting list.
or July of 2010, Haus was the victim of a felonious assault
in Chicago, Illinois. Haus testified during his
assailant's criminal trial. The assailant was convicted
and sentenced to eight years in prison. On November 20, 2014,
Haus submitted a petition for U nonimmigrant status for
himself and another petition for his wife, as a qualifying
family member. For the past three years, he has been waiting
for USCIS to review the petitions and place him and his wife
on the U visa waiting list so that they may apply for work
authorization. Haus has inquired into the status of his
petitions on numerous occasions, but all USCIS will tell him
is that they are still being processed or that they are under
further review. USCIS has not asked Haus to provide any
additional documentation or information to assist the agency
in adjudicating his petitions.
filed the present petition for writ of mandamus and request
for relief under the Administrative Procedure Act (APA) in
July 2017. At the time of filing, his U visa petitions had
been pending for over two and a half years. He has now been
waiting to be placed on the U visa waiting list for over
three years. He alleges that this three-year delay-just to be
placed on the waiting list-is unreasonable, and he asks the
Court to compel defendants to act on his petitions.
have moved to dismiss Haus's complaint for failure to
state a claim under Rule 12(b)(6). Fed.R.Civ.P. 12(b)(6).
Specifically, defendants contend that USCIS has no duty to
adjudicate Haus's petitions before those petitions filed
earlier in time. They further argue that Haus has failed to
establish that the time it has taken USCIS to evaluate his
petitions for possible placement on the waiting list is
deciding a motion to dismiss under Rule 12(b)(6), the Court
accepts as true the well-pleaded facts in the complaint and
draws all reasonable inferences in favor the of the
plaintiff. Musunuru v. Lynch, 831 F.3d 880, 887 (7th
Cir. 2016). To survive a motion to dismiss for failure to
state a claim, a complaint must contain "allegations
that plausibly suggest that the plaintiff has a right to
relief, raising that possibility above a speculative
level." Hill v. Serv. Emps. Int'l Union,
850 F.3d 861, 863 (7th Cir.) (citation omitted).
district court may issue a writ of mandamus to compel an
officer or agency of the federal government to perform a duty
owed to the petitioner. 28 U.S.C. § 1361. Mandamus
relief is warranted if the petitioner can demonstrate that
the following three conditions are met: (1) he has a clear
right to the relief sought, (2) the defendant has a duty to
perform the act in question, and (3) no other adequate remedy
is available. Iddir v. INS, 301 F.3d 492, 499 (7th
is no dispute that Haus has a clear right to adjudication of
his petition for U nonimmigrant status-first, to determine if
he is eligible for the waiting list, and second, to determine
if he remains eligible for a U visa when one finally becomes
available. Defendants argue, however, that Haus cannot show
that the delay he has experienced is ...