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Haus v. Nielsen

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

February 23, 2018

KIRSTJEN NIELSEN, [1] Secretary, U.S. Department of Homeland Security, and L. FRANCIS CISSNA, Director, U.S. Citizenship and Immigration Services, Defendants.



         Sebastian 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.


         In 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).

         Congress 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. 2017).

         The 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.[2] 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.

         In June 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.

         Haus 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.

         Defendants 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 unreasonable.


         In 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).

         A. Mandamus relief

         A 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 Cir. 2002).

         There 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 ...

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