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Garcia v. Department of Homeland Security

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

December 30, 2019

DEPARTMENT OF HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; KEVIN K. MCALEENAN, Acting Secretary, Department of Homeland Security; L. FRANCIS CISSNA, Director, U.S. Citizenship & Immigration Services; DONALD NEUFELD, Associate Director of Service Center Operations; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; MATTHEW ALBENCE, Acting Director of ICE; and RICARDO WONG, ICE Field Office Director, Chicago Area of Responsibility, Defendants.



         Plaintiff Rubicel Contreras Garcia (“Plaintiff”) brings suit against Defendants the Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), and various officials of those agencies in their official capacities (collectively, “Defendants”). In her complaint, Plaintiff asks the Court to order USCIS to adjudicate her U-visa petition. Currently before the Court is Defendants' motion to dismiss the complaint for failure to state a claim [13]. For the reasons explained below, this motion [13] is granted in part and denied in part. Count I of the complaint is dismissed with prejudice. This case is set for status hearing on January 16, 2020 at 9:00 a.m.

         I. Background[1]

         A. Statutory and Regulatory Framework

         “In October 2000, Congress created the U-visa through the passage of the Victims of Trafficking and Violence Protection Act of 2000” (the “Act”). Calderon-Ramirez v. McCament, 877 F.3d 272, 274 (7th Cir. 2017). “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. A U-visa “provides legal status to petitioners and qualifying family members to apply for work authorization and remain in the United States.” Id. To qualify for a U-visa, DHS 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. § 1101(a)(15)(U)(i)(I-IV).

         There is a statutory cap of 10, 000 U-visas per fiscal year. See 8 U.S.C. § 1184(p)(2)(A). Due to the cap, there is a waiting list of petitioners seeking adjudication. See 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.” Calderon-Ramirez, 877 F.3d at 274. USIC “will grant eligible petitioners and qualifying family members on the waiting list deferred action and work authorization while they wait for final adjudication, ” but “those who are waiting to be placed on the waiting list are not granted this benefit.” Id.

         B. Facts

         Plaintiff is a native and citizen of Mexico who, prior to her recent removal, had been living in the United States continuously since 1999. Plaintiff has been married to a U.S. citizen since 2004 and has three U.S. citizen children. Prior to her removal, Plaintiff was the sole caretaker of her husband, who had been involved in two major accidents.

         The complaint acknowledges that Plaintiff had been removed from the United States twice before she began her latest residency. In March 1998, she “entered the United States, but was voluntarily returned to Mexico the same day.” [1] at 5. Shortly after, Plaintiff's ex-boyfriend followed her to Mexico, beat and sexually assaulted her, and threatened her with a gun. In August 1999, Plaintiff attempted to enter the United States at the airport using a U.S. birth certificate. Plaintiff was “expeditiously removed the same day.” Id. Plaintiff reentered the country again as some point in 1999 and remained in the United States until her recent removal. The complaint alleges that all of Plaintiff's entries into the United States “were solely to escape the violence she was facing in Mexico, after being followed by her boyfriend.” Id.

         Plaintiff was also living in the United States, in Illinois, at some point in 1995. That year, she was “subjected to substantial physical and emotional abuse” by an ex-boyfriend. [1] at 5. “Plaintiff cooperated with the Cicero Police Department in the[ir] investigation.” Id. “[T]he Cicero Chief of Police signed for [Plaintiff] a U visa certification form, Form I-918 Supplement B, a prerequisite to filing a U visa petition.” Id. at 5-6. “A U visa is intended for immigrant crime victims who cooperate with law enforcement in the investigation or prosecution of such crimes.” Id. at 2 (citing 8 U.S.C. § 1101(a)(15)(U)).

         Around August 29, 2018, Plaintiff filed a U-visa petition based on domestic violence. On September 25, 2018, USCIS informed ICE that Plaintiff's U-visa application established prima facie eligibility for a U-visa. However, the complaint alleges, ICE never asked USCIS to expedite Plaintiff's petition, and “USCIS only considers requests for expedite[d] adjudication made by ICE.” [1] at 6. Instead, on November 9, 2018, “ICE informed Plaintiff's attorney that Plaintiff's I-246, Application for Stay of Deportation or Removal was denied on November 7, 2018-the same day that ICE removed Plaintiff from the United States.” Id. at 6.

         Plaintiff's complaint contains two counts. In Count I, Plaintiff alleges that DHS's failure to grant Plaintiff a stay of removal “violated the Administrative Procedure Act” (“APA”) “and as such, DHS has ‘unlawfully withheld' agency action in violation of the APA.” [1] at 11 (quoting 5 U.S.C. § 706(1)).

         In Count II, Plaintiff alleges that USCIS violated the APA by failing to place Plaintiff on the U-visa “waiting list” within a reasonable amount of time. As of the filing of the complaint, Plaintiff's U-visa petition had been pending for over six months. While acknowledging that “[a]ccording to USCIS's published processing times, it currently takes over four years [to] be placed on the waiting list, ” [1] at 9, Plaintiff alleges that “[s]erious adverse factors exist in [Plaintiff's] case that make USCIS's delay” of nine months “unreasonable as applied to her.” Id. at 11. Plaintiff alleges that human health and welfare is at stake in this case because Plaintiff “has been separated from her entire family, including her U.S. citizen husband and children, for whom [s]he is the primary caretaker.” Id. at 12. Plaintiff also alleges that although “there are others awaiting the first phase of adjudication for a U visa, ” her interested are substantially different because “ICE has removed her from the United States against [its] own policy.” Id.[2] Plaintiff further alleges that the nature of interests at stake is particularly compelling in her case due to “the danger she faces in Mexico compounded with her separation from her entire family.” Id. Finally, Plaintiff alleges that the “rule of reason” employed by USCIS-adjudicating U-visa petitions in the order they receive them-“is unjustifiable as it pertains to individuals like [Plaintiff] who ha[ve] been removed from the country and separated from [their] famil[ies].” Id. Plaintiff “does not seek one of th[e] 10, 000 [U] visas” that may be issued per fiscal year, but “is merely asking for USCIS to conduct the first step of adjudication and place her on the waiting list and parole her back into the United States.” Id. at 13 (citing 8 C.F.R. § 214.14(d)(2)).

         Plaintiff requests a declaration that DHS's failure to grant a stay was in violation of ICE policy and 5 U.S.C. § 706(1); a declaration that USCIS has not made a waiting list determination regarding Plaintiff's U-visa within a reasonable time, in violation of 5 U.S.C. § 555(b); and ...

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