1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ANH PHAM, et al., Case No.: 23-cv-1058-W-KSC

11 Plaintiffs, ORDER DENYING IN REMAINING 12 v. PART MOTION TO DISMISS [Doc. 13] 13 UR JADDOU, Director, U.S. Citizenship and Immigration Services, 14 Defendant. 15 16 17 Congress has statutorily limited the number of U visas available in a fiscal year to 18 10,000. 8 U.S.C.§ 1184(p)(2)(A). After the exhaustion of those 10,000 U visas in a 19 given fiscal year, USCIS is powerless to issue more. Id. Plaintiffs are petitioners for U 20 visas who filed their petitions before June 30, 2017. (First Amended Complaint (“FAC”) 21 [Doc. 7] at 3, 10, 13.) Plaintiffs alleged that Defendant, the Director of USCIS, violated 22 the Administrative Procedure Act (“APA”) by unlawfully withholding or unreasonably 23 delaying adjudication of Plaintiffs’ petitions. 24 Plaintiffs’ FAC alleged two factual grounds supporting the alleged violation of 25 law. First, Plaintiffs alleged that in fiscal year 2023, Defendant “skipped over” them in 26 the adjudication of available U visas and awarded U visas to other petitioners who filed 27 their petitions after Plaintiffs in violation of USCIS regulation

(d)(2), 28 which requires that “the oldest petitions receive[] the highest priority.” (FAC at 2–3, 1 ¶¶ 52–53, ¶¶ 59–62, ¶¶ 87–91, ¶¶ 97–100.) “As of [August 31, 2023], USCIS has issued 2 U visas for principal applicants that filed as late as June 30, 2017.” (FAC at ¶ 52.) “All 3 Plaintiffs filed their Forms I-918 on or before June 30, 2017.” (FAC at ¶ 87.) Plaintiffs 4 refer to this factual basis for their APA claim as Defendant’s “unlawful withholding” of 5 Plaintiffs’ U visas. (See FAC at 2–3, ¶¶ 99–100.) After Plaintiffs filed the FAC on 6 August 31, 2023, fiscal year 2023 closed, and a new 10,000 U visas became available for 7 fiscal year 2024. (See February Order [Doc. 17].) 8 Second, Plaintiffs alleged that Defendant unreasonably delayed the adjudication of 9 Plaintiffs’ still-pending petitions in violation of the APA’s requirement that 10 nondiscretionary agency decisions must be made within a reasonable time, 5 U.S.C. 11 § 555(b). The “unreasonable delay” basis for the APA claim pled: “To the extent USCIS 12 is not unlawfully withholding Plaintiffs’ U-visas, they are unreasonably delaying them.” 13 (FAC at ¶¶ 101–113.) 14 With respect to both factual bases for the APA claims, the FAC alleged that these 15 wrongs deprive Plaintiffs of actual immigration status, deprive them of accruing time 16 toward their adjustment of status application, and prevent them from acquiring advance 17 parole to travel abroad. (FAC at 14–15.) 18 Defendant’s previously filed Motion to Dismiss remains pending in part. 19 (Doc. 13.) On February 5, 2024, the Court entered an order to show cause why the 20 Derivative Plaintiffs in this case should not be dismissed for lack of subject matter 21 jurisdiction.1 (February Order, Doc. 17). The February Order also continued 22 Defendant’s Motion to Dismiss as to the Court’s jurisdiction over the Derivative 23 Plaintiffs. (Doc. 13.) Finally, the February Order denied, without prejudice to further 24

25 26 1 The Court’s February Order designated the term “Derivative Plaintiffs” to name the individual Plaintiffs in this case who are petitioners for derivative U-2 visas as qualified family members of 27 Principal Plaintiffs. The term “Principal Plaintiffs” named the individual Plaintiffs who are petitioners for principal U-1 visas. (February Order at 3.) The Court does not repeat its February Order and 28 1 argument permitted by the Order, Defendant’s Rule 12(b)(6) challenge to the APA claim 2 for unlawful withholding or unreasonable delay of the final adjudication on Plaintiffs’ 3 petitions. 4 Plaintiffs filed a response to the February Order on February 27, 2024. (Plaintiffs’ 5 Brief [Doc. 19].) Defendant filed a response on March 12, 2024. (Defendant’s Brief 6 [Doc. 22].) Plaintiffs replied on March 14, 2024. (Plaintiffs’ Reply [Doc. 23].) The 7 Court decides the matter on the papers submitted and without oral argument. See 8 Civ.L.R. 7.1(d.1). 9 For the following reasons, the Court DENIES IN REMAINING PART the 10 Motion to Dismiss and ORDERS that some individual Plaintiffs, as specified herein, are 11 voluntarily dismissed without prejudice or dismissed as moot. (Doc. 13.) 12 13 I. Derivative Plaintiffs Are Voluntarily Dismissed Without Prejudice 14 The Court ordered the parties show cause why it should not dismiss, for lack of 15 subject matter jurisdiction or failure to state a claim, the Derivative Plaintiffs in the 16 absence of an allegation that their associated principal petitions have been granted U-1 17 visas. (February Order at 12, 15.) In response, Plaintiffs did “not oppose dismissal 18 without prejudice of the Derivative Plaintiffs from this case.” (Plaintiffs’ Brief at 2.) 19 Plaintiffs restated that Derivative Plaintiffs should be dismissed from the case without 20 providing any legal basis. (Plaintiffs’ Reply at n.1 (emphasis added).) Plaintiffs did not 21 file a separate notice of dismissal. Plaintiffs failed to provide any briefing on the Court’s 22 subject matter jurisdiction over the Derivative Plaintiffs’ claims. Defendant responded, 23 proposing two options with respect to the Derivative Plaintiffs’ claims: (1) the Court 24 might construe Plaintiffs’ response as a notice of dismissal of the Derivative Plaintiffs 25 from the case, or (2) if the Court did not construe Plaintiffs’ response as a notice of 26 dismissal, then it should dismiss the Derivative Plaintiffs’ claims as unripe. (Defendant’s 27 Brief at 2.) 28 1 Federal Rule of Civil Procedure 41(a)(1) allows a plaintiff to voluntarily dismiss 2 an action without a court order by filing: “(i) a notice of dismissal before the opposing 3 party serves either an answer or a motion for summary judgment; or (ii) a stipulation of 4 dismissal signed by all parties who have appeared.” Fed. R. Civ. P. 41(a)(1). In this 5 case, Defendant has not yet answered or filed a motion for summary judgment. As such, 6 any Plaintiff may voluntarily dismiss her action without prejudice without a court order. 7 Fed. R. Civ. P. 41(a)(1)(i). 8 Plaintiffs’ cause of action is grounded on alleged delay and seeks the remedy of 9 expedited agency action. Plaintiffs intend to voluntarily dismiss without prejudice the 10 action as stated by Derivative Plaintiffs to prosecute the action as stated by Principal 11 Plaintiffs. (Plaintiffs’ Brief at 2; Plaintiffs’ Reply at 2, n.1.) Accordingly, the Court 12 construes Plaintiffs’ multiple statements that they desire to dismiss Derivative Plaintiffs 13 from this case as a notice of voluntary dismissal without prejudice pursuant to Rule 14 41(a)(1). On their own representation, the Derivative Plaintiffs’ action is voluntarily 15 dismissed without prejudice. 16 17 II. Subject Matter Jurisdiction Over the Remaining Principal Plaintiffs 18 19 A. Specific Plaintiffs’ Claims Are Moot After Final Agency Decision 20 The February Order granted Defendant’s motion to dismiss for lack of subject 21 matter jurisdiction the claims of Plaintiffs who already received a final decision on their 22 petitions because those claims are moot. (February Order at 8.) After the original 23 briefing on Defendant’s motion to dismiss was completed, the parties agreed that certain 24 Plaintiffs received final decisions on their petitions, rendering the claims moot. 25 (Plaintiffs’ Reply at 2; id. at n.1.; Defendant’s Brief at 2; Orise Decl. at ¶ 20.) 26 27 28 1 Accordingly, the Court dismisses Plaintiff Darwin Ruiz’s claims as moot. See, e.g., Da 2 Costa v. Immigr. Inv. Program Office,

(D.C. Cir. 2023) (dismissing as 3 moot the plaintiffs whose petitions were adjudicated while the appeal was pending). 4 5 B. The Remaining Principal Plaintiffs Sufficiently Allege Standing 6 In its motion to dismiss, Defendant originally challenged the Court’s subject matter 7 jurisdiction over the Principal Plaintiffs’ claims, and she raised the challenge again in 8 supplemental briefing. Federal Rule of Civil Procedure 12(b)(1) allows a party to move 9 for dismissal based on a lack of subject matter jurisdiction. Once the moving party 10 challenges jurisdiction, the burden is on the party asserting jurisdiction to prove 11 otherwise. Kokkonen v. Guardian Life Ins. of Am.,

(1994). Plaintiffs 12 bear the burden to show standing. 13 “A jurisdictional challenge under Rule 12(b)(1) may be made on the face of the 14 pleadings or by presenting extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 15

(9th Cir. 2003). In evaluating the jurisdictional challenge to the 16 FAC, and only for that purpose, the Court considers the extrinsic evidence submitted by 17 Defendant, the Declaration of Sharon Orise, Adjudications Division Chief for the USCIS 18 Service Center Operations Directorate. (Doc. 22-1.) 19 The federal district courts have “original jurisdiction over all civil actions arising 20 under the Constitution, laws, or treaties of the United States.”

. When a 21 court lacks subject matter jurisdiction, it lacks the power to proceed, and its only 22 remaining function is to dismiss. Steel Co. v. Citizens for a Better Env’t,

, 94 23 (1998). “The Constitution gives federal courts the power to adjudicate only genuine 24 ‘Cases’ and ‘Controversies.’ Art. III, § 2. That power includes the requirement that 25 26 27 2 Derivative Plaintiff Mayra Calix’s petition was dependent on Darwin Ruiz’s principal petition. (Orise Decl. at ¶ 20.) She also received a final decision on her U visa petition. (Id.) Were her claims 28 1 litigants have standing.” California v. Texas,

, 668–69 (2021). Article III 2 standing requires that a plaintiff “(1) suffered an injury in fact, (2) that is fairly traceable 3 to the challenged conduct of the defendant, and (3) that is likely to be redressed by a 4 favorable judicial decision.” Spokeo, Inc. v. Robins,

(2016); Lujan v. 5 Defenders of Wildlife,

, 560–61 (1992); Civil Rights Educ. and Enforcement 6 Ctr. v. Hospitality Properties Trust (“CREEC”),

(9th Cir. 2017). 7 As to the first element of standing, Plaintiffs sufficiently pled an injury in fact by alleging 8 that they all filed their petitions on or before June 30, 2017, that they are still awaiting 9 final decisions on their petitions, and that USCIS has issued U visas to “applicants that 10 post-date Plaintiffs . . . .” (See, e.g., FAC at ¶¶ 60–62, 87–88.) As to the second element, 11 Plaintiffs sufficiently pled that their injuries are fairly traceable to the challenged conduct 12 of USCIS because USCIS is the federal agency charged with the duty to review and 13 adjudicate the Plaintiffs’ petitions that remain pending. See FAC ¶ 25; see also 6 U.S.C. 14 § 271(b)(1);

(a)(15)(U), 1103(a)(1), 1103(g)(1), 1184(a)(1). 15 Defendant challenged the third element of the standing test—the redressability of 16 Plaintiff’s claims. To establish redressability, Plaintiffs must allege that it is “likely, as 17 opposed to merely speculative,” that a favorable judicial decision will redress their 18 injuries. Winsor v. Sequoia Benefits & Ins. Servs., LLC,

(9th Cir. 19 2023). Here, the FAC alleged that the requested relief—an order mandating USCIS to 20 adjudicate Plaintiffs’ petitions within 30 days—would remedy both the agency’s 21 unlawful withholding of a final decision on the petitions and the unreasonable delay in 22 making a final decision on the petitions. (FAC at 3.) 23 In addition, Plaintiffs sufficiently alleged that the requested relief is likely to 24 prompt Defendant to evaluate the status of Plaintiffs’ petitions and consider their own 25 failure to issue a final decision. See Massachusetts v. EPA,

(2007) 26 (addressing, as here, the procedural “right to challenge agency action unlawfully 27 withheld” and concluding that when a procedural right is vested in a litigant, as here, 28 “that litigant has standing if there is some possibility that the requested relief will prompt 1 the injury-causing party to reconsider the decision that allegedly harmed the litigant.”). 2 Plaintiffs sufficiently alleged that Defendant’s delay in adjudicating their petitions 3 violates either the APA’s mandate that non-discretionary decisions be made within a 4 reasonable time or USCIS’s own regulation governing the order in which petitions are 5 adjudicated. (See FAC at ¶¶ 97–116.) These allegations create “some possibility,” that 6 the requested relief of expedited adjudication would be reconsidered by Defendant. See 7 Massachusetts v. EPA,

. After this lawsuit was filed, several of the 8 original Plaintiffs received an intervening final agency decision. Thus, at least “some 9 possibility” exists that USCIS reconsidered and acted on those pending petitions. See

10 At this time and on this sparse briefing, the Court concludes that Plaintiffs 11 sufficiently alleged standing to survive Defendant’s motion to dismiss. Because standing 12 goes to the Court’s subject matter jurisdiction, a subsequent challenge to redressability 13 may be raised at any time by a party or by the Court, particularly where the development 14 of facts may better indicate if the requested relief is tenable under the applicable 15 circumstances. See, Taylor v. McCament,

(7th Cir. 2017).3 16 17 III. Plaintiffs State a Claim for Relief Under the APA 18 Federal Rule of Civil Procedure 12(b)(6) allows a defendant to challenge a 19 pleading for failing “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 20 21 3 No party has briefed fully the importance of timing to the question of redressability. As yet 22 unknowable, future circumstances may bear on redressability. If a favorable order were to be issued when the annual cap was already exhausted, there would be no U visas to issue, and neither the Court 23 nor USCIS could violate the cap. See Taylor, 875 F.3d at 854–55. Theoretically, Defendant could continue to issue denials, but it seems axiomatic that Plaintiffs did not file this case to expedite denials 24 of their petitions. On the other hand, if a favorable judicial decision issued in a fiscal year when the cap 25 was not yet exhausted, there are currently no facts before the Court indication that Plaintiffs are “next in line” or that the Court has the power to leap-frog Plaintiffs over other similarly situated petitioners in the 26 administrative process who are not parties to this case. See id. at n.3; see also In re Barr Laby’s, Inc.,

, 75–76 (D.C. Cir. 1991) (concluding that delay was not unreasonable where other TRAC 27 factors favored relief but the relief would leap-frog plaintiff to the head of a queue of agency adjudications while producing no net gain). If such facts were to develop, they would likely impact the 28 1 12(b)(6); Navarro v. Block,

(9th Cir. 2001). To survive a Rule 2 12(b)(6) motion, a complaint must contain “a short and plain statement of the claim 3 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint’s 4 “[f]actual allegations must be enough to raise a right to relief above the speculative 5 level.” Bell Atl. Corp v. Twombly,

(2007). The allegations in the 6 complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to 7 relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting 8 Twombly,

). 9 A complaint may be dismissed as a matter of law either for the lack of a cognizable 10 legal theory or for insufficient facts under a cognizable theory. Navarro,

; 11 Balisteri v. Pacifica Police Dep’t.,

(9th Cir. 1990). In ruling on the 12 motion, a court must “accept all material allegations of fact as true and construe the 13 complaint in a light most favorable to the nonmoving party.” Vasquez v. Los Angeles 14 ("LA") Cnty.,

(9th Cir. 2007). 15 The Court accepts as true the factual allegation central to the FAC—that 16 (1) Defendant unreasonably delayed final adjudications on these petitions which have 17 been pending approximately seven years or (2) Defendant skipped over Plaintiffs in the 18 processing of U visas and adjudicated later-filed petitions before adjudicating Plaintiffs’ 19 petitions. Legal conclusions, however, need not be taken as true merely because they are 20 cast in the form of factual allegations. Roberts v. Corrothers,

(9th 21 Cir. 1987); Twombly,

. And “conclusory allegations of law and 22 unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 23

(9th Cir. 1998); see also Twombly, 550 U.S. at 555–56, 564. 24 Plaintiffs’ claim arises under the APA,

, et seq. The APA requires 25 agencies to conclude matters “within a reasonable time.”

. A person 26 “suffering legal wrong because of agency action, or adversely affected or aggrieved by 27 agency action within the meaning of a relevant statute, is entitled to judicial review 28 thereof.”

at § 702. Reviewing courts have the power to “compel agency action 1 unlawfully withheld or unreasonably delayed.” Id. § 706(1). In reviewing a motion to 2 dismiss an APA claim under Rule 12(b)(6), the central question is whether the 3 government’s delay or withholding of Plaintiffs’ final decisions is unreasonable. 5

(1). 5 With respect to the APA claim, Plaintiffs must allege that “(1) an agency had a 6 nondiscretionary duty to act and (2) the agency unreasonably delayed in acting on that 7 duty.” See Norton v. S. Utah Wilderness Alliance,

, 63–65 (2004); Am. Anti- 8 Vivisection Soc’y v. U.S. Dep’t of Agric.,

(D.C. Cir. 2020); Vaz v. 9 Neal,

(9th Cir. 2022). Plaintiffs’ FAC so alleged. (FAC at ¶¶ 97– 10 113.) Neither party disputes that USCIS has a nondiscretionary duty to issue final 11 adjudications on the petitions. See

(b)(1);

(a)(15)(U), 12 1103(a)(1), 1103(g)(1), 1184(a)(1). The FAC sufficiently alleged Defendant’s delay in 13 acting on that duty. (FAC at 3;

¶¶ 64–88, 101–113.) The sufficiency of the pleading 14 with respect to the reasonableness of the delay remains unresolved.4 15 Defendant argues that the FAC must be dismissed based upon the facts presented 16 in the declaration of Sharon Orise because the delay of Plaintiffs’ petitions is not 17 unreasonable under the applicable factors set forth in Telecomm’s Research & Action Ctr. 18 v. FCC,

(D.C. Cir. 1984) (the “TRAC factors”).5 Defendant does not argue 19

20 21 4 With respect to Plaintiffs’ theories, the FAC’s allegations appear limited to fiscal year 2023, the year that the FAC was filed. (See FAC ¶ 52.) The Orise declaration might be read to support this allegation 22 and to limit those factual allegations to that fiscal year alone. (See Orise Decl. ¶ 18.) At this early stage in the case, however, Plaintiffs’ allegation that “USCIS is treating Plaintiffs differently than similarly 23 situated U visa applicants” and that Plaintiffs have “no reason to believe USCIS will go back and issue 24 them U-visas” is sufficient to allow the “unlawfully withheld” theory to be plead with respect to fiscal year 2024 also. (FAC at ¶¶ 62, 90.) 25 5 The TRAC factors determine reasonableness of agency delay and are, 26 (1) the time agencies take to make decisions must be governed by a ‘rule of reason[;]’ 27 (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply 28 1 how the FAC’s factual allegations surrounding unreasonableness are insufficient. See 2 FAC ¶¶ 101–112.) Instead, Defendant cited facts from the Orise declaration which, if 3 reviewable, undermine the FAC’s allegations. For example, the Orise declaration 4 adduced facts that seem to indicate that Plaintiffs, whose petitions are still undergoing 5 processing, are not “next in line” for adjudication and that other similarly situated 6 petitioners are entitled under USCIS regulations, policy, and procedure to adjudication 7 before Plaintiffs. (See e.g., Orise Decl. ¶¶ 8, 14–17, 21–31.) See also Calderon-Ramirez 8 v. McCament,

(7th Cir. 2017) (“we must determine whether [plaintiff] 9 has a right to skip ahead of other petitioners who filed an application before [plaintiff], 10 but who are also waiting for adjudication for the U-visa waiting list.”). 11 However, the Court cannot consider this declaration in its Rule 12(b)(6) analysis. 12 In assessing the sufficiency of the complaint, federal courts generally do not consider 13 evidence outside of the pleadings unless the complaint “necessarily relies” on such 14 evidence. Manzarek v. St. Paul Fire & Marine Ins. Co.,

(9th Cir. 15 2008). The FAC does not refer to the declaration attached to Defendant’s supplemental 16 briefing. Also, the declaration is not central to the FAC because it is not a document 17 upon which Plaintiffs’ allegations depend. See

. Even though Plaintiffs did 18 not object to the Orise declaration, the declaration was written after and in response to the 19 20 21

22 (3) delays that might be reasonable in the sphere of economic regulation are less tolerable 23 when human health and welfare are at stake[;] 24 (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority[;] 25 (5) the court should also take into account the nature and extent of the interests prejudiced by delay[;] and 26 (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed. 27 TRAC,

(citations and quotation omitted). 28 1 FAC’s allegations. See

No basis appears for the Court to consider the declaration 2 with respect to Defendant’s Rule 12(b)(6) motion.6 3 The TRAC factors for determining whether agency delay is unreasonable are 4 applicable at the stage of a Rule 12(b)(6) motion to dismiss if sufficient allegations from 5 the complaint and sufficient briefing from both parties permit that analysis. See e.g., 6 Assadian v. Oudkirk, No.3:22-cv-921-RBM-BGS, __ F.Supp.3d__, 2023 U.S. Dist.

,

(S.D. Cal. Sept. 25, 2023). This record did not, 8 especially because Defendant did not raise a TRAC factor challenge in its original motion 9 to dismiss based upon the FAC’s factual allegations regarding the six TRAC factors. (See 10 FAC ¶¶ 101–113.) If a rule of law, such as the application of the TRAC factors to an 11 allegation of unreasonable delay, forecloses a plaintiff’s claim, then the claim must be 12 dismissed. See Iqbal,

(2009). Accordingly, a plaintiff must plead 13 sufficient facts in an unreasonable delay APA case to support the reasonable inference 14 that the delay is unreasonable under the TRAC factors. Here, Plaintiffs satisfy this 15 requirement by pleading sufficient facts to permit the inference that the delay is 16 unreasonable, including the facts that: (1) their petitions have been pending since 2017, 17 (2) Defendant violated its own regulations in processing more recently filed petitions 18 before those filed earlier, and (3) Defendant’s delay in adjudicating Plaintiffs’ petitions is 19 not due solely to the annual statutory cap but also to Defendant’s failure to follow its own 20 regulation or failure to decide the oldest applications first. Plaintiffs’ FAC states facts 21 sufficient to state a claim for relief under the APA in the absence of the Orise declaration. 22 23 24 25 6 In requesting consideration of the Orise declaration on its Rule 12(b)(6) motion, Defendant cited this 26 Court’s order in Mirbod v. Blinken, No.3:22-cv-02057 (S.D. May 10, 2023) (Doc. 8 at 8–10). In Mirbod, the indisputable delay caused by COVID-19 impacted government processing.

The 27 extrinsic evidence detailed information regarding the worldwide emergency of COVID-19 and its impact on that case.

Absent a similar worldwide emergency and a lack of reasonable dispute as to 28 1 Conclusion 2 For the foregoing reasons, it is Ordered that, 3 ¢ Derivative Plaintiffs Mayra Calix, Bhartiben Patel, Nimeshkumar Patel, Jameel 4 || Shaik, RAS, Khushboo Patel, Jose de Macedo, Hugo Chavez Martinez, and JFCR are 5 || VOLUNTARILY DISMISSED WITHOUT PREJUDICE: 6 ¢ the claims of Principal Plaintiff Darwin Ruiz are DISMISSED for lack of 7 || subject matter jurisdiction as moot; 8 ¢ the Principal Plaintiffs have standing; and 9 ¢ Defendant’s Rule 12(b)(6) motion is DENIED IN REMAINING PART. 10 11 Dated: April 30, 2024 12 juLor 13 Ho omas J. Whelan 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28