23-435-cv Rodriguez v. Mayorkas

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of September, two thousand twenty-four.

Present:

EUNICE C. LEE, SARAH A. L. MERRIAM, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

CRISTIAN RODRIGUEZ,

Plaintiff-Appellant,

v. 23-435-cv

ALEJANDRO MAYORKAS, U.S. SECRETARY OF HOMELAND SECURITY; UR MENDOZA JADDOU, DIRECTOR OF U.S. CITIZENSHIP AND IMMIGRATION SERVICES; SUSAN DIBBINS, CHIEF OF THE USCIS ADMINISTRATIVE APPEALS OFFICE,

Defendants-Appellees.* _____________________________________

For Plaintiff-Appellant: BENJAMIN RODGERS & CHARLOTTE LAWRENCE, Law Students (Muneer I. Ahmad, Michael J. Wishnie, & Lillian Novak, on the briefs), Jerome N. Frank Legal Services Organization, Yale Law School, New Haven, CT.

For Defendants-Appellees: KIMBERLY A. FRANCIS, Assistant United States Attorney (Varuni Nelson & Christopher D. Volpe, Assistant United States Attorneys, on the brief), for Breon Peace, United States Attorney, United States Attorney’s Office for the Eastern District of New York, Brooklyn, NY.

Appeal from a February 1, 2023 judgment of the United States District Court

for the Eastern District of New York (Brodie, C.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

VACATED IN PART, AFFIRMED IN PART, and REMANDED for further

proceedings consistent with this order.

2 * The Clerk of Court is respectfully directed to amend the caption accordingly. Plaintiff-Appellant Cristian Rodriguez appeals a judgment of the district

court dismissing his complaint seeking review of the U.S. Citizenship and

Immigration Service’s (“USCIS”) denial of his application for a waiver of

inadmissibility and his petition for U nonimmigrant visa status. Rodriguez

argues that the district court erred in concluding that it lacked jurisdiction to

review USCIS’s determinations, and seeks our review of the agency’s decisions

denying his application and petition.

Rodriguez, a citizen of Ecuador who has lived in the United States since

2004, petitioned seeking U nonimmigrant status based on his status as a crime

victim who cooperated with law enforcement. In 2011, he and his family were

victims of a burglary. Rodriguez assisted law enforcement in identifying the

individual who committed the crime and cooperated with the Queens District

Attorney’s Office in the related prosecution. His cooperation made him eligible

to petition for a U visa—which he did in 2015. See

(a)(15)(U). As

required to successfully petition for a U visa, he also applied for a waiver of

inadmissibility. See

§ 1182(d)(3), (d)(14). In 2019, USCIS denied both his U

visa petition and his application for a waiver of inadmissibility (or “waiver

application”). After USCIS denied a motion to reconsider the denial of his U visa

3 petition, and denied motions to reopen and reconsider his waiver application,

Rodriguez unsuccessfully appealed to the Administrative Appeals Office.

Rodriguez commenced this challenge to USCIS’s denials in district court

under the Administrative Procedure Act (“APA”) seeking: (1) declarations that the

denials of his petition for a U visa and application for waivers of inadmissibility

were arbitrary and capricious, in violation of the APA; (2) a declaratory judgment

that he is statutorily eligible for a U visa; and (3) an order requiring USCIS to

reopen and grant his U visa petition. In the alternative, Rodriguez sought an

order requiring USCIS to reconsider his U visa petition and to reopen and

reconsider his waiver application. The district court granted the government’s

motion to dismiss Rodriguez’s complaint pursuant to Federal Rule of Civil

Procedure 12(b)(1). See generally Rodriguez v. Mayorkas, No. 21-CV-03129 (MKB),

(E.D.N.Y. Jan. 27, 2023). The district court determined that it

lacked subject-matter jurisdiction over the waiver determination because pursuant

to

(a)(2)(B)(ii), the agency’s waiver determination is discretionary

and not subject to judicial review. See

at *4–5. The court then determined

that, as a result, Rodriguez also failed to state a claim under Rule 12(b)(6) as it

related to judicial review of his U visa petition, because a waiver is one necessary

4 component of a U visa petition.

at *5–6. On appeal, Rodriguez argues that

we have jurisdiction to review both USCIS’s denial of his waiver application and

the denial of his U visa petition, and that the district court dismissed review of

both in error.

We assume the parties’ familiarity with the remaining underlying facts,

procedural history, and issues on appeal, to which we refer only as necessary to

explain our decision. For the reasons set forth below, we clarify that while we do

indeed have jurisdiction to review both of Rodriguez’s claims, his challenge to the

denial of his waiver application nevertheless fails on the merits, and we decline to

rule on his challenge to the waiver-dependent U visa petition.

* * *

We review de novo the grant of a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), accepting all factual allegations in the complaint as true

and construing all reasonable inferences in the light most favorable to the

nonmoving party. See Melendez v. Sirius XM Radio, Inc.,

(2d Cir.

2022). As for the grant of a Rule 12(b)(1) motion to dismiss for lack of subject

matter jurisdiction, “we review legal conclusions de novo and factual findings for

clear error.” Nouritajer v. Jaddou,

(2d Cir. 2021).

5 I. Waiver of Inadmissibility

The government argues that we lack any jurisdiction to review USCIS’s

denial of Rodriguez’s waiver application under the APA because “[t]he APA does

not provide a basis for judicial review where ‘agency action is committed to agency

discretion by law.’” Gov’t Br. at 31 (quoting

(a)(2)). However,

rather than challenging a discretionary determination, Rodriguez questions

whether the agency adhered to express directives given to it by Congress. This

is squarely within our constitutional mandate for review of agency action, even if

the agency’s ultimate decision on the matter is otherwise committed to its

discretion. See Loper Bright Enters. v. Raimondo,

, 2273 (2024)

(“Courts must exercise their independent judgment in deciding whether an

agency has acted within its statutory authority, as the APA requires.”); see also, e.g.,

Wilkinson v. Garland,

(2024) (confirming that in the discretionary

context of cancellation of removal, courts always retain jurisdiction to review a

determination challenged for constitutional and legal issues, even if those issues

are mixed with factual ones). We therefore have jurisdiction over the merits of

Rodriguez’s challenge to the denial of his waiver application.

6 Rodriguez challenges the denial of his waiver application, arguing that

USCIS failed to comply with the statutory procedural requirements under the two

separate types of waivers for which he was eligible because the agency treated

both waivers as one. We disagree.

In order to obtain a U visa, a petitioner must also be admissible to the United

States. See

(a), (d)(14). Often this requires the individual

petitioning for a U visa to separately seek a waiver of inadmissibility via USCIS

Form I-192, an “Application for Advance Permission to Enter as Nonimmigrant.”

A waiver of inadmissibility grants an applicant temporary admission to the United

States. Applicants for a waiver of inadmissibility may generally seek grounds for

temporary admission pursuant to a waiver under § 1182(d)(3), but U visa-eligible

applicants also qualify to seek a waiver under § 1182(d)(14). See id. § 1182(d)(3),

(d)(14) (the “(d)(3)” and “(d)(14)” waivers, respectively). The (d)(3) waiver is a

general waiver of inadmissibility permitting a noncitizen to “be admitted into the

United States temporarily as a nonimmigrant in the discretion of the Attorney

General.” Id. § 1182(d)(3)(A). The (d)(14) waiver is an additional waiver created

by Congress specifically for U visa applicants who have aided the government or

law enforcement. See id. § 1182(d)(14). It allows the “Secretary of Homeland

7 Security, in the Attorney General’s discretion [to] waive” a U visa petitioner’s

ground of inadmissibility if the Secretary “considers it to be in the public or

national interest to do so.” Id.

As permitted, Rodriguez availed himself of both avenues in his waiver

application, but he alleges that USCIS effectively considered him only for the

general (d)(3) waiver, and did not give him the benefit of the additional criteria for

the special waiver under (d)(14). He contends that this error amounts to a failure

to adjudicate his waiver application on the additional (d)(14) grounds for which

he was specially eligible. And he argues that this error indicates a failure by

USCIS to comply with the statutory procedural waiver requirements for U visa-

eligible applicants.

We agree with Rodriguez that if a U visa-eligible petitioner seeks a waiver

application pursuant to both (d)(3) and (d)(14), the application must necessarily

be separately considered under the requirements for each section. This is because

Congress expressly established a separate consideration from the general (d)(3)

waiver in (d)(14), by obligating the agency to affirmatively weigh the “public or

national interest” when considering waivers for U visa-eligible individuals

specifically. Id. USCIS must consider this additional element for (d)(14)-eligible

8 individuals, even when the ultimate decision on whether or not to grant the waiver

is committed to agency discretion. A failure to do so would be akin to declining

to adjudicate a (d)(14) waiver in contravention of Congress’s express guidance—

which is different from an adverse exercise of that discretion.

But in Rodriguez’s case, USCIS did consider him for waiver under both sets

of criteria. In its I-192 decision letter, USCIS acknowledges that it considered

Rodriguez for a waiver under (d)(3) and “[a]dditionally” under (d)(14), given his

eligibility for U nonimmigrant status. Joint App’x at 19. The letter lays out the

applicable law and the supplementary “public or national interest” element in

(d)(14). Id. at 19–20. It also continues to reference (d)(14) distinctly from (d)(3)

in the introduction to its analysis and its conclusion. In USCIS’s ultimate

conclusion to deny the waiver, the letter states: “Consequently, the record does

not establish that a discretionary decision to waive the grounds of inadmissibility

for the purposes of a nonimmigrant admission would be in the public or national

interest as detailed above.” Id. at 29 (emphasis added). This clearly demonstrates

that USCIS considered the criterion of the “public or national interest”—which is

exclusive to (d)(14)—even if it failed to provide a separate analysis for that

element.

9 Understandably, this somewhat perfunctory treatment is unsatisfying for

Rodriguez, and it also makes our task more difficult for purposes of judicial

review. That being said, Rodriguez points to no authority to support the idea

that USCIS has a duty to give a more reasoned explanation for its denial of the

(d)(14) waiver. Absent such authority, or evidence of bad faith, and given it is

clear that USCIS (1) knew the distinction between the waivers, (2) knew the

additional requirements accompanying a (d)(14) waiver, and (3) asserted that it

considered the “public or national interest” in the context of Rodriguez’s waiver

application, we are hard-pressed to conclude that USCIS acted arbitrarily and

capriciously, or that it abused its discretion.

II. U Visa

Rodriguez also argues that the district court wrongly dismissed his claim

for review of the denial of his U visa petition. Even though his U visa petition is

incomplete without the required waiver of inadmissibility, Rodriguez implores us

to review USCIS’s denial of his U visa petition, regardless of our decision on the

waiver. In support of this position, he points out that other avenues for obtaining

a waiver of inadmissibility remain available to him, arguing that, as a result, his U

visa petition still presents a potentially cognizable claim under Rule 12(b)(6).

10 And he seeks this review of his U visa petition because he believes that USCIS

erred in its determination that he did not assist law enforcement with a qualifying

crime. Though the parties do not dispute our authority to rule on the U visa

petition, they do disagree as to whether it is a wise use of judicial resources to

review the denial of a U visa petition on grounds other than inadmissibility in

instances when a denied or outstanding application for inadmissibility also poses

a defect in the petition. While it is not categorically the rule that a challenge to a

U visa petition fails to state a claim in the first instance without a successful waiver

of inadmissibility—and there is certainly no legal bar to our review here—we do

not find it necessary for us to reach the issue here today.

* * *

We hereby VACATE the district court’s judgment in part on the issue of

jurisdiction to review the waiver application and REMAND with instructions to

deny that issue on the merits. And we AFFIRM the judgment in remaining part.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

11