October 26, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:16-cv-10754 -
Amy J. St. Eve, Judge.
Flaum, Ripple, and Manion, Circuit Judges.
Thomas Taylor applied for a U-visa in 2014. United States
Citizenship and Immigration Services ("USCIS")
determined that Taylor was eligible, but placed him on a
waiting list because the relevant statute prohibits the
agency from issuing more than 10, 000 U-visas per year.
Taylor filed suit in district court, alleging that
USCIS's prior delay in promulgating regulations for the
U-visa program caused the backlog in applications. He
asserted claims under the Administrative Procedure Act
("APA") and the Mandamus Act, and asked the court
to compel USCIS to immediately issue 80, 000 U-visas to those
on the waiting list. The district court determined that
Taylor lacked standing and accordingly dismissed his
complaint for lack of subject matter jurisdiction. We affirm.
October 28, 2000, Congress created a new nonimmigrant visa
classification-the "U-visa"-for any alien who is
the victim of a qualifying crime in the United States and who
assists law enforcement in the investigation or prosecution
of that crime. See Victims of Trafficking and
Violence Protection Act of 2000 (Victims Protection Act),
Pub. L. No. 106-386, 114 Stat. 1464 (codified at 8 U.S.C.
§ 1101(a)(15)(U)). The purpose of the U-visa program is
to strengthen law enforcement efforts, while simultaneously
offering protection to victims. See Victims
Protection Act, Pub L. No. 106-386, § 1513(a)(2), 114
Stat. 1464. To that end, Congress gave the Attorney General
"discretion to convert the status of such nonimmigrants
to that of permanent residents when doing so is justified on
humanitarian grounds, for family unity, or is otherwise in
the public interest." Id. § 1513(a)(2)(C).
An individual can apply for lawful permanent resident status
once they have possessed a U-visa for three years.
See 8 U.S.C. § 1255(m); see also 8
C.F.R. § 245.24(a)(1).
the Victims Protection Act was enacted in 2000, the relevant
agencies failed to subsequently create any
regulations or procedures to enable individuals to apply for
U-visas. In 2005, Congress included a provision in the
Violence Against Women Act ("VAWA") directing the
Secretary of Homeland Security to issue regulations for the
Victims Protection Act "[n]ot later than 180 days after
the enactment of this Act." Pub. L. 109-162, § 828,
119 Stat. 2960 (2006). Because VAWA was signed into law on
January 5, 2006, USCIS had a deadline of July 4, 2006 to
issue the regulations for U-visas.
September 2007-nearly seven years after enactment of the
Victims Protection Act and more than a year after the
Congressionally mandated regulation deadline-USCIS issued
interim regulations with procedures for victims seeking
U-visas. See New Classification for Victims of
Criminal Activity; Eligibility for "U" Nonimmigrant
Status, 72 Fed. Reg. 53, 014-01 (Sept. 17, 2007). By the end
of fiscal year 2008, the agency had received 12, 151
petitions, but it placed the vast majority (12, 092) on hold
pending the issuance of final regulations. See U.S.
Dep't of Homeland Sec, Office of the Citizenship and
Immigration Servs. Ombudsman, Improving the Process for
Victims of Human Trafficking and Certain Criminal Activity:
The T and U Visa 7 (2009),
agency promulgated final regulations in December 2008, and
those regulations went into effect in January 2009.
See Adjustment of Status to Lawful Permanent
Resident for Aliens in T or U Nonimmigrant Status, 73 Fed.
Reg. 75, 540-01 (Dec. 12, 2008). Only then did USCIS begin to
issue U-visas in large numbers. See U.S. Dep't
of Homeland Sec, USCIS, Number of Form 1-918, Petition for U
Nonimmigrant Status, by Fiscal Year, Quarter, and Case Status
[hereinafter U-visa Statistics].
after USCIS finally began to issue U-visas, however, it was
not able to provide a U-visa to all eligible applicants
because the Victims Protection Act limits the number of
U-visas that may be issued each fiscal year to 10, 000.
See 8 U.S.C. § 1184(p)(2) ("The number of
aliens who may be issued visas or otherwise provided status
as nonimmigrants ... in any fiscal year shall not exceed 10,
000."). Once the fiscal year limit is reached, eligible
U-visa applicants are placed on a waiting list. 8 C.F.R.
§ 214.14(d)(2). USCIS reviews the petitions on the
waiting list based on the date they were filed, with the
oldest petitions receiving the highest priority. Id.
While on the waiting list, USCIS grants the petitioner and
qualifying family members deferred action, a discretionary
form of relief that defers removal and confers employment
authorization benefits. Id. The number of U-visa
petitions has steadily increased since 2009, and USCIS has
reached the statutory cap each year since fiscal year 2010.
See U-visa Statistics, supra.
a citizen of Ireland, entered the United States in 2000 on a
visitor's visa. In October 2008, Taylor was the victim of
perjury a qualifying crime under the Victims Protection Act.
After the Federal Bureau of Investigation certified that
Taylor had provided the necessary assistance, Taylor applied
for a U-visa on June 9, 2014. Although USCIS determined that
Taylor was eligible, the agency placed him on the waiting
list due to the annual cap. On September 7, 2016, USCIS
granted Taylor deferred action. Taylor is still on the
November 21, 2016, Taylor filed a petition for declaratory
judgment in the Northern District of Illinois against the
Director of USCIS and the Secretary of DHS. Taylor alleged
that defendants unreasonably delayed implementing regulations
for the U-visa program, thus depriving him of U-visa status
and delaying his eligibility for lawful permanent resident
status. According to Taylor, because the agencies were
authorized to issue 10, 000 U-visas per year between 2000 and
2008 but failed to do so, they wrongfully withheld a total of
80, 000 U-visas. Thus, Taylor asked the court to compel USCIS
to immediately issue 80, 000 U-visas to those who are
currently on the waiting list pursuant to its authority under
the Mandamus Act and the APA.
district court dismissed Taylor's petition on two
independent grounds. First, the court held that it lacked
subject matter jurisdiction because Taylor did not have
standing. Second, the court held that, even if Taylor had
standing, he had failed to ...