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Taylor v. McCament

United States Court of Appeals, Seventh Circuit

November 17, 2017

Thomas Taylor, Plaintiff-Appellant,
v.
James W. McCament, Acting Director, U.S. Citizenship & Immigration Services, et al., Defendants-Appellees.

          Argued October 26, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:16-cv-10754 - Amy J. St. Eve, Judge.

          Before Flaum, Ripple, and Manion, Circuit Judges.

          FLAUM, CIRCUIT JUDGE

         Appellant 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.

         I. Background

         On 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).

         Although the Victims Protection Act was enacted in 2000, the relevant agencies[1] 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.

         In 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), https://www.dhs.gov/xlibrary/assets/cisomb_tandu_visa_recommendation_2009-01-26.pdf.

         The 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 (2009-2017), https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20 Data/Victims/I918u_visastatistics_fy2017_qtr3.pdf [hereinafter U-visa Statistics].

         Even 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.

         Taylor, 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 waiting list.[2]

         On 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.

         The 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 ...


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