Ruder M. Calderon-Ramirez v. James W. McCament

Ruder Calderon-Ramirez, a native and

citizen of Guatemala, filed a petition for U Nonimmigrant

Status on February 5, 2015. Due to a significant backlog,

Ramirez is waiting to be evaluated for the waiting list. On

August 15, 2016, he filed a petition for writ of mandamus in the

Northern District of Illinois requesting that the district court

compel Leon Rodriguez, Director of Homeland Security, and

Jeh Johnson, Secretary of Homeland Security, (collectively,

“Defendants”), to adjudicate his U-visa petition. Ramirez

argues the wait to be placed on the waiting list is unreasonable.

The district court granted the Defendants’ motion to dismiss.

Ramirez now appeals. For the reasons set forth below, we

affirm.

I. BACKGROUND

In October 2000, Congress created the U-visa through the

passage of the Victims of Trafficking and Violence Protection

Act of 2000 (“the Act”), Pub. L. No. 106-386, Div. A, 114 Stat.

1464 (2000), codified at inter alia, 8 U.S.C. § 1101(a)(15)(U). 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. The U-visa provides legal

status to petitioners and qualifying family members to apply

for work authorization and remain in the United States. Id. In

* Of the United States District Court for the Central District of Illinois,

sitting by designation.

No. 16-4220 3

order to qualify, the Department of Homeland Security 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).

Congress enacted a statutory cap of 10,000 U-visas each

fiscal year. 8 U.S.C. § 1184(p)(2)(A). Because of this cap, a

waiting list exists for petitioners seeking adjudication. 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. United States

Citizenship and Immigration Services (“USCIS”) will grant

eligible petitioners and qualifying family members on the

waiting list deferred action and work authorization while they

wait for final adjudication. Id. However, those who are waiting

to be placed on the waiting list are not granted this benefit.

Ramirez, a native and citizen of Guatemala, entered the

United States in April 2002 and has remained here since. On

August 16, 2014, he was stabbed in his back and leg during a

felonious assault.

On February 5, 2015, USCIS received Ramirez’s Form I-918,

Petition for U Nonimmigrant Status, Form I-192, Application

for Advance Permission to Enter as a Nonimmigrant, and to

waive his entry without inspection into the country. Since then,

4 No. 16-4220

Ramirez has been waiting for his petition to be evaluated so he

can be placed on the waiting list.

On August 15, 2016, two years after the attack and a year

and a half after filing his petition, Ramirez requested the

district court to issue an order compelling the Defendants to

adjudicate his U-visa petition through mandamus relief or, in

the alternative, under the Administrative Procedures Act

(“APA”). In response, the Defendants filed a motion to dismiss

for failure to state a claim. After a hearing, the district court

granted the Defendants’ motion to dismiss both claims.

Ramirez now appeals.

II. DISCUSSION

We review a district court’s grant of a motion to dismiss for

failure to state a claim de novo. Volling v. Kurtz Paramedic Servs.,

Inc., 840 F.3d 378, 382 (7th Cir. 2016). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “We accept as true

all of the well-pleaded facts in the complaint and draw all

reasonable inferences in favor of the plaintiff[-appellant].”

Kubiak v. City of Chicago, 810 F.3d 476, 480–81 (7th Cir. 2016).

A. Mandamus Relief

District courts have the authority to issue a writ of mandamus

to compel an agency to perform a duty owed to a plaintiff.

28 U.S.C. § 1361. “Mandamus relief will be granted if the

plaintiff can demonstrate that the three enumerated conditions

are present: (1) a clear right to the relief sought; (2) that the

No. 16-4220 5

defendant has a duty to do the act in question; and (3) no other

adequate remedy is available.” Iddir v. I.N.S., 301 F.3d 492, 499

(7th Cir. 2002).

To determine what right is owed to the plaintiff, we look to

the statute enacted by Congress. Id. Looking at the Act, there

is no dispute that Ramirez has a right to adjudication for both

the waiting list and a U-visa. Rather, Ramirez argues that the

delay he has endured to be placed on the U-visa waiting list is

unreasonable, and thus, he has a right to immediate adjudication.

In Iddir, we found that the former Immigration and Naturalization

Services had a “duty to adjudicate the appellants’

applications in a reasonable period of time.” Id. at 500. While

Iddir dealt with the Diversity Visa Lottery Program rather than

the U-visa we face, we find this same standard applicable here.

Furthermore, 8 C.F.R. 214.14(d)(2) states, “[p]riority on the

waiting list will be determined by the date the petition was

filed with the oldest petitions receiving the highest priority.”

Thus, due to the significant backlog of U-visa applications, we

must determine whether Ramirez has a right to skip ahead of

other petitioners who filed an application before Ramirez, but

who are also waiting for adjudication for the U-visa waiting

list.

Ramirez fails to set forth any facts that differentiate himself

from other petitioners waiting ahead of him for adjudication.

The appellees did concede at oral argument that there are

instances when the Immigrations and Customs Enforcement

can and will expedite a petition. However, Ramirez fails to

present a situation appropriate to warrant such an action. With

6 No. 16-4220

nothing in the record to suggest his wait time has been any

more unreasonable than other petitioners waiting in the same

line, we have no reason to grant mandamus relief.

B. Administrative Procedure Act Relief

Ramirez also seeks relief under the APA, arguing that

USCIS has a nondiscretionary duty to process his application

and that he has experienced an unreasonable delay. The APA

specifically states that, “within a reasonable time, each agency

shall proceed to conclude a matter presented to it.” 5 U.S.C.

§ 555(b). Additionally, the APA provides, “[t]he reviewing

court shall compel agency action unlawfully withheld or

unreasonably delayed.” 5 U.S.C. § 706(1).

While both parties agree that USCIS has a duty to process

Ramirez’s application, the Act and corresponding regulation

fail to enumerate a timeframe that USCIS is required to process

U-visa petitions for the waiting list. Thus, we must determine

whether Ramirez’s wait has been unreasonable.

USCIS is dealing with an exponentially increasing number

of U-Visa applications. Since 2009, the U-Visa backlog has

increased from 21,138 to 177,340 pending applications.** Prior

to August 2016, USCIS had one service center processing

applications. In August 2016, USCIS began distributing U-visa

petitions to a second service center in response to the increas-

** U.S. CITIZENSHIP & IMMIGRATION SERVS., Number of Form I-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%20a

nd%20Studies/Immigration%20Forms%20Data/Victims/I918u_visastatist

ics_fy2017_qtr3.pdf (last visited Nov. 29, 2017).

No. 16-4220 7

ing backlog. USCIS argues that this change will take time to be

felt by petitioners. Due to the circumstances USCIS faces and

the agency’s recent changes to alleviate the backlog, we do not

find Ramirez’s wait to be unreasonable at this time. Thus, relief

under the APA must also be denied.

For the foregoing reasons, the district court’s grant of the

defendants’ motion to dismiss is AFFIRMED.