A recent decision from the Seventh Circuit Court of Appeals touches on a matter we get a lot of inquiries about: what can be done to speed up the decision on long-ago-filed petition or application.
The case involves Ruder Calderon-Ramirez. Ramirez, a citizen of Guatemala, entered the US illegally in 2002. Years later, in 2014, he was stabbed. A few months after that, he applied for a U visa.
In 2000, Congress created the U visa, which allows non-citizens (and certain relatives) who are victims of certain serious crimes in the US and who help law enforcement to apply for and receive U status. To qualify for a U visa, the Department of Homeland Security must determine that (1) the non-citizen “suffered substantial physical or mental abuse as a result of having been a victim of criminal activity ”; (2) the non-citizen “possesses information concerning [the] criminal activity”; (3) the non-citizen 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.
Congress placed a limit on the number of U visas given out for each fiscal year: 10,000 U visas is the limit. Currently, there is a waiting list for non-citizens seeking a U visa. Further, because of the a great increase in the number of non-citizens who have applied for a U visa, there is even a waiting list for the waiting list . A U-visa petitioner’s petition for the U visa application is judged twice, once to get on the waiting list for the U visa, and once to get the U visa from the waiting list.
In August 2016, presumably desiring movement, desiring action, desiring a decision on his petition, Mr. Ramirez requested that the District Court for the Central District of Illinois issue an order compelling government officials to make a decision on his U-visa petition; he sought mandamus relief or, alternatively, relief pursuant to the Administrative Procedures Act (APA).
The Department of Homeland Security does have a duty to adjudicate, within a reasonable period of time, U-visa petitions for purposes of the U visa itself and for purposes of getting a place on the waiting list for the U visa. The district court does have authority to issue a writ of mandamus to compel an agency to perform a duty owed to a plaintiff, to Ramirez. However, the district court instead dismissed the case. Ramirez appealed.
A writ of mandamus will be granted if, in this case, a plaintiff establishes
(1) a clear right to the relief sought,
(2) that the defendant has a duty to do the act in question, and
(3) that no other adequate remedy is available.
Here the court denied mandamus relief, reasoning that the Ramirez did not show he had a right to have his petition adjudicated before those who are ahead of him in line for adjudication. The court explained there is a significant backlog in adjudication of U visa petitions, that regulations state the petitions will be adjudicated on a first-come-first-serve basis, and that Ramirez failed to set forth any facts to differentiate himself from other applicants waiting ahead of him for adjudications and thus could not justify skipping ahead of them.
The APA states that “within a reasonable time, each agency shall proceed to conclude a matter presented to it.”
The court also denied relief under the APA, explaining that the delay was not unreasonable. The court reasoned that the INA and corresponding regulations fail to provide a time frame for the processing of U visa petitions for the waiting list, that USCIS is dealing with an “exponentially increasing number of U-Visa applications,” and that USCIS has recently made changes to alleviate the backlog.