Esparza et al v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:25-cv-00555-SBP
JOSE ANTONIO ORENDAY ESPARZA et al.,
Plaintiffs,
v.
MARKWAYNE MULLIN1 et al.,
Defendants.
ORDER OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge
This matter comes before the court on Defendants Kristi Noem, Kika Scott, Pam Bondi,
and U.S. Citizenship and Immigration Services (“USCIS”) (collectively, “Defendants”)’s Motion
to Dismiss. “Motion,” ECF No. 25. Defendants Noem, Scott, and Bondi are each sued solely in
their official capacities. The parties have consented to this Magistrate Judge’s jurisdiction. ECF
No. 21; see 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. Having now reviewed the Motion, the
evidence in support of the Motion, and the applicable law, this court respectfully ORDERS that
the Motion be GRANTED IN PART and DENIED IN PART.
I. 	BACKGROUND
The court notes that there is no dispute as to the applicable facts and statutory framework
1 Pursuant to Federal Rule of Civil Procedure 25(d), Mr. Mullin, the current Secretary of the
Department of Homeland Security, is substituted in this action.
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here; indeed, Plaintiffs adopted the legal and factual background set forth by Defendants in filing
their Response. Accordingly, the court largely adopts the same legal and factual background
below, varying only as necessary to more precisely, specifically, and neutrally set forth the
applicable statutory framework and background.
In October 2000, Congress created the “U nonimmigrant status” visa classification (“U
visa” or “U-visa”) for victims of qualifying crimes who cooperate with law enforcement in the
investigation or prosecution of those crimes. See Victims of Trafficking and Violence Protection
Act (“VTVPA”), Pub. L. 106-386, 114 Stat. 1464 (2000), codified at 8 U.S.C. § 1101(a)(15)(U).
USCIS may only issue 10,000 principal U visas each year. See 8 U.S.C. § 1184(p)(2).
Anticipating that the number of petitioners would exceed the annual statutory cap, USCIS
created a regulatory waiting list. See 8 C.F.R. § 214.14(d)(2); see also New Classification for
Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53,014
(Sept. 17, 2007). If USCIS determines that a petition may be approved, but a visa is not available
due to the statutory cap, then the petitioner is placed on a waiting list until a visa becomes
available (known as a waitlist determination or “WLD”). See 8 C.F.R. § 214.14(d)(2). USCIS
grants deferred action or parole to a petitioner and qualifying family members on the waitlist,
and these individuals may also be authorized to seek employment. Id. Deferred action is an act of
administrative convenience that gives some cases lower priority for removal. See 8 C.F.R. §
274a.12(c)(14); see also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 484
(1999) (“AADC”) (deferred action is the exercise in administrative discretion to “decline to
institute proceedings, terminate proceedings, or decline to execute a final order of deportation”).
USCIS has met the statutory cap for U visas every year since 2010, and by the end of fiscal year
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2024, 396,963 principal and derivative U visa petitions were pending. See id.
In 2008, Congress amended the VTVPA to permit the Government to grant employment
authorization documents (“EADs”) to aliens with pending, bona fide U visa petitions. See
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110-
457, § 201(c), 122 Stat 5044 (Dec. 23, 2008) (codified at 8 U.S.C. § 1184); see 8 U.S.C. §
1184(p)(6) (“The Secretary may grant work authorization to any alien who has a pending, bona
fide application for nonimmigrant status under section 1101(a)(15)(U)”); USCIS Policy Manual,
Volume 3, Part C, Chapter 5 . In June 2021, USCIS relied on that statutory authority to issue a
new policy addressing the increase in U visa petitions as well as the growing backlog of U visa
petitioners awaiting placement on the waitlist or final adjudication. That new policy gives USCIS
the ability to grant EADs to U visa petitioners without making the full merits determination
required for waitlist placement, so long as USCIS has determined that the petition is bona fide (a
bona fide determination, or “BFD”) and further determines that the petitioner does not pose a
national security or public safety risk and the petition otherwise merits such placement.
Put another way, while their U visa petitions are pending, petitioners may now receive
work authorization through two distinct tracks: the waitlist, or WLD, track and the bona fide, or
BFD, track. Patel v. Noem, 788 F. Supp. 3d 950, 954-55 (N.D. Ill. 2025); see Barrios Garcia v.
U.S. Dep’t of Homeland Sec., 25 F.4th 430, 443 (6th Cir. 2022). The waitlist is for “[a]ll eligible
petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status.” 8 C.F.R. §
214.14(d)(2). Placement on the waitlist comes with deferred action or parole and potential work
authorization. See id.
If USCIS determines that interim benefits are not appropriate after making a bona fide
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determination, the agency assesses whether the principal petitioner is nevertheless eligible for the
U visa waitlist. Id. USCIS then decides whether to grant work authorization. Id. If USCIS
determines that a petitioner is not eligible for the waitlist, it denies the U visa petition. Id. USCIS
prioritizes all petitions for final adjudication in the order they were received, allegedly to
maintain fairness between the petitioners placed on the waiting list and the petitioners issued
BFDs and ensure that older petitions maintain priority over newer ones. See USCIS Policy
Manual, Volume 3, Part C, Chapter 7.
Plaintiffs are various aliens who applied for U visas with USCIS between December 2,
2019, and August 28, 2024. “Complaint,” ECF No. 1 ¶ 5. On February 19, 2025, Plaintiffs filed
this lawsuit, alleging that USCIS has unreasonably delayed adjudicating the bona fides of their U
visa applications and eligibility for interim benefits. Id. The Complaint asserts two claims: in
“Count One,” Plaintiffs allege the Defendants violated the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706(1), by failing to adjudicate their eligibility for the U visa waiting list or
BFDs within a reasonable time. Id. ¶¶ 29-34. In “Count Two,” Plaintiffs allege that USCIS
violated the Mandamus Act, 28 U.S.C. § 1361, by unreasonably delaying the adjudication of
their U visa applications through failing to timely determine Plaintiffs’ eligibility for the U visa
waiting list, or BFDs, and accompanying EADS. Id. ¶¶ 35-37. They accordingly ask this court to
order Defendants to issue WLDs, to issue BFDs, and to grant them EADs. Id., Prayer for Relief.
On July 21, 2025, Defendants filed the Motion at issue. On August 10, 2025, Plaintiffs
filed a response. “Response,” ECF No. 30. On September 2, 2025, Defendants replied. “Reply,”
ECF No. 37.
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II. 	LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a
motion under Rule 12(b)(6), a court must “‘accept as true all well-pleaded factual allegations . . .
and view these allegations in the light most favorable to the plaintiff.’” Casanova v. Ulibarri,
595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or
conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Additionally, under Federal Rule of Civil Procedure 12(b)(1), a party may move to
dismiss for lack of subject-matter jurisdiction, “mounting either a facial or factual attack.” Baker
v. USD 229 Blue Valley, 979 F.3d 866, 872 (10th Cir. 2020). “[T]he party invoking federal
jurisdiction,” generally the plaintiff, “bears the burden of establishing its existence.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 104 (1998). A defendant facially attacks the subject
matter jurisdiction necessary for a plaintiff’s claim if, as here, he questions the sufficiency of the
complaint. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995); see Wood v. Houghton
Mifflin Harcourt Pub. Co., 569 F. Supp. 2d 1135, 1138 (D. Colo. 2008). In such a circumstance,
this court determines whether subject matter jurisdiction exists after accepting the allegations in
the complaint as true. Id. Dismissal for lack of subject matter jurisdiction is without
prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006).
III. 	ANALYSIS
The court first turns to a series of relatively brief arguments raised by Defendants
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regarding mootness, improper joinder, and failure to assert a claim, as well as a preliminary issue
regarding the scope of Plaintiffs’ claims. The court then addresses the question of whether this
court has subject matter jurisdiction over Plaintiffs’ claims—an issue that commands the bulk of
this Order—then concludes by addressing whether Plaintiffs have failed to state a claim upon
which relief can be granted.
A. Mootness of Claims
The court first notes that although Defendants argue that many of the Plaintiffs’ claims
are now moot, Motion at 14, in response, Plaintiffs represent that they have voluntarily dismissed
forty-one former plaintiffs who have already received BFDs or visa approval. Response at 1 n.1;
see ECF No. 29. Defendants do not directly acknowledge this in their reply. Defendants
additionally state that they have already determined that three Plaintiffs who presumably were
not voluntarily dismissed are “not eligible for a BFD,” Motion at 14; if Defendants mean that
they have already determined that these Plaintiff’s applications are neither bona fide nor eligible
for the waitlist, and if it is true those Plaintiffs have not already been dismissed, the court finds
that those three Plaintiffs have already received the relief requested here, and thus, their claims
are moot. However, with no reason to believe that there are any other remaining Plaintiffs with
moot claims, the court otherwise deems this issue to be resolved without any need for the court’s
further intervention.
Defendants also argue that they have sent Requests for Evidence (“RFEs”) to five
Plaintiffs and that those Plaintiffs’ claims should be considered moot because once an agency
issues an RFE and begins processing a petition, there is “no role for the Court.” Id. at 14-15; see
Meixian Ye v. Kelly, No. 17-cv-3010-BMC, 2017 WL 2804932, at *2 (E.D.N.Y. June 28, 2017).
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However, this principle is not broadly agreed upon, and the court instead finds that “[t]aking one
step in the process by issuing RFEs does not mean the adjudication will not continue to be
unreasonably delayed.” Lamarche v. Mayorkas, 691 F. Supp. 3d 274, 278 (D. Mass. 2023).
Accordingly, in the absence of any showing that those Plaintiffs have been derelict in responding
to the RFEs, the court finds that those Plaintiffs’ claims may proceed. And for clarity’s sake, the
court notes that its understanding is there are other Plaintiffs who have received neither BFD or
WLD decisions nor RFEs. Defendants do not argue that the claims of these specific Plaintiffs are
moot. Accordingly, the court finds that the claims of these Plaintiffs may proceed as well.
B. Joinder of Claims
Defendants next argue that it was not proper to join Plaintiffs in a single action, as they
do not share common questions of law or fact. Motion at 17-19. In response, Plaintiffs argue that
“all of the remaining Plaintiffs assert a right jointly or severally against USCIS for the exact
same problem – delays in the review of their I-918 petitions, issuance of bona fide
determinations, placement on the U visa waitlist, and adjudication of their I-765 employment
authorization document applications.” Response at 9. However, in the Complaint, Plaintiffs
acknowledge that their wait times have varied from four months to eighty-seven months, and
Plaintiffs argue elsewhere that whether delays are unreasonable in this context presents a “fact-
intensive question” and that “[w]hat constitutes an unreasonable delay in the context of
immigration applications depends to a great extent on the facts of the particular case.” Response
at 8-9. Defendants rejoin that where each applicant or petitioner presents a different factual
situation that requires personalized attention by USCIS and, ultimately, by the court, joinder is
neither justified nor feasible. Motion at 18.
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Though finding this issue to be a somewhat close call, the court agrees with Plaintiffs.
Plaintiffs may join in one action if (1) their claims arise out of the same transaction or
occurrence, and (2) they share a common question of law or fact. Fed. R. Civ. P. 20(a). To the
extent each remaining Plaintiff has been awaiting a determination for over four months, see
Complaint at 4, Plaintiffs share common questions of law and fact such that joinder is proper
here. These Plaintiffs can succinctly be summarized as individuals who have each fallen prey to
the same occurrence of having to await a BFD determination for over four months, and the court
disagrees with Defendants’ assertion that “any merits resolution would require the Court to
assess the various alleged delays and reasons separately.” And at this stage of the proceedings,
the only seemingly relevant distinction between the remaining individual Plaintiffs is that they
have been waiting for different periods of time; although it may ultimately prove to be necessary
to assess, e.g., Plaintiffs who have been waiting for years differently from Plaintiffs who have
merely been waiting for several months, this does not mean that the alleged “delays and reasons”
will have to be addressed separately in every Plaintiff’s case. For instance, distinctions between
various Plaintiffs who have been waiting for over a year for a determination are, in most or all
cases, unlikely to require precisely tailored evaluations.
Relatedly, the court notes that Defendants overstate any joinder-related concerns pursuant
to Rule 20(a)(1) here. Despite Defendants’ arguments otherwise, although some Plaintiffs have
filed their own U visa petitions and others have sought derivative status, this does not mean that
Plaintiffs’ claims fail to arise from common occurrences or series of occurrences or as common
questions of law and fact. As Plaintiffs state, joinder is generally strongly encouraged under the
Federal Rules of Civil Procedure, see, e.g., United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
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724 (1966), and the fact “[t]hat there may be distinctive treatment of each Plaintiff is not
determinative” of whether joinder is proper, Kohn v. Am. Hous. Found. I, Inc., 170 F.R.D. 474,
476 (D. Colo. 1996); “[a]bsolute identity of events is not necessary,” id., and “the presence of
some individualized questions of law and fact does not mean that there are no common
questions” or that joinder should therefore be precluded. Hufford v. Hyundai Cap. Am., No. 21-
cv-00944-DDD-SKC, 2023 WL 2753673, at *1 (D. Colo. Mar. 31, 2023) (emphasis added). And
the fact that some Plaintiffs’ individual circumstances will differ in material ways from others
does not automatically render joinder unwarranted. Kohn, 70 F.R.D. at 476 (collecting cases in
which plaintiffs’ individual claims and circumstances differed, but joinder was nonetheless found
to be warranted). Moreover, joinder does not bar Defendants from later moving for separate trials
should discovery later reveal that severance or bifurcation is appropriate. Id. Accordingly, the
court finds no issues with joinder here that might outweigh the federal courts’ strong preference
for encouraging joinder.
C. Ripeness of WLD Issue
Defendants argue that Plaintiffs fail to establish a plausible claim for relief because they
are not presently entitled to a WLD, rendering this issue unripe for adjudication. Motion at 12-
13. The court disagrees. Plaintiffs note that they are seeking “an order compelling the Defendants
to immediately make determinations of their eligibility for a BFD, EAD, and/or deferred actions
under the mandamus statute,” Complaint at ¶ 6, not simply a WLD, so they are seeking forms of
relief other than a WLD that Defendants must address as well. Moreover, Defendants do not
sufficiently support their assertion that a BFD is “the preliminary adjudicative step” here and
Plaintiffs could not receive a WLD without first receiving a determination that they are entitled
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to a BFD; indeed, prior caselaw implies that these are instead parallel tracks. See, e.g., Patel, 788
F. Supp. 3d at 953, 956 (stating that “while their U-Visa petitions are pending, petitioners may
receive work authorization through two distinct tracks: the waitlist track and the ‘bona fide
determination’ (BFD) track,” and although acknowledging that “a favorable BFD could obviate
the need for a waitlist determination,” concluding that “a grant or denial of a BFD is not a
prerequisite for a waitlist determination”); Ayala v. Noem, 781 F. Supp. 3d 1187, 1198 (D.N.M.
2025) (finding, inter alia, that it is not clear that the BFD process is “always” the preliminary
adjudicative step before considering a WLD and noting that even the USCIS policy manual
“hedges on this matter”). Defendants have not elucidated any relevant changes to the applicable
framework that might cause Plaintiffs to need to obtain a BFD first. And regardless, to find that
the fact that Plaintiffs are eligible for BFDs insulates Defendants from ever having to reach a
WLD “could lead to the perverse result that” by indefinitely delaying a waitlist decision,
Defendants could insulate themselves from ever reaching a WLD even if the statutory or
regulatory scheme does not grant them the discretion to unilaterally make such a call. Patel, 788
F. Supp. 3d at 956. Each of these reasons is individually sufficient for the court to reject
Defendant’s argument that Plaintiffs have failed to establish a plausible claim for relief.
D. Subject Matter Jurisdiction Issue
These comparatively straightforward matters having been dealt with, the court turns to
Defendants’ somewhat more complicated argument regarding subject matter jurisdiction.
Defendants move to dismiss in part “on the basis that 8 U.S.C. § 1252(a)(2)(B)(ii) strips courts
of jurisdiction” over Plaintiffs’ claims. This provision states, “with some exceptions not relevant
here, that ‘no court shall have jurisdiction to review . . . any other decision or action of the
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Attorney General or the Secretary of Homeland Security the authority for which is specified
under this subchapter to be in the discretion of the Attorney General or the Secretary of
Homeland Security.’” Patel, 788 F. Supp. 3d at 954 (quoting 8 U.S.C. § 1252(a)(2)(B)(ii)). The
“subchapter” to which § 1252(a)(2)(B)(ii) applies includes 8 U.S.C. §§ 1151-1381. Id.
(citing Kucana v. Holder, 558 U.S. 233, 239 n.3 (2010)). Defendants’ core argument here is that
8 U.S.C. § 1252(a)(2)(B)(ii) strips this court of jurisdiction to compel USCIS to adjudicate
interim U visa benefits because such matters are discretionary under 8 U.S.C. § 1184(p)(6).
Plaintiffs bring Count One pursuant to the Administrative Procedure Act and Count Two
pursuant to the All Writs Act. Butanda v. Wolf, 516 F. Supp. 3d 1243 (D. Colo. 2021), lays out the
applicable framework regarding such claims:
The Administrative Procedure Act generally permits a court to step in when an
agency fails to act. A reviewing court must “compel agency action unlawfully
withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Relief under Section 706(1)
is limited to an agency’s failure “to take a discrete agency action that it is required
to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64, 124 S.Ct. 2373, 159
L.Ed.2d 137 (2004). Section 706(1)’s “limitation to required agency action rules
out judicial direction of even discrete agency action that is not demanded by law.”
Id. So “when an agency is compelled by law to act within a certain time period, but
the manner of its action is left to the agency’s discretion, a court can compel the
agency to act, but has no power to specify what the action must be.” Id. at 65, 124
S.Ct. 2373. Section 706(1) encompasses actions mandated by statute and by
regulation. Id.
The All Writs Act, 28 U.S.C. § 1651, similarly empowers this court to compel an
agency, usually through a writ of mandamus, to carry out some “specific,
unequivocal command” required of it by law. Id. at 64, 124 S.Ct. 2373. A court may
issue a writ of mandamus ordering an agency to act only if the act requested is
“precise” and “definite,” “about which [an agency] had no discretion.” Id. A writ
of mandamus may issue, in short, for only ministerial, non-discretionary duties. Id.
There are two additional limitations on this court’s jurisdiction important for this
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case—one in the Administrative Procedure Act, the other in the Immigration and
Nationality Act. First, the APA precludes review of “agency action [that] is
committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This limitation is the
mirror image of Section 706(1)’s requirement that the court can compel an agency
to act when it has failed to take a discrete mandatory action. Second, the
Immigration and Nationality Act strips this court of “jurisdiction to review any
other decision or action of the Attorney General or the Secretary of Homeland
Security the authority for which is specified under this subchapter to be in the
discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C.
§ 	1252(a)(2)(B)(ii). The 	limitation 	in Section 	1252(a)(2)(B)(ii) is 	limited 	to
decisions or actions committed to agency discretion by statute only; it does not
apply to actions made discretionary by regulation alone. Kucana v. Holder, 558
U.S. 233, 246, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010).
Butanda, 516 F. Supp. 3d at 1247-48.
The parties seemingly agree that this court does not have jurisdiction to review decisions
regarding orders of removal made by the Attorney General “the authority for which is specified
under [8 U.S.C. §§ 1151-1381] to be in the discretion of the Attorney General or the Secretary of
Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). However, Defendants argue that this principle
generally applies to 8 U.S.C. §§ 1151-1381 “regardless of whether the judgment, decision, or
action is made in removal proceedings” in spite of 1252 being titled “[j]udicial review of orders
of removal.” 8 U.S.C. § 1252(a)(2)(B). Moreover, Defendants argue that the pace of adjudication
of the interim U visa benefits is discretionary, and thereby covered by § 1252, because pursuant
to § 1184(p)(6), USCIS “may grant work authorization to any alien who has a pending, bona fide
application for nonimmigrant status” (emphasis added), but is not required to do so. Defendants
also argue that Ҥ 1252(a)(2)(B)(ii) precludes review of all agency decision-making derived from
§ 1184(p)(6), including any final, discretionary EADs or deferred action, and their predicate non-
discretionary BFDs.” Motion at 11.
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The court notes that although Defendants treat the issue of whether granting employment
authorization to U visa applicants is “discretionary” as though it is the central issue in this matter
and primarily frame their jurisdictional arguments around this issue, the court disagrees. The
court understands Plaintiffs to be primarily seeking WLDs and BFDs, not EADs; in fact, at most,
the court understands Plaintiffs to be seeking work authorization in the alternative under Count
Two. Though Plaintiffs cursorily refer to “employment authorizations” in bringing both Counts
One and Two and within their prayer for relief, in bringing Count One, Plaintiffs do not actually
ask this court to hold that they are entitled to such authorization, but instead simply attempt to
compel Defendants to address their petitions. See Complaint at 10-11 (stating, inter alia, that
plaintiffs “had a clear right, under 8 C.F.R. § 214.14(d)(2), to a determination of eligibility for
the waiting list, and a clear right to that determination within a reasonable period of time” and
noting that “[i]n the alternative, a bona fide determination should have been made consistent
with USCIS policy,” but only cursorily referencing a right to an employment authorization
determination).
Nonetheless, the court agrees with Defendants that the court lacks jurisdiction to compel
Plaintiffs to adjudicate EADs. Indeed, Plaintiffs do not directly contest this argument in their
Response to Defendants’ Motion. There appears to be a significant judicial majority that has held
that the federal courts lack jurisdiction over such requests because of, inter alia, Section
1184(p)(6)’s use of the word “may” in setting forth the authority to issue work authorizations.
See, e.g., Barrios Garcia, 25 F.4th at 451; Gonzalez v. Cuccinelli, 985 F.3d 357, 371 (4th Cir.
2021); Reyes Olmos v. U.S. Citizenship & Immigr. Servs., 785 F. Supp. 3d 459, 472 (D. Neb.
2025). In the absence of any argument from Plaintiffs to the contrary, the court finds the
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reasoning set forth in these cases to be compelling, and accordingly, adopts the reasoning set
forth in these cases here. To the extent Plaintiffs ask this court to compel adjudication of their
employment authorization requests or EADs, therefore, that request is dismissed without
prejudice due to lack of jurisdiction.
Turning to the parties’ arguments regarding WLDs and BFDs, the court assumes for
argument’s sake that Defendants are correct that § 1252 applies in situations beyond removal
proceedings. See Van Dinh v. Reno, 197 F.3d 427, 432 (10th Cir. 1999) (“We conclude that §
1252(a)(2)(B)(ii) is not limited in application only to review by the circuit courts of final orders
of removal.”). But see, e.g., Tista v. Jaddou, 577 F. Supp. 3d 1219, 1224-25 (D.N.M. 2021) (“A
simple textual review of the statute, read in context, strongly suggests that § 1252(a)(2)(B)(ii)
refers to judicial review of orders of removal. . . . Plaintiffs’ claims in this case . . . [instead stem
from] the agency’s lack of action on their U visa petitions. Therefore, the Court finds that the
plain text of § 1252 does not independently preclude review of Plaintiffs’ claims.”).
Nevertheless, the court concludes that § 1252 does not preclude this court’s review.
There appears to be no dispute that “[t]he Supreme Court has held that §
1252(a)(2)(B)(ii) does not bar judicial review of decisions that are specified as discretionary by
regulation” as opposed to statute. Barrios Garcia, 25 F.4th at 443; see, e.g., Butanda, 516 F.
Supp. 3d at 1248 (“The limitation in Section 1252(a)(2)(B)(ii) is limited to decisions or actions
committed to agency discretion by statute only; it does not apply to actions made discretionary
by regulation alone.”). And it also appears well-settled that “Congress mandated that the agency
pass implementing regulations for the U-Visa program.” Gonzalez, 985 F.3d at 374 n.10 (citing 8
U.S.C. § 1101(a)(15)(U)); see also, e.g., Patel, 788 F. Supp. 3d at 956 (same). The court
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additionally finds, consistent with the large majority of other cases it has reviewed that have
considered this issue, that as a result, DHS created the waitlist process via regulation and
“impelled itself to place on the waitlist principal applicants who would be eligible for U-visas
without the 10,000-person statutory cap”; the court notes that these regulations “coexist with the
BFD process,” as alluded to above. Barrios Garcia, 25 F.4th at 443.
Accordingly, there is no relevant statutory grant of discretion in this context prohibiting
judicial review of WLDs, as Congress made implementing regulations for the U visa program
mandatory and WLDs have been made non-discretionary pursuant to these implementing
regulations. Id. And the court finds that a nearly identical principle applies to BFDs. “[T]he BFD
process was born of policy guidance.” Ayala, 781 F. Supp. 3d at 1197. The court recognizes that
the relevant statute states that “[t]he Secretary may grant employment authorization documents to
any alien who has a pending, bona fide application [for a U visa].” 8 U.S.C. § 1184(p)(6)
(emphasis added). However, the court agrees with the Sixth Circuit and other courts which have
held that any discretion provided by the word “may” applies to discretion to grant employment
authorization documents and is not a grant of discretion to reach a bona fide determination. See,
e.g., Barrios Garcia, 25 F.4th at 444-45 (under § 1184(p)(6), “USCIS must decide whether a
principal petitioner’s U-visa application is ‘bona fide’ before the agency undertakes discretionary
decisions . . . . In other words, Section 1184(p)(6) is not a wholly discretionary statute.”); Ayala,
781 F. Supp. 3d at 1200 (reaching the same conclusion).
To elaborate on these points, the court respectfully disagrees with Defendants that the
timeline for decisions made in either the WLD or BFD context is discretionary. The court
recognizes that “[c]ourts have split on” the issues of whether judicial review of WLDs and BFDs
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is precluded due to their being discretionary. See, e.g., Patel, 788 F. Supp. 3d at 956. However,
this court sides with the courts holding that implementing regulations for the U visa program
were made mandatory by Congress, and that these regulations require Defendants to place
applicants on the waitlist; accordingly, Defendants clearly have a non-discretionary duty to place
U visa petitioners on the waitlist. “[A]n agency can create a non-discretionary duty by binding
itself through a regulation carrying the force of law.” Elec. Priv. Info. Ctr. v. Internal Revenue
Serv., 910 F.3d 1232, 1244 (D.C. Cir. 2018). DHS has done so here, as “USCIS’s regulations
mandate the placement of U-visa-eligible petitioners on the waitlist.” Barrios Garcia, 25 F.4th at
450 (citing 8 C.F.R. § 214.14(d)(2)). Accordingly, “the federal courts may determine whether
USCIS unlawfully withheld or unreasonably delayed the placement of the principal petitioners
on the U-visa waitlist under § 706(1).” Id. And the court also agrees with other courts holding
that “USCIS’s determination of whether a U-visa application is ‘bona fide’ is mandatory per [this
court’s] construction of § 1184(p)(6) and the BFD process’s kindred interpretation of that
provision.” Id. at 444, 450-51 (explaining, inter alia, that pursuant to the USCIS policy manual,
“USCIS first determines whether a pending petition is bona fide[, and only then] . . . in its
discretion, determines whether the petitioner poses a risk to national security or public safety,
and otherwise merits a favorable exercise of discretion” (emphasis in original), then citing
Aragon v. United States, 146 F.3d 819, 824 (10th Cir. 1998), for the proposition that an agency
manual intended to be mandatory can carry the force of law). Moreover, Defendants have not
cited, nor has this court uncovered, any provision under which Congress has specified that the
USCIS has discretion to indefinitely delay adjudicating U visa petitions. Rather, the court notes
that even Butanda, a case that, as discussed below, Defendants rely upon heavily here,
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acknowledges that USCIS is required to eventually conclude its review of such matters. Butanda,
516 F. Supp. 3d at 1249 (agreeing with the plaintiff that USCIS is required to conclude
adjudication of U visa petitions, though finding that the court does not have the authority to tell
USCIS when to do so).
Additionally, the court notes that it is unable to infer discretion from the absence of a
statutory deadline; instead, Congress must have “state[d] explicitly or in detail” that discretion.
Kucana, 558 U.S. at 243 n.10 (quoting Webster’s New Collegiate Dictionary 1116 (1974));
Moreno v. Wolf, 558 F. Supp. 3d 1357, 1364 (N.D. Ga. 2021). Indeed, while USCIS may
promulgate regulations regarding certain aspects of the U visa program, see 8 U.S.C. §
1184(a)(1), that authority does not amount to “unfettered discretion . . . [to] simply not adjudicate
a [U visa] petition.” Pulido v. Cuccinelli, 497 F. Supp. 3d 79, 89 (D.S.C. 2020); Moreno, 558 F.
Supp. 3d at 1364 (same).
And relatedly, as Plaintiffs note, the Supreme Court has emphasized that “[e]xecutive
determinations generally are subject to judicial review” and courts should only decline to provide
judicial review when there is “clear and convincing evidence” that Congress intended to preclude
review in a particular circumstance. Kucana, 558 U.S. at 251-52; cf., e.g., Saini v. USCIS, 553 F.
Supp. 2d 1170, 1174 (E.D. Cal. 2008) (“To the extent that § 1252(a)(2)(B) creates an exception
to judicial review, such exception must be narrowly construed.”). Here, there is no such clear and
convincing evidence. And even if there was such evidence reflecting that Congress clearly
intended to preclude judicial review of BFDs or WLDs for U visa applicants—and this court
does not find that Congress intended as much—there would still be little or no indication that
Congress intended to preclude judicial review of the timeline for conducting such review. See,
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e.g., Moreno, 558 F. Supp. 3d at 1365 (reaching an identical conclusion).
Following on this last point, “[t]he plain language of [§ 1252] addresses ‘decision or
action’ on immigrant matters, not inaction, which is the subject of [this] Complaint.” Fu v.
Gonzalez, No. 07-0207-EDL, 2007 WL 1742376, at *4 (N.D. Cal. 2007). While Defendants
argue that BFDs “are not independently reviewable decisions and cannot be reviewed,” even
assuming this is correct, this does not explain why the court could not compel Defendants to
reach a WLD or BFD so long as the court does not compel Defendants to reach a particular
determination. Defendants provide little insight into their stance on this issue in raising this
argument, merely stating that § 1252 precludes review of all decision-making derived from §
1184(p)(6) as “discretionary.” But even if such relief is discretionary, this does not mean that the
pace of adjudication of U visa applications is discretionary.
And finally, although Defendants argue that they have no mandate to conduct full
eligibility review for Plaintiffs and that therefore, the court cannot provide Plaintiffs with the
relief they seek because it is within Defendants’ discretion to adjudicate Plaintiffs’ WLD or BFD
on whatever timeline they see fit, even assuming Defendants were correct that they have no such
mandate—and for the reasons stated above, this court disagrees—this conclusion would not
necessarily follow. The court finds that adjudication would nonetheless have to occur within a
reasonable time because “a contrary position would permit the USCIS to delay indefinitely, a
result Congress could not have intended.” Saini, 553 F. Supp. 2d at 1176 (citation modified); see
Moreno, 558 F. Supp. 3d at 1365; Razaq v. Poulos, No. 06-2461-WDB, 2007 WL 61884, at *3
(N.D. Cal. 2007) (the “‘duty to decide’ becomes no duty at all if it is accompanied by unchecked
power to decide when to decide”); Dong v. Chertoff, 513 F. Supp. 2d 1158, 1165 (N.D. Cal.
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2007) (“While the ultimate decision to grant or deny an application for adjustment of status is
unquestionably discretionary, there exists a non-discretionary duty to act on and process the
application.”).
The reasoning set forth above permits this court to conclude that the court has jurisdiction
to hear Plaintiffs’ claims. Nonetheless, Defendants argue that the “pace of processing” of
Plaintiffs’ petitions is within the scope of 1252’s jurisdictional bar because a court within this
District, as well as certain other federal courts, have ruled as much. In making this argument,
Defendants rely heavily on Butanda, noting that Plaintiffs fail to address this ruling in
responding to Defendants. In light of Defendants’ heavy reliance on Butanda, this court is
obliged to discuss it at length here. With enormous regard for her judicial colleague, the
undersigned explains her respectful disagreement with the Butanda court on several points.
In Butanda, the court dealt separately with the issues of whether the plaintiff was entitled
to a waitlist determination and whether the plaintiff was entitled to a determination regarding
employment authorization, concluding that the court did not have jurisdiction to consider either.
Examining Butanda, this court respectfully reaches a different conclusion both for the reasons
stated above and for several additional reasons.
First, in Butanda, the court apparently reached its decision in part because the plaintiff
failed to cite pertinent case law in presenting her case. The court specifically noted that the
plaintiff had not provided the court with any citations to cases that discussed the jurisdictional
bar in § 1252(a)(2)(B)(ii); the court apparently (and understandably) declined to conduct its own
search for such cases and ultimately found that the plaintiff’s citations to cases not discussing
this jurisdictional bar were unpersuasive. 516 F. Supp. 3d at 1249. In contrast to the plaintiff in
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Butanda, here, Plaintiffs have cited multiple cases that discuss this jurisdictional bar; moreover,
through its own research, the court has made itself aware of additional cases that both discuss the
jurisdictional bar in detail and favor Plaintiffs’ position. Due to the plaintiff’s apparent lack of
preparation, the court in Butanda does not examine many of the points the court raises above in
concluding that it has jurisdiction here.
Next, the court notes that the Butanda court, despite finding that § 1252(a)(2)(B)(ii)
precluded the court’s jurisdiction over the plaintiff’s claims, did not squarely address the issue of
whether inaction on U visa petitions can constitute “action” for the purposes of that section’s
jurisdictional bar, instead merely stating that the terms “decision” and “action” necessarily
encompass “any act or series of acts” that is discretionary within the process of reviewing a U
visa application, and then concluding that “absent a Congressional mandate to act within a
certain period, the timeframe for deciding a U-Visa application is one of those discretionary acts
within the ambit of Section 1252.” Butanda, 516 F. Supp. 3d at 1249. In other words, the
Butanda court does not directly discuss how lack of action on Plaintiffs’ petitions could properly
be construed as “action” or even “any act or series of acts.” See, e.g., Fu, 2007 WL 1742376, at
*4 (ruling in favor of plaintiffs under similar circumstances).
With regard to the concept that adjudication must occur within a reasonable time because
a contrary position would permit Defendants to delay indefinitely and “Congress could not have
intended” such a result, Saini, 553 F. Supp. 2d at 1176, the Butanda court acknowledges that
USCIS is required to conclude review of the applications, but nevertheless finds with minimal
elaboration that “the court has [nonetheless] been divested of the authority to tell USCIS when it
must do so.” 516 F. Supp. 3d at 1249. And although the Butanda court does note that “Congress
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knows how to, and often does, prescribe timelines for nonimmigrant admission when it wants
to,” id., this court notes that the lack of a specific timeline being provided does not necessarily
lead to the conclusion that no timeline should apply here, and does not necessarily preclude the
court from applying a reasonableness standard to the timeline for adjudication here, particularly
in what Defendants acknowledge is a highly factually dependent context. See Motion at 18. For
these reasons, in considering this specific issue, this court is respectfully unpersuaded by
Butanda’s analysis.
Butanda also cites Gonzalez, 985 F.3d 357, as a “persuasive” decision and discusses the
case at some length, as Defendants approvingly note in their Motion. However, in Gonzalez, the
Fourth Circuit held that the plaintiffs’ claim that “the agency has ‘unreasonably delayed’
adjudicating Plaintiffs’ petition for a U visa to determine whether they should be placed on the
waiting list” was “reviewable,” noting that “Congress mandated that the agency pass
implementing regulations for the U-Visa program, which it did,” and that “the agency has
committed itself by regulation to place eligible applicants on the waiting list.” Id. at 375, 375
n.10. The Butanda court differentiates itself from Gonzalez in this respect by stating that the
Fourth Circuit in Gonzalez “based its holding on the fact that Congress mandated that the agency
pass implementing regulations of the U-Visa program and that the agency committed itself in
those regulations to place U-Visa applicants whose applications were denied based ‘due solely
to’ the 10,000-visa cap.” Butanda, 516 F. Supp. 3d at 1251 n.2. The Butanda court then states
that this holding from Gonzalez was “not applicable” to Butanda because the plaintiff hadn’t
“allege[d] that she has been denied solely because of the cap” and instead “alleges that USCIS
hasn’t yet considered her application whatsoever.” Id. This court respectfully disagrees that this
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is a relevant distinction, and in fact, does not believe it is a distinction at all; the plaintiffs in
Gonzalez do not appear to have based their claims upon the cap and seemingly had not yet had
their applications considered either. See Gonzalez, 985 F.3d at 360 (plaintiffs “allege that the
Department of Homeland Security has unlawfully withheld or unreasonably delayed adjudication
of their U-Visa petitions”).
And the court also respectfully finds that Gonzalez is flawed in its interpretation of the
BFD framework. The court recognizes that the Gonzalez plaintiffs had apparently not requested a
BFD determination, as no such request is mentioned. However, the Fourth Circuit held in
Gonzalez that the court lacked jurisdiction over the plaintiffs’ employment authorization-related
claims because “the agency was not required to adjudicate their requests for work authorization”
and “nothing in § 1184(p)(6) requires the agency to do anything” because “the Secretary has
discretion to grant work authorizations.” Gonzalez, 985 F.3d at 366-67. However, as explained
above, this court joins other federal courts, including the Sixth Circuit, in recognizing that the
Gonzalez court made an error in interpreting § 1184(p)(6). While Gonzalez states that “[t]he term
‘pending, bona fide application’ merely sets forth a prerequisite that the agency must satisfy if it
chooses, in its discretion, to conduct an adjudication,” 985 F.3d at 371, this court agrees with the
now seemingly well-established, more natural interpretation elucidated by other courts: “the
Fourth Circuit [in Gonzalez] reads § 1184(p)(6) front to back . . . whereas we read § 1184(p)(6)
back to front—i.e., USCIS must determine whether a U-visa application is pending and bona fide
before the agency ‘may’ grant work authorization to the petitioner.” Barrios Garcia, 25 F.4th at
444 (clarifying that the USCIS Policy Manual sets forth the same interpretation). Accordingly,
the court finds much of the analysis in Gonzalez to rest upon a fundamentally flawed premise.
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Other, more minor points and citations mentioned by Defendants do not succeed in
changing this court’s views regarding jurisdiction either. For instance, the court notes that
amongst multiple cases cited without qualification by Defendants, the courts clearly would have
found against Defendants on the WLD issue. See Gonzalez, 985 F.3d at 374 n.10; Patel, 788 F.
Supp. 3d at 956 (concluding of WLDs that because Congress mandated that USCIS pass
implementing regulations for the U-Visa program, “in the absence of a statutory grant of
discretion in this context, these regulations are sufficient to empower courts to entertain claims of
unreasonable delay”).2 Moreover, as stated above, the court notes that the BFD issue was
apparently not before the court in Gonzalez. And Patel only provides a cursory examination of
2 Yet another case cited by Defendants, Sonani v. Dir., U.S. Citizenship & Immigr. Servs., No. 25-
cv-68, 2025 WL 1489563, at *6 (D. Neb. May 23, 2025), did not provide its own analysis of the
issue of whether inaction on the petitions could constitute “action,” instead resting its analysis
entirely on the analysis provided in Rico v. Dir., U.S. Citizenship & Immigr. Servs., No. 25-cv-
119, 2025 WL 1192465 (D. Neb. Apr. 23, 2025), which in turn rested its own analysis on the idea
that Thigulla v. Jaddou, 94 F.4th 770 (8th Cir. 2024), “applied § 1252(a)(2)(B)(ii) to
discretionary decisions about the decision-making process, not just the result.” Beyond not being
binding upon this court, the analysis provided in these cases is not compelling here; among other
potential issues, Thigulla was decided in a very different context; it does not directly address
why the decision to delay adjudication on the petitions at issue could be considered “action”
either, and the defendants in Thigulla apparently made an active decision to delay action on the
petitions to a specific date rather than simply failing to address the petitions entirely. And Rico
did not separately discuss BFD issues and work authorization issues, instead addressing these
issues in tandem. Cf., e.g., Rico, 2025 WL 1192465, at *1 (plaintiff “asks the Court to order
USCIS to . . . [determine] both whether the plaintiff has filed a ‘bona fide’ U-visa petition and
whether to issue employment authorization documents”). As alluded to above, there are vital
distinctions between these issues. Moreover, the court notes that confusingly, in commencing its
analysis, Sonani suggests the court will ultimately rule that “[b]ecause Plaintiff only seeks a
decision on their BFD, not the work authorization associated with the BFD, USCIS[’s] motion to
dismiss is inapposite and should be denied.” Sonani, 2025 WL 1489563, at *2. However, the
court reaches an entirely different conclusion in its subsequent analysis. For each of these
reasons, the court does not find the analysis provided in Sonani to be compelling.
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the BFD timing issue, merely noting that the term “bona fide” is “nowhere defined in the
statutory scheme” and apparently presuming that this supposed lack of definitional clarity grants
USCIS full discretion over the timing of BFDs. See 788 F. Supp. 3d at 955. This court disagrees
for the same reasons stated in Barrios Garcia, amongst others: while USCIS “may” grant work
authorization to a petitioner pursuant to § 1184(p)(6), thereby giving USCIS discretion to do so,
this discretionary language does not apply to the predicate BFD that USCIS first undertakes.
Barrios Garcia, 25 F.4th at 444. The court also does not find that any lack of clarity as to the
meaning of the term “bona fide” in this context goes to the issue of timing; accordingly, the court
does not agree with Patel’s implication that lack of clarity as to the precise definition of “bona
fide” somehow provides “clear and convincing evidence” that Congress intended to preclude
review of the timing of a BFD as specified to be within USCIS’s discretion. See Kucana, 558
U.S. at 252. Finally, although Defendants criticize Plaintiffs for failing to directly address
Butanda in their Response, Defendants similarly “make no mention of the numerous other
district courts that have come to the opposite conclusion [as Defendants]—that 1252(a)(2)(B)(ii)
does not preclude review of such claims.” Ayala, 781 F. Supp. 3d at 1203 (collecting cases). For
the reasons set forth above, the court finds the reasoning set forth in cases such as Ayala to be
more compelling than the reasoning set forth in the cases cited by Defendants.
For each of these reasons, and also for the reasons stated above, after evaluating the cases
provided by the parties and conducting its own research into the issue, this court concludes that
the cases holding that the court’s review of the BFD and WLD issues is not precluded here are
more persuasive.
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E. Failure to State a Claim
The court next turns to Defendants’ sole argument for dismissal for failure to state a
claim: that Plaintiffs’ alleged wait times are not unreasonable as a matter of law. Plaintiffs argue
in response that it is de facto unreasonable to determine whether their wait times are
unreasonable at this stage of proceedings.
The court agrees with Plaintiffs that it would be premature to dispose of Plaintiffs’ claims
at this stage for this reason. The court notes that even cases cited by Defendants acknowledge
that “[a] claim of unreasonable delay is necessarily fact dependent and thus sits uncomfortably at
the motion to dismiss stage and should not typically be resolved at that stage.” Gonzalez, 985
F.3d at 375. The court agrees. And Defendants have provided no compelling argument that might
cause the court to vary from this principle. The court accordingly declines to dispose of
Plaintiffs’ fact-dependent unreasonable delay claims at this stage of proceedings.
Moreover, even if this court were to evaluate Plaintiffs’ claim with reference to the
factors set forth in Telecomm. Res. & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”),
as Defendants request, the court would conclude that Plaintiffs’ claims should proceed. These
factors include (1) the time agencies take to make decisions must be governed by a rule of
reason; (2) where Congress has provided a timetable or other indication of the speed with which
it expects the agency to proceed in the enabling statute, that statutory scheme may supply content
for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation
are less tolerable when human health and welfare are at stake; (4) the court should consider the
effect of expediting delayed action on agency activities of a higher or competing priority; (5) the
court should also take into account the nature and extent of the interests prejudiced by delay; and
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(6) the court need not find any impropriety lurking behind agency lassitude in order to hold that
agency action is unreasonably delayed. Id. at 80. At this time, despite Defendants noting that
“USCIS prioritizes all petitions for final adjudication in the order they were received to maintain
fairness,” Motion at 4, the court finds that in other respects it does “not know enough about how
the agency implements its rules and exceptions” and that the third and fifth factors heavily favor
Plaintiffs because “Plaintiffs have pled sufficient facts to show that their interests are weighty,
implicate health and welfare, and are harmed by the long wait.” Gonzalez, 985 F.3d at 375; see
also, e.g., Barrios Garcia, 25 F.4th at 452 (noting various harms shared by Plaintiffs in the
present matter and stating that “[b]ased on these factual allegations [of harms suffered] alone, we
hold that all Plaintiffs have sufficiently alleged that USCIS has unreasonably delayed deciding
whether to place principal petitioners on the U-visa waitlist”). Accordingly, the court would
conclude based on conducting a TRAC analysis that Plaintiffs’ claims should proceed.
F. 	Eligibility for Mandamus Relief
Finally, as codified in 28 U.S.C. § 1361, district courts have “original jurisdiction of any
action in the nature of mandamus to compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff.” Mandamus is a drastic remedy “to be
invoked only in extraordinary situations,” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34
(1980), and it is not available when review by other means is possible. Kerr v. U.S. Dist. Ct. for
N. Dist. of California, 426 U.S. 394, 403 (1976). “To be eligible for mandamus relief, the
petitioner must establish (1) that he has a clear right to relief, (2) that the respondent’s duty to
perform the act in question is plainly defined and peremptory, and (3) that he has no other
adequate remedy.” Rios v. Ziglar, 398 F.3d 1201, 1206 (10th Cir. 2005) (citation omitted).
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Plaintiffs request mandamus relief in the alternative under Count Two and have at least
arguably shown that they meet prongs (1) and (2) of the test. However, as the court concludes
above, the remedy provided by § 706(1) is an adequate one available to Plaintiffs that,
accordingly, precludes mandamus relief. Mt. Emmons Min. Co. v. Babbitt, 117 F.3d 1167, 1170
(10th Cir. 1997); see also, e.g., Bustos v. Mayorkas, No. 20-cv-1348-KG-SMV, 2021 WL
3931173, at *8 (D.N.M. Sept. 2, 2021). For this reason, the Court dismisses Count Two.
CONCLUSION
For the foregoing reasons, this court ORDERS that the Motion be GRANTED IN
PART and DENIED IN PART. All Plaintiffs whose applications Defendants have already
determined are neither bona fide nor eligible for the waitlist are dismissed from this action
without prejudice due to the court finding their claims to be moot. Plaintiffs’ request for this
court to order Defendants to adjudicate employment authorization determinations, or EADs, is
denied without prejudice for lack of jurisdiction. Court Two, Plaintiffs’ request for mandamus
relief, is dismissed due to the availability of another adequate remedy. In all other respects, the
Motion is denied.
DATED: March 30, 2026 	BY THE COURT:
______________________________
Susan Prose
United States Magistrate Judge
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