Solanki v. Jaddou

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
U.K. SOLANKI, 	§
Plaintiff, 	§
§
v. 	§ 	CIVIL A CTION N O. 4:25-cv-02996
§
J OSEPH B. E DLOW ,1 	§
D IRECTOR OF U.S. CITIZENSHIP AND 	§
I MMIGRATION SERVICES 	§
Defendant. 	§
MEMORANDUM AND RECOMMENDATION
Before the Court is Defendant’s Motion to Dismiss.2 ECF 16. 	Defendant
seeks dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).3
For the reasons outlined below, the Court RECOMMENDS that Defendant’s Motion
(ECF 	16) 	be 	GRANTED 	and 	Plaintiff’s 	claims 	DISMISSED 	WITHOUT
PREJUDICE.
1 Joseph B. Edlow is automatically substituted for his predecessor, Ur M. Jaddou. Fed. R. Civ. P.
25(d).
2 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act,
and Federal Rule of Civil Procedure 72. ECF 5.
3 Because the Court determines that it lacks subject matter jurisdiction over the claims, the Court
does not reach the motion under Rule 12(b)(6). See Randall D. Wolcott, M.D., P.A. v. Sebelius,
635 F.3d 757, 762 (5th Cir. 2011) (explaining that where a Rule 12(b)(1) motion is filed in
conjunction with other Rule 12 motions, the Court should consider the jurisdictional attack first).
United States District Court
Southern District of Texas
ENTERED
June 01, 2026
Nathan Ochsner, Clerk
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I. 	Factual and Procedural Background.
The Immigration and Nationality Act (“INA”) governs the admission of
noncitizens into the United States. 8 U.S.C. § 1101 et seq. The INA authorizes the
U.S. Department of Homeland Security (“DHS”) to issue U nonimmigrant status
(“U visa”) to noncitizen victims of qualifying crimes who cooperate with law
enforcement. 8 U.S.C. §§ 1101(a)(15)(U), 1184(p). See also Victims of Trafficking
and Violence Act of 2000, Pub. L. No. 106-386, § 1513(a)(2)(A), 114 Stat. 1464,
1533 (explaining the purpose of the visa is to “strengthen the ability of law
enforcement to detect, investigate, and prosecute” certain crimes committed against
aliens). 	The United States Citizenship and Immigration Services (“USCIS”) has
exclusive jurisdiction over the adjudication of U visa petitions. 	8 C.F.R. §
214.14(c)(1).
The INA caps the number of U visas that can be granted each year at 10,000.
8 U.S.C. § 1184(p)(2)(A). This cap is routinely reached. See Vimal S. P. v. Garland,
No. 4:24-CV-04002, 2025 WL 2774400, at *1 n.1 (S.D. Tex. Sept. 26, 2025) (citing
DHS data for years for previous 15 years). 	To address this backlog, USCIS
administers two processes: the waitlist and Bona Fide Determination (“BFD”).
Hernandez v. Jaddou, No. 4:24-CV-00453, 2025 WL 819657, at *1 (S.D. Tex. Mar.
6, 2025). 	The waitlist consists of eligible petitioners who have not been granted
their U visa solely because of the cap. 8 C.F.R. § 214.14(d)(2). Individuals placed
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on the waitlist will be granted deferred action and are eligible for employment
authorization. 	Id. 	Under the BFD process, USCIS reviews a petition to determine
if it is bona fide, and if so, the petitioner may receive work authorization and deferred
action. 	8 U.S.C. § 1184(p)(6); Vimal, 2025 WL 2774400, at *2. 	If a petitioner
receives BFD approval, he or she is not placed on the waitlist. Id. If the petitioner
does not receive BFD approval, USCIS will determine the petitioner’s waitlist
eligibility. 	Hernandez, 2025 WL 819657, at *1. 	Whether on the waitlist or with
BFD approval, petitioners await a final adjudication of their U visa. Id.
Plaintiff alleges he is an Indian national residing in Fort Bend County, Texas.
ECF 1 ¶¶ 8, 14. 	Plaintiff further alleges that he was the victim of “Intoxicated
Manslaughter” in Palacios, Texas on March 17, 2024. Id. ¶ 15. Plaintiff claims he
filed an I-918, Petition for U Nonimmigrant Status, and an I-765, Application for
Employment Authorization, in December 2024. 	Id. ¶¶ 16-17. Plaintiff claims that
USCIS has taken no action on his petition and application. Id. ¶ 21.
Plaintiff, proceeding pro se, filed his Complaint in June 2025. 	ECF 1.
Plaintiff brings claims under the Administrative Procedure Act (“APA”) (5 U.S.C.
§ 706(1)) seeking to compel USCIS action on his BFD and work authorization due
to an unreasonable delay. 	ECF 1 ¶¶ 28, 103-104. 	Defendant filed a Motion to
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Dismiss on February 13, 2026. ECF 16. Plaintiff did not respond.4 The Motion is
ripe for adjudication.
II. 	Legal Standards.
When subject matter jurisdiction is challenged, the court “is free to weigh the
evidence and resolve factual disputes in order to satisfy itself that it has power to
hear the case.” Montez v. Dep’t of the Navy, 392 F.3d 147, 149 (5th Cir. 2004); Krim
v. Pcorder.com, 402 F.3d 489, 494 (5th Cir. 2005). The Court may consider any of
the following in resolving a Rule 12(b)(1) motion: (1) the complaint alone; (2) the
complaint supplemented by the undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court's resolution of disputed
facts. Hopkins v. Wayside Schs., No. 23-50600, 2024 WL 3738478, at *4 (5th Cir.
Aug. 9, 2024); Schaeffler v. United States, 889 F.3d 238, 242 (5th Cir. 2018). When
a Defendant files a motion under Rule 12(b)(1), the plaintiff bears the burden of
establishing subject matter jurisdiction. Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d
380, 388 (5th Cir. 2014). If the plaintiff fails to meet his burden, the case must be
dismissed. Id.
4 Under Local Rules for the Southern District of Texas, the Court may construe Plaintiff’s failure
to respond as an indication the motion is unopposed. LOC . R. S.D. TEX. 7.4. 	However, it is not
appropriate to grant a dispositive motion, such as a motion to dismiss, solely on that basis. Marbley
v. Teamster Loc. 988, No. 4:22-CV-3396, 2023 WL 4713825, at *3 (S.D. Tex. July 24, 2023)
(citing John v. Louisiana, 757 F.2d 698, 707–09 (5th Cir. 1986) and Servicios Azucareros de
Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir. 2012)), aff'd, No. 23-
20360, 2024 WL 94307 (5th Cir. Jan. 9, 2024).
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III. 	Analysis.
A. The Court lacks subject matter jurisdiction.
The 	APA 	grants 	federal 	courts 	jurisdiction 	to 	“compel 	agency 	action
unlawfully withheld or unreasonably delayed” (5 U.S.C. § 706(1)), but the APA does
not apply where another statute precludes judicial review or the agency action is
discretionary by law. 	Id. § 701(a). The INA specifically precludes judicial review
of
any other decision or action of the Attorney General or the Secretary of
Homeland Security the authority for which is specified under this
subchapter [governing immigration] to be in the discretion of the
Attorney General or the Secretary of Homeland Security, other than the
granting of relief under section 1158(a) [regarding asylum] of this title.
8 U.S.C. § 1252(a)(2)(B)(ii).5 Therefore, whether an agency action is mandatory or
discretionary implicates the Court’s jurisdiction in the immigration context. Vimal,
2025 WL 2774400, at *4 (citing Bouarfa v. Mayorkas, 604 U.S. 6, 10-11 (2024)).
1. 	The Court lacks subject matter jurisdiction over the work
authorization decision because it is discretionary.
The INA provides the “Secretary may grant work authorization to any alien
who has a pending, bona fide application” for U nonimmigrant status. 	8 U.S.C. §
1184(p)(6) (emphasis added). 	Settled law holds that the word “‘may’ clearly
connotes discretion.” Bouarfa, 604 U.S. at 13 (2024) (cleaned up, emphasis in
5 The APA also does not apply to “agency action . . . committed to agency discretion by law.” 5
U.S.C. § 701(a)(2).
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original). 	Therefore, the Court lacks jurisdiction to review the work authorization
decision because it is purely discretionary. 	See Vimal, 2025 WL 2774400, at *4
(holding the decision to issue a work permit to a U visa applicant is discretionary,
so the court lacks subject matter jurisdiction to review it under the APA); D’Cruz v.
U.S. Citizenship & Immigr. Servs., No. CV H-24-340, 2024 WL 4523307, at *4
(S.D. Tex. Oct. 9, 2024); Lopez v. Jaddou, No. 4:24-CV-2128, 2025 WL 3251626,
at *5 (S.D. Tex. Nov. 21, 2025).
2. The Court lacks subject matter jurisdiction over the BFD
decision because it is discretionary.
Section 1252(a)(2)(B)(ii)’s preclusion of jurisdiction applies not only to
specified discretionary actions, but also to any policy that is a practical application
of the discretion afforded to the Attorney General or the DHS Secretary. In Patel v.
Garland, the Supreme Court analyzed one part of the INA’s jurisdiction stripping
provision, which precludes jurisdiction over judgments granting particular forms of
relief. Patel v. Garland, 596 U.S. 328, 338-39 (2022). The Supreme Court held the
provision precluded judicial review of grants of relief “but also any judgment
relating to the granting of relief.” Id. at 339 (2022) (emphasis in original). The Fifth
Circuit applied Patel’s holding to the jurisdiction-stripping subsection at issue here,
section 1252(a)(2)(B)(ii). 	Cheejati v. Blinken, 106 F.4th 388 (5th Cir. 2024), cert.
denied, 145 S. Ct. 1126 394(2025). The Cheejati court concluded that, as in Patel,
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practical applications of the discretion specifically afforded to the Attorney General
or DHS Secretary are also precluded from review. Id. at 394.
Unlike work authorization for U visa petitioners, the INA does not specifically
mention the BFD process; instead, it is set forth in USCIS’ Policy Manual. 	Lopez,
2025 WL 3251626, at *5. See also U.S. CITIZENSHIP AND I MMIGR . SERVS., 3 POLICY
MANUAL 	PT. 	C 	CH. 	5, 	https://www.uscis.gov/policy-manual/volume-3-part-c-
chapter-5 (current as of May 8, 2026). 	A BFD decision results from a practical
application of USCIS’ discretion because it provides a necessary predicate to the
discretionary decision to issue work authorization to a U visa petitioner under §
1184(p)(6). Vimal, 2025 WL 2774400, at *4. See also 8 U.S.C. § 1184(p)(6) (“The
Secretary may grant work authorization to any alien who has a pending, bona fide
application for [U] nonimmigrant status” [emphasis added]). 	Because a BFD
decision requires application of USCIS discretion, the Court lacks jurisdiction under
the APA to review a BFD decision. 	See, e.g., Hernandez, 2025 WL 819657, at *5
(finding a BFD decision is a practical application of the Secretary’s discretionary
authority under section 1184(p)(6) and is therefore unreviewable); Lopez, 2025 WL
3251626, at *5; D’Cruz, 2024 WL 4523307, at *4.
IV. 	Conclusion and Recommendation.
For the reasons stated above, the Court RECOMMENDS that Defendant’s
Motion 	(ECF 	16) 	be 	GRANTED 	and 	Defendant’s 	claims 	be 	DISMISSED
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WITHOUT PREJUDICE for lack of subject matter jurisdiction. 	The Court also
RECOMMENDS that Defendant’s identical, redacted Motion to Dismiss (ECF 17)
be TERMINATED as moot.6
The 	Clerk 	of 	the 	Court 	shall 	send 	copies 	of 	the 	memorandum 	and
recommendation to the respective parties, who will then have fourteen days to file
written objections, pursuant to 28 U.S.C. § 636(b)(1)(C). 	Failure to file written
objections within the time period provided will bar an aggrieved party from attacking
the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on
other grounds.
6 The Court granted Defendant’s Motion (ECF 13) to file a motion to dismiss under seal. ECF 15.
The Order also required Defendant to file a redacted copy of the motion to dismiss on the public
docket. Id. at 2. Defendant filed an identical, redacted copy of the sealed Motion to Dismiss on
the public docket but labeled it as a separate motion to dismiss. ECF 17.
Christina A. Bryan
United States Magistrate Judge
Signed on June 01, 2026, at Houston, Texas.
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