Background
More than 150 U-visa petitioners living in the United States sued USCIS over delays and the absence of advance parole while their petitions remained pending because of the annual statutory cap. Some plaintiffs had been placed on the U-visa waiting list, while most had received favorable bona fide determinations. All had received deferred action and employment authorization, but none had received advance parole allowing departure from and return to the United States.
The plaintiffs brought three Administrative Procedure Act claims. The bona-fide-determination plaintiffs alleged that USCIS unlawfully withheld or unreasonably delayed considering them for the waiting list. All plaintiffs challenged USCIS’s alleged withholding or delay of advance parole, and the waitlisted plaintiffs separately alleged that USCIS arbitrarily and capriciously denied them parole. The district court dismissed the parole claims and later granted USCIS summary judgment on the remaining waitlist claim for lack of standing.
The Court’s Holding
The Ninth Circuit held that 8 C.F.R. § 214.14(d)(2), which states that USCIS “will grant deferred action or parole” to qualifying waitlisted petitioners, does not require USCIS to grant both forms of relief. Because USCIS had granted deferred action to the domestic waitlisted plaintiffs, granting them advance parole remained discretionary. Although those plaintiffs had Article III standing and their challenge was ripe, the APA did not authorize a court to compel that discretionary relief. Their arbitrary-and-capricious claim also failed because they presented no evidence that they had requested parole and received a final agency denial.
The court agreed that the bona-fide-determination plaintiffs could not establish injury based on a lost parole opportunity because the undisputed evidence showed that waitlist placement would not give domestic petitioners an additional route to parole. But the district court failed to address their other asserted injuries, including delayed full eligibility adjudications, accrual of unlawful presence, and the comparative instability of benefits created only by agency policy. The panel therefore affirmed in part, reversed in part, and remanded for consideration of those alternative standing theories and, if necessary, the merits of the waitlist claim.
Key Takeaways
- USCIS may satisfy 8 C.F.R. § 214.14(d)(2) by granting deferred action rather than parole to a domestic petitioner on the U-visa waiting list.
- APA § 706(1) does not permit a court to compel USCIS to provide advance parole when that relief is discretionary.
- The bona-fide-determination plaintiffs’ waitlist claim survives only for the district court to assess their alternative injury theories and, if standing exists, the claim’s merits.
Why It Matters
The decision forecloses the theory that placement on the U-visa waiting list automatically entitles a domestic petitioner who received deferred action to advance parole or even to court-compelled consideration for that relief. It also underscores that an APA challenge to a parole denial requires identifiable final agency action.
The ruling nevertheless leaves open whether USCIS’s practice of generally withholding waitlist adjudications from petitioners with favorable bona fide determinations causes other concrete injuries sufficient for Article III standing. Judge Bea, concurring in part and dissenting in part, would have dismissed that claim because he concluded that no statute or regulation unequivocally requires USCIS to conduct a waitlist adjudication for every pending U-visa petition.