Garcia v. United States Department of Homeland Security, No. 21-1037 (6th Cir. 2021)Annotate this Case
The noncitizens, victims of grave crimes, cooperated with law enforcement. They applied for U-visas, 8 U.S.C. 1103(a)(1), 1101(a)(15)(U), and authorization to work; two sought derivative U-visas and work authorization for some of their family members. They have waited years for USCIS to adjudicate their applications and remain unable to obtain lawful employment, to visit family members who live abroad, or to attain deferred-action status that would protect them from removal. They filed suit. While an appeal was pending, USCIS announced a new program for persons with pending U-visa applications: the “Bona Fide Determination Process.”
The Sixth Circuit held that the issuance of the Bona Fide Determination Process does not moot any part of the case. Federal courts are not precluded from reviewing claims that USCIS has unreasonably delayed placing principal petitioners on the U-visa waitlist. USCIS is required by 8 U.S.C. 1184(p)(6) and the Bona Fide Determination Process to decide whether a U-visa application is “bona fide” before the agency can exercise its discretion and decide whether principal petitioners and their qualifying family members may receive Bona Fide Determination Employment Authorization Documents, so 5 U.S.C. 706(1) permits the federal courts to hasten an unduly delayed “bona fide” determination.