Garcia v. United States Department of Homeland Security, No. 21-1037 (6th Cir. 2022)
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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 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 to 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,” (BFDP).
The Sixth Circuit held that the BFDP did not moot any part of the case. Federal courts are not precluded from reviewing claims that USCIS unreasonably delayed placing principal petitioners on the U-visa waitlist. USCIS is required by 8 U.S.C. 1184(p)(6) and the BFDP to decide whether a U-visa application is “bona fide” before the agency can decide whether principal petitioners and 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 determination.
The court subsequently held that the plaintiffs pleaded sufficient facts that the delayed waitlist determinations have harmed their health and welfare. Plaintiffs should be permitted to amend their complaints should they wish to challenge any delayed “bona fide” determinations.
This opinion or order relates to an opinion or order originally issued on September 13, 2021.
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