Case: B.L.R v. U.S. Department of Homeland Security

This is a case about undocumented noncitizens who seek “U visas” as a result of surviving serious crimes that occurred in the United States and the U.S. Citizenship and Immigration Services’ allegedly unreasonable delay in providing them visas.

On December 19, 2023 (amended on February 9, 2024), a group of 10 undocumented noncitizens filed this lawsuit in United States District Court for the Eastern District of Michigan. The plaintiffs brought this suit against the U.S. Department of Homeland Security (DHS), the Secretary of Homeland Security in his official capacity, U.S. Citizenship and Immigration Services (USCIS), and the Director of USCIS in his official capacity. The group seeks Class certification, declaratory and injunctive relief, and attorney’s fees under the Immigration and Nationality Act (INA), 8 U.S.C. § 1184, and the Administrative Procedure Act (APA), 5 U.S.C. § 706. The plaintiffs sought a court order declaring the defendants’ delay in adjudicating their visa petitions to be unreasonable and compelling the defendants to provide a bona fide determination adjudication within 180 days. The plaintiffs were represented by the National Immigrant Justice Center and the Michigan Immigrant Rights Center. The case is assigned to Judge McMillion.

The case arose after the plaintiffs submitted for “U visas” which Congress authorized in 2000 for noncitizen victims of certain crimes. These visas are available to noncitizens if they report those crimes to law enforcement and cooperate in the investigation or prosecution of the crimes. However, USCIS, the agency responsible for adjudicating the visa petitions, did not implement the visa until 2007. In 2008, Congress made individuals with a pending U visa petition eligible for work authorization. Since then there have been lengthy waiting list periods for individuals seeking a visa; the wait time reached four and a half years in 2021.

On April 12, 2024, the defendants filed a motion to dismiss the complaint. They argued, first, that the court lacked subject matter jurisdiction over the claims under the Supreme Court’s decision in Patel v. Garland, 596 U.S. 328 (2022). In Patel the Court held that under the INA § 1252 courts were barred from reviewing not only an agency’s final act of discretion, but the predicate determinations underlying that discretionary decision. The defendants also argued that the plaintiffs lack standing because their asserted injuries, the lack of work authorization or deferred action, are not redressable because the court cannot grant the relief. Finally, the defendants argued that two of the plaintiffs failed to allege an injury to establish standing because there is no clear and impending end to Deferred Action for Childhood Arrivals (DACA).

On September 30, 2024, the court granted the defendants’ motion to dismiss. The court held that they were not statutorily barred from hearing the case under Patel because the Sixth Circuit in Barrios Garcia v. United States Dep’t of Homeland Security, 25 F.4th 430 (6th Cir. 2022) held that § 1252 of the INA does not prevent federal courts from reviewing claims USCIS had unreasonably delayed in adjudicating. Nonetheless, the court found that two of the plaintiffs lacked an injury in fact sufficient to establish standing and the remaining plaintiffs injuries could not be redressed. Thus, the court dismissed the plaintiffs’ complaint and denied their motion to certify class as moot.

On October 25, 2024, the plaintiffs filed a motion to alter or amend judgment. In their motion the plaintiffs alleged that the court erred in concluding their claims were not redressable because the plaintiffs lacked standing. 

On January 2, 2025, the court granted the plaintiffs’ motion to alter or amend judgment. The court found that it did not err in granting the defendants’ motion to dismiss for lack of standing. However, the plaintiffs were not requesting the court compel the defendants to issue work authorizations, but instead request the court to compel the defendants take the prerequisite step of making a “bona fide determination” for their work authorizations to be processed. This bona fide determination is the first part of a two-step process, and while the second step concerns processing the work authorization request which the court cannot compel, the court can compel the agency to make the first step of the process due to unreasonable delay. The court ordered the defendants’ motion to dismiss stricken and denied; set aside the corresponding judgment; and ordered the defendants to file an answer on or before January 23, 2025.

On January 23, 2025, DHS and USCIS filed their answer. The court scheduled a telephonic scheduling conference for March 6, 2025, and ordered the parties to submit a discovery plan by February 27, 2025. The parties exchanged multiple motions between April and July 2025, including extensions of time to file responses and replies, attorney withdrawals and new appearances, and additional motion filings. As of July 2025, the case remains active before Judge McMillion, with discovery and briefing ongoing.