Reported / Citable
Background
Noncitizen crime victims with pending U-visa petitions sued USCIS in Northern California. Because annual visa numbers are capped, some had been placed on a waiting list and others had received a bona fide determination, but none had received advance parole permitting departure with authorization to return.
The plaintiffs claimed USCIS unlawfully delayed waiting-list decisions and advance-parole consideration and arbitrarily denied parole. The district court rejected the claims, and the Ninth Circuit addressed whether the governing regulations impose a mandatory duty that a court can enforce under the Administrative Procedure Act.
The Court’s Holding
The panel held that parole for waitlisted U-visa petitioners is discretionary. Regulatory language saying USCIS will grant “deferred action or parole” while a petitioner is waitlisted does not require both benefits or create an entitlement to advance parole. Because the APA permits courts to compel only legally required agency action, the waitlisted plaintiffs could not force USCIS to grant or consider discretionary parole.
The court nevertheless remanded the bona-fide-determination plaintiffs’ waiting-list-delay claim. The district court had considered only their theory that waitlisting would improve parole access and failed to address alternative claimed injuries. Judge Bea dissented from the remand, reasoning that no law requires USCIS to adjudicate every pending petition for waiting-list eligibility.
Key Takeaways
- U-visa waiting-list status does not itself create a right to advance parole.
- An APA claim for agency inaction requires a discrete action that law actually commands.
- Standing and statutory reviewability are separate barriers; satisfying one does not establish the other.
- Alternative injury theories must be developed factually and addressed individually.
Why It Matters
California immigration practitioners should not advise waitlisted U-visa clients that the status guarantees travel permission. Departure without an independently granted document may carry serious consequences, and courts generally cannot compel USCIS to exercise parole discretion.
The limited remand leaves a possible path for bona-fide applicants challenging delayed waiting-list consideration, but only if they establish a concrete injury and identify a mandatory adjudicatory duty. The opinion makes careful pleading and client-specific evidence essential.