Patel v. Jaddou ( 2024 )

United States Court of Appeals
For the First Circuit
No. 23-1813, 23-1828
MONISHA GUPTA, SWAPNIL VIJAY KUMAR GADKARI, NIKUNJ PATEL, ANUJA
PATEL,
Plaintiffs, Appellants,
v.
UR MENDOZA JADDOU, Director, United States Citizenship and
Immigration Services, ANTONY BLINKEN, Secretary, United States
Department of State,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Barron, Chief Judge,
Lipez and Kayatta, Circuit Judges.
Brad Banias, with whom Banias Law, LLC was on brief, for
appellants.
Alessandra Faso, Trial Attorney, Office of Immigration
Litigation, with whom Brian M. Boynton, Principal Deputy Assistant
Attorney General, Civil Division, William C. Peachey, Director,
Office of Immigration Litigation, Glenn M. Girdharry, Assistant
Director, Office of Immigration Litigation, and Aaron S.
Goldsmith, Senior Litigation Counsel, Office of Immigration
Litigation, were on brief, for appellees.
October 16, 2024
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BARRON, Chief Judge. This appeal concerns a lawsuit by
four noncitizens from India, most of whom have been lawfully
present and residing in this country for at least the last ten
years. Although the plaintiffs applied for permanent residency in
the United States more than four years ago, their applications
have not yet been adjudicated. In response, they filed these suits
in the United States District Court for the District of
Massachusetts under the Administrative Procedure Act ("APA"), 5
U.S.C. § 500 et seq. They allege unlawful withholding and
unreasonable delay of agency action. They name as defendants the
Director of the United States Citizenship and Immigration Services
("USCIS"), Ur Mendoza Jaddou, and the Secretary of the United
States Department of State ("DOS"), Antony Blinken. The District
Court dismissed these claims pursuant to Federal Rule of Civil
Procedure 12(b)(6), for failure to state a claim on which relief
may be granted, and Federal Rule of Civil Procedure 12(b)(1), for
want of subject-matter jurisdiction. We affirm based on the former
ground.
I.
To understand the issues at play on appeal, it helps to
understand the relevant statutory and regulatory landscape. After
describing this landscape in a rather detailed way and the many
aspects of it that bear on the processing of an application for
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permanent legal residency, we retrace the path from the filings of
these lawsuits to the appeals at hand.
A.
The two main statutory provisions at issue are 8 U.S.C.
§ 1255(a) and (b). Under the first provision, § 1255(a), a
noncitizen who, like each of the plaintiffs here, is lawfully
present in the United States and seeks legal permanent resident
status must (1) apply for "adjustment" of his status; (2) be
"eligible to receive an immigrant visa and . . . admissible to the
United States for permanent residence"; and (3) have an immigrant
visa "immediately available to him at the time his application is
filed." 8 U.S.C. § 1255(a) (emphasis added). If each of these
three statutory requirements is met, then § 1255(a) provides that
the Secretary of the U.S. Department of Homeland Security ("DHS")
"may" adjust the noncitizen's status to that of a legal permanent
resident "in his discretion and under such regulations as he may
prescribe." Id.1
Under the second provision, § 1255(b), the approval by
the DHS Secretary of an application for adjustment triggers two
additional processes. First, the DHS Secretary is directed to
1 As enacted, the Immigration and Naturalization Act's text
vests the Attorney General of the United States with the authority
to adjust nonimmigrants' statuses, but Congress has since
transferred that authority to the Secretary of Homeland Security.
See 6 U.S.C. §§ 271(b)(5), 557; 1 USCIS, Policy Manual, pt. E, ch.
8, § B(3) n.39 (2024).
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"record the [noncitizen]'s lawful admission for permanent
residence as of the date" of approval. Second, the DOS Secretary
"shall reduce by one the number of the preference visas authorized
to be issued" to "the class to which the [noncitizen] is chargeable
for the fiscal year then current." 8 U.S.C. § 1255(b).
As § 1255(b) indicates, the total number of immigrant
visas that may be issued in each fiscal year is capped by statute.
In addition, the total number of "available" immigrant visas in
each fiscal year is allocated by statute among various categories
of eligible noncitizens. See 8 U.S.C. § 1151.
The type of immigrant visa that each of the plaintiffs
seeks is an "employment-based visa" ("EB visa"). Among EB visas,
there are five statutorily prescribed "preference categories." 8
U.S.C. § 1153(b). The category to which each of the plaintiffs
here claims to belong is the second preference category, which is
for "[p]rofessionals with advanced degrees or persons of
exceptional ability" ("EB2"). 22 C.F.R. § 42.32(b).
The path to obtaining an EB2 visa and becoming a legal
permanent resident is complicated. Generally, a noncitizen's
U.S.-based employer will first file a labor certification with,
and have that certification approved by, the U.S. Department of
Labor. See 20 C.F.R. § 656.10; see also 6 USCIS, Policy Manual,
pt. E, ch. 6, § A(1) (2024). Next, the employer or noncitizen
files a Form I-140 petition to USCIS. See 8 C.F.R. § 204.5(a),
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(c). For the final step -- the one at the heart of this
appeal -- the noncitizen, upon approval of her Form I-140 petition,
files a Form I-485 application to USCIS to adjust her status. See
generally 8 C.F.R. § 245. If the application is approved, USCIS
grants the applicant legal permanent residency and DOS allocates
an immigrant visa number from the applicable preference category
for the current fiscal year. 8 U.S.C. § 1255(b).
When a noncitizen files her Form I-485 application, she
is "placed in a queue with others in her category" because "demand
[for visas] regularly exceeds the supply" due to the applicable
statutory caps on issuance. Scialabba v. Cuellar de Osorio, 573
U.S. 41, 48 (2014) (plurality opinion) (describing the same issue
in the family-based immigrant visa context); see also 3 Gordon et
al., Immigration Law and Procedure § 39.01(2) (2024).
Applications for adjustment of status that are in the queue are
processed on a "first-come, first-served [basis] within each
preference category," and an applicant's place in the queue is
marked by her "priority date." Scialabba, 573 U.S. at 48
(plurality opinion); see 22 C.F.R. § 42.51(b). An applicant's
"priority date" is either the date on which the labor certification
was filed or, if no certification was filed, the date on which the
Form I-140 petition was filed. See 8 C.F.R. § 245.1(g)(2); 7
USCIS, Policy Manual, pt. A, ch. 6, § C(3) (2024).
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The Immigration and Naturalization Act ("INA")
authorizes DOS to make reasonable estimates of anticipated visa
issuance based on information provided by U.S. consular officers
and USCIS officers. See 8 U.S.C. § 1153(g); 22 C.F.R. § 42.51.
Pursuant to that authority, DOS maintains a "Visa Bulletin." The
Bulletin, which DOS publishes monthly, sets forth charts for
different types of visas. See Bureau of Consular Affs., U.S. Dep't
of State, Pub. No. 9514, Visa Bulletin: Immigrant Numbers for
September 2024 (2024), https://travel.state.gov/content/dam/visas
/Bulletins/visabulletin_September2024.pdf.
Each chart lists the relevant visa preference categories
in rows on the far-left side of the chart and the relevant foreign
state in columns at the very top of the chart. See id. The spaces
where the preference-category rows intersect with the
foreign-state columns are populated with specific dates.
When the Bulletin lists a date for a particular
preference category and foreign state, the date is "current"
and -- based on DOS's estimate -- a visa is "immediately available"
to applicants whose priority dates are either the same or earlier
than the listed "current" date. A visa is considered "immediately
available" when the agency or consular officer could issue an
immigrant visa to an applicant without exceeding the statutory
caps imposed by Congress in 8 U.S.C. §§ 1151, 1152, and 1153. See
Visa Availability and Priority Dates, USCIS (Apr. 29, 2020),
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https://www.uscis.gov/green-card/green-card-processes-and-
procedures/visa-availability-and-priority-dates.
Because dates are deemed to be "current" based on DOS's
estimates regarding visa supply and demand, the dates can vary
between Bulletins. 3 Gordon et al., Immigration Law and Procedure
§ 39.01(2) (2024). For example, a "current" date may move forward
(i.e., indicate that visas are "immediately available" for
later-in-time applicants who joined the queue more recently) if
visa supply increases or visa demand decreases for a given month.
Id. Alternatively, a "current" date may move backward -- or
"retrogress[]" (i.e., indicate that visas are "immediately
available" only for earlier applicants who have been in line
longer) -- if visa supply or demand unexpectedly decreases or
increases, respectively, in a given month. Id.; 7 USCIS, Policy
Manual, pt. A, ch. 6, § C(5) (2024).
B.
Two of the plaintiffs involved in this appeal, Nikunj
and Anuja Patel, applied for legal permanent residency in the
United States on October 27, 2020. The other two plaintiffs,
Monisha Gupta and Swapnil Vijay Kumar Gadkari, applied for legal
permanent residency on October 30, 2020.2 While their Form I-485
2Legal permanent residency is "the status of having been
lawfully accorded the privilege of residing permanently in the
United States as an immigrant in accordance with the immigration
laws . . . ." 8 U.S.C. § 1101(a)(20).
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applications were pending, Gupta and Gadkari filed suit together
in the U.S. District Court for the District of Massachusetts,
naming Ur Jaddou, Director of USCIS, as the sole defendant. The
Patels separately did the same while their Form I-485 applications
were pending.
The respective complaints alleged that each of the
plaintiffs had "taken every step USCIS has requested, suggested,
and required" with respect to their applications, including having
met the eligibility requirements for applying for adjustment that
§ 1255(a) sets forth. Yet, the complaints alleged, the plaintiffs
continue to wait for a final adjudication by USCIS on their
allegedly "adjudication[-]ready" applications. For relief, the
plaintiffs sought to compel USCIS to adjudicate their pending Form
I-485 applications. The District Court subsequently consolidated
the suits for pre-trial proceedings.
Two months after initiating their suits, the plaintiffs
amended their complaints and added Antony Blinken, the DOS
Secretary, as a defendant. The amended complaints additionally
allege that, on September 6, 2022, DOS issued a memorandum stating
that there were no more available EB2 visas until the end of the
fiscal year because DOS had issued visas up to the maximum amount
permitted by statute. The amended complaints allege as well that,
due to the decrease in visa supply and lack of corresponding
decrease in visa demand, the "current" dates on the Visa Bulletin
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retrogressed from December 1, 2014, to April 1, 2012. Thus, the
amended complaints allege, no visas were "immediately available"
to the plaintiffs once the new fiscal year started.3
In the amended complaints, the plaintiffs assert claims
of unlawful withholding and unreasonable delay of agency action
under the APA against both the Director of the USCIS and the
Secretary of the DOS. The plaintiffs first challenge USCIS's
practice of not adjudicating validly filed Form I-485 applications
until an immigrant visa becomes "immediately available" to the
applicants. They allege that this practice is barred by 8 U.S.C.
§ 1255 and that USCIS's failure to adjudicate the plaintiffs'
applications thus constitutes unlawfully withheld and unreasonably
delayed agency action. See 5 U.S.C. § 706(1). In addition, the
plaintiffs challenge DOS's policy regarding visa issuance
following USCIS approval. They allege that, even if USCIS approved
an application without a corresponding "immediately available"
visa, DOS would refuse to issue a visa unless one was in fact
"immediately available" to the applicant. The plaintiffs argue
that, because of § 1255(b), this DOS policy regarding visa issuance
constitutes agency action that is unlawfully withheld. See id.
Following the defendants' motions for dismissal and the
parties' cross-motions for summary judgment, the District Court
3 Gupta and Gadkari's priority date is November 7, 2012. The
Patels' priority date is June 26, 2014.
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granted the defendants' motion to dismiss and denied the parties'
motions for summary judgment as moot in an order dated September
27, 2023. The District Court ruled that the plaintiffs' contention
that 8 U.S.C. § 1255 prohibits USCIS and DOS from requiring that
an immigrant visa be "immediately available" at the time of
adjudication was without merit. The District Court therefore held
that the agencies' policy of holding Form I-485 applications for
adjudication until an immigrant visa is "immediately available" to
the applicant is a "decision or action . . . the authority for
which is specified . . . to be in the discretion of . . . the
Secretary of Homeland Security" under 8 U.S.C.
§ 1252(a)(2)(B)(ii), and, accordingly, not subject to judicial
review. For the same reasons, the District Court also ruled that
the challenged agency action was committed to agency discretion
and thus that the plaintiffs also failed to state claims for
unreasonable delay and unlawful withholding under the APA. The
plaintiffs timely appealed.
II.
As a threshold matter, the defendants contend that we
must affirm the dismissal of the plaintiffs' claims on
jurisdictional grounds under Article III of the U.S. Constitution.
The defendants argue that is so because the plaintiffs' alleged
injuries are neither traceable to the defendants nor redressable
by a federal court, as those injuries must be for the plaintiffs
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to have Article III standing to bring their claims. See Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).
In asserting that the plaintiffs' injuries are traceable
only to statutes enacted by Congress and so not to the challenged
USCIS and DOS policies themselves, the defendants emphasize that
Congress enacted a statutory scheme that imposes various caps on
EB2 issuance. The defendants then go on to argue that these caps
limit the agencies' ability to meet the plaintiffs' demand for
visas for reasons independent of either the USCIS or the DOS policy
that the plaintiffs challenge.
The defendants separately contend, for similar reasons,
that the plaintiffs' injuries are not redressable by a federal
court. The defendants assert that the relief that the plaintiffs
seek -- faster adjudication of their applications by
USCIS -- requires that a visa be "available" to be issued to the
plaintiffs at the time the application is adjudicated by USCIS.
They further assert that, statutorily, the defendants cannot issue
a visa to the applicants outside of their priority date order.
See 8 U.S.C. § 1153(e). The defendants contend that it follows
that granting the requested relief would require the defendants to
take one of two paths: violate their statutory obligations or deny
the plaintiffs' applications. Yet, the defendants argue, the first
path is unlawful, and the second path would conflict with the
plaintiffs' interests. And so, because the defendants contend
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that federal courts are without the authority to order the agencies
to issue a visa "before it is [the plaintiffs'] turn," they assert
that the plaintiffs' claims are not redressable by a federal court.
We are not persuaded.
The plaintiffs allege that (1) they "went from having
EB2 visas immediately available at . . . filing of their adjustment
of status applications to not having an EB2 visa immediately
available to them for years because the 'current date' in the visa
bulletin now predates their priority date [because, in September
2022, the dates retrogressed]"; (2) "USCIS and DOS are unlawfully
withholding final agency actions on Plaintiffs['] applications" by
not acting until a visa is immediately available; and (3) the last
time the priority dates retrogressed in a similar manner "it took
8 years for [the dates] to [become] 'current' again." They then
allege that the claimed unlawful withholding, and unreasonable
delay, of agency action attributable to the defendants have caused
them a variety of financial, emotional, and professional harms.
These asserted injuries include loss of time and money completing
paperwork to maintain their current status, loss of professional
opportunities because they are "currently tied to their
[petitioning] employers for work," loss of opportunities to see
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family abroad, and ongoing anxiety due to uncertainty over their
future immigration status.
We must take these well-pleaded facts as true and
construe them in the light most favorable to the plaintiffs. See
Legal Sea Foods, LLC v. Strathmore Ins. Co., 36 F.4th 29, 34 (1st
Cir. 2022). We thus read the plaintiffs to be alleging specific
harms arising from what they assert is the additional time they
must wait for an adjustment of status due to (1) USCIS's decision
to unreasonably delay or withhold action on their applications
until an immigrant visa is "immediately available" to them and (2)
DOS's decision to withhold the issuance of the requested visas
themselves until they are "immediately available." In other words,
at bottom, the plaintiffs assert that they are injured by the
agencies' reliance on policies that violate § 1255, as they argue
that so long as a visa is "available" -- and thus even if it is
not "immediately available" -- § 1255 precludes USCIS from
delaying adjudication, and DOS from withholding visa allocation,
on the grounds that the plaintiffs are challenging.
To be sure, the defendants argue that their challenged
policies are required by other statutory mandates, such as the
statutorily established visa caps or the statutory requirement
that visas be issued in priority-date order. But the plaintiffs
dispute these assertions. As a result, the defendants' arguments
regarding traceability and redressability reduce to arguments
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about the meaning of applicable statutes and the limits those
statutes impose on the defendants' behavior. Accordingly, those
arguments are properly treated as arguments about the merits of
the plaintiffs' claims, rather than questions of Article III
standing, because, for purposes of the Article III standing
inquiry, we must "accept as valid the merits of [the plaintiffs']
legal claims," Fed. Election Comm'n v. Cruz, 596 U.S. 289, 298
(2022), and "be careful not to decide the questions on the merits
for or against the plaintiff[s]," City of Waukesha v. EPA, 320
F.3d 228, 235 (D.C. Cir. 2003).
Thus, we see no basis for concluding that the harms the
plaintiffs allege are not fairly traceable to USCIS's policy of
abstaining from acting upon the plaintiffs' applications and DOS's
policy of abstaining from issuing them visas. Nor do we see why
the relief sought -- an injunction barring USCIS and DOS from
applying these policies to the plaintiffs -- would fail to redress
those harms. See Antilles Cement Corp. v. Fortuno, 670 F.3d 310,
318 (1st Cir. 2012) ("To carry its burden of establishing
redressability, [plaintiff] need only show that a favorable ruling
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could potentially lessen its injury; it need not definitively
demonstrate that a victory would completely remedy the harm.").
Finally, the District Court rejected the defendants'
argument below that the plaintiffs had not suffered an injury in
fact. We apprehend no error in that conclusion either.4
III.
The defendants separately contend that, even if the
plaintiffs have Article III standing, there are statutory bars to
the exercise of jurisdiction that require their claims to be
dismissed. The defendants identify two such statutory bars.
The first is 8 U.S.C. § 1252(a)(2)(B)(i), which
precludes review of "any judgment regarding the granting of relief
under section . . . 1255." Relying on the Supreme Court's
"expansive" reading of the statute's use of the term "any" and
"regarding," Patel v. Garland, 596 U.S. 328, 338 (2022), the
defendants assert that the challenged USCIS and DOS policies are
"judgments" within the meaning of § 1252(a)(2)(B)(i), and thus
shielded from review.
The second is 8 U.S.C. § 1252(a)(2)(B)(ii), which
precludes review of "any other decision or action of the Attorney
4 The cases on which the defendants rely, see Yu v. Chertoff,
No. 07cv0296, 2008 WL 413269 (S.D. Cal. Feb. 12, 2008); Museboyina
v. Jaddou, 4:22CV3169, 2023 WL 1438666 (D. Neb. Feb. 1, 2023), are
either distinguishable or unpersuasive for the reasons given
above.
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General or the Secretary of Homeland Security the authority for
which is specified . . . to be in the discretion of the Attorney
General or the Secretary of Homeland Security, other than the
granting of relief under" 8 U.S.C. § 1158(a). The defendants argue
that their pre-adjudication policies are "decision[s]" that are
"specified" to be in the DHS Secretary's discretion -- and thus
unreviewable -- because § 1255(a) states that a noncitizen's
status "may be adjusted by the [Secretary of Homeland Security],
in his discretion and under such regulations as he may prescribe."
The defendants then go on to contend that because § 701(a)(2) of
the APA similarly precludes review of agency action "committed to
agency discretion by law," dismissal of the plaintiffs' claims is
required.
We need not resolve these disputes. Rather, we may
assume there are no statutory bars to the exercise of jurisdiction
and proceed directly to the merits, because, for the reasons we
will next explain, we resolve the merits in the defendants' favor.
See Doe v. Town of Lisbon, 78 F.4th 38, 44-45 (1st Cir. 2023)
(holding that, when a case poses a question of statutory, rather
than Article III, jurisdiction, "the question of jurisdiction need
not be resolved if a decision on the merits will favor the party
challenging the court's jurisdiction") (citation and internal
quotation marks omitted).
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IV.
The plaintiffs' claims chiefly implicate § 1255(a) and
§ 1255(b). As we will explain, we are not persuaded that either
of these provisions prohibits the agency policies that are the
target of the claims.
A.
We begin with the plaintiffs' claims against the
Director of the USCIS. The claims allege that § 1255(a) bars USCIS
from declining to adjudicate adjustment applications until an
immigrant visa is "immediately available" to the applicant -- a
practice that we refer to as the "abeyance policy." We cannot
agree, as we are not persuaded by the plaintiffs' contention that
§ 1255(a) sets forth not only the eligibility criteria for
adjustment of status, but also the asserted constraints on the
process by which USCIS may, in its discretion, adjudicate
applications for such adjustment.
Section 1255(a) provides that the status of a noncitizen
"may be adjusted by the [Secretary of Homeland Security], in his
discretion and under such regulations as he may prescribe, to that
of a[] [noncitizen] lawfully admitted for permanent residence if
(1) the [noncitizen] makes an application for such adjustment, (2)
the [noncitizen] is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence, and (3)
an immigrant visa is immediately available to him at the time his
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application is filed." 8 U.S.C. § 1255(a). Thus, by its plain
terms, § 1255(a) neither requires the Secretary of DHS to adjust
the status of a noncitizen nor purports to address how the
Secretary must adjudicate an application for adjustment that is
filed. Rather, the text of § 1255(a) provides only that the
Secretary may adjust a noncitizen's status as a matter of
discretion under such regulations as the Secretary may prescribe
if the noncitizen has applied for adjustment and meets certain
criteria for applying.
To be sure, one of the criteria for applying for
adjustment of status that § 1255(a) sets forth is that an immigrant
visa must be "immediately available" at the time that the
application for adjustment is filed. See id. But as to what must
happen once that criterion for applying for adjustment has been
met and an application for adjustment has been filed, the text of
§ 1255(a) is silent, except for providing that the Secretary of
DHS may in his discretion adjust the applicant's status pursuant
to regulations. Thus, we do not see how, based on § 1255(a)'s
text, the provision may be understood to bar USCIS's abeyance
policy, as that policy only concerns when, after an adjustment
application has been filed, an application will be adjudicated.
See Babaria v. Blinken, 87 F.4th 963, 977 (9th Cir. 2023) (holding
that § 1255(a) provides specific guidance only on eligibility
requirements and "vests the government with considerable leeway in
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establishing the process [by which it adjudicates applications for
adjustments of status]").
The plaintiffs acknowledge that, on its face, § 1255(a)
establishes "eligibility criteria" for applying for adjustment,
without also identifying any criteria for the process by which
filed applications for adjustment are to be adjudicated by USCIS.
But the plaintiffs contend that, despite what the text of § 1255(a)
appears to indicate, the statutory and legislative history to that
provision "makes abundantly clear that Congress rejected [the
defendants'] . . . interpretation more than 45 years ago" when it
amended the statute to tie visa availability to "the time [at which
the noncitizen's] application is fil[ed]" rather than approved.
The plaintiffs point out that, in previous iterations of
§ 1255(a), the provision explicitly required that an immigrant
visa be "immediately available" to an applicant "at the time his
application [was] approved." See Immigration and Nationality Act,
Pub. L. No. 82-414, § 245(a), 66 Stat. 163, 217 (1952); H. J. Res.
397, Pub. L. No. 86-648, § 10, 74 Stat. 504, 505 (1960). They
further note that, in 1976, the precursor to § 1255(a) was amended
to require only that a visa be "immediately available" at the time
of filing. The plaintiffs argue that in so amending the statute
Congress must be understood to have rejected, albeit implicitly,
"the time of approval as the moment when a visa number must be
current" in favor of the "date the application was filed."
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To support this reading of § 1255(a), the plaintiffs
direct our attention to a House Judiciary Committee report that
proposed the 1976 amendment to § 1255. The report explains that
the amendment's purpose was to "designate[] the date used in
determining the availability of a visa number as the date the
application is filed, rather than the approval date." H.R. Rep.
No. 94-1553, at 15 (1976). The plaintiffs assert that this
explanation shows that in enacting § 1255(a) Congress made an
"intentional policy decision" to "reject[] the requirement to have
a current visa number at approval." The plaintiffs then deduce
that in enacting § 1255(a) Congress meant to preclude USCIS from
relying on visa availability at the time of approval for any
purpose.
The plaintiffs also attempt to buttress their reading of
§ 1255(a) by invoking the regulations that implement that
provision. They note that those regulations tie eligibility for
adjustment of status to immediate visa availability at the time of
filing, rather than to immediate visa availability at the time of
the approval of the adjustment of status. See 8 C.F.R.
§§ 245.1(a), 245.1(g)(1), 245.2(a)(2)(i). The plaintiffs then
contend that, by failing to require visa availability at the time
of approval in the regulations implementing § 1255(a), "USCIS has
interpreted congressional intent to require only a current visa at
filing."
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In sum, the plaintiffs argue that, even though the face
of § 1255(a) speaks only to eligibility to apply for adjustment of
status, "Congress spoke to the precise issue here." By changing
the "eligibility criterion" under § 1255(a) and "designat[ing] the
time of filing as the moment when a visa number must be current,"
the plaintiffs argue, Congress necessarily (though impliedly)
precluded USCIS from holding applications until a visa would be
immediately available at the time of approval.
We cannot agree. As the Ninth Circuit has detailed,
under the pre-1976 statutory scheme, "[i]f circumstances changed
while the application was pending -- for example, if the
applicant's . . . job ended, and the immigrant visa petition was
consequently denied or revoked -- the statute foreclosed
adjustment of status." Babaria, 87 F.4th at 979 (emphasis added).
It thus appears that the 1976 amendment, by tying statutory
eligibility to the time of filing rather than the time of approval,
was simply addressing this specific problem concerning the
approval of an application for adjustment. See id.; see also
Pei-Chi Tien v. Immigr. & Naturalization Serv., 638 F.2d 1324,
1329 n.13 (5th Cir. Unit A Mar. 1981) ("The requirement that an
immigrant visa must be immediately available to the [noncitizen]
at the time his application is 'approved' was changed to the time
his application is 'filed,' perhaps indicating Congress' awareness
of the delays involved prior to agency action on an application.").
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As a result, we fail to see how the 1976 amendment supports the
plaintiffs' position regarding the proper interpretation of
§ 1255(a) with respect to the timing of the mere adjudication of
an application. Indeed, as we have emphasized, the 1976
amendment -- like § 1255(a) itself -- does not on its face speak
to the timing of the adjudication of an application for adjustment.
This understanding of the 1976 amendment draws support
from a committee report on a precursor to the 1976 bill. That
report notes the view of the U.S. Department of Justice ("DOJ")
that "[§ 1255(a)] [was] . . . amended to establish eligibility for
an immigrant visa at the time the application is filed rather than
at the time it is approved." H.R. Rep. No. 93-108, at 14 (1973)
(emphasis added). And the report explains that the DOJ supported
this change precisely because it would alleviate the harms suffered
by applicants with respect to the approval of an application for
adjustment of status. Id.
The plaintiffs' attempt to enlist the statute's
regulations also fails to support their position. And that is so,
even if we were to assume that regulations promulgated to implement
the statutory provision could inform our understanding of the
meaning of the provision itself.
The regulations that the plaintiffs reference pertain by
their plain terms only to an applicant's eligibility to file an
application for adjustment. See 8 C.F.R. §§ 245.1(a),
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245.1(g)(1), 245.2(a)(2)(i). Thus, the regulations, too, do not
speak to the process for adjudicating an application once filed by
an eligible applicant.
In a final bid to support their reading of § 1255(a),
the plaintiffs invoke the overall structure of the INA. Here,
they point to other statutory provisions -- 8 U.S.C. §§ 1255(b)
and 1153(d), (e), and (h)(1). They argue that each of these
provisions is rendered "unworkable" by the USCIS abeyance policy
that they challenge. As a result, they reason, Congress must have
contemplated that no such policy could be implemented. It
therefore follows, they contend, that § 1255(a) must be construed
not to authorize the abeyance policy, even though the plain terms
of § 1255(a) impose no such limitation on that policy's
implementation. We disagree with this logic.
The plaintiffs' structural argument regarding § 1255(b)
proceeds as follows. Under § 1255(b), once USCIS approves an
adjustment application, DOS must "reduce by one the number
of . . . preference visas authorized to be issued" under the
statutory caps "for the fiscal year then current." 8 U.S.C.
§ 1255(b). If § 1255(a) permits USCIS to require that a visa be
"immediately available" to an applicant for adjustment of status
before the application itself may be adjudicated, then the
plaintiffs assert there would be no risk that USCIS would run afoul
of the statutory caps in approving such an application. Hence,
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the plaintiffs argue, by referring in § 1255(b) to these statutory
caps, Congress was only "assum[ing] that there will be a visa
number available" at approval, regardless of whether one is
"immediately available" at that time.
By its terms, however, § 1255(b) governs the processes
that occur "[u]pon the approval of an application for adjustment
made under" § 1255(a). Id. The provision thus speaks only to
post-approval matters and not the process for adjudicating an
application for adjustment.
To be sure, § 1255(b)'s reference to the statutory caps
on visa issuance does show that Congress was cognizant of the
limits that those caps place on visas being issued for approved
applications for adjustment. We fail to see, however, how the
reference to those caps shows that, in § 1255(a), Congress
authorized USCIS to delay adjudication of such applications only
to the extent that the caps themselves would require that delay.
The plaintiffs also harness their structural argument to
8 U.S.C. § 1153(d), which entitles certain family members of an
applicant to immigration status. Once again, we are not persuaded.
Under § 1153(d), certain "spouse[s] or child[ren]" who
"accompany[]" or later "follow[] to join" an applicant to the
United States are "entitled to the same status, and the same order
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of consideration" as the applicant.5 Id. In such cases, the
spouse or child is said to be a "derivative" of the "principal"
applicant and beneficiary of the principal's immigrant visa
petition. 7 USCIS, Policy Manual, pt. A, ch. 6, § C(6) (2024).
The plaintiffs argue that, in affording derivative
family members the "same status" and "order of consideration" as
the principal in § 1153(d), Congress also meant to entitle the
derivative beneficiaries to the immediate issuance of an immigrant
visa at the same time as the principal applicant, regardless of
whether that visa is immediately available to the derivative
beneficiary. The plaintiffs then go on to argue that USCIS's
abeyance policy conflicts with that mandate because USCIS could
approve a principal's application and the bulletin could
subsequently retrogress, thus delaying the derivative
beneficiary's receipt of an immigrant visa.6 Based on this
5 Section 1153(d) reads in full:
A spouse or child as defined in subparagraph (A), (B),
(C), (D), or (E) of section 1101(b)(1) of this title
shall, if not otherwise entitled to an immigrant status
and the immediate issuance of a visa under subsection
(a), (b), or (c), be entitled to the same status, and
the same order of consideration provided in the
respective subsection, if accompanying or following to
join, the spouse or parent.
6 We note that at least one circuit has questioned whether
retrogression could, in fact, solely impact the derivative
beneficiary's application under USCIS's current policy. See
Babaria, 87 F.4th at 978. But because the defendants do not appear
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purported conflict, the plaintiffs assert that § 1153(d) supports
their reading of § 1255(a) -- namely, that USCIS is precluded from
considering immediate visa availability at the time of approval.
The text of § 1153(d), however, says nothing about when
an application -- derivative or otherwise -- must be adjudicated.
Nor do the plaintiffs develop an argument as to why we must
construe § 1153(d) to implicitly place the limit on the timing of
adjudication that they discern. In any event, even if we were to
assume that § 1153(d) requires DOS to immediately issue a visa to
a derivative beneficiary upon the principal's approval, it is not
clear why that requirement would have any bearing on USCIS's
decision to delay adjudication of the principal's application in
the first place. Yet the plaintiffs fail to explain their apparent
contention to the contrary.
The plaintiffs next point to § 1153(e), which requires
that visas be issued in priority date order. But the requirement
that DOS issue visas in order of priority dates says nothing about
the time at which USCIS must adjudicate the application so long as
the agency is proceeding in the proper chronological order. Thus,
we do not see -- nor do the plaintiffs explain -- why we must
conclude that § 1153(e) mandates the plaintiffs' interpretation of
§ 1255(a).
to contest this point, we assume for our purposes that such a
scenario is possible.
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The plaintiffs' next argument is that a provision of the
Child Status Protection Act ("CSPA"), 8 U.S.C. § 1153(h)(1),
demands a conclusion other than the one to which we arrive. This
argument is similarly without merit.
In general, the CSPA "ensures that the time Government
officials have spent processing immigration papers will not count
against" a child who seeks derivative beneficiary status.
Scialabba, 573 U.S. at 45 (plurality opinion). Under the INA, a
"child" cannot claim derivative-beneficiary status unless he is
under the age of twenty-one. 8 U.S.C. §§ 1153(d), 1101(b)(1).
Thus, a child who is eligible for derivative status when his parent
files an adjustment application may become ineligible due to the
"simple passage of time." Scialabba, 573 U.S. at 51 (plurality
opinion). To prevent children from "aging out" of eligibility due
to administrative delays beyond their control, the CSPA creates a
method for calculating the child's age, referred to as the "CSPA
age." 7 USCIS, Policy Manual, pt. A, ch. 7, § A (2024).
In the case of employment-based visas, the "CSPA age" is
calculated by subtracting the period from which the child's visa
petition was pending from the child's age on "the date on which an
immigrant visa number becomes available for" their parent. 8
U.S.C. § 1153(h)(1). In other words, the CSPA "freezes" the
derivative beneficiary's age until a visa is "available."
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The plaintiffs contend that § 1153(h)(1) confirms their
reading of § 1255(a) because § 1153(h)(1) "assumes" that a visa
need only be available to the child at the time of the filing of
the application for adjustment of status. In support of this view,
the plaintiffs direct our attention to the USCIS Policy Manual,
which, in their view, shows that Congress intended for the
"CSPA to freeze the child's age when the visa is current and
adjustment of status application is filed." From that premise,
they contend that it follows that Congress also assumed that a
visa need not be immediately available at the time USCIS approves
an application for adjustment of status.
Section 1153(h)(1), on its face, however, merely sets a
noncitizen's "age" for the purposes of the child's eligibility for
adjustment. It thus does not speak to the relevant issue here,
which concerns when an application for the adjustment of status
must be adjudicated. Indeed, the plaintiffs do not explain why
the timing of the adjudication of such an application interferes
in any way with the setting of the child's "age" under
§ 1153(h)(1).
In sum, USCIS's decision to hold in abeyance
applications that lack an immediately available visa is not
precluded by § 1255(a), considering the statute's text, history,
and structure. Because this policy is within the agency's
discretion, the plaintiffs have failed to state a claim under the
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APA for unlawful withholding and unreasonable delay against the
Director of the USCIS.
B.
The plaintiffs finally argue that DOS's independent
requirement that a visa be "immediately available" at the time of
the approval of an application for adjustment to permanent legal
residence status violates § 1255(b). They assert that, even if
this Court were to compel USCIS to adjudicate their applications
and their applications were approved, DOS would refuse to issue
them immigrant visas because those visas are not immediately
available. Because § 1255(b) states that DOS "shall" allocate a
visa number upon approval of an application for adjustment, the
plaintiffs contend that DOS's refusal to issue an available
immigrant visa to an approved applicant would be unlawful.
As we have explained, however, we conclude that USCIS's
adjudication policy is not barred by § 1255 or any other statute
to which the plaintiffs refer. We thus we see no basis for
concluding that DOS's present application of its visa issuance
policy is barred by § 1255(b).7 Under USCIS's current policy, the
7 As we noted in our discussion of Article III standing, the
defendants contend that even if § 1255(a) required USCIS to
adjudicate the plaintiffs' applications, § 1153(e) would
nonetheless bar DOS from issuing the plaintiffs visas before they
become immediately available to them. Because, for the reasons
explained above, we conclude that § 1255(a) does not prohibit USCIS
from instituting its abeyance policy, we need not address whether
that is the case.
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situation the plaintiffs contemplate cannot come to pass -- if an
application is approved by USCIS, a visa is "immediately
available." And under DOS's visa issuance policy, if a visa is
"immediately available," DOS will issue a visa number. So, for
every approved adjustment application, DOS will issue a visa
number.8 Thus, the plaintiffs have not stated a claim under the
APA against the Secretary of the DOS.
V.
We are not without sympathy for the plaintiffs and the
position in which they find themselves. After having lived, worked
in, and contributed to this country for, in most cases, over a
decade, Gupta, Gadkari, and the Patels have waited nearly four
years for their Form I-485 applications to be adjudicated. Still,
the sole ground for the plaintiffs' claims under the APA in this
litigation is that § 1255 precludes USCIS and DOS from adjudicating
their applications pursuant to the agencies' abeyance policy.9
8 We do not address -- because we have no need to
address -- the circumstance in which USCIS changes its abeyance
policy, such that DOS's policy regarding visa issuance would pose
an independent bar to visa issuance.
9 At oral argument and in their reply brief, the plaintiffs
aver that USCIS's and DOS's holding policy results in visa wastage
and does not make sense. In other words, they appear to argue
that the agencies' practices are arbitrary or capricious under the
APA. Insofar as that contention is divorced from their argument
that the agencies are statutorily prohibited from engaging in their
current practice, that argument is waived. Sparkle Hill, Inc. v.
Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015). We thus
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That ground, for the foregoing reasons, is meritless. The judgment
of the District Court is affirmed.
express no view as to whether such a challenge could succeed were
this court to have jurisdiction over it.
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