CA4 on U Visas, Delays, Work Permits: Fernandez Gonzalez v. Cuccinelli

Fernandez Gonzalez v. Cuccinelli

"This case presents a challenge to agency delay and inaction. Plaintiffs are aliens unlawfully present in the United States who seek U-Visas as victims of serious crimes who cooperated with law enforcement. They allege that the Department of Homeland Security has unlawfully withheld or unreasonably delayed adjudication of their U-Visa petitions and their applications for work authorization pending U-Visa approval. Those claims implicate interests that deserve our respect and protection, where we are so empowered. But we lack the power to review Plaintiffs’ work-authorization claims here because the agency is not required to adjudicate Plaintiffs’ requests. We may, however, review Plaintiffs’ claim that Homeland Security unreasonably delayed adjudicating their U-Visa petitions, and that claim cannot be dismissed at this early stage. We therefore dismiss Plaintiffs’ claims relating to their requests for pre-waiting-list work authorization and remand Plaintiffs’ claim relating to U-Visa adjudications. ... [W]e reverse the district court’s dismissal of the fourth cause of action and hold that Plaintiffs pleaded sufficient facts at this stage to avoid dismissal of their claim of unreasonable delay in placing them on the waiting list."