Reported / Citable
Background
Plaintiff U.K. Solanki, an Indian national residing in Fort Bend County, Texas, filed a complaint seeking to compel action on his U nonimmigrant visa (U visa) petition. Solanki alleges he was the victim of intoxicated manslaughter in Palacios, Texas on March 17, 2024. He filed an I-918 petition for U nonimmigrant status and an I-765 application for employment authorization in December 2024.
U visas are granted by the Department of Homeland Security to noncitizen crime victims who cooperate with law enforcement, but the annual cap is 10,000 visas. When the cap is reached, USCIS administers two processes: a waitlist for eligible petitioners and a Bona Fide Determination (BFD) process, which assesses whether a petition is bona fide. Approved BFD applicants receive work authorization and deferred action while awaiting final adjudication.
Solanki alleged USCIS took no action on his petition and brought claims under the Administrative Procedure Act (APA) seeking to compel action on his BFD decision and work authorization. He argued the agency’s delay was unreasonable. Defendant moved to dismiss for lack of subject matter jurisdiction under Federal Rules 12(b)(1) and 12(b)(6).
The Court’s Holding
The Magistrate Judge recommended granting the defendant’s motion to dismiss without prejudice. The court held it lacks subject matter jurisdiction over Solanki’s claims because the APA does not apply to discretionary agency actions, and the Immigration and Nationality Act specifically precludes judicial review of discretionary decisions by the DHS Secretary.
First, the court found it lacks jurisdiction over the work authorization decision because the INA provides that the Secretary “may” grant work authorization—language that clearly connotes discretion. Because work authorization is discretionary by law, the APA’s standard for compelling agency action does not apply. Second, the court held it lacks jurisdiction over the BFD decision because the BFD process, though not explicitly mentioned in the statute, is a practical application of the Secretary’s discretionary authority under the INA. Following the Fifth Circuit’s decision in Cheejati v. Blinken, the court applied the Supreme Court’s reasoning in Patel v. Garland—that jurisdiction-stripping provisions preclude review not only of discretionary grants of relief but also of judgments “relating to the granting of relief.”
Key Takeaways
- The APA does not provide jurisdiction to compel agency action when the underlying decision is discretionary by law or committed to agency discretion.
- The INA’s jurisdiction-stripping provision (8 U.S.C. § 1252(a)(2)(B)(ii)) precludes judicial review of work authorization decisions for U visa applicants because the statute uses permissive language (“may grant”).
- BFD decisions, while not codified in statute, are treated as practical applications of discretionary authority and are therefore unreviewable under the APA.
- Federal courts cannot order USCIS to adjudicate U visa petitions or work authorization applications on unreasonable-delay grounds.
Why It Matters
This decision reflects a consistent line of Southern District of Texas rulings establishing that U visa applicants cannot seek judicial relief for delays in adjudication. With the annual U visa cap routinely exhausted, applicants face potentially years-long waits for BFD determinations and work authorization. This ruling forecloses the APA as a remedy, leaving applicants with no federal court recourse for alleged unreasonable delays—a significant limitation on judicial review in immigration matters.
The holding underscores the breadth of INA jurisdiction-stripping provisions and signals that even interim procedural steps (like BFD determinations) fall within the scope of unreviewable discretionary authority. Immigration practitioners should note that neither statutory nor regulatory changes to USCIS processing timelines can be enforced through federal court litigation under this framework.