U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:20-cv-08143-HSG

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Vangala et al v. U.S. Citizenship and Immigration Services et al Assigned to: Judge Haywood S Gilliam, Jr Cause: 05:702 Administrative Procedure Act

Date Filed: 11/19/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff Akhilesh R. Vangala

represented by Trina Ann Realmuto National Immigration Litigation Alliance 10 Griggs Terrace Brookline, MA 02446 617-819-4447 Email: trina@immigrationlitigation.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron Korthuis NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 (206) 957-8611 PRO HAC VICE ATTORNEY TO BE NOTICED

Helen Elizabeth Beasley Van Der Hout LLP 180 Sutter Street, Suite 500 San Francisco, CA 94104 415-981-3000 Fax: 415-981-3003 Email: hbea@vblaw.com ATTORNEY TO BE NOTICED

Margot Adams NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 (206) 957-8611 PRO HAC VICE ATTORNEY TO BE NOTICED
Mary A Kenney National Immigration Litigation Alliance 10 Griggs Terrace Brookline, MA 02446 617-819-4681 Email: mary@immigrationlitigation.org PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 206.957.98104 PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Hyrum Adams Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 206-957-8611 Fax: 206-587-4025 Email: matt@nwirp.org ATTORNEY TO BE NOTICED
Tiffany Lieu National Immigration Litigation Alliance 10 Griggs Terrace Brookline, MA 02446 206-499-1890 Email:

Plaintiff I.S.A.

tiffany@immigrationlitigation.org PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary Miller Nightingale Van Der Hout LLP 180 Sutter Street, Suite 500 San Francisco, CA 94104 (415) 981-3000 Fax: (415) 981-3003 Email: ndca@vblaw.com ATTORNEY TO BE NOTICED
represented by Trina Ann Realmuto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Korthuis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Helen Elizabeth Beasley (See above for address) ATTORNEY TO BE NOTICED
Margot Adams (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary A Kenney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Hyrum Adams (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Kenney M. Castaneda Penate on behalf of themselves and all other similarly situated

Tiffany Lieu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary Miller Nightingale (See above for address) ATTORNEY TO BE NOTICED
represented by Trina Ann Realmuto (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron Korthuis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Helen Elizabeth Beasley (See above for address) ATTORNEY TO BE NOTICED
Margot Adams (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary A Kenney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matt Adams (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew Hyrum Adams (See above for address) ATTORNEY TO BE NOTICED
Tiffany Lieu (See above for address)

PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary Miller Nightingale (See above for address) ATTORNEY TO BE NOTICED

V. Defendant U.S. Citizenship and Immigration Services
Defendant U.S. Department of Homeland Security

represented by Sara Winslow United States Attorney's Office Northern District of California 450 Golden Gate Avenue, 9th Floor Box 36055 San Francisco, CA 94102 (415) 436-6925 Fax: (415) 436-6748 Email: sara.winslow@usdoj.gov ATTORNEY TO BE NOTICED
represented by Sara Winslow (See above for address) ATTORNEY TO BE NOTICED

Date Filed # 11/19/2020 1
11/19/2020 2 11/19/2020 3

Docket Text
CLASS ACTION COMPLAINT for Injunctive and Declaratory Relief against U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, (Filing Fee: $400.00, receipt number 0971-15213281). Filed by Akhilesh R. Vangala, Kenney M. Castaneda Penate, I.S.A.. (Attachments: #(1) Civil Cover Sheet)(Realmuto, Trina) (Filed on 11/19/2020) Modified on 11/20/2020 (tnS, COURT STAFF). (Entered: 11/19/2020)
Proposed Summons. (Realmuto, Trina) (Filed on 11/19/2020) (Entered: 11/19/2020)
ADMINISTRATIVE MOTION to Proceed under a Pseudonym filed by I.S.A.. Responses due by 11/23/2020. (Attachments: # 1 Proposed Order)(Realmuto, Trina) (Filed on 11/19/2020) (Entered: 11/19/2020)

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NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION filed by Kenney M. Castaneda Penate, I.S.A., Akhilesh R. Vangala. Responses due by 12/3/2020. Replies due by 12/10/2020. (Attachments: # 1 Declaration Realmuto (Authenticating), # 2 Declaration Dandelet, # 3 Declaration Pavri, # 4 Declaration Dalal-Dheini, # 5 Declaration Engen, # 6 Declaration Ziegeweid, # 7 Declaration Joyner, # 8 Declaration Limb, # 9 Declaration Odom, # 10 Declaration Levin, # 11 Declaration Koop, # 12 Declaration Adams, # 13 Declaration Kenney, # 14 Declaration Realmuto, # 15 Declaration Nightingale, # 16 [Proposed] Order)(Realmuto, Trina) (Filed on 11/19/2020) (Entered: 11/19/2020)
Case assigned to Magistrate Judge Joseph C. Spero.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 51(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 12/3/2020. (bwS, COURT STAFF) (Filed on 11/19/2020) (Entered: 11/19/2020)
NOTICE of Appearance by Helen Elizabeth Beasley for Plaintiffs (Beasley, Helen) (Filed on 11/19/2020) (Entered: 11/19/2020)
NOTICE of Appearance by Zachary Miller Nightingale for Plaintiffs (Nightingale, Zachary) (Filed on 11/19/2020) (Entered: 11/19/2020)
CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Kenney M. Castaneda Penate, I.S.A., Akhilesh R. Vangala.. (Beasley, Helen) (Filed on 11/19/2020) (Entered: 11/19/2020)
CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a

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11/23/2020 14

party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.
ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.
This is a text only docket entry; there is no document associated with this notice. (klhS, COURT STAFF) (Filed on 11/19/2020) (Entered: 11/19/2020)
ORDER, Case Reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge Haywood S Gilliam, Jr for all further proceedings. Magistrate Judge Joseph C. Spero no longer assigned to the case.. Signed by The Clerk on 11/20/20. (haS, COURT STAFF) (Filed on 11/20/2020) (Entered: 11/20/2020)
SCHEDULING ORDER (IMMIGRATION MANDAMUS CASE). (tnS, COURT STAFF) (Filed on 11/20/2020) (Entered: 11/20/2020)
Summons Issued as to U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, Office of the United States Attorney & United States Attorney General. (tnS, COURT STAFF) (Filed on 11/20/2020) (Entered: 11/20/2020)
MOTION for leave to appear in Pro Hac Vice for Tiffany Lieu ( Filing fee $ 310, receipt number 0971-15223168.) filed by Kenney M. Castaneda Penate, I.S.A., Akhilesh R. Vangala. (Attachments: # 1 Certificate of Good Standing - WA State, # 2 Certificate of Admission - S.D. Texas)(Lieu, Tiffany) (Filed on 11/20/2020) Modified on 11/23/2020 (bnsS, COURT STAFF). (Entered: 11/20/2020)
MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-15226722.) filed by Kenney M. Castaneda Penate, I.S.A., Akhilesh R. Vangala. (Attachments: # 1 Exhibit Certificate of Good Standing)(Kenney, Mary) (Filed on 11/23/2020) (Entered: 11/23/2020)

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ORDER by Hon. Haywood S. Gilliam, Jr., DIRECTING Defendants to file by Monday, November 30, 2020 an Opposition or a Notice of Non-Opposition in response to Dkt. No. 3 Plaintiffs Motion to Proceed Under a Pseudonym. (This is a text-only entry generated by the court. There is no document associated with this entry.) (hsglc2, COURT STAFF) (Filed on 11/23/2020) (Entered: 11/23/2020)
Electronic filing error. REMINDER TO COUNSEL: Counsel is instructed that all future filings shall bear the initials HSG immediately after the case number. Re: 14 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-15226722.) filed by I.S.A., Kenney M. Castaneda Penate, Akhilesh R. Vangala (jjbS, COURT STAFF) (Filed on 11/24/2020) (Entered: 11/24/2020)
MOTION for leave to appear in Pro Hac Vice for Attorney Matt Adams ( Filing fee $ 310, receipt number 0971-15236881.) filed by Kenney M. Castaneda Penate, I.S.A., Akhilesh R. Vangala. (Attachments: # 1 Exhibit Certificate of Good Standing)(Adams, Matthew) (Filed on 11/24/2020) (Entered: 11/24/2020)
MOTION for leave to appear in Pro Hac Vice for Attorney Margot Adams ( Filing fee $ 310, receipt number 0971-15236911.) filed by Kenney M. Castaneda Penate, I.S.A., Akhilesh R. Vangala. (Attachments: # 1 Exhibit Certificate of Good Standing)(Adams, Matthew) (Filed on 11/24/2020) (Entered: 11/24/2020)
MOTION for leave to appear in Pro Hac Vice for Attorney Aaron Korthuis ( Filing fee $ 310, receipt number 0971-15236934.) filed by Kenney M. Castaneda Penate, I.S.A., Akhilesh R. Vangala. (Attachments: # 1 Exhibit Certificate of Good Standing)(Adams, Matthew) (Filed on 11/24/2020) (Entered: 11/24/2020)
Electronic filing error. REMINDER TO COUNSEL: Case division and case location information are incorrect. In the future, please be sure that the case number is correctly reflected on your documents as Oakland Division and the case number should be 4:20-cv-08143 HSG. [err102] Re: 16 MOTION for leave to appear in Pro Hac Vice for Attorney Matt Adams ( Filing fee $ 310, receipt number 0971-15236881.) filed by I.S.A., Kenney M. Castaneda Penate, Akhilesh R. Vangala, 18 MOTION for leave to appear in Pro Hac Vice for Attorney Aaron Korthuis ( Filing fee $ 310, receipt number 0971-15236934.) filed by I.S.A., Kenney M. Castaneda Penate, Akhilesh R. Vangala, 17 MOTION for leave to appear in Pro Hac Vice for Attorney Margot Adams ( Filing fee $ 310, receipt

11/30/2020 19 12/02/2020 20 12/03/2020
21 12/03/2020
12/10/2020 22
12/17/2020 23

number 0971-15236911.) filed by I.S.A., Kenney M. Castaneda Penate, Akhilesh R. Vangala (bnsS, COURT STAFF) (Filed on 11/25/2020) (Entered: 11/25/2020)
OPPOSITION/RESPONSE (re 3 ADMINISTRATIVE MOTION to Proceed under a Pseudonym ) NONOPPOSITION filed byU.S. Citizenship and Immigration Services, U.S. Department of Homeland Security. (Winslow, Sara) (Filed on 11/30/2020) (Entered: 11/30/2020)
STIPULATION WITH PROPOSED ORDER filed by U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, Akhilesh R. Vangala, I.S.A., and Kenny M. Castaneda Penate. (Winslow, Sara) (Filed on 12/2/2020) Modified on 12/3/2020 (bnsS, COURT STAFF). (Entered: 12/02/2020)
ORDER by Judge Haywood S. Gilliam, Jr. Granting 20 Stipulation.(ndrS, COURT STAFF) (Filed on 12/3/2020) (Entered: 12/03/2020)
Reset/Set Deadlines/Hearing as to 4 MOTION to Certify Class, See
Docket No. 21 : Responses due by 1/14/2021; Replies due by 1/21/2021; Motion Hearing set for 2/4/2021 02:00 PM in Oakland before Judge Haywood S. Gilliam Jr. (ndrS, COURT STAFF) (Filed on 12/3/2020) (Entered: 12/03/2020)
CERTIFICATE OF SERVICE by Kenney M. Castaneda Penate, I.S.A., Akhilesh R. Vangala re 14 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 097115226722.), 8 Consent/Declination to Proceed Before a US Magistrate Judge, 6 Notice of Appearance, 7 Notice of Appearance, 13 MOTION for leave to appear in Pro Hac Vice for Tiffany Lieu ( Filing fee $ 310, receipt number 097115223168.), 10 Order,, Case Assigned/Reassigned, 1 Complaint, 5 Case Assigned by Intake,,, 3 ADMINISTRATIVE MOTION to Proceed under a Pseudonym , 11 Immigration Mandamus Case Procedural Order, 15 Order, 4 MOTION to Certify Class , 12 Summons Issued (Beasley, Helen) (Filed on 12/10/2020) (Entered: 12/10/2020)
ORDER by Judge Haywood S. Gilliam, Jr. Granting 13 Motion for Pro Hac Vice for Tiffany Lieu. (ndrS, COURT STAFF) (Filed on 12/17/2020) (Entered: 12/17/2020)

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ORDER by Judge Haywood S. Gilliam, Jr. Granting 14 Motion for Pro Hac Vice as to Kenney, Mary. (ndrS, COURT STAFF) (Filed on 12/17/2020) (Entered: 12/17/2020)
ORDER by Judge Haywood S. Gilliam, Jr. Granting 16 Motion for Pro Hac Vice for Attorney Matt Adams. (ndrS, COURT STAFF) (Filed on 12/17/2020) (Entered: 12/17/2020)
ORDER by Judge Haywood S. Gilliam, Jr. Granting 17 Motion for Pro Hac Vice for Attorney Margot Adams. (ndrS, COURT STAFF) (Filed on 12/17/2020) (Entered: 12/17/2020)
ORDER by Judge Haywood S. Gilliam, Jr. Granting 18 Motion for Pro Hac Vice for Attorney Aaron Korthuis. (ndrS, COURT STAFF) (Filed on 12/17/2020) (Entered: 12/17/2020)

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1

2 Matt Adams (WA 28287)*
Aaron Korthuis (WA 53974)* 3 Margot Adams (WA 56573)*
4 NORTHWEST IMMIGRANT RIGHTS PROJECT
5 615 Second Avenue, Suite 400 Seattle, WA 98104
6 (206) 957-8611

Zachary Nightingale (CA 184501) Helen Beasley (CA 279535) VAN DER HOUT LLP 180 Sutter Street, Suite 500 San Francisco CA 94104 (415) 981-3000

7 Trina Realmuto (CA 201088) 8 Mary Kenney (DC 1044695)*
Tiffany Lieu (WA 55175)* 9 NATIONAL IMMIGRATION
LITIGATION ALLIANCE 10 10 Griggs Terrace
Brookline, MA 02446 11 (617) 819-4447
12 *Pro hac vice motions forthcoming
13

14

UNITED STATES DISTRICT COURT FOR THE

15

NORTHERN DISTRICT OF CALIFORNIA

16

17 AKHILESH R. VANGALA; I.S.A.; and KENNY M. CASTANEDA PENATE, on behalf of themselves and
18 all other similarly situated,

19

Plaintiffs,

20 v.

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

21 U.S. CITIZENSHIP AND IMMIGRATION SERVICES
22 and U.S. DEPARTMENT OF HOMELAND SECURITY,
23

Defendants. 24

25

26

27

28

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Case 3:20-cv-08143 Document 1 Filed 11/19/20 Page 2 of 31

1

INTRODUCTION

2

1. In late 2019, without notice to the public, Defendant U.S. Citizenship and

3 Immigration Services (USCIS) implemented a tectonic shift in immigration adjudications requiring
4 its employees to arbitrarily reject thousands of applications from vulnerable immigrants. Notably,
5
6 USCIS’s new policy targeted applications seeking humanitarian benefits: from those seeking

7 refuge from persecution (asylum applications), survivors of domestic violence and other crimes

8 who voluntarily cooperate with law enforcement (U visa petitions), survivors of human trafficking

9 (T visa petitions), widows of U.S. citizens, special immigrant juveniles, and those seeking
10 protection from an abusive spouse, parent, or child (I-360 petitions). 11
2. The new policy called for USCIS employees to reject these applications or petitions 12
(hereinafter applications) if they found that any field was left blank on the multi-page applications, 13 14 irrespective of the materiality or applicability of the unanswered question. Indeed, USCIS rejected
15 thousands of applications pursuant to its new, draconian policy for either failing to respond to a

16 question or for responding in a manner indicating that the field was not applicable that the USCIS

17 determined was inappropriate.

18

3. This “rejection policy” or “blank space policy” has led to absurd and unfairly

19 prejudicial results. One such example—Plaintiff I.S.A.—is a survivor of a violent crime who
20

helped the police investigate her attackers and then sought a U visa for herself and her two minor 21

22 children. USCIS rejected her application because she left blank fields that did not apply to her,

23 such as the “other names” fields on her application forms. Neither she nor her sons have ever used

24 other names. By the time USCIS rejected the application and she subsequently refiled, her older

25 son had turned 21 years old and was no longer eligible to be included for the status that the rest of
26 his family could obtain. Consequently, her son now faces deportation. As Ms. S.A.’s case
27 demonstrates, the new rejection policy creates irrational and unnecessary obstacles that cause
28
CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 1

Case 3:20-cv-08143 Document 1 Filed 11/19/20 Page 3 of 31

1 irreparable harm for the most vulnerable noncitizens, separating families and depriving immigrants

2 of the protections Congress sought to provide.
3 4. For decades prior to this unannounced new policy, USCIS accepted applications
4 that left blank fields which did not apply to the applicant and which were not critical to eligibility
5 6 for the requested benefit. For example, applicants regularly left blank fields for a “middle name” if
7 they did not have one, for “other names used” if there were none, for family members if they had

8 none, or for nonexistent address information, such as an apartment number. Knowing that such

9 information did not affect an applicant’s eligibility or the agency’s ability to adjudicate such
10 applications, USCIS accepted and processed the applications. 11
5. In violation of the Administrative Procedure Act (APA), the new rejection policy 12
(or blank space policy) was not published in the Federal Register or subject to notice and comment 13 14 rulemaking. In fact, USCIS never explained its reasoning for the policy. As a result, the agency
15 disregarded settled reliance interests of applicants, the needs of pro se applicants, and alternatives

16 to the policy that would ensure that USCIS obtains the information it needs to adjudicate the

17 application. Confoundingly, for some forms, the policy also contradicts specific instructions about
18 how to complete the application—instructions that were published in the Federal Register and that 19
have the force of law. 20
6. The new policy has resulted in breathtakingly high rejection rates of applications 21
22 and petitions. For example, from late-2019—when the policy was first implemented—to July

23 2020, USCIS rejected nearly 12,000 U visa petitions filed by victims of enumerated crimes who

24 have collaborated with law enforcement.

25

7. Additionally, because the policy is confusing and internally inconsistent, USCIS

26 often fails to apply it correctly or consistently. USCIS has rejected applications that do, in fact,
27 include answers to all fields, as well as applications that leave a particular field blank, such as
28

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Case 3:20-cv-08143 Document 1 Filed 11/19/20 Page 4 of 31

1 location of a parent, even when another answer specifically indicates that the field is not relevant

2 (such as indicating that the parent is deceased).
3 8. Plaintiffs Akhilesh R. Vangala, I.S.A., and Kenny M. Castaneda Penate, on behalf
4 of themselves and similarly situated individuals, challenge this “Kafkaesque new processing
5 policy.”1 Each had their application rejected pursuant to the policy or the misapplication of the
6
7 policy. For each, the policy and the subsequent rejection has resulted in irreparable harm, such as

8 loss of eligibility for their children to obtain status as derivatives, loss of the ability to even apply

9 for an immigration benefit because a deadline has passed, or many months of additional delay
10 before they will receive employment authorization and other benefits. 11
9. Plaintiffs seek declaratory and injunctive relief that would (1) set aside the rejection 12
policy, and (2) compel Defendants to deem applications filed as of the date USCIS initially 13 14 received them—and not as of the date the agency later accepted the refiling of the previously-
15 rejected application.

16

JURISDICTION AND VENUE

17

10. This case arises under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et

18 seq.
19 11. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, as a civil action arising
20
under the laws of the United States, and the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361. 21

22 The Court may grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201–2202, 5

23 U.S.C. § 702, and 28 U.S.C. § 1361. The United States has waived its sovereign immunity

24 pursuant to 5 U.S.C. § 702.

25

1
26

Opinion, Catherine Rampell, This Latest Trick from the Trump Administration Is One of the

Most Despicable Yet, Wash. Post (Feb. 13, 2020); see also Charles Davis, Bureaucracy as a

27 Weapon: How the Trump Administration Is Slowing Asylum Cases, The Guardian (Dec. 23, 2019)

(describing USCIS’s new policy of “pedantic” application rejections). 28

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF - 3

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1

12. Venue is proper in the Northern District of California pursuant to 28 U.S.C.

2 § 1391(e), because Defendants are officers or employees of the United States or agencies thereof

3 acting in their official capacities. A substantial part of the events or omissions giving rise to the
4 claims occurred in this district, and Plaintiffs Akhilesh R. Vangala and I.S.A. reside in this district,
5
6 as do many putative class members.

7

INTRADISTRICT ASSIGNMENT

8

13. The claims of Plaintiff I.S.A. arise in the county of San Francisco, in the city of San

9 Francisco. Therefore, assignment to the San Francisco Division of this Court is proper under N.D.
10 Local Rule 3-2(d). 11
PARTIES 12
14. Plaintiff Akhilesh R. Vangala is a noncitizen from India who entered the United 13 14 States on a student visa and subsequently became the victim of a crime. On or about April 1, 2020,
15 Mr. Vangala submitted his petition for a U visa using Form I-918. On May 27, 2020, USCIS

16 rejected his petition pursuant to its new policy. However, the rejection notice was not delivered to

17 Mr. Vangala’s attorney until June 29, 2020. Because of USCIS’s rejection, Mr. Vangala’s place in
18 the U visa queue is many months further behind where it should be, and he remains without 19
employment authorization. 20
15. Plaintiff I.S.A. is a noncitizen from Guatemala who has lived in the United States 21
22 for more than 15 years. On December 30, 2019, I.S.A. submitted a petition for a U visa using Form

23 I-918 and included her children as derivatives using Form I-918, Supplement A. USCIS rejected

24 I.S.A.’s petitions pursuant to its new policy on January 30, 2020. As a consequence of USCIS’s

25 rejection, I.S.A.’s oldest son aged out of eligibility for inclusion as a derivative on I.S.A.’s
26 subsequently refiled U visa petition and now faces the threat of deportation.
27 16. Plaintiff Kenny M. Castaneda Penate is a noncitizen from El Salvador who
28
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1 entered the United States in 2019 with her two minor children to seek asylum. On July 9, 2020,

2 within one year of arriving in the United States, Ms. Castaneda filed an application for asylum
3 (and associated relief) using Form I-589 and included her two children as derivatives. On July 14,
4 2020, USCIS rejected Ms. Castaneda’s application based on the assertion that the application did
5 6 not comply with its new policy. As a result, she missed the statutory one-year deadline for filing
7 her asylum application.

8

17. Defendant U.S. Citizenship and Immigration Services is a component of the

9 Department of Homeland Security (DHS), 6 U.S.C. § 271(a)(1), and an “agency” within the
10 meaning of the APA, 5 U.S.C. § 551(1). USCIS is responsible for adjudicating humanitarian 11
immigration benefit applications. 12
18. Defendant U.S. Department of Homeland Security is an executive agency of the 13 14 United States and an “agency” within the meaning of the APA. 5 U.S.C. § 551(1). DHS is
15 responsible for implementing the Immigration and Nationality Act (INA), including provisions

16 relating to humanitarian immigration benefit applications. DHS has authority to adjudicate such

17 applications and delegates this authority to USCIS.

18

LEGAL BACKGROUND

19 19. USCIS’s new rejection policy creates significant procedural hurdles preventing
20

Plaintiffs from successfully submitting applications. In addition, the delays caused by the rejection 21

22 policy substantively impact, and in some cases, permanently foreclose, class members from

23 qualifying for the humanitarian benefits provided by Congress.

24

I. Legal Framework for Immigration Benefits

25

20. Plaintiffs and proposed class members are, inter alia, victims of violent crimes,

26 human trafficking, and domestic violence; children who have been abandoned, abused, or
27 neglected; widowers; and affirmative asylum seekers who have filed applications with USCIS in
28

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1 order to secure lawful status in the United States.

2

21. Remarkably, in rolling out its new rejection policy, USCIS has targeted precisely

3 those applications required to obtain humanitarian benefits, including the follow forms of relief:

4 A. Asylum
5

6

22. Noncitizens fleeing persecution or torture may apply to USCIS for asylum (and

7 related relief) by filing Form I-589 (Application for Asylum and for Withholding of Removal).

8 The asylum statute directs the Attorney General to “establish a procedure for the consideration of

9 asylum applications” filed by noncitizens “physically present in the United States.” 8 U.S.C.

10 § 1158(a), (e).

11 23. Asylum seekers must file applications within one year of their last arrival in the
12 United States (with certain limited exceptions). Id. § 1158(a)(2)(B).
13

14

24. Following a waiting period, asylum applicants are eligible to apply for and be

15 granted employment authorization while their asylum applications remain pending. 8 C.F.R.

16 § 208.3(c)(3).

17

25. Those who are granted asylum may not be removed to the country in which they

18 fear persecution, may obtain legal status, are authorized to work, and may apply for lawful
19 permanent residence after one year. 8 U.S.C. § 1158(c)(1)(A) (prohibiting removal); id. § 1159(b)
20
(authorizing adjustment of status); id. § 1158(c)(1)(B) (employment authorization); 8 C.F.R. 21

22 § 208.7(a) (employment authorization). In addition, an asylee may seek to include a spouse and/or

23 children in an application, or once it is granted, file a petition to accord them derivative asylum

24 status. 8 C.F.R. §§ 208.21(a), 208.3(a).

25

B. U Visas

26 26. Congress passed the Victims of Trafficking and Violence Protection Act of 2000
27 (VAWA 2000) in order to “combat trafficking in persons, especially into the sex trade, slavery,
28

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1 and involuntary servitude,” and to reauthorize existing programs aimed at preventing violence

2 against women. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106–386,
3 114 Stat. 1464 (2000).
4 27. Victims of violent crimes who provide assistance to law enforcement officials may
5 6 petition for a U visa for themselves and certain close relatives by filing Form I-918 (Petition for U
7 Nonimmigrant Status), and the relevant accompanying forms, including Form I-918, Supplement

8 A (Petition for Qualifying Family Member of U-1 Recipient), and the required Form I-918,

9 Supplement B (U Nonimmigrant Status Certification completed by the certifying law enforcement
10 officer or a judge). 8 U.S.C. § 1101(a)(15)(U); 8 C.F.R. § 214.14. 11
C. T Visas 12
28. Victims of human trafficking may petition for a T visa by filing Form I-914 13 14 (Application for T Nonimmigrant Status), and relevant accompanying forms, including Form I-
15 914, Supplement A (Application for Immediate Family Member of T-1 Recipient), and the

16 optional Form I-914, Supplement B (Declaration of Law Enforcement Officer for Victim of

17 Trafficking in Persons).

18

29. To apply for a T Visa, a trafficking victim must file Form I-914 and initial evidence

19 with USCIS. 8 C.F.R. § 214.11(d)(1)–(2). Noncitizens applying for T visas may also apply for
20

derivative T visas for qualifying family members by submitting Form I-914, Supplement A and 21

22 initial evidence to USCIS for each family member for whom the applicant seeks a derivative T

23 visa. 8 U.S.C. § 1101(a)(T)(ii); 8 C.F.R. § 214.11(k)(1).

24

D. Self-Petitions and Petitions to Remove Conditions of Residence

25

30. Congress created Special Immigrant Visas for several groups of noncitizens, 8

26 U.S.C. § 1101(a)(27), including especially vulnerable populations such as children who have been
27 placed with custodians by state courts due to abandonment, abuse, or neglect, id. § 1101(a)(27)(J).
28

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1

31. To apply for a Special Immigrant Visa, the noncitizen must file Form I-360, along

2 with the required supporting documentation. 8 C.F.R. §§ 204.5, 204.11.
3 32. A youth applying for a special immigrant juvenile visa—one type of Special
4 Immigrant Visa—must first be declared dependent upon a juvenile court or placed in the custody
5 6 of a state agency or a court appointed individual, and have been the subject of certain fact findings.
7 8 C.F.R. § 204.11(c)(3)–(6). To obtain special immigrant status, the youth must then file an

8 application before the state court loses jurisdiction over the youth, and in all cases, before the

9 youth turns 21 years old. Id. § 204.11(c)(1).

10

33. Congress has also provided a process for self-petitions whereby widows and victims

11 of domestic violence with qualifying relationships may file a self-petition in order to secure status
12 and stability in this country without reliance on the U.S. citizen or lawful permanent resident
13

14 family member. 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(iii).

15

34. A self-petition is filed on Form I-360, along with the required supporting evidence.

16 8 C.F.R. 204.2(b)(2); id. § 204.2(c)(6)(ii).

17

35. Noncitizens who have been granted conditional residence status due to their recent

18 marriage to a U.S. citizen (or due to their biological parent’s marriage to a U.S. citizen), are
19 required to file a joint petition to remove conditions of residence within two years of being granted
20
such status. 8 U.S.C. § 1186a(c)(1)(A). Congress has also provided relief for conditional 21

22 permanent residents who are widows or victims of domestic violence, allowing for them to seek a

23 waiver from the joint filing. 8 U.S.C. § 1186a(c)(1)(A), (c)(4).

24

36. This petition to remove conditions of residence is submitted on Form I-751. 8

25 C.F.R. § 216.4(a)(1). 26

27

28
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1 II. USCIS’s Instructions Regarding the Application and Receipt Process

2

37. USCIS publishes written instructions for completing forms for immigration

3 benefits, such as Form I-589, Form I-918, Form I-914, Form I-360, and Form I-751. These
4 published instructions go through notice and comment procedures and are available with the forms
5
6 on the USCIS website.

7

38. The instructions are incorporated into the regulations governing the submission of

8 each form and therefore carry the force of law. 8 C.F.R. § 103.2(a)(1).

9

39. For the vast majority of USCIS forms, including those at issue in this case, an

10 application is submitted to USCIS by sending a completed paper copy of the application form,
11 with supporting documentation, to a specific USCIS office. If USCIS accepts the application form,
12 USCIS sends the applicant a Notice of Action on Form I-797C acknowledging its receipt of the
13
14 application (including any supplements) “as of the actual date of receipt.” 8 C.F.R.

15 § 103.2(a)(7)(i).

16

40. If the application is missing evidence, the governing regulations provide that

17 USCIS may either: (a) deny the benefit; (b) request that the applicant or petitioner submit more

18 information or evidence by a date certain (Request for Evidence, or RFE); or (c) notify the
19 applicant or petitioner of an intent to deny the benefit and require a response by a date certain
20
(Notice of Intent to Deny, or NOID). 8 C.F.R. § 103.2(b)(8)(ii), (iii). 21

22

41. RFEs or NOIDs “specify the type of evidence required” to establish eligibility for

23 the immigration benefit. Id. § 103.2(b)(8)(iv). USCIS sends these documents through regular or

24 electronic mail.

25

42. When USCIS follows the governing regulatory RFE or NOID process, it does not

26 reject the application. Rather, USCIS treats the application filed as of the date of receipt and
27 provides a date certain by which an applicant must submit the missing information or evidence.
28

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1

43. Indeed, the regulations authorize USCIS to reject an application form in only four

2 situations: if the application is not: 1) “[s]igned with [a] valid signature;” 2) “[e]xecuted;” 3)

3 “[f]iled in compliance with the regulations governing the filing of the specific application, petition,

4 form, or request;” or 4) “[s]ubmitted with the correct fee(s).” Id. § 103.2(a)(7)(ii)(A)–(D).
5

6

44. If USCIS rejects an application for any of these four reasons, the rejected

7 application “will not retain a filing date.” Id.; see also Form I-589 Instructions at 9 (indicating the

8 one-year period an applicant must wait for employment authorization does not begin until USCIS

9 accepts a completed application); Form I-918 Instructions at 15 (“A petition or supplement is not

10 considered properly filed until accepted by USCIS.”); Form I-914 Instructions at 12 (same).
11 III. The Rejection/Blank Space Policy
12 45. Application forms for immigration benefits all consist of questions and
13
14 corresponding blank fields in which the petitioner or applicant may provide an answer.

15

46. In 2019, USCIS began to implement a new rejection or blank spaces policy (or

16 series of similar policies, which together are referred to here as a policy) that requires applicants to

17 provide a written response to each and every field on certain application forms.

18

47. For at least twenty years prior to this new policy, the agency consistently followed a

19 uniform policy and practice regarding rejections.
20

48. Prior to this new policy, USCIS followed the governing regulations and only 21

22 rejected applications that were mailed or delivered to the correct filing address if (1) a page of the

23 application form was missing or, the application was missing (2) a signature or (3) filing fee.

24

49. Prior to this new policy, USCIS followed the governing regulations and did not

25 reject an application simply because the applicant did not provide a response to every single field
26 on the application.
27 50. Prior to this new policy, USCIS followed the governing regulations and, if it
28
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1 determined that additional information was required, USCIS would issue an RFE or NOID.

2

51. Prior to this new policy, in most cases, USCIS would adjudicate—without issuing

3 an RFE or NOID—applications that contained blank fields or missing information that was not

4 essential.
5

6

52. The new rejection policy was an abrupt departure from USCIS’s past practice.

7

53. In implementing the new policy, USCIS did not change the published instructions

8 to the relevant forms, but simply added, and periodically amended, text to its website.

9

54. The new policy dramatically increased the number of rejections for forms subject to

10 the new policy.
11 55. The new policy has resulted in the rejection of forms that were in compliance with
12 the form instructions (but not the new policy), forms that were in compliance with the new policy,
13
14 and forms that may or may not have been in compliance with the new policy, which was so

15 imprecise it could not be consistently applied.

16

A. Form I-589 (Asylum)

17

56. USCIS implemented its rejection policy first with respect to Form I-589.

18 In October 2019, USCIS posted the following “Alert” to its webpage concerning the I-589 form: 19

20

21

22

57. As of the date of this complaint, this specific Alert is no longer posted at the top of

23 USCIS’s webpage.

24

58. Instead, USCIS has buried the following paragraph under a tab providing

25

26

27

28
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1 information for “Where to File” and after listing where an applicant should send the Form I-589:

2

59. Around the same time the Alert was posted to the USCIS webpage, USCIS created,

3 but did not provide public notice of, new internal Standard Operating Procedures for the Form I-
4 589 (Form I-589 SOP). The new SOP was dated September 24, 2019. This SOP directed USCIS
5
6 personnel charged with screening Form I-589s to reject applications that left certain fields blank.

7 For example, the Form I-589 SOP directed adjudicators to reject applications that did not supply a

8 response to fields requesting the asylum seeker’s middle name, other names used, passport or

9 travel document number, certain family information, and the asylum seeker’s name written in their

10 native alphabet, among others.

11 60. Subsequently, USCIS began rejecting Form I-589s that left response fields to
12 questions blank or did not use specific terminology to indicate that a question was inapplicable.
13

14

61. Other than the “Alert” posted to that particular webpage, USCIS did not publicize

15 its new Form I-589 rejection policy and the reversal of its longstanding prior practice and policy.

16

62. As a consequence of the rejection policy, hundreds of asylum seekers received

17 rejection notices. An analysis conducted by the American Immigration Lawyers Association

18 (AILA) of 189 rejected asylum applications received between November 29, 2019 and May 1,
19 2020, revealed that all were rejected for having at least one blank space on the Form I-589. AILA,
20 AILA Policy Brief: USCIS’s “No Blank Space” Policy Leads to Capricious Rejections of Benefits
21
22 Requests 3 (Oct. 22, 2020) (AILA Policy Brief).2

23

63. The new rejection policy is inconsistent with the language on the Form I-589 itself.

24 Form I-589’s use of the language “if any” or “if applicable” after many questions indicates that an

25 applicant should leave a field blank if it does not apply to them. As an example of the specific 26

27
2
28

Found at https://www.aila.org/advo-media/aila-policy-briefs/uscis-no-blank-space.

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1 inconsistencies, the phrase “if any” is applied to the field requesting the applicants’ spouse or

2 children’s passport or identification number, yet the Form I-589 SOP directs an adjudicator to
3 reject an application if this field is left blank.
4 64. USCIS has not applied this new rejection policy in a consistent manner. For
5 6 example, USCIS has rejected an application that provides a response to every question simply
7 because it did not use USCIS’s preferred terminology of “N/A” rather than “not applicable” or

8 “none.” Such arbitrary rejections contravene the Form I-589 instructions, which permit responses

9 like “none” or “not applicable.” See Form I-589 Instructions at 5; see also AILA Policy Brief at 5.

10

B. Forms I-918, I-918 Supplement A, I-918, Supplement B (U Visa Status)

11 65. On December 30, 2019, USCIS expanded the rejection policy to include the Form I-
12 918 and Form I-918, Supplement A. That day, USCIS posted the following “Alert”3 to its
13

14 webpage:

15

16

17

18

66. USCIS also implemented new Standard Operating Procedures for the Form I-918

19 (Form I-918 SOP) and accompanying supplements on December 13, 2019. The new SOP, which

20 was not made public, directed USCIS personnel charged with screening the Form I-918 and Form

21 I-918, Supplement A to reject applications that left specified fields blank.
22 67. The rejection criteria in the updated Form I-918 SOP were significantly more
23 expansive than the rejection criteria in prior SOP. The prior version only required submission of
24
25 pages one through ten of Form I-918 and the signature of the applicant (or their parent’s signature

26
3

USCIS subsequently amended the Alert to include information pertaining to the public

27 charge ground of inadmissibility, which is not at issue in the instant complaint. See USCIS, I-918,

Petition for U Nonimmigrant Status, https://www.uscis.gov/i-918 (last updated Sept. 3, 2020). 28

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1 if the applicant was younger than 14). Similarly, the rejection criteria for the Form I-918,

2 Supplement A previously required only the submission of all pages of the form, the correct

3 identifying information for the principal crime victim applicant and their qualifying family

4 member, and the applicant’s signature.
5

6

68. USCIS further amended the Form I-918 SOP on May 7, 2020, which again was not

7 published or made public. The amended Form I-918 SOP directs adjudicators to reject Forms I-918

8 (and Forms I-918, Supplement A) that leave specified fields blank, such as middle name.

9

69. On June 30, 2020, USCIS expanded the Alert to include the Form I-918

10 Supplement B: 11

12

13

14

15

16 Other than these discreet Alert postings, USCIS did not notify the public of the expansion of the

17 rejection policy to the Form I-918 and accompanying supplements.

18

70. The Alert conflicts with the published instructions for the Form I-918 (including

19 Form I-918, Supplements A and B). Those published instructions explicitly direct crime victim
20

applicants (completing the application and/or Form I-918, Supplement A) and certifying law 21

22 enforcement officials (completing Form I-918, Supplement B) to leave certain fields blank either

23 when a question does not apply or when the crime victim or certifying law enforcement official

24 does not know the answer to the question. See, e.g., Form I-918 Instructions at 4, 7; Form I-918

25 Supplement B Instructions at 2.
26 71. Other portions of the Form I-918, Supplement A instructions direct applicants to
27 complete fields only when certain conditions apply, causing further confusion for being
28
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1 inconsistent with the Alerts. See, e.g., Form I-918 Instructions at 8.

2

72. The rejection rate immediately after the initial implementation of the new policy

3 reached as high as 99.6 percent on January 13, 2020. That day, only one Form I-918 or
4 Supplement A of 234 reviewed was deemed acceptable. The weekly rejection rate remained above
5
6 50 percent through March 13, 2020, and was still as high as 37.4 percent as of July 2020.

7

73. Moreover, USCIS rejected Form I-918 applications that did attempt to comply with

8 the blank space policy. The agency also rejected some applications that completed all fields but

9 answered one or more of the fields with one of the Alert’s suggested responses (e.g., “none”)

10 rather than another of the Alert’s suggested responses (e.g., “N/A”).
11 74. In some cases, USCIS also rejected applications that used “N/A” for blank fields.
12 75. The new rejection policy contradicts the instructions to Form I-918, Form I-918,
13
14 Supplement A, and Form I-918, Supplement B.

15

C. Forms I-914 and I-914 Supplement A (T Visas)

16

76. In March 2020, USCIS again expanded the new rejection policy to the Form I-914

17 and Form I-914, Supplement A, for T visa applicants, posting the following Alert4 to its webpage: 18

19

20

21

22

23

24

25

26
4

USCIS subsequently amended the Alert to include information pertaining to the public

27 charge ground of inadmissibility, which is not at issue in this case. See USCIS, I-914, Application

for T Nonimmigrant Status, https://www.uscis.gov/i-914 (last updated Jun. 30, 2020). 28

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1

77. This Alert conflicts with the instructions for the Form I-914, which direct

2 trafficking victims to leave certain fields blank either when a question does not apply to the

3 trafficking victim or her family member or when the trafficking victim does not know the answer

4 to the question. See, e.g., Form I-914 Instructions at 3–5.
5

6

78. This Alert also creates confusion because it refers to reducing the need for USCIS

7 to issue RFEs when information is missing. In practice, and pursuant to other language in the

8 Alert, USCIS rejects applications with blank spaces rather than issuing RFEs.

9

D. Form I-360 (Self-Petitions)

10

79. Recently, USCIS further expanded the new rejection policy to the Form I-360 used

11 by, inter alia, widows, children who have been neglected, abused or abandoned, and certain
12 victims of domestic violence with a qualifying relationship.
13

14

80. USCIS did not even include an Alert on the form’s web page. Instead, buried under

15 a tab providing information for “Where to File,” and after listing where a petitioner should send

16 the Form I-360, the following language now appears:

17

18

81. The website notation implementing the rejection policy directly conflicts with the

19 Form I-360 as well as the form’s instructions.
20
82. For example, the Form I-360 explicitly directs petitioners to leave certain responses 21

22 blank if the question is inapplicable or the answer is “none.” See Form I-360 at 3. Additionally, the

23 form as well as its instructions repeatedly place the qualifiers of “if any” or “if applicable” in front

24 of certain fields, suggesting to the petitioner that responses are not required.

25

E. Form I-751 (Petition to Remove Conditions)

26 83. Similarly, USCIS has also expanded the rejection policy to the Form I-751, which
27 must be filed by spouses and step-children of U.S. citizens who have been granted conditional
28

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1 resident status. The form provides critical relief for, inter alia, widows and victims of domestic

2 violence, by waiving the general requirement that the U.S. citizen join in filing the petition for
3 removal of conditions of residence.
4 84. USCIS did not even include an Alert on the form’s web page. Instead, buried under
5 6 a tab providing information for “Where to File,” and after listing where a petitioner should send
7 the Form I-751, the following language now appears:

8

9

10

85. The website notation and form instructions regarding the rejection policy conflict

11 with the Form I-751.

12 IV. Lack of Adequate Notice, Reasoning, and Required Procedures for the Rejection Policy

13

86. The rejection policy contravenes USCIS’s longstanding policy and practice of

14 accepting and either adjudicating forms containing blank answer fields or issuing RFEs and
15 NOIDs if appropriate.
16 87. At the time USCIS implemented the rejection policy, it did not provide notice in the
17 18 Federal Register. The only way that applicants subject to the policy, as well as their attorneys,
19 could learn of the USCIS policy change was (1) through the “Alerts” posted in different locations

20 on the USCIS webpages for each application type or (2) through a rejection.

21

88. USCIS also did not engage in notice and comment rulemaking prior to

22 implementing the new rejection policy.
23 89. Furthermore, the agency failed to provide a reasoned explanation for implementing
24 the new policy. USCIS did not consider the reliance interests of applicants or their attorneys.
25
26 Moreover, USCIS did not appear to consider the ability of the many pro se applicants to access,

27 understand, and follow the new instructions, which (1) are only available in English and Spanish,

28
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1 and only available on a webpage, (2) contradict the published form instructions, and (3) are

2 inconsistent with the most natural reading of the forms to only require information applicable to
3 the applicant.
4 90. USCIS also failed to consider the less onerous alternatives to the policy the
5 6 governing regulations provide, such as issuing an RFE or NOID. This approach—which is set
7 forth in the regulations and which USCIS has followed for years—preserves the applicant’s filing

8 date and avoids the consequences of rejecting the application outright.

9

91. The new policy requires adjudicators to reject applications for reasons that are

10 irrelevant to their eligibility. The policy requires rejections even where applications fully disclose

11 the necessary substantive information regarding eligibility for the immigration benefits.
12 V. Consequences of Rejection of an Application Under the New Rejection Policy
13

14

92. The impact of the rejection policy on applications for immigration benefits has been

15 significant and widespread. In many cases, the policy has led to dire consequences for

16 exceptionally vulnerable individuals and families. Specifically, the rejection policy has prevented

17 applicants from complying with the rigid statutory timelines governing deadlines and eligibility
18 based on the age of the applicant or family member. As a result, many applicants have been or will 19
be unable to secure a humanitarian benefit for themselves or for their families. 20
93. Extensive processing delays compound the harm caused by the rejection policy. 21
22 USCIS routinely takes weeks to process the applications it receives and to determine whether to

23 accept or reject the submission. It often takes USCIS at least a month to inform an applicant that it

24 has rejected an application. The applicant (or their attorney, if any) must then refile the amended

25 application, a process which takes additional time and can add additional costs related to
26 preparation, mailing, or legal services fees. Even then, due to inconsistent adjudication, USCIS
27 may still reject the application under the new policy based on perceived deficiencies that were not
28
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1 identified in the first rejection notice, further delaying the applicant’s ability to obtain status or

2 contingent benefits such as employment authorization.

3 94. In many instances, the date on which USCIS acknowledges receipt of the petition
4 directly impacts the substantive rights of the applicant and/or the applicant’s qualifying family
5
6 members.

7

95. For example, asylum seekers face serious harm from this policy. By statute, they

8 must file their applications for asylum within one year of their arrival to the United States. 8

9 U.S.C. § 1158(a)(2)(B). If USCIS rejects an asylum application, the rejection may cause the

10 asylum seeker to miss the one-year deadline, rendering the applicant ineligible for asylum unless
11 they meet one of the narrow exceptions. Id. § 1158(a)(2)(D). Meanwhile, the applicant could be
12 arrested and detained for immigration purposes during this process. Pro se applicants for asylum
13
14 are likely to be particularly vulnerable to such draconian consequences.

15

96. In addition, asylum seekers may include in their applications unmarried children

16 who are under 21 years of age on the date USCIS acknowledges the Form I-589 as received. 8

17 C.F.R. § 208.21(a). However, if USCIS rejects an asylum application and an applicant’s child
18 turns 21, the child would age out and no longer qualify as a derivative when the asylum seeker 19
resubmits the application. 20
97. The rejection policy also delays asylum seekers’ ability to obtain employment 21
22 authorization. Asylum applicants must wait a specified period of time after their application is

23 accepted until they can seek employment authorization based on the pending status of the

24 application. Blank space policy rejections thus significantly delay asylum seekers’ ability to obtain

25 employment authorization, leaving them with no means to support themselves or their families for
26 months.
27 98. Similarly, victims of crime and trafficking, including self-petitioners who seek to
28
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1 apply based on domestic violence, are eligible to include certain family members, but that is

2 dependent upon the age of the applicant and the family member at the time of filing.5
3 99. Moreover, individuals may lose their ability to obtain a U visa, which is contingent
4 on the acceptance of Form I-918 and initial evidence within six months of the date on which a law
5 6 enforcement official or judge signed Form I-918, Supplement B. 8 C.F.R. § 214.14(c)(2)(i). Thus,
7 when USCIS rejects Form I-918, the crime victim is unable to simply reapply if the certification

8 has expired. Instead, the applicant must obtain a renewed certification. Acquiring a new

9 certification is always time consuming and may be difficult or impossible as law enforcement
10 officials may be unable or unwilling to issue a second certification. 11
100. Third, because of the statutory limitation on the number of U and T visas which 12
USCIS can award each year, extremely long waiting lists have developed. Every fiscal year, 13 14 USCIS may award only 10,000 U visas to crime victims and 5,000 T visas to human trafficking
15 victims (as principal applicants). 8 U.S.C. § 1184(p)(2)(A), (o)(2); 8 C.F.R. §§ 214.14(d)(1),

16 214.11(j).

17

101. For U visas, USCIS has reached the statutory cap every year since 2010, and by the

18 end of the second quarter of 2020, more than 153,000 Form I-918s were pending. As of October
19 2020, USCIS takes more than four and a half years to begin adjudicating Form I-918. For T visas,
20
it takes USCIS anywhere from a year and a half to nearly two and a half years to begin 21

22 5

Victims who are under 21 years of age on the date Form I-918 or Form I-914 is received

23 may request a derivative U or T visa for four categories of family members: (i) a spouse, (ii)

unmarried children under 21 years of age on the date Form I-918 or Form I-914 is received, (iii) 24 parents, and/or (iv) unmarried siblings under 18 years of age on the date the petition is received.

25

See 8 U.S.C. § 1101(a)(15)(T)(ii)(I), (a)(15)(U)(ii)(I); id. § 1184(o)(4)–(5), (p)(7); 8 C.F.R. §§ 214.14(a)(10), 214.11(k)(1)(ii). In contrast, victims who are 21 years of age or older when

26 Form I-918 or Form I-914 is received may only request a derivative U or T visa for two categories of family members: (i) spouse and/or (ii) unmarried children under 21 years of age on the date the

27 petition is received. 8 U.S.C. § 1101(a)(15)(T)(ii)(II), (a)(15)(U)(ii)(II); id. § 1184(o)(4),

(p)(7)(A); 8 C.F.R. §§ 214.14(a)(10), 214.11(k)(1)(i). 28

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1 adjudicating Form I-914. These time periods for adjudication have increased as the backlog

2 steadily grows. Delays caused by USCIS’s rejection of a U or T visa application will

3 disproportionally extend the individual’s wait due to these backlogs.

4 INDIVIDUAL PLAINTIFFS’ ALLEGATIONS
5

6

102. Plaintiff Akhilesh R. Vangala (Mr. Vangala) is a noncitizen from India who

7 originally entered the United States on an F1 visa to attend university.

8

103. While a student, Mr. Vangala was the victim of an armed assault and robbery. Mr.

9 Vangala helped report the crime to police.

10

104. On April 1, 2020, Mr. Vangala submitted his petition for a U visa using Form I-918.

11 Along with the application, he included Form I-918, Supplement B from the appropriate police
12 department. The Supplement B certified that Mr. Vangala had been the victim of a qualifying
13

14 crime and that he had been helpful to detectives investigating the crime.

15

105. Mr. Vangala’s attorney filled out every field—including the inapplicable ones—on

16 the Form I-918. Nevertheless, USCIS rejected the petition because, it claimed, Mr. Vangala did not

17 mark “N/A” in all the required boxes. The notice also stated that Mr. Vangala may be required to
18 fill out Parts 7 and 8—which request information regarding the preparer of the petition—even 19
though Parts 7 and 8 were completed on the application. 20
106. USCIS mailed the rejection notice on May 27, 2020—nearly two months after the 21
22 submission—to the wrong address. USCIS then re-mailed the notice, which Mr. Vangala’s

23 attorney did not receive until June 29, 2020, three months after the application was first submitted.

24

107. Mr. Vangala’s attorney resubmitted the same petition to USCIS on July 1, 2020,

25 and received a receipt notice on August 20, 2020. The receipt notice did not apply the original
26 submission date and instead adopted the refiling date.
27 108. The wrongful rejection of Mr. Vangala’s U visa petition places him many months
28
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1 later in the queue for adjudication of U visas.

2

109. Plaintiff I.S.A. (Ms. S.A.) is a noncitizen from Guatemala who has lived in the

3 United States for more than 15 years.
4 110. In 2019, Ms. S.A. survived a violent crime in San Francisco, California and
5
6 immediately sought law enforcement assistance. On December 28, 2019, Ms. S.A. submitted a

7 petition for a U visa using Form I-918, and included Supplement A forms for her two minor

8 children, J.W.L.S. (J.W.) who was just under 21, and J.A.L.S. (J.A.), who was well under 21.

9

111. At the time Ms. S.A. submitted her petition, USCIS had not yet posted its alert

10 regarding the rejection policy on the webpage for Form I-918.
11 112. Ms. S.A.’s children J.W. and J.A. entered the United States in 2016 and are
12 currently in removal proceedings. They face removal from the United States if either of them
13
14 cannot obtain lawful status through their mother’s U visa application. As a result, Ms. S.A. faces

15 potentially indefinite separation from her oldest child because USCIS rejected her initial

16 application.

17

113. Ms. S.A.’s U visa petition contained responses to all applicable fields, and only left

18 blank inapplicable fields, such as the fields for “Middle Name” under the “Other Names Used”
19 category, and the “Province,” “Postal Code,” “Alien Registration Number,” “U.S. Social Security
20
Number,” and “USCIS Online Account Number” fields. 21

22

114. USCIS rejected Ms. S.A.’s petition based on the new policy on January 30, 2020.

23 By this time, J.W.’s 21st birthday had passed and he had aged out of eligibility if USCIS did not

24 retain the original filing date.

25

115. In the rejection notice, USCIS erroneously stated that the petition was incomplete

26 for leaving several different fields on the application blank.
27 116. Less than two weeks after USCIS’s rejection notice, Ms. S.A. refiled the forms and
28

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1 supporting materials. She expressly requested that USCIS honor the original receipt date, which

2 would have been December 30, 2019.

3 117. USCIS subsequently issued a receipt notice dated February 18, 2020. Because this

4 date is after J.W. turned 21 years of age, he will not be eligible for derivative status.
5

6

118. Plaintiff Kenny M. Castaneda Penate (Ms. Castaneda) is a noncitizen who entered

7 the United States on July 14, 2019, to seek asylum. On July 9, 2020—within one year of entering

8 the United States—Ms. Castaneda filed Form I-589 to request asylum (and associated relief).

9

119. Ms. Castaneda included her two minor daughters as derivatives on the I-589

10 application.
11 120. Ms. Castaneda’s attorney answered “Not Applicable” to several fields on the asylum
12 application that were not relevant to Ms. Castaneda’s eligibility for asylum, such as fields related to
13
14 the applicant’s spouse, since Ms. Castaneda does not have one.

15

121. Ms. Castaneda’s attorney included Ms. Castaneda’s passport number in the

16 application, and thus did not list an alternative travel document number, as Ms. Castaneda does not

17 have one. This was the only space left blank in Ms. Castaneda’ application.

18

122. USCIS rejected the application on July 14, 2020, on the single basis that the

19 application did not place “N/A” in the field requesting Ms. Castaneda’s travel document number.
20

123. Ms. Castaneda’s attorney refiled the application on August 4, 2020, answering “Not 21

22 Applicable” to the request for Ms. Castaneda’s travel document number and requesting that the

23 application be given a receipt notice reflecting the original receipt date of July 9, 2020.

24

124. USCIS accepted Ms. Castaneda’s subsequent application but noted it received as of

25 August 5, 2020, instead of the original receipt date of July 9, 2020.
26 125. USCIS’s rejection notice caused Ms. Castaneda to miss the one-year filing deadline
27 for asylum applicants set forth in 8 U.S.C. § 1158(a)(2)(B). Therefore, Ms. Castaneda and her two
28
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1 minor daughters will be barred from seeking asylum if they do not demonstrate they should be

2 granted an exception to the one-year filing deadline.
3 CLASS ACTION ALLEGATIONS
4 126. Plaintiffs bring this action on behalf of themselves and all others who are similarly
5 6 situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). A class action is proper
7 because this action involves questions of law and fact common to the class, the class is so

8 numerous that joinder of all members is impractical, Plaintiffs’ claims are typical of the claims of

9 the class, Plaintiffs will fairly and adequately protect the interests of the class, and Defendants

10 have acted on grounds that apply generally to the class, so that final injunctive relief or

11 corresponding declaratory relief is appropriate with respect to the class as a whole.
12 127. Plaintiffs seek to represent the following nationwide class:
13

14

All individuals who have filed or will file an application with USCIS that USCIS has rejected or will reject (or has not issued or will not issue a filing receipt for) pursuant

15

to the rejection policy.

16

The “rejection policy” refers to any and all policies of USCIS implemented in or after 2019 to reject (or not issue a filing receipt for) an application because at least one

17

response field to a question on the application was left blank (other than the signature

of the applicant) or otherwise deemed to provide an inappropriate or incomplete

18

response.

19

128. The proposed class meets the numerosity requirements of Federal Rule of Civil

20 Procedure 23(a)(1). The class is so numerous that joinder of all members is impracticable. While

21 Plaintiffs are not aware of the precise number of potential class members, at a minimum USCIS

22 rejected several thousand humanitarian benefits applications pursuant to its new policy.
23

24

129. The proposed class meets the commonality requirements of Federal Rule of Civil

25 Procedure 23(a)(2). The members of the class are subject to rejection of their applications based on

26 the same USCIS policy. The lawsuit raises numerous questions of law common to members of the

27 proposed class, including whether the government’s action in rejecting these applications is
28
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1 arbitrary and capricious under the APA, whether the policy violated the APA’s rulemaking

2 requirements and/or the APA’s notice requirements
3 130. The proposed class meets the typicality requirements of Federal Rule of Civil
4 Procedure 23(a)(3) because the claims of the representative Plaintiffs are typical of the class. Each
5 6 of the class members has had an application rejected or will have their application rejected based
7 on USCIS’s policy and practice at issue in this case.

8

131. The proposed class meets the adequacy requirements of Federal Rule of Civil

9 Procedure 23(a)(4). The representative Plaintiffs seek the same relief as the other members of the
10 class—namely, an order prohibiting USCIS from rejecting applications under the policy and 11
compelling USCIS to honor the original filing date of applications rejected pursuant to the policy. 12
132. Plaintiffs will fairly and adequately protect the interests of the proposed class 13 14 members because they seek relief on behalf of the class as a whole and have no interest
15 antagonistic to other class members.

16

133. Plaintiffs are also represented by competent counsel with extensive experience in

17 complex class actions and immigration law.

18

134. The proposed class also satisfies Federal Rule of Civil Procedure 23(b)(2).

19 Defendants have acted on grounds generally applicable to the proposed class, thereby making
20

appropriate final declaratory and injunctive relief. 21

22

23

CAUSES OF ACTION

24

COUNT I

Violation of the APA

25

(Arbitrary & Capricious Agency Action - Failure to Provide a Reasoned Explanation)

26 135. All the foregoing allegations are repeated and realleged as though fully set forth
27 herein.
28

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1

136. Prior to late-2019, Defendants had a policy and practice of accepting and processing

2 applications in accordance with governing regulations set forth in 8 C.F.R.

3 § 103.2(a)(7)(ii), (b)(8).
4 137. Defendants abruptly changed this policy in 2019 without providing an explanation
5
6 for the departure from their past policy and practice.

7

138. Defendants’ policy violates 5 U.S.C. § 706(2)(A) because: (a) it created an abrupt

8 departure from past policy and practice without providing a reasonable justification for that shift;

9 (b) is unnecessary given existing regulations; (c) conflicts with existing regulations; (d) failed to

10 provide adequate notice to the relevant stakeholders; (e) failed to consider the reliance interests of

11 all applicants and the ultimate impact it would have on them, and (f) failed to consider less onerous
12 or consequential remedies for those whose applications are rejected.
13

14

COUNT II Violation of the APA

15

(Arbitrary & Capricious Agency Action – Ambiguous Policy Creating

Inconsistent Agency Practice)

16

139. All the foregoing allegations are repeated and realleged as though fully set forth 17

18 herein.

19

140. Prior to late-2019, Defendants had a policy and practice of accepting and processing

20 applications in accordance with governing regulations set forth in 8 C.F.R. §§ 103.2(a)(7)(ii),

21 103.2(b)(8).
22 141. Defendants abruptly changed this policy in 2019. Defendants’ new policy has
23 resulted in inconsistent, arbitrary, and capricious rejections. Such rejections include, but are not
24 limited to, the rejection of Plaintiffs’ applications, rejections of complete applications, rejections of
25
26 applications with blank spaces for fields that do not apply, rejections of complete applications that

27 include answers such as “none” instead of “n/a,” rejections where applicants write “none” as a

28
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1 response for their middle name, rejections erroneously claiming that an applicant did not follow

2 the policy, and rejections that conflict with the specific instructions for the form indicating that a

3 response is optional.
4 142. In addition, because the policy is confusing and internally inconsistent, the policy
5
6 invites inconsistency from USCIS employees responsible for processing the applications.

7

143. Under the APA, an agency must apply consistent adjudication standards to each

8 application or case before it.

9

144. Defendants’ wildly divergent adjudications under the rejection policy are so

10 inconsistent and unpredictable that they render the policy arbitrary and capricious.

11 145. These same actions demonstrate that the agency has acted in bad faith, issuing the
12 new policy not for any valid reason, but instead as a means to arbitrarily reject applications.
13

14

146. As a result, the rejection policy is arbitrary and capricious and violates the APA.

15

COUNT III

Violation of the APA

16

(Notice and Comment Rulemaking)

17 147. All the foregoing allegations are repeated and realleged as though fully set forth
18 herein.
19

20

148. Defendants’ new policy represents a dramatic departure from past practice that

21 impacts the substantive rights of applicants.

22

149. This new policy imposes new obligations on applicants for immigration benefits

23 and results in grave consequences for applicants whose applications are rejected.

24

150. Under the APA, new agency rules—regardless of whether they reverse a prior

25 policy—must go through notice and comment rulemaking. See 5 U.S.C. § 553.
26

151. The rejection policy is a legislative rule that required notice and comment 27

28
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1 rulemaking.

2

152. No other exception to notice and comment rulemaking applies to this policy.

3 153. Defendants implemented the rejection policy without notice-and-comment
4 rulemaking, in violation of the APA.
5

6

COUNT IV Violation of the APA

7

(Notice Requirement)

8

154. All the foregoing allegations are repeated and realleged as though fully set forth

9 herein.

10

155. Even if the rejection policy did not require notice and comment rulemaking, the

11 policy is either a “rule[] of procedure,” “substantive rule of general applicability,” “statement of
12 general policy,” or “interpretation[] of general applicability” that requires publication in the
13

14 Federal Register. 5 U.S.C. § 552(a)(1).

15

156. As relevant here, the Federal Register notice requirement serves the important

16 purpose of apprising applicants subject to an agency’s policy or procedural rules of how an agency

17 will treat an application.

18

157. Defendants failed to provide notice of the rejection policy in the Federal Register.

19 158. This failure has harmed Plaintiffs and class members in significant ways. Because
20

Defendants did not explain or inform the public about the policy in a meaningful way, Defendants 21

22 rejected and continue to reject thousands of applications pursuant to the new policy.

23

COUNT V

Violation of the APA

24

(Not in Accordance with Law – Violation of Agency Regulations)

25

159. All the foregoing allegations are repeated and realleged as though fully set forth

26 herein.
27 160. Under the APA, a court may set aside agency action that is “not in accordance with
28

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1 law.” 5 U.S.C. § 706(2)(A). Agency regulations are law that bind and govern an agency’s

2 conduct.
3 161. The rejection policy violates agency regulations that govern the adjudication of
4 applications because those regulations limit the bases on which USCIS may reject an application.
5 6 See 8 C.F.R. § 103.2(a)(7)(ii). While USCIS may reject applications that are not “[f]iled in
7 compliance with the regulations governing the filing of the specific application,” the regulations

8 governing most forms do not require an applicant to complete every single field.

9

162. In addition, USCIS’s rejection policy conflicts with the instructions for many of the

10 forms at issue, which were formally published after notice and comment. Under agency
11 regulations, these instructions are “incorporated into the regulations.” 8 C.F.R. § 103.2(a)(1). By
12 disregarding the instructions, USCIS’s actions are not in accordance with law.
13

14

PRAYER FOR RELIEF

15 WHEREFORE, Plaintiffs respectfully request that the Court:

16

a. Assume jurisdiction over this matter;

17 b. Certify a class pursuant to Federal Rule of Civil Procedure 23 in accordance with this

18 Complaint’s allegations;
19

20

c. Declare that Defendants’ rejection of immigration benefits applications based on the

21

rejection policy violates the Administrative Procedure Act;

22

d. Permanently enjoin Defendant USCIS from rejecting any immigration benefits

23

application based on the rejection policy;

24

e. Order USCIS to issue or reissue a receipt notice using the date on which the initial

25 application was filed, not the date that an application was re-filed, for any application that
26 was or will be rejected (or for which a filing receipt was not issued) because of the
27

28
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1

rejection policy;

2

f. Award Plaintiffs’ counsel reasonable attorneys’ fees under the Equal Access to Justice

3 Act, and any other applicable statute or regulation; and
4 g. Grant such further relief as the Court deems just, equitable, and appropriate.
5

6

Respectfully submitted,

7 s/ Trina Realmuto

8

Trina Realmuto (CA 201088) Mary Kenney (DC 1044695)*

9 Tiffany Lieu (WA 55175)* NATIONAL IMMIGRATION

10

LITIGATION ALLIANCE

10 Griggs Terrace

11

Brookline, MA 02446

12

(617) 819-4447

13 Zachary Nightingale (CA 184501) Helen Beasley (CA 279535)

14 VAN DER HOUT LLP

180 Sutter Street, Suite 500

15

San Francisco CA 94104

16

(415) 981-3000

Matt Adams (WA 28287)* Aaron Korthuis (WA 53974)* Margot Adams (WA 56573)* NORTHWEST IMMIGRANT RIGHTS PROJECT 615 Second Avenue, Suite 400 Seattle, WA 98104 (206) 957-8611

17

Attorneys for Plaintiffs

18 * Application for admission pro hac vice forthcoming

19 Dated: November 19, 2020

20

21

22

23

24

25

26

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