1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PREETESH CRIJOS BARRETTO, et al., Case No. 22-cv-04869-DMR

8 Plaintiffs,

ORDER GRANTING MOTION TO

9 v. STAY

10 UR M. JADDOU, et al., Re: Dkt. No. 13 11 Defendants.

12 Plaintiffs Preetesh Crijos Barretto and Eunice Ignatius Gonsalves filed this action under 13 the Administrative Procedure Act (“APA”), 5 U.S.C. § 501, against Defendants Ur M. Jaddou, 14 Director of the United States Citizenship and Immigration Services (“USCIS”) and Antony 15 Blinken, Secretary of the United States Department of State (“DOS”). Defendants now move to 16 stay the action pending the Ninth Circuit’s decision in Babaria v. Blinken, No. 22-16700 (9th Cir. 17 filed Oct. 28, 2022). [Docket No. 13.] Plaintiffs oppose the motion. [Docket No. 15.] This 18 matter is suitable for resolution without a hearing. Civ. L.R. 7-1(b). For the following reasons, 19 the motion to stay is granted. 20 I. BACKGROUND 21 A. Factual Background and Procedural History 22 Plaintiffs are citizens and nationals of India who reside in Newark, California. [Docket 23 No. 9 (Am. Compl.) ¶¶ 1, 2.] In this action, Plaintiffs challenge the process by which USCIS and 24 DOS allocate immigrant visas in connection with the adjudication of I-485 petitions. 25 In relevant part, Plaintiffs allege that USCIS requires that an immigrant visa be 26 immediately available at the time of both filing and approval of an adjustment of status petition. 27 Id. at ¶ 29. According to Plaintiffs, due to various factors, “it has become common place for a visa 1 application, but not ‘current’ or ‘immediately available’ at the time of approval . . .” Id. at ¶ 31. If 2 a visa is not immediately available at the time of adjudication of the petition because “more people 3 apply for a visa in a particular category than there are visas available for that month,” USCIS will 4 not issue a final decision on the petition, even if it is “otherwise approvable.” Id. at ¶¶ 24-29, 37- 5 39. 6 Plaintiffs further allege that DOS is responsible for “regulating visa issuance, enforcing the 7 statutory numerical limits on immigrant visas, and identifying when an immigrant visa [is] 8 ‘immediately available’” for the purpose of adjustment of status. DOS “created a system by which 9 it would identify a ‘current date’ each quarter, and any visa petitions that had been filed prior to 10 that current date would be considered ‘immediately available’ under the adjustment of status 11 statute.” This system remains in place. Id. at ¶¶ 16-18. Plaintiffs allege that “DOS will not 12 approve a visa request for an otherwise approvable adjustment of status applicant if their priority 13 date is after the ‘current’ date in a visa bulletin at the time of the adjustment of status approval.” 14 Id. at ¶ 41. The “priority date” is the filing date of a labor certification for a non-citizen. See id. at 15 ¶¶ 78-80. 16 Plaintiffs also describe “visa retrogression,” which is the “backwards” movement of the 17 “current date” in a visa bulletin:

18 Sometimes [an immigrant visa number] that is current one month will not be current the next month, or the cut-off date will move backwards 19 to an earlier date. This is called visa retrogression, which occurs when more people apply for a visa in a particular category than there are 20 visas available for that month . . . 21 Id. at ¶ 38. 22 According to Plaintiffs, the consequence of USCIS’s and DOS’s policies with respect to 23 visa issuance, retrogression, and adjudication of petitions for adjustment of status is that if an 24 “adjustment of status applicant files when their visa number is current but during the application’s 25 pendency the visa bulletin retrogresses and their visa number is no longer current at approval, 26 USCIS and DOS both refuse to issue a final decision on that adjustment of status application. 27 They apply an Adjudication Hold.” Id. at ¶ 42 (emphasis in original). Plaintiffs describe these 1 They further allege that the Adjudications Hold Policies are contrary to Congressional intent and 2 violate the APA. Id. at 1-2; ¶¶ 125-26, 134-35. 3 In June 2020 and October 2020, Plaintiffs filed I-485 petitions for adjustment to lawful 4 permanent resident status by obtaining visas in the EB-2 preference category, which remain 5 pending. Id. at ¶¶ 76-98. They allege that their priority date is November 19, 2014, that their 6 petitions are “adjudication ready,” and that “there are currently immigration visas available for 7 them,” Id. at ¶¶ 80, 94, 97, but that DOS recently moved the “current date” for visa approval to 8 April 2012, which pre-dates their priority date. Id. at ¶ 108. As a result, there are currently no 9 visas immediately available to Plaintiffs and their I-485 petitions are subject to the Adjudications 10 Hold policies. Id. at ¶¶ 109-111, 114, 115. 11 Plaintiffs allege three claims for relief in the operative amended complaint. First, they 12 allege that USCIS has unlawfully refused to finally adjudicate their I-485 petitions “based on an 13 ultra vires, unlawful, or illegal policy, requiring an immigrant visa to be current or immediately 14 available at the time of approval of the” petition in violation of the APA. Id. at ¶ 125. Second, 15 they allege that “DOS is unlawfully refusing to issue visa numbers to Plaintiffs upon USCIS’s 16 approval of Plaintiffs’ Forms I-485 based on an ultra vires, unlawful, or illegal policy, requiring 17 an immigrant visa to be current or immediately available at the time of approval of the 18 application” in violation of the APA. Id. at ¶ 134. Third, Plaintiffs allege that USCIS has 19 unreasonably delayed deciding their I-485 petitions in violation of the APA. Id. at ¶¶ 139-217. 20 They ask the court to declare the Adjudications Hold policies unlawful, enjoin USCIS and DOS 21 from applying their policies to Plaintiffs, and compel USCIS to decide Plaintiffs’ I-485 petitions 22 within 30 days. Id. at ¶¶ 219-224. 23 Plaintiffs filed the complaint on August 25, 2022. They filed an amended complaint on 24 October 28, 2022. Defendants filed the instant motion to stay on November 30, 2022. 25 B. Defendants’ Motion to Stay 26 Defendants move to stay this action pending the Ninth Circuit’s resolution of Babaria v. 27 Blinken, No. 22-16700 (9th Cir. filed Oct. 28, 2022). The plaintiffs in Babaria, who are 1 United States who have submitted Forms I-485 for adjustment of status with priority dates 2 between June 2012 and November 2014. Each plaintiff had a visa number available at the time of 3 their applications but no longer had one available at the time of adjudication. Babaria v. Blinken, 4 No. 22-CV-05521-SI, 2022 WL 10719061, at *1, 3 (N.D. Cal. Oct. 18, 2022). The Babaria 5 plaintiffs filed a complaint and motion for a temporary restraining order in late September 2022. 6 Id. at *4. They argued that visa retrogression by DOS, the backwards movement of “final action” 7 or “current” dates in a visa bulletin, is an “ultra vires policy.” The Babaria plaintiffs also argued 8 that previous amendments to the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101- 9 1537, prevent USCIS “from considering visa availability at the time of adjudication,” instead of at 10 the time of filing only. Id. at *2, 4. They sought a temporary restraining order/preliminary 11 injunction requiring USCIS and DOS to “continue adjudicating plaintiffs’ applications for 12 adjustment of status and allocating visa numbers for them” and argued that they would be 13 irreparably harmed in the absence of such an order. Id. at *4. 14 The district court denied the motion for a preliminary injunction on October 18, 2022. It 15 held that the plaintiffs had “little to no likelihood of success on the merits” on their claims. Id. at 16 *5. Specifically, the court held that “[t]there is no ambiguity” in the relevant statute, 8 U.S.C. § 17 1255(a), which grants the Attorney General discretionary authority to adjust the status of eligible 18 noncitizens, that “require[ed] the Court to look further to determine whether Congress intended to 19 prohibit the Attorney General from considering criteria beyond those set by Congress. Nor does 20 the legislative history indicate that Congress meant something other than what it said.” Id. at *5. 21 The court also held that the plaintiffs’ interpretation of section 1255(a) “would lead to a mismatch 22 between the number of visas available and the number issued, because a visa’s availability would 23 be committed at the time of application but reduced only at the time of approval,” which the court 24 concluded was as “an absurd result.” Id. The court also held that the plaintiffs had not shown 25 “extreme harm” that would justify a mandatory injunction, since “[a]bsent injunctive relief, 26 plaintiffs will remain eligible for adjustment of status for the pendency of their applications.” Id. 27 at *6 (quotation marks and citation omitted). It also held that the public interest favored the 1 The Babaria plaintiffs filed a notice of appeal to the Ninth Circuit on October 28, 2022. 2 The Ninth Circuit consolidated the appeal with two other cases, Singh v. Jaddou, No. 22-35702 3 (9th Cir. filed Sept. 2, 2022), and Datta v. Jaddou, No. 22-35773 (9th Cir. filed Sept. 30, 2022). 4 The opening and answering briefs have been filed and the Ninth Circuit has scheduled a hearing 5 on the consolidated appeals for March 29, 2023. See Babaria v. Blinken, No. 22-16700, Dkt. No. 6 15 (Dec. 21, 2022). 7 In their opening brief, the Babaria plaintiffs argued that the district court erred by finding 8 that they had not shown a likelihood of success on the merits of their claims that USCIS and 9 DOS’s “Adjudication Hold Policies” violate “clear Congressional intent” and “have no support in 10 the plain language of” section 1255(a) because the statute “does not require an immigrant visa to 11 be immediately available at the time of adjudication.” Babaria v. Blinken, No. 22-16700, Dkt. No. 12 10, Appellants Opening Brief at 4-7. They also argued that the Adjudication Hold Policies are 13 “irreparably harming” them because the policies “deprive them of their right to receive a final 14 decision on their pending adjustment of status petitions,” that they “face an indeterminate delay on 15 the adjudication of their adjustment of status applications while they wait for their date to be 16 current again,” and that “the indeterminate delay of their case prevents them from” several 17 benefits of lawful permanent residency. Id. at 20-22. 18 II. LEGAL STANDARD 19 Pursuant to the court’s power “to control the disposition of the causes on its docket with 20 economy of time and effort for itself, for counsel, and for litigants,” Landis v. N. Am. Co., 299 21 U.S. 248, 254 (1936), a court may “enter a stay of an action before it, pending resolution of 22 independent proceedings which bear upon the case.” Leyva v. Certified Grocers of Cal., Ltd., 593 23 F.2d 857, 863 (9th Cir. 1979). “This rule applies whether the separate proceedings are judicial, 24 administrative, or arbitral in character, and does not require that the issues in such proceedings are 25 necessarily controlling of the action before the court.” Id. at 863-64. In deciding whether to issue 26 a Landis stay, courts consider three factors: (1) “the possible damage which may result from the 27 granting of a stay”; (2) “the hardship or inequity which a party may suffer in being required to go 1 complicating of issues, proof, and questions of law which could be expected to result from a stay.” 2 CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). Whether to enter a stay pursuant to a 3 court’s inherent powers is a matter entrusted to the court’s discretion. See Landis, 299 U.S. at 254 4 (“[h]ow this can best be done calls for the exercise of judgment, which must weigh competing 5 interests and maintain an even balance.”). 6 “In cases where substantial litigation is likely to take place during the pendency of an 7 appeal, courts have at times granted a stay as a means of conserving judicial resources.” 8 Gustavson v. Mars, Inc., No. 13-CV-04537-LHK, 2014 WL 6986421, at *2 (N.D. Cal. Dec. 10, 9 2014) (citing Canal Properties LLC v. Alliant Tax Credit V, Inc., No. C04-03201 SI, 2005 WL 10 1562807, at *3 (N.D. Cal. June 29, 2005)). 11 III. DISCUSSION 12 Defendants argue that a stay is warranted pending a decision by the Ninth Circuit in 13 Babaria because it involves “the same legal issues that will control the outcome of the instant 14 matter.” Mot. 1. Plaintiffs do not dispute that Babaria presents the same legal issues but argue 15 that the Landis factors weigh against granting a stay. 16 A. Factors 1 and 2, Hardship to the Parties 17 Plaintiffs argue that they “continue to suffer harm,” presumably as a result of the delay in 18 adjudicating their I-485 petitions, and that delay in the determination of “Defendants’ impending 19 motion to dismiss and Plaintiffs’ impending partial motion for summary judgment prevents them 20 from” enjoying several benefits of lawful permanent residency.” Opp’n 3. Plaintiffs then list the 21 benefits of that status, including being able to acquire time towards naturalization, travel 22 internationally without seeking admission upon re-entry to the United States, apply for 23 immigration status for certain family members, and change employers or work for themselves 24 without seeking USCIS’s authorization, among other things. Id. According to Plaintiffs, “[t]he 25 ‘law’s delay’ will cause untold degrees and kinds of irreparable harm.” Id. (citation omitted). In 26 other words, Plaintiffs’ position is that a stay of this case will delay their adjustment to lawful 27 permanent resident status. Notably, a stay of this litigation will have no impact on USCIS’s 1 will a stay impact their current lawful status, which enables them to work in the United States and 2 travel abroad. See Am. Compl. ¶¶ 76, 94. Moreover, Plaintiffs’ articulation of the harm that will 3 result from a stay is entirely generalized and unspecific; Plaintiffs did not submit evidence 4 regarding the actual, particular harms they face if this case is stayed pending the Ninth Circuit’s 5 decision in Babaria. See Aliphcom v. Fitbit, Inc., 154 F. Supp. 3d 933, 938 (N.D. Cal. 2015) 6 (noting that “[c]ourts . . . are generally unwilling to presume delay is harmful without specific 7 supporting evidence.”). 8 Moreover, Plaintiffs’ argument appears to rest on the assumption that they will ultimately 9 prevail on their claims for relief and that a stay would delay that inevitable conclusion.1 Plaintiffs’ 10 likelihood of success on the merits of their claims is far from clear, based on the rulings in similar 11 district court cases. For example, the district court in Babaria found that the plaintiffs in that case 12 had “little to no likelihood of success on the merits” on their claim that USCIS may not consider 13 visa availability at the time it adjudicates a petition to adjust status. Additionally, the appeal in 14 Babaria was consolidated with two other pending appeals, Singh v. Jaddou, No. 22-35702 (9th 15 Cir. filed Sept. 2, 2022), and Datta v. Jaddou, No. 22-35773 (9th Cir. filed Sept. 30, 2022), 16 involving claims similar to those at issue in this case in which neither set of plaintiffs prevailed on 17 their motions for temporary restraining orders. Similarly, in Singh, the court denied a motion for a 18 temporary restraining order brought by two plaintiffs who filed I-485 petitions to adjust status. 19 Singh v. Jaddou, No. 2:22-CV-01180-RAJ, 2022 WL 4094373, at *1 (W.D. Wash. Sept. 2, 2022). 20 At the time the plaintiffs filed suit, their I-485 petitions had been pending for approximately 20 21 months. Id. They filed a motion for a temporary restraining order in which they asked the court to 22 order USCIS to “adjudicate their petitions by September 30, 2022 or before USCIS runs out of 23 visas”; approve the I-485 petitions; enjoin USCIS’s “Regression Policy” pursuant to which 24 “applications to adjust status become backlogged”; or “reserve” immigrant visas for issuance to 25 plaintiffs at the conclusion of their case if they prevailed. Id. The court denied the motion, 26 finding that the plaintiffs had not shown a likelihood of success on their claim that USCIS had 27 1 unreasonably delayed the adjudication of the I-485 petitions. Id. at *3-4. In Datta v. Jaddou, No. 2 2:22-CV-1302-JHC, 2022 WL 4547018, at *1 (W.D. Wash. Sept. 29, 2022), the plaintiffs are 3 approximately 200 families lawfully living and working in the United States who filed I-485 4 petitions to adjust status with priority dates ranging from April 2012 to December 2014. They 5 filed suit asking the court to declare USCIS and DOS’s retrogression policies unlawful and enjoin 6 the agencies from applying them, and to order USCIS to issue final decisions on their pending 7 petitions to adjust status within six months and DOS to issue available visa numbers upon 8 approval of the petitions. Id. After DOS announced that it was moving the current date in its visa 9 bulletin backward effective October 1, 2022, thus delaying adjudication of the plaintiffs’ petitions, 10 the Datta plaintiffs moved for a temporary restraining order to enjoin Defendants from “applying 11 their retrogression policies on October 1, 2022” to ensure that the plaintiffs would remain eligible 12 for adjustment of status when immigrant visas became available. Id. The court denied the motion 13 on the ground that the plaintiffs had “not shown that the facts and law clearly favor their position 14 such that issuance of a TRO would be appropriate.” Id. at *2 (emphasis in original). The court 15 found that “[q]uestions remain regarding whether there is a statutory or regulatory ‘specific, 16 unequivocal command’ to take discrete agency action that is judicially enforceable under the APA, 17 whether the agencies’ retrogression policies represent a lawful exercise of the discretion granted 18 them by Congress, and whether adhering to Plaintiffs’ position would force the agencies to violate 19 other statutory provisions.” Id. 20 Finally, Plaintiffs’ argument that they will generally be harmed by the delay in resolving 21 their claims is not particularly persuasive given the status of the consolidated appeals, which is 22 moving forward on a fairly expedited schedule. Briefing is nearly complete and oral argument has 23 been scheduled in March 2023, just two months from now. Plaintiffs may ultimately benefit from 24 waiting until the Ninth Circuit resolves the Babaria appeal, since a decision in the Babaria 25 plaintiffs’ favor could be dispositive of Plaintiffs’ claims in this case. 26 As to the hardship to Defendants if the court does not enter a stay, Defendants argue that 27 they will be harmed if they are required to proceed with this litigation, including likely motions 1 articulate any actual hardship, separate from having to defend this lawsuit if the court denies the 2 stay. See Aliphcom, 154 F. Supp. 3d at 938 (finding hardship to moving party if stay denied was 3 neutral where the only hardship established was moving forward with the litigation, citing 4 FormFactor, Inc. v. Micronics Japan Co., No. CV-06-07159 JSW, 2008 WL 361128, at *2 (N.D. 5 Cal. Feb. 11, 2008) (“The hardship related to defending a lawsuit is irrelevant when considering 6 whether to grant a stay.”)). 7 In sum, the court concludes that the hardship to either side from granting or denying a stay 8 is a neutral factor. 9 B. Factor 3, the “Orderly Course of Justice” 10 Defendants argue that a stay will simplify the legal issues, promote the orderly course of 11 justice, and conserve judicial resources. The court agrees. The Babaria appeal involves claims, 12 legal issues, and legal theories that are identical to those raised by Plaintiffs in this case. The 13 Babaria appeal is likely to provide substantial guidance that will impact the court’s decisions in 14 this case and may resolve Plaintiffs’ claims altogether. At the least, it will likely narrow the issues 15 before this court. Plaintiffs have indicated their intent to move for partial summary judgment. See 16 Opp’n 3. Judicial economy will best be served if the court does not expend resources on deciding 17 that motion before the Ninth Circuit likely rules on identical issues in Babaria. Additionally, a 18 stay will minimize the risk of inconsistent rulings. In sum, the Babaria appeal “is likely to 19 substantially advance the resolution of the parties’” dispute, see Aliphcom, 154 F. Supp. 3d at 939, 20 and conserve scarce judicial resources. 21 Considering all three Landis factors, the court concludes that “a stay would be the most 22 efficient and fairest course . . . [as] there are independent proceedings which bear upon the case,” 23 Gustavson, 2014 WL 6986421, at *3 (cleaned up), and would promote “the orderly course of 24 justice.” See CMAX, 300 F.2d at 268. 25 // 26 // 27 //

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to stay is granted. For docketing reasons, 2 the court will administratively close this case. Any party may reopen this case by filing a notice 3 within 14 days after the Ninth Circuit issues its mandate in the Babaria consolidated appeal. 4 5 Se DETICS

IT IS SO ORDERED. SS, »

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