Unreported / Non-Citable
Background
The plaintiffs, Christine Denise Handel and Alen Vitas, were married in November 2020. She is a U.S. citizen living in Bakersfield, California; he is a Croatian citizen living in Zagreb. In January 2021, Handel filed a Form I-130 visa petition (the standard family-based immigrant visa petition) on her husband’s behalf. U.S. Citizenship and Immigration Services (USCIS) approved the I-130 in October 2022.
When Vitas appeared for his consular interview in Croatia in April 2023, the consular officer found him inadmissible under 8 U.S.C. § 1182(a)(9)(B) for previous unlawful presence in the United States and refused his visa application. He then filed a Form I-601 waiver of inadmissibility and a separate I-212 application for permission to reapply after deportation. Between August 2023 and September 2024, the plaintiffs sent multiple expedite requests, but USCIS had not adjudicated the I-601 by the time they filed this lawsuit.
The plaintiffs filed a petition for writ of mandamus and a complaint seeking injunctive relief, asking the court to compel USCIS to act. They asserted jurisdiction under the Mandamus Act, the Administrative Procedure Act, and the Declaratory Judgment Act, and argued that the delay caused them extreme hardship by separating the family. The government moved to dismiss for lack of subject matter jurisdiction and failure to state a claim.
The Court’s Holding
The court granted the motion to dismiss for lack of subject matter jurisdiction. The dispositive issue was the jurisdiction-stripping language in 8 U.S.C. § 1182(a)(9)(B)(v), which provides that ‘no court shall have jurisdiction to review a decision or action by the Attorney General regarding a waiver under this clause.’ Reading the statutory text and applying Supreme Court guidance about the broadening effect of the word ‘regarding’ in immigration statutes (Patel v. Garland, Bouarfa v. Mayorkas), the court found that the bar covers not just the ultimate decision to grant or deny a waiver but also actions ‘regarding’ the waiver process — including delays in adjudication.
The court was persuaded by the Seventh Circuit’s decision in Soni v. Jaddou, 103 F.4th 1271 (2024), and a string of district court decisions across the country holding that section 1182(a)(9)(B)(v) bars review of unreasonable-delay claims involving I-601 waivers. The court reasoned that ‘setting priorities — for example, how many employees to assign to processing applications under this clause’ — is itself an action ‘regarding’ waivers, and is therefore unreviewable.
The court rejected the plaintiffs’ alternative jurisdictional theories. Mandamus is unavailable because USCIS has no nondiscretionary duty to act within a specific timeframe; the 180-day suggestion in 8 U.S.C. § 1571(b) uses ‘should,’ which courts read as precatory and permissive, not mandatory. The Administrative Procedure Act provides no independent jurisdiction and does not apply where another statute precludes judicial review or commits the action to agency discretion. The Declaratory Judgment Act is purely procedural and does not enlarge federal jurisdiction.
Because none of the asserted jurisdictional grounds applied, the court did not reach the alternative TRAC-factor analysis (the six-factor test for assessing reasonableness of agency delay) or the substantive Rule 12(b)(6) analysis.
Key Takeaways
- 8 U.S.C. § 1182(a)(9)(B)(v) strips federal courts of jurisdiction to review not only USCIS’s ultimate decisions on I-601 unlawful presence waivers, but also delays in adjudicating those applications.
- The word ‘regarding’ in immigration jurisdiction-stripping provisions has a broad, sweeping effect under recent Supreme Court precedent.
- The Mandamus Act requires a clear, nondiscretionary duty to act — the 180-day suggestion in 8 U.S.C. § 1571(b) is precatory and does not create such a duty.
- The Administrative Procedure Act does not provide an independent jurisdictional basis and yields where the underlying statute precludes review.
- Joining the Seventh Circuit and many district courts, the Eastern District of California now disposes of I-601 delay mandamus petitions on jurisdictional grounds without reaching the TRAC factors.
Why It Matters
For California families with a noncitizen spouse stuck in lengthy I-601 unlawful presence waiver processing, this opinion forecloses what had been a popular litigation strategy: filing a federal mandamus petition to compel faster adjudication. Unless the Ninth Circuit takes a different position, federal courts in the Eastern District will dismiss these cases at the threshold.
For immigration practitioners, the opinion is a clear signal to focus on agency-level expedite requests, congressional inquiries, and other administrative remedies rather than mandamus litigation for I-601 delays. The legal landscape continues to consolidate around the Seventh Circuit’s reading of section 1182(a)(9)(B)(v) as a sweeping jurisdictional bar.