U Visa Appellants: Advance-Parole Claims Split by U-Visa Stage

U Visa Appellants v. Director, U.S. Citizenship and Immigration Services, No. 24-6824, D.C. No. 3:23-cv-04657-RFL (N.D. Cal.) (9th Cir. Sept. 14, 2026), separates two U-visa processing stages and two different Article III inquiries. Judge Danielle J. Forrest wrote the opinion, joined by Judge Richard A. Paez; Judge Carlos T. Bea concurred in part and dissented in part. The panel affirmed dismissal of Administrative Procedure Act claims brought by petitioners who had received waiting-list determinations. It reversed the district court’s summary judgment dismissing the bona-fide-determination plaintiffs’ claim for lack of standing and remanded for consideration of additional alleged injuries and, if necessary, the merits.

The appellants occupied different U-visa processing stages

The consolidated plaintiffs lived in the United States and had pending U-visa petitions. One group had received waiting-list determinations. A second group had received bona fide determinations. Although both stages may be accompanied by forms of temporary protection, neither is final approval of U-visa status.

The distinction mattered because the waiting-list plaintiffs relied on 8 C.F.R. section 214.14(d)(2), while the bona-fide-determination plaintiffs relied on a different statutory and regulatory framework. The court analyzed the two groups separately rather than treating every pending U-visa petitioner as having the same agency-action claim.

Deferred action and parole were alternatives for the waitlist group

The waiting-list plaintiffs argued that the regulation required USCIS to provide parole after placing an eligible petitioner on the U-visa waiting list. Section 214.14(d)(2) says USCIS “will grant deferred action or parole.” The panel read those benefits as alternatives. For domestic waitlisted petitioners who had already received deferred action, an additional grant of parole remained discretionary.

That distinction controlled the section 706(1) claim: A court may compel a discrete agency action only when the law requires it. Because these plaintiffs had received deferred action, the regulation supplied no mandatory duty to grant them parole as well.

The court separately rejected two related theories. Section 214.14(d)(3), which stops accrual of unlawful presence for a waitlisted petitioner granted deferred action or parole, recognizes agency authority to use parole but does not require it. And 8 C.F.R. section 212.5(f) requires a travel document only after parole has been authorized; it does not transform USCIS's authority to grant parole into a duty to authorize it.

The waitlist plaintiffs had standing, but their APA claims failed

USCIS disputed injury and redressability, but the panel disagreed. It expressly found a causal connection between USCIS's conduct and the withholding of parole and concluded that the waiting-list plaintiffs had Article III standing. Claim 2, under section 706(1), nevertheless failed for lack of statutory jurisdiction because parole was discretionary, not a discrete action the law required.

Claim 3 separately invoked APA section 706(2), which authorizes review of final agency action. That claim failed because no final agency action was shown: The waiting-list plaintiffs had not alleged or presented evidence that they individually requested and were denied advance parole.

A policy position or failure to provide the desired benefit was not enough on the record alleged. The decision therefore distinguishes two APA paths: Section 706(1) requires a legally required discrete act, while section 706(2) requires an identifiable final agency action.

Further proceedings on the bona-fide-determination claim

The district court evaluated the bona-fide-determination plaintiffs' standing primarily through their asserted inability to obtain advance parole. The Ninth Circuit did not find that theory sufficient to establish standing as presented. But the complaint also alleged other injuries, including delayed full eligibility adjudication with an attendant risk of evidence loss, accrual of unlawful presence, and the regulatory instability of the BFD path relative to the waiting-list path established by notice-and-comment rulemaking. The unlawful-presence theory was raised for the first time in the reply brief; the court declined to resolve the forfeiture question and left it for the district court on remand.

Because the district court had not addressed those other alleged injuries, the panel remanded for it to evaluate standing and, if necessary, the merits of Claim 1. The remand left those questions for the district court in the first instance.

Judge Bea would have dismissed the BFD claim under APA section 706(1)

Judge Bea concurred in the waiting-list disposition but dissented from the remand for the bona-fide-determination plaintiffs. He would have dismissed their claim for lack of statutory jurisdiction under APA section 706(1), concluding that no statute or regulation imposed a discrete, unequivocal duty on USCIS to adjudicate waiting-list eligibility for every U-visa petitioner. He also cautioned against using an unreasonable-delay theory to supervise agency timing and resource allocation.

His disagreement with the majority concerned the order of operations: He would have resolved statutory jurisdiction before Article III standing and dismissed the BFD claim rather than remand the standing question.

Travel-related parole and APA review

The opinion connects each APA claim to its own threshold: A mandatory agency duty under section 706(1), or final agency action under section 706(2). For these petitioners, the processing stage, relief already received, and record of individual requests determined which threshold was at issue.

The case also is distinct from detention-release litigation. Mishra X's analyses of bona-fide-determination notices and pending U visas in detention litigation address custody and notice questions. This opinion instead concerns travel-related parole and APA review of USCIS action or inaction.

What the decision means for record review

A careful review should identify the petitioner's exact U-visa processing stage, the specific benefit requested, any individual application or request, the agency response, and the legal source said to require action. Those facts determine whether a claim concerns a mandatory act, a final agency action, unreasonable delay, or only a discretionary benefit.

Before international travel, obtain an individual assessment of departure and reentry risks, including the effect of any advance-parole authorization. Apply current statutes, regulations, and later authority to that assessment. See Mishra X’s removal-defense practice and Case Library for related general information.

Questions about the decision

How did the Ninth Circuit resolve the appeal?

It affirmed dismissal of the waiting-list plaintiffs’ claims and remanded the bona-fide-determination plaintiffs’ claim for consideration of additional standing theories and, if necessary, the merits.

Why did the waitlist plaintiffs lose under APA section 706(1)?

The court read deferred action and parole as regulatory alternatives, so the cited regulation did not require USCIS to grant parole in addition to deferred action.

What did the court decide about the bona-fide-determination plaintiffs?

It directed the district court to consider alleged injuries beyond inability to obtain parole, then address the merits if necessary. Whether those injuries establish standing remains for the district court.