Opinion
CIVIL ACTION NO. 07-11806-GAO.
October 15, 2007
OPINION AND ORDER
The plaintiff, a citizen of both Morocco and Sweden, brought the present complaint in an effort to compel action on his pending application to the United States Citizenship and Immigration Services ("CIS") for adjustment of his status to that of a permanent resident. The following background facts are pertinent:
On December 10, 2003 the plaintiff entered the United States through the Visa Waiver Pilot Program ("VWPP"), which permits entry into the United States for tourist aliens for a period of ninety (90) days or less. 8 U.S.C. § 1187(a)(1). The plaintiff has overstayed his visa by remaining in the United States until the present. On April 20, 2007, the plaintiff married a United States citizen. On July 25, 2007 the plaintiff was a passenger in a car stopped for a traffic violation by local police in Vermont. When it appeared that he was present in the United States without valid authority, he was transferred to custody of the Bureau of Immigration and Customs Enforcement ("ICE") and, as is permitted under the VWPP, summarily ordered to be removed from the United States by the ICE District Director. About three weeks later, on August 15, 2007, the plaintiff filed an I-485 form seeking an adjustment of his status, an action that would supersede the removal order.
CIS has not yet made a final decision on the plaintiff's application. Originally scheduled for removal on September 26, 2007, the plaintiff filed the present action seeking an order from this Court requiring CIS to adjudicate his application for adjustment of his status. He also filed an emergency motion for a stay of his removal. The government has filed a motion to dismiss for lack of jurisdiction and failure to state a claim.
A. Motion to Stay Removal
To gain admission to the United States through the VWPP, an alien must waive any right "to contest, other than on the basis of an application for asylum, any action for removal of the alien." 8 U.S.C. § 1187(b)(2). Decisions to remove aliens admitted through the VWPP are made by the district director, without referral to an immigration judge for a determination of deportability, except when an alien applies for asylum in the United States. 8 C.F.R. § 217.4(b)(1). Furthermore, 8 U.S.C. § 1252(g) explicitly strips this Court of jurisdiction to entertain "any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter." See generally Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999). Any stay of the final order of removal would squarely interfere with the "execut[ion]" of the removal order. Given the express language in § 1252(g), this Court has no jurisdiction to make the requested order. Therefore, the plaintiff's emergency motion for a stay of removal (dkt. no. 8) is DENIED.
B. Motion to Dismiss
Under the Administrative Procedures Act ("APA"), an agency must conclude a matter presented to it "within a reasonable time." 5 U.S.C. § 555(b). A parallel provision grants authority to a court to "compel agency action unlawfully withheld or unreasonably delayed." Id. § 706(1). The plaintiff argues that these provisions give this Court jurisdiction to find that CIS has unreasonably delayed in processing his application for adjustment of status and thus to compel CIS to act on the application forthwith. The government argues that even assuming that the defendants have a statutory nondiscretionary duty to process adjustment applications within a reasonable time, the plaintiff has failed to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6) because the plaintiff's I-485 application has only been pending for about two months, a period of time that is not unreasonable as a matter of law.
As an initial matter, the Court recognizes that, apart from the provisions of APA applicable to all agencies, there is no statutory mandate requiring the CIS specifically to process applications such as the plaintiff's within any particular time frame. Rather, the decision to adjust an alien's status is generally committed to the discretion of the Secretary of the Department of Homeland Security, as it was formerly to the Attorney General. 8 U.S.C. § 1255(a) ("The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe. . . ."). Moreover, the Secretary has not promulgated any regulations specifying the time within which applications for adjustment status must be processed. Nonetheless, although no statutory or regulatory provision explicitly sets forth a timetable for processing such applications, some courts have found especially extended delays to be unreasonable. See, e.g., Liu v. Novak, ___ F. Supp. 2d ___, 2007 WL 2460425, at *8 (D.D.C. 2007) (finding a four-year delay unreasonable and collecting similar cases); Tang v. Chertoff, 493 F. Supp. 2d 148, 157 (D. Mass. 2007) (finding a nearly four-year delay unreasonable and collecting similar cases); Gelfer v. Chertoff, No. C. 06-06724-WHA, 2007 WL 902382, at *2-3 (N.D. Cal. Mar. 22, 2007) (finding a two-year delay unreasonable).
With the creation of the Department of Homeland Security, Congress transferred the functions of the former Commissioner of the U.S. Immigration and Naturalization Service to the Secretary of Homeland Security, who in turn has delegated his authority to CIS and ICE.
Although it has not mandated a time limit, the expressed "sense of the Congress" is that "the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application." See 8 U.S.C. § 1571(b). Because Congress stopped short of mandating a time limit, the six month period for processing seems to be an aspirational goal, rather than an enforceable standard.
Practical realities intrude. The speed with which any given application is processed is related to the volume of applications that must be addressed. Moreover, the application process entails several inter-agency background and security checks and a personal interview, none of which have occurred in the plaintiff's case. (Pl.'s Mem. Of Law in Supp. of Mot. for Stay of Removal 13.) As a matter of law, the agency cannot be held to have "unreasonably delayed" action if the application has not been processed within two months after its filing. That is well within the aspirational time limit expressed by Congress, as well as those limits implied by the cases that have found unreasonable delays.
Alternatively, the plaintiff argues that a two-month delay is unreasonable when the applicant's removal is imminent. In effect, the plaintiff contends reasonableness must be judged in context, and when his removal is about to be executed, likely mooting, at least as a practical matter, his application for an adjustment of status, only action taken on the application before the removal can be accomplished should be considered reasonable. Or put another way, it is unreasonable not to act immediately on the application when removal is about to occur, regardless of how recently the application has been filed.
Whatever the merit of the argument, and it has substantial appeal at least as a general proposition, it cannot be accepted here because of the restrictions Congress has placed on judicial power to affect removal decisions. Both CIS and ICE act under the supervisory authority of the Secretary of Homeland Security. Both the authority to grant adjustment of status and the authority to remove are granted to the Secretary (by transfer from the Attorney General). A judgment that the Secretary was acting unreasonably in not deciding the adjustment question before he executed the removal would impose a restriction, or a pre-condition, on his unqualified ability to execute the removal order. Such an order would run afoul of § 1252(g), which strips this Court of jurisdiction over matters affecting the execution of a removal order.
Alternatively, if CIS and ICE were viewed as separate agencies, it is difficult to conclude that CIS would be unreasonably delaying action on an application pending before it if it failed to coordinate its timing with events occurring external to it. The plaintiff has acknowledged that there does not appear to be impropriety on the part of CIS that has to date caused a delay in processing his application for an adjustment of status. (Pl.'s Mem. of Law in Supp. of Mot. for Stay of Removal 12.) In fact, the plaintiff's request for relief is premised on the opposite assumption — that CIS will not reach a decision on the plaintiff's application before removal occurs if CIS were to apply its standard operating procedures.
The duty to conclude matters within a reasonable time is a duty imposed by the APA on each agency, and it follows that the reasonableness or unreasonableness of its should be measured by its own action or inaction, without a requirement of coordination with other agencies. Therefore, even assuming that there is jurisdiction to entertain the claim, the plaintiff has failed to state a claim under the APA against CIS.
The Court recognizes and is sympathetic to the fact that this leaves the plaintiff in a position of jeopardy. Perhaps CIS can institute an internal policy of processing applications from those in the plaintiff's position in an expeditious manner. Or perhaps Congress will create a statutory obligation to do so which can then be enforced by the courts. However, the state of the statutory law being what it is, it appears that the remedy to the plaintiff's dilemma cannot come from the this Court.
For the foregoing reasons, the government's motion to dismiss (dkt. no. 4) is GRANTED.
It is SO ORDERED.