Opinion
ORDER DENYING DEFENDANTS' MOTION TO DISMISS
BERNARD ZIMMERMAN, Magistrate Judge.
Before me is defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). For the following reasons, defendants' motion is
Named defendants are David N. Still, District Director, USCIS, San Francisco District Office, Emilio T. Gonzalez, Director, USCIS, Robert Cowan, Director, USCIS National Benefits Center, Robert S. Mueller, Director, Federal Bureau of Investigation, Michael Chertoff, Secretary, Department of Homeland Security, Alberto Gonzales, Attorney General, Department of Justice.
All parties have consented to my jurisdiction, including entry of final judgment, pursuant to 28 U.S.C. § 636(c) for all proceedings.
DENIED.
On October 15, 2003 plaintiff, a native of Pakistan, applied for adjustment of status to lawful permanent residence under 8 U.S.C. § 1255 with the San Francisco District Office of United States Citizenship and Immigration Services (USCIS). Complaint ¶ 17. His application included both an immediate relative visa petition (Form I-130) under 8 CFR § 204.1 and an application for permanent residence (Form I-485) under 8 CFR § 245.1. Id . On December 31, 2003, the USCIS requested that the FBI conduct a "name check" of plaintiff and provide the results. Cannon Decl. ¶ 22. The FBI name check is one of several security checks utilized by the USCIS to investigate the background of applicants. Yuen Decl. ¶ 4. Plaintiff and his wife were interviewed at the USCIS District Office in San Francisco on May 13, 2004. Complaint ¶ 19. Plaintiff's I-485 application, however, remains pending. Id. at ¶¶ 22-23; Yuen Decl. ¶ 17. Defendants assert that the USCIS is unable to complete plaintiff's application because it has yet to receive the results of the FBI name check. Yuen Decl. ¶ 17; Cannon Decl. ¶ 22.
The I-130 visa petition was approved May 13, 2004. Yuen Decl. ¶ 17.
Plaintiff, his wife, and his attorney made numerous inquiries into the status of his I-485 application to no avail. Complaint ¶¶ 13, 23. As a result, plaintiff filed this action, styled as a complaint for mandamus, on January 31, 2007. At the time, the USCIS District Office in San Francisco was processing I-485 applications filed as of July 17, 2006. Id. at ¶ 21. As of the filing of defendants' motion to dismiss, May 14, 2007, plaintiff's application has remained pending for approximately three-and-a-half years.
The complaint invokes this Court's jurisdiction under 28 U.S.C. § 1361 (the Mandamus Act), 5 U.S.C. § 702, et seq. (the Administrative Procedures Act, "APA"), and 28 U.S.C. § 1331. Plaintiff seeks an order directing the FBI to complete his name check within thirty days, and directing defendants to adjudicate his I-485 application promptly upon receipt of the results. He is not seeking an order directing defendants to grant his application. Defendants assert that the court lacks subject matter jurisdiction to hear this matter because the adjudication of an I-485 application is left to the discretion of the USCIS. I disagree.
The burden of establishing subject matter jurisdiction rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375, 377 (1994).
I have previously held that the USCIS owes an asylee a non-discretionary duty to adjudicate his I-485 application, and that the APA requires that the adjudication occur within a reasonable time. See Aboushaban v. Mueller , 2006 WL 3041086, at *1-*2 (N.D. Cal.). Since my ruling, a number of my colleagues in this district have considered the issue. To my knowledge, all have concluded that the statutory text and the code regulations, in conjunction with the APA, establish a non-discretionary duty to adjudicate the I-485 application within a reasonable time. See Singh v. Still , 470 F.Supp.2d 1064 (N.D. Cal. 2007); Gelfer v.Chertoff , 2007 WL 902382 (N.D. Cal.); Wu v. Chertoff , 2007 WL 1223858 (N.D. Cal.); Dmitriev v. Chertoff , 2007 WL 1319533 (N.D. Cal.); Baker v. Still, 2007 WL 1393750 (N.D. Cal.); Fu v. Gonzales , 2007 WL 1455873 (N.D. Cal.); Razaq v. Poulos , 2007 WL 61884 (N.D. Cal.); Quan v. Chertoff, 2007 WL 1655601 (N.D. Cal.). Defendants, however, ask me to adopt the reasoning of other courts that have refused to find a non-discretionary duty and have therefore declined to exercise jurisdiction over these claims. See, e.g., Grinberg v. Swacina , 2007 WL 840109 (S.D. Fla.); Qui v. Chertoff, 2007 WL 1430207 (D. N.J.); Xiao v. Gonzales, 2007 WL 1303000 (D. N.J.); Safadi v. Howard , 466 F.Supp.2d 696 (E.D. Va. 2006).
An asylee files his I-485 application pursuant to 8 U.S.C. § 1159 and 8 C.F.R. § 209.2, whereas an alien files his application pursuant to 8 U.S.C. § 1255 and 8 C.F.R § 245.2. Cf. Aboushaban , 2006 WL 3041086, at *1 (considering an asylee's application for adjustment of status) with Wu v. Chertoff , 2007 WL 1223858, at *3 (considering an alien's application for adjustment of status). The applicable provisions, however, are practically identical. Cf. 8 U.S.C. § 209.2(f) ("The applicant shall be notified of the decision, and if the application is denied, of the reasons for denial.") with 8 C.F.R § 245.2(a)(5)(I) ("The applicant shall be notified of the decision of the director and, if the application is denied, the reasons for the denial.").
Many other courts agree. See Quan, 2007 WL 1655601, at *2 (stating that a "majority" of courts outside the Northern District agree that subject matter jurisdiction exists over such claims, and citing cases in support); Guoping Ma v. Gonzales, 2007 WL 1655188, at *4 (W.D. Wash. 2007) (citing cases); see also Salehian v. Novak , 2006 WL 3041109 (D. Conn.); Haidari v. Frazier , 2006 WL 3544922 (D. Minn.); Duan v. Zamberry , 2007 WL 626116 (W.D. Pa.); Tjin-A-Tam v. U.S. Dept. of Homeland Sec., 2007 WL 781339 (S.D. Fla.); Osunsanya v. U.S. Citizenship and Immigration Services , 2007 WL 484864 (D. Mass.); Elmalky v. Upchurch , 2007 WL 944330 (N.D. Tex.); Song v. Klapakas , 2007 WL 1101283 (E.D. Pa.); Cho v. Jarina, 2007 WL 1484053 (E.D. La.).
I find no reason to disavow my holding in Aboushaban or reject the reasoning adopted by so many other courts. 8 U.S.C. Section 1255(a) grants the Attorney General discretion over whether to grant or deny an application for adjustment, not whether to adjudicate the application. Code regulations clearly contemplate that a decision will be made on each I-485 application and that the applicant will be informed thereof. See 8 C.F.R § 245.2(a)(5)(i). Insofar as the APA authorizes the courts to compel an agency to complete a non-discretionary duty within a reasonable time, plaintiff's claim is on solid ground. See, e.g., Wu , 2007 WL 1223858, at *2-*3. Safadi, a case upon which a number of courts have relied in reaching a different conclusion, is factually distinguishable. There, all background checks had been completed. The USCIS was in the process of exercising its discretion to make its final adjudication. 466 F.Supp.2d at 697-98. To order "immediate" adjudication, as the applicant requested, would have stripped the USCIS of its discretion to make a final determination. No such circumstances exist here.
Section 1255(a) reads: "The status of an alien... may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed."
"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. "Agency action" is defined to include a "failure to act." § 551(13). "With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." § 555(b).
Contrary to defendants' suggestion, plaintiff does not rely on the APA as the sole basis for subject matter jurisdiction. In addition to the Mandamus Act, plaintiff
To sidestep Aboushaban, defendants raise a new argument - that 8 U.S.C. § 1252(a)(2)(B) strips courts of jurisdiction to hear challenges to the pacing of the adjustment adjudication. See, e.g., Safadi , 466 F.Supp.2d at 698; Grinberg , 2007 WL 840109, at *3. The plain language of section 1252(a)(2)(B) addresses only judgments, decisions or actions committed to the discretion of defendant - not inaction or delay. See Iddir v. I.N.S. , 301 F.3d 492 (7th asserts federal question jurisdiction under 28 U.S.C. § 1331.
8 U.S.C. § 1252(a)(2)(B) reads: "Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review - (i) any judgment regarding the granting of relief under section... 1255 of this title, or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title."
As explained in Califano v. Sanders , 430 U.S. 99, 105 (1977), the "obvious effect" of the 1976 modifications to section 1331, "subject only to preclusion-of-review statutes created or retained by Congress, [was] to confer jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional predicate." Cir. 2002) (considering identical statutory language and concluding that the section "only bars review of actual discretionary decisions to grant or deny relief under... section 1255."); Medina-Morales v. Ashcroft , 371 F.3d 520, 528 (9th Cir. 2004) (holding that section 1252(a)(2)(B)(ii) did not bar review of a motion to reopen removal proceedings because the statute authorizing a motion to reopen "neither grants nor limits the Attorney General's discretion to deny motions to reopen...."); Fu , 2007 WL 1455873, at *5 (rejecting the argument that section 1252(a)(2)(B)(ii) bars review of inaction on an adjustment of status application). Section 1252(a)(2)(B) is inapplicable to plaintiff's claim.
Moreover, to read section 1252(a)(2)(B)(ii) as broadly as defendants "would render toothless all timing restraints, including those imposed by the APA, ' which would amount to a grant of permission for inaction.'" Fu , 2007 WL 1455873, at *5 (quoting Duan v. Zanberry , 2007 WL 626116, at *3 (W.D. Pa.)). Such an outcome does not find support in the statutory text and, considering the fact that most applicants will be physically present in the United States, seems antithetical to national security interests.
Nor does 8 C.F.R. § 103.2(b)(18) command a different conclusion. See, e.g., Qui, 2007 WL 1430207, at *6. Since defendants provide no evidence to suggest that plaintiff's application is being withheld pursuant to section 103.2(b)(18), its provisions are inapplicable. See Elmalky v. Upchurch , 2007 WL 944330, at *4 (N.D. Tex.) (rejecting an argument based on section 103.2(b)(18) where defendants failed to supply evidence demonstrating adherence to the code procedures).
Section 103.2(b)(18), entitled "Withholding adjudication, " reads in part: "A district director may authorize withholding adjudication of a visa petition or other application if the district director determines that an investigation has been undertaken involving a matter relating to eligibility or the exercise of discretion... and that the disclosure of information to the applicant or petitioner in connection with the adjudication of the application or petition would prejudice the ongoing investigation." The section goes on to require specified officials to review the withholding decision in six month increments until completion of adjudication.
Finally, I reject defendants' argument that jurisdiction is inappropriate because "no judicially manageable standards are available for judging how and when an agency should exercise its discretion." Heckler v. Chaney , 470 U.S. 821, 830 (1985); see also 5 U.S.C. § 701(a)(2) (precluding application of the APA to "agency action... committed to agency discretion by law."). While the statute does not provide a specific time frame within which an adjustment of status application must be processed, "[i]t is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application...." 8 U.S.C. § 1571(b). I agree with those courts that have taken a case-by-case approach in determining the reasonableness of the delay. See, e.g. Aboushaban , 2006 WL 3041086, at *2, and cases cited therein; see also Quan, 2007 WL 1655601, at *4 (explaining that the APA's reasonableness requirement under section 555(b) applies where there is a duty but no specified time frame); Gelfer , 2007 WL 902382, at *2 (applying the section 555(b) reasonableness requirement "while giving wide berth to an agency's determination as to what time period is reasonable.").
Neither Heckler v. Chaney nor Norton v. Southern Utah Wilderness Alliance , 542 U.S. 55 (2004), requires a different outcome. Both cases involved plaintiffs seeking to compel agencies to enforce statutory provisions by particular action. Such analysis is inapplicable here, where defendants have a duty to adjudicate plaintiff's application within a reasonable time but yet have discretion over whether to grant or deny it.
Defendants additionally argue that plaintiff cannot meet the strict requirements mandated by the Mandamus Act. However, "[r]elief under mandamus and the APA are virtually equivalent when a petitioner seeks to compel an agency to act on a nondiscretionary duty." Id. at *3 (citing Independence Mining Co. v. Babbitt , 105 F.3d 502, 507 (9th Cir. 1997). Given my conclusions as to jurisdiction under the APA, the first two elements of mandamus are met. Plaintiff alleges in his complaint that he attempted unsuccessfully to prod agency action prior to filing his complaint, and that no other remedy exists. I can think of no other remedy. Thus, "[t]his Court has jurisdiction to hear plaintiff's complaint under both the writ of mandamus and the APA." Wu , 2007 WL 1223858, at *3.
"A writ of mandamus is appropriate only where: 1) the plaintiff's claim is clear and certain; 2) the defendant official's duty to act is non-discretionary, ministerial, and so plainly prescribed as to be free from doubt; and 3) no other adequate remedy is available." Aboushaban , 2006 WL 3041086, at *1 (citing Barron v. Reich , 13 F.3d 1370, 1374 (9th Cir. 1994)).
Plaintiff alleges that his application has remained pending for over three years, and nothing in the record compels the conclusion that such delay is reasonable as a matter of law. Defendants' explanation of the FBI name check, and the necessity thereof, goes to the reasonableness of the delay - an inquiry premature at this time. See id.
Plaintiff has demonstrated that this Court has jurisdiction over his claim for mandamus. The facts of the complaint are otherwise sufficient to state a claim upon which relief may be granted. For the foregoing reasons, defendants' motion is DENIED. The hearing scheduled for July 11, 2007 is VACATED.
Whether the FBI and the Attorney General are proper defendants is less clear. See, e.g., Li v. Chertoff , 482 F.Supp.2d 1172, 1179 (S.D. Cal. 2007) (suggesting that a court may not have authority to order the FBI to process a security check); Pool v. Gonzales, 2007 WL 1613272, at *1 n.1 (D. N.J.) (noting that the authority for adjudicating § 1255(a) applications has been transferred from the Attorney General to the Secretary of Homeland Security and the USCIS). The issue, however, need not presently be reached. Suffice it to say that this Court has jurisdiction over plaintiff's claims at least as to some of the defendants.
Defendants accepted my July 6, 2007 Tentative Ruling and waived argument. Plaintiff agreed to waive argument if I incorporated a number of specified modifications. I have incorporated those modifications necessary to clarify or correct my previous Ruling, but see no need for further argument.
When considering a motion to dismiss pursuant to Rule 12(b)(1), the court may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction. McCarthy v. United States , 850 F.2d 558, 560 (9th Cir. 1988). In contrast, dismissal under Rule 12(b)(6) is required only if plaintiff's complaint fails to set forth facts sufficient to establish a plausible right of recovery. See Bell Atlantic Corp. v. Twombly , 127 S.Ct. 1955, 1974 (2007). The court must accept as true all material allegations in the complaint and construe them in the light most favorable to the plaintiff. Seeth Newman v. Sathyavaglswaran , 287 F.3d 786, 788 (9 Cir. 2002); Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. Cal. , 159 F.3d 1178, 1181 (9th Cir. 1998).