Tang v. Chertoff, Civ. Action No. 07cv10231-NG.

• Citation: 493 F.Supp.2d 148
• Decision Date: 26 June 2007
• Docket Number: Civ. Action No. 07cv10231-NG.
• Parties: YONG TANG and Yan Luo, Plaintiffs, v. Michael CHERTOFF, Secretary of the Department of Homeland Security; Emilio Gonzalez, Director of U.S. Citizenship and Immigration Services; Paul Novak, Director of USCIS Vermont Service Center; and, Robert Mueller III, Director of the Federal Bureau of Investigation, Defendants.
• Court: U.S. District Court — District of Massachusetts

493 F.Supp.2d 148

YONG TANG and Yan Luo, Plaintiffs, v. Michael CHERTOFF, Secretary of the Department of Homeland Security; Emilio Gonzalez, Director of U.S. Citizenship and Immigration Services; Paul Novak, Director of USCIS Vermont Service Center; and, Robert Mueller III, Director of the Federal Bureau of Investigation, Defendants.

Civ. Action No. 07cv10231-NG.

United States District Court, D. Massachusetts.

June 26, 2007.

Christopher R. Donato, United States Attorney's, Boston, MA, for Defendants.

Vard R. Johnson, Boston, MA, for Plaintiffs.

AMENDED MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO DISMISS

GERTNER, District Judge.

This Memorandum and Order replaces the one filed earlier today. Two changes have been made: This Memorandum has a full caption listing all defendants, and the ampersand has been replaced in the title. No other changes have been made.

I. INTRODUCTION

This is an action to compel the United States Citizenship and Immigration Service ("USCIS") to act on a four-year-old application for adjustment of status to permanent residency. Numerous such cases are before this Court and others throughout the country. Courts have split on whether there is subject matter jurisdiction to review an unreasonable delay in the processing of an application for permanent residency.

For the reasons below, I DENY the government's motion to dismiss (document # 9), and GRANT the relief sought by plaintiffs. I cannot accept the argument that, simply because adjustment of status is a form of discretionary relief, there is no limit to the length of time the USCIS may take processing applications. The duty to act is no duty at all if the deadline is eternity.

II. BACKGROUND

Plaintiff Yong Tang ("Tang"), a nonpermanent resident, filed an 1-485 application on June 23, 2003, to adjust his status to permanent residency, with his wife and co-plaintiff Yan Luo as derivative beneficiary. He filed an 1-140 Immigrant Petition for Alien Worker through his employer, Millennium Pharmaceuticals, on May 30, 2003; it was approved by USCIS on March 22, 2004. He and his wife were fingerprinted on August 31, 2004.

Since then, they have seen no progress on their permanent residency application. They inquired into its status on March 11, 2005, July 12, 2005, August 10, 2005, September 9, 2005, September 13, 2005, May 2, 2006, October 16, 2006 and January 30, 2007, but were told each time simply that their background checks had not been completed, and to check back in 6 months. Ex. C-1 through C-7 and Ex. 4 to Complaint (document # 1-2).

In May 2006, plaintiffs made a Freedom of Information and Privacy Act ("FOIPA") request to the Federal Bureau of Investigation ("FBI") seeking any records relating to them; they were told that there were no such records. Ex. E-1, E-2 to Complaint (document # 1-2). Plaintiffs finally filed this action on February 6, 2007, 43 months after the initial application, seeking to compel adjudication of Tang's application for adjustment of status.

In response to the Court's order of May 22, 2007, defendants filed an affidavit on June 5 stating that Yan Luo's background check was completed, but that Yong Tang's was still pending as of that date (document # 15).

III. STANDARD OF REVIEW

A complaint is subject to dismissal under Rule 12(b)(6) only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Gorski v. New Hampshire Dep't of Corrections, 290 F.3d 466, 473 (1st Cir.2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). The allegations in the complaint should be accepted as true, and all reasonable inferences must be drawn in favor of the plaintiff. Moss v. Camp Pemigewassett, Inc., 312 F.3d 503, 506 (1st Cir.2002).

There are no disputed facts in this case. The parties disagree only on matters of law.

IV SUMMARY OF ARGUMENTS

The government moves to dismiss for lack of subject matter jurisdiction. Plaintiffs name three statutory bases for jurisdiction: the Mandamus statute (28 U.S.C. § 1361), the Declaratory Judgment Act (28 U.S.C. § 2201 a seq.), and the federal question statute (28 U.S.C. § 1331) in combination with the Administrative Procedures Act ("APA").

Defendants argue first that the Declaratory Judgment Act is not an independent basis of jurisdiction. They then argue that adjustment of status is within the discretion of the Attorney General, and that the Immigration and Naturalization Act ("INA") provides no time-line for resolution of applications for adjustment of status. Since there is no duty to timely process applications, defendants argue, there is nothing to Mandamus, and no standard against which to declare a delay unreasonable under the APA. Further, defendants point to INA § 242 (8 U.S.C. § 1252(a)(2)), which bars judicial review of certain actions on which the Attorney General is given discretion under the INA. Since adjustment of status is within the discretion of the Attorney General, defendants argue that no aspect of it is reviewable.

Plaintiffs counter that, while the final decision as to adjustment of status is within the Attorney General's discretion, aspects of the process, such as the timing of these decisions, are not. They argue that the Administrative Procedures Act (specifically 5 U.S.C. § 555(b)) imposes a non-discretionary duty to adjudicate applications in a reasonable time, and that review" of this duty is not barred by the. INA's jurisdiction-stripping provision.

Defendants are, correct that the Declaratory Judgment Act is not an independent basis for jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Schilling v. Rogers, 363 U.S. 666, 677, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960); Fox v. Lappin, 441 F.Supp.2d 203, 207 (D:Mass.2005). The other arguments are discussed below.

V. WHETHER INA § 242 PREVENTS REVIEW

INA § 242 strips the Court of jurisdiction to review "any judgment regarding the granting of relief under section ... 245 [8 U.S.C. § 1255]," 8 U.S.C. § 1252(a)(2)(B)(i), or "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" 8 U.S.C. § 1252(a)(2)(B)(ii). Thus, if the pace of adjudication is a "judgment regarding the granting of relief under section 245" or is within the Attorney General's discretion "under the subchapter," the Court does not have subject matter jurisdiction.

The ultimate decision whether or not to adjust an alien's status under INA § 245 is undisputedly within the discretion of the Attorney General. "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, to that of an alien lawfully admitted for permanent residence." 8 U.S.C. § 1255(a).

But that does not mean that all actions that call for some discretion or that have any relation to adjustment of status are unreviewable. INA § 242's jurisdiction-stripping language is more precise than that.

8 U.S.C. § 1252(a)(2)(B)(I) applies to the ultimate decision whether or not to grant relief. In passing it, Congress repeatedly noted the increasing number of aliens declared removable by the agency but never removed. (See S. REP. NO. 104-249, pt. 1 1996); see also H.R. REP. No. 104-469, pt. 1 (1996) ("an important subset of the annual growth in the number of illegal aliens as many as [sic] 50,000 or more consists of those who have been ordered deported, but are not actually removed.") Thus, the original purpose of this subparagraph was to ensure removal of those individuals adjudicated removable by making the Attorney General's decision final as to relief by adjustment of status.¹ It was not to immunize the government from all claims based on conduct — even clear wrongdoing — that happens to relate to the adjustment of status process. See e.g. Osunsanya v. USCIS, 2007 WL 484864, **3-4, 2007 U.S. Dist. LEXIS 9474 at *11-15 (D.Mass. Feb. 12, 2007) (Zobel, J.) (district court had jurisdiction to review claim that USCIS agents violated USCIS regulations during processing of plaintiff's application for adjustment of status, which was ultimately denied). Indeed, the title of 8 U.S.C. § 1252(a)(2)(3), "Denials of Discretionary Relief," (emphasis supplied), points clearly to its subject matter. The finality of the Attorney General's decision is not at issue in this case; plaintiffs do not seek review of any denial of adjustment of status. In fact, they seek to accelerate the process of adjudication, not slow it down.

The second jurisdiction-stripping provision potentially at issue here, 8 U.S.C. § 1252(a)(2)(B)(ii), applies only to those actions or decisions "the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security." Id. (emphasis supplied). As to which decisions are "discretionary" for the purposes of this subparagraph, the Third Circuit has noted that the language of that provision applies "not to all decisions the Attorney General is entitled to make, but to a narrower category of decisions where Congress has taken the additional step to specify that the sole authority for the action is in the Attorney General's discretion." Alaka v. AG of the United States, 456 F.3d 88, 95 (3d Cir.2006), cited by Koren v. Chertoff, 2007 WL 1431948, *3, 2007 U.S. Dist. LEXIS 35128 at *10 (D.Conn.2007). Likewise, the Ninth Circuit noted that 8 U.S.C. § 1252(a)(2)(B)(ii)

refers not to `discretionary decisions,' as did the transitional rules [of the Illegal Immigration Reform and Immigrant Responsibility Act], but to acts the authority for which is specified under the INA to be discretionary. Following the ...