Bian v. Clinton, 09-10568
| Decision Date | 27 April 2010 |
| Docket Number | 09-10742.,No. 09-10568,09-10568 |
| Parties | Fei BIAN, Plaintiff-Appellant,v.Hillary CLINTON, Secretary of the United States Department of State; Janet A. Napolitano, Secretary, Department of Homeland Security; Jonathan Scharfen, Acting Director of the United States Citizenship and Immigration Services; David Roark, Director of the USCIS Texas Service Center; Eric H. Holder, Jr., U.S. Attorney General, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Fei Bian, Dallas, TX, pro se.
Aaron Steven Goldsmith, U.S. Dept. of Justice, OIL, Washington, DC, for Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before KING, WIENER, and DENNIS, Circuit Judges.
Appellant Fei Bian (“Bian”), a Chinese national residing lawfully in the United States since 1999, appeals the district court's dismissal of her complaint seeking to compel the United States Department of Homeland Security, Citizenship and Immigration Services (“USCIS”) to adjudicate her I-485 application for adjustment of immigration status. Agreeing with the appellees that, under these facts, we lack jurisdiction to review the pace of the USCIS's adjudication process, we affirm.
Bian holds a Ph.D. in chemical engineering and is employed as a senior environmental consultant in Dallas. In September 2005, she filed an I-485 application with USCIS seeking adjustment of immigration status. Her visa priority date is September 29, 2005, and her visa category is Employment-Based Category 2 (EB-2) with Chinese chargeability. Bian alleges that she had complied with all I-485 application requirements, but that her application was still pending in September 2008, more than three years after she had submitted it to the USCIS. After making numerous unsuccessful inquiries into the status of her application, Bian, proceeding pro se, filed suit seeking declaratory and injunctive relief to compel the USCIS to adjudicate her application.
The defendants concede that Bian is eligible for an adjustment of status, but they urge that they were unable to approve her application because there have been no visa numbers available to assign to her. As the defendants explain, at any given time, the USCIS is able to issue only a limited number of visas in each category. The USCIS determines the number of available visas in a category based on several variables, including past number use, estimates of future number use and return dates, and estimates of USCIS demand and pending USCIS number requests. If the number of eligible applicants in a category is less than the number of visas available for that category, then the category is considered “current,” and the USCIS is able to issue visas to every eligible applicant. If, on the other hand, the number of eligible applicants in a category is greater than the number of visas available for that particular category, the USCIS must set a visa availability cut-off date. In such instances, the USCIS will award visas to all eligible applicants who filed I-485 applications prior to the cut-off date, but will withhold any final decision on applications filed after the cut-off date. As the defendants explain, the current cut-off date for applicants in Bian's category (EB-2 with Chinese chargeability) is June 1, 2004-more than a year before Bian's visa priority date. Thus, the defendants argue, even if Bian were entitled to relief, they would be unable to grant her an adjustment of status because there is no visa number currently available to her. The defendants contend that, if forced to rule on Bian's application, they would have no choice but to deny her request for an adjustment of status.
In addition to explaining that they were statutorily unable to grant Bian an adjustment of status, the defendants also filed a Rule 12(b)(1) motion urging the district court to dismiss Bian's action for lack of jurisdiction. According to the defendants, federal courts lack jurisdiction to compel the USCIS to adjudicate an I-485 application, as Congress has left the agency's decision-making process-including the pace of the adjudication process-entirely to agency discretion. When Bian failed to file any response to the defendants' Rule 12(b)(1) motion, the district court dismissed the suit for lack of jurisdiction.
Bian appealed the dismissal and filed a motion with the district court seeking reconsideration of its ruling. The district court granted Bian's motion in part, reversing its earlier holding and concluding that it did in fact have jurisdiction to review the pace of the USCIS's adjudication. In reaching that conclusion, the district court distinguished the USCIS's ultimate decision-which the district court acknowledged to be discretionary and not subject to judicial review-from the agency's decision-making process-which, according to the district court, includes a nondiscretionary duty to adjudicate all applications for adjustment of status within a reasonable time. The district court nevertheless agreed with the USCIS that, even if Bian were entitled to relief, there were no visa numbers available for her, so the court dismissed Bian's complaint for failure to state a claim on which relief could be granted. Bian now appeals both the earlier dismissal for lack of subject matter jurisdiction and the subsequent dismissal for failure to state a claim.
We review a dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) de novo.1 A district court properly dismisses a case for lack of subject matter jurisdiction “when the court lacks the statutory or constitutional power to adjudicate the case.”2
Bian contends that federal courts have jurisdiction to review the USCIS's decision-making process pursuant to the Administrative Procedure Act (“APA”) in conjunction with the Mandamus Act. In response, the defendants urge that the USCIS's pace of adjudication is not subject to judicial review, as Congress has left the process entirely to the agency's discretion. Although several district courts have addressed the issue, no circuit court has yet ruled on it. 3
Importantly, 8 U.S.C. § 1255 does not specify a deadline or even a time frame for adjudication of applications, instead committing not only the USCIS's decision but also any “regulations” necessary for making such a decision to agency discretion.
It is noteworthy that Section 1252 applies not only to the USCIS's grant or denial of an application for adjustment of status, but also to “any other decision or action” within the USCIS's discretion.7 If Congress had intended for only the USCIS's ultimate decision to grant or deny an application to be discretionary-as distinguished from its interim decisions made during the adjudicative process-then the word “action” would be superfluous. 8 Instead, Section 1252 expressly exempts from judicial review any “action” that is within the USCIS's discretion and is necessary to carry out the agency's statutory grant of authority. This includes establishing “such regulations as [the agency] may prescribe” to carry out its statutory duty, such as 8 C.F.R. § 245.2(a)(5)(ii), which specifies that “[a]n application for adjustment of status, as a preference alien, shall not be approved until an immigrant visa number has been allocated by the Department of State....” 9 As Bian contests the USCIS's decision to adjudicate her application in compliance with regulations that are clearly within the agency's discretion to establish, the federal courts are without jurisdiction to entertain her claim.
Undeterred by the language of the INA, Bian asserts that federal courts have jurisdiction to consider the pace of the USCIS's adjudicative process under the Mandamus Act, which provides that “district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”10 To establish jurisdiction under the Mandamus Act, the plaintiff's claim must be “clear and certain and the duty of the officer [must be] ministerial and so plainly prescribed as to be free from doubt.”11 As we have previously explained, “mandamus is not available to review the discretionary acts of officials.”12
As an initial matter, we note that Section 1252's jurisdiction-stripping provision expressly states that it applies “[n]otwithstanding any other provision of law (statutory or nonstatutory), including ... ...
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