Dong v. Chertoff

• Decision Date: 06 September 2007
• Docket Number: No. C 07-0266 SBA.,C 07-0266 SBA.
• Citation: 513 F.Supp.2d 1158
• Court: U.S. District Court — Northern District of California
• Parties: Jianhua DONG and Hong Chen, Plaintiffs, v. Michael CHERTOFF, et al., Defendants.

513 F.Supp.2d 1158

Jianhua DONG and Hong Chen, Plaintiffs, v. Michael CHERTOFF, et al., Defendants.

No. C 07-0266 SBA.

United States District Court, N.D. California, Oakland Division.

September 6, 2007.

Justin X. Wang, Baughman & Wang, San Francisco, CA, for Plaintiffs.

Ila Casy Deiss, United States Attorney's Office, San Francisco, CA, for Defendants.

ORDER

SAUNDRA BROWN ARMSTRONG, District Judge.

Plaintiffs Jianhua Dong and Hong Chen's petition before the Court [Docket No. 1] seeks to compel the defendants to the process their form I-485 applications for adjustment to lawful permanent resident status. Defendants Michael Chertoff (Secretary of the Department of Homeland Security), Emilio T. Gonzalez. (Director of United States Citizenship and Immigration Services), Evelyn Upchurch (Acting Director of the Texas Service Center of the United States Citizenship and Immigration Services), and Robert S. Mueller (Director of the Federal Bureau of Investigation) have filed a motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim [Docket No. 5]. Plaintiffs Dong and Chen have in turn submitted a motion for summary judgment [Docket No. 9]. A hearing was held on these matters on June 5, 2007. For the reasons that follow, the defendants' motion to dismiss is DENIED and the plaintiffs' motion for summary judgment is GRANTED.

BACKGROUND

Jianhua Dong and Hong Chen are husband and wife. They are citizens of the People's Republic of China. On September 22 or 26, 2005,¹ they filed applications to become lawful permanent residents of the United States by submitting Form 485 applications to the United States Citizenship and Immigration Services (UCIS). Dong and Chen filed their 1-485 applications at the California Service Center of the USCIS, which were subsequently transferred to the Texas Service Center for processing on March 23, 2006.

A required security check has yet to be completed — a "name check" to be done by the Federal Bureau of Investigation. The FBI name check is one of several security checks utilized by the USCIS to investigate the background of applicants. See Toor v. Still, 2007 WL 2028407, at *1 (N.D.Cal.2007). The USCIS maintains that until it receives the completed name check from the FBI, it is prevented from adjudicating the plaintiffs' applications. Naboone Puripongs, an adjudications officer with the Texas Service Center declares:

The record reflects that on September 22, 2005, Jianhua Dong and Hong Chen filed an application for adjustment of status to permanent resident, Form 485. After reviewing the information pertaining to Jianhua Dong's adjustment of status application, I attest that UCIS referred this case for lawfully required national security background investigations and that TSC in accordance with the requirements for background investigations is prohibited from adjudicating plaintiffs application. Plaintiff Jianhua Dong's application remains pending the completion of national security background investigations. Once the required national security background investigations are completed, plaintiff's application will be adjudicated. Plaintiff Hong Chen's application for adjustment of status to lawful permanent resident, 1-485 is dependent upon Jianhua Dong['s] application and cannot be approved unless and until Jianhua Dong's application is approved.

Docket No. 5 (Puripongs Decl. at ¶ 13).

The plaintiffs are not requesting that a decision be granted in their favor by the UCSIC, only that the defendants be compelled to process their applications for an adjustment of status to lawful permanent residents. The question at the heart of this dispute is whether the Court has subject matter jurisdiction to hear the plaintiffs' complaint of delayed action on their 1-485 applications, an issue that has come before numerous district courts across the country in recent years. There is as of yet no appellate guidance, and the district courts are split.

A. Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction

The defendants contest subject matter jurisdiction, maintaining that 8 U.S.C. § 1252(a)(2)(B)(ii) divests the Court of jurisdiction to hear claims relating to the adjustment of status of resident aliens. The plaintiffs premise the Court's jurisdiction on the Administrative Procedure Act and the mandamus statute, codified at 28 U.S.C. § 1361.²

1. Mandamus and the Administrative Procedure Act

Under 28 U.S.C. § 1361, the Mandamus and Venue Act of 1962, "[t]he 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." Mandamus is available only when (1) the plaintiffs claim is clear and certain; (2) the defendant official's duty is ministerial and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available. Johnson v. Reilly, 349 F.3d 1149, 1154 (9th Cir.2003); Lowry v. Barnhart, 329 F.3d 1019; 1021 (9th Cir. 2003). Even if this test is met, a district court has discretion to deny relief. Johnson, 349 F.3d at 1154.

As for the Administrative Procedure Act (APA), it "authorizes suit by person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.'" Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 61, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (quoting 5 U.S.C. § 702). "Failures to act are sometimes remediable under the APA, but not always." Norton, 542 U.S. at 61, 124 S.Ct. 2373. "[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Id. at 64, 124 S.Ct. 2373 (emphasis in original).

The APA itself does not provide an independent basis for subject matter jurisdiction. See Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). But the APA, in conjunction with federal question jurisdiction under 28 U.S.C. § 1331, may vest a federal court with jurisdiction to "compel agency action unlawfully withheld or unreasonably delayed." See, e.g., Elmalky v. Upchurch, 2007 WL 944330, at *2 (N.D.Tex.2007); Yu v. Brown, 36 F.Supp.2d 922, 928-29 (D.N.M.1999). As the Ninth Circuit explained in Idaho Watersheds Project v. Hahn, 307 F.3d 815, 830 (9th Cir.2002):

A good deal of confusion among courts and litigants has been spawned by Congress' choice of words in the APA. The APA allows that agency actions meeting certain criteria are "subject to judicial review." 5 U.S.C. § 704. However, the Supreme Court has made it clear that the phrase "subject to judicial review" does not confer a grant of subject matter jurisdiction. In Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192, ... (1977), the Supreme Court settled a long standing controversy by holding that 28 U.S.C. § 1331, rather than the APA, confers jurisdiction on federal courts to review agency action. Id. See also Jerry L. Mashaw et al., Administrative Law 833 (1998) (explaining that § 1331 confers jurisdiction for relief against unlawful agency action).

Stated another way, "Din the absence of a specific statutory provision to the contrary, district courts have jurisdiction to review agency action as part of their general federal question jurisdiction, 28 U.S.C. § 1331." Proyecto San Pablo v. I.N.S., 189 F.3d 1130, 1136 n. 5 (9th Cir.1999).

Moreover, whether jurisdiction is specifically predicated on the mandamus statute (28 U.S.C. § 1361), or on the APA (5 U.S.C. § 706), or both, makes little practical difference, as the result and the analysis that flow from either are the same. Where the relief the plaintiff is seeking is identical under either the APA or the mandamus statute, proceeding under one as opposed to the other is not significant. See Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir.1997); see also Hernadez-Avalos v. I.N.S., 50 F.3d 842, 845 (10th Cir.1995) (citation omitted) ("'[a] mandatory injunction [issued under the APA] ... is essentially in the nature of mandamus"'); Toor, 2007 WL 2028407, at *3. "Although the exact interplay between these two statutory schemes has not been thoroughly examined by the courts, the Supreme Court has construed a claim seeking mandamus under the MVA [Mandamus and Venue Act], `in essence,' as one for relief under § 706 of the APA." Independence Mining, 105 F.3d at 507 (citing Japan Whaling Ass'n v. American Cetacean Socy, 478 U.S. 221, 230 n. 4, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)). Accordingly, if the Court has, jurisdiction pursuant to one, it need not analyze jurisdiction with respect to the other.

2. Title 8 U.S.C. § 1252(a)(2)(B)(ii)

The defendants argue the mandamus statute and the APA do not provide subject matter jurisdiction, citing the jurisdiction-stripping provision of the Immigration and Nationality Act (INA). Title 8 U.S.C. § 1255(a), also known as section 245 of the INA, reads:

The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA [Violence Against Women Act] self-petitioner may be adjusted by the Attorney General,³ 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.

Put simply, 8 U.S.C. § 1255 provides that resident aliens may petition the Attorney General for adjustment of status to that of a lawful permanent resident. See Freeman v. Gonzales, 444 F.3d 1031, 1035 (9th Cir.2006). Its purpose is to permit resident aliens to attain...