Grinberg v. Swacina

• Decision Date: 20 March 2007
• Docket Number: No. 06-22593-CIV.,06-22593-CIV.
• Citation: 478 F.Supp.2d 1350
• Parties: Lioubov GRINBERG, Boris L. Grinberg, Maria Grinberg, & Boris J. Grinberg, Plaintiffs, v. Linda SWACINA, Director, Miami Office, U.S. Citizenship & Immigration Services; Alberto Gonzales, Attorney General of the United States; Michael Chertoff, Secretary of Homeland Security; Emilio Gonzalez, Director U.S. Citizenship & Immigration Services; and Evelyn Upchurch, Director, Texas Service Center, U.S. Citizenship & Immigration Services, Defendants.
• Court: U.S. District Court — Southern District of Florida

478 F.Supp.2d 1350

Lioubov GRINBERG, Boris L. Grinberg, Maria Grinberg, & Boris J. Grinberg, Plaintiffs, v. Linda SWACINA, Director, Miami Office, U.S. Citizenship & Immigration Services; Alberto Gonzales, Attorney General of the United States; Michael Chertoff, Secretary of Homeland Security; Emilio Gonzalez, Director U.S. Citizenship & Immigration Services; and Evelyn Upchurch, Director, Texas Service Center, U.S. Citizenship & Immigration Services, Defendants.

No. 06-22593-CIV.

United States District Court, S.D. Florida.

March 20, 2007.

Anis Nouhad Saleh, Saleh & Associates, P.A., Mary Elizabeth Kramer, Miami, FL, for Plaintiffs.

Dexter Lee, United States Attorney's Office, Miami, FL, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

MORENO, District Judge.

Plaintiff is a foreign citizen who seeks an order compelling the representatives of a United States government agency to adjudicate his application for adjustment of status to become a permanent United States resident.¹

Without any Eleventh Circuit law addressing the immigration issue presented here, this Court elects to follow the majority of courts that have dismissed similar actions for lack of subject matter jurisdiction, under the rationale that Sections 242 and 245 of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1255(a), 1252(a)(2)(B)(ii) (2006), as amended in 2005, preclude judicial review of any discretionary "decision or action" of the Attorney General in immigration matters. See Safadi v. Howard, 466 F.Supp.2d 696 (E.D.Va2006); Alkenani v. Barrows, 356 F.Supp.2d 652 (N.D.Tex.2005); Maldonado-Coronel v. McElroy, 943 F.Supp. 376 (S.D.N.Y.1996); Zheng v. INS, 933 F.Supp. 338, 341 (S.D.N.Y.1996); Zaytsev v. Gantner, No. 04 Civ. 7101, 2004 WL 2251665 (S.D.N.Y. Sept. 24, 2004). These. courts have held that this phrase includes the pace at which immigration decisions are made. See Safadi, at 698. Accordingly, they have reasoned that neither mandamus jurisdiction pursuant to 28 U.S.C. § 1361 nor the Administrative Procedure Act ("APA") in conjunction with 28 U.S.C. § 1331 confer jurisdiction to compel adjudication. Id. at 700-01. This Court agrees.

Further, this Court concludes that if Congress intended to confer jurisdiction on a federal court to review the pace of adjudication for adjustment of status applications, it would have expressly provided for a time limitation in 8 U.S.C. 1255(a), as it did in 8 U.S.C. § 1447(b). Section 1447(b) provides for a 120 day time limit to make a determination on a naturalization application after an examination is conducted. 8 U.S.C. § 1447(b) (2006). That Congress did not do so here reflects its intent to leave the pace of adjudication discretionary with the United States Attorney General and outside the scope of judicial review. While this Court acknowledges Plaintiffs frustration from waiting indefinitely in "immigration limbo" for a determination, it finds that Congress, rather than a federal court, is the proper governmental body to fashion a remedy.

BACKGROUND

Lioubov Grinberg, Boris L. Grinberg, Maria Grinberg, and Boris J. Grinberg, citizens of Russia, were non-permanent United States residents when they initiated this action for mandamus relief to compel Defendants to adjudicate their applications for adjustment of immigration status. Only the application of Plaintiff Boris L. Grinberg currently remains pending. On June 21, 2001, the Grinbergs filed Forms 1-485 with the Immigration and Naturalization Service ("INS")² to become lawful permanent residents of the United States under Section 245 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(a). Lioubov Grinberg was seeking to adjust her status as a skilled worker or professional pursuant to 8 U.S.C. § 1153(b)(3)(A)(i), while her husband and children sought adjustment as an "accompanying" spouse, 8 U.S.C. § 1153(d), and "accompanying" children, id. Since 1997, Mrs. Grinberg has been employed as a Russian Student Advisor at the American Heritage School, which serves communities west of Fort Lauderdale.

On November 6, 2001, USCIS transferred the Grinbergs' applications to an office in Miami, Florida for processing. The USCIS requested that the FBI review the Grinbergs' records and report any relevant information on January 6, 2003. On January 16, 2004, the Grinbergs attended their scheduled adjustment of status interview at the Miami District Office. In February of 2004, they provided the Miami District Office with additional requested documents and fingerprint results. Despite repeated assurances that the Grinbergs' applications were being processed, at the time of the filing of the Complaint, over five years had elapsed since the INS issued receipts for their applications, and three years since their interviews at the Miami office. Defendants had claimed that the Grinbergs' background checks were continuing based on "unresolved questions" as to the lead applicant, Lioubov Grinberg. On March 11, 2007, Defendants filed a Report to the Court, which states that they have approved the applications of Lioubov Grinberg and her two children, Maria Grinberg, and Boris J. Grinberg. Defendants now maintain that as to the still pending application of Boris L. Grinberg, the USCIS "requires additional time to conduct its investigation and make necessary contact with entities outside of the USCIS."

SUBJECT MATTER JURISDICTION

Plaintiff does not ask this Court to redress a violation of the United States Constitution. Rather, this action arises under federal statute. See 28 U.S.C. § 1331 (2006).

The Complaint alleges that the Court has jurisdiction pursuant to (1) 5 U.S.C. § 701 et seq., i.e., the Administrative Procedure Act ("APA"); (2) 28 U.S.C. § 1381 (federal subject matter jurisdiction); (3) 28 U.S.C. § 1361 (mandamus jurisdiction); and (4) 28 U.S.C. §§ 2201, 2202, i.e., the Declaratory Judgment Act.

Defendants argue that Congress has not conferred jurisdiction upon the Court to grant the relief requested. This Court agrees. Section 245 of the INA, as amended, provides that the decision to adjust an alien's status to lawful permanent resident lies solely within the discretion of the Attorney General and "under such regulations as he may prescribe." 8 U.S.C. § 1255(a) (2006). This provision "places the adjustment of immigration status within the discretion of the Attorney General," but remains silent as to the pace of adjudication. Id.

Section 242(a)(2)(B)(ii) of the INA further supports the proposition that Congress intended to divest courts of jurisdiction to review USCIS matters. This section provides, in pertinent part, that "no court shall have jurisdiction to review ... any other decision or action of the Attorney General or the Secretary of Homeland Security.... " 8 U.S.C. § 1252(a)(2)(B)(ii) (2006). Plaintiff contests the applicability of section 242, arguing that this provision applies only to judicial review of USCIS decisions, while here, the USCIS has not made a decision on Plaintiffs application.

However, Plaintiff fails to address directly the implications of the word "action." While there is little dispute that a court is prohibited from reviewing an adjustment of status decision, at issue between the parties is whether Congress intended the pace at which an adjustment of status application is processed to come within the ambit of a discretionary, and hence non-reviewable, "action." In granting Defendants' Motion to Dismiss, this Court finds that Congress intended to include the pace within its discretionary function.

While the Eleventh Circuit has not yet decided this issue, in Safadi v. Howard, 466 F.Supp.2d 696 (E.D.Va.006), the United States District Court for the Eastern District of Virginia recently held that the term "action," as used in section 242(a)(2)(B)(ii), "encompasses any act or series of acts that are discretionary within the adjustment of status process," including the pace of this process. Id. at 698. The Safadi court rejected the, plaintiffs argument that the phrase "decision or action" pertained only to the result of the adjudications. Id. at 699-700. The court concluded that plaintiffs argument would "impermissibly render the word `action' superfluous." Id. Safadi presents a set of facts uniquely similar to the case at bar. 466 F.Supp.2d 696. In Safadi, a citizen of Lebanon sought to compel the USCIS to adjudicate his application to adjust to permanent resident status after waiting four years. Id. at 697. The court held that section 242(a)(2)(B)(ii) expressly prohibited the court from asserting jurisdiction. Id. at 700-01 (finding no jurisdiction under the APA or § 1361).

Plaintiff distinguishes Safadi by pointing out that the application in that case was pending for only four years, while here, the Grinbergs have waited over five years since filing their applications and three years since their interviews at the Miami district office. This Court finds this fact alone insufficient to invoke jurisdiction in the present case. Plaintiff also states that, unlike Safadi, Defendants in the instant case have not provided an affidavit to assure them that the applications are being processed; thus, there is no "pace" at all. Defendants here, however, included in their Reply an affidavit from Rosalinda Fernandez from the Miami District of the USCIS. In her affidavit, Ms. Fernandez stated that "it is anticipated that a decision on the Grinberg family's application for adjustment of status will be rendered." And even more compelling is the fact that Defendants have since approved the applications of the other members of the Grinberg family. In light of these submissions, Plaintiff fails to distinguish Safadi on its facts.

MANDAMUS JURISDICTION

Plaintiff submits that this Court has jurisdiction pursuant to 28 U.S.C. § 1361. The party seeking mandamus has the burden of demonstrating "that its right to issuance of the writ³ is clear and indisputable." Will v. United States, 389 U.S. 90,...