Kashkool v. Chertoff

• Citation: 553 F.Supp.2d 1131
• Decision Date: 07 April 2008
• Docket Number: No. CV-07-190-PHX-LOA.,CV-07-190-PHX-LOA.
• Parties: Rasool KASHKOOL, Plaintiff, v. Michael CHERTOFF, et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona

553 F.Supp.2d 1131

Rasool KASHKOOL, Plaintiff, v. Michael CHERTOFF, et al., Defendants.

No. CV-07-190-PHX-LOA.

United States District Court, D. Arizona.

April 7, 2008.

Eric George Bjotvedt, Law Office of Eric G. Bjotvedt, Phoenix, AZ, for Plaintiff.

Cynthia M. Parsons, U.S. Attorney's Office, Phoenix, AZ, for Defendants.

ORDER

LAWRENCE O. ANDERSON, United States Magistrate Judge.

This matter arises on Plaintiffs Motion for Summary Judgment, (docket # 27) Defendants have filed a "Response in Opposition to Plaintiffs Motion for Summary Judgment and Defendant's Cross-Motion for Summary Judgment/Motion to Dismiss." (docket # 30) The parties have previously consented to magistrate-judge jurisdiction pursuant to Title 28 U.S.C. 636(c)(1) for all purposes, including trial and final entry of judgment, (docket # 18) For the reasons set forth below, this Court concludes that it has jurisdiction over Plaintiffs Complaint and that Plaintiff is entitled to summary judgment as a matter of law.

I. Background

On January 26, 2007, Plaintiff filed a Petition for Writ of Mandamus against Michael Chertoff, Secretary of the Department of Homeland Security, and Robert J. Okin, District Director of the Phoenix District Office of the Bureau of Citizenship and Immigration Services, (docket # 1 at 1-2) Plaintiff seeks an order compelling Defendants to adjudicate his pending application for adjustment of status to permanent resident ("I-485" application), (docket # 1) Plaintiff asserts that this District Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1361 (Mandamus Act), 28 U.S.C. § 1651 (the All Writs Act), and 5 U.S.C. § 701 (Administrative Procedure Act), (docket # 1)

Plaintiff is a native and citizen of Iraq who was admitted to the United States as a refugee pursuant to § 207. of the Immigration and Nationality Act ("INA") on May 3, 2001 in Los Angeles, California, (docket # 27 at 1; Harrell Decl. ¶ 12¹) He has resided in the United States since that date. On July 1, 2002, Plaintiff filed an 485 application to adjust to legal permanent resident status with the United States Bureau of Citizenship and Immigration Services ("USCIS" or the "agency"), (docket # 27-3) When an individual applies to USCIS for adjustment of status to lawful permanent resident, the agency conducts several forms of security and background checks to ensure that an alien is eligible for the benefit sought and that the applicant does not pose a risk to national security or public safety, (docket # 30, Harrell Decl. ¶¶ 3, 4) The background checks include (1) a Federal Bureau of Investigation ("FBI") fingerprint check, (2) a check against the Interagency Border Inspection System watch list, and (3) an FBI name check, (docket # 30, Harrell Decl. ¶ 4, fact sheet) Plaintiff "has not been interviewed concerning his eligibility for the benefit sought." (Harrell Decl. ¶ 12) Plaintiff has received no decision on his I-485 application which remains unadjudicated. (Id.); (docket # 27-3)

The USCIS has submitted a name check for Plaintiff to the FBI. (Cannon Decl. ¶ 22²) A name check is a computerized search of an applicant's name against FBI investigative databases. (Cannon Decl. ¶ 11) The FBI's National Name Check Program received USCIS's first request for a name check on Plaintiff on or about December 20, 2002. (Id.) According to the Declaration of Michael Cannon, Section Chief of the National Name Check Program Section at Headquarters of the FBI in Washington, D.C., the FBI performed its check and forwarded the results to the USCIS in Washington, D.C. (Cannon Decl. ¶ 22) The FBI received a second name check request from USCIS for Plaintiff on or about February 12, 2004. (Id. at ¶ 23) The second name check has not been completed. (Id.) The USCIS cannot adjudicate Plaintiffs pending I-485 application until all security checks, including the name check, are completed, (docket # 30 at 7; Harrell Decl. ¶ 3, 8) Defendants' main justification for the delay in processing Plaintiffs I-485 application is that USCIS has not yet received the results of Plaintiffs FBI name check, (docket # 30 at 2, 7)

II. Summary of Arguments

A. Defendants' Arguments

Defendants argue that the Court should dismiss the Complaint pursuant to Fed. R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction because Title 8 U.S.C. § 1252(a)(2)(B)(ii) divests the court of subject matter jurisdiction over Plaintiffs claims.³ (docket # 30 at 5) Defendants further argue that the Court should dismiss Plaintiffs claims under both the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., for failure to state a claim, (dockets # 30 at 2, docket # 1)

B. Plaintiffs Arguments

Plaintiff argues that the Court has subject-matter jurisdiction over his claims pursuant to the Mandamus Act, 28 U.S.C. § 1361; the All Writs Act, 28 U.S.C. § 1651(a); the federal question statute, 28. U.S.C. § 1331; and the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq. (docket # 1) Plaintiff asserts that the Mandamus Act provides jurisdiction over any action in the nature of mandamus to compel an officer or employee of the United States to perform a duty owed to Plaintiff, (docket # 1) Plaintiff also asserts that, pursuant to the APA, a court may "compel agency action unlawfully withheld or unreasonably delayed." (docket # 1 at 3); 5 U.S.C. § 701, et seq.

Plaintiff moves for summary judgment on the ground that there is no genuine issue of material fact that Defendants have failed to adjudicate Plaintiffs 1^485 application within a reasonable period of time, (docket # 27)

III. Subject Matter Jurisdiction

Defendants move for dismissal of this action for lack of subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Pursuant to Fed.R.Civ.P. 12(b)(1), the court must dismiss an action if the court lacks jurisdiction over the subject matter of the suit. Fed.R.Civ.P. 12(b)(1). The party invoking federal jurisdiction bears the burden of establishing that such jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986). The Court presumes a lack of jurisdiction until the party asserting federal jurisdiction proves otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Stock West, Inc. v. Confederated Tribes, 873. F.2d 1221, 1225 (9th Cir.1989) (noting that a federal court is presumed to lack subject matter jurisdiction until otherwise established); Thornhill Publishing Co. v. General Tel. &amp Electronics Corp., 594 F.2d 730, 733 (9th Cir.1979).

Plaintiff invokes this Court's jurisdiction on several bases: 28 U.S.C. § 1331 (granting "federal question" jurisdiction over civil actions "arising under the Constitution, laws, or treaties of the United States") in combination with the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706; and the Mandamus Act, 28 U.S.C. § 1361, in conjunction with the All Writs Act, 28 U.S.C. § 1651(a) (stating that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.") (docket # 1 at 1)

A. Federal Question Jurisdiction and the APA

Federal-question jurisdiction must be supported by an underlying question of federal law. Adelt v. Richmond School Dist, 439 F.2d 718, 718 (9th Cir.1971) (affirming dismissal on jurisdictional grounds where "the asserted errors are not of Constitutional dimension and present no federal question.")

The general grant of jurisdiction to determine federal questions under 28 U.S.C. § 1331, in conjunction with the APA, is sufficient to confer jurisdiction over a challenge to federal agency action. See, Bowen v. Massachusetts, 487 U.S. 879, 891 n. 16, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (stating that "it is common ground that if review is proper under the APA, [there is] jurisdiction under 28 U.S.C. § 1331."); Gallo Cattle Co. v. U.S. Dept. of Agriculture, 159 F.3d 1194, 1198 (9th Cir.1998) (stating that "while beyond dispute that the APA does not provide an independent basis for subject matter jurisdiction, a federal court has jurisdiction pursuant to 28 U.S.C. § 1331 over challenges to agency action as claims arising under federal law, unless a statute expressly precludes review."); Proyecto San Pablo v. INS, 189 F.3d 1130, 1136 n. 5 (9th Cir.1999) (same). Thus, as discussed in Section IV.B, infra, because Plaintiff states a claim under the APA, this Court has federal-question jurisdiction in conjunction with the APA.

B. Mandamus Act

The Mandamus Act vests a district court with original jurisdiction over "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." 28 U.S.C. § 1361. Relief under the mandamus act and the APA are virtually equivalent when a petitioner seeks to compel an agency to act on a nondiscretionary duty. Independence Mining Co., Inc. v. Babbitt, 105 F.3d 502, 507 (9th Cir.1997). The Mandamus Act, however, "is intended to provide a remedy only if the plaintiff has exhausted all other avenues of relief and only if the defendant owes him a nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 603-04, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984). As discussed in Section IV.A, infra, because Plaintiff can proceed under the Mandamus Act, this Court has mandamus jurisdiction.⁴

Thus, contrary to Defendants' assertions, this Court has subject-matter jurisdiction over this matter in the first instance. The Court must next consider Defendants' argument that 8 U.S.C. § 1252(a)(2)(B)(ii) divests this Court of jurisdiction.

C. Effect of 8 U.S.C. § 1252(a)(2)(B)(ii)

Plaintiff seeks to compel Defendants to expedite adjudication of this I-485 application, (docket # 1) Title 8 U.S.C. § 1255 governs the adjudication of an I-485...