Liu v. Novak

• Citation: 509 F.Supp.2d 1
• Decision Date: 30 August 2007
• Docket Number: Civil Action No. 07-263 (EGS).
• Parties: Zaigang LIU, Plaintiff, v. Paul NOVAK, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

509 F.Supp.2d 1

Zaigang LIU, Plaintiff, v. Paul NOVAK, et al., Defendants.

Civil Action No. 07-263 (EGS).

United States District Court, District of Columbia.

August 30, 2007.

Thomas A. Elliot, Elliot & Mayock, Washington, DC, for Plaintiff.

Alexander Daniel Shoaibi, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Plaintiff, Zaigang Liu, filed this suit seeking to compel the federal government defendants to adjudicate his application for adjustment of immigration status. Plaintiff submitted his application for adjustment to obtain lawful permanent resident status on July 23, 2003, and his application has not yet been adjudicated. Pending before the Court are defendants' motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim and plaintiffs motion for summary judgment. Upon consideration of the motions and supporting memoranda, the responses and replies thereto, the applicable law, and the entire record, the Court determines that it has jurisdiction over plaintiffs claim under the Administrative Procedures Act ("APA") and that adjudication of plaintiffs application has been unreasonably delayed. Therefore, for the reasons stated herein, plaintiffs motion for summary judgment is GRANTED, and defendants' motion to dismiss the complaint is DENIED.

BACKGROUND¹

Plaintiff, Zaigang Liu, is a Chinese national lawfully residing in the United States. On July 23, 2003, plaintiff filed an application for adjustment of status to lawful permanent resident as a derivative beneficiary of his spouse, Lu Zhang. Defendant Paul Novak is the District Director of the Vermont Service Center of the United States Department of Homeland Security. Plaintiffs application was filed with defendant Novak's office and the office retains jurisdiction over the application. Defendant Emilio Gonzalez is the Director of the United States Citizenship and Immigration Services ("USCIS"). The USCIS is assigned the adjudication of immigrant visa petitions as well as applications for permanent residence status. Defendant Robert S. Mueller, III, is the Director of the Federal Bureau of Investigation ("FBI"). The FBI is responsible for security clearance investigations with regard to status adjustment applications.

Plaintiff is eligible for an adjustment of status as a derivative beneficiary of an approved Immigrant Petition for Alien Worker and Application for Adjustment of Status to lawful permanent resident filed by his spouse. Plaintiffs spouse's application for adjustment was approved by the USCIS on November 23, 2004. Plaintiff has complied with all requests made by the USCIS in order to, complete all necessary biometric appointments for security clearances. In addition, plaintiff has provided all information requested by the agency and has complied with all appointment notices. Nonetheless, on May 21, 2006, plaintiff was informed that his application's adjudication was delayed because of the absence of the required security background checks. This security background check includes an FBI name check. Defendants contend that FBI name checks are detailed processes, and although the vast majority clear quickly, FBI name checks can remain pending for long periods of time.

More than three years after plaintiff filed his application for adjustment, plaintiff had still not received any decision. Accordingly, on February 5, 2007, plaintiff filed a complaint in this Court asserting both mandamus jurisdiction and federal question jurisdiction in combination with the APA. Plaintiff seeks to compel defendants to adjudicate his application for adjustment, though he does not ask the Court to compel a status adjustment favorable to him.

In response to plaintiffs complaint, defendants filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. With regard to jurisdiction, defendants assert that: (1) this Court lacks jurisdiction over plaintiffs claim under two provisions of the immigration law; (2) mandamus is inappropriate because defendants do not owe plaintiffs a non-discretionary duty; and (3) federal question jurisdiction under the APA is inappropriate because adjustment of status is discretionary and thus unreviewable by courts. With regard to the merits, defendants assert that although plaintiff requests immediate adjudication of his application, there is no statutory basis warranting such relief.

Plaintiff filed a motion for summary judgment in addition to an opposition to defendants' motion to dismiss. Plaintiff asserts that: (1) this Court has jurisdiction under the APA or through mandamus; and (2) pursuant to the APA, not only has plaintiff stated a valid claim, but plaintiff is entitled to judgment as a matter of law because defendants failed to adjudicate his application within a reasonable time. Defendants filed a reply that addressed the jurisdictional issues, but failed to address plaintiffs argument that adjudication of the application has been unreasonably delayed.

STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure tests whether the court has subject matter jurisdiction over the action. Bernard v. U.S. Dep't Of Def., 362 F.Supp.2d 272, 277 (D.D.C.2005). The plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Rann v. Chao, 154 F.Supp.2d 61, 64 (D.D.C.2001). In evaluating a motion to dismiss for lack of subject-matter jurisdiction, the court must accept the complaint's well-pled factual allegations as true and construe all reasonable inferences in the plaintiffs favor. Thompson v. The Capitol Police Bd., 120 F.Supp.2d 78, 81 (D.D.C.2000). "The court is not required, however, to accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations." Rann, 154 F.Supp.2d at 64 (citations omitted). In determining whether the plaintiff has met his burden, the Court may look to materials beyond the pleadings. Bernard, 362 F.Supp.2d at 277 (citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992)).

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). A complaint must present "enough facts to state a claim to relief that is plausible on its face," and "above the speculative level." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965, 1974, 167 L.Ed.2d 929 (2007). The Court will accept as true all factual allegations in the complaint, and give the plaintiff the benefit of all inferences that can be drawn from the facts alleged. See id. at 1965; Atchinson v. Dist. of Columbia, 73 F.3d 418, 422 (D.C.Cir.1996).

Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving, party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.

ANALYSIS

I. Jurisdiction

Defendants contend that this Court has been stripped of jurisdiction over plaintiff's claim by two provisions, 8 U.S.C. § 1252(a)(2)(B)(ii) and 8 U.S.C. § 1252(g). In the alternative, defendants contend that the Court does not have jurisdiction over plaintiffs APA claim because it concerns matters committed to agency discretion and does not have jurisdiction over plaintiff s mandamus claim because defendants do not owe plaintiff a clear, non-discretionary duty.

A. 8 U.S.C. § 1252(a)(2)(B)(ii)

Section 242 of the Immigration and Nationality Act, as amended by the REAL ID Act of 2005, states:

[n]otwithstanding any other provision of law (statutory or nonstatutory), ... and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review ...

(ii) any ... 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) (emphasis added). Pursuant to 8 U.S.C. § 1255, an alien's status "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). Although it is clear that the decision to grant or deny an adjustment application is "wholly discretionary," Kim v. Ashcroft, 340 F.Supp.2d 384, 389 (S.D.N.Y.2004), and therefore barred from judicial review, it is a disputed question among courts as to whether section 1252(a)(2)(B)(ii) also bars a court from reviewing the failure to make or delay in making an adjustment decision.

Several district courts have dismissed claims similar to plaintiffs for lack of subject matter jurisdiction, holding that § 1252(a)(2)(B)(ii) bars judicial review of the overall process leading up to and including the grant or denial of an adjustment application. For example, in Safadi v. Howard, 466 F.Supp.2d 696 (E.D.Va. 2006), after waiting more than three years for a decision on his adjustment application, the plaintiff filed a mandamus action requesting...