Orabi v. Chertoff, Civil No. 1:07-CV-1453-JTC.

• Decision Date: 27 December 2007
• Docket Number: Civil No. 1:07-CV-1453-JTC.
• Citation: 562 F.Supp.2d 1377
• Parties: Saadi Nizar ORABI and Lisa Orabi, Plaintiffs, v. Michael CHERTOFF, Secretary, Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

562 F.Supp.2d 1377

Saadi Nizar ORABI and Lisa Orabi, Plaintiffs, v. Michael CHERTOFF, Secretary, Department of Homeland Security, et al., Defendants.

Civil No. 1:07-CV-1453-JTC.

United States District Court, N.D. Georgia, Atlanta Division.

December 27, 2007.

COPYRIGHT MATERIAL OMITTED

David Nabow Soloway, Frazier Soloway & Poorak, Atlanta, GA, for Plaintiffs.

Lisa D. Cooper, Office of United States Attorney, Atlanta, GA, for Defendants.

ORDER

JACK T. CAMP, District Judge.

Pending before the Court is Defendants' motion to dismiss [# 3]. Plaintiffs bring this action seeking a writ of mandamus to compel the Defendants to adjudicate their pending immigration petitions.

I. Background

On December 21, 2000, Plaintiff Saadi Nizar Orabi ("Saadi"), a citizen and native of Syria, entered the United States on a visitor's visa and later changed his status to L-1A intracompany transferee. (Compl. ¶ 8.) On July 1, 2003, Saadi married Plaintiff Lisa Orabi ("Lisa"), a citizen and native of the United States. (Id. ¶ 10.) In February 2004, Lisa filed an 1-130 petition for alien relative on behalf of Saadi, and Saadi filed an 1-485 application to adjust his status to lawful permanent resident. (Id. ¶ 11.) In August and September 2005, the Plaintiffs were interviewed by Citizenship and Immigration Services ("CIS") officials and submitted relevant documents. (Id.) Since that time, Saadi's application has not been adjudicated by CIS.¹ (Id. ¶¶ 11-12.) In January 2007, CIS informed Plaintiffs that a background check outside the control of CIS was impeding the adjudication of Saadi's application.² (Id. ¶ 12.) Saadi's application remains pending.

II. Discussion

In the Complaint, Plaintiffs assert three grounds for the Court's jurisdiction: (1) federal question jurisdiction under 28 U.S.C. § 1331, (2) jurisdiction for mandamus under 28 U.S.C. § 1361, (3) the Administrative Procedures Act under 5 U.S.C. §§ 555, 704, and (4) the Declaratory Judgment Act under 28 U.S.C. § 2201.³ Defendants move to dismiss, arguing that the Court lacks jurisdiction and that the Complaint fails to state a claim.

A. Subject Matter Jurisdiction

Courts lack jurisdiction to review actions committed to the Attorney General's discretion:

Notwithstanding any other provision of law (statutory or nonstatutory),. ... and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review ... any other 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). Adjustment of an aliens status to that of lawful permanent resident is an act entrusted to the discretion of the Attorney General. 8 U.S.C. § 1255(a) (the Attorney General, "in his discretion and under such regulations as he may prescribe," may adjust an alien's status to that of lawful permanent resident); see also 8 C.F.R. § 245.1, et seq. (setting out procedures for adjustment of status). Notably, neither the statute nor the regulations specify a time frame or pace for the Attorney General to adjust an alien's status.

Plaintiffs argue that § 1252(a)(2)(B)(ii) does not strip the Court of jurisdiction in this case because no "decision or action" has taken place. Specifically, Plaintiffs contend that adjudication of applications is not a type of discretionary "action" contemplated by the statute. The Court agrees that no "decision" has been made, as a "decision" is the Attorney General's final determination or order as to Saadi's status. See, e.g., Black's Law Dictionary 414 (7th ed.1999) ("decision" is a "judicial determination after consideration of the facts and the law"). However, "action" must mean something other than a final order. See Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) ("courts should disfavor interpretations of statutes that render language superfluous"); Torres v. Chertoff, No. 1:07-CV-01649-WSD, 2007 WL 4261742, at *4 (N.D.Ga. Nov. 30, 2007) (Duffey, J.) ("If Congress wanted to preclude the courts from exercising jurisdiction only over final agency `decisions,' then the word `action' could have been omitted."). The definition of "action" is not so narrow as to exclude adjudication of applications or the pace of any adjudication. An "action" is the "process of doing something; conduct or behavior." Black's Law Dictionary 28 (7th ed.1999); see also 5 U.S.C. § 551(13) ("agency action" is "the whole or part of an agency rule, order ... or failure to act").

Thus, under § 1252(a)(2)(B)(ii) the term "action" encompasses any act or series of acts that is discretionary within the adjustment of status process. And, as § 1255(a) does not impose any limits on USCIS's discretionary authority over the adjustment of status process, it is clear that "action" in § 1252(a)(2)(B)(ii) encompasses the entire process of reviewing an adjustment application, including the completion of background and security checks and the pace at which the process proceeds.

Surely Congress, in passing § 1252(a)(2)(B)(ii), did not intend to preclude from judicial review all discretionary actions involved in the processing of an adjustment application except for the pace of such processing. Indeed, to suggest that Congress intended to except the pace of the process from the general exclusion of judicial review is belied by the complete absence of any statutory time limits on the processing of adjustment applications. Instead, § 1255(a) simply provides that the adjustment application process is subject to the regulations that USCIS may elect to prescribe. Nowhere in the statute is there any reference to time limits for the processing of adjustment of status applications or the need for expedition in doing so. The absence of any such reference is consistent with, and confirmatory of, Congress' intent to confer on USCIS discretion over not just the adjustment of status decision, but also the process employed to reach that result, and to exclude from judicial review the exercise of all that discretion. Safadi v. Howard. 466 F.Supp.2d 696, 699 (E.D.Va.2006) (footnote omitted). A number of courts⁴ have arrived at the same conclusion. See, e.g., Torres, 2007 WL 4261742, at *4; Too Luo v. Keisler, No. 07-0395(RJL), 2007 WL 3357241, at *2 (D.D.C. Nov. 14, 2007); Sharif v. Chertoff, 497 F.Supp.2d 928, 933-34 (N.D.Ill.2007); Bugulu v. Gonzalez, 490 F.Supp.2d 965, 967 (W.D.Wis.2007): Romanovich v. Gonzales, No. 07-60224-CIV, 2007 WL 1229047, at *1-2 (S.D.Fla. April 4, 2007); Grinberg v. Swacina, 478 F.Supp.2d 1350, 1353-54 (S.D.Fla.2007).

Other courts considering the issue have come to the opposite conclusion. See, e.g., Belegradek v. Gonzales, No. 1:07-CV-0589-RWS, 2007 WL 3091078, at *3 (N.D.Ga. Oct. 18, 2007) (Story, J.) ("Section 245 of the INA imposes a non-discretionary duty on the Attorney General to adjudicate an application for adjustment of status" within a "reasonable time"); Alkeylani v. Dep't of Homeland Sec, 514 F.Supp.2d 258, 263 (D.Conn.2007) ("nothing in the statute suggests that the speed or pace of adjudication is discretionary"); Liu v. Novak, 509 F.Supp.2d 1, 6 (D.D.C. 2007) ("Review over the lack of action is not barred."); Tang v. Chertoff, 493 F.Supp.2d 148, 153-54 (D.Mass.2007) ("Despite the care taken in the INA to specify the substance of an adjustment of status decision as discretionary, the pacing of such a decision is not so specified.").

In the absence of Eleventh Circuit authority on this issue and no clear trend among district courts, the Court finds the approach set out in Safadi persuasive and adopts it. There is no indication in this case that Defendants have refused to act. Cf. Safadi 466 F.Supp.2d at 700 (jurisdiction may exist "where USCIS refused altogether to process an adjustment application or where the delay was so unreasonable as to be tantamount to a refusal to process the application."). Rather, it appears that only Saadi's FBI name check remains pending. The approximately three-and-a-half-year delay that has elapsed while CIS awaits Saadi's FBI name check does not, standing alone, rise to the level of an unreasonable delay. Cf Grinberg, 478 F.Supp.2d at 1354; Safadi 466 F.Supp.2d at 700-01. Therefore, pursuant to § 1252(a)(2)(B)(ii), the Court lacks subject matter jurisdiction over this case.

B. Federal Question Jurisdiction and the Administrative Procedures Act

Plaintiffs concede that the Administrative Procedures Act, on its own, does not provide a basis for subject matter jurisdiction. Instead, Plaintiffs argue that 28 U.S.C. § 1331, in connection with the Administrative Procedures Act, vests the Court with jurisdiction. Plaintiffs point to 5 U.S.C. § 702, which provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." The Administrative Procedures Act also provides that a reviewing court shall "compel agency action unlawfully withheld or unreasonably delayed" and that "[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." 5 U.S.C. §§ 706(1), 555(b). Plaintiffs contend that these sections grant jurisdiction and require Defendants to adjudicate applications within a reasonable time.

"[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." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 2379, 159 L.Ed.2d 137 (2004). "The [Immigration and Nationality Act ("INA") ] does not set a time period within which the Attorney General must adjudicate adjustment of status...