Qiu v. Chertoff

• Citation: 486 F.Supp.2d 412
• Decision Date: 15 May 2007
• Docket Number: Civil Action No. 07-123 (SRC).
• Parties: Yanping QIU, Plaintiff, v. Michael CHERTOFF, Secretary of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

486 F.Supp.2d 412

Yanping QIU, Plaintiff, v. Michael CHERTOFF, Secretary of Homeland Security, et al., Defendants.

Civil Action No. 07-123 (SRC).

United States District Court, D. New Jersey.

May 15, 2007.

Yanping Qiu, Mahwah, NJ, Plaintiff Pro se.

Yanet Perez Noble, U.S. Attorney's Office, Newark, NJ, for Defendants Michael Chertoff, Secretary of Homeland Security, Emilio Gonzalez, Director of the United States Citizenship and Immigration Service, Paul Novak, Director of the Vermont Service Center and Robert S. Mueller, Director of the Federal Bureau of Investigation.

OPINION

CHESLER, District Judge.

In this case, the Court must decide whether it has jurisdiction over an action seeking to compel the United States Citizenship and Immigration Service ("USCIS") to adjudicate an application for adjustment to lawful permanent residence status that has been pending for almost three years.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following facts are not in dispute: Plaintiff Yanping Qiu, proceeding pro se, was born in Beijing, China, and lawfully resides in the United States pursuant to an H-4 Visa. She has received a MBA from Rutgers University and is currently employed at Praetorian Financial Group. On January 21, 2004, she submitted an application to the USCIS to adjust her status to that of a permanent resident alien, also known as an I-485 application. However, Plaintiffs application has not been adjudicated because the USCIS and the Federal Bureau of Investigation ("FBI") have not completed background checks that the Attorney General adopted in the aftermath of 9-11. Because she is not a permanent resident of the United States, Plaintiff has paid higher tuition fees and was ineligible for certain student loans. Plaintiff alleges that because of the delay in adjudicating (and, implicitly, approving) her application, she suffered a loss of $27,000.

On January 9, 2007, just shy of three years after Plaintiff filed her I-485 application, she instituted the present suit against Michael Chertoff, the Secretary of Homeland Security, Emilio Gonzalez, the Director of the USCIS, Paul Novak, the Director of the USCIS Vermont Service Center and Robert S. Mueller, the Director of the FBI. Plaintiffs Complaint asks the Court to compel adjudication of her application, provide her with a notice of its approval and award compensatory damages.

Defendants have moved to dismiss Plaintiffs Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Plaintiff's Complaint asserts jurisdiction under the federal question statute, 28 U.S.C. § 1331, the mandamus statute, 28 U.S.C. § 1361, the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, and the Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201.¹ Pursuant to Federal Rule of Civil Procedure 78, the Court decides the motion on the papers submitted.

II. STANDARD FOR A MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a civil action for lack of subject matter jurisdiction. FED. R. Civ. P. 12(b)(1). Under Rule 12(h)(3), the court is required to dismiss the action whenever it appears that the court lacks subject matter jurisdiction. FED. R. Cry. P. 12(h)(3). The plaintiff bears the burden of establishing subject matter jurisdiction. See, e.g., Lucas v. Gulf & W. Indus., Inc., 666 F.2d 800, 805 (3d Cir.1981) (citing McNutt v. Gen'l Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). On a 12(b)(1) motion, "no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen v. First Federal Say. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977).

III. MANDAMUS JURISDICTION

Plaintiff argues that this Court has mandamus jurisdiction pursuant to 28 U.S.C. § 1361. Section 1361 provides that "[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." 28 U.S.C. § 1361 (2006). The Supreme Court has described mandamus relief under § 1361 as an "extraordinary remedy" which "will issue only to compel the performance of `a clear nondiscretionary duty.'" Pittston Coal Group v. Sebben, 488 U.S. 105, 121, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988); see also Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) ("The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty"); Work v. United States, 267 U.S. 175, 177, 45 S.Ct. 252, 69 L.Ed. 561 (1925) (stating that "[m]andamus issues to compel an officer to perform a purely ministerial duty" but "[i]t can not be used to compel or control a duty in the discharge of which by law he is given discretion"). A "party seeking mandamus has the burden of showing that its right to issuance of the writ is clear and indisputable." Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (quotations omitted). The Third Circuit has explained that

in order for mandamus to issue, a plaintiff must allege that an officer of the Government owes him a legal duty which is a specific, plain ministerial act "devoid of the exercise of judgment or discretion." An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt.

Harmon Cove Condominium Ass'n, Inc. v. Marsh, 815 F.2d 949, 951 (3d Cir.1987) (quoting Richardson v. United States, 465 F.2d 844, 849 (3d Cir.1972) (en banc) (citations omitted), rev. on other grounds, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974)). See Work, 267 U.S. at 177, 45 S.Ct. 252 (explaining that a duty is purely ministerial "where the officer can do only one thing").

IV. DISCUSSION

Plaintiff argues that Defendants owe her a non-discretionary duty to process her application within a reasonable time, which Defendants have failed to do by withholding adjudication for almost three years. Defendants assert that there is no statutory or regulatory time period specified within which an I-485 application must be adjudicated; that the court lacks jurisdiction under the mandamus statute or the APA because Defendants' decision to withhold adjudication at this time falls within the ambit of their discretion; and that 8 U.S.C. § 1252(a)(2)(B) and 1252(g) preclude judicial review of adjustment of status decisions, including the pace of adjudication.

The first of these assertions is true. There is no statutory or regulatory provision which specifies a time frame for adjudication of adjustment of status applications. Defendants are also correct that their decision to withhold adjudication at this time falls within their discretion, thus precluding jurisdiction under the mandamus statute and the APA. As to Defendants' final assertion, the Court declines to decide whether § 1252(a)(2)(B) and 1252(g) provide an independent bar to judicial review, as the conclusion that the Court otherwise lacks a basis for subject matter jurisdiction makes this determination unnecessary.

The authority of the Attorney General to adjust the status of an alien to permanent residence status is found in 8 U.S.C. § 1255(a), which provides that:

The status of an alien who was inspected and admitted or paroled into the United States ... 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 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.

8 U.S.C. § 1255(a) (2006) (emphasis added).²

Defendants cite two district court cases, Safadi v. Howard, 466 F.Supp.2d 696, 700 (D.Va.2006), and Grinberg v. Swacina, 478 F.Supp.2d 1350 (S.D.Fla.2007), which held that the court lacked subject matter jurisdiction because the term "action" in § 1252(a)(2)(B)(ii) "`encompasses any act or series of acts that are discretionary within the adjustment of status process,' including the pace of [adjudication]," Grinberg, at 1353-54 (quoting Safadi, 466 F. Supp 2d at 698). Safadi and Grinberg also held that there was no jurisdiction under the mandamus statute or the APA, because the defendants had no clear, nondiscretionary duty to adjudicate an I-485 application within a particular time period. Grinberg, at 1355; Safadi, 466 F.Supp.2d at 700.

In Serrano v. Quarantillo, No. 06-5221(DRD), 2007 WL 1101434 (D.N.J. Apr. 9, 2007), Judge Dickinson R. Debevoise of this court endorsed both holdings of Safadi. Judge Debevoise agreed that the lack of a non-discretionary duty precluded jurisdiction under 28 U.S.C. § 1361 and the APA, and that 8 U.S.C. § 1252(a)(2)(B) prohibited judicial review of the Attorney General's "actions or inactions" relating to the adjustment of a plaintiffs immigration status. 2007 WL 1101434 at *2-3. Serrano presented facts indistinguishable from the case at bar. The plaintiff filed an I-485 application to adjust his immigration status. Once two years and eight months had elapsed since the filing of his application, the plaintiff sought to compel action by bringing suit under the APA.³

Several cases from other districts, however, have held that there is a non-discretionary duty on the part of immigration officials to adjudicate adjustment of status applications and have granted mandamus relief to the plaintiffs.⁴ Some of these courts have pointed to the language of 8 C.F.R. § 209.2(f) as the source of Defendants' non-discretionary...