Saleem v. Keisler

• Decision Date: 26 October 2007
• Docket Number: No. 06-C-712-C.,06-C-712-C.
• Citation: 520 F.Supp.2d 1048
• Parties: Mohammed M. SALEEM, A# 79 339 657, Plaintiff, v. Peter D. KEISLER,<SMALL><SUP>1</SUP></SMALL> Michael Chertoff, Kay Leopold, Ruth Dorochoff, Emilio Gonzales, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

520 F.Supp.2d 1048

Mohammed M. SALEEM, A# 79 339 657, Plaintiff, v. Peter D. KEISLER,¹ Michael Chertoff, Kay Leopold, Ruth Dorochoff, Emilio Gonzales, Defendants.

No. 06-C-712-C.

United States District Court, W.D. Wisconsin.

October 26, 2007.

Erik Peterson, U.S. Attorney, W.D. of Wisconsin, Madison, WI, for Defendants.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

The question in this case is whether a remedy in federal district court exists for the failure of immigration officials to decide a noncitizen's application for adjustment of status from nonimmigrant to permanent resident. Plaintiff Mohammed Saleem, an Indian citizen seeking permanent residence in the United States, contends that jurisdiction for his claim is present under 28 U.S.C. § 1331 and that the government can be compelled to act under either the Mandamus Act, 28 U.S.C. § 1361, or the Administrative Procedures Act, 5 U.S.C. §§ 701-706. Defendants, who are immigration officials, say that under 8 U.S.C. 1252(a)(2)(B), this court lacks jurisdiction to hear the case and that plaintiff has no right to receive a decision "within any particular time frame."

The case is before the court on plaintiff's motion for summary judgment. Because I conclude that subject matter jurisdiction exists and that defendants have violated the APA by failing to adjudicate plaintiff's application after almost five years have passed, I will grant plaintiff's motion.

From the parties' proposed findings of fact, I find the following facts to be undisputed.

UNDISPUTED FACTS

A. Plaintiff's Application

Plaintiff Mohammed Saleem is a citizen of India. Defendant Peter Keisler is Acting Attorney General of the United States; defendant Michael Chertoff is Secretary of the Department of Homeland Security; defendant Emilio Gonzales is Director of the United States Citizenship and Immigration Services; defendant Ruth Dorochoff is the district director for Immigration Services in Chicago; defendant Kay Leopold is the officer-in-charge for Immigration Services in Milwaukee.

In 1999, plaintiff applied for and received an "H 1-B" visa, which is a nonimmigrant visa that authorizes a temporary stay in the United States "to perform services ... in a specialty occupation." 8 U.S.C. 1101(15)(h)(i)(B). In November 2002, after plaintiff received approval for his I-140 petition ("Immigrant Petition for Alien Worker"), he applied for status as a permanent resident under 8 U.S.C. § 1255, using Form I-485.

Plaintiff has not received a decision on his application. In June 2006, December 2006 and April 2007, plaintiff made inquiries at the United States Citizenship and Immigration Services regarding the status of his application. (Authority to grant applications is shared by the Attorney General, 8 U.S.C. 1255(a), and the Department of Homeland Security, 6 U.S.C. § 271(b)(5), which includes the United States Citizenship and Immigration and Services.) Each time plaintiff made an inquiry, he was told either nothing at all or that his application had not yet been decided.

B. Application Approval Process

When the United States Citizenship and Immigration Services receives an alien's application for an adjustment of status, the agency conducts mandatory security background checks. The checks include an FBI name check, an FBI fingerprint check and a check of the Interagency Border Inspection System, which contains information collected from various federal law enforcement and intelligence agencies. Under the policy of the immigration agency, all of these checks must be completed before the agency decides whether to grant or deny an application for adjustment of status.

OPINION

A. Subject Matter Jurisdiction

Plaintiff's motion for summary judgment raises several questions, but each is related to defendants' discretion in deciding applications for an adjustment of status. The threshold question is jurisdictional. Defendants concede that plaintiff's claim raises a federal question under 28 U.S.C. § 1331, but they argue that 8 U.S.C. § 1252(a)(2)(B) strips courts of jurisdiction with respect to any matter relating to an adjustment of status under 8 U.S.C. § 1255.

The relevant portion of 8 U.S.C. § 1252(a)(2)(B) reads as follows: "Notwithstanding any other provision of law ... 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." (emphasis added). Thus, before I may dismiss this case for lack of jurisdiction under § 1252, I must conclude that: (1) plaintiff is challenging a "decision or action" of defendants; and (2) such an action has been "specified under this subchapter to be in the discretion" of defendants.

Before resolving these questions, I acknowledge that I am not writing on a blank slate. Although it appears that no appellate court has yet considered a claim like plaintiff's, numerous district courts have done so over the last few years. Defendants leave the impression in their brief that the great weight of authority favors their position, Dfts.' Br., dkt. # 12, at 13, but this is a little disingenuous. Although it is true that a significant number of courts have concluded that jurisdiction does not exist to consider a claim involving a failure to adjudicate an application for an adjustment of status, at least as many courts have come to the opposite conclusion. Compare Chehab v. Chertoff, No. 07-11068, 2007 WL 2372356 (E.D.Mich. Aug. 17, 2007) (concluding that court lacked jurisdiction to hear case to compel immigration officers to decide application for adjustment in status); Qiu v. Chertoff, 486 F.Supp.2d 412 (D.N.J.2007) (same); Sharif v. Chertoff, 497 F.Supp.2d 928 (N.D.Ill.2007); Li v. Chertoff, 482 F.Supp.2d 1172 (S.D.Cal.2007); Rogatch v. Chertoff, No. CA 06-541ML, 2007 WL 1160358 (D.R.I. Apr. 17, 2007) (same); Mustafa v. Pasquerell, No. Civ.SA05CA-658-XR, 2006 WL 488399 (W.D.Tex. Jan. 10, 2006) (same); Zhang v. United States Citizenship & Immigration Service, No. 05 Civ. 4086(RJH)(AJP), 2005 WL 3046440 (S.D.N.Y. Nov. 8, 2005) (same); Zheng v. Reno, 166 F.Supp.2d 875 (S.D.N.Y.2001) (same) with Linville v. Barrows, 489 F.Supp.2d 1278 (W.D.Okla.2007) (concluding that § 1252 does not bar judicial review of a failure to adjudicate application for adjustment of status); Xu v. Chertoff, No. 07-366(DMC), 2007 WL 2033834 (D.N.J. July 11, 2007) (same); Yon Yang v. Gonzales, No. 2:07-cv-050, 2007 WL 1726501 (S.D.Ohio June 11, 2007) (same); Song v. Klapakas, No. 06-05589, 2007 WL 1101283 (E.D.Pa. Apr. 12, 2007) (same); Elmalky v. Upchurch, Civil Action No 3:06-CV-2359-B, 2007 WL 944330 (N.D.Tex. Mar. 28, 2007) (same); Haidari v. Frazier, Civil No. 06-3215 (DWF/AJB), 2006 WL 3544922 (D.Minn. Dec. 8, 2006) (same); Kim v. Ashcroft, 340 F.Supp.2d 384 (S.D.N.Y.2004) (same); Batista v. INS, No. 99 Civ. 2847 MBM, 2000 WL 204535 (S.D.N.Y. Feb. 22, 2000) (same). See also Zeng v. Upchurch, Civil No. 2:06-cv-112, 2007 WL 2694253, *2 (D.N.D. Sep. 11, 2007) (noting that "[d]istrict courts are more or less divided on this matter").

These cases represent only a small sampling of the total. In fact, barely a day has gone by in recent weeks without a new decision weighing in on what has become a national judicial debate. Having reviewed a great many of these decisions, I conclude that those favoring jurisdiction have the better of the argument.

1. Decision or action

I begin with the question whether plaintiff is challenging a "decision or action" of defendants. Of course, a "decision" means that something must be decided. Although an "action" has a broader meaning, it too suggests that some conclusion has been made about the appropriate course to take. Dong v. Chertoff, No. C 07-0266 SBA, 513 F.Supp.2d 1158 (N.D.Cal.2007) ("The phrase `decision or action' connotes some affirmative conduct by the Attorney General."). Because plaintiff's claim is premised on defendants' refusal to make a "decision" or to take "action" on his application, I must conclude that § 1252(a)(2)(B) is not implicated in this case.

Defendants' view that plaintiff is challenging an "action" contradicts not only common sense, but also the court of appeals' interpretation of § 1252(a)(2)(B), which makes it clear that the statute does not bar review of a refusal to adjudicate. In Iddir v. INS, 301 F.3d 492 (7th Cir. 2002), a case that defendants do not acknowledge, the plaintiffs sought a writ of mandamus to compel the INS to adjudicate an application for an adjustment of status under the Diversity Visa Lottery Program. In that case the Solicitor General conceded that the court had jurisdiction "to hear immigration cases in which the INS wholly fails to adjudicate an applicant's status and either grant or deny relief." Id. at 496. The court agreed, holding that § 1252(a)(2)(B) "only bars review of actual discretionary decisions to grant or deny relief under the enumerated sections, including section 1255." Id. at 497.

In coming to this conclusion the court noted the important difference "between discretionary action or decision, such as a denial of relief or decision to defer, and complete inaction and failure to make any decision." Id. In addition, it cited Nyaga v. Ashcroft, 186 F.Supp.2d 1244, 1250-53 (N.D.Ga.2002), for the proposition that "seeking remediation of lack of action ... is not barred" by § 1252(a)(2)(B). See also Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir.1997) ("when the suit challenges the authority of the consul to take or fail to take an action as opposed to a decision taken within the consul's discretion, jurisdiction exists").

A conclusion that district courts have jurisdiction to remedy a refusal to adjudicate is not contrary to cases cited by defendants and other district courts, in which the Supreme Court has stated, as defendants put it, "that judicial review in...