Sharif v. Chertoff

• Decision Date: 18 July 2007
• Docket Number: No. 07 C 1690.,07 C 1690.
• Parties: Richard SHARIF, Plaintiff, v. Michael CHERTOFF, Secretary U.S. Department of Homeland Security, Emilio T. Gonzales, Director U.S. Citizenship and Immigration Services, F. Gerald Heinauer, Director U.S. Citizenship and Immigration Services Nebraska Service Center, and Robert Blackwood, Adjudication Branch Chief DHS/USCIS Chicago District Office, Defendants.
• Court: U.S. District Court — Northern District of Illinois

497 F.Supp.2d 928

Richard SHARIF, Plaintiff, v. Michael CHERTOFF, Secretary U.S. Department of Homeland Security, Emilio T. Gonzales, Director U.S. Citizenship and Immigration Services, F. Gerald Heinauer, Director U.S. Citizenship and Immigration Services Nebraska Service Center, and Robert Blackwood, Adjudication Branch Chief DHS/USCIS Chicago District Office, Defendants.

No. 07 C 1690.

United States District Court, N.D. Illinois, Eastern Division.

July 18, 2007.

Michael B. Cohen, Law Offices of Michael B. Cohen, Chicago, IL, for Plaintiff.

Patrick Walter Johnson, AUSA, United States Attorney's Office (NDIL), Chicago, IL, for Defendants.

OPINION AND ORDER

NORGLE, District Judge.

For the following reasons, the court dismisses this case for lack of subject matter jurisdiction.

I. BACKGROUND

A. Facts

Plaintiff Richard Sharif ("Sharif") is a citizen of the United States who resides within the Northern District of Illinois. Defendants hold various leadership positions within the United States Department of Homeland Security ("DHS") or the United States Citizenship and Immigration Services ("CIS").

In his Mandamus Complaint for Declaratory and Injunctive Relief, Sharif alleges the following facts. During February 2006, Sharif initiated a 129-F Fiancé Petition on behalf of Ms. Barrah Khesfha ("Khesfha"). CIS employees in Chicago instructed Sharif to complete a 129-F Fiancé Petition Form and mail it, along with a $170 processing fee, to the Nebraska Service Center ("NSC") of the CIS. Sharif complied, and on February 28, 2006, CIS issued a Form I-797C Notice of Action acknowledging receipt of Sharif's 129-F Petition.

On July 20, 2006, Sharif sent a letter to the NSC inquiring about the status of his 129-F Fiancé Petition. The NSC did not respond to this inquiry. Sharif therefore enlisted the aid of United States Congressman Luis Gutierrez. On September 8, 2006, the Congressional Liason Office of the NSC indicated that Sharif's Fiancé Petition had been sent to a security unit for review. Five days later, Defendant F. Gerald Heinauer ("Heinauer"), acting Director of the NSC, sent a letter to Sharif advising Sharif that Khesfha was the subject of background security checks. On March 7, 2007, Heinauer sent another letter to Sharif indicating that the NSC was actively processing the case, and that every effort would be made to complete Kheshfa's background investigation as soon as possible. Heinauer did not indicate when the NSC might complete this process. Sharif alleges that since his Fiancé Petition has been pending since February 2006, this delay is unacceptable and unreasonable.

B. Procedural History

Sharif filed his Complaint on March 27, 2007. He requests, inter alia, that the court issue him mandamus relief compelling Defendants to immediately adjudicate and approve his Fiancé Petition. On May 31, 2007, the court ordered the parties to brief the issue of whether the court has subject matter jurisdiction to adjudicate this case. Both parties have timely responded to the court's order. The matter of jurisdiction is fully briefed and before the court.

II. DISCUSSION

Sharif actually seeks two separate forms of relief in this case. First, Sharif asks that the court order CIS to accelerate the pace at which it processes his Fiancé Petition. Second, Sharif asks that the court order CIS to approve his Petition. As a threshold matter, the court must first address the issue of whether Congress, in enacting the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), stripped the court of jurisdiction to adjudicate either one of these requests.

As to Sharif's second request, there is no question that the court is without jurisdiction to compel CIS to approve his Petition. Whether to grant a Fiancé Petition is a discretionary decision of the Attorney General, pursuant to 8 U.S.C. § 1184(d). CIS issues nonimmigrant visas for temporary admission to the United States in categories such as temporary visitor for business, temporary visitor for pleasure, student, fiancé, or temporary worker. See 8 U.S.C. § 1101(a)(15). Immigrant visas (green cards) permit holders to reside and work in the United States indefinitely. See 8 U.S.C. § 1153. "The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe...." 8 U.S.C. § 1184(a). Under section 1184(d) of the Immigration and Nationality Act, a nonimmigrant visa may be issued to the alien fiancé of a United States citizen to allow the alien to enter the United States to conduct a valid marriage within ninety days of entry. See 8 U.S.C. § 1184(d); 8 U.S.C. § 1101(a)(15)(K); 8 C.F.R. § 214.2(k). Pursuant to § 1184(d), the United States consular official abroad shall not issue a fiancé visa until DHS approves a petition submitted by a United States citizen. 8 U.S.C. § 1184(d). DHS may approve of such a petition only after receiving satisfactory evidence that the parties have previously met within two years before the petition was Med, have a bona fide intention to marry, and are legally able and actually willing to conduct a valid marriage within ninety days of the alien's arrival in the United States. Id.

Section 1184(d) therefore falls within the parameters of 8 U.S.C. § 1252(a)(2)(B)(ii). In 1996, Congress added 8 U.S.C. § 1252(a)(2)(B)(ii) to the immigration code as part of IIRIRA. Pub.L. No. 104-208, Division C, § 306(a), 110 Stat. 3009-546, 3009-607 (1996). Section 1252(a)(2)(B)(ii) provides:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, anti sections 1361 and 1651 of such title, 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 other decision or action of the Attorney General the authority for which is specified under this subchapter to be the discretion of the Attorney General other than the granting of [asylum]. relief under section 1158(a) of this title.

Section 1252(a)(2)(13)(ii) therefore clearly strips the courts of jurisdiction to pass on discretionary decisions of the Attorney General regarding immigration, including decisions regarding whether to approve a Fiancé Petition.

There is thus no question that the court is without jurisdiction to review whatever decision CIS ultimately makes regarding Sharif's Petition. The only question for the court is whether it has jurisdiction to force CIS to adjust the pace at which it makes this decision. Counsel for both parties have not presented the court with Seventh Circuit precedent squarely on point, and the court's research has revealed no such cases. In fact, the court can find no federal appellate court cases directly addressing this issue. The court therefore turns to other district courts for guidance. District courts across the country, however, have struggled with the issue of whether courts have jurisdiction to force CIS to accelerate the speed at which it processes individual cases. In fact, district courts are very much split on this matter. The court will therefore undertake an analysis of some recent district court decisions addressing this issue.

In Fu v. Gonzales, a Northern District of California court determined that because CIS had delayed processing Plaintiffs' applications for permanent residency for over three years, the court had jurisdiction under the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act, to determine whether this delay was unreasonable. No. 07-207, 2007 WL 1742376, 2007 U.S. Dist. LEXIS 39623 (N.D.Cal. May 17, 2007). The Fu court reasoned that an overly restrictive reading of 8 U.S.C. § 1252(a)(2)(B)(ii) "would render toothless all timing restraints, including those imposed by the APA, which would amount to a grant of permission for inaction." Id., 2007 WL 1742376, *4, 2007 U.S. Dist. LEXIS 39623 at *16 (internal quotation marks and citation omitted). In Koren v. Chertoff, a District of Connecticut court determined that, although decisions to ultimately deny or grant aliens permanent residency are "wholly discretionary" on the part of the Attorney General, "the decision of whether to actually adjudicate an adjustment application ... is not discretionary." No. 07-157, 2007 WL 1431948, 2007 U.S. Dist. LEXIS 35128 (D.Conn. May 14, 2007). The Koren court found that the pace of adjusting an alien's status was not discretionary, and therefore "§ 1252(a)(2)(B)(ii) does not divest this court of subject matter jurisdiction over Plaintiffs' claim that the adjudication of their applications for adjustment of status has been unreasonably delayed." Id., 2007 WL 1431948, *4, 2007 U.S. Dist. LEXIS 35128 at *15.

A Western District of Oklahoma court found that where an alien had applied for an adjustment of status, and two years had passed with no action by CIS, "the jurisdiction stripping provision of § 1252(a)(2)(B)(ii) does not divest this Court of jurisdiction over Plaintiffs' claims. The Defendants had a ministerial non-discretionary duty to adjudicate [Plaintiff's] application within a reasonable time." Linville v. Barrows, 489 F.Supp.2d 1278, 1282 (W.D.Okla.2007). Other district courts have followed similar lines of reasoning. While "[t]he ultimate decision whether or not to adjust an alien's status ... is undisputably within the discretion of the Attorney General," more than one district court "cannot accept the argument that, simply because adjustment of status is a form of discretionary relief, there is no limit to the length of time the USCIS may take in processing applications. The duty to act is no duty at all if the deadline is eternity." Tang v. Chertoff, 493 F.Supp.2d 148, 149-50, 151 (D.Mass.2007); Duan v Zamberry, No. 06-1351, 2007 WL 626116, *3, 2007 U.S. Dist. LEXIS 12697, at *9 (W.D.Penn. Feb....