Shen v. Chertoff

• Decision Date: 09 July 2007
• Docket Number: Civil Action No. 06-CV-15631-DT.
• Parties: Wei SHEN, Plaintiff, v. Michael CHERTOFF, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

494 F.Supp.2d 592

Wei SHEN, Plaintiff, v. Michael CHERTOFF, et al., Defendants.

Civil Action No. 06-CV-15631-DT.

United States District Court, E.D. Michigan, Southern Division.

July 9, 2007.

Wei Shen, Troy, MI, Pro se.

L. Michael Wicks, United States Attorney's Office, Detroit, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (DKT. NO. 7)

FRIEDMAN, Chief Judge.

This matter is presently before the Court on Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted. Plaintiff has filed a Response. Defendants did not file a Reply. Pursuant to E.D. Mich. LR 7.1(e)(2), the Court shall decide this motion without oral argument. The Court will grant the motion and dismiss Plaintiff's Complaint.

I. HISTORY OF THE CASE

A. FACTUAL BACKGROUND

Plaintiff Wei Shen ("Plaintiff'), pro se, alleges that Defendants have improperly delayed the adjudication of his I-485 application to adjust to permanent resident status. (Pl.'s Compl. ¶¶ 1, 2.) Defendants are: Michael Chertoff, Secretary of the Department of Homeland Security; Emilio Gonzalez, Director of the United States Citizenship and Immigration Services ("USCIS"); Robert Mueller, Director of the Federal Bureau of Investigation ("FBI"); and Alberto Gonzales, Attorney General of the United States Department of Justice.

On November 12, 2002, Plaintiff filed his 1-485 application with the Nebraska Service Center of the USCIS. (Id. 9; Defs.' Mot., Ex. ¶ 3.) The USCIS submitted Plaintiff's name-check request to the FBI on January 22, 2003, and the FBI acknowledged receipt of the name check on July 21, 2003. (Defs.' Mot., Ex. A ¶ 15.) Plaintiff states that after submitting his application, he was asked to provide additional fingerprints for security checks, which he did on four occasions — January 16, 2003; August 17, 2004; May 26, 2005; and February 10, 2006.¹ (Id. ¶ 10.) On April 26, 2005, Plaintiff inquired about the status of his application. (Pl.'s Compl. ¶ 13, Ex. C at 1.) The Nebraska Service Center replied that "[w]e received Forms 1-485 for you and your wife on 11[/]12[/]02" and that "[b]oth cases are currently undergoing the increased security checks the U.S. Bureau of Citizenship and Immigration Services has mandated for all cases filed at the Nebraska Service Center." (Id.) Plaintiff contacted the USCIS a second time on August 2, 2006. (Id. ¶ 14, Ex. C at 2.) On August 3, 2006, the USCIS replied that "[t]he processing of your case has been delayed" and that "[a] check of our records establishes that your case is not yet ready for decision, as the required investigation into your background remains open." (Id. ¶ 14.)

On August 28, 2006, Plaintiff received a "Request for Evidence" notice from the USCIS. (Id. ¶ 17.) Plaintiff submitted the requested evidence, which was received by the USCIS on September 28, 2006. (Id. ¶ 17, Ex. E.) The USCIS stated on its case-status website: "You should expect to receive a written decision or written update within 60 days of the date we received your response unless fingerprint processing or an interview are standard parts of case processing and have not yet been completed, in which case you can use our processing dates to estimate when this case will be done." (Id. ¶ 17.) After 60 days without an update, Plaintiff states that he contacted the USCIS on November 28, 2006. (Id. ¶ 18.) Plaintiff states that a customer representative confirmed that his 1-485 application could not be adjudicated because of a pending name check. (Id.) At this time, the name check remains pending. (Defs.' Mot., Ex. A ¶ 15.) The USCIS states that it cannot determine whether to grant Plaintiffs 1-485 application until the FBI has completed the name check. (Id. Ex. A ¶ 17.)

B. PROCEDURAL HISTORY

Plaintiff filed his Complaint on December 18, 2006. On February 20, 2007, Defendants filed their Motion to Dismiss. Plaintiff subsequently filed a Response.

II. LEGAL STANDARD

In order to defeat a defendant's motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), "the plaintiff must show that the complaint `alleges a claim under federal law, and that the claim is substantial.'" Mich. S. R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass'n, Inc., 287 F.3d 568, 573 (6th Cir. 2002) (quoting Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248 (6th Cir.1996)). The plaintiff "will survive the motion to dismiss by showing `any arguable basis in law' for the claims set forth in the complaint." Id. (quoting Musson, 89 F.3d at 1248). Moreover, the "plaintiff has the burden of proving jurisdiction." Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).

In addition, Defendants have moved for dismissal under Rule 12(b) (6), for failure to state a claim upon which relief can be granted. The Sixth Circuit has instructed that when a court is confronted with a motion for dismissal based on both Rules 12(b)(1) and 12(b) (6), the court is "bound to consider the 12(b)(1) motion first, since the Rule 12(b)(6) challenge becomes moot if th[e] court lacks subject-matter jurisdiction." Id.

III. ANALYSIS OF DEFENDANTS' MOTION TO DISMISS

Plaintiff asserts subject-matter jurisdiction based on 28 U.S.C. § 2201 (Declaratory Judgment Act); 28 U.S.C. § 1331 (Federal Question Statute); 28 U.S.C. § 1361 (Mandamus Act); and 5 U.S.C. § 701 (Administrative Procedure Act). The Declaratory Judgment Act does not provide an independent basis for subject-matter jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). Similarly, the Federal Question Statute does not provide an independent basis of jurisdiction.² In other words, the Declaratory Judgment Act and Federal Question Statute are procedural vehicles used to confer subject-matter jurisdiction. Thus, the Court will examine the Mandamus Act and the Administrative Procedure Act to see if subject-matter jurisdiction can be established.

Plaintiff concedes that Defendants are not bound by a statutorily-imposed timeline to adjudicate his application. However, Plaintiff believes that the processing time of his application has taken too long. Essentially, Plaintiff seeks a court order to compel Defendants to adjudicate his application. Plaintiff explains that his cause of action "challenges only the Defendants' timeliness in adjudication of Plaintiff's application, not the granting or denial of that application." (Pl.'s Compl. ¶ 20.)

Plaintiff relies heavily on the fact that the USCIS is currently adjudicating applications that were filed last year, while his application — which was filed more than 50 months ago — remains without a definite resolution. (Pl.'s Br. Supp. Resp., 6, Ex. H at 3.) Plaintiff argues that Defendants have failed to adjudicate his application within a reasonable amount of time, and furthermore, that they have a nondiscretionary duty to adjudicate his application within a reasonable time.

A. MANDAMUS ACT-28 U.S.C. § 1361

Mandamus jurisdiction is governed by 28 U.S.C. § 1361, which states 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." However, mandamus relief is an "extraordinary remedy" that "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) (quoting Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984)). See also In Re Parker, 49 F.3d 204, 206 (6th Cir.1995) (stating "[m]andamus is a drastic remedy, to be invoked only in extraordinary situations where [plaintiff] can show a clear and indisputable right to the relief sought"). Specifically, mandamus relief is proper where the plaintiff can show that (1) the plaintiff has a "`clear and certain claim'" to the relief sought; (2) the defendant official has a "`nondiscretionary, ministerial' duty to act `so plainly prescribed as to be free from doubt'"; and (3) "`no other adequate remedy [is] available.'" Anjum v. Hansen, No. 06-00319, 2007 WL 983215, at *3 (S.D.Ohio Mar. 28, 2007) (quoting Patel v. Reno, 134 F.3d 929, 931 (9th Cir.1988)). See also Heckler, 466 U.S. at 616-17, 104 S.Ct. 2013.

In his Response, Plaintiff recognizes that a writ of mandamus is improper to compel discretionary agency action, but he urges the Court to order Defendants to adjudicate his application.³ Plaintiff supports his argument by citing to cases from other federal district courts — which are non-binding — that have found that the USCIS has a nondiscretionary duty to adjudicate an 1-485 application. (Pl.'s Resp., 5-6.)

The Court disagrees with Plaintiff. The Court finds that the USCIS does not have a nondiscretionary duty to process 1-485 applications. The United States Supreme Court has held that it is "`[t]he power of congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention.'" Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (quoting Lem Moon Sing v. United States, 158 U.S. 538, 547, 15 S.Ct. 967, 39 L.Ed. 1082 (1895)). In fact, when Congress enacted Section 245(a) of the Immigration and Nationality Act ("INA"), it placed the adjustment of alien status in the sole discretion of the Attorney General. 8 U.S.C. § 1255(a) (Supp. 2007).⁴ The INA states:

The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be...