Villa v. U.S. Dept. of Homeland Sec.

• Decision Date: 06 April 2009
• Docket Number: No. 1:08-CV-00621 (LEK/RFT).,1:08-CV-00621 (LEK/RFT).
• Parties: Rocio VILLA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,<SMALL><SUP>1</SUP></SMALL> Defendants.
• Court: U.S. District Court — Northern District of New York

607 F.Supp.2d 359

Rocio VILLA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,¹ Defendants.

No. 1:08-CV-00621 (LEK/RFT).

United States District Court, N.D. New York.

April 6, 2009.

Seth R. Leech, William S. Nolan, Whiteman, Osterman Law Firm, Albany, NY, for Plaintiffs.

Barbara D. Cottrell, Office of United States Attorney, Albany, NY, Christopher W. Dempsey, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM-DECISION AND ORDER²

LAWRENCE E. KAHN, District Judge.

Presently before this Court is a Motion by the United States Department of Homeland Security, Janet Napolitano in her official capacity as Secretary of Homeland Security, Michael Aytes in his official capacity as Acting Deputy Director of United States Citizenship and Immigration Services ("U.S.C.I.S.") with the Department of Homeland Security, and Gerard Heinauer in his official capacity as Director of the U.S.C.I.S. Nebraska Service Center (collectively "Defendants") seeking to dismiss the Plaintiffs' Complaint for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Motion (Dkt. No. 18); Compl. (Dkt. No. 1).

I. Background

On or about March 30, 2001, Plaintiffs Rocio Villa, Pedro Flores, and Laila Flores (collectively "Plaintiffs") filed I-485 applications for adjustment from asylees to permanent resident status with the Defendants' predecessor agency, Immigration and Naturalization Service, now the United States Citizenship and Immigration Services. Compl. at 3 (Dkt. No. 1). On or about July 5, 2005, the Defendants contacted the Plaintiffs requesting "additional evidence on their applications" including updated medical examination forms (Form I-693) and a "Supplemental Form to I-693" for each Plaintiff. Id. The Plaintiffs sent this information to the Defendants on or about August 3, 2005, and it was received by the Defendants on or about August 5, 2005. Id. The Defendants took no further action on Plaintiffs' applications. Id. at 3-4.

On June 12, 2008, more than seven years after filing their applications, Plaintiffs filed the instant Complaint seeking an order "[r]equiring Defendants and/or their agents to process their cases to a conclusion." Compl. at 6 (Dkt. No. 1). The Defendants subsequently moved for dismissal for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Motion at 3 (Dkt. No. 18), Defendant's Reply at 1 (Dkt. No. 26).

II. Discussion

A. Standard of Review

A federal court's subject matter jurisdiction in each case is of primary importance since "[i]t is a fundamental precept that federal courts are courts of limited jurisdiction." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court must grant a motion to dismiss when that court lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). "`The party invoking federal jurisdiction bears the burden of establishing' that jurisdiction exists." Sharkey v. Quarantillo, 541 F.3d 75, 82-83 (2d Cir.2008) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In reviewing a motion to dismiss for lack of subject matter jurisdiction on the face of the complaint, the court "must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Sharkey, 541 F.3d at 83; see Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006).

B. Subject Matter Jurisdiction

Plaintiffs argue that the Court has subject matter jurisdiction under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., and 555(b), in conjunction with federal question jurisdiction, 28 U.S.C. § 1331, et seq., as well as the Mandamus Statute, 28 U.S.C. § 1361. However, Defendants argue that the Court lacks subject matter jurisdiction under both the APA, 5 U.S.C. § 706(1), and the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2)(B)(ii) and 8 U.S.C. § 1252(g).

While the issues currently before the Court have not been addressed by the Second Circuit³ or this district, they have been discussed by and have divided district courts across the country. Compare Nigmadzhanov v. Mueller, 550 F.Supp.2d 540 (S.D.N.Y.2008) (finding subject matter jurisdiction); Kashkool v. Chertoff, 553 F.Supp.2d 1131 (D.Ariz.2008) (same); Bondarenko v. Chertoff, No. 07-mc-00002, 2007 WL 2693642, 2007 U.S. Dist. LEXIS 67143 (W.D.N.Y. Sept. 11, 2007) (same); Koren v. Chertoff, No. 3:07cv157 (PCD), 2007 WL 1431948, 2007 U.S. Dist. LEXIS 35128 (D.Conn. May 14, 2007) (same); Zaigang Liu v. Novak, 509 F.Supp.2d 1 (D.D.C.2007) (same); Shah v. Hansen, No. 1:07 CV 1576, 2007 WL 3232353, 2007 U.S. Dist. LEXIS 80636 (N.D.Ohio 2007) (same); Belegradek v. Gonzales, 523 F.Supp.2d 1364 (N.D.Ga.2007) (same); Toor v. Still, No. C07-0645 BZ, 2007 WL 2028407, 2007 U.S. Dist. LEXIS 53173 (N.D.Cal. July 10, 2007) (same); Ma v. Gonzales, No. C07-122RSL, 2007 WL 1655188, 2007 U.S. Dist. LEXIS 41103 (W.D. Wash. June 5, 2007) (same); with Cholewinska v. Chertoff, No. 07-518, 2008 U.S. Dist. LEXIS 13755 (D.N.J. Feb. 21, 2008) (finding no subject matter jurisdiction); Touarsi v. Mueller, 538 F.Supp.2d 447 (D.Mass.2008) (same); Grinberg v. Swacina, 478 F.Supp.2d 1350 (S.D.Fl.2007) (same); Torres v. Chertoff, No.1:07-cv-01649-WSD, 2007 WL 4261742, 2007 U.S. Dist. LEXIS 88812 (N.D.Ga. Nov. 30, 2007) (same); Wang v. Chertoff, No. 1:07-cv-00948-WSD, 2007 WL 4139475, 2007 U.S. Dist. LEXIS 80249 (N.D.Ga. Oct. 30, 2007) (same); Salazar v. Chertoff, No. 2:06CV502, 2007 U.S. Dist. LEXIS 36899 (S.D.N.Y. May 18, 2007) (same); Grinberg v. Swacina, 478 F.Supp.2d 1350 (S.D.Fl. 2007) (same); Orlov v. Howard, 523 F.Supp.2d 30 (D.D.C.2007) (same); Safadi v. Howard, 466 F.Supp.2d 696 (E.D.Va. 2006) (same); Espin v. Gantner, 381 F.Supp.2d 261 (S.D.N.Y.2005) (same). The area of immigration applications is one involving so many citizens and potential citizens that it must be addressed. As discussed below, the Court finds, in agreement with a growing number of district courts, that it has subject matter jurisdiction.

1. Administrative Procedure Act

The APA allows "[a] person suffering a legal wrong because of agency action" to bring suit. 5 U.S.C. § 702. While the "APA does not confer jurisdiction" on its own, Califano v. Sanders, 430 U.S. 99, 107 n. 7, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), it has been read to confer jurisdiction in combination with the federal question statute. Sharkey, 541 F.3d at 84; Bondarenko, 2007 WL 2693642 at *4, 2007 U.S. Dist. LEXIS 67143 at *6.

The federal question statute confers jurisdiction on the district courts over "all civil actions arising under" federal law. 28 U.S.C. § 1331. This statute "has been interpreted to mean that federal question jurisdiction exists where: (1) the claim turns on the interpretation of the laws or Constitution of the United States, and (2) is not patently without merit." Kim v. Ashcroft, 340 F.Supp.2d 384, 388 (S.D.N.Y. 2004). Here, Plaintiffs argue that sections 555(b) and 706(1) of the APA in conjunction with the federal question statute give the Court subject matter jurisdiction. Plaintiffs' Memo. of Law at 5-6 (Dkt. No. 21). These sections state respectively 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," and that "[t]he reviewing court shall—(1) compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 555(b), 5 U.S.C. § 706(1).

The Defendants argue that the Plaintiffs cannot demonstrate either that the agency was required to take a discrete action or that they were required to act within a certain period as Congress did not institute a deadline for agency action. Motion at 5-6 (Dkt. No. 18).

Defendants' arguments are unpersuasive. While it is within the Attorney General's discretion to grant or deny an application for adjustment of status, it is not within his discretion to not adjudicate at all. See Kim, 340 F.Supp.2d at 389, Nigmadzhanov, 550 F.Supp.2d at 546. See also Ruiz v. Mukasey, 552 F.3d 269, 273 (2d Cir.2009) (stating that judicial review under the APA exists "unless review is precluded by statute or the complained-of decision was committed to agency discretion"). Instead, under section 6 of the APA, the U.S.C.I.S. is required to act "within a reasonable time." 5 U.S.C. § 555(b); Kim, 340 F.Supp.2d at 389. If this were otherwise:

the C.I.S. could hold adjustment applications in abeyance for decades without providing any reasoned basis for doing so. Such an outcome defies logic—the C.I.S. simply does not possess unfettered discretion to relegate aliens to a state of "limbo," leaving them to languish there indefinitely. This result is explicitly foreclosed by the APA.

Kim, 340 F.Supp.2d at 393. Additionally, the "`duty to decide' becomes no duty at all if it is accompanied by unchecked power to decide when to decide." Razaq v. Poulos, No. C 06-2461 WDB, 2007 WL 61884, at *3, 2007 U.S. Dist. LEXIS 770, at *10-11 (N.D.Cal. Jan. 8, 2007). Therefore, the Plaintiffs have met the first requirement of federal question jurisdiction and the Court must now determine whether the Plaintiffs' claim is patently without merit, "whether the right claimed is `so insubstantial, implausible, foreclosed by prior decisions of [the Supreme] Court, or otherwise completely devoid of merit as not to involve a federal controversy.'" New York Dist. Att'y Investigators Police Benevolent Ass'n v. Richards, 711 F.2d 8, 10 (2d Cir.1983) (quoting Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 70-71, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978)) (alteration in original). Here, the Plaintiffs are claiming that the more than seven year delay in action on their applications is unreasonable and in violation of the APA. The Court finds that this claim is not...