Burni v. Frazier (545 F. Supp. 2d 894, 2008)

ORDER

PAUL A. MAGNUSON, District Judge.

This matter is before the Court on the Report and Recommendation (“R & R”) of Magistrate Judge Janie S. Mayeron dated February 14, 2008. In the R & R, Magistrate Judge Mayeron recommended that this Court deny Defendants’ Motion to Dismiss.

Defendants have filed a one-page objection to the R & R, contending that the Magistrate Judge erred by failing to distinguish between Defendant Mueller and the USCIS Defendants. Defendants apparently do not otherwise take issue with the R & R’s conclusion that this Court has subject matter jurisdiction over Plaintiffs challenge to the inordinate delay in ruling on his adjustment-of-status application.

Defendants may be correct that Defendant Mueller cannot grant (or deny) Plaintiff the relief he seeks. However, a review of the papers filed in this matter reveals that Defendants failed to raise this argument before the Magistrate Judge. Thus, it is disingenuous to claim that the Magistrate Judge erred on this point. By neglecting to make this argument, Defendants have waived it, at least for the purposes of the Motion to Dismiss.

Accordingly, IT IS HEREBY ORDERED that:

1. The Report and Recommendation (Docket No. 17) is ADOPTED; and

2. Defendants’ Motion to Dismiss (Docket No. 5) is DENIED.

REPORT AND RECOMMENDATION

JANIE S. MAYERON, United States Magistrate Judge.

The above matter came before the undersigned upon defendants’ Motion to Dismiss [Docket No. 5]. Lonnie F. Bryan, Esq. appeared on behalf of defendants. Marc Prokosch, Esq., appeared on behalf of plaintiff. The matter was referred to the undersigned by the District Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

I. FACTUAL BACKGROUND

Plaintiff Hani Burni brings this action against Denise Frazier, District Director, United States Citizenship and Immigration Services (“USCIS”); Emilio T. Gonzalez, Director, United States Citizenship and Immigration Services; and Robert S. Mueller, Director, Federal Bureau of Investigation, seeking a writ to compel defendants to complete the required background checks and security clearances and to adjudicate his application for adjustment of immigration status.

Plaintiff is a native of Saudi Arabia and a citizen of Syria who resides in Minneton-ka, Minnesota. Complaint, ¶¶ 1, 8 [Docket No. 1]. After marrying a U.S. citizen in 2004, he filed an 1-485 application for adjustment of status to lawful permanent residency on or about December 10, 2004. Id., ¶ 8. Plaintiffs wife filed an 1-130 visa petition simultaneously with plaintiffs I-485 petition. Id., ¶ 9. The visa petition was approved on June 30, 2005, and plaintiff was therefore immediately eligible to adjust his immigration status to that of a lawful permanent resident. Id. Plaintiff was given notice that he could not be recommended for final approval because his security checks were not complete. Id., ¶ 10. Plaintiff has made numerous efforts to get defendants to complete their security checks and adjudicate his application, including making written inquiries to the Department of Homeland Security, making Infopass appointments at the local district office to inquire about the status of his case, and writing to various government officials. Id., ¶ 12. Because his application has not been adjudicated, plaintiff has been unable to move forward with his life, he has lost valuable job opportunities, he has been deprived of peace of mind, and deprived of important benefits, rights and protections to which he would be entitled as a lawful permanent resident of the United States. Id., ¶ 14.

According to defendants, the FBI commenced plaintiffs name check on or about December 23, 2004. Declaration of Rebecca Arsenault Herize, ¶ 5(d) [Docket No. 7].

The Complaint seeks an order compelling defendants and those acting under them to complete the required background checks and adjudicate plaintiffs application for adjustment of status. Complaint, ¶ 21. Plaintiff alleges that this Court has jurisdiction of the suit pursuant to 28 U.S.C. § 1361 (Mandamus Act), 28 U.S.C. § 1331 (federal question statute) and 5 U.S.C. §§ 551 et seq. and 701 et seq. (Administrative Procedure Act). Complaint, ¶ 2. Plaintiff asserts that he has exhausted his administrative remedies. Complaint, ¶ 13.

Defendants now bring the current motion to dismiss for lack of subject matter jurisdiction. [Docket No. 5].

II. STANDARD OF REVIEW

A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1) may challenge the plaintiffs complaint either on its face or on the factual truthfulness of its averments. See Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993); see also Osborn v. United States, 918 F.2d 724, 729, n. 6 (8th Cir.1990). In a facial challenge to jurisdiction, the court restricts its review to the pleadings and affords the non-moving party the same protections that it would receive under a Rule 12(b)(6) motion to dismiss. See Osborn, 918 F.2d at 729, n. 6. The court presumes that all of the factual allegations in the complaint concerning jurisdiction are true and will not dismiss the claims unless the plaintiff fails to allege an essential element for subject matter jurisdiction. See Titus, 4 F.3d at 593 (citing Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 731-32 (11th Cir.1982)): Osborn, 918 F.2d at 729, n. 6.

In a factual challenge to jurisdiction, the court may consider matters outside the pleadings and the non-moving party does not benefit from the safeguards of 12(b)(6). See Titus, 4 F.3d 590 at 593; Osborn, 918 F.2d at 729, n. 6. “In short, no presumptive truthfulness attaches to the plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.” Osborn, 918 F.2d at 730 (citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3rd Cir.1977)).

Here as the parties are relying on facts extrinsic to the Complaint, the Court will treat defendants’ motion as a factual challenge to jurisdiction. See Sawad v. Frazier, 2007 WL 2973833 at *1 (D.Minn. OCt.9, 2007) (J. Doty) (“When a party moves to dismiss an action for lack of subject matter jurisdiction under Rule 12(b)(1), the court may consider matters extrinsic to the allegations in the complaint without converting the proceedings to a Rule 56 summary judgment action because the court is ‘free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.’ ” (citing Osborn, 918 F.2d at 729-30)).

III. ANALYSIS

Defendants move to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that none of the grounds for jurisdiction cited by plaintiff are valid, and that the Immigration and Nationality Act (“INA”) bars plaintiffs claim. Defs. Mem., p. 3 [Docket No. 10]. Specifically, defendants’ motion to dismiss is based on their contention that 8 U.S.C. § 1252(a)(2)(B)(ii) of the Immigration and Nationality Act (“INA”) bars plaintiffs claim, and the other statutes relied upon by plaintiff, the Mandamus Act and the APA, do not confer subject matter jurisdiction on this Court. Defs. Mem., p. 1 [Docket No. 6]. Thus, it is defendants’ position that while plaintiff has been waiting more than 3 years for USCIS to adjudicate his application for adjustment of status, his only remedy is to wait and this Court has no authority to intervene. For all of the reasons set forth below, this Court rejects defendants’ contentions and concludes that it has jurisdiction over plaintiffs suit.

A. 8 U.S.C. § 1252(a)(2)(B)(ii)

It is defendants’ position that 8 U.S.C. § 1252(a)(2)(B)(ii) bars judicial review of the denial of an adjustment of status application. Therefore, they maintain that a court cannot compel USCIS to adjudicate an adjustment of status application within a particular period of time. Defs. Mem., p. 9. In short, defendants claim that § 1252(a)(2)(B)(ii) strips this Court of jurisdiction over plaintiffs suit and his case should be dismissed. The Court disagrees.

In pertinent part, 8 U.S.C. § 1252(a)(2)(B)(ii) states as follows:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and 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 or the Secretary of Homeland Security the authority for which is specified under this subchap-ter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.

(Emphasis added).

Section 1255 of Title 8 is the provision within the INA that bears on plaintiffs application for adjustment of status. This statute 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 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.

(Emphasis added).

Defendants claim that because § 1255 gives the Attorney General discretion to adjust plaintiffs adjustment of status, it follows that § 1252(a)(2)(B)(ii) strips the Court of jurisdiction to address his claims.

“The jurisdiction stripping language [of Section 1252] applies not to all decisions the Attorney General is entitled to make, but to a narrower category of decisions where Congress has taken the additional step to specify that the sole authority for the action is in the Attorney General’s discretion.” Alaka v. Attorney General, 456 F.3d 88, 95 (3d Cir.2006). “The statute in question, therefore, must specifically provide the discretionary authority before Section 1252 divests the court of jurisdiction.” Duan v. Zamberry, 2007 WL 626116 at *2 (W.D.Pa. Feb.23, 2007). As the Third Circuit stated:

One might mistakenly read § 1252(a) (2) (B) (ii) as stripping us of the authority to review any discretionary immigration decision. That reading, however, is incorrect, because § 1252(a)(2)(B)(ii) strips us only of jurisdiction to review discretionary authority specified in the statute. The statutory language is uncharacteristically pellucid on this score; it does not allude generally to “discretionary authority” or to “discretionary authority exercised under this statute,” but specifically to “authority for which is specified under this sub-chapter to be in the discretion of the Attorney General.”

Khan v. Atty. Gen. of United States, 448 F.3d 226, 232 (3d Cir.2006) (quoting Zhao v. Gonzales, 404 F.3d 295 (5th Cir.2005)); see also Sun v. Chertoff, 2007 WL 2907993 at *2 (D.Minn. Oct.1, 2007) (quoting same).

There is no explicit provision in either § 1255 (or for that matter, its implementing regulations) that grants the Attorney General or USCIS specific discretion regarding the pace of adjudicating adjustment of status applications; rather, § 1255 only specifies that the Attorney General may adjust the status of an alien in his discretion. “While 8 U.S.C. § 1255(a) specifically places the decision of whether to adjust status in the discretion of the Attorney General, it says nothing about the pace of such a decision, and certainly does not confer on the Attorney General discretion to let such a petition languish indefinitely.” Han Cao v. Upchurch, 496 F.Supp.2d 569, 573 (E.D.Pa.2007); Saleem v. Keisler, 520 F.Supp.2d 1048, 1055) (W.D.Wis.2007) (quoting same). See also Tang v. Chertoff, 493 F.Supp.2d 148, 153-154 (D.Mass.2007) (“The clear meaning of 8 U.S.C. § 1252(a)(2)(B)(ii) is that courts may not review decisions specified as discretionary by the INA. Despite the care taken in the INA to specify the substance of an adjustment of status decision as discretionary, the pacing of such a decision is not so specified.”); Ahmadi v. Chertoff, 522 F.Supp.2d 816, 819 (N.D.Tex.2007) (“Section 1252(a)(2)(B)(ii) only preludes judicial review of decisions or actions that are specified to be within the discretion of the Attorney General.... [The] duty to act on an application, as distinguished from how to act, is not specified to be within the discretion of the Attorney General.”); Belegradek v. Gonzales, 523 F.Supp.2d 1364, 1367 (N.D.Ga.2007) (“[§ 1252(a)(2)(B)(ii) ] precludes review of discretionary decisions of the Attorney General ‘in only the specific circumstances where the [authority for a] ‘decision or action of the Attorney General ... is specified under this subchapter to be in the discretion of the Attorney General....’ Thus, to avoid judicial review, the Attorney General must rely on an explicit, ‘Con-gressionally-defined, discretionary statutory power ... articulated within sections 1151 through 1378’ of Title 8 — and not an administrative or other implied discretionary power.”) (citing Zafar v. U.S. Attorney General, 461 F.3d 1357, 1361 (11th Cir.2006)); Sun, 2007 WL 2907993 at *2 (“The plain terms of § 1252(a) (2) (B) (ii) require that a decision or action committed to the discretion of USCIS be ‘specified under’ § 1255 or its implementing regulations. Because § 1255 specifies no such discretion with regard to the pace of adjudication of 1-485 applications, § 1252 does not strip the court of jurisdiction”); Zhi He v. Chertoff, 2007 WL 2572359 at *4 (D.Vt. Sept.4, 2007) (“the pace of adjudication has not been specified as discretionary”); Elmalky, 2007 WL 944330 at *4) (“Section 1255(a), ... ‘specifies only that it is within the discretion of the Attorney General to adjust one’s status; it does not address, much less specify any discretion associated with, the pace of application processing.’ ”) (citation omitted); Duan, 2007 WL 626116 at *2 (“Although the speed of processing may be ‘discretionary’ in the sense that it is determined by choice, and that it rests on various decisions that Defendants may be entitled to make, it is not discretionary in the manner required by the jurisdiction-stripping language of the [INA].”).

Therefore, pursuant to the plain language of § 1255, as there is nothing in this statute that grants discretion to defendants to determine the pace of adjudication of 1-485 applications for adjustment of status, this Court finds that § 1252(b)(2)(B)(ii) does not strip the court of jurisdiction.

Further, while some courts have found that the pace at which the USCIS processes an application is a discretionary action within the meaning of 8 U.S.C. § 1252(b)(2)(B)(ii), see Safadi v. Howard, 466 F.Supp.2d 696 (E.D.Va.2006) and its progeny, this Court joins those courts around the country that have concluded that § 1252(b)(2)(B)(ii) does not bar plaintiffs suit because defendants’ inaction does not amount to a decision or action that permits defendants to invoke the protection of this section.

[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, 513 F.Supp.2d 1158 (N.D.Cal.2007) (“The phrase ‘decision or action’ connotes some affirmative conduct by the Attorney General.”). Because plaintiffs claim is premised on defendants’ refusal to make a “decision” or to take “action” on his application, ... § 1252(a)(2)(B) is not implicated in this case.

Saleem, 520 F.Supp.2d at 1051; see also Soliman v. Gonzales, 2007 WL 4294665 at *5 (E.D.Pa. Dec. 5, 2007) (finding that § 1252(a)(2)(B) did not bar judicial review because USCIS had “not acted in any way with regard to plaintiffs’ applications”); Wang v. Chertoff, 2007 WL 4200672 at *4 (D.Ariz. Nov.27, 2007) (“The defendants argue the term ‘decision or action’ is sufficiently broad to include the process of adjudication. The court does not agree.... [Section 1252(a)(2)(B)(ii) ] does not give the Attorney General or the Secretary of Homeland Security discretionary authority over the pace of adjudication.”); Elhaouat v. Mueller, 2007 WL 2332488 at *2 (E.D.Pa. Aug.9, 2007) (discussing cases which found that “the plain language of the provision ... addresses ‘decision or action’ on immigration matters, not inaction”) (citation omitted); Song v. Klapakas, 2007 WL 1101283 (E.D.Pa. Apr. 12, 2007) (“ ‘Plaintiffs do not ask this court to “review” a governmental action, but to examine and rectify a gross inaction.’ ”) (quoting Paunescu, 76 F.Supp.2d at 900); Elmalky, 2007 WL 944330 at *5 (rejecting defendants’ argument that “action” in § 1252(a)(2)(B)(ii) refers “to an ongoing process or a series of acts.”).

Having found that jurisdiction is not foreclosed by § 1252(a)(2)(B), the Court now turns to the question of whether it has subject matter jurisdiction to proceed.

B. Mandamus Act and APA

Plaintiff alleges subject matter jurisdiction based on 28 U.S.C. § 1331, the federal question statute, 28 U.S.C. § 1361, the Mandamus Act, and the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 551 et seq., and 701, et seq.

The Mandamus Act 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. A writ of mandamus is appropriate only where “(1) the petitioner can establish a clear and indisputable right to the relief sought, (2) the defendant has a nondiscretionary duty to honor that right, and (3) the petitioner has no other adequate remedy.” Castillo v. Ridge, 445 F.3d 1057, 1060-61 (8th Cir.2006) (citations omitted).

The APA requires 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.” 5 U.S.C. § 555(b). Further, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. When judicial review is proper, “[t]he reviewing court shall compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706. However, the APA does not apply where (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. 5 U.S.C. § 701(a).

In response to plaintiffs claim for relief under the Mandamus Act, defendants argued that mandamus is inappropriate because plaintiff does not have a clear right to adjudication of his application within a specific time frame, and he has an adequate alternative remedy, which is to wait until his application is adjudicated. Def. Mem., pp. 13-15. In response to plaintiffs claim under the APA, defendants maintained that the INA (i.e. 8 U.S.C. § 1252(b)(2)(B)(ii)) precludes judicial review, the APA precludes judicial review of agency actions committed to the discretion of the agency, and plaintiff has an adequate remedy. Id., pp. 15-17.

Plaintiff countered that he filed his I-485 application pursuant to 8 C.F.R. § 245. This regulatory scheme requires:

The applicant shall be notified of the decision, and if the application is denied, of the reasons for denial ... If the application is approved, the applicant’s permanent residence shall be recorded as of the date of the order approving the adjustment of status ...

8 C.F.R. §§ 245.2(a)(5)© and (ii).

According to plaintiff, this regulation, in conjunction with § 555(b) of the APA, creates a non-discretionary duty to adjudicate his within a reasonable time. PL’s Mem., pp. 4-5 (citations omitted). In addition, plaintiff asserted that he has no alternative, adequate remedy. Id., p. 7.

For all of the reasons articulated below, the Court rejects defendants’ reasoning and finds that both the APA and Mandamus Act afford plaintiff relief.

As a preliminary matter, this Court finds, as have other courts, that analysis of jurisdiction and relief under the Mandamus Act and APA is coextensive, and that there is no need to perform a separate analysis under the two acts. See Sun, 2007 WL 2907993 at *3, n. 7 (citations omitted).

The Court recognizes that district courts around the country are split on the issue of whether jurisdiction lies to entertain a claim for failure to timely adjudicate an adjustment of status application. See e.g. Orlov, 523 F.Supp.2d at 34 (“Several courts have determined that federal courts lack jurisdiction to review delays in the adjustment process ... But other courts have determined that 8 U.S.C. § 1252(a)(2)(B)(ii) does not preclude judicial review of such claims.”) (internal and external citations omitted); Khelashvili v. Dorochoff, 2007 WL 4293634 at *2-3 (N.D.Ill.Dec.6, 2007) (“Although we acknowledge that a number of courts have found no duty to process applications under 8 U.S.C. § 1255(a), ... we are persuaded by the reasoning of an equal number of courts finding in favor of subject matter jurisdiction and a nondiscretionary duty to adjudicate”) (citations omitted); Sun, 2007 WL 3548280 at *4 (“Many federal district courts agree that the pace at which USCIS adjudicates 1-485 applications is nondiscretionary.... Other district courts have held that the statutory framework precludes judicial review of the pace at which the government reviews change of status applications.”) (internal and external citations omitted); Saleem, 520 F.Supp.2d at 1050-51 (citing to numerous decisions around the country that have considered the jurisdictional arguments raised by defendants); Shah v. Hansen, 2007 WL 3232353 at *5 (N.D.Ohio Oct.31, 2007) (citing to sampling of cases that have found that USCIS has a non-discretionary duty to adjudicate an application for adjustment of status and cases that have found the duty to be discretionary). “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.” Saleem, 520 F.Supp.2d at 1051.

Like several other judges in this District, this Court “joins a growing number of district courts in concluding that the USCIS has a duty to adjudicate adjustment of status applications once they have been submitted and that the APA requires the applications to be adjudicated in a reasonable time.” Sun, 2007 WL 2907993 at *3 (citations omitted); see also, Asrani v. Chertoff, 2007 WL 3521366 at *3 (D.Minn. Nov.14, 2007) (J. Tunheim); Sawad v. Frazier, 2007 WL 2973833 at *3 (D.Minn. Oct.9, 2007) (J. Doty); Haidari v. Frazier, 2006 WL 3544922 at *4 (D.Minn. Dec.8, 2006) (J. Frank). In this regard, as Judge Doty stated in Sun:

Title 8, section 1255 of the U.S.Code provides that an applicant’s status “may be adjusted by the Attorney General, in his discretion ... to that of an alien lawfully admitted for permanent residence.” This language only refers to the ultimate decision of whether to grant permanent residence status. It does not provide that the USCIS can choose not to adjudicate Sun’s application. The court is convinced that the USCIS cannot. Rather, once an adjustment of status application is before the USCIS, the agency has an affirmative, non-discretionary duty to process that application. Moreover, although § 1255 and its implementing regulations do not provide for a time frame within which the US-CIS must adjudicate 1-485 applications, the APA requires that the applications be processed in a reasonable time. See 5 U.S.C. § 555(b). Therefore, [plaintiff] has a clear, indisputable and nondiscre-tionary right to an adjudication of her application within a reasonable time.

Id. See also Han Cao, 496 F.Supp.2d at 575 (“while USCIS has broad discretion to grant or deny an application for permanent residency, it has a non-discretionary duty to make some decision on the application”); Tang, 493 F.Supp.2d at 154 (“While it is undisputed that the substance of the Attorney General’s decision is discretionary, he does not have the discretion to decide not to adjudicate at all.” (citation omitted)); Wang, 2007 WL 4200672 at *3 (“[t]he timing of the adjudication process is not a matter over which the USCIS has unfettered discretion. It has a duty to act within a reasonable time.”); Ahmadi 522 F.Supp.2d at 818 (“the regulations and the majority of court decisions make clear that immigration officials have a nondiscretion-ary duty to act on the application”); Belegradek, 523 F.Supp.2d at 1367 (“[T]he INA imposes a nondiscretionary duty on the Attorney General to adjudicate an application for adjustment of status.”); Al Daraji v. Monica, 2007 WL 2994608 at *4 (E.D.Pa. Oct.12, 2007) (finding that there is no discretion over whether to render a decision on an application); Pool v. Gonzales, 2007 WL 1613272 at *2 (D.N.J. June 1, 2007) (“the obligation of the USCIS to process applications is not discretionary and is reviewable by this Court”); Song, 2007 WL 1101283 at *3 (finding mandamus relief appropriate and stating that “USCIS has a non-discretionary duty to act on applications within a reasonable time”).

The district court in Liang v. Attorney General of the United States succinctly summarized the issue of the USCIS’s discretion:

Defendants’ point that they are not statutorily obliged to adhere to any particular time-frame in adjudicating 1-485 applications is well-taken. It is true that the USCIS’s discretion to set the procedures by which it adjudicates these applications gives it some flexibility in determining the timing of a decision. Nonetheless, each adjudication must ultimately be completed within a reasonable amount of time. To accept Defendants’ argument that timing is always a matter of discretion beyond the Court’s power to intervene would enable them to avoid judicial review even of adjudications that were postponed indefinitely. This would eviscerate § 706(1) of the APA, which clearly gives the Court the power to “compel agency action ... unreasonably delayed.”

As explained in Yu v. Brown, 36 F.Supp.2d 922, 932 (D.N.M.1999), “although neither [governing] statute specifies a time by which an adjudication should be made, we believe that by necessary implication the adjudication must occur within a reasonable time. A contrary position would permit the INS to delay indefinitely. Congress could not have intended to authorize potentially interminable delays.” Accordingly, the Court finds that it has the authority under the Mandamus Act and the APA to compel Defendants to adjudicate promptly Plaintiffs’ petitions for adjustment of status.

2007 WL 3225441 at *5 (N.D.Cal., Oct.30, 2007).

With regard to defendants’ argument that plaintiff has an alternative or adequate remedy, i.e. waiting, the Court also finds that such a claim lacks merit. “The injury that plaintiffs complain of is that they have been required to wait too long already. It would be disingenuous to now conclude that because they could simply wait longer the court does not have jurisdiction.” Sawad, 2007 WL 2973833 at *4; Sun, 2007 WL 2907993 at *4 (same). See also Singh, 470 F.Supp.2d at 1071 (“ ‘Waiting for an agency to act cannot logically be an adequate alternative to an order compelling the agency to act.’ ”) (quoting Fu v. Reno, 2000 WL 1644490 at *4 (N.D.Tex. Nov.1, 2000)); Tang, 493 F.Supp.2d at 150 (“The duty to act is no duty at all if the deadline is eternity.”); Kim v. Ashcroft, 340 F.Supp.2d 384, 393 (S.D.N.Y.2004) (“[T]he CIS 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.”); Asrani, 2007 WL 3521366 at *3 (finding that outside of seeking redress from the court, there is no adequate remedy where there was nothing in the record to allow the court to determine when plaintiffs name cheek would be returned or if it would be returned at all); Haidari, 2006 WL 3544922 at *5 (“Defendants miss the point. The question is whether the Plaintiffs have adequate, alternative means to address this very issue: the fact that they are still waiting.”).

Here, plaintiffs application has been pending for over three years, and the Court finds that USCIS’s failure to act on the application in that time frame constitutes final agency action for the purposes of this case. See Shah, 2007 WL 3232353 at *6 (finding that failure to act on an application for over two-and-one-half years constituted a final agency action under the APA).

Because plaintiff can establish a clear and indisputable right to have his application adjudicated in a reasonable amount of time, defendants have a nondiscretionary duty to honor that right, and plaintiff has no other adequate remedy, the Court finds that mandamus and the APA provide a valid basis for subject matter jurisdiction. Therefore, this Court recommends that defendants’ motion to dismiss for lack of subject matter jurisdiction should be denied.

C. jReasonableness of Delay

In plaintiffs opposition to defendants’ motion to dismiss, plaintiff argued that the delay he has experienced is unreasonable as a matter of law. PL’s Mem., p. 8. Defendants argue that a three-year delay is not unreasonable because the Complaint does not allege nefarious intent, and because the delay experienced is less than the five-year delay considered reasonable in Saleh v. Ridge, 367 F.Supp.2d 508 (S.D.N.Y.2005). Defs. Mem., p. 17. There is authority to support plaintiffs claim that a delay in excess of 3 years in adjudicating his adjustment of status application is unreasonable (see Singh, 470 F.Supp.2d at 1071 (seven-year delay unreasonable); Yu, 36 F.Supp.2d 922, 932 (D.N.M.1999) (two- and-a-half year delay unreasonable); Sun, 2007 WL 3548280 at *10 (three-year delay unreasonable); Haidari, 2006 WL 3544922 at *6 (delays of six years and four years unreasonable)). However, “[w]hat constitutes an unreasonable delay in the context of immigration applications depends to a great extent on the facts of a particular case.” Yu, 36 F.Supp.2d at 935.

The Court concludes that it cannot on the present record determine that delay in excess of three years is unreasonable as a matter of law. In order to make a determination as to whether plaintiffs delay is unreasonable or not, it is necessary to evaluate information specific to plaintiffs case and the reason why plaintiffs name check in particular has been so delayed. See Sawad, 2007 WL 2973833 at *5; Sun, 2007 WL 2907993 at *5 (both cases finding that before the court could determine whether delays were reasonable, it required information specific to the adjudication of plaintiffs’ applications and to the delay in their FBI name checks). The Court has before it no facts from which it can make a knowledgeable determination of the factors that would bear on its decision. For all of these reasons, the Court recommends that defendants’ Motion to Dismiss be denied.

RECOMMENDATION

For the reasons set forth above, it is recommended that Defendants’ Motion to Dismiss be denied.

Pursuant to Local Rule 72.2(b), any party may object to this Report and Recommendation by filing with the Clerk of Court, and by serving upon all parties on or before March 3, 2008 a copy of this Report, written objections which specifically identify the portions of the Report to which objections are made and the bases for each objection.

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VICTOR MOC ANU CIVIL ACTION No. 07-0445 V. ROBERT S. MUELLER, ET AL.

GUISEPPE CUSUMANO V. MICHAEL B. MUKASEY, ET AL. CIVIL ACTION No. 07-0971

MOHAMMAD BARUCBIN V. UNITED STATES, ET AL CIVIL ACTION No. 07-3223

JEAN ELISSAINT V. UNITED STATES, ctal CIVIL ACTION No. 07-4747

ANDREW O, NEWTON, M.D. V. DONALD MONICA, ctal. CIVIL ACTION No. 07-2859

TONGZIAO ZHANG CIVIL ACTION No. 07-2718 V. MICHAEL CHERTOFF, et al.

SAID HUSSAIN CIVIL ACTION No. 08-195 V. MICHAEL B. MUKASEY, et al.

l

PRAECIPE

TO THE CLERK OF THE COURT:

Kindly file the enclosed Certification of Supplement to the Administrative Record (AR CIS) and attached Memorandum regarding Revised National Security Adjudication and Reporting Requirements issued by USCIS as of February4,2008 in the above-captioned cases. The above-captioned actions were joined by the Honorable Michael Baylson, Judge Ü.S. District Court, for consolidated hearing with the other cases captioned on the Administrative Records previously supplied by FBI and CIS. The purpose of this supplement to the CIS Administrative Record (AR CIS) is to provide the Court and all counsel of record with a certified copy of the Revised National Security Adjudication and Reporting Requirements issued by USCIS on February 4,2008 which has been sent to all USCIS offices and the FBI (see e-mail Smith to Cannon at attached AR CIS 0103-0104.

Respectfully submitted,

PATRICK L. MEEHAN United States Attorney

Date: February 6,2008

IN THE UNITED STATES DISTRICT COURT FOR. THE EASTERN DISTRICT OF PENNSYLVANIA .

VICTOR MOCANU CIVIL ACTION No. 07-0445 V. ROBERTS. MUELLER, ETAL.

GIUSEPPE CUSUMANO V. MICHAEL R MUKASEY, ET AL. OVIL ACTION No. 07-0971

MOHAMMAD BAR1KBIN V. UNITED STATES, ETAL. CIV11. ACTION No. 07-3223

JEAN EUSSAINT CIVIL ACTION No. 07-4747 V. UNITED STATES, eUl,

HASSAIN V. CIVIL ACTION No.M-195 MUKASEY, eld.

ANDREW O.NEWTON, M.D, V. CIVILACnON No. 07-2*59 DONALD MONICA, «Id.

TONGZIAO ZHANG V. MICHAEL CHERTOFF. el bL CIVIL ACTION No. 07-2718

SAID HUSSAIN CIVIL ACTION No. 08-195 v. MICHAEL B. MUKASEY, tí oL

CERTIFICATION OF SUPPIJMENTTQ THE ADMINISTRATIVE RECORD

Gregory Smith, punuast to 28 U.S.C. $ 1746, dedans the following:

1. ! am currently employed as the Acting AssociMe Director of the National Security and Records Verification Directorate ofU.S. Citizenship end Iramigreliofi Services (USCIS). m agency within the US. Depcnment of Hotnetod Security (DHS). My duly station is .presently Washington, D.C.

2. I hive been employed as the Associate Director since M*y 28,2D07. 1 havebeen employed by USCIS since Match2003, when the agency was crested. My curenidutks include the management orthe Nations! Security and Records Veri Gestión Direct Orete, whiehiucl udes individuals who work to resolve national security background check issues in the conic» of adjudicating applications and petition* for immigration benefits.

3. Due to the nature of my officii! duties, 1 am familiar with the procedures for investigation and examination of op pli cists far naturalization and adjustment of status sndtbo cotnmuntestiont between USCIS and the Federal Bureau of Investigation, which conducts name check* on applicant*.

4.I have reviewed information about the name check process, USCIS policy on nsrac chick* and other USCIS system of record a and 1 dosignaled iho Supplement to tbs Administrative Record in this caso. This infimnstion was created in the regular caursedrUSCtS business.

Pursuant to 28 U.S.C. 9 1746,1 declare uadef pcnstly ofparjtuy that the foregoing istruc mid correct to the be« of ray knowledge and beGaE

Executed (hi* day ofFebnxay 20DÍ.

Acting Associate Director National Security and Record Voificatioa Directorate

United States CItizenahip and Immigration Services Washington, D.C

RB4- TIDE

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