2. Interpretation of § 274a.13(d).
Defendants argue that § 274a.13(d) gives the INS up to ninety days to process applications. Plaintiffs claim, however, that § 274a.13(d) does not control the time period in which applications must be processed, but only provides for interim employment authorization should the delay continue beyond ninety days. The Court finds merit in defendants' interpretation.
First, the clear language of the regulation suggests such an interpretation. The relevant provisions of § 274a.13(d) are contained in two distinct sentences. The first sentence merely states that the INS "shall adjudicate the application within 90 days . . ." The following sentence explains the consequences of delay in excess of ninety days. There is no indication that any "negative" consequence should befall the INS for failure to adjudicate an application before the ninety day period.
Second, the Court must defer to the INS' interpretation of its own regulation. United States v. Larionoff, 431 U.S. 864, 97 S. Ct. 2150, 2155-56, 53 L. Ed. 2d 48 (1977); Alfaro-Orellana v. Ilchert, 720 F. Supp. 792, 796 (N.D. Cal. 1989). While the Court still has an obligation to interpret the regulation, the INS' interpretation must bear on the Court's evaluation. Here the INS clearly interprets § 274a.13(d) to mean that the INS is only obligated to adjudicate applications within ninety days.
Third, other Courts, without expressly holding that § 274a.13(d) should be interpreted as the INS suggests, have assumed such an interpretation: See e.g., National Center for Immigrants' Rights v. INS, 913 F.2d 1350, 1355 (9th Cir. 1990), rev'd on other grounds, 116 L. Ed. 2d 546, 1991 U.S. LEXIS 7178, 112 S. Ct. 551 (Dec. 16, 1991) (where applicant's authorization terminates upon initiation of deportation proceedings applicant may reapply and the "INS has up to  days to make its decision. § 274a.13(d)"); Perales v. Casillas, 903 F.2d 1043, 1045 (5th Cir. 1990) (court cited district court finding that "all requests for voluntary departure made by class members shall be adjudicated within  days, consistent with 8 C.F.R. 274(a)13(d)") (emphasis added).
3. Reasonable delay.
Plaintiffs argue that even if § 274a.13(d) gives the INS ninety days to adjudicate applications, the INS is still subject to the reasonable time requirement of § 555(b). In other words, plaintiffs claim that merely because the INS sets a ninety day time period for itself by regulation, that does not preclude a finding that a delay of less than ninety days is unreasonable under the circumstances, in violation of § 555(b). Defendants argue-that, as a matter of law, any adjudication within the ninety day time period set by regulation is not unreasonable.
In some sense, the Court agrees with plaintiffs that the mere fact that the INS promulgates a regulation establishing a time period in which applications must be adjudicated does not, in and of itself, mean that an adjudication within the time period cannot constitute unreasonable delay. As the Court hypothesized at the hearing, if the INS set a six month time period by regulation, the reasonableness of such a delay would most definitely be called into question. On the other hand, the Court cannot examine the reasonableness of delays for adjudication in a vacuum. Clearly the time period set by regulation must factor into the Court's analysis.
Courts may looked to extraneous time requirement to determine if an agency's delay is reasonable within the meaning of § 555(b). For example in LaBonne v. Heckler, 574 F. Supp. 1016 (D.C. Minn. 1983), plaintiffs alleged that the Secretary of Health and Human Services consistently failed to answer complaints for review of denial of benefits within the "reasonable time" required by § 555(b). Id. at 1017-19. The Court held that since Federal Rule of Civil Procedure 12(a) provides sixty days for the government to respond, any delay beyond sixty days would be unreasonable for purposes of § 555(b). Id. at 1020.
The reasonableness of administrative delays must also be judged in light of the resources that Congress has supplied to the agency for the exercise of its functions. Fraga v. Smith, supra, at 521. The passage of time alone is rarely enough to justify a court's intervention in the administrative process, especially since administrative efficiency is not a subject particularly suited to judicial evaluation. Id. (citing Wright v. Califano, 587 F.2d 345, 353 (7th Cir. 1978)).
The ninety day time period established by 274 A. 13 (d) reflects a consideration of the limited resources of the INS and the voluminous applications submitted for adjudication. This is evidenced by the debate surrounding the recent amendment to the section, extending the time period from sixty days to ninety days. The comment to the amendment provides:
Commenters suggested that the INS be required to adjudicate applications for employment authorization within 3 business days instead of the 60 days as reflected in the interim final rule . . . The [INS] rejects these comments. Section 274a.13 paragraph (d) is revised to change the time period during which the [INS] will adjudicate applications for employment authorization from 60 to 90 days. The [INS] has experienced a large increase in the number of applications filed for benefits, and anticipates further increases based upon passage of the Immigration Act of 1990, particularly that portion that authorizes or allows the Attorney General to designate temporary protected status for aliens of certain nationalities. Every effect will be made to adjudicate applications for employment authorization as quickly as possible after receipt of the application. However, workload projections and staffing level projections indicate an increase to 90 days for adjudication is more in line with what can be accomplished.
56 FR 41782 (1991).
Given the wisdom articulated in Fraga v. Smith that courts are not particularly suited to evaluate administrative efficiency, this Court is not inclined to second guess the determination of the INS regarding the time period necessary to adjudicate applications. Accordingly, the Court finds that, as a matter of law, a delay of up to ninety days in adjudicating the applications at issue in this case is not unreasonable within the meaning of § 555(b). Given that plaintiffs do not allege delays in excess of ninety days, the case will be dismissed with prejudice for failure to state a claim upon which relief can be granted.
For the foregoing reasons, the Court ORDERS as follows: Defendants' motion to dismiss is GRANTED WITH PREJUDICE.
IT IS SO ORDERED.
DATED: January 3, 1992.
D. Lowell Jensen
United States District Judge