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Ibrahim v. Chertoff

May 24, 2007

ZUHAIR M. IBRAHIM, PETITIONER,
v.
MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; EMILIO T. GONZALEZ, DIRECTOR OF U.S. CITIZEN AND IMMIGRATION SERVICES; GREGORY W. CHRISTIAN, DIRECTOR OF NEBRASKA SERVICE CENTER; ROBERT S. MULLER III, DIRECTOR OF FEDERAL BUREAU OF INVESTIGATION, RESPONDENTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER (1) GRANTING IN PART AND DENYING IN PART PETITION FOR A WRIT OF MANDAMUS; AND (2) DIRECTING RESPONDENTS TO ADJUDICATE PETITIONER'S I-485 APPLICATION FORTHWITH

Petitioner, proceeding pro se, filed a pleading styled as Plaintiff's Original Complaint for Writ in the Nature of Mandamus & Declaratory Judgment based on Respondents' delayed processing of his I-485 Application to Register Permanent Resident or Adjust Status ("Application" and "Petition," respectively). The court initially reviewed the Petition and found good cause to order Respondents to respond. Accordingly, a Scheduling Order was issued, ordering Respondents to file and serve a responsive memorandum and include any and all documents, including affidavits, if any, relevant to the determination of the issues raised by the Petition. Respondents filed a response challenging subject matter jurisdiction and venue. No documents or affidavits were included with the responsive memorandum. Petitioner timely filed a reply. For the reasons stated below, the Petition is GRANTED IN PART AND DENIED IN PART.

The facts alleged in the Petition and the authenticity of the documents attached thereto are not disputed by Respondents. On January 31, 2000, based on asylee status, Petitioner filed his I-485 Application. (See Pet. Exh. A ("Asylee adjustment").) He subsequently received a Notice of Action indicating his Application was received on February 11, 2000. The notice stated "[i]t usually takes 518 to 548 days from the date of this receipt for us to process this type of case. . . . We will send you a written notice as soon as we make a decision on this case." (Pet. Exh. A.)

However, the Application was still pending in May 2004, when Petitioner appeared at a service center in San Diego for fingerprinting pursuant to a notice from the immigration officials. On April 1, 2005, United States Citizenship and Immigration Services ("CIS") issued a Request for Evidence (Pet. Exh. B), to which Petitioner timely responded. On October 11, 2005, pursuant to a CIS notice, Petitioner appeared at the CIS San Marcos office for biometrics. (Pet. Exh. C.) On November 10, 2005, Petitioner called the CIS about the status of his application. He was informed he was awaiting background check, and should receive a decision within 60 days. Similarly, a subsequent form letter from the CIS stated his application was under review, and he should receive a decision or notice of other action within 60 days of the November 14, 2005 date of the letter. (Pet. Exh. D.) In March 2006, Petitioner again called the CIS to inquire about the status of his application, and was informed he would receive a written decision within 60 days. In May, July and August, 2006, Petitioner had an attorney inquire on his behalf, but no response was received. On September 26, 2006, Petitioner filed the Petition pending in this court.

Petitioner alleges that although Respondents had sufficient information to render a decision, they improperly delayed the processing of his Application. The Application has now been pending for over seven years. Petitioner argues Respondents failed to properly adhere to their own regulations and violated the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"). As a result of the delay, Petitioner has been unable gain permanent residency in the United States, work and travel without restrictions, or accrue time to be eligible for naturalization as a United States citizen. He requests the court enter an order requiring adjudication of the pending Application, issuance of a "notice of approval," and awarding accrued time and credit toward the permanent residency required for naturalization as a United States citizen.*fn1 (Pet. ¶27.) In their response, Respondents challenge subject matter jurisdiction and venue.

For the reasons which follow, the court has subject matter jurisdiction over Petitioner's claim for delay in processing his Application, venue is proper in this district, and Petitioner is entitled to a writ of mandamus directing Respondents to adjudicate his Application forthwith. To the extent Petitioner requests any other relief, it is denied.

Petitioner bases subject matter jurisdiction on federal question pursuant to 28 U.S.C. §1331, mandamus relief pursuant to 28 U.S.C. §1361, declaratory relief pursuant to 28 U.S.C. §2201, and the APA. Respondents correctly argue that neither the Declaratory Relief Act, 28 U.S.C. §2201 nor the APA provide an independent basis for subject matter jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950) (Declaratory Relief Act); Califano v. Sanders, 430 U.S. 99, 106-07 (1977) (APA). However, the court can exercise subject matter jurisdiction under either 28 U.S.C. §1331 or §1361.

"[A]gency actions are generally reviewable under federal question jurisdiction, pursuant to 28 U.S.C. §1331." Spencer Enter., Inc. v United States, 345 F.3d 683, 687 (9th Cir. 2003) (citing Califano,, 430 U.S. at 105). "Even if no statute specifically provides that an agency's decisions are subject to judicial review, the Supreme Court customarily refuses to treat such silence 'as a denial of authority to an aggrieved person to seek appropriate relief in the federal courts,' and this custom has been 'reinforced by the enactment of the Administrative Procedure Act, which embodies the basic presumption of judicial review to one 'suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.'" Id. at 687-88 (quoting Stark v. Wickard, 321 U.S. 288, 309 (1944) & Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)) (internal brackets omitted).

Accordingly, the question presented is "whether any statute has deprived the federal courts of jurisdiction to review the particular agency action at issue . . .." Id. at 688. The statute relevant to this question is 8 U.S.C. §1252(a)(2)(B)(ii), which provides in pertinent part:

Notwithstanding any other provision of law (statutory or non-statutory) . . . 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 subchapter 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.

This provision has been interpreted to bar judicial review of those acts which are within the Attorney General's discretion as specified by statute. Spencer Enter., 345 F.3d at 688-91.

Petitioner's Application was filed pursuant to 8 U.S.C. §1159 [Adjustment of status of refugees] and 8 C.F.R. §209.2 [Adjustment of status of alien granted asylum]. (See Pet. Exh. A ("Asylee adjustment").) Pursuant to section 1159(b) of the statute and section 209.2(c) of the regulations, asylees may apply for permanent resident status by filing an I-485 application. Under section 1159(b), the Attorney General "may adjust" an asylee's status to permanent residency, provided certain requirements are met. Accordingly, the decision to grant or deny the application is discretionary. The regulations further provide that the "applicant shall be notified of the decision." 8 C.F.R. §209.2(f). The duty to adjudicate an application, by either granting or denying it, is therefore not discretionary. See Singh v. Still, 470 F. Supp. 2d 1064, 1067 & n.6 (N.D. Cal. 2006) (duty to adjudicate mandatory); Aboushaban v. Mueller, 2006 WL 3041086 (N.D. Cal. Oct. 24, 2006) (duty to adjudicate non-discretionary); see also Razaq v. Poulos, 2007 WL 61884 (N.D. Cal. Jan. 8, 2007) (duty to adjudicate I-130 application mandatory under similar statutory language). The statute and the regulations are silent about the time within which the adjudication must be completed.

Section 1252(a)(2)(B)(ii) "withdraws jurisdiction wherever discretionary authority is 'specified' by statute" and not otherwise. Spencer Enter., 345 F.2d at 691. Section 1159 does not address, much less specify, any ...


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