The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS [doc. #8] and DIRECTING AN ANSWER TO THE COMPLAINT
Defendants move to dismiss plaintiff's Complaint contending that the Court lacks subject matter jurisdiction and even if subject matter exists, plaintiff has failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). The motion has been fully briefed. Having carefully considered the matters presented, the Court enters the following decision.
Plaintiff Shan Jiang brings this case to compel defendants to act on the processing of an I-485 Application filed by plaintiff on June 3, 2004, at the United States Citizenship and Immigration Services ("USCIS") San Jose Office. Plaintiff's fingerprints were submitted on July 20, 2004, and plaintiff and his wife were interviewed at the USCIS San Jose Office on January 25, 2005. After the interview, plaintiff was given an "Adjustment of Status Notice" that indicated plaintiff's FBI Name Check result was pending; therefore, the USCIS was unable to approve plaintiff's petition.
On August 10, 2005, the FBI sent an email to plaintiff in response to his February 1, 2005 inquiry, indicating that the original Name Check request contained an error that required a resubmission of the request. The resubmission was made on May 26, 2005, and the second Name Check request remained pending.
Plaintiff submitted a change of address to the USCIS on June 3, 2005. Because of the change of address, plaintiff's I-485 petition files were transferred to the San Diego office of the USCIS.
As a result the delayed Name Check, plaintiff was required to submit a second set of fingerprints to the USCIS. Upon further inquiry by plaintiff on November 2, 2005 and July 24, 2006, plaintiff was advised that the name check remained pending. To date, plaintiff's I-485 Application has not been reviewed.
In their motion to dismiss the complaint, defendants challenge subject matter jurisdiction over plaintiff's claim. Plaintiff bases subject matter jurisdiction on federal question pursuant to 28 U.S.C. §§ 1361 and 1331; declaratory relief pursuant to 28 U.S.C. §2201; and the APA, 5 U.S.C. § 701, et seq.. Defendants 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). But 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 ...