The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [Dkt No. 16]
Plaintiff Jianqiang Yu ("Yu"), proceeding pro se, filed his Complaint For Writ In The Nature Of Mandamus And For Declaratory Judgment to compel government agency and individual defendants (collectively "Defendants") to expedite the processing of his pending Application to adjust his immigration status to permanent resident and to adjudicate the matter by ordering Defendants to provide him with a "Notice of Approval." Compl. ¶ 20. The matter is before the court on Defendants' Motion To Dismiss pursuant to FED. R. CIV. P. ("Rule") 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Alternatively, Defendants seek summary judgment in their favor, contending Yu is not entitled to immediate adjudication or approval of his application from any source.
The deadline for Yu to file an Opposition passed on February 5, 2008, with no response from him. "If an opposing party fails to file the papers in the manner required by Civil Local Rule 7.1.e.2, that failure may constitute a consent to the granting of motions or other requests for ruling by the court." Civ. L.R. 7.1.f.3.c. Pursuant to Civil Local Rule 7.1.d.1, the court finds the issues presented appropriate for decision on the papers and without oral argument. For the reasons discussed below, the Motion is GRANTED.
Yu, a native and citizen of the People's Republic of China, asks the court to adjudicate the issues associated with the processing and granting of his application for adjustment of his immigration status to permanent resident, on grounds Defendants have purportedly impermissibly delayed the decision. Compl. ¶ 1. He alleges he properly filed an I-485 Application To Register Permanent Resident or Adjust Status pursuant to Section 245 of the Immigration & Naturalization Act on June 13, 2005, with supporting documentation, in the United States Citizenship and Immigration Services ("USCIS") California Service Center, and submitted fingerprints to the agency on October 11, 2005. Compl. ¶¶ 10-11. He alleges he has received no "written notification" from USCIS, despite calling the USCIS, among other people and places, from January 2006 to December 2006 when he was told several times his name check was still pending. Compl. ¶¶ 10-13. He filed this action as a Petition For Writ Of Mandamus on February 13, 2007.*fn1
Yu identifies himself as a cancer researcher who has been "greatly damaged by the failure of the Defendants to act in accord with their duties under law" through their allegedly "arbitrary" and "unreasonable" delay and "inappropriate refus[al] to adjudicate the application, thereby depriving him of rights to which [he] is entitled," specifically that he has "been unable to obtain legal permanent residence, travel and work without restriction and accrue time to be eligible for Naturalization as a citizen of the United States." Compl. ¶¶ 16-17. He asks the court to enter an Order: "(a) requiring Defendants to properly adjudicate Plaintiff's application for action on an approved petition (b) requiring Defendants to provide the Plaintiff with Notice of Approval (c) granting court costs pursuant to law (d) such other relief at law and in equity as justice may require." Compl. ¶ 20.
Defendants move to dismissal the Complaint on jurisdictional grounds and on grounds Yu is not entitled to immediate adjudication or approval of his application for permanent resident status. While he awaits final agency action, Yu "enjoys lawful nonimmigrant status in the United States as an H-1B temporary alien worker based on a nonimmigrant worker petition filed on his behalf by The Scripps Research Institute," a status "valid through March 24, 2008" and "renewable upon application by the employer."*fn2 Heinauer Decl. ¶ 6.
Defendants describe the statutory framework and requirements prerequisite to the adjustment of the status of certain aliens who have been admitted into the United States. Mot. p. 2; 8 U.S.C. § 1255. To obtain a "green card," the alien must present an application for adjustment of status, must be eligible to receive an immigrant visa, must be admissible into the United States for permanent residence, and there must be immediately available to the alien an immigrant visa, among other things. Id.; Heinauer Decl. ¶ 7. The applicant bears the burden to persuade the Secretary of the U.S. Department of Homeland Security ("DHS") to exercise discretion in the alien's favor. See Randall v. Meese, 854 F.2d 472, 474 (D.C. Cir. 1988); Elkins v. Moreno, 435 U.S. 647, 667 (1978) ("adjustment of status is a matter of grace, not right"); see Mot. 3:3-5 ("[T]he decision whether to grant or deny the adjustment is discretionary, 8 U.S.C. § 1255(a), and the decisions about how to process the evaluation of the application as well as the pace and manner of that investigation are discretionary, id. at § 1252(9a)"). Defendants note no statutory or regulatory time limitation is imposed on the Secretary's exercise of discretion to adjust the status of aliens. Mot. 2:14-15, citing 8 C.F.R. § 245, et seq. Defendants represent they have and will continue to process Yu's Application, and will adjudicate the Application as soon as processing is complete. Mot. 1:19-23; Heinauer Decl. ¶¶ 4, 7, 12-17, 19-22, 26.
With respect to timing, Defendants represent "a realignment of workload among the Service Centers" resulted in Yu's adjustment of status application being "transferred to the Nebraska Service Center on March 12, 2007, where it remains pending completion." Mot. Exh. A, Heinauer Decl. ¶ 4. The processing of permanent residency applications entails several forms of security and background checks conducted by the USCIS in conjunction with the Federal Bureau of Investigation ("FBI"). Heinauer Decl. ¶¶ 7-10, Exh. A, USCIS Fact Sheet. Defendants challenge Yu's allegations of unreasonable delay or failure to act on his application on grounds: his application has been received, his background investigation initiated, his fingerprints taken and updated, and his preliminary border screening completed (Heinauer Decl. ¶¶ 4, 7, 12-17, 19-22); the Nebraska Service Center alone is currently processing "approximately 187,930 employment-based applications for adjustment of status" (Heinauer Decl. ¶ 19); and no visa is presently available to Plaintiff (Heinauer Decl. ¶¶ 7-9).
Defendants emphasize they "will adjudicate Plaintiff's application as soon as processing is complete" and a visa becomes available. Mot. 1:23, 2:3. They demonstrate Yu's circumstances do not warrant resort submission of an exceptional request to the FBI to expedite his case, a process available in only limited circumstances not applicable to the facts of his situation. Moreover, any expedited name check process in Yu's case "would not effect a more rapid adjudication of the case" because "there are no visa numbers available to him and his family under the current visa bulletin."*fn3 Heinauer Decl. ¶¶ 22-24.
Yu relies for the jurisdiction of this court to accord him the relief he seeks on: 28 U.S.C. §§ 1331, 1361 (the Mandamus Act); 5 U.S.C. § 701, et seq. (the Administrative Procedures Act); and 28 U.S.C. § 2201, et seq. (the Declaratory Judgment Act). Compl. ¶ 7.
Defendants dispute the subject matter jurisdiction of this court over the merits of Yu's Complaint for lack of authority to adjudicate and approve his application for adjustment of immigration status. They also move for dismissal or summary judgment on grounds Yu is currently ineligible for final adjudication of the Application based on priority date processing, no visa is currently available to award him, and his background and security checks are incomplete and on-going.