IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 11, 2009
SARATHY S. AMANJEE, ET AL., PLAINTIFFS,
MICHAEL CHERTOFF, ET AL., DEFENDANTS.
FINDINGS AND RECOMMENDATIONS
This matter came before the court on June 27, 2008, for hearing of defendants' motion to dismiss this case pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Audrey B. Hemesath, Esq. appeared for the moving parties. No appearance was made at the hearing by or on behalf of the plaintiffs, who are proceeding pro se.
Although plaintiffs filed timely written opposition to defendants' motion, defendants did not file a reply. At the hearing, the undersigned requested clarification of defendants' argument concerning visa priority dates. On the basis of counsel's response in open court, the undersigned ordered further briefing. Supplemental briefs were filed by both sides, and defendants' motion was taken under submission at that time. Having now considered all written materials submitted in connection with defendants' motion and the entire file, the undersigned recommends that defendants' motion to dismiss be denied.
Plaintiffs Sarathy S. Amanjee, Sucheta S. Amanjee, Kritika S. Amanjee, and Nivedita S. Amanjee commenced this civil action by filing a complaint on March 5, 2008.
Plaintiff Sarathy Amanjee is the primary applicant on an I-485 Application to Adjust to Permanent Resident Status, while his wife Sucheta and daughters Kritika and Nivedita filed applications as derivative beneficiaries. Compl. at 2 & 4. Receipt notices dated July 26, 2005 reflect that plaintiffs' applications and fees were received by United States Citizenship and Immigration Services (USCIS) on July 20, 2005. Id., Ex. A. Plaintiffs completed fingerprinting processes on March 22, 2006 and again on June 12, 2007. Id. at 4, Exs. B & C.
Since the filing of their applications, plaintiffs have used two employment authorization cards and two travel parole applications granted by USCIS. Id. at 4. Starting on June 9, 2006, plaintiffs have contacted USCIS at least once a month regarding the status of their case and the reason for the delay in ruling on their applications. Id. In response to inquiries made on July 5, 2006 and October 5, 2006, plaintiffs received replies indicating that their case is pending due to FBI security checks. Id. at 4, Exs. F & G. On February 21, 2007, plaintiffs were informed by the California office of USCIS that their case was transferred to the Nebraska USCIS "in order to speed up processing." Id. at 4, Ex. D. In response to an inquiry made on April 23, 2007, plaintiffs received yet another reply indicating that the case was still pending due to FBI security checks. Id. at 4, Ex. E. Plaintiff Sarathy Amanjee sought assistance from a congressional representative by electronic mail on February 4, 2008, but was still awaiting a response on March 5, 2008, when the complaint in this action was filed. Id. at 4 & Ex. H.
Plaintiffs contend that defendants have improperly handled and delayed the processing of their applications, to plaintiffs' detriment. Plaintiffs allege that they have been unable to obtain legal permanent residence, travel and work without restrictions, and accrue time toward eligibility for naturalization as citizens of the United States. Plaintiffs have attempted to contact USCIS in order to assist in expediting name check clearances, but defendants have not set up an interview with plaintiffs at any time since the filing of the I-485 applications in 2005. Defendants' delay in adjudicating plaintiffs' applications has far exceeded the 120-day to one-year processing time contemplated by defendants' own regulations. Plaintiffs seek an order requiring defendants to properly adjudicate their applications.
Plaintiffs assert jurisdiction predicated on 28 U.S.C. §§ 1391 and 1361,*fn1 5 U.S.C. §§ 701, et seq.,*fn2 and 28 U.S.C. §§ 2201, et seq.*fn3
STANDARDS APPLICABLE TO MOTIONS UNDER RULES 12(b)(1) AND 12(b)(6)
Rule 12(b)(1) allows a party to raise the defense, by motion, that the court lacks jurisdiction over the subject matter of a claim. "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. General Tel. & Electronics, 594 F.2d 730, 733 (9th Cir. 1979). When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, no presumption of truthfulness attaches to the plaintiff's allegations. Id. "[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a "speaking motion" is brought, the burden of proof is on the party asserting jurisdiction. Thornhill Publ'g Co., 594 F.2d at 733.
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of a complaint. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). To state a claim upon which relief may be granted, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,, 127 S.Ct. 1955, 1974 (2007). Dismissal of a complaint, or any claim within it, pursuant to Rule 12(b)(6) "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In ruling on a Rule 12(b)(6) motion, the court accepts as true the material allegations in the complaint and construes those allegations, as well as the reasonable inferences that can be drawn from them, in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
The standards applicable to Rule 12(b)(1) and Rule 12(b)(6) motions demonstrate that the two types of motions serve different purposes and require different approaches to the pleading at issue. Although defendants request dismissal of plaintiffs' complaint pursuant to both provisions, the motion to dismiss fails to set forth or discuss the applicable standards and fails to present a separate analysis with respect to each ground for dismissal.
Defendants argue first that plaintiffs are not entitled to mandamus relief under 28 U.S.C. § 1361 because they cannot show a clear right to immediate adjudication or a clear, ministerial duty for defendants to act within any particular time frame. Defendants argue next that plaintiffs are not entitled to relief under the APA because actions committed to agency discretion are exempt from judicial review under the APA. Both of these arguments, as presented, concern the court's subject matter jurisdiction and will be addressed in accordance with the standards applicable to Rule 12(b)(1).
Defendants do not assert that mandamus relief under 28 U.S.C. § 1361 and judicial review under the APA are not cognizable legal theories. Nor do defendants assert that plaintiffs' complaint fails to allege sufficient facts to state claims that are plausible on their face. However, in describing the statutory and regulatory framework that governs adjustment of status applications, defendants assert that "to demonstrate eligibility to adjust status, aliens must first demonstrate the availability of a visa" and that the alien applying for adjustment of status "bears the burden of proving that she meets the statutory requirements for eligibility." (Def'ts' Am. Mot. to Dismiss at 4.) Defendants assert that plaintiff Sarathy Amanjee cannot demonstrate the availability of a visa because he is a third preference applicant from India with a visa priority date of September 23, 2002, and visas are available for applicants in the third preference category only if they have priority dates of November 1, 2001, or before. In their argument regarding mandamus jurisdiction, defendants suggest that "it is logical that CIS is refraining from adjudicating [plaintiff's] application to adjust status at this time" because a visa is not available for him and therefore the failure to adjudicate plaintiffs' applications is not arbitrary or unreasonable and will not support a mandamus claim. (Id. at 6.)
To the extent that defendants urge the court to dismiss plaintiffs' mandamus claim for lack of subject matter jurisdiction on the ground that no visa is available to them and therefore defendants' delay is reasonable, the undersigned notes that defendants' motion does not include any evidence that plaintiffs' applications have been delayed on a ground other than the FBI name checks cited in defendants' responses to plaintiffs' inquiries. In opposition to defendants' motion to dismiss, plaintiffs agree that plaintiff Sarathy Amanjee's priority date is September 23, 2002, but offer evidence that plaintiff is a second preference applicant and that when he filed his adjustment of status application, visas were available for applicants with a priority date of April 1, 2004 or earlier. Plaintiffs also argue and offer evidence that the CIS has never indicated that plaintiffs' applications have been delayed for any reason other than FBI name checks. The evidence offered by defendants with their supplemental brief does not contradict plaintiffs' evidence. The documents that appear to indicate that plaintiff Sarathy Amanjee is a third preference applicant were issued prior to the determination dated December 7, 2005 showing plaintiff as a second preference applicant. Defendants have not countered plaintiffs' evidence of the reason for defendants' delay by offering affidavits by CIS officials declaring that plaintiffs' applications were in fact delayed due to lack of visa availability despite the fact that all notices sent to plaintiffs indicate only that the delay was caused by the FBI name check process. The undersigned finds that defendants have not offered the kind of evidence required for a speaking motion under Rule 12(b)(1), i.e., affidavits and testimony that resolve factual disputes concerning the existence of jurisdiction.
Similarly, to the extent that defendants urge the court to dismiss plaintiffs' mandamus claim for failure to state a claim upon which relief can be granted, defendants' evidence does not demonstrate that plaintiffs have failed to state such a claim. In their complaint, plaintiffs allege that they supplied defendants with documents establishing plaintiff Sarathy Amanjee's eligibility to adjust status, that they applied for adjustment of status in July 2005, that the adjudication of the applications has been delayed for over two and a half years, and that all of defendants' responses to plaintiffs' inquiries indicated that the applications are pending due to FBI security checks. (Compl. at 3-4.) For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the court accepts as true the allegations of the complaint. The court may consider matters of public record, material properly submitted as part of the complaint, and documents not physically attached to the complaint if their authenticity is not contested and the complaint necessarily relies on them. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Defendants' amended motion to dismiss does not include any documents at all, although the motion does refer to an attachment that was not attached. (See Def'ts' Amended Mot. at 4 line 11.) The documents properly submitted as part of plaintiffs' complaint and those submitted by plaintiffs and defendants in connection with the motion to dismiss do not establish that plaintiffs have failed to state a mandamus claim upon which relief may be granted. "[B]ecause the amount of time that is reasonable to adjudicate an I-485 application is a fact-specific inquiry, it is premature on a motion to dismiss to determine whether the delay... is unreasonable as a matter of law." Liu v. Chertoff, No. 2:06-cv-2808-RRB-EFB, 2007 WL 2023548, at *5 (E.D. Cal. Jul. 11, 2007).
The court turns to defendants' general arguments concerning subject matter jurisdiction. The statute that governs adjustment of the status of a non-immigrant to that of a person admitted for permanent residence provides that
[t]he status of an alien who was inspected and admitted or paroled into the United States... 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.
8 U.S.C. § 1255(a). Visa availability is governed by regulations that set priority dates according to various factors, such as the alien's country of origin and the type of visa held by the alien. If an application for adjustment of status is approved, the Attorney General must record the alien's lawful admission for permanent residence, and "the Secretary of State shall reduce by one the number of the preference visas authorized to be issued... within the class to which the alien is chargeable for the fiscal year then current." 8 U.S.C. § 1255(b).
Plaintiffs do not challenge the discretionary nature of defendants' decision to grant or deny an application for adjustment of status. Instead, they challenge defendants' failure to make any decision at all in their case. Plaintiffs contend that a delay of over 33 months is unreasonable and gives rise to a claim based on failure to act. Plaintiffs cite the duties specified in 8 C.F.R. § 103.1(b), the decisions of courts holding that defendants have a clear, non-discretionary duty to adjudicate adjustment of status applications, and APA provisions that impose a duty to act. Plaintiffs seek an order compelling defendants to adjudicate their applications within a reasonable time.
In 2008, the undersigned noted the split of authority among district courts with respect to jurisdiction over challenges to administrative delays in processing applications for adjustment of status. Shirmohamadali v. Heinauer, No. CIV S-07-1073 DAD, 2008 WL 341641, at *2 (E.D. Cal. Feb. 6, 2008) (denying motion to dismiss for lack of subject matter jurisdiction). In 2007, a sister court in this circuit had observed that the issue of jurisdiction over such claims had come before numerous district courts across the country, district courts were split, and there had been no appellate guidance. Dong v. Chertoff, 513 F. Supp. 2d 1158, 1160 (N.D. Cal. 2007).
The split of authority among district courts across the country still exists, and the issue has not been addressed by the United States Supreme Court or the Ninth Circuit Court of Appeals. However, the weight of authority now favors a finding of subject matter jurisdiction where petitioners challenge the failure to adjudicate adjustment of status applications within a reasonable time. "Numerous district courts within the Ninth Circuit and elsewhere which have addressed this specific issue overwhelmingly conclude that '[s]section 1255(a) does not specify that the government has discretion over the pace of adjudicating I-485 applications.'" Kashkool v. Chertoff, 553 F. Supp. 2d 1131, 1138 (D. Ariz. 2008). The district courts for the Western District of Washington and the Northern District of California have unanimously reached the conclusion that judicial review is not barred, "plac[ing] themselves in the clear majority of district courts within the Ninth Circuit who have considered the issue," along with the majority of district courts nationwide. Hong Wang v. Chertoff, 550 F. Supp. 2d 1253, 1257 (W.D. Wash. 2008).
In the Eastern District of California, virtually every district judge who has considered the issue has found that subject matter jurisdiction exists. See Saini v. U.S. Citizenship & Immigration Servs., 553 F. Supp. 2d 1170, 1173 (E.D. Cal. 2008) (defendants' motion to dismiss for lack of subject matter and for failure to state a claim denied by District Judge Morrison C. England, stating that "[a]lthough no circuit court in the country has yet spoken to this issue, this Court is persuaded that the USCIS has a ministerial duty to take some action on immigration applications like that presented by Plaintiff here"); Sidhu v. Chertoff, No. 1:07-CV-1188 AWI SMS, 2008 WL 540685, at *5-6 (E.D. Cal. Feb. 25, 2008) (defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim denied by Chief Judge Anthony W. Ishii); Gianni v. Curda, No. 2:07-CV-1478-GEB-KJM, 2008 WL 479991, at *1-2 (E.D. Cal. Feb. 19, 2008) (defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim denied by District Judge Garland E. Burrell, Jr.); Houle v. Riding, No. CV-F-07-1266 LJO GSA, 2008 WL 223670, at *1 (E.D. Cal. Jan. 28, 2008) (defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim denied by District Judge Lawrence J. O'Neill); Liu v. Chertoff, No. 2:06-cv-2808-RRB-EFB, 2007 WL 2023548, at *4-5 (E.D. Cal. Jul. 11, 2007) (defendants' motion to dismiss for lack of subject matter jurisdiction denied by District Judge Ralph R. Beistline, finding subject matter jurisdiction under both the mandamus statute and the APA because the defendants have a clearly non-discretionary duty to adjudicate adjustment-of-status applications within a reasonable time). Cf. Hu v. Chertoff, No. CIV. S-06-2805 WBS EFB, 2007 WL 1515067, at *4 (E.D. Cal. May 22, 2007) (defendants' motion to dismiss granted by District Judge William B. Shubb, cautioning that if CIS refuses to take any steps to adjudicate an application or employs procedures such that no decision will issue, it might be said that the agency's inaction was not the result of an exercise of discretion at all and the court could have jurisdiction to review the agency's actions).
The undersigned is persuaded by the reasoning of the courts that have found subject matter jurisdiction over claims alleging failure to adjudicate adjustment of status applications within a reasonable time. "'In the absence of a specific statutory provision to the contrary, district courts have jurisdiction to review agency action as part of their general federal question jurisdiction.'" Dong, 513 F. Supp. 2d at 1161 (quoting Proyecto San Pablo v. I.N.S., 189 F.3d 1130, 1136 n.5 (9th Cir. 1999)). When well established principles of statutory construction are applied to 8 U.S.C. § 1252(a)(2)(B), read in conjunction with § 1255, it is evident that the jurisdiction-stripping provision does not constitute "a specific statutory provision to the contrary" that deprives district courts of jurisdiction to review agency action. Id. at 1162-65. This determination is supported by decisions of the Ninth Circuit and other circuit courts holding that the discretion granted by 8 U.S.C. § 1252(a)(2)(B)(ii) is specific and limited. Id. at 1164-65 & n.8 (citing Spencer Enterprises v. United States, 345 F.3d 683, 689 (9th Cir. 2003), and decisions of the Second, Third, Fifth, Sixth, & Seventh Circuits).
Based on the narrow construction to be given the jurisdiction-stripping provision of the statute, and its language precisely limiting the discretion granted, the Court therefore finds that 8 U.S.C. § 1252(a)(2)(B)(ii) does not deprive the Court of jurisdiction to hear an allegation that the determination of an application for adjustment of status has been unlawfully withheld.
While the ultimate decision to grant or deny an application for adjustment of status is unquestionably discretionary, there exists a non-discretionary duty to act on and process the application. 513 F. Supp. 2d at 1165 (analogizing to the Ninth Circuit's conclusion with regard to applications for mineral patents in Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 n.6 (9th Cir. 1997)). See also Ahmed v. Scharfen, No. C 08-1680 MHP, 2009 WL 55939, at *6-7 (N.D. Cal. Jan. 7, 2009).
Jurisdiction in cases such as this one is properly premised on both the mandamus statute and on the APA in conjunction with federal question jurisdiction under 28 U.S.C. § 1331 because the government has a non-discretionary duty to process adjustment applications. Dong, 513 F. Supp. 2d at 1161, 1166; Liu, 2007 WL 2023548, at *5. While some courts have found such a duty in the APA's general requirement that agencies act in a timely manner, others have found it in 8 C.F.R. § 103.2(b)(18), a regulation that bears the title "Withholding adjudication." See Dong, 513 F. Supp. 2d at 1166-67 (citing district court decisions in Oklahoma, Texas, Florida, and Missouri).
The procedural requirements specified in [8 C.F.R. § 103.2(b)(18)] ensure that some timely decision is made or action taken on these applications without need of invoking the APA's default rule of reasonable timeliness. The defendants have a non-discretionary duty to comply with 8 C.F.R. § 103.2(b)(18) in order to lawfully withhold adjudication. If the USCIS has failed to comply with 8 C.F.R. § 103.2(b)(18), then this Court has subject matter jurisdiction under either the APA, the mandamus statute, or both, to compel an agency action unlawfully withheld.
Id. at 1166-67.
Here, plaintiffs submitted applications for adjustment of their status in July 2005. After the passage of more than two and a half years, plaintiffs brought this action alleging unreasonable delay in adjudicating their applications. Another year has passed, and plaintiffs still await a decision. If plaintiffs prevail in this action, an order compelling the government to adjudicate their applications will not interfere with defendants' discretion to grant or deny the applications. The delay, now in excess of three and a half years, may be caused solely by the failure of another agency to complete name checks for plaintiffs. This may be a case where defendants have chosen to "employ procedures such that no decision will issue," such that "the agency's inaction [is] not the result of an exercise of discretion at all" but rather an abdication of the agency's statutory duty to adjudicate applications. See Hu, 2007 WL 1515067, at *4.
The undersigned finds that the district court has jurisdiction over this action. Accordingly, the undersigned will recommend that defendants' motion to dismiss be denied. If this recommendation is adopted, a status conference will be set for the purpose of scheduling further proceedings.
IT IS HEREBY RECOMMENDED that defendants' May 7, 2008 amended motion to dismiss (Doc. No. 8) be denied.
These findings and recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court. A document containing objections should be titled "Objections to Magistrate Judge's Findings and Recommendations." Any reply to objections shall be filed within ten days after the objections are served. The parties are advised that failure to file objections within the specified time may, under certain circumstances, waive the right to appeal the District Court's order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).