Plaintiff David Mugomoke ("Mugomoke") seeks a writ of mandamus to compel the Department of Homeland Security to adjudicate his Application to Register Permanent Resident or Adjust Status ("I-485"), filed nearly seven years ago. Plaintiff seeks a declaration that defendants' delay in adjudicating his application has been unreasonable and in violation of defendants' obligations under the Immigration and Nationality Act (INA). Defendants have filed a motion to dismiss this action for lack of subject matter jurisdiction under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 and 706,*fn1 and the INA, 8 U.S.C. §§ 1252(g) and 1252(a)(2)(B)(ii). In the alternative, defendants have moved for summary judgment on the grounds that there are no genuine issues of material fact and any delay is reasonable under the APA, 5 U.S.C. §§ 555(b) and 706(1). Defendants' motion came on for hearing on July 27, 2011.
For the reasons set forth below, the court denies defendants' motions.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff David Mugomoke, a Rwandan citizen, was granted asylum in April 2004. Compl. ¶ 15, ECF No. 1. An office clerk for the Rwandan Army's Chief of Staff, he came across a list of names of individuals suspected of disloyalty to the Rwandan government. Id. ¶¶ 16--18. With the help of a relative who was a major in the Rwandan Patriotic Front (RPF), Mugomoke leaked this information to the individuals under suspicion, prompting those individuals to flee the country. Id. ¶ 18. Upon discovery, the government arrested Mugomoke, assaulted him, and threatened to kill him. Id. ¶ 19. He fled Rwanda and subsequently entered the United States on a student visa in 2003. Id. ¶¶ 19--20. During the Rwandan Civil War, Mugomoke was a member of the Rwandan Patriotic Army (RPA), which broke off from the RFA following the war. Id. ¶ 21. The United States classifies the RPF and RPA as Tier III terrorist organizations. Id. According to Mugomoke, however, the Tier III label only applies to organizations that are "currently engaged in 'terrorist activity'" and that the purpose of the "category was to capture newly emergent groups"; thus the RPA should not be categorized as a Tier III organization. Id. ¶ 22.
On May 5, 2005, Mugomoke filed an Application to Register Permanent Residence or Adjust Status ("I-485") with the United States Citizenship and Immigration Service (USCIS). Id. ¶ 23. He appeared for biometrics appointments on October 6, 2005 and February 27, 2007. Id. ¶¶ 24 & 26. On May 22, 2007, he received a request for evidence related to his I-485 application. Id. ¶ 27. Between February 20, 2007 and December 1, 2009, he contacted USCIS seven times to inquire about the status of his I-485 application, including by making an inquiry to the USCIS's ombudsman to seek assistance on his "stalled application." Id. ¶¶ 25, 28, 29, 30--31, 34. He also contacted Senator Dianne Feinstein's office on two separate occasions for assistance with his application. Id. ¶¶ 32, 35. According to the Senator's office, the USCIS had put the application "in abeyance pending the release of regulations from the Department of Homeland Security," and that the USCIS "cannot speculate as to when these regulations will be released." Id. ¶ 35;Letter from Jessica Hartzell, Constituent Servs. Rep., Offices of Sen. Dianne Feinstein, to David Mugomoke (May 8, 2009), Compl. Ex. 10, ECF No. 1-4. In response to Mugomoke's second letter, the Senator's office informed him that the USCIS cannot expedite cases held in accordance with 8 U.S.C. § 212(a)(3)(B), "nor can they be removed from that category until they have been thoroughly reviewed." Compl. ¶ 35; Letter from the Office of Sen. Dianne Feinstein, to David Mugomoke (Feb. 26, 2010), Compl., Ex. 13, ECF No. 1-4.
Mugomoke alleges that his application, now over six years old, has taken more than the "expected four month processing time for the adjudication of an I-485 application." Compl. ¶ 36. Mugomoke supports the four-month time line by referencing the USCIS's website, which states that the processing times for I-485 applications based on grants of asylum at the "USCIS National Goal," the "USCIS National Average," and the "Nebraska Service Center" are all four months; the latter is the center handling Mugomoke's application. Compl. ¶ 36; Compl. Ex. 1., ECF No. 1-1. Mugomoke alleges that defendants have not adhered to their own processing times, resulting in delays in processing his application, and that defendants have sufficient information to adjudicate his application. Compl. ¶¶ 37--38. Mugomoke goes on to allege that "he has been greatly damaged by the failure of Defendants to act in accordance with their duties under the law," and that because of these failures, he cannot obtain legal permanent residence and thus "cannot travel or work without restrictions." Id. ¶ 39. He further alleges that the delay in approving his application prevents him from accruing time toward eligibility for naturalization and delays "his obtainment of the rights and privileges enjoyed by citizens of the United States." Id. ¶ 39.
Mugomoke alleges that the delays are unlawful and seeks mandamus and declaratory relief, requesting that the court (1) assume jurisdiction over the matter, (2) order the USCIS to submit an expedited request to the FBI to expedite processing his background check, (3) order the USCIS to schedule an I-485 interview and finish adjudicating his application within 60 days of the order, (4) declare the alleged delay in adjudicating his application as unreasonable and in violation of the INA and associated regulations, (5) award him reasonable costs and attorneys' fees, and (6) "[g]rant such further relief as the Court deems just and proper." Id.
The government notes that Mugomoke has admitted to participating in the RPA from April 1994 to March 2001. Def. Mot. to Dismiss, Mot. for Summ. J. ( Mot.), ECF No. 23; Def. Ex. 3, ECF No. 23-2. According to the government, until the RPA/RPF took control of the Rwandan government in July 1994, "the RPA met the definition of a Tier III undesignated terrorist organization at 8 U.S.C. § 1182(a)(3)(B)(vi)(III)." Mot. at 2 n.1. The INA allows the Secretary of the Department of Homeland Security (Secretary), in her discretion, to adjust a lawful asylee's status to permanent residence status where the asylee has been physically present in the United States for at least one year and "[is] otherwise eligible." Mot. at 4; 8 U.S.C. §§ 1159(b) & (b)(1).
The government argues that belonging to a terrorist organization as defined in 8 U.S.C. §§ 1182(a)(3)(B) (vi)(I)--(III) and "receiving military training from any organization that, at the time the training was received, was designated a terrorist organization," are grounds for inadmissibility for adjustment. Mot. at 4; 8 U.S.C. §§ 1182(a)(3)(B)(i)(I)--(X). While aliens who engage in such terrorist activity are inadmissible, the Secretary has the authority to exempt both individuals and organizations. Mot. at 5. In May 2005 and December 2007, Congress passed legislation that restricted the Secretary's authority to make such terrorism-related exemptions.*fn2 Id. In response, the USCIS "instructed adjudicators to hold cases that could benefit from the Secretary's future exercise of discretion." Id.; Memorandum from Jonathan Scharfen, Deputy Dir., USCIS, to Assoc. Dirs. of USCIS (Mar. 28, 2008), Def. Ex. 13, ECF No. 23-4. USCIS placed Mugomoke's application in abeyance pending a favorable exercise of the Secretary's discretion instead of denying his adjustment application outright. Mot. at 5--6.
Defendants have moved to dismiss Mugomoke's claims on the grounds that the court lacks subject matter jurisdiction. Specifically, defendants assert that 8 U.S.C. §§ 1252(a)(2)(B)(ii) and 1252(g) bar jurisdiction and because the decision on the adjustment application is discretionary, jurisdiction does not exist under the APA or the Mandamus and Venue Act (MVA), 28 U.S.C. § 1361. Mot. at 7.
The party seeking to invoke the jurisdiction of the federal court has the burden of establishing that jurisdiction exists. Ass'n of Am. Medical Colleges v. United States, 217 F.3d 770, 778--79 (9th Cir. 2000). A Rule 12(b)(1) motion to dismiss for lack of jurisdiction may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court is permitted to look beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). When the motion constitutes a factual attack, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). Where the jurisdictional issue is separable from the merits of the case, the district court may hear evidence regarding jurisdiction and rule on that issue prior to trial, resolving factual disputes where necessary. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).
a. Jurisdiction Under 8 U.S.C. § 1252(g)
Defendants rely on Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999), in arguing that 8 U.S.C. § 1252(g) bars jurisdiction over delays in processing I-485 ...