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Qiu v. Chertoff

May 15, 2007

YANPING QIU, PLAINTIFF,
v.
MICHAEL CHERTOFF, SECRETARY OF HOMELAND SECURITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Chesler, District Judge

FOR PUBLICATION

OPINION

In this case, the Court must decide whether it has jurisdiction over an action seeking to compel the United States Citizenship and Immigration Service ("USCIS") to adjudicate an application for adjustment to lawful permanent residence status that has been pending for almost three years.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following facts are not in dispute: Plaintiff Yanping Qiu, proceeding pro se, was born in Beijing, China, and lawfully resides in the United States pursuant to an H-4 Visa. She has received a MBA from Rutgers University and is currently employed at Praetorian Financial Group. On January 21, 2004, she submitted an application to the USCIS to adjust her status to that of a permanent resident alien, also known as an I-485 application. However, Plaintiff's application has not been adjudicated because the USCIS and the Federal Bureau of Investigation ("FBI") have not completed background checks that the Attorney General adopted in the aftermath of 9-11. Because she is not a permanent resident of the United States, Plaintiff has paid higher tuition fees and was ineligible for certain student loans. Plaintiff alleges that because of the delay in adjudicating (and, implicitly, approving) her application, she suffered a loss of $27,000.

On January 9, 2007, just shy of three years after Plaintiff filed her I-485 application, she instituted the present suit against Michael Chertoff, the Secretary of Homeland Security, Emilio Gonzalez, the Director of the USCIS, Paul Novak, the Director of the USCIS Vermont Service Center and Robert S. Mueller, the Director of the FBI. Plaintiff's Complaint asks the Court to compel adjudication of her application, provide her with a notice of its approval and award compensatory damages.

Defendants have moved to dismiss Plaintiff's Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Plaintiff's Complaint asserts jurisdiction under the federal question statute, 28 U.S.C. § 1331, the mandamus statute, 28 U.S.C. § 1361, the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, and the Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201.*fn1 Pursuant to Federal Rule of Civil Procedure 78, the Court decides the motion on the papers submitted.

II. STANDARD FOR A MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a civil action for lack of subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). Under Rule 12(h)(3), the court is reqiured to dismiss the action whenever it appears that the court lacks subject matter jurisdiction. FED. R. CIV. P. 12(h)(3). The plaintiff bears the burden of establishing subject matter jurisdiction. See, e.g., Lucas v. Gulf & W. Indus., Inc., 666 F.2d 800, 805 (3d Cir. 1981) (citing McNutt v. Gen'l Motors Acceptance Corp., 298 U.S. 178 (1936)). On a 12(b)(1) motion, "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." Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

III. MANDAMUS JURISDICTION

Plaintiff argues that this Court has mandamus jurisdiction pursuant to 28 U.S.C. § 1361. Section 1361 provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361 (2006). The Supreme Court has described mandamus relief under § 1361 as an "extraordinary remedy" which "will issue only to compel the performance of 'a clear non-discretionary duty.'" Pittston Coal Group v. Sebben, 488 U.S. 105, 121 (1988); see also Heckler v. Ringer, 466 U.S. 602, 616 (1984) ("The common-law writ of mandamus, as codified in 28 U. S. C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear non-discretionary duty"); Work v. United States, 267 U.S. 175, 177 (1925) (stating that "[m]andamus issues to compel an officer to perform a purely ministerial duty" but "[i]t can not be used to compel or control a duty in the discharge of which by law he is given discretion"). A "party seeking mandamus has the burden of showing that its right to issuance of the writ is clear and indisputable." Will v. United States, 389 U.S. 90, 96 (1967) (quotations omitted). The Third Circuit has explained that

in order for mandamus to issue, a plaintiff must allege that an officer of the Government owes him a legal duty which is a specific, plain ministerial act "devoid of the exercise of judgment or discretion." An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt.

Harmon Cove Condominium Ass'n, Inc. v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987) (quoting Richardson v. United States, 465 F.2d 844, 849 (3d Cir.1972) (en banc) (citations omitted), rev. on other grounds, 418 U.S. 166 (1974)). See Work, 257 U.S. at 177 (explaining that a ...


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