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Xu v. Chertoff

July 10, 2007

LEI XU AND LIANG LIU PLAINTIFFS,
v.
MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; EDUARDO AGUIRRE, DIRECTOR OF THE U.S. CITIZENSHIP & IMMIGRATION SERVICES; PAUL NOVAK, DIRECTOR OF THE U.S. CITIZENSHIP & SERVICES, VERMONT SERVICE CENTER; ROBERT S. MUELLER, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION DEFENDANTS.



The opinion of the court was delivered by: Dennis M. Cavanaugh, U.S.D.J.

OPINION

This matter comes before the Court upon motion by Michael Chertoff, Eduardo Aguirre, Paul Novak, and Robert S. Mueller ("Defendants") to dismiss the Complaint of Lei Xu and Liang Liu ("Plaintiffs") pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. No oral argument was heard pursuant to Rule 78 of the Federal Rules of Civil Procedure. After carefully considering the submissions of the parties, and based upon the following, it is the finding of this Court that Defendants' motion to dismiss is denied.

I. BACKGROUND

Pro se Plaintiffs filed the complaint in this action on January 22, 2007 (the "Complaint"). The Complaint seeks to compel action on Plaintiffs' applications for permanent resident status.

On December 14, 2004, plaintiffs filed I-485 applications to adjust their statuses to that of permanent residents. (Comp. ¶¶ 2,11). The applications were filed by Plaintiff Lei Xu through her company lawyer with the Vermont Service Center. (Id. at ¶ 11). Plaintiffs allege that they have been through fingerprint processing, that the fingerprints were submitted to the United States Citizenship and Immigration Services ("U.S.C.I.S."), and that the fingerprints were cleared. (Id. at ¶ 11, 13). Plaintiffs' case has been forwarded to the Service Center to continue processing and Plaintiffs argue that they have furnished with the Serice Center sufficient information to determine their eligibility pursuant to the applicable requirements. (Id. at ¶¶ 13, 15).

Plaintiffs further allege that their attorney made a status inquiry with the U.S.C.I.S. on September 1, 2006, and received a response on October 23, 2006, indicating that the processing of the case was delayed due to security checks. (Id. at ¶ 12). Plaintiffs allege that their attorney made additional inquiries with U.S.C.I.S. on October 17, 2006, and December 12, 2006, and have yet to receive any response. (Id. at ¶ ¶ 13, 14.).

Plaintiffs allege that Defendants have "failed to adhere to their own regulations and have improperly delayed the process[ing]" of the Plaintiffs' applications, thereby depriving them of their rights under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq. (Id. at ¶ ¶ 15, 19). Plaintiffs seek an order (a) requiring Defendants to adjudicate Plaintiffs' applications for adjustment of status; (b) requiring Defendants to provide Plaintiffs with a Notice of Approval; (c) Awarding Plaintiffs attorney's fees; and (d) granting other such relief at law and in equity as justice may require. (Id. at ¶ 21).

Defendants now move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.

II. STANDARD FOR 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. Under Rule12(h)(3), the court is required to dismiss the action whenever it appears that the court lacks subject matter jurisdiction. On a 12(b)(1) motion, the plaintiff bears the burden to prove that jurisdiction exists and "no presumptive truthfulness attaches to the plaintiff's allegations." Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977).

III. ANALYSIS

The issue before this Court is whether subject matter jurisdiction exists to review the U.S.C.I.S.'s delay in processing I-485 applications. The applications are governed by the Immigration and Nationality Act ("INA"), 8 U.S.C. §1255, which vests the Attorney General with broad discretion to adjust the status of aliens. Plaintiffs argue that this Court has jurisdiction to hear this action pursuant to 28 U.S.C. § 1331, in conjunction with 28 U.S.C. § 1361, the Administrative Procedure Act ("APA"), the INA, and under 28 U.S.C. § 2201. The issue is whether Defendants owe Plaintiffs a non-discretionary duty to process their applications within a reasonable period of time. For the reasons set forth below, this Court finds Defendants' duty to Plaintiffs is non-discretionary, and so, jurisdiction is proper.

A. Jurisdiction Under the Mandamus Act

Plaintiffs argue that this Court has mandamus jurisdiction under 28 U.S.C.§ 1361. Section 1361 provides that "the 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." As the Supreme Court has held, the common-law writ of mandamus is intended to provide a remedy for a plaintiff only where the defendant "owes him a clear, non-discretionary duty." Heckler v. Ringer, 466 U.S. 602, 617, 80 L.Ed. 2d 622, 104 S.Ct. 2013 (1984). The Third Circuit 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." Harmon Cove Condo. Ass'n v. ...


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