Abdi v. Chertoff

589 F. Supp. 2d 120, 2008 U.S. Dist. LEXIS 102199, 2008 WL 5248030

Opinion

MEMORANDUM & ORDER

TAURO, District Judge.

On July 30, 2008, Plaintiff Mohamoud Abdi filed this mandamus action seeking to compel Defendants (collectively “the Government”) to adjudicate Plaintiffs 1-485 Application to Adjust Status. 1 Plaintiff, a Somalian asylee, filed the application on December 13, 2004, 2 but the Government has failed to adjudicate the application for over four years. Importantly, Plaintiff does not now ask this court to compel a favorable decision with respect to the application but merely seeks a court order requiring Defendants to process the application. 3 For the following reasons, this court hereby orders that: (1) Defendants’ Motion to Dismiss [# 10] is DENIED; (2) Plaintiffs Motion for Summary Judgment [# 12] is ALLOWED; and (3) Defendants’ Motion to Defer Consideration of Plaintiff’s Motion for Summary Judqment [# 17] is DENIED.

The Government brings the Motion to Dismiss pursuant to Rule 12(b)(1) and (6) on the grounds that this court lacks subject matter jurisdiction and that Plaintiff has failed to state a claim. Plaintiff contends that this court has jurisdiction pursuant to the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., federal question jurisdiction, 28 U.S.C. § 1331; the Administrative Procedure Act (“APA”), 5 U.S.C. § 701; and the mandamus statute, 28 U.S.C. §§ 1331 and 1361, et seq. The Government argues that the pace of processing and adjudicating applications for adjustment of status is a discretionary decision barred from judicial review. 4

Courts are divided over whether a federal court has jurisdiction to review the Government’s time frame for processing applications for adjustment of status, but this court finds the reasoning in Tang v. Chertoff to be persuasive. 5 There, Judge Gert-ner held that the jurisdiction-stripping language in the INA only bars review of the “substance of an adjustment of status decision,” leaving the “pacing of such a decision” subject to judicial review. 6 “Further, courts have noted that to defer to agencies on pace of adjudication would be effectively to lift the duty to adjudicate applications altogether.” 7 The APA requires courts to “compel agency action unlawfully withheld or unreasonably delayed” 8 where the delayed agency action is “legally required.” 9 “A grant of adjustment of status is not ‘legally required,’ but adjudication of the application one way or the other certainly is.” 10 Accordingly, the APA imposes a duty on the Government to adjudicate adjustment of status applications within a reasonable time. 11

While it would be difficult to identify with any precision a “boundary between reasonable and unreasonable time for adjudication of permanent residency appliea-tions,” 12 the four-year delay here is clearly not reasonable. 13 Accordingly, Defendants are hereby ordered to adjudicate Plaintiffs application for adjustment of status and render a decision by February 17, 2009. Parties shall notify this court of the Government’s decision with respect to the application by February 20, 2009.

IT IS SO ORDERED.

1 .Compl. ¶ 1.

2 .Id. ¶8.

3 . See id. 5.

4 . Def.’s Mem. Supp. Mot. Dismiss 5.

5 . 493 F.Supp.2d 148 (D.Mass.2007).

6 . See id. at 151.

7 . Id. at 156 (citing Salehian v. Novak, No. 3:06-cv-459, 2006 WL 3041109, at *2 (D.Conn. Oct. 23, 2006); Agbemaple v. INS, No. 97-C-8547, 1998 WL 292441, at *2 (N.D.Ill. May 18, 1998)).

8 . 5 U.S.C.A. § 706(1) (West 2008).

9 . Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004).

10 . Tang, 493 F.Supp.2d at 155.

11 . Id. at 154.

12 . Id. at 157.

13 . See id. at 157-58 (finding a four year delay unreasonable); Salehian, 2006 WL 3041109, at *1 (two years); Hu v. Reno, No. 3-99-CV-1136-BD, 2000 WL 425174, at *4 (N.D.Tex. 2000) (two-and-a-half years); Paunescu v. INS, 76 F.Supp.2d 896, 902 (N.D.Ill.1999) (two years); Yu v. Brown, 36 F.Supp.2d 922, 935 (D.N.M.1999) (two-and-a-half years); Ag-bemaple, 1998 WL 292441, at *2 (twenty months).