Raghav Pandya v. Joseph B. Edlow, et al.

Opinion

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 RAGHAV PANDYA, 5 Case No. 26-cv-00016-SK Plaintiff, 6 v. ORDER GRANTING DEFENDANTS’ 7 MOTION TO DISMISS JOSEPH B. EDLOW, et al., 8 Defendants. 9 Regarding Docket No. 9

10 This matter comes before the Court upon consideration of the motion to dismiss filed by 11 Joseph B. Edlow, in his official capacity as Director of United States Citizenship and Immigration 12 Services (“USCIS”), and the USCIS (collectively, “Defendants”). (Dkt. No. 9.) All parties 13 consented to magistrate judge jurisdiction. (Dkt. Nos. 8, 11.) Upon careful consideration of the 14 parties’ papers, relevant legal authority, case record, and oral argument, the Court GRANTS 15 Defendants’ motion for the reasons set forth below. 16 BACKGROUND 17 Plaintiff Raghav Pandya (“Plaintiff”) seeks injunctive and mandamus relief ordering 18 Defendants to adjudicate his pending Form I-485 Application to Register Permanent Residence or 19 Adjust Status (hereinafter “I-485 Application”). (Dkt. No. 1, (Complaint), ¶¶ 68–69.) An 20 individual may apply to adjust his or her status to lawful permanent resident using the Form I-485 21 based on a pending or approved immigrant petition. 8 U.S.C. § 1255(a); see also 8 C.F.R. § 22 245.2(a)(2)(i)(B) (providing for the concurrent filing of an adjustment of status application with 23 certain employment-based immigrant petitions). The Immigration and Nationality Act (“INA”), 8 24 U.S.C. § 1101 et seq., authorizes certain foreign nationals to seek immigrant visas or lawful 25 permanent residence through employment-based categories. See 8 U.S.C. § 1151(a)(2). The 26 Employment-Based Fifth Preference (“EB-5”) program (hereinafter the “EB-5 Program”), 27 specifically, provides a path to obtaining a permanent residence visa for foreign national investors 1 that will create full-time positions for at least ten qualifying employees. (Dkt. No. 1 ¶ 12); see 8 2 U.S.C. § 1153(b)(5). 3 In 2022, Congress enacted significant reforms to the EB-5 Program through the EB-5 4 Reform and Integrity Act of 2022. (Dkt. No. 1 ¶ 13.) As relevant here, Congress expressly 5 authorized foreign investors to simultaneously file, with their Form I-485 application, an 6 immigrant petition either as (1) a standalone investor (“Form I-526”), or (2) a regional center 7 investor (“Form I-526E”). (Id. ¶¶ 12–13.) Investors may simultaneously file their Form I-485 and 8 immigration petition if the U.S. Department of State’s Visa Bulletin indicates that the investor’s 9 EB-5 category is not oversubscribed and visa numbers are immediately available to EB-5 10 applicants. (Id. ¶¶ 12–13, 23.) Although both forms are filed concurrently, I-485 Forms are not 11 processed until USCIS approves the applicant’s I-526 or I-526E Form. (Id. ¶ 34.) 12 Plaintiff, a citizen of India, invested $800,000 in a new commercial enterprise located in a 13 USCIS-designated rural or high unemployment area that would create jobs for at least ten 14 qualifying employees. (Id. ¶ 21.) Plaintiff filed his I-526E and I-485 Forms concurrently on June 15 30, 2025. (Id. ¶ 22.) Plaintiff alleges that EB-5 category visas were immediately available at the 16 time of Plaintiff’s investment. (Id. ¶ 23.) Approximately six months after filing his forms, on 17 January 2, 2026, Plaintiff commenced this action against Defendants, alleging Defendants failed to 18 timely process his I-526E Petition and I-485 Application to register permanent residence. (Dkt. 19 No. 1 at 1.)1 20 Plaintiff brings three claims for Defendants’ alleged delay and failure to process his I-485 21 Application and I-526E Petition: (1) violation of the Administrative Procedure Act (“APA”); (2) 22 relief under the Mandamus Act; and (3) a violation of Plaintiff’s procedural due process rights 23 under the Due Process Clause of the U.S. Constitution. (Id. ¶¶ 47–62.) As previously noted, 24 Plaintiff brought this action seeking relief under the Mandamus Act and the APA to compel 25 USCIS to adjudicate his pending I-526E petition and I-485 application.2 (Id. ¶¶ 67–69.) 26 1 All citations to page numbers in docket filings refer to ECF-generated page numbers. 27 2 The Ninth Circuit has recognized that the relief sought under the Mandamus Act and 1 On January 16, 2026—fourteen days after Plaintiff commenced this action—USCIS approved 2 Plaintiff’s I-526E Petition. (Dkt. No. 9 at 3.) Thus, only Plaintiff’s I-485 Application for 3 permanent residence remains pending. 4 On March 10, 2026, Defendants moved to dismiss Plaintiff’s Complaint under Federal 5 Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 9.) Plaintiff filed an opposition to 6 Defendants’ motion. (Dkt. No. 12.) Defendants filed a reply and Plaintiff, with leave of Court, 7 filed a sur-reply. (Dkt. Nos. 13, 16-1.) The Court heard oral argument on June 8, 2026. (Dkt. No. 8 27.) 9 ANALYSIS 10 I. Legal Standards 11 A. Motion to Dismiss for Lack of Subject Matter Jurisdiction 12 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) tests whether the 13 court has subject matter jurisdiction. Williams v. Apple, Inc., 449 F. Supp. 3d 892, 900 (N.D. Cal. 14 2020). Federal courts are courts of limited jurisdiction and can only adjudicate cases which the 15 Constitution or Congress authorize them to adjudicate: cases involving diversity of citizenship and 16 an amount in controversy exceeding $75,000, a federal question, or cases in which the United 17 States is a party. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A party 18 moving to dismiss on 12(b)(1) grounds may challenge a court’s jurisdiction on facial or factual 19 grounds. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a “facial” 20 challenge, as is presented here, the court assumes a plaintiff’s factual allegations to be true and 21 draws all reasonable inferences in plaintiff’s favor. Oracle Corp. v.ORG Structure Innovations 22 LLC, No. 11-cv-3549 SBA, 2012 WL 12951187, at *3 (N.D. Cal. Mar. 30, 2012) (citing Doe v. 23 See, 557 F.3d 1066, 1073 (9th Cir. 2009)). 24 B. Motion to Dismiss for Failure to State a Claim 25 A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the 26 complaint fails to state a claim upon which relief can be granted. On a Rule 12(b)(6) motion to 27 dismiss, the court construes the allegations in the complaint in the light most favorable to the 1 794 F.2d 478, 481 (9th Cir. 1986). Even under the liberal pleading standard of Rule 8(a)(2), “a 2 plaintiff’s obligation to provide the grounds of [their] entitle[ment] to relief requires more than 3 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 4 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotation marks 5 omitted, cleaned up). Rather, a plaintiff must instead allege “enough facts to state a claim to relief 6 that is plausible on its face.” Id. at 570. “The plausibility standard is not akin to a ‘probability 7 requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting id. at 556–57). If the complaint allegations 9 are insufficient to state a claim, a court should grant leave to amend, unless amendment is futile. 10 See, e.g., Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss & Lieche, 11 Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). 12 II. Defendants’ Motion to Dismiss 13 Defendants move to dismiss Plaintiff’s Complaint on two grounds. (Dkt. No. 9 at 2.) 14 First, Defendants argue that “the Court lacks subject matter jurisdiction to compel the adjudication 15 of I-485 adjustment applications under the [alleged] jurisdiction-stripping provision of the INA, 8 16 U.S.C. § 1252(a)(2)(B)(ii).” (Id.) Second, Defendants contend that, even if the Court has subject 17 matter jurisdiction over this action, Plaintiff fails to state a due process claim. (Id.) The court 18 addresses each argument in turn. 19 A. Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction 20 The crux of the parties’ dispute on this issue is whether, as Defendants contend, 8 U.S.C. § 21 1252(a)(2)(B)(ii) strips this Court of subject matter jurisdiction over pace-of-adjudication claims. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 1. Relevant Statutory Frameworks 2 As noted above, the INA authorizes certain foreign nationals to seek immigrant visas or 3 lawful permanent residence through employment-based categories, such as the EB-5 Program. 4 See 8 U.S.C. §§ 1151(a)(2), 1153(b)(5). As relevant here, if certain threshold requirements are 5 met, an individual can apply to adjust his or her status to lawful permanent resident using Form I- 6 485 based on an approved immigrant petition. 8 U.S.C. § 1255(a); see also 8 C.F.R. § 7 245.2(a)(2)(i)(B) (allowing the concurrent filing of an adjustment of status application with certain 8 employment-based immigrant petitions). 9 USCIS engages in a multi-step process when evaluating an application for adjustment of 10 status. Section 1255(a), specifically, provides: 11 The status of an alien who was inspected and admitted ... into the United States ... may be adjusted by the Attorney General, in his discretion and under such regulations 12 as he may prescribe, to that of an alien lawfully admitted for permanent residence if 13 (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 14 residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. 15 16 8 U.S.C. § 1255(a); see also 8 C.F.R. § 245.1(a). 17 The disputed INA provision—8 U.S.C. § 1252—is entitled “Judicial review of orders of 18 removal” and provides, in relevant part: 19 (a) Applicable provisions ... 20 21 (2) Matters not subject to judicial review ... 22 (B) Denials of discretionary relief 23 Notwithstanding any other provision of law (statutory or nonstatutory), including 24 section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of 25 whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review— 26

27 (i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title (ii) any other decision or action of the Attorney General or the Secretary of Homeland 1 Security the authority for which is specified under this subchapter to be in the 2 discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. 3 8 U.S.C. § 1252. 4

5 2. 8 U.S.C § 1252 (a)(2)(B)(ii) does not strip this Court of subject matter jurisdiction over Plaintiff’s “pace-of-adjudication” claim. 6 Defendants argue this Court lacks subject matter jurisdiction because 8 U.S.C § 7 1252(a)(2)(B)(ii) precludes judicial review of the pace of adjudication of Form I-485 applications. 8 (Dkt. No. 9 at 5–8.) Consistent with the majority of district courts in the Ninth Circuit, the Court 9 disagrees. See Varniab v. Edlow, No. 25-CV-10602-SVK, 2026 WL 485490, at *9 (N.D. Cal. 10 Feb. 20, 2026) (noting that “the clear majority of district courts within the Ninth Circuit” and “the 11 majority of district courts nationwide” have concluded that § 1252(a)(2)(B)(ii) does not bar 12 judicial review) (quoting Hong Wang v. Chertoff, 550 F. Supp. 2d 1253, 1256–57 (W.D. Wash. 13 2008)); see also Gao v. Mullin, No. 25-CV-01479-SVK, 2026 WL 948665 (N.D. Cal. Apr. 8, 14 2026) (concluding that § 1252(a)(2)(B)(ii) does not strip the court of subject matter jurisdiction 15 over “pace-of-adjudication” claims because defendants have a non-discretionary duty to adjudicate 16 I-485 applications); Yousefisahi v. Edlow, No. 25-CV-09728-LJC, 2026 WL 1388704 (N.D. Cal. 17 May 18, 2026) (same); Komma v. Edlow, No. 2:25-CV-3702 DJC AC PS, 2026 WL 1113887 18 (E.D. Cal. Apr. 24, 2026) (same). 19 First, § 1252(a)(2)(B)(ii) does not preclude judicial review of Defendants’ decision to 20 categorically act or withhold action. See Varniab, 2026 WL 485490, at *7 (noting that “numerous 21 courts have concluded that [§ 1252(a)(2)(B)(ii)] only precludes judicial review of decisions 22 denying discretionary relief on individual applications and does not preclude judicial review of the 23 Government’s decision to categorically act or withhold action”). District courts in the Ninth 24 Circuit have rejected the argument that pace of adjudication is discretionary and instead have held 25 that “the government has a non-discretionary duty to adjudicate [petitions for adjustment of status] 26 within a reasonable period of time and that courts have jurisdiction to review the [g]overnment’s 27 failure to do so.” Gao, 2026 WL 948665, at *3–4 (internal citations and quotation marks omitted); 1 Mugomoke v. Curda, No. 2:10-CV-02166 KJM DAD, 2012 WL 113800, at *4 (E.D. Cal. Jan. 13, 2 2012) (“While the Secretary has discretion to decide the outcome of an I–485 application, the 3 authority to not act on an application is not conferred by any statute. Thus[,] a failure to act on an 4 I–485 application falls within the APA’s default rule: ‘With due regard for the convenience and 5 necessity of the parties or their representatives and within a reasonable time, each agency shall 6 proceed to conclude a matter presented to it.’” (citing 5 U.S.C. § 555(b)). 7 Second, the Court disagrees with Defendants’ argument that 8 U.S.C.§ 1255(a)’s statutory 8 text triggers § 1252(a)(2)(B)(ii)’s jurisdictional bar. (Dkt. No. 9 at 5.) While the statutory 9 language authorizes USCIS to exercise discretion in its final determination, the language does not 10 extend to when or how applications are processed. See Varniab, 2026 WL 485490, at *9 11 (rejecting the argument that § 1255(a) confers broad discretion “to determine not only whether to 12 grant adjustment of status, but also how and when to adjudicate such applications” and noting that 13 many cases have held that § 1255(a) does not provide discretionary authority over the pace of 14 adjudicating applications) (citing cases) (emphasis in original). 15 Moreover, § 1255(a) does not apply because Plaintiff is not challenging a USCIS 16 application denial or requesting the Court to order USCIS to approve his pending application. See 17 Wang, 550 F. Supp. 2d. at 1256. Rather, Plaintiff is challenging USCIS’s failure to act on his 18 application within a reasonable time and asking this Court to order USCIS to render a decision on 19 his application. (Dkt. No. 1 ¶¶ 55, 61, 69.) Because the requested relief is focused on the lack of a 20 decision rather than the review of a final decision on Plaintiff’s I-485 Application, judicial review 21 is not precluded. 22 Lastly, Defendants’ proffered authority, (Dkt. No. 9 at 5–8), is distinguishable because 23 Plaintiff’s claims rest on a pending I-485 application, rather than final immigration application 24 decisions. See Varniab, 2026 WL 485490, at *9 (explaining why Patel v. Garland, 596 U.S. 328 25 (2022), Garcia v. United States Citizenship & Immigration Services, 146 F.4th 743 (9th Cir. 26 2025), and Zia v. Garland, 112 F.4th 1194 (9th Cir. 2024) do not extend to cases seeking review 27 of pending immigration applications); Behdin v. Edlow, No. 26-CV-00566-SVK, 2026 WL 1 Zia when the plaintiffs sought review of the defendants’ failure to decide the plaintiffs’ I-485 2 applications). 3 *** 4 In sum, the Court has subject matter jurisdiction over this action. The Court’s conclusion is 5 consistent with the “well-settled” and “strong” presumption in favor of judicial review of 6 administrative action, Guerrero-Lasprilla v. Barr, 589 U.S. 221, 229 (2020), which courts 7 “consistently” apply to “legislation regarding immigration,” Kucana v. Holder, 558 U.S. 233, 251 8 (2010). 9 B. Defendants’ Motion to Dismiss for Failure to State a Claim 10 Plaintiff alleges that Defendants’ combined delay and failure to act in processing his I-485 11 Application violates his procedural due process rights under the U.S. Constitution. (Dkt. No. 1 ¶¶ 12 58–62.) In response, Defendants contend that Plaintiff fails to state a procedural due process 13 claim. (Dkt. No. 9 at 8–9.)3 The central issue before the Court is whether Plaintiff has sufficiently 14 pled a protected property interest—a threshold requirement for a claim of violation of due process. 15 The Due Process Clause of the Fifth Amendment provides that no person shall “be 16 deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. “The 17 ‘touchstone’ of due process is protecting people against arbitrary government action, whether from 18 ‘denial of fundamental procedural fairness, or in the exercise of power without any reasonable 19 justification in the service of a legitimate governmental objective.’ ” Garas v. Noem, No. 25-cv- 20 01756-FWS (JDE), 2025 WL 3650184, at *6 (C.D. Cal. Dec. 5, 2025) (quoting Cty. of 21 Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). “A threshold requirement to a substantive or 22 procedural due process claim is the plaintiff’s showing of a liberty or property interest protected 23 by the Constitution.” Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 24 1994). 25 / / / 26 / / / 27 ] Plaintiff claims that he has adequately alleged a protected property interest in receiving a 2 || determination on his properly-filed immigration application. (Dkt. No. 12 at 16-19.) The Court 3 disagrees. Plaintiffs desire for “fundamental fairness in administrative adjudication,” (Dkt. No. 1 4 ||} does not amount to a cognizable liberty or property interest that could support a procedural 5 due process claim. “On the contrary, the Ninth Circuit has held that ‘[a] mere expectation of 6 || receiving a benefit is not enough to create a protected interest.’ ” Cost Saver Mgmt., LLC v. 7 || Napolitano, No. 10-cv-2105-JST (CWX), 2011 WL 13119439, at *6 (C.D. Cal. June 7, 2011) 8 (quoting Roberts v. Spalding, 783 F.2d 867, 870-71 (9th Cir. 1986)). 9 Furthermore, Plaintiff has not provided the Court with authority to support his proposition 10 || that he has a protected property interest in receiving a I-485 application decision and how, 11 specifically, this purported property interest is entitled to due process protections. Cf Ching v. 12 || Mayorkas, 725 F.3d 1149, 1156 (9th Cir. 2013) (holding that because the “grant of an I-130 13 || petition for immediate relative status is a nondiscretionary decision,” it is a protected interest that 14 || “is entitled to the protections of due process.”) The Court thus concludes that Plaintiff has failed 3 15 || to state a procedural due process claim because he has not adequately pled a protected property 16 interest. 17 CONCLUSION Zz 18 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss. The Court 19 || DISMISSES Plaintiff's due process claim with LEAVE TO AMEND if, in good faith, he can 20 || allege additional facts to support such a claim. If Plaintiff elects to file an amended complaint, he 21 shall do so by July 10, 2026. Defendants’ answer shall be due 14 days after Plaintiff's amended 22 || complaint is filed or by July 1, 2026, whichever is later. Because the Court grants Defendants’ 23 motion to dismiss, the Court DENIES Plaintiff's request for costs and fees pursuant to the Equal 24 || Access to Justice Act. 25 IT IS SO ORDERED. 26 || Dated: June 10, 2026 Arthu how SALLIE KIM 28 United States Magistrate Judge