Fei Bian v. Hillary Clinton ( 2010 )


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  •                         REVISED April 30, 2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 09-10568                  April 27, 2010
    c/w
    No. 09-10742                 Lyle W. Cayce
    Clerk
    FEI BIAN,
    Plaintiff - Appellant
    v.
    HILLARY CLINTON, Secretary of the United States Department of State;
    JANET A NAPOLITANO, Secretary, Department of Homeland Security;
    JONATHAN SCHARFEN, Acting Director of the United States Citizenship and
    Immigration Services; DAVID ROARK, Director of the USCIS Texas Service
    Center; ERIC H HOLDER, JR, U S Attorney General
    Defendants - Appellees
    Appeal from the United States District Court
    for the Northern District of Texas
    Before KING, WIENER, and DENNIS, Circuit Judges.
    WIENER, Circuit Judge:
    Appellant Fei Bian (“Bian”), a Chinese national residing lawfully in the
    United States since 1999, appeals the district court’s dismissal of her complaint
    seeking to compel the United States Department of Homeland Security,
    Citizenship and Immigration Services (“USCIS”) to adjudicate her I-485
    application for adjustment of immigration status. Agreeing with the appellees
    No. 09-10568 c/w
    No. 09-10742
    that, under these facts, we lack jurisdiction to review the pace of the USCIS’s
    adjudication process, we affirm.
    I. FACTS AND PROCEEDINGS
    Bian holds a Ph.D. in chemical engineering and is employed as a senior
    environmental consultant in Dallas. In September 2005, she filed an I-485
    application with USCIS seeking adjustment of immigration status. Her visa
    priority date is September 29, 2005, and her visa category is Employment-Based
    Category 2 (EB-2) with Chinese chargeability. Bian alleges that she had
    complied with all I-485 application requirements, but that her application was
    still pending in September 2008, more than three years after she had submitted
    it to the USCIS. After making numerous unsuccessful inquiries into the status
    of her application, Bian, proceeding pro se, filed suit seeking declaratory and
    injunctive relief to compel the USCIS to adjudicate her application.
    The defendants concede that Bian is eligible for an adjustment of status,
    but they urge that they were unable to approve her application because there
    have been no visa numbers available to assign to her. As the defendants
    explain, at any given time, the USCIS is able to issue only a limited number of
    visas in each category. The USCIS determines the number of available visas in
    a category based on several variables, including past number use, estimates of
    future number use and return dates, and estimates of USCIS demand and
    pending USCIS number requests. If the number of eligible applicants in a
    category is less than the number of visas available for that category, then the
    category is considered “current,” and the USCIS is able to issue visas to every
    eligible applicant. If, on the other hand, the number of eligible applicants in a
    category is greater than the number of visas available for that particular
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    category, the USCIS must set a visa availability cut-off date. In such instances,
    the USCIS will award visas to all eligible applicants who filed I-485 applications
    prior to the cut-off date, but will withhold any final decision on applications filed
    after the cut-off date. As the defendants explain, the current cut-off date for
    applicants in Bian’s category (EB-2 with Chinese chargeability) is June 1, 2004
    — more than a year before Bian’s visa priority date. Thus, the defendants
    argue, even if Bian were entitled to relief, they would be unable to grant her an
    adjustment of status because there is no visa number currently available to her.
    The defendants contend that, if forced to rule on Bian’s application, they would
    have no choice but to deny her request for an adjustment of status.
    In addition to explaining that they were statutorily unable to grant Bian
    an adjustment of status, the defendants also filed a Rule 12(b)(1) motion urging
    the district court to dismiss Bian’s action for lack of jurisdiction. According to
    the defendants, federal courts lack jurisdiction to compel the USCIS to
    adjudicate an I-485 application, as Congress has left the agency’s decision-
    making process — including the pace of the adjudication process — entirely to
    agency discretion. When Bian failed to file any response to the defendants’ Rule
    12(b)(1) motion, the district court dismissed the suit for lack of jurisdiction.
    Bian appealed the dismissal and filed a motion with the district court
    seeking reconsideration of its ruling. The district court granted Bian’s motion
    in part, reversing its earlier holding and concluding that it did in fact have
    jurisdiction to review the pace of the USCIS’s adjudication. In reaching that
    conclusion, the district court distinguished the USCIS’s ultimate decision —
    which the district court acknowledged to be discretionary and not subject to
    judicial review — from the agency’s decision-making process — which, according
    3
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    to the district court, includes a nondiscretionary duty to adjudicate all
    applications for adjustment of status within a reasonable time. The district
    court nevertheless agreed with the USCIS that, even if Bian were entitled to
    relief, there were no visa numbers available for her, so the court dismissed
    Bian’s complaint for failure to state a claim on which relief could be granted.
    Bian now appeals both the earlier dismissal for lack of subject matter
    jurisdiction and the subsequent dismissal for failure to state a claim.
    II. LAW AND ANALYSIS
    A.     Standard of review
    We review a dismissal for lack of subject matter jurisdiction pursuant to
    Rule 12(b)(1) de novo.1 A district court properly dismisses a case for lack of
    subject matter jurisdiction “when the court lacks the statutory or constitutional
    power to adjudicate the case.”2
    B.     Discussion
    Bian contends that federal courts have jurisdiction to review the USCIS’s
    decision-making process pursuant to the Administrative Procedure Act (“APA”)
    in conjunction with the Mandamus Act. In response, the defendants urge that
    the USCIS’s pace of adjudication is not subject to judicial review, as Congress
    has left the process entirely to the agency’s discretion. Although several district
    courts have addressed the issue, no circuit court has yet ruled on it.3
    1
    Lundeen v. Mineta, 
    291 F.3d 300
    , 303 (5th Cir. 2002).
    2
    Home Builders Ass’n of Miss., Inc. v. City of Madison, 
    143 F.3d 1006
    , 1010 (5th Cir.
    1998) (internal quotation marks and citation omitted).
    3
    See Abanov v. Gonzales, No. 06-3725, 
    2007 WL 2872765
     (S.D. Tex. Sept. 28, 2007)
    (collecting cases). District courts that have considered this issue have divided sharply as to
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    1.       The Immigration and Nationality Act
    In general, an immigrant who is lawfully present in this country may
    request permanent resident status by filing an I-485 application with the
    USCIS.4 The Immigration and Nationality Act (“INA”) specifies that
    The status of an alien who was admitted or paroled into the United
    States ... may be adjusted by the Attorney General, in his discretion
    and under such regulations as he may prescribe, to that of an alien
    lawfully admitted for permanent residence if (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
    whether federal courts have jurisdiction to review the USCIS’s pace of adjudication for
    resolving I-485 applications. Compare, e.g., Bugulu v. Gonzalez, 
    490 F. Supp. 2d 965
    , 967
    (W.D. Wis. 2007) (holding that federal courts lack “subject matter jurisdiction ... concerning
    the delay in processing ... adjustment status application[s] because it is a discretionary action
    by the [USCIS] pursuant to [Section 1252]”); Abanov, 
    2007 WL 2872765
     at *5 (explaining that
    “Congress has made it clear that [federal courts are] without jurisdiction to hear” complaints
    regarding the USCIS’s pace of adjudication); Safadi v. Howard, 
    466 F. Supp. 2d 696
    , 698-700
    (E.D. Va. 2006) (concluding that any distinction between the USCIS’s decision and its decision-
    making process is “untenable” and that federal courts lack jurisdiction to review the USCIS’s
    discretionary pace of adjudication) with Dae Hyun Kim v. Ashcroft, 
    340 F. Supp. 2d 384
    , 393
    (S.D.N.Y. 2004) (reasoning the USCIS has a nondiscretionary duty to adjudicate adjustment-
    of-status applications within “a reasonable time” and therefore federal courts have jurisdiction
    to review the pace of the agency’s adjudication). As the court in Abanov thoroughly noted, even
    district courts within this circuit have reached divergent conclusions on the issue. Compare,
    e.g., Osake v. Dep’t of Homeland Sec., 07-308, 
    2008 WL 151073
    , *5 (S.D. Tex. Jan. 14, 2008)
    (reviewing Section 1252 and concluding that federal courts lack jurisdiction to consider
    complaints regarding the USCIS’s pace of adjudication, as “Congress justifiably gave security
    concerns precedence over an accelerated decision-making process when it immunized that
    process from judicial review”) with Landry v. Chertoff, 
    2007 WL 2007996
    , *2-3 (E.D. La. July
    5, 2007) (holding that Section 1252's jurisdiction-stripping provision applies only to orders of
    removal and therefore federal courts do have jurisdiction to consider complaints regarding the
    USCIS’s pace of adjudication).
    4
    
    8 U.S.C. § 1255
    (a).
    5
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    permanent residence, and (3) an immigrant visa is immediately
    available to him at the time his application is filed.5
    Importantly, 
    8 U.S.C. § 1255
     does not specify a deadline or even a time frame for
    adjudication of applications, instead committing not only the USCIS’s decision
    but also any “regulations” necessary for making such a decision to agency
    discretion.
    In addition, 
    8 U.S.C. § 1252
    , the INA’s jurisdiction-stripping provision,
    specifies that
    [n]otwithstanding any other provision of law (statutory or
    nonstatutory) ... and [28 U.S.C.] sections 1361 and 1651 ... no court
    shall have jurisdiction to review–
    (i) any judgment regarding the granting of relief under section ...
    1255 [adjustment of status] ... or
    (ii) any other decision or action of the Attorney General or the
    Secretary of Homeland Security the authority for which is specified
    under this subchapter to be in the discretion of the Attorney
    General or the Secretary of Homeland Security....6
    It is noteworthy that Section 1252 applies not only to the USCIS’s grant or
    denial of an application for adjustment of status, but also to “any other decision
    5
    
    Id.
     (emphasis added). The Attorney General’s authority under this section has since
    been transferred, in part, to the Secretary of Homeland Security and the USCIS. 
    6 U.S.C. § 271
    (b)(5).
    6
    
    8 U.S.C. § 1252
    (a)(2)(B) (emphasis added); see Safadi, 
    466 F. Supp. 2d at 698
     (“As
    courts have recognized, this statute’s meaning is refreshingly free from ambiguity and its
    terms are pellucidly clear: It means that courts are precluded from reviewing any discretionary
    decision or action of [the] USCIS.” (emphasis in original)).
    6
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    or action” within the USCIS’s discretion.7 If Congress had intended for only the
    USCIS’s ultimate decision to grant or deny an application to be discretionary —
    as distinguished from its interim decisions made during the adjudicative process
    — then the word “action” would be superfluous.8 Instead, Section 1252 expressly
    exempts from judicial review any “action” that is within the USCIS’s discretion
    and is necessary to carry out the agency’s statutory grant of authority. This
    includes establishing “such regulations as [the agency] may prescribe” to carry
    out its statutory duty, such as 
    8 C.F.R. § 245.2
    (a)(5)(ii), which specifies that “[a]n
    application for adjustment of status, as a preference alien, shall not be approved
    until an immigrant visa number has been allocated by the Department of
    State....”9 As Bian contests the USCIS’s decision to adjudicate her application
    7
    
    8 U.S.C. § 1252
    (a)(2)(B) (emphasis added).
    8
    We agree with the analysis of the statute in Abanov v. Gonzalez:
    The court is unpersuaded that there is any meaningful distinction between the
    adjustment status decision, which all agree is unreviewable, and the process of
    reaching that decision. Were the term “action” limited only to the final decision
    regarding an adjustment of status, then the term “action” in “decision or action”
    would be superfluous, a result which violates basic principles of statutory
    interpretation. Thus, “action” must contemplate more than merely the ultimate
    decision made by the USCIS on an applicant’s I-485 application.
    
    2007 WL 2872765
     at *5; see Safadi, 
    466 F. Supp. 2d at 700
     (“In effect, plaintiff argues that the
    phrase ‘decision or action’ encompasses only the results of the adjudications, i.e., the decision,
    and not the process. Plaintiff’s argument fails as it would impermissibly render the word
    ‘action’ superfluous.”).
    9
    See 
    8 C.F.R. § 245.2
    (a)(5)(ii). Examples of comparable USCIS regulations include,
    e.g., the requirement that applicants be examined by a civil surgeon, 
    8 C.F.R. § 245.5
    , the
    requirement that applicants be interviewed by an immigration officer, 
    8 C.F.R. § 245.6
    , and
    the requirement that certain background checks be performed and fingerprints taken before
    any application for permanent residence may be granted.
    7
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    in compliance with regulations that are clearly within the agency’s discretion to
    establish, the federal courts are without jurisdiction to entertain her claim.
    2.         The Mandamus Act
    Undeterred by the language of the INA, Bian asserts that federal courts
    have jurisdiction to consider the pace of the USCIS’s adjudicative process under
    the Mandamus Act, which provides that “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.”10 To establish jurisdiction under the Mandamus Act, the plaintiff’s
    claim must be “clear and certain and the duty of the officer [must be] ministerial
    and so plainly prescribed as to be free from doubt.”11 As we have previously
    explained, “mandamus is not available to review the discretionary acts of
    officials.”12
    As an initial matter, we note that Section 1252's jurisdiction-stripping
    provision expressly states that it applies “[n]otwithstanding any other provision
    of law (statutory or nonstatutory), including ... Title 28 ... section[ ] 1361 [the
    Mandamus Act].”13 This alone is dispositive of the issue. Nevertheless, we also
    note as significant the complete absence of any time limit in Section 1255's grant
    of statutory authority to the USCIS. In fact, the statute specifies that it is
    10
    
    28 U.S.C. § 1361
    .
    11
    Giddings v. Chandler, 
    979 F.2d 1104
    , 1108 (5th Cir. 1992).
    12
    
    Id.
    13
    
    8 U.S.C. § 1252
    (a)(2)(B); see Abanov, 
    2007 WL 2872765
     at * 5 (“Finally, the court
    notes that section 1252 expressly precludes judicial review notwithstanding section 1361
    (Mandamus Act) or any other provision of law.”).
    8
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    within the USCIS’s discretion to adjudicate I-485 applications “under such
    regulations as [the agency] may prescribe.”14 As the USCIS has discretion to
    adjudicate applications under regulations that it deems necessary to carry out
    its statutory grant of authority, e.g., by not granting adjustments of status until
    visa numbers become available, we conclude that the Mandamus Act is
    unavailable to Bian in requesting us to compel adjudication of her application
    in violation of the USCIS’s established regulations.
    Bian nevertheless contends that the USCIS has a “plainly prescribed” duty
    to adjudicate her application promptly under 
    8 U.S.C. § 1571
    , which states that
    “[i]t is the sense of Congress that the processing of an immigration benefit
    application should be completed not later than 180 days after the initial filing
    of the application.”15 We do not agree that this statue, which merely expresses
    Congress’s sense of the adjudicative process, establishes that Bian has a “clear
    and certain” right to have her I-485 application adjudicated within 180 days of
    its filing — or that the USCIS has a “plainly prescribed” duty to process the
    application within that time frame.16 Moreover, even if the statute could be used
    as a baseline for judging whether the USCIS’s pace of adjudication is reasonable,
    our review is precluded by Section 1252, which bars review of the pace of the
    USCIS’s decision-making process, “[n]otwithstanding any other provision of law
    (statutory or nonstatutory).”
    3.       The Administrative Procedure Act
    14
    
    8 U.S.C. § 1255
    (a).
    15
    
    8 U.S.C. § 1571
    .
    16
    See Yang v. Cal. Dept. of Social Services, 
    183 F.3d 953
    , 961 (9th Cir. 1999)
    (describing a similar “sense of Congress provision” as “non-binding, legislative dicta”).
    9
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    Finally, Bian urges that the Administrative Procedure Act (“APA”) too
    supports the presence of federal jurisdiction over her action seeking to compel
    the USCIS to adjudicate her application for adjustment of status. We disagree.
    The APA specifies that “[a] person suffering legal wrong because of agency
    action, or adversely affected or aggrieved by agency action within the meaning
    of a relevant statute, is entitled to judicial review thereof.”17 The APA provides
    for judicial review of government action “only where a plaintiff asserts that an
    agency failed to take a discrete agency action that it is required to take.”18
    Importantly, the APA does not apply to the extent that other “statutes preclude
    judicial review” or “agency action is committed to agency discretion by law.”19
    Here, not only does Section 1252 expressly preclude judicial review
    “[n]otwithstanding any other provision of law (statutory or nonstatutory),” but
    the USCIS undeniably has discretion to adjudicate applications “under such
    regulations as [the agency] may prescribe,” providing yet another barrier to the
    exercise of federal jurisdiction under the APA.
    III. CONCLUSION
    We conclude that the district court lacked jurisdiction to consider Bian’s
    claim, as Congress has expressly precluded judicial review of the USCIS’s pace
    of adjudication when the agency acts within its discretion and pursuant to the
    17
    
    5 U.S.C. § 702
    .
    18
    Norton v. S. Utah Wilderness Alliance, 
    542 U.S. 55
    , 64-65 (2004) (emphasis in
    original).
    19
    
    5 U.S.C. § 701
    (a)(1)-(2).
    10
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    regulations that the agency deems necessary for carrying out its statutory grant
    of authority. For the reasons stated above, the dismissal of Bian’s claim is
    AFFIRMED.
    11