Kashkool v. Chertoff

(2008)

Rasool KASHKOOL, Plaintiff,
v.
Michael CHERTOFF, et al., Defendants.

No. CV-07-190-PHX-LOA.

United States District Court, D. Arizona.

April 7, 2008.

ORDER

LAWRENCE O. ANDERSON, United States Magistrate Judge.

This matter arises on Plaintiffs Motion for Summary Judgment, (docket # 27) Defendants have filed a "Response in Opposition to Plaintiffs Motion for Summary Judgment and Defendant's Cross-Motion for Summary Judgment/Motion to Dismiss." (docket # 30) The parties have previously consented to magistrate-judge jurisdiction pursuant to Title 28 U.S.C. 636(c)(1) for all purposes, including trial and final entry of judgment, (docket # 18) For the reasons set forth below, this Court concludes that it has jurisdiction over Plaintiffs Complaint and that Plaintiff is entitled to summary judgment as a matter of law.

I. Background

On January 26, 2007, Plaintiff filed a Petition for Writ of Mandamus against Michael Chertoff, Secretary of the Department of Homeland Security, and Robert J. Okin, District Director of the Phoenix District Office of the Bureau of Citizenship and Immigration Services, (docket # 1 at 1-2) Plaintiff seeks an order compelling Defendants to adjudicate his pending application for adjustment of status to permanent resident ("I-485" application), (docket # 1) Plaintiff asserts that this District Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1361 (Mandamus Act), 28 U.S.C. § 1651 (the All Writs Act), and 5 U.S.C. § 701 (Administrative Procedure Act), (docket # 1)

Plaintiff is a native and citizen of Iraq who was admitted to the United States as a refugee pursuant to § 207. of the Immigration and Nationality Act ("INA") on May 3, 2001 in Los Angeles, California, (docket # 27 at 1; Harrell Decl. ¶ 12^[1]) He has resided in the United States since that date. On July 1, 2002, Plaintiff filed an 485 application to adjust to legal permanent resident status with the United States Bureau of Citizenship and Immigration Services ("USCIS" or the "agency"), (docket # 27-3) When an individual applies to USCIS for adjustment of status to lawful permanent resident, the agency conducts several forms of security and background checks to ensure that an alien is eligible for the benefit sought and that the applicant does not pose a risk to national security or public safety, (docket # 30, Harrell Decl. ¶¶ 3, 4) The background checks include (1) a Federal Bureau of Investigation ("FBI") fingerprint check, (2) a check against the Interagency Border Inspection System watch list, and (3) an FBI name check, (docket # 30, Harrell Decl. ¶ 4, fact sheet) Plaintiff "has not been interviewed concerning his eligibility for the benefit sought." (Harrell Decl. ¶ 12) Plaintiff has received no decision on his I-485 application which remains unadjudicated. (Id.); (docket # 27-3)

The USCIS has submitted a name check for Plaintiff to the FBI. (Cannon Decl. ¶ 22^[2]) A name check is a computerized search of an applicant's name against FBI investigative databases. (Cannon Decl. ¶ 11) The FBI's National Name Check Program received USCIS's first request for a name check on Plaintiff on or about December 20, 2002. (Id.) According to the Declaration of Michael Cannon, Section Chief of the National Name Check Program Section at Headquarters of the FBI in Washington, D.C., the FBI performed its check and forwarded the results to the USCIS in Washington, D.C. (Cannon Decl. ¶ 22) The FBI received a second name check request from USCIS for Plaintiff on or about February 12, 2004. (Id. at ¶ 23) The second name check has not been completed. (Id.) The USCIS cannot adjudicate Plaintiffs pending I-485 application until all security checks, including the name check, are completed, (docket # 30 at 7; Harrell Decl. ¶ 3, 8) Defendants' main justification for the delay in processing Plaintiffs I-485 application is that USCIS has not yet received the results of Plaintiffs FBI name check, (docket # 30 at 2, 7)

II. Summary of Arguments

A. Defendants' Arguments

Defendants argue that the Court should dismiss the Complaint pursuant to Fed. R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction because Title 8 U.S.C. § 1252(a)(2)(B)(ii) divests the court of subject matter jurisdiction over Plaintiffs claims.^[3] (docket # 30 at 5) Defendants further argue that the Court should dismiss Plaintiffs claims under both the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., for failure to state a claim, (dockets # 30 at 2, docket # 1)

B. Plaintiffs Arguments

Plaintiff argues that the Court has subject-matter jurisdiction over his claims pursuant to the Mandamus Act, 28 U.S.C. § 1361; the All Writs Act, 28 U.S.C. § 1651(a); the federal question statute, 28. U.S.C. § 1331; and the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq. (docket # 1) Plaintiff asserts that the Mandamus Act provides jurisdiction over any action in the nature of mandamus to compel an officer or employee of the United States to perform a duty owed to Plaintiff, (docket # 1) Plaintiff also asserts that, pursuant to the APA, a court may "compel agency action unlawfully withheld or unreasonably delayed." (docket # 1 at 3); 5 U.S.C. § 701, et seq.

Plaintiff moves for summary judgment on the ground that there is no genuine issue of material fact that Defendants have failed to adjudicate Plaintiffs 1^485 application within a reasonable period of time, (docket # 27)

III. Subject Matter Jurisdiction

Defendants move for dismissal of this action for lack of subject-matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Pursuant to Fed.R.Civ.P. 12(b)(1), the court must dismiss an action if the court lacks jurisdiction over the subject matter of the suit. Fed.R.Civ.P. 12(b)(1). The party invoking federal jurisdiction bears the burden of establishing that such jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir.1986). The Court presumes a lack of jurisdiction until the party asserting federal jurisdiction proves otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994); Stock West, Inc. v. Confederated Tribes, 873. F.2d 1221, 1225 (9th Cir.1989) (noting that a federal court is presumed to lack subject matter jurisdiction until otherwise established); Thornhill Publishing Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir.1979).

Plaintiff invokes this Court's jurisdiction on several bases: 28 U.S.C. § 1331 (granting "federal question" jurisdiction over civil actions "arising under the Constitution, laws, or treaties of the United States") in combination with the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706; and the Mandamus Act, 28 U.S.C. § 1361, in conjunction with the All Writs Act, 28 U.S.C. § 1651(a) (stating that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.") (docket # 1 at 1)

A. Federal Question Jurisdiction and the APA

Federal-question jurisdiction must be supported by an underlying question of federal law. Adelt v. Richmond School Dist, 439 F.2d 718, 718 (9th Cir.1971) (affirming dismissal on jurisdictional grounds where "the asserted errors are not of Constitutional dimension and present no federal question.")

The general grant of jurisdiction to determine federal questions under 28 U.S.C. § 1331, in conjunction with the APA, is sufficient to confer jurisdiction over a challenge to federal agency action. See, Bowen v. Massachusetts, 487 U.S. 879, 891 n. 16, 108 S. Ct. 2722, 101 L. Ed. 2d 749 (1988) (stating that "it is common ground that if review is proper under the APA, [there is] jurisdiction under 28 U.S.C. § 1331."); Gallo Cattle Co. v. U.S. Dept. of Agriculture, 159 F.3d 1194, 1198 (9th Cir.1998) (stating that "while beyond dispute that the APA does not provide an independent basis for subject matter jurisdiction, a federal court has jurisdiction pursuant to 28 U.S.C. § 1331 over challenges to agency action as claims arising under federal law, unless a statute expressly precludes review."); Proyecto San Pablo v. INS, 189 F.3d 1130, 1136 n. 5 (9th Cir.1999) (same). Thus, as discussed in Section IV.B, infra, because Plaintiff states a claim under the APA, this Court has federal-question jurisdiction in conjunction with the APA.

B. Mandamus Act

The Mandamus Act vests a district court with original jurisdiction over "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. Relief under the mandamus act and the APA are virtually equivalent when a petitioner seeks to compel an agency to act on a nondiscretionary duty. Independence Mining Co., Inc. v. Babbitt, 105 F.3d 502, 507 (9th Cir.1997). The Mandamus Act, however, "is intended to provide a remedy only if the plaintiff has exhausted all other avenues of relief and only if the defendant owes him a nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 603-04, 104 S. Ct. 2013, 80 L. Ed. 2d 622 (1984). As discussed in Section IV.A, infra, because Plaintiff can proceed under the Mandamus Act, this Court has mandamus jurisdiction.^[4]

Thus, contrary to Defendants' assertions, this Court has subject-matter jurisdiction over this matter in the first instance. The Court must next consider Defendants' argument that 8 U.S.C. § 1252(a)(2)(B)(ii) divests this Court of jurisdiction.

C. Effect of 8 U.S.C. § 1252(a)(2)(B)(ii)

Plaintiff seeks to compel Defendants to expedite adjudication of this I-485 application, (docket # 1) Title 8 U.S.C. § 1255 governs the adjudication of an I-485 application for adjustment of status and provides that an alien's status "may be adjusted by the Attorney General,^[5]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 permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." Title 8 U.S.C. § 1255(a) (emphasis added).

Defendants argue that 8 U.S.C. § 1252(a)(2)(B)(ii) divests this Court of jurisdiction because the adjudication of an adjustment of status application is expressly committed to the discretion of the USCIS. (docket # 30 at 5)(see, footnote 5, supra) Section 1252(a)(2)(B) provides:

Notwithstanding any other provisions of law (statutory or nonstatutory) ... no court shall have jurisdiction to review —

(i) any judgment regarding the granting of relief under section ... 1255, or

(ii) any other decision or action of the Attorney General or Secretary of Homeland Security the authority for which is specified under this subchapter

[8 U.S.C. § 1151, et seq.] to be in the discretion of the Attorney General or the Secretary of Homeland Security....

8 U.S.C. § 1252(a)(2)(B).

Defendants state that although subsection (i) is inapplicable because there has not been a "judgment regarding the granting of relief in this case, "subsection (ii), which applies broadly to `any other decision or action,' precludes this Court's review of Plaintiffs claims." (docket # 30 at 5) Defendants contend that because "decisions or actions" — including the pace of processing an I-485 application — related to the adjustment of status fall under the discretionary authority of USCIS, they are not subject to judicial review pursuant to § 1252(a)(2)(B)(ii).^[6] (docket # 30)

Title 8 U.S.C. § 1252(a)(2)(B)(ii) provides that courts lack jurisdiction to review a "decision or action" that is "specified under [Subchapter II, Chapter 12, Title 8 of the United States Code, § 1151 to 1378] to be in the discretion" of the USCIS. Id. Section 1255(a) specifies that the authority to adjust the status of an applicant is within the discretion of USCIS. 8 U.S.C. § 1255(a). Thus, as Defendants claim, docket # 30 at 5, if Plaintiff were challenging USCIS's denial of his 485 application, § 1252(a)(2)(B) (i) might prohibit judicial review.^[7] Plaintiff, however, challenges USCIS's failure to adjudicate his 1 — 485 application within a reasonable time. "Section 1255(a) is silent, as are other statutes," as to whether USCIS has discretion in deciding "if and when" to adjudicate adjustment applications. Ren v. Mueller, No. 6:07-CV-790-Orl-19-DAB, 2008 WL 191010, * 5 (M.D.Fla. Jan.22, 2008). See also, Wang v. Chertoff, 2008 WL 681839 (W.D.Wash. March 7, 2008).

Section 1252(a)(2)(B)(ii) strips this Court of jurisdiction only over acts "the authority for which is specified under [8 U.S.C. §§ 1151-1378] to lie within the discretion of the Government". Spencer Enters., Inc. v. United States, 345 F.3d 683, 688 (9th Cir.2003) (quoting § 1252(a)(2)(B)(ii)) (emphasis added). The Court must narrowly construe this provision and must not "`expand[] it beyond its precise language.'" Wang, 2008 WL 681839, * 3 (quoting ANA Int'l, 393 F.3d at 891). In determining whether this section precludes judicial review in this case, the Court is mindful of the strong presumption in favor of judicial review of agency actions. INS v. St. Cyr, 533 U.S. 289, 298, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001).

Defendants cite several district court cases in support of their argument that § 1252(a)(2)(B)(ii) precludes judicial review of the pace at which the Government reviews adjustment-of-status applications, (docket # 30); see e.g., Grinberg v. Swacina, 478 F. Supp. 2d 1350, 1353 (S.D.Fla. 2007) (holding that § 1252(a)(2)(B)(ii) precludes judicial review of the pace at which adjustment of status application is processed, not merely USCIS's ultimate decision on the application); Safadi v. Howard, 466 F. Supp. 2d 696, 698 (E.D.Va.2006) (holding that § 1252(a)(2)(B) precludes judicial review of any discretionary decision or action of USCIS, including pace at which adjustment application proceeds); Jiuru Hu v. Chertoff No. Civ. S-06-2805 WBS EFB, 2007 WL 1515067, * 6 (E.D.Cal. May 22, 2007) (pace at which USCIS adjudicates I-485 application is discretionary^[8]); Li v. Chertoff, 482 F. Supp. 2d 1172, 1178 (S.D.Cal.2007) (finding that court lacked subject-matter jurisdiction over plaintiffs mandamus petition because "as long as USCIS is making reasonable efforts to complete the adjudication, the pace required to complete that process is committed to USCIS's discretion.").

Defendants specifically contend that the word "action" in § 1252(a)(2)(B)(ii) refers to an "ongoing process or series of acts," and, therefore, the pace at which USCIS processes 1 — 485 applications constitutes a discretionary "action" that cannot be reviewed, (docket # 30 at 6-8) In support of this argument, Defendants rely on an unpublished and unsigned, 15-page minute entry, Borisov v. Gonzales, CV 06-8240-VBF (JWJx) (C.D.Cal., August 3, 2007) (attached to docket # 30 as Exh. 2) and Safadi v. Howard, 466 F. Supp. 2d 696 (E.D.Va.2006). In both cases, the district courts held that because the plain meaning of "action" means "an act or series of acts," the term "encompasses any acts or series of acts that is discretionary within the adjustment of status process ... including the completion of background and security checks and the pace at which the process proceeds." Safadi, 466 F.Supp.2d at 699; Borisov, CV 06-8240. In other words, because the pace of adjudication is part of the "ongoing adjudication process" that comprises "action" on the part of USCIS, ergo, § 1252(a)(2)(B)(ii) barred judicial review. Safadi 466 F.Supp.2d at 699-700.

The reasoning of Safadi and Borisov, however, is neither binding on this Court nor persuasive. These cases effectively, and illogically, hold that "inaction" is tantamount to "action." Kamal v. Gonzales, No. 07C 4840, 2008 WL 597279, * 5 (N.D.Ill, March 3, 2008) (citing Liu v. Novak, 509 F. Supp. 2d 1, 7 (D.D.C.2007) (finding that "the argument in Safadi essentially finds that inaction is within the `plain meaning' of action. The established body of administrative law though, distinguishes between the two.")).

Defendants also rely on the rationale of the Borisov and Safadi that the pace of adjudication falls under the discretion of the USCIS because Congress included no statutory time limits in § 1255(a) for the adjudication of I-485 applications, (docket #30 at 6-8) Defendants argue that the absence of such temporal limits expresses Congress' intent to vest the USCIS "with complete discretion over the process of adjudicating an I-485 application. This discretion necessarily includes not only whether to grant an adjustment, but also how and when to do so." (docket # 30 at 6)

To preclude judicial review, however, "`congressional intent to limit federal jurisdiction, generally, must be clear and convincing.'" Kamal, 2008 WL 597279, * 5 (quoting Iddir v. INS, 301 F.3d 492, 496 (7th Cir.2002)). In this Court's view, the mere absence of a statutory time limit is insufficient evidence of Congress' intent to preclude judicial review over challenges to the adjudication of adjustment of status applications. See, Kamal, 2008 WL 597279, * 5(citing Saleem v. Keisler, 520 F. Supp. 2d 1048, 1054 (W.D.Wis.2007)) (finding that the absence of a statutory deadline for making a decision alone is not sufficient to support an inference that Congress intended to remove jurisdiction). Numerous district courts within the Ninth Circuit and elsewhere which have addressed this specific issue overwhelmingly conclude that "[s]ection 1255(a) does not specify that the government has discretion over the pace of adjudicating 1 — 485 applications. Neither § 1255(a) nor any other statute provides the `specified' discretionary authority over the pace of adjudicating applications for adjustment of status that § 1252(a)(2)(B)(ii) demands." Wang, 2008 WL 681839, * 3 (citing Spencer, 345 F.3d at 690). Thus, these courts have held that the pace at which USCIS processes I-485 applications is nondiscretionary and that § 1252(a)(2)(B)(ii) does not bar judicial review. See, e.g., Kamal v. Gonzales, No. 07 C 4840, 2008 WL 597279, * 5 (N.D.Ill., March 3, 2008); Gianni v. Curda, No. 2:07-CV-1478-GEB-KJM, 2008 WL 479991 (E.D.Cal, Feb.19, 2008); Ren, 2008 WL 191010, * 6 (holding that the "INA does not specify that the decision whether to adjudicate adjustment applications is within the discretion of the USCIS; therefore the jurisdiction stripping provision in Title 8, Section 1252(a)(2)(B)(ii) of the [USC] does not apply."); Amirparviz v. Mukasey, No. C07-1325RAJ, 2008 WL 313931, * 3 (W.D.Wash. Feb.4, 2008); Wang v. Chertoff, 550 F. Supp. 2d 1253, 2008 WL 681839 (W.D.Wash.2008); Liu v. Chertoff, No. CV-06-1682-ST, 2007 WL 2435157, * 8 (D.Or. Aug.29, 2007); Sun v. Gonzales, No. CV-07-180-AMJ, 2007 WL 3548280, * 4 (E.D.Wash. Nov.15, 2007); Dong v. Chertoff, 513 F. Supp. 2d 1158, 1163 & n. 7 (N.D.Cal.2007) (reviewing nine prior decisions); Liu Duan v. Zamberry, 2007 WL 626116 (W.D.Pa.2007) (stating that "[a]lthough the speed of processing may be `discretionary' in the sense that it is determined by choice, and that it rests on various decisions that Defendants may be entitled to make, it is not discretionary in the manner required by the jurisdiction-stripping language of the IIRIRA"); Aboushaban v. Mueller, No. C-06-1280-BZ, 2006 WL 3041086, * 2 (N.D.Cal.2006) (defendants have a duty to adjudicate plaintiffs application and to do so within a reasonable time).

Although the Ninth Circuit has not addressed the precise issue before this Court, it recently held that 8 U.S.C. § 1252(g) which precludes "jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action of the Attorney General to commence proceedings, adjudicate cases, or execute removal orders...." did not divest the Ninth Circuit of jurisdiction to review the BIA's final order of removal where petitioner's challenge was based on actions taken by a corrupt governmental employee "prior to any decision made by the Attorney General to commence proceedings against her." Shin v. Mukasey, 519 F.3d 901, 904-05 (9th Cir.2008). The statutory provisions at issue in Shin and in this case are similar in precluding judicial review of a "decision or action" of the Attorney General. Compare, 8 U.S.C. § 1252(g) with 8 U.S.C. § 1252(a)(2)(B)(ii). The facts in Shin are analogous to this case where Plaintiff, like petitioner in Shin, challenges the events preceding a decision by the USCIS, rather than the final decision. Thus, the reasoning of Shin applies and supports a finding that § 1252(a)(2)(B)(ii) does not preclude judicial review over actions taken by governmental employees before a final decision of USCIS on an 485 application.

In view of the foregoing discussion, this Court follows the majority of district courts within the Ninth Circuit,^[9] and the vast number of district courts elsewhere, in holding that 8 U.S.C. § 1252(a)(2)(B)(ii) does not divest this Court of jurisdiction in this matter to consider the pace at which USCIS adjudicates Plaintiffs I-485 application. The "strong presumption in favor of judicial review of agency action," I.N.S. v. St. Cyr, 533 U.S. 289, 298, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001), supports this conclusion.

IV. Cross-Motions for Summary Judgment

Plaintiff seeks summary judgment compelling the USCIS to adjudicate his I-485 application because the delay in adjudicating that application is unreasonable. Defendants filed a cross-motion for summary judgment requesting that the Court deny Plaintiffs claims.

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). On a motion, for summary judgment, a district court draws all inferences from the admissible evidence in the light most favorable to the non-moving party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party has met its burden, the opposing party must show that there is a genuine issue of material fact for trial. Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The opposing party must present significant and probative evidence to support its claims or defense. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir.1991). When confronted with purely legal questions, the court does not defer to the non-moving party. The Court now turns to the merits of Plaintiffs claims.

A. Mandamus Relief

The Court first addresses Plaintiffs claim under the Mandamus Act, 28 U.S.C. § 1361. Title 28 U.S.C. § 1361 grants district courts 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. The All Writs Act further provides that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). Plaintiff seeks a writ of mandamus from this Court, (docket # 1) A district court may issue a writ of mandamus only if: (1) plaintiff has a clear right to relief; (2) defendants have a clear duty to act, and (3) no other adequate remedy is available. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir.2003). Mandamus cannot be used to compel or review discretionary acts of governmental officials. Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir.1983). The Supreme Court has consistently cautioned that "the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S. Ct. 188, 66 L. Ed. 2d 193 (1980) (citing Will v. United States, 389 U.S. 90, 95, 88 S. Ct. 269, 19 L. Ed. 2d 305 (1967)); Kerr v. U.S. Dist. Ct. N. Dist. Cal, 426 U.S. 394, 403, 96 S. Ct. 2119, 48 L. Ed. 2d 725 (1976) (stating that "[a] judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would run the real risk of defeating the very policies sought to be furthered by that judgment of Congress.").

Defendants argue that Plaintiffs mandamus claim should be dismissed because the decision regarding the adjustment of status is a discretionary one and Plaintiff neither has a clear right to adjudication of his application within a reasonable time nor does the USCIS have a duty to adjudicate his application, (docket # 30 at 14)

1. Duty to Act

The Supreme Court has indicated that courts should consider "agency regulations that have the force of law" to determine whether agency action is required by law. Norton v. S. Utah Wilderness Alliance ("SUWA"), 542 U.S. 55, 65, 124 S. Ct. 2373, 159 L. Ed. 2d 137 (2004). Language in an agency's decisions or regulations may "create[] a commitment binding on the agency." Id. at 71, 124 S. Ct. 2373. "Thus, when an agency uses mandatory language like `shall,' a court should find there is a legal duty to act." Ren, 2008 WL 191010, * 7 (citing SUWA 542 U.S. at 65, 124 S. Ct. 2373); Singh, 470 F.Supp.2d at 1067(noting that USCIS conceded a mandatory duty to act on adjustment of immigrant status applications). This Court agrees with Plaintiff that language in the applicable regulations indicates that USCIS has a nondiscretionary duty to process and make a decision on his adjustment of status application. For example, Title 8 C.F.R. § 245.2(a)(5) states that "the applicant shall be notified of the decision of the director and, if the application is denied, the reasons for the denial." (emphasis added). Title 8 C.F.R. § 245.6 states that "[e]ach application for adjustment of status under this part shall be interviewed by an immigration officer." (emphasis added). See also, Saleem, 520 F.Supp.2d at 1054 ("finding that these regulations are drafted on the assumption that defendants will decide each application."); Singh, 470 F.Supp.2d at 1067 (indicating that regulations reflect a nondiscretionary duty to process applications for adjustment of status). See also, Liu v. Chertoff, 2007 WL 1202961, * 3; Camerena v. Chertoff, No. 07-C-822, 2008 WL 161481, * 3 (N.D.Ill, Jan.16, 2008) (USCIS "has a nondiscretionary duty to adjudicate applications for adjustment of status within a reasonable time."); He v. Chertoff, 528 F. Supp. 2d 879 (N.D.Ill.2008) (stating that adjustment of status "applicants have a clear right to adjudication of their cases within a reasonable time."); Agbemaple v. INS, No. 97-8547, 1998 WL 292441, at *2 (N.D.Ill. May 18, 1998) (holding that section 1255 "provided a right to an adjudication ... [and] by necessary implication the adjudication must occur within a reasonable time. A contrary position would permit the INS to delay indefinitely.").

2. Right to Relief

Defendants further argue that Plaintiff does not have a right to relief because there are no statutory deadlines for acting on I-485 applications, (docket # 30 at 13-14)

Plaintiff argues that § 555(b) of the APA imposes a "reasonable time" requirement for the adjudication of the 1 — 485 application, (docket # 1 at 4); 5 U.S.C. § 555(b) (stating that "[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it.") Id. (emphasis added). Plaintiff argues that this "reasonable time" limitation on adjudication is nondiscretionary, and that Defendants should be compelled under the Mandamus Act to complete adjudication of his 1^485 application, (docket # 27) Additionally, § 706 of the APA provides that a "reviewing court shall (1) compel agency action unlawfully withheld or unreasonably delayed...." Under the APA, if the USCIS has unreasonably delayed the adjudication of Plaintiffs I-485 application, the APA provides Plaintiff with a clear right to relief. Ren, 2008 WL 191010, * 9 (finding that § 555(b) and § 706 of the APA obligate USCIS to adjudicate adjustment of status applications within a reasonable time).

Many district courts agree that the pace at which USCIS adjudicates I-485 applications is nondiscretionary and that mandamus jurisdiction exists over a challenge to the adjudication of an 1 — 485 application. See e.g., Ren, 2008 WL 191010, * 7; Wang, 2008 WL 681839, * 4; Guoping Ma v. Gonzales, No. C07-122RSL, 2007 WL 1655188,* 3 (W.D.Wash. June 5, 2007); Sun, 2007 WL 3548280, * 4 (collecting cases). Relying on the reasoning of these courts, the Court finds that Plaintiff has a right to relief.

3. Availability of Other Remedies

As to the third element of mandamus relief, Plaintiff has no other adequate remedy available. Plaintiff alleges he has exhausted all administrative remedies available to him and Defendants do not dispute that he has done so. (docket # 1) District courts have consistently found that there is no adequate alternative remedy available to aliens seeking adjudication of adjustment of status applications. Ren, 2008 WL 191010, * 9 (citing Konchitsky v. Chertoff, No. 5:07cv294-RMW, 2007 WL 2070325, * 6 (N.D.Cal., July 13, 2007); Singh, 470 F.Supp.2d at 1071-72). This Court cannot discern a reasonable alternative and, thus, concludes that Plaintiff has no adequate alternative remedy. Because Plaintiff has a clear right to relief, Defendants have a clear duty to act, and there are no adequate alternative remedies available to Plaintiff, this Court has jurisdiction to issue a writ of mandamus under 28 U.S.C. § 1361 against the USCIS and its officers.

B. Claim for Relief Under the APA

Plaintiff alternatively seeks relief under the APA. (docket # 1) The APA provides that "[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." 5 U.S.C. § 555(b). Section 706(1) of the APA authorizes a federal court to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). To be entitled to relief under the APA, Plaintiff must establish a nondiscretionary duty to act and, in the case where the challenge is for delay, must show that the delay is unreasonable. Norton v. S. Utah Wilderness Alliance ("SUWA"), 542 U.S. 55, 63 & n. 1, 124 S. Ct. 2373, 159 L. Ed. 2d 137 (2004); 5 U.S.C. § 706(1) (authorizing courts to "compel agency action unlawfully withheld or unreasonably delayed."). The APA, however, exempts from judicial review actions "committed to the agency discretion bylaw." 5 U.S.C. § 701(a).

1. Mandatory Duty to Act

As previously discussed, USCIS has enacted regulations that establish its mandatory duty to act on Plaintiffs I-485 application within a reasonable time. One such regulation declares that "an applicant shall be notified of the decision of the director [on an application for adjustment of status] and, if the application is denied, the reasons for the denial." 8 C.F.R. § 245.2(a)(5)(i) (emphasis added). This regulation serves as a basis for a mandatory duty underlying Plaintiffs APA claim. SUWA 542 U.S. at 65, 124 S. Ct. 2373; Wang, 2008 WL 681839 * 4. Additionally, Section 555(b)'s "reasonable time" standard is a sufficient guide to review USCIS's action. See, Sun, 2007 WL 3548280, * 5; Liu, 2007 WL 2435157, * 8 (finding that because "federal courts routinely assess the `reasonableness' of the pace of agency action under the APA, this court believes a meaningful standard exists against which to judge defendants' actions or lack thereof with regard to Plaintiffs 485 application.") (citing Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir. 1999)). Pursuant to the APA, in conjunction with the federal question statute, Plaintiff has a right to have his I-485 application adjudicated within a reasonable time.

2. Delay in Adjudicating Application

Having determined that USCIS has a mandatory duty to act on Plaintiffs I-485 application for adjustment of status, the Court must determine whether USCIS's delay in adjudicating Plaintiffs application has been reasonable.

The APA directs agencies to resolve I-485 applications within a reasonable time. 5 U.S.C. § 555(b). Plaintiff alleges that Defendants violated § 555(b) of the APA, which specifically provides that "[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable" time, each agency shall proceed to conclude a matter presented to it." As previously discussed, the Court has jurisdiction to review Defendants' failure to adjudicate Plaintiffs I-485 application under § 706(1) of the APA, which authorizes a reviewing court to "compel agency action unlawfully withheld or unreasonably delayed." Section 706 "leaves in the courts the discretion to decide whether agency delay is unreasonable." Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir.1999). The Ninth Circuit has adopted a six-factor test for determining whether agency delay is unreasonable:

(1) the time agencies take to make decisions must be governed by a `rule of reason;'

(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;

(3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;

(4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;

(5) the court should also take into account the nature and extent of the interests prejudiced by the delay; and

(6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.

Brower v. Evans, 257 F.3d 1058, 1068 (9th Cir.2001) (citing Telecomms. Research & Action Ctr. v. F.C.C. ("TRAC"), 750 F.2d 70, 80 (D.C.Cir.1984)) (six factors referred to as the "TRAC factors").

a. First TRAC Factor

The first TRAC factor requires that a "rule of reason" guides the agency's decision making. Defendants assert that name checks are processed on a "first in, first out" basis. (Cannon Decl. ¶ 19) Although the "FBI cannot provide a specific or general time frame for completing any particular name check submitted by USCIS," Cannon Decl. ¶ 20, "[h]istorically, approximately 68 percent of the name checks submitted by USCIS are electronically checked and returned to USCIS as having `No Record' within 48-72 hours." (Cannon Decl. ¶ 13) Indeed, the processing of a name check "depends upon a number of factors, including where in the processing queue the name check lies; the workload of the analyst processing the name check; the volume of priority checks the analyst must process ... the number of... possible matches that must be retrieved, reviewed and resolved; the number of records from various Field Offices that must be retrieved, reviewed and resolved; and more generally, the staff and resources available to conduct the checks." (Id.) As a result of these numerous factors, some name checks take one week, while others are still pending after years. See, Wang, 2008 WL 681839, * 5. Thus, the "rule" appears to be that once USCIS submits a name check request to the FBI, USCIS abdicates its responsibility for that name check. Id.

Defendants have not provided evidence confirming that Plaintiffs application has been processed in a "first in, first out" fashion, nor have they provided evidence as to why the FBI needs over six years to conduct a name check on Plaintiff. (Cannon Decl. ¶ 21-22); (Harrell Decl. ¶ 12) Thus, there is "no evidence that a `rule of reason' is at work in this case." See, Chen, 2007 WL 2570243, * 4 (in discussing first TRAC factor, court, found it significant that defendants provided no evidence confirming that plaintiffs application was processed in a "first in, first out" manner and there was no evidence why FBI needed so long to complete a name check); Sun, 2007 WL 3548280,* 8 (E.D.Wash., 2007)(same).

b. Second TRAC Factor

Under the second, TRAC factor, the Court considers any Congressional expression of a "timetable or other indication of the speed with which it expects the agency to proceed." TRAC, 750 F.2d at 80.

Defendants argue that there is neither a statutory nor regulatory timetable for FBI name checks for USCIS's adjudication of an application to adjust status.^[10] (docket #30) Defendants contend that in the absence of a statutory or regulatory time frame, the Court should consider the factors — including the "large volumes of petitions and applications," the "extensive background checks," and "the limited resources available" — that contribute to the backlogs faced by USCIS and the FBI. (docket # 30 at 15; Cannon Decl. ¶¶ 16-20; Harrell Decl. ¶ 8)

The lack of a specific timetable does not mean that USCIS can take an infinite amount of time to process Plaintiffs adjustment of status application. Chen, 2007 WL 2570243, * 4. Although INA contains no time frame for adjudication of adjustment of status applications, "Congress sets a normative expectation and standard in `The Immigration Services and Infrastructure Improvements Act of 2000' of a reasonable processing time for an immigrant benefit application as no more than 180 days after initial application." Liu, 2007 WL 2435157, * 9 (citing 8 U.S.C. § 1571 which provides "It is the sense of Congress that the processing of an immigrant benefit application should be completed not later than 180 days after the initial filing of the application...."). See also, Konchitsky v. Chertoff, 2007 WL 2070325, * 4 (N.D.Cal.2007) (citing 8 U.S.C. § 1571); Abbasfar v. Chertoff, No. C07-1155-PVT, 2007 WL 2409538, * 3 (N.C.Cal.2007) ("8 U.S.C. § 1571 provides a meaningful standard for the pace of adjudication of adjustment of status applications.").

Additionally, Congress has mandated that the Attorney General "shall take such measures as may be necessary to ... reduce the backlog in the processing of immigration benefit applications, with the objective of the total elimination of the backlog not later than one year after the enactment of this Act." 8 U.S.C. § 1573.^[11] This section also mandates that future backlogs be prevented. Id.

Plaintiffs application has been pending since July 1, 2002, nearly six years. Far longer than the 180-day standard set forth in 8 U.S.C. § 1571(b).

c. Third and Fifth TRAC Factors

According to the third TRAC factor, delays affecting "health and human welfare," rather than mere economic interests, are less tolerable. Plaintiff claims that because his I-485 application is unresolved, he "feels his immigration status is insecure and that he cannot stabilize his life." (docket # 1 at 3) He further contends that his "immigration options ... are all on hold because he is not a permanent resident. The unreasonable and unjustified delay in his application for permanent resident ... delays everything for him." (docket # 1 at 4) As Plaintiff asserts, the delay in processing his I-485 application slows the process of obtaining permanent residence and, ultimately, citizenship. The burdens Plaintiff alleges include both economic matters and issues related to human welfare. See e.g., Singh v. Still, 470 F. Supp. 2d 1064, 1069 (N.D.Cal.2007) (finding that human health and welfare are at stake in a case involving delay of an I-485 application); Chen, 2007 WL 2570243, * 5.

d. Fourth TRAC Factor

The fourth TRAC factor requires the Court to consider the effect of expediting Petitioner's application on other USCIS priorities. USCIS contends that expedited name checks can cause delay in processing other name checks and favors applicants who are financially able to hire counsel and file mandamus actions, (docket 30 at 15-16) Defendants further argue that permitting immigration applicants to use mandamus to "cut in line" would "open[] the floodgates for immigration-related mandamus actions ... [and] would shorten the delay for some, only to lengthen it for others," resulting in no net gain in processing, (docket # 30 at 16) Although this is a valid and fair concern, it carries little weight in this case. Plaintiff is not "cut[ting] in line," he has been patiently waiting in line for nearly six years without any indication that he is nearing the front of the line. This Court will not deny relief to Plaintiff whose application has been unreasonably delayed merely because there may be others, indigent or not, whose applications have perhaps also been unreasonably delayed.

e. Sixth TRAC Factor

Pursuant to the sixth TRAC factor, the Court need not find any impropriety on the agency's part to find agency action has been unreasonably delayed. There is no evidence of an improper purpose underlying the Government's delay in this case.

In addition to the TRAC factors, the reasonableness of USCIS's delay must also be judged in light of the Government's justifications for the delay in processing Plaintiffs application. See, Fraga v. Smith, 607 F. Supp. 517, 522 (D.Or.1985) (stating that in considering administrative delay, in addition to the TRAC factors, courts should also consider the resources which Congress has supplied the agency and the impact of the delays on the applicant's interests). Defendants argue that national security and public safety concerns mandate the use of name checks, (docket # 30 at 15) Defendants further argue that the sheer number of name checks that the Government must process causes delays, (docket # 30 at 15; Cannon Decl. ¶¶ 16-20; Harrell Decl. ¶ 9)

The Government's general duty to protect public safety and national security does not justify the delay in this particular case. See, Singh, 470 F.Supp.2d at 1069 (finding that "mere invocation of national security is not enough to render agency delay reasonable per se.") Although these are both important and legitimate concerns, Defendants provide no specific reasons why Plaintiffs I-485 application raises either public safety or national security concerns, (see, docket # 30; Harrell Decl. ¶ 12; Cannon Decl. ¶¶ 22-23) Plaintiff has lived in the United States for nearly seven years. No evidence has been provided the Court that during his nearly seven years in the United States, Plaintiff has been anything other than a law-abiding, hardworking immigrant, searching for a better life for his family and himself than they experienced in his now war-torn, former country of Iraq. An order compelling USCIS to adjudicate Plaintiffs I-485 application does not deprive the Government of options if it discovers that Plaintiff is, in fact, a threat to national security or public safety. Singh, 470 F.Supp.2d at 1070. For example, Defendants could arrest Plaintiff, initiate deportation proceedings, or move to rescind the grant of residency. See, Sun, 2007 WL 3548280, * 9; Wang, 2008 WL 681839, * 6 (citing Singh, 470 F. Supp. 2d 1064, 1070) (noting the Government's ability to address security threats that permanent resident aliens pose). The Government's failure to act on Plaintiffs application does not advance its concerns regarding public safety or national security.

Defendants also attempt to justify the delay in processing Plaintiffs I-485 application by citing the sheer volume of name checks that USCIS requests. Despite the large number of requests, USCIS processes most I-485 applications in less than 18 months. (Harrell Decl. 10, citing www. uscis.gov); see also Liu, 2007 WL 2435157, * 9 (noting that only 1% of name checks are not completed within the first 60 days). The central issue in this case is why is Plaintiffs application is taking so long to process. Defendants' citation to the large number I-485 applications and related name checks does not provide any specific insight into why Plaintiffs application has been pending for nearly six years, well beyond the 180 days recommended by Congress and, "more importantly, well beyond the norm for USCIS." Liu, 2007 WL 2435157, * 9 (noting that significant delays, particularly over uncomplicated matters, cannot be justified by assertions of overwork) (citing Dabone v. Thornburgh, 734 F. Supp. 195, 203 (E.D.Pa. 1990)).

The Government does not offer any evidence that explains why Plaintiffs application has languished for nearly six years. The lack of evidence regarding the delay in adjudicating Plaintiffs application undermines the Government's position that Plaintiff is not entitled to relief. See, Wang, 2008 WL 681839, * 6; Ren, 2008 WL 191010, * 11 ("[T]he boilerplate declaration of Mr. Cannon that describes at length the backlog in the FBI and the general problem with increased security clearance procedures in the post-9/11 world ... does not explain why Plaintiffs application has now been pending for almost four (4) years. Absent any compelling explanation for this delay as it relates to Plaintiffs application, the Court cannot find this delay reasonable....") (emphasis in original). Hopefully, the reason that no expedited request has been made since January 26, 2007, the date Plaintiff filed his Complaint, is a reason other than Plaintiffs exercise of his First Amendment right to seek judicial redress against his new government. Liu, 2007 WL 2435157, * 9 (noting that since February 2007, there may be a new USCIS policy "not to make any expedited requests simply because a lawsuit is filed, regardless of the length of the delay."). McDonald v. Smith, 472 U.S. 479, 482, 105 S. Ct. 2787, 86 L. Ed. 2d 384 (1985) (the right of access to the courts is an aspect of the First Amendment right to petition); Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 309-310, 90 S. Ct. 1731, 26 L. Ed. 2d 252 (1970) (citing Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 73 S. Ct. 472, 97 L. Ed. 576 (1953)) (stating that "once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.").

When Plaintiff has been waiting nearly six years for adjudication but others have received decisions much more quickly, it is not sufficient for the Government to blame the delay on the system. The unexplained delay of nearly six years in this case is unreasonable. See, Ren, 2008 WL 191010, * 11 (alleged four-year delay adequately stated claim of unreasonable delay); Gelfer v. Chertoff, No. C06-06724 WHA, 2007 WL 902382, * 2 (N.D. Cal. March 22, 2007 (more than two-year delay not reasonable); Chen, 2007 WL 2570243, * 7 (more than three-year delay, without particularized explanation, is unreasonable); Mazouchi v. Still, No. C-06-07915-RMW, 2007 WL 2070324, * 4-5 (N.D.Cal., July 13, 2007) (four-year delay in completing FBI name check and adjudicating I-485 application held unreasonable); Konchitsky, 2007 WL 2070325, * 6 (in the absence of "a particularized explanation for the delay ... more than two years delay of plaintiffs application [is] unreasonable as a matter of law."); Liu, 2007 WL 2023548, * 4 (E.D.Cal.2007) (two-and-a-half year delay not reasonable, indicating that a lack of "a more particular explanation by Defendants as to the cause of the delay," despite evidence of large volume of applications received and extensive background checks required to process them.); Huang v. Chertoff, No C07-0277 JF, 2007 WL 1831105, * 2 (N.D.Cal. June 25, 2007) (despite national security concerns and increased security checks since 9/11, more than two-year delay is unreasonable as a matter of law if there is no particular explanation as to cause of the delay); Singh, 470 F.Supp.2d at 1069 (noting that "the mere invocation of national security is not enough to render agency delay reasonable per se"); Han Cao v. Upchurch, 496 F. Supp. 2d 569, 577 (E.D.Pa.2007) (four-year delay presumptively unreasonable); Elkhatib v. Butler, No. 04-22407-CIV, 2005 WL 5226742, * 2 (S.D.Fla. June 7, 2005) (four-year delay unreasonable);

In accordance with the foregoing facts and law, the Court concludes that jurisdiction is proper under the APA and 28 U.S.C. § 1331 to compel USCIS to adjudicate Plaintiffs application for adjustment of status which has been pending for nearly six years.

V. Conclusion

The Court has subject-matter jurisdiction over Plaintiffs claims pursuant to the Mandamus Act, 28 U.S.C. 1361, and under 28 U.S.C. § 1331 in conjunction with the APA. Based on the absence of a genuine dispute as to any issue of material fact and in view of the lack of any explanation for the delay relating specifically to the processing of Plaintiffs application for adjustment of status, the Court finds that the nearly six-year delay in adjudicating Plaintiffs I-485 application is unreasonable. As a result, Plaintiff is entitled to summary judgment.

Accordingly,

IT IS ORDERED that Plaintiffs Motion for Summary Judgment, docket # 27, is GRANTED and that Defendants' Cross Motion for Summary Judgment, or in the alternative, Motion to Dismiss, docket # 30, is DENIED.

IT IS FURTHER ORDERED that Defendants shall complete the adjudication of Plaintiffs I-485 application within sixty (60) days from the date of this Order.

NOTES

[1] "Harrell Decl." refers to the declaration of Charles B. Harrell, USCIS's Supervisory District Adjudications Officer in Phoenix, Arizona, attached to Defendants' Response in Opposition to Plaintiff's Motion for Summary Judgment, (docket # 30-5)B

[2] "Cannon Decl." refers to the declaration of Michael A. Cannon attached to Defendants' Response in Opposition to Plaintiff's Motion for Summary Judgment, (docket # 30-3)

[3] Defendants also suggest that Plaintiff's failure to name the Federal Bureau of Investigation ("FBI"), the agency responsible for conducting name checks, as a defendant is fatal to Plaintiff's suit, (docket # 30 at 2) The Court disagrees. The FBI's involvement in adjudicating I-485 applications arises not by statute or duty otherwise imposed by law, but by a contract between USCIS and the FBI. Konchitsky v. Chertoff, No. C-07-00294-RMW, 2007 WL 2070325, * 6 (N.D.Cal., July 13, 2007). In view of that arrangement, FBI may lack a clear duty to Plaintiff, and thus, this Court lacks mandamus jurisdiction over the FBI. Eldeeb v. Chertoff, No. 8:07-CV-236-T-17EAJ, 2007 WL 2209231,* 21-22 (E.D.Fla., July 30, 2007). Similarly, absent any legal duty owed to Plaintiff that has been violated, Plaintiff could not state a claim against the FBI under the APA. Konchitsky, 2007 WL 2070325, *6 (noting that "courts squarely addressing the issue of whether they have jurisdiction to compel the FBI to perform name checks in connection with adjustment of status petitions have overwhelmingly concluded that they do not.") Thus, Plaintiff prudently chose not to name FBI as a defendant. The Court notes, however, that the USCIS has the authority to direct the FBI to conduct a name check on an expedited basis, (docket # 30, Cannon Decl. ¶ 19) (stating that "the FBI generally processes name checks on a `first-in, first-out' basis unless USCIS directs that a particular name check be expedited.")

[4] Because Plaintiff is entitled to relief under the APA, the Court could avoid reaching Plaintiff's claim for relief under the Mandamus Act. See, Wang v. Chertoff, 550 F. Supp. 2d 1253, 2008 WL 681839 (W.D.Wash., March 7, 2008) (declining to engage in separate analysis of claims under 28 U.S.C. § 1361 and APA because those provisions provide "essentially the same" avenues for relief); Gelfer v. Chertoff, No. C-06-06724-WHA, 2007 WL 902382,*3 (N.D.Cal., March 22, 2007) (declining to address existence or lack of mandamus jurisdiction due to availability of relief under APA). The Court, however, chooses to address this claim.

[5] Subsequent enactments have transferred authority over § 1255(a) adjustments to the Secretary of the Department of Homeland Security, and in turn to the USCIS as the Secretary's delegate. 6 U.S.C. § 27 1 (b)(5) (transferring power from former Immigration and Naturalization Service to USCIS); 6 U.S.C. § 271(b)(5), 6 U.S.C. § 557; 8 C.F.R. § 245.2(a)(1)(2008). Accordingly, the Court will refer to USCIS as the governmental entity with the power to adjust immigrant status.

[6] Defendants further argue that § 701(a)(2) of the APA strips this Court of jurisdiction, (docket # 30 at 9). Title 5 U.S.C. § 701(a)(2) provides that the APA does not apply to "agency action committed to agency discretion by law" or where "statutes preclude judicial review." The Court need not consider this provision, because the bar in § 1252(a)(2)(B)(ii) applies more broadly against the exercise of jurisdiction that the APA bar. See, Wang v. Chertoff, 550 F. Supp. 2d 1253, 1256, n. 1, 2008 WL 681839, * 2 n. 1 (W.D.Wash.2008) (citing ANA Int'l Inc. v. Way, 393 F.3d 886, 890-91 (9th Cir.2004)) (noting that "any determination that passes the more stringent test [under § 1252(a)(2)(B)(ii)], remaining subject to judicial review, also passes the lower bar of APA test.").

[7] The Court is not confronted with this issue, however, and does not decide whether § 1252(a)(2)(B) removes jurisdiction over a denial of an I-485 application.

[8] The court in Jiuru Hu commented that "[s]hould USCIS refuse to take any steps whatsoever to resolve a LPR application or employ procedures such that no decision will issue, it might legitimately be said the agency's inaction was not the result of an exercise of discretion at all. The agency would then not be operating within its statutory discretion at all but rather abdicating its statutory duty to adjudicate applications, and under those circumstances, this court could have jurisdiction to review the agency's actions." Jiuru Hu, 2007 WL 1515067, * 4.

[9] See Wang, 2008 WL 681839, * 3 (noting that all of the courts within the Western District of Washington and all of the courts within the Northern District of California, consistent with the majority of district courts within the Ninth Circuit that have considered the issue have concluded that 8 U.S.C. § 1252(a)(2)(B)(ii) does not bar review of the pace of adjudication of an I-485 application.) (citing cases).

[10] On February 8, 2008, USCIS released a memorandum to the field revising adjudication guidance concerning adjustment of status applications. The memorandum directs the field to continue to initiate FBI name checks, but revises prior guidance by directing that where the application is otherwise approvable and the name check request has been pending for more than 180 days, the adjudicator is to approve the I-485 application and proceed with card issuance. Interpreter Releases, Vol. 85, No. 7, February 11, 2008. Because neither party has cited this USCIS memorandum, the Court does not rely upon this USCIS memorandum in reaching its decision. The Court, however, notes that it provides further evidence that USCIS has a nondiscretionary duty to process I-485 applications within a reasonable time.

[11] In addition to this deadline, 8 C.F.R. § 103.2(b)(18) sets forth a detailed timetable "for withholding adjudication of a visa petition or other application if ... an investigation has been undertaken involving a matter relating to eligibility or the exercise of discretion...." However, because neither party has cited this regulation, the Court does not rely on it in resolving the pending motions.