ELLIS, District Judge.
In this mandamus action, plaintiff, Akram Safadi, seeks to compel defendant, Phyllis Howard, District Director of the Washington Field Office of the United States Citizenship and Immigration Services ("USCIS"), to adjudicate immediately his application to adjust to permanent resident status. Defendant has moved to dismiss plaintiffs suit for lack of subject matter jurisdiction, pursuant to Rules 12(b)(1), Fed.R.Civ.P., or alternatively, for failure to state a claim, pursuant to Rule 12(b)(6), Fed.R.Civ.P. In essence, defendant argues there is no jurisdiction over plaintiffs suit because
As this matter has now been fully briefed and argued, it is now ripe for disposition. For the reasons that follow, plaintiffs complaint must be dismissed for lack of subject matter jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii).
The facts may be succinctly stated. In 1983, plaintiff, a citizen of Lebanon, entered the United States as a student and ultimately earned a Ph.D. in engineering. Since 1997, plaintiff has remained in the United States on a temporary work visa. On November 11, 2002, plaintiff filed with the Texas Service Center a "Form I-485, Application to Register Permanent Residence or Adjust Status", ("Application"). Thereafter, on December 11, 2003, plaintiffs Application was sent to the Washington, D.C. District Office in Arlington, Virginia. Then, on or about January 21, 2005, his Application was transferred to the Vermont Service Center.
According to the affidavit of Todd W. Reader, Acting Service Center Director for the Vermont Service Center, USCIS is currently continuing to review information and evaluate plaintiffs eligibility for adjustment of status. At this time, the status of plaintiffs background and security checks is as follows:
As a result of these various security checks, USCIS has concluded that issues remain requiring further inquiry. Accordingly, USCIS is currently reviewing additional
In this case, plaintiff argues that USCIS' continuing review of information has been unreasonably prolonged. As such, plaintiff filed the instant complaint to compel defendant to adjudicate his application "immediately." Distilled to its essence, plaintiff alleges that there is federal district court jurisdiction to review the pace of USCIS's processing and adjudication of an adjustment application where, as here, four years have elapsed since the filing of the adjustment application.
Analysis properly begins with Congress's 2005 amendment to the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2)(B)(ii), which provides:
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 USCIS.
Surely Congress, in passing § 1252(a)(2)(B)(ii), did not intend to preclude from judicial review all discretionary actions involved in the processing of an adjustment application except for the pace of such processing. Indeed, to suggest that Congress intended to except the pace of the process from the general exclusion of judicial review is belied by the complete absence of any statutory time limits on the processing of adjustment applications. Instead, § 1255(a) simply provides that the adjustment application process is subject to the regulations that USCIS may elect to prescribe. Nowhere in the statute is there any reference to time limits for the processing of adjustment of status applications or the need for expedition in doing so. The absence of any such reference is consistent with, and confirmatory of, Congress' intent to confer on USCIS discretion over not just the adjustment of status decision, but also the process employed to reach that result, and to exclude from judicial review the exercise of all that discretion. See Sharkey v. Ganter, 2006 WL 177156, at *4, 2006 U.S. Dist. LEXIS 2607, at *12-13 (S.D.N.Y.2006) (stating that under § 1255(a) USCIS has "wide discretion," thus, under § 1252(a)(2)(B) it is "clear that USCIS has non-reviewable discretion with regard to applications for adjustment of immigration status"). A contrary conclusion would require judicial review in the absence of statutory standards, an unsound result surely not intended by Congress. See El-Khader v. Monica, 366 F.3d 562 (7th Cir.2004) (dismissing complaint for lack of subject matter jurisdiction where Attorney General has statutory discretion and no legal standard exists to evaluate the exercise of this discretion).
While authority on this jurisdictional question is yet sparse, as § 1252(a)(2)(B)(ii) as amended is still young, courts elsewhere have reached essentially similar results for essentially the same reasons. Thus, a 2001 decision from the Southern District of New York dismissed a similar mandamus claim for lack of subject matter jurisdiction because the adjustment process is "wholly discretionary," and therefore, relief is "unavailable for delays in the adjustment process." Zheng v. Reno, 166 F.Supp.2d 875, 880 (S.D.N.Y.2001). Similarly, and more recently, a decision from the Western District of Texas held that mandamus relief was unavailable for a claim of delay in the adjustment process where such delay was due to the continuing completion of security checks. Mustafa v. Pasquerell, 2006 WL 488399, at *5, 2006 U.S. Dist. LEXIS
Plaintiff's argument in support of jurisdiction rests on an untenable distinction between (i) the adjustment decision, which he concedes is a discretionary agency action immune from judicial review, and (ii) the processing of an adjustment application, which he argues is not an "action." In effect, plaintiff argues that the phrase a "decision or action" encompasses only the result of the adjudications, i.e., the decision, and not the process. Plaintiff's argument fails as it would impermissibly render the word "action" superfluous. See Witt v. United Cos. Lending Corp., 113 F.3d 508, 512 (4th Cir.1997) (noting that "courts should disfavor interpretations of statutes that render language superfluous") (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)).
In sum, § 1255(a) vests USCIS with discretion over the entire process of adjustment application adjudication. As such, § 1252(a)(2)(B)(ii) precludes judicial review of any "action," meaning any act or series of acts, included within the ongoing adjudication process and the pace at which that action proceeds.
This conclusion sufficiently disposes of this matter on jurisdictional grounds. It is worth noting, however, that plaintiffs citation of sections 1331, 1361 and the APA do not serve to restore subject matter jurisdiction. Indeed, § 1252(a)(2)(B), which governs here, specifically precludes judicial review notwithstanding § 1361, or any other provision of law. See 5 U.S.C. § 701(a)(2) (providing that the APA does not apply where "statutes preclude judicial review"). Additionally, plaintiff's request for a writ of mandamus, pursuant to 28 U.S.C. § 1361, fails because the defendant does not owe plaintiff a "clear nondiscretionary duty" to process his adjustment of status application at any particular pace or speed. See Pittston Coal Group v. Sebben, 488 U.S. 105, 121, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988) ("The extraordinary remedy of mandamus . . . will issue only to compel the performance of a clear nondiscretionary duty."). Similarly, plaintiffs reliance on the APA to furnish the requisite subject matter jurisdiction fails because, as the APA explicitly provides, judicial review is unavailable where, as here, the action challenged is "committed to agency discretion by law." 5 U.S.C. § 701(a). Moreover, the. APA cannot expand subject matter jurisdiction. See Danilov, 370 F.Supp.2d at 445 (stating that "general grants of jurisdiction may not be relied upon to expand a very specific statute that either grants or limits jurisdiction"). Accordingly, even assuming subject matter jurisdiction existed notwithstanding § 1252(a)(2)(B)(ii), neither the mandamus statute, nor the APA, confer subject matter jurisdiction over plaintiffs claim.
Importantly, not addressed here is the question whether jurisdiction would exist in a district court to review plaintiffs case where USCIS refused altogether to process an adjustment application or where the delay was so unreasonable as to be tantamount to a refusal to process the application. This case presents no such facts. To be sure, the nearly four years thus far consumed in the processing of
An appropriate Order will issue.
It is important to note that while the text of 8 U.S.C. § 1255(a), as enacted, referred to the Attorney General as the deciding official, the authority to adjudicate adjustment of status applications has since been transferred to the Secretary of Homeland Security and his delegate in USCIS. See 6 U.S.C. § 271(b)(5); 6 U.S.C. § 557. For ease of reference, USCIS is referred to herein as the entity with discretionary authority, rather than the specific individual in USCIS, defendant Phyllis Howard.