Mohsenzadeh v. Johnson et al

Filing 24

ORDER granting 11 Defendant's Motion to Dismiss without Prejudice. Signed by Judge M. James Lorenz on 9/6/2017. (sjt)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ZAFAR MOHSENZADEH, Case No.: 3:14-cv-2715-L-RBB Plaintiff, 12 13 v. 14 ORDER GRANTING DEFENDANTS' MOTION TO DISIMISS JOHN F. KELLY, Secretary of the Department of Homeland Security, et al., 15 Defendants. 16 17 Pending before the Court is Defendants' motion to dismiss pursuant to Federal 18 Rules of Civil Procedure 12(b)(1) and 12(b)(6), or alternatively for summary judgment 19 under Rule 56. Plaintiff filed an opposition. Defendants did not reply. The matter is 20 submitted on the briefs without oral argument. See Civ. L. R. 7.1(d)(1). For the reasons 21 stated below, Defendants' motion to dismiss is granted for lack of subject matter 22 jurisdiction. This action is dismissed without prejudice. 23 I. 24 BACKGROUND Plaintiff Zafar Mohsenzadeh is an Iranian national who was granted asylum in the 25 United States in or around 1995. On February 25, 2012, he filed an application form I- 26 485 for adjustment of status to permanent residence. (Compl. at 3.) The United States 27 Citizenship and Immigration Services ("CIS") confirmed receipt of the application, 28 1 3:14-cv-2715-L-RBB 1 Plaintiff attended the Biometrics and INFOPASS appointments, and made status 2 inquiries. (Id. at 3-4 & Ex. 1.) So far, his application has not been adjudicated. 3 It is undisputed that Plaintiff's application is on hold because he was found 4 inadmissible under 8 U.S.C. § 1182(a)(3)(B) due to his support of a Tier III terrorist 5 organization, see 8 U.S.C. § 1182(a)(3)(B)(vi)(III). (Opp'n at 2, 3.) In his asylum 6 application Plaintiff allegedly disclosed that, while still in Iran, he had distributed 7 literature for Mojahedin-e Khalq ("MEK"), a Tier III terrorist organization.1 (Opp'n at 3.) 8 "Most forms of immigration relief are barred by statute for aliens who have engaged in 9 terrorist activities." Bojnoordi v. Holder, 757 F.3d 1075, 1077 n.2 (9th Cir. 2014); see 10 also 8 U.S.C. § 1182(a)(3)(B)(iii), (iv)&(vi) (defining "terrorist activity," "engage in 11 terrorist activity" and "terrorist organization," respectively). Section 1182(a)(3)(A) 12 renders such individuals inadmissible, thus precluding granting an application for 13 permanent residence. 14 However, the Secretary of Homeland Security (hereinafter sometimes "Secretary") 15 has authority and discretion to make exceptions for individuals or Tier III terrorist 16 organizations. 8 U.S.C. § 1182(d)(3)(B) ("discretionary exemption"). Pursuant to this 17 provision, since May 24, 2007, the Department of Homeland Security ("DHS") issued a 18 series of memoranda providing guidance for processing applications which, like 19 Plaintiff's, would be denied but for the possibility of a favorable exercise of the 20 discretionary exemption. (Defs' Exh. at 1-43.) 2 The memoranda direct the CIS to deny 21 22 23 24 25 26 1 Initially, Plaintiff's counsel admitted that Plaintiff distributed literature for MEK. (Opp'n at 3 & n.1; see also Defs' Ex. at 44-45.) For information about MEK's background, see Rajabi v. Attorney General, 553 Fed. Appx. 251, 253 n.5, 254 (9th Cir. 2014), and Bojnoordi v. Holder, 757 F.3d 1075, 1076 n.1 (9th Cir. 2014). Plaintiff's counsel has since qualified his admission by referring to the organization as "a Mojahedin student group in Iran." (Opp'n at 3 & n.1; see also Defs' Ex. at 44-45.) 27 2 28 Plaintiff does not object to the Court's consideration of the DHS memoranda, and has not presented any evidence to the contrary. Accordingly, the Court takes judicial 2 3:14-cv-2715-L-RBB 1 applications where, due to individual circumstances, the applicant would be ineligible for 2 the discretionary exemption even if the related Tier III terrorist organization were 3 exempted. However, cases where the applicant could benefit are put on hold pending 4 exemption. Numerous exemptions have been granted and cases released from hold under 5 this procedure. See, e.g., Islam v. Heinauer, 32 F.Supp.3d 1063, 1071 (N.D. Cal. 2014) 6 ("[B]etween mid-2006 and June 2013, USIC granted a total of 15,808 exemptions in 7 cases involving terrorist-related inadmissibility grounds. Moreover, [from] June 2010 8 [through March 2014] USCIS released over 3,500 cases from hold.") (internal quotation 9 marks and citations omitted); Singh v. Napolitano, 909 F.Supp.2d 1164, 1175 (E.D. Cal. 10 2012) ("new organizations have received exemptions, and thousands of aliens have 11 benefitted from those exemptions"). As his application has not been denied, it appears 12 that Plaintiff can benefit from an exemption. 13 Plaintiff has been awaiting adjudication since 2012. Dissatisfied with the lack of 14 progress, he filed the pending Complaint for Relief in the Nature of Mandamus against 15 the Secretary, Director of the CIS, Center Director of Nebraska Service Center of the 16 CIS, Acting District Director of the San Diego District of the CIS, and the Attorney 17 General of the United States (collectively "Defendants"). Plaintiff requests an order 18 directing Defendants to adjudicate his application for permanent residence without 19 further delay. Defendants filed a motion to dismiss pursuant to Rule 12(b)(1) for lack of 20 subject matter jurisdiction, Rule 12(b)(6) for failure to state a claim, or alternatively Rule 21 56 for summary judgment. 22 II. 23 24 DISCUSSION Rule 12(b)(1) provides for dismissal if subject matter jurisdiction is lacking. Unlike State courts, 25 26 27 28 notice. Fed. R. Evid. 201; see also United States v. Corinthian Colleges, 655 F.3d 984, 999 (9th Cir. 2011). 3 3:14-cv-2715-L-RBB 1 Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction. 2 3 4 5 6 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). 7 Federal courts must satisfy themselves of jurisdiction over the subject matter before 8 proceeding to the merits. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). 9 The court must dismiss an action if subject matter jurisdiction is lacking. Fed. R. Civ. P. 10 12(h)(3); see also Hansen v. Dep’t of Treasury, 528 F.3d 597, 600 (9th Cir. 2007). 11 12 Defendants argue that jurisdiction is barred by 8 U.S.C. § 1252(a)(2)(B), which states: 13 Notwithstanding any other provision of law (statutory or nonstatutory), including 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),[3] and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-- 14 15 16 17 18 (i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or 19 20 (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[4] to be in the discretion of the 21 22 23 24 25 26 27 28 3 Subparagraph D carves out jurisdiction in the courts of appeal for judicial review of certain constitutional and legal claims. 8 U.S.C. § 1252(a)(2)(D). 4 The reference to "this subchapter" is to the United States Code, Title 8, Chapter 12, Subchapter II, codified at 8 U.S.C. §§ 1151-1381 and titled "Immigration." 4 3:14-cv-2715-L-RBB 1 2 3 Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. Because the CIS has not yet adjudicated Plaintiff's application, clause (i) does not 4 apply. To prevail under clause (ii), the decision to hold Plaintiff's application in 5 abeyance must (1) constitute "any other decision or action of the Attorney General or the 6 Secretary;" (2) that was made under authority provided under Subchapter II; and (3) is 7 specified to be discretionary. 8 It is undisputed that the first two requirements are met. The CIS is an organization 9 within the DHS and is overseen by the Secretary. See https://www.dhs.gov, last visited 10 Sep. 5, 2017. Placing Plaintiff's application on hold was a decision or action other than 11 "judgment regarding the granting of relief." See 8 U.S.C. § 1252(a)(2)(B). The authority 12 to adjudicate Plaintiff's application is found in Subchapter II at 8 U.S.C. §§ 1159(b) 13 (adjustment of status for asylees) and 1255(a) (adjustment of status for nonimmigrants). 14 Authority to grant the application under the discretionary exemption is found in 15 Subchapter II at 8 U.S.C. § 1182(d)(3)(B)(i). 16 Plaintiff concedes that adjudication of his application is within the Secretary's "full 17 discretion." (Opp'n at 2; see also id. at 8.) He argues that judicial review is available to 18 order Defendants to issue a decision which has taken too long. He alleges that 19 Defendants have unreasonably delayed adjudication of his application, and also suggests 20 that they have refused to adjudicate it. (See Compl. at 5; Opp'n at 2, 8-9.) While it is 21 apparent from the allegations that the adjudication has taken a long time -- five and a half 22 years, Plaintiff's suggestion that Defendants are refusing to adjudicate is unsupported. 23 The delay of five and a half years is insufficient to show refusal to adjudicate. A six-year 24 delay in processing I-485 applications is not unreasonable per se. See, e.g., Asmai v. 25 Johnson, 182 F. Supp. 3d 1086, 1095 (E.D. Cal. 2016); Islam, 32 F.Supp.3d at 1071-72; 26 Singh, 909 F.Supp.2d at 1175. If delay is not unreasonable, it, a fortiori, cannot show 27 refusal to act. Moreover, Plaintiff's own allegations regarding the steps that Defendants 28 have taken so far (see Compl. at 3-4) show that this is not a case where Defendants have 5 3:14-cv-2715-L-RBB 1 refused to act on his application. The dispute focuses on the issue whether the pace of 2 processing his application is discretionary, i.e., whether § 1252(a)(2)(B)(ii) bars judicial 3 review of the pace of adjudication. 4 The parties cite no binding authority on point. Defendants' reliance on the holding 5 of Hassan v. Chertoff, 593 F.3d 785 (9th Cir. 2010), that the court lacked jurisdiction to 6 review denial of Hassan's application for adjustment of status, is unavailing. Section 7 1252(a)(2)(B)(i) barred review because, unlike here, the application in Hassan was 8 denied. Id. at 788-89. No circuit court of appeals has squarely ruled on the issue of 9 jurisdiction over the pace of adjudication. Bian v. Clinton, 605 F.3d 249, 252 (5th Cir. 10 2010); vacated as moot at 2010 WL 363370 (I-485 application granted). District courts 11 across the United States are divided. See id. at 252 & n.3 (surveying cases and noting 12 that "District courts that have considered this issue have divided sharply"); see also, e.g., 13 Khan v. Johnson, 65 F.Supp.3d 918, 925 (C.D. Cal. 2014) (collecting and discussing 14 cases); Beshir v. Holder, 10 F.Supp.3d 165, 172, 173-74 (D.D.C. 2014) (same); Singh, 15 909 F.Supp.2d at 1169-70 (same). 16 In Kucana v. Holder, the Supreme Court interpreted § 1252(a)(2)(B)(ii) in the 17 context of the Immigration Appeals Board's denial of a successive motion to reopen 18 removal proceedings, and the Seventh Circuit's decision that it lacked jurisdiction to 19 review it. 558 U.S. 233, 239-42 (2010). The Court explained that "[s]eparation-of- 20 powers concerns ... caution us against reading legislation, absent clear statement, to place 21 in executive hands authority to remove cases from the Judiciary's domain," and held that 22 "Congress barred court review of discretionary decisions only when Congress itself set 23 out the Attorney General's discretionary authority in the statute." Kucana, 558 U.S. at 24 237 & 247. The opinion focuses on the phrase "authority for which is specified under 25 this subchapter to be in the discretion ... ." 8 U.S.C. § 1252(a)(2)(B)(ii). The issue here, 26 whether Congress intended to bar judicial review over the pace of adjudication of I-485 27 applications, turns on the meaning of the same phrase. Although the precise issue present 28 in Kucana, whether § 1252(a)(2)(B)(ii) provision applies when a decision is declared 6 3:14-cv-2715-L-RBB 1 discretionary not by statute but by regulation, id. at 238, is not present here, the Court is 2 guided by the separation-of-powers concerns noted in Kucana. 3 4 5 6 7 8 9 10 11 A well-established presumption favors judicial review of administrative action: When a statute is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review. We have consistently applied that interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction. Because the presumption favoring interpretation of statutes to allow judicial review of administrative action is well-settled, the Court assumes that Congress legislates with knowledge of the presumption. It therefore takes clear and convincing evidence to dislodge the presumption. 12 13 Kucana, 558 U.S. at 251-52 (internal quotation marks, brackets and citations omitted). 14 Thus, "[a] statute affecting federal jurisdiction must be construed both with precision and 15 with fidelity to the terms by which Congress has expressed its wishes." Id. at 252. 16 Section 1252(a)(2)(B)(ii) bars judicial review of "any other decision or action of 17 the [Secretary] the authority for which is specified under this subchapter to be in [his] 18 discretion." The fact that it does not explicitly reference the pace of adjudication does 19 not preclude a finding that the pace is discretionary. This issue was addressed in a 20 section of Hassan not cited by the parties. After the denial of his adjustment of status 21 application, Hassan's advance parole was revoked. Hassan, 593 F.3d at 789. He argued 22 that the revocation was not discretionary because "no statute or regulation authorizes 23 revocation." Id. The court concluded the revocation was discretionary because it 24 "inevitably followed from DHS's discretionary decision to deny adjustment of status." Id. 25 at 790. That decision, in turn, was made pursuant to 8 U.S.C. § 1182(d)(5)(A), which 26 grants discretion to revoke advance parole when it no longer serves its purpose. Id. at 27 789-90. Although no statute explicitly granted the authority and discretion to revoke 28 7 3:14-cv-2715-L-RBB 1 advance parole upon denial of adjustment of status, the authority and discretion were 2 inherent in the broader grant provided in § 1182(d)(5)(A). 3 Similarly, the discretion over the pace of application processing is apparent, when 4 § 1252(a)(2)(B)(ii) is read in the context of the statutes authorizing application 5 processing. On its face, the bar under clause (ii) reaches intermediate administrative 6 decisions or actions, which is in addition to the bar under clause (i). Clause (i) applies to 7 administrative judgments issued under a discrete list of statutes: "no court shall have 8 jurisdiction to review [¶] any judgment regarding the granting of relief under section 9 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title." 8 U.S.C. § 1252(a)(2)(B)(i). By 10 contrast, clause (ii) is a "catchall," Kucana, 558 U.S. at 246-47, which provides: 11 ... no court shall have jurisdiction to review-- 12 [¶] (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 ... . 13 14 15 16 8 U.S.C. § 1252(a)(2)(B)(ii). 5 It applies to intermediary administrative actions and 17 decisions leading to judgment, so long as they are discretionary. 18 Furthermore, the statutes referred to in clause (ii), which provide authority to 19 adjudicate I-485 applications, specify a wide scope of discretion. Sections 1255(a) and 20 1159(b) not only place adjustment of status in the Secretary's discretion, but go a step 21 further by granting him discretion to prescribe regulations. Section 1255(a) provides: 22 23 24 25 26 27 28 5 It has been noted that this provision "is refreshingly free from ambiguity and its terms are pellucidly clear." Bian, 605 F.3d at 253 n.6 (internal quotation marks and citation omitted). 8 3:14-cv-2715-L-RBB 1 The status of an alien ... may be adjusted by the Attorney General,[6] in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence ... . 2 3 4 (Emphasis added.) Similarly, § 1159(b) states: The Secretary of Homeland Security or the Attorney General, in the Secretary's or the Attorney General's discretion and under such regulations as the Secretary or the Attorney General may prescribe, may adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum ... . 5 6 7 8 9 10 (Emphasis added.) In this regard, the statutes confer discretion not only to adjudicate, but 11 to create the process of intermediary steps by which adjustment of status is adjudicated.7 12 See Beshir, 10 F.Supp.3d at 173, 174 (discussing 8 U.S.C. §§ 1255(a) & 1159(b) and 13 citing cases). The number and kind of intermediate decisions and actions directly impact 14 the amount of time needed to adjudicate. Discretion over the process leading to 15 adjudication therefore necessarily includes discretion over its pace. 16 This conclusion is reinforced in discretionary exemption cases where terrorism- 17 related inadmissibility grounds preclude granting the application in the normal course. 18 The statute grants the Secretary broad discretion by couching it in broad terms as "sole 19 and unreviewable discretion:" [T]he Secretary of Homeland Security, after consultation with the Secretary of State and the Attorney General, may determine 20 21 22 23 24 6 Although the statute refers only to the Attorney General, the authority to adjudicate adjustment of status has been delegated to the Secretary and the CIS. See 6 U.S.C. §§ 271(b)(5) & 557. 25 7 26 27 28 This point distinguishes the pending case from Kucana. In Kucana, discretion was conferred on the Executive through regulations passed by the Executive branch itself. 558 U.S. at 252; see also Beshir, 10 F.Supp.3d at 175-76 (discussing Kucana). Here, by contrast, discretion is conferred on the Executive through statute passed by Congress. 9 3:14-cv-2715-L-RBB 1 in [his] sole unreviewable discretion that subsection (a)(3)(B) shall not apply ... . 2 3 8 U.S.C. § 1182(d)(3)(B)(i) (emphasis added). 4 Finally, to exercise the discretionary exemption, the Secretary of State, Attorney 5 General and the Secretary of Homeland Security must consult with each other. With this 6 required step Congress ensured that the exemption process would be deliberate. 7 "Whether an exemption applies or will be granted for individuals who aided or assisted 8 Tier III terrorist organizations is a complex and sensitive decision." Singh, 909 F. 9 Supp.2d at 1175. It involves "consideration of national security, foreign policy, and 10 humanitarian issues. The determination by its very nature is time consuming[8] and not to 11 be made lightly." Id. (internal quotation marks and citation omitted); see also Islam, 32 12 F.Supp.3d at 1072. The broad scope of discretion granted by § 1182(d)(3)(B)(i) is 13 therefore consistent with the doctrine that political and national security considerations 14 with implications for foreign relations are not subject to judicial review. See Beshir, 10 15 F.Supp.3d at 173, 177-78 (citing INS v. Aguirre-Aguirre, 526 U.S.415, 425 (1999)). 16 In sum, based on its plain language, § 1252(a)(2)(B)(ii) bars judicial review of 17 discretionary intermediate decisions or actions in the process of adjudicating I-485 18 applications. That the bar extends to the pace of processing is inherent in the discretion 19 to establish the kind and number of intermediate steps. In this regard, § 1252(a)(2)(B)(ii) 20 dovetails with the plain language of the statutes conferring discretionary authority to 21 process I-485 applications -- §§ 1255(a) and 1159(b) expressly grant discretion to pass 22 regulations, and § 1182(d)(3)(B)(i) explicitly prescribes a time consuming process, which 23 is in the Secretary's "sole and unreviewable discretion." Accordingly, Congress 24 unambiguously precluded judicial review of the pace of adjudicating I-485 applications. 25 26 27 28 8 Given the number of exemptions granted, this time-consuming process is not a mere excuse for delay. See Islam, 32 F.Supp.3d at 1071; Singh, 909 F.Supp.2d at 1175. 10 3:14-cv-2715-L-RBB 1 Several district courts in the Ninth Circuit have reached the opposite conclusion. 2 Plaintiff cites Khan v. Johnson and Islam v. Heinauer. They held that the delay, seven 3 plus and nearly six years, respectively, was unreasonable under the APA, and therefore 4 subject to review. Khan, 65 F.Supp.3d at 921; Islam, 32 F.Supp.3d at 1066. Both are 5 based on the premise that "the government has a non-discretionary duty to adjudicate 6 [the] petition within a reasonable period of time" because "to hold otherwise would be to 7 sanction the perpetual delay of governmental obligations that are clearly mandated by 8 law." Khan, 65 F.Supp.3d at 925; Islam, 32 F.Supp.3d at 1069. Both cases ultimately 9 rest on Beyene v. Napolitano, 2012 WL 2911838 (N.D. Cal.). Khan, 65 F.Supp.3d at 925 10 (citing Islam, 32 F.Supp.3d at 1069); Islam, 32 F.Supp.3d at 1069 (citing Beyene, 2012 11 WL 2911838.) 12 Beyene is based on four grounds. First, it notes that none of the relevant statutes 13 expressly states that the pace of adjudication is discretionary. Beyene, 2012 WL 2911838 14 *3. This is not determinative of the issue. See Hassan, 593 F.3d at 789-90. 15 Furthermore, Beyene addresses neither the plainly stated scope of § 1252(a)(2)(B)(ii), nor 16 the breadth of discretion granted by §§ 1255(a), 1159(b) and 1182(d)(3)(B)(i). 17 Second, Beyene rests on the APA, 5 U.S.C. § 555(b), which mandates government 18 administrative action "within a reasonable time." Id. However, the APA does not apply 19 when another statute bars judicial review, 5 U.S.C. § 701(a)(1), as is the case here, 8 20 U.S.C. § 1252(a)(2)(B)(ii) ("[n]otwithstanding any other provision of law (statutory or 21 nonstatutory)"). 22 Third, Beyene rests on 8 U.S.C. § 1571(b) to suggest that the Congress expected 23 action on I-485 applications to be completed within a certain amount of time. Beyene, 24 2012 WL 2911838 *3. Section 1571(b) states: 25 26 27 28 (b) Policy It 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 ... . 11 3:14-cv-2715-L-RBB 1 Similar statutory "sense of Congress" language has been interpreted as "non-binding 2 legislative dicta." Yang v. Cal. Dept. of Soc. Serv., 183 F.3d 953, 961 (9th Cir. 1999); see 3 also Singh, 909 F.Supp.3d at 1176 (addressing § 1571(b) and finding it does not set a 4 time frame for I-485 applications); Bian, 605 F.3d at 255 (same). This is consistent with 5 the "Policy" heading in the statute. Reading § 1571(b) as anything more would be 6 inconsistent with its plain language, as well as with §§ 1252(a)(2)(B)(ii), 1255(a) and 7 1159(b), which grant discretion over intermediary steps in adjudicating I-485 8 applications, and with § 1182(d)(3)(B)(i), requiring the Secretary of DHS, the Secretary 9 of State and the Attorney General to consult before granting a discretionary exemption. 10 Fourth, Beyene reasons that precluding judicial review over the pace of 11 adjudication would fail to recognize the difference between "discretion over how to 12 resolve an application and ... discretion over whether" to resolve it, thus allowing 13 "perpetual delay of governmental obligations." 2012 WL 2911838 *3 (internal quotation 14 marks and citations omitted, emphases in original). This reasoning suggests that review 15 should be limited to refusal to adjudicate rather than to encompass slow-paced 16 processing.9 The pending case does not present the extreme delay necessary to show that 17 Defendants are refusing to act on Plaintiff's application. For the foregoing reasons, the 18 Court rejects Plaintiff's reliance on Khan and Islam to argue that the pace of processing I- 19 485 applications is not covered by § 1252(a)(2)(B)(ii) jurisdictional bar. 20 Alternatively, Plaintiff relies on the Administrative Procedure Act, 5 U.S.C. § 701 21 et seq. ("APA"), and Mandamus Act, 28 U.S.C. §§ 1361 and 1651, to sidestep the 22 jurisdictional bar. This is unavailing. Section 1252(a)(2)(B)(ii) explicitly excludes both 23 statutes from consideration by stating that it applies "[n]otwithstanding any other 24 provision of law (statutory or nonstatutory), including ... sections 1361 and 1651 of [Title 25 26 27 28 9 Refusal to process applications arguably falls outside the scope of § 1252(a)(2)(B)(ii). See 8 U.S.C. §§ 1255(a) & 1159(b). The Court does not address this issue here, as Plaintiff does not allege facts supporting refusal to act on his application. 12 3:14-cv-2715-L-RBB 1 28]."10 The APA explicitly does not apply "to the extent that statutes preclude judicial 2 review." 5 U.S.C. § 701(a)(1). Furthermore, neither the Mandamus Act nor the APA 3 apply to discretionary actions. Pittston Coal Group v. Sebben, 488 U.S. 105, 121 (1988) 4 ("The extraordinary remedy of mandamus under 28 U.S.C. § 1361 will issue only to 5 compel the performance of a clear nondiscretionary duty") (internal quotation marks and 6 citation omitted); 5 U.S.C. § 701(a)(2) (the APA does not apply when "agency action is 7 conferred to agency discretion by law"). 8 For the foregoing reasons, 8 U.S.C. § 1252(a)(2)(B)(ii) precludes judicial review of 9 the pace at which Defendants are processing Plaintiff's application. Defendants' motion 10 is GRANTED to the extent it is based on Rule 12(b)(1), and denied as moot in all other 11 respects. This action is DISMISSED WITHOUT PREJUDICE to filing another action 12 in case of extreme delay sufficient to show refusal to process Plaintiff's application. 13 IT IS SO ORDERED. 14 15 Dated: September 6, 2017 16 17 18 19 20 21 22 23 10 24 25 26 27 28 United States Code Title 28, Sections 1351 and 1651 refer to the Mandamus Act. Section 1651(a) establishes the authority of federal courts to issue writs: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of respective jurisdictions and agreeable to the usages and principles of law." Section 1361 confers "original jurisdiction ... of any action in the nature of mandamus to compel ... any agency [of the United States] to perform a duty owed to the plaintiff." 13 3:14-cv-2715-L-RBB

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