WU v. NAPOLITANO et al
Filing
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MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 9/29/2011. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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QIAO ER WU,
Plaintiff,
v.
JANET NAPOLITANO, et al.,
Defendants.
CIVIL ACTION NO. 11-295 (MLC)
MEMORANDUM OPINION
COOPER, District Judge
Plaintiff, Qiao Er Wu (“Wu”), brings this action seeking,
inter alia, to compel Defendants, Janet Napolitano, Secretary of
the Department of Homeland Security, and Alejandro Mayorkas,
Director of United States Citizenship and Immigration Services
(“USCIS”) (collectively, “Defendants”), to immediately adjudicate
and approve Wu’s USCIS applications for waiver of inadmissibility
and adjustment of immigration status (“Applications”).
entry no. 1, Compl., Request for Relief at ¶ I.)
(Dkt.
Wu asserts that
the Court has jurisdiction to compel the adjudication of her
Applications under the Mandamus Act, 28 U.S.C. § 1361 (“Section
1361”), and the Administrative Procedure Act, 5 U.S.C. § 701, et
seq. (“APA”).
(Id. at ¶¶ 2-3.)
Defendants move to dismiss the
Complaint for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure (“Rule”) 12(b)(1).
(Dkt. entry
no. 10, Notice of Mot. & Def. Br. at 3-9.)1
Wu opposes
Defendants’ motion, asserting that the Court may enter an order
in her favor because Defendants have failed to satisfy their duty
to timely adjudicate her Applications.
Opp.)2
(Dkt. entry no. 11, Pl.
The Court, pursuant to Local Civil Rule 78.1(b), decides
the motion on the papers and, for the reasons stated herein, will
grant Defendants’ motion.
BACKGROUND
Defendants do not dispute the following facts.
1-2.)
(Def Br. at
Wu, a citizen of the People’s Republic of China, legally
entered the United States in November of 1996 under a student
visa.
(Compl. at ¶¶ 9-10.)
She thereafter sought to adjust her
status to that of a lawful permanent resident, based upon a
USCIS-approved labor certification and an employment-based
immigration visa petition (“I-140 Petition”).
(Id. at ¶ 11.)
While awaiting a decision upon her I-140 Petition, Wu departed
1
Defendants also contend that the Court should dismiss the
Complaint pursuant to Rule 12(b)(6), for failure to state a claim
upon which relief can be granted. The Court will not discuss
Defendants’ alternative argument under Rule 12(b)(6), however,
because the Court finds that disposition of the motion is
controlled by Rule 12(b)(1).
2
Wu styled her opposition to Defendants’ motion as
“Plaintiff’s Cross-Motion for Summary Judgment And [sic]
Opposition to Defendants’ Motion to Dismiss.” (Dkt. entry no.
11.) The Court will not discuss the merits of the cross motion,
however, because the Court’s disposition of the motion to dismiss
renders such discussion moot.
2
from and reentered the United States, after inspection.
¶ 12.)
(Id. at
Upon the grant of her I-140 Petition, Wu, on January 29,
2009, filed USCIS forms I-601 (waiver of inadmissibility) and
I-485 (adjustment of status application).
(Id. at ¶¶ 13-14; dkt.
entry no. 12, Decl. of Naboone J. Puripongs Jaeger (“Jaeger
Decl.”) at ¶ 5.)
She also attended an adjustment of status
interview on December 1, 2009 at the USCIS office in Mount
Laurel, New Jersey.
(Jaeger Decl. at ¶ 15.)
Applications have not been adjudicated.
To date, Wu’s
(Id. at ¶ 16.)
When an applicant seeks adjustment of status, the USCIS and
Federal Bureau of Investigation (“FBI”) conduct security and
background checks, including FBI fingerprint checks, FBI name
checks, checks against the Interagency Border Inspection System
(“IBIS”) maintained by the Department of Homeland Security, which
includes information from more than twenty federal law
enforcement and intelligence agencies.
(Id. at ¶ 8.)
Such
measures ensure that applicants do not pose a risk to either
public safety or national security.
(Id.)
They also ensure that
applicants are eligible for immigration benefits, i.e., the
status sought by application.
(Id.)
Here, Wu has submitted to
and USCIS has completed such fingerprint checks, name checks, and
IBIS checks.
(Id.)
Defendants nevertheless maintain that they cannot
immediately adjudicate Wu’s Applications because USCIS, as a
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predicate to such adjudication, must determine whether Wu is
otherwise eligible for the immigration benefits she seeks.
entry no. 12, Def. Reply Br. at 2.).
(Dkt.
Defendants specifically
contend that USCIS must complete two investigations.
(Def. Br.
at 6; Def. Reply Br. at 2; Jaeger Decl. at ¶¶ 10-12.)
First,
they contend that USCIS must complete its review of Wu’s
previously-approved I-140 Petition and, based upon that review,
determine whether it will now revoke that approval.
As
Defendants correctly note, Section 205 of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1255, grants USCIS the power
to revoke a previously-approved I-140 Petition “at any time” for
“good and sufficient cause.”
U.S.C. §§ 1254-1255.
(Jaeger Decl. at ¶¶ 10-11.)
See 8
Because Wu’s Applications are premised upon
USCIS’s prior approval of the I-140 Petition, Defendants reason
that USCIS must determine whether it will revoke or uphold the
prior approval of that I-140 Petition before Wu’s Applications
are ripe for review.
(Def. Reply Br. at 2; Jaeger Decl. at ¶¶
10-11.)
Defendants similarly contend that USCIS must determine
whether Wu has violated Section 212 of the INA by “seek[ing] to
procure . . . a visa, other documentation, or admission into the
United States or other [immigration] benefit” by committing
“fraud or willfully misrepresenting a material fact[.]”
Decl. at ¶ 13.)
See 8 U.S.C. § 1182(a)(6)(C)(i).
4
(Jaeger
Because USCIS
has identified some evidence suggesting that Wu violated Section
212 of the INA, and because such a violation would render Wu
otherwise ineligible for adjustment of status, Defendants
maintain that USCIS must complete such investigations before
adjudicating Wu’s Applications.
(Jaeger Decl. at ¶ 12.)
DISCUSSION
Wu argues that the Court has jurisdiction to compel the
adjudication of her Applications under Section 1361 and the APA.
(Compl. at ¶¶ 2-3.)
Defendants, in contrast, argue that the
Court lacks jurisdiction under Section 1361 because Wu cannot
show that she is entitled to an immediate adjudication and,
therefore, cannot show that she is entitled to a writ of
mandamus.
(Def. Br. at 5-6.)
Defendants also argue that Wu’s
inability to demonstrate that she is entitled to an immediate
adjudication precludes judicial review of this case under the
APA.
I.
(Id. at 7-9.)
Standard of Review for a 12(b)(1) Motion to Dismiss
“Challenges to subject matter jurisdiction under Rule
12(b)(1) may be facial or factual.
Facial attacks . . . contest
the sufficiency of the pleadings, and the trial court must accept
the complaint's allegations as true.”
Common Cause of Pa. v.
Pa., 558 F.3d 249, 257 (3d Cir. 2009) (citation omitted).
When
ruling upon a facial attack, the Court may dismiss the complaint
“only if it appears to a certainty that the plaintiff will not be
5
able to assert a colorable claim of subject matter jurisdiction.”
Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 438 (D.N.J. 1999).
Factual attacks differ greatly from their facial brethren.
See Mortenson v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891
(3d Cir. 1977).
Because at issue in a factual 12(b)(1) motion is the
trial court's jurisdiction . . . the trial court is
free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case. In short, no
presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material
facts will not preclude the trial court from evaluating
for itself the merits of jurisdictional claims.
Moreover, the plaintiff will have the burden of proof
that jurisdiction does in fact exist.
Id.
When considering a factual attack to subject matter
jurisdiction, the Court may make factual findings, beyond the
pleadings, to determine jurisdiction.
CNA v. United States, 535
F.3d 132, 145 (3d Cir. 2008); Iwanowa, 67 F.Supp.2d at 438
(noting that the Court may “consider affidavits, depositions and
testimony to resolve factual issues bearing on jurisdiction.”).
A Rule 12(b)(1) “factual evaluation may occur at any stage
of the proceedings, from the time the answer has been served
until after the trial has completed.”
Mortenson, 549 F.2d at
891, 892 n.1 (explaining that “[a] factual jurisdictional
proceeding cannot occur until plaintiff’s allegations have been
controverted”).
As Defendants have not filed an answer, the
Court has determined that they have not controverted Wu’s
allegations and, therefore, considers the motion a facial attack
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on subject matter jurisdiction.
While resolving the motion, the
Court will accordingly only analyze the allegations contained in
the Complaint.
II.
Common Cause of Pa., 558 F.3d at 257.
The INA Precludes the Court’s Exercise of Jurisdiction
Section 1252 of the INA provides in pertinent part that:
Notwithstanding any other provision of law (statutory
or nonstatutory), including [mandamus actions under
Section 1361] . . . no court shall have jurisdiction to
review-(i) any judgment regarding the granting of relief under
section . . . 1255 [adjustment of status] . . . or
(ii) any other decision or action of the Attorney
General or the Secretary of Homeland Security the
authority for which is specified under this subchapter
to be in the discretion of the Attorney General or the
Secretary of Homeland Security[.]
8 U.S.C. § 1252(a)(2)(B).
The parties agree that the ultimate decision to grant or
deny Wu’s Applications rests with either the Attorney General or
the Secretary of Homeland Security.
at 1-2.)
decision.
(Def. Br. at 6-9; Pl. Opp.
Their dispute arises, however, from the timing of that
Defendants argue that they have discretion with
respect to all aspects of adjudication of the Applications,
including the time taken to complete each stage of the
adjudication process.
(Def. Br. at 8; Def. Reply Br. at 1-2.)
Wu argues in response that Defendants have a non-discretionary
duty to decide an application for change of residency status in a
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reasonable amount of time and that, here, they have failed to do
so. (Pl. Opp. at 1-2; dkt. entry no. 13, Pl. Reply Br. at 1.)
The regulation that speaks most directly to Defendants'
discretion to withhold adjudication is 8 C.F.R. § 103.2(b)(18),
which is entitled “Withholding adjudication.”
Section
103.2(b)(18) confers discretion on immigration officers and
directors to withhold adjudication while applications are
investigated.
It provides that an immigration officer or
director may withhold adjudication every six months if he or she
“determines it is necessary to continue to withhold adjudication
pending completion of the investigation.”
103.2(b)(18).
8 C.F.R. §
Because 8 U.S.C. § 1252(a)(2)(ii) addresses the
Court’s lack of jurisdiction over matters within the discretion
of the Attorney General or the Secretary of Homeland Security,
and because 8 C.F.R. § 103.2(b)(18) seemingly establishes that
withholding adjudication is a matter of such discretion, the
Court has determined that there is a lack of subject matter
jurisdiction over this case.
The United States District Court for the Eastern District of
Virginia addressed a factually similar case and reached the same
conclusion, albeit for different reasons.
F.Supp.2d 696 (E.D.Va. 2006).
Safadi v. Howard, 466
In Safadi, the plaintiff asked the
court to adjudicate his I-485 application after USCIS had
completed all of the usual security checks.
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Id. at 697.
USCIS
opposed the request and claimed that there were issues that
required further inquiry.
Id.
Although that court did not discuss the implications of
8 C.F.R. § 103.2(b)(18), the reasoning employed in the Safadi
decision nonetheless supports the Court’s conclusion in this
case.
The Safadi court noted that the term “action” in Section
1252 “encompasses any act or series of acts that are
discretionary within the adjustment of status process, including
the pace of [adjudication].”
emphasis added).
Id. at 698, 700 (citations omitted,
That court thus concluded that it lacked
subject matter jurisdiction to compel adjudication of the
plaintiff’s I-485 application.
Id. at 700.
That court further
held that there was no jurisdiction under Section 1361 or the APA
because the defendants had no clear, non-discretionary duty to
adjudicate an I-485 application within a particular time period.
Id. at 700.
District courts within the District of New Jersey, in Qui v.
Chertoff and Serrano v. Quarantillo, followed the Safadi court’s
reasoning and similarly found that the lack of a
non-discretionary duty precluded jurisdiction under Section 1361
and the APA, and, furthermore, that Section 1252 prohibited
judicial review of the Attorney General’s actions or inactions
relating to the adjustment of a plaintiff’s immigration status.
Qui, 486 F.Supp.2d. 412, 416-18 (D.N.J. 2007); Serrano, No.
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06-5221 (DRD), 2007 WL 1101434, at *2-*3 (D.N.J. Apr. 9, 2007).
The plaintiffs in those cases, like Wu in this case, filed I-485
applications for change of residency status.
at 414; Serrano, 2007 WL 1101434, at *1.
Qui, 486 F.Supp.2d
Both plaintiffs, like
Wu, waited over two years before commencing actions seeking to
compel the Attorney General to act on their respective
applications.
1101434, at *1.
Qui, 486 F.Supp.2d at 414; Serrano, 2007 WL
In both cases, the district court denied the
respective plaintiff’s request for relief because it lacked
subject matter jurisdiction over the Complaint.
Qui, 486
F.Supp.2d at 416-21; Serrano, 2007 WL 1101434, at *4.
For the foregoing reasons, the Court accordingly concludes
that it lacks subject matter jurisdiction in this case, having
determined that Wu cannot “assert a colorable claim of subject
matter jurisdiction.”
Iwanowa, 67 F.Supp.2d at 438.
Section
1252 of the INA prohibits the Court from reviewing the
withholding of adjudication while USCIS reviews Wu’s
Applications.
8 U.S.C. § 1252(a)(2); 8 C.F.R. § 103.2(b)(18).
The Court finds further support from the Safadi, Serrano, and Qui
courts and finds that 8 U.S.C. § 1252(a)(2) prohibits the Court,
generally, from reviewing the pace at which Defendants adjudicate
a particular I-485 application.
See Qui, 486 F.Supp.2d at 416-19
(finding that Section 1252 prohibits judicial review of the
Attorney General’s inaction with respect to a request for
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adjustment of immigration status); Serrano, 2007 WL 1101434, at
*2-*3 (same); Safadi, 466 F.Supp.2d at 698 (noting that the term
“action” in Section 1252 includes the pace of adjudication).
The Court notes, moreover, that it cannot exercise mandamus
jurisdiction here because the Attorney General has discretion
over whether to grant Wu’s Applications and the time necessary to
appropriately adjudicate them.
See 8 U.S.C. § 1252(a)(2)(B)(ii).
Section 1361 provides that “[t]he district courts shall have
original jurisdiction of any action in the nature of mandamus to
compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.”
1361.
28 U.S.C. §
Mandamus relief under Section 1361 is an “extraordinary
remedy,” which should be utilized only to compel the performance
of “a clear non-discretionary duty.”
Pittston Coal Group v.
Sebben, 488 U.S. 105, 121 (1988); United States ex rel. Vaso v.
Chertoff, 369 Fed.Appx 395, 400 (3d Cir. 2010) (“writs of
mandamus are only available to compel ‘a legal duty which is a
specific, plain ministerial act devoid of the exercise of
judgment or discretion.’”).
“An act is ministerial only when its
performance is positively commanded and so plainly prescribed as
to be free from doubt.”
Harmon Cove Condo. Ass’n, Inc. v. Marsh,
815 F.2d 949, 951 (3d Cir. 1987).
Because Defendants’ actions in
adjudicating Wu’s Applications are not ministerial, the Court
cannot exercise mandamus jurisdiction in this case.
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See Vaso,
369 Fed.Appx. at 400 (“The adjudication of Vaso’s [I-485
application] was not a ministerial act devoid of the exercise of
judgment or discretion, and thus was not relief available through
a writ of mandamus.”).
CONCLUSION
The Court, for the reasons set forth above, will grant the
motion to dismiss.
The Court will issue an appropriate order and
judgment.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: September 29, 2011
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