Sutton, Christopher v. Napolitano, Janet et al

Filing 57

OPINION AND ORDER denying as moot 41 Motion to Dismiss for Lack of Jurisdiction; denying as moot 44 Amended Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 49 Second Amended Motion to Dismiss for Lack of Jurisdi ction. Plaintiff Sutton's constitutional claims are DISMISSED without prejudice for lack of ripeness. Defendants' motion to dismiss is DENIED in all other respects. The deadline to file dispositive motions or revised motions is extended to 12/16/2013. Responses shall be due 1/15/2014, replies by 1/31/2014. Signed by District Judge William M. Conley on 11/15/2013. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CHRISTOPHER SUTTON,
Plaintiff,

OPINION & ORDER

v.
13-cv-173-wmc
JANET NAPOLITANO, Secretary,
Department of Homeland Security;
ALEJANDRO MAYORKAS, Director,
U.S. Citizenship and Immigration Services;
KAY F. LEOPOLD, District Director,
Milwaukee Field Office, U.S. Citizenship
And Immigration Services; and
ERIC HOLDER, U.S. Attorney General,
U.S. Department of Justice,
Defendants.
Plaintiff Christopher Sutton seeks a writ of mandamus under the Mandamus and Venue
Act (“MVA”) or an order under the Administrative Procedure Act (“APA”) that would compel
U.S. Citizenship and Immigration Services (“USCIS”) to (1) respond to an order of the Board of
Immigration Appeals (“BIA”) and (2) rule on his I-130 petition for his spouse’s permanent
residency. He also challenges the constitutionality of the Adam Walsh Child Protection and
Safety Act of 2006 (“AWA”) as applied to him. Defendants have filed various motions under
Rule 12(b)(1) to dismiss the case for lack of subject matter jurisdiction. (Dkt. #49.)1 The court
will grant the last of these motions in part and dismiss Sutton’s constitutional claims, because
those claims are not ripe, but will deny that same motion with respect to Sutton’s claims under
the APA and the MVA. In light of the impending deadline for filing motions for summary
judgment, the court will also extend that deadline to December 16, 2013 to file or revise such
motions.

The current motion before the court is defendants’ Second Amended Motion to Dismiss for
Lack of Jurisdiction. Therefore, the court will deny the preceding two Motions to Dismiss (dkt.
## 41 and 44) as moot.
1

STATUTORY AND REGULATORY SCHEME
Immigration is governed by the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1101 et seq., and the accompanying regulations. If an alien wishes to apply for adjustment of
status to permanent residency under the INA, “[a]n immigrant visa must be immediately
available.” 8 C.F.R. § 245.2(a)(2). This generally means that “the alien beneficiary may file the
adjustment application only after the Service has approved the visa petition.”

8 C.F.R.

§ 245.2(a)(2)(B) (emphasis added).
An exception to this general rule exists for immediate relatives of U.S. citizens (a
category that by definition includes spouses), since there are no numeric limitations on visas
for immediate relatives. See 8 U.S.C. § 1151(b)(2)(A)(i).
Under 8 C.F.R. § 245.2(a)(2)(B), an alien may file an adjustment application, pursuant
to 8 U.S.C. § 1154(a)(1)(A)(i) (“Clause (i)”), if approval of a visa petition filed by their U.S.
citizen spouse is pending that would make a visa immediately available.2
To begin this process, the citizen spouse must file an I-130 petition on behalf of the
alien spouse. See 8 C.F.R. § 204.1(a)(1). The alien spouse may concurrently or thereafter file
his or her application for adjustment of status. 8 C.F.R. § 245.2(a)(2)(B). If it is determined
after investigation that the facts in the petition are true and the alien application is in fact an
“immediate relative,” the adjudicator “shall . . . approve the petition.” 8 U.S.C. § 1154(b).
Under 8 U.S.C. § 1154(a)(1)(A)(viii)(I), however, this statutory right to petition “shall
not apply to a citizen of the United States who has been convicted of a specified offense against
a minor, unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable
discretion, determines that the citizen poses no risk to the alien with respect to whom a
petition described in [C]lause (i) is filed.” The term “specified offense against a minor” is
The text of 8 U.S.C. § 1154 states that petitions should be filed with the Attorney General, but the
Homeland Security Act of 2002, 2002, Pub. L. No. 107-296, § 451(b), 116 Stat. 2135, 2196,
transferred this authority to USCIS. See also 8 C.F.R. § 103.2 (providing generally the procedures
for submission and adjudication of benefit requests and placing adjudicatory authority with
USCIS).
2
2

defined in the AWA at 42 U.S.C. § 16911(7) and includes “[c]riminal sexual conduct involving a
minor” and “[a]ny conduct that by its nature is a sex offense against a minor.” 42 U.S.C.
§ 16911(7)(H), (I). Thus, if a citizen has been convicted of a “specified offense against a minor”
and does not satisfactorily demonstrate to the Secretary that he or she poses no risk to his
immediate relative, he is not eligible to petition for that relative at all and the pending petition
will be denied on those grounds. Moreover, without the “immediate relative” classification, the
related visa will not be considered “immediately available” for the alien spouse, making that
spouse ineligible for adjustment of status.

ALLEGATIONS OF FACT
Plaintiff Christopher Sutton is a natural-born U.S. citizen residing in Madison,
Wisconsin. He is married to Volha Sutton, who is not a U.S. citizen. Christopher and Volha
have two children. In September 2007, Christopher filed a I-130 Petition for Alien Relative
with USCIS, and Volha filed an I-485 Application to Adjust Status and become a permanent
resident.
Unfortunately, Christopher had been convicted in 1997 of 3rd degree sexual assault in
violation of Wis. Stat. § 940.225(3). The sexual assault occurred when he was 20 years old and
involved a minor, who was 15 years of age and thus unable to consent as a matter of Wisconsin
law. Because of this conviction, USCIS contacted Christopher on April 23, 2008, asking for:
(1) details surrounding the arrest, final disposition, and sentencing in the case; (2) evidence of
rehabilitation demonstrating he posed no risk to his wife’s safety and well-being; (3) evidence
demonstrating exemplary behavior to the community; and (4) any other character evidence.
Christopher timely responded.
On September 3, 2008, Christopher received a Notice of Intent to Deny (“NOID”) his I130 petition, which indicated that he had failed to prove that he posed no risk to his wife and
gave him an additional 30 days to provide further evidence. On September 11, 2009, Sutton
3

received a notice that his I-130 petition had been denied, because USCIS had determined he
was “ineligible to file a petition for immigrant status due to [his] prior criminal history
involving the sexual assault of a minor.” (Compl. Exh. F (dkt. #2-11).)
Following an unsuccessful appeal to USCIS, Christopher appealed to the Board of
Immigration Appeals (“BIA”). On July 15, 2011, the BIA issued its decision, finding “that a
remand for further development of the record [was] appropriate.” (Compl. Exh. H (dkt. #2-13)
(“Remand Order”).) It posed eight questions to the parties and asked that they consider and
respond to them “[t]o the extent that one or more of the issues . . . [were] relevant in this case
and have not been addressed by the Field Office Director or by the parties on appeal.” (Id.)
Finally, the BIA ordered that “[t]he record is remanded for further proceedings consistent with
this order.” (Id.)
Christopher responded with a brief that he submitted to the BIA and USCIS to answer
the eight questions. (Compl. Exh. I (dkt. #2-14).) He also submitted unsolicited documents to
USCIS on multiple occasions before October 2012. On October 22, 2012, USCIS issued a new
Request for Evidence asking for: (1) evidence of rehabilitation not previously submitted; (2)
evidence of exemplary behavior to his community since his arrest not previously submitted; (3)
certified records indicating successful completion of counseling or rehabilitation programs; (4)
certified evaluations by licensed professionals; (5) evidence not previously submitted
demonstrating “intervening good and exemplary service” to the community or in the
uniformed services; and (6) news accounts and court transcripts describing the nature and
circumstances of the offense against a minor, as well as any other criminal, violent, or abusive
behavior incidents. (Compl. Exh. K (dkt. #2-15).) Christopher provided a response. On May
6, 2013, USCIS issued another NOID, requesting additional evidence. On June 4, 2013,
Christopher responded to the request. Christopher alleges that he cannot fully and adequately
respond to USCIS’s requests for additional evidence, however, without receiving its responses
to the BIA’s Remand Order. USCIS has not yet issued a decision in his case.
4

Christopher now asks this court to (1) compel defendants to comply with the BIA’s
Order “that they ‘consider and respond’ to the 8 question remand,” (Second Amended Compl.
(dkt. #47) 12); and (2) decide the pending I-130 petition. He also asks the court to declare the
AWA unconstitutional as applied to him.

OPINION
As courts of limited subject matter jurisdiction, federal courts “possess only that power
authorized by Constitution and statute . . . which is not to be expanded by judicial decree.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citation omitted).
Therefore, this court cannot even consider the merits of a case unless first determining that it
has subject matter jurisdiction to do so. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368,
379 (1981). The burden of proof on a Rule 12(b)(1) issue is on the party asserting jurisdiction.
United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003), overruled
on other grounds by Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012). “On a
motion to dismiss under Rule 12(b)(1), the court is not bound to accept the truth of the
allegations in the complaint, but may look beyond the complaint and the pleadings to evidence
that calls the court’s jurisdiction into doubt.” Bastien v. AT&T Wireless Servs., Inc., 205 F.3d
983, 990 (7th Cir. 2000) (citing Commodity Trend Serv., Inc. v. Commodity Futures Trading
Comm’n, 149 F.3d 679, 685 (7th Cir. 1998)).
Christopher Sutton’s Complaint alleges that this court has subject matter jurisdiction
under the Fifth Amendment of the Constitution; 28 U.S.C. § 1331; 8 U.S.C. § 1329; 5 U.S.C. §§
555(b) and 706(1); and 28 U.S.C. § 1361.3 The court will consider these bases for jurisdiction in
turn, beginning with Christopher’s constitutional claim.

Christopher also cites to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, as support for
this court’s authority to grant the declaratory and injunctive relief that he seeks, but the Act is
procedural only and did not repeal or modify “the limited subject matters which alone Congress
had authorized the District Courts to adjudicate.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S.
5
3

I. Plaintiff’s Constitutional Claim
Plaintiff asks in his Complaint that this court declare the AWA unconstitutional as it
applies to him. (See Second Amended Compl. (dkt. #47) 13.) Specifically, he argues that the
right to marriage “necessarily incorporates the right to intimacy, live together, raise children,
and build a household.” (Pl.’s Resp. (dkt. #51) 8.) He would be deprived of these rights,
however, were his wife forced to leave the United States. Therefore, he argues that since the
AWA bars him from petitioning for his foreign spouse so that she is eligible for adjustment of
status, it operates to deprive him of those “incorporated” rights. (Id. at 10.)
As interesting as this argument is, the government correctly points out that plaintiff has
neither demonstrated nor argued that his as-applied constitutional claim is ripe for review.
“The ripeness doctrine “is drawn both from Article III limitations on judicial power and from
prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Social Servs., Inc.,
509 U.S. 43, 57 n.18. (1993). “Ripeness is peculiarly a question of timing.” Thomas v. Union
Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985) (quoting Regional Rail Reorganization
Act Cases, 419 U.S. 102, 140 (1974)). “Its basic rationale is to prevent the courts, through
premature adjudication, from entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in a concrete way by the
challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). Thus, a claim is
not ripe for adjudication if it rests upon ‘contingent future events that may not occur as
anticipated, or indeed may not occur at all.’” Texas v. United States, 523 U.S. 296, 300 (1998)
(quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)).

667, 672 (1950). Therefore, the Act neither provides for an independent grant of subject matter
jurisdiction, nor does Sutton argue as such.
6

Plaintiff’s allegations that the AWA has deprived him of the “incorporated” rights of
marriage, therefore, suffer from a fundamental flaw: his I-130 petition has not yet been
adjudicated, making the present disagreement as to the application of the AWA to his case
entirely abstract. Rather than being based on a denial of his application, plaintiff’s claim is
based on the assumption that his I-130 petition will be denied by USCIS’s interpretation and
application of the AWA -- a future event that may or may not occur. At this stage, there has
been no formalization of the USCIS determination, nor have the effects of the AWA as plaintiff
describes them materialized in a concrete way. Therefore, plaintiff’s current constitutional
claim against the defendants is based entirely on a contingent future event that may or may not
occur as he predicts, making it unripe for adjudication.4
In fairness, plaintiff alleges (albeit in the context of the APA and not the Constitution)
that he is suffering harm “because of his inability to obtain a lawful status for his spouse and
that he is left ‘in a state of ‘limbo’’ to languish there indefinitely.” (Pl.’s Resp. (dkt. #51) 19.) A
mere “state of limbo,” without more, is not the type of harm that makes a controversy ripe for
adjudication.

See Abbott Labs., 387 U.S. at 149 (basic rationale of ripeness is to avoid

interfering with agencies until decisions effects are “felt in a concrete way by the challenging
parties”) (emphasis added).
As previously noted, ripeness is intended not only to protect courts from entangling
themselves in abstract disagreements but also to protect agencies from premature and
potentially unnecessary judicial interference.

Id. at 148-49.

Determining whether

In some cases, where a future event is “virtually a certainty,” a case may be ripe for adjudication
notwithstanding that the event has not actually occurred yet. Blanchette v. Conn. Gen. Ins. Corps.,
419 U.S. 102, 143 (1974). This is not such a case, since a NOID leaves open the possibility that the
I-130 petition may be favorably adjudicated. For example, see William R. Yates, Requests for
Evidence (RFE) and Notices of Intent to Deny (NOID) (Feb. 16, 2005), available at http://
www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/
2005/rfe021605.pdf (last visited Oct. 18, 2013), which offers guidance to USCIS adjudicators as to
RFEs and NOIDs. The memo indicates that NOIDs should be used to offer a filer who has not met
his or her burden through evidence already submitted “the best chance to overcome the deficiency
if possible.”
7
4

administrative action is ripe for judicial review thus requires an evaluation of “(1) the fitness of
the issues for judicial decision, and (2) the hardship to the parties of withholding court
consideration.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003).
“Hardship” in this context generally requires that the impact on the challenging party be
“direct and immediate.” Abbott Labs., 387 U.S. at 152. In contrast, a controversy may not be
ripe where “no advance action is required” of the party bringing suit or where “no irremediable
adverse consequences flow from requiring a later challenge.” Toilet Goods Ass’n, Inc. v.
Gardner, 387 U.S. 158, 164 (1967).
While the issue plaintiff raises is a legal one involving a law’s constitutionality, and thus
potentially appropriate for a court’s resolution, he has not argued, and the court does not find,
that simply existing in a “state of limbo” constitutes the kind of direct and immediate impact
that would justify this court’s interference in a pending agency action. In addition, case law
does not suggest such an argument would be fruitful. See, e.g., Reno v. Catholic Social Servs.,
Inc., 509 U.S. 43, 59-63 (1993) (promulgation of immigration regulations did not alone give
rise to ripeness; ordinarily, ripeness would arise “when the INS formally denied the alien’s
application on the ground that the regulation rendered him ineligible for legalization,” unless
he had experienced “prefiling rejection” pursuant to INS policy); Toilet Goods Ass’n, Inc., 387
U.S. at 164 (litigation not ripe when challenged regulation merely provided that Commissioner
“may authorize inspectors to examine certain processes or formulae” but challengers had to
take no action before then); Rock Energy Co-op. v. Village of Rockton, 614 F.3d 745, 748 (7th
Cir. 2010) (litigation not ripe when there was no imminent threat of eminent domain
proceedings and the injury alleged was essentially “living . . . under the Sword of Damocles,
knowing that its property rights can be cut off . . . at any moment”). Thus, the court lacks

8

subject matter jurisdiction over plaintiff’s constitutional claims and will dismiss them without
prejudice.5

II. The Immigration and Nationality Act (8 U.S.C. § 1329)
Plaintiff alleges in his Second Amended Complaint that this court has jurisdiction under
8 U.S.C. § 1329, the Immigration and Nationality Act (“INA”), yet fails to expand on this
argument in his brief. This failure is unsurprising, given INA’s plain text, which states that
“[n]othing in this section shall be construed as providing jurisdiction for suits against the
United States or its agencies or officers.” 8 U.S.C. § 1329 (emphasis added). Thus, that Act
does not grant this court jurisdiction over Sutton’s claims.

III.
The Administrative Procedure Act (5 U.S.C. §§ 555 and 706) and the
Mandamus Act (28 U.S.C. § 1361)
Finally, Sutton argues that this court has federal subject matter jurisdiction under the
APA, through 28 U.S.C. § 1331, and the MVA. . Here, Sutton seeks an order from this court
compelling USCIS to respond to the BIA’s Remand Order and adjudicate his I-130 petition.
Section 555(b) of the APA states 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 of the APA states in relevant
part:
To the extent necessary to decision and when presented, the
reviewing court shall decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the
meaning or applicability of the terms of an agency action. The

Because the court finds that plaintiff’s constitutional claims are not yet ripe, it need not consider
defendants’ alternative argument that plaintiff lacks standing. In any event, the standing question,
which asks whether the plaintiff has suffered “some threatened or actual injury” as a result of the
challenged action, “bears close affinity to questions of ripeness – whether the harm asserted has
matured sufficiently to warrant judicial intervention.” Warth v. Seldin, 422 U.S. 490, 499 & n.10
(1975).
9
5

reviewing court shall-- (1) compel agency action unlawfully
withheld or unreasonably delayed.
5 U.S.C. § 706(1). The MVA states 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.” 28 U.S.C. § 1361.
While the APA does not itself grant subject matter jurisdiction to federal courts to
review agency action, 28 U.S.C. § 1331 in conjunction with the APA does. See Califano v.
Sanders, 430 U.S. 99, 105 (1977). Even more straightforwardly, the MVA’s plain text grants
jurisdiction to district courts in mandamus actions. See 28 U.S.C. § 1361. Nevertheless, courts
have split on the question of whether these statutes provide a district court with subject matter
jurisdiction to adjudicate a request that USCIS undertake some sort of action.

See

Nigmadzhanov v. Mueller, 550 F. Supp. 2d 540, 544-45 (S.D.N.Y. 2008) (detailing the split of
authority and cataloguing cases).

A. Jurisdictional and Other Limitations
In analyzing this question, the court begins with the distinction between “true
jurisdictional limitations and other types of rules.” Minn-Chem, Inc., 683 F.3d at 851. This
court can do almost nothing without first having subject matter jurisdiction over the case. See
Johnson v. Wattenbarger, 361 F.3d 991, 993 (7th Cir. 2004). “Because the consequences that
attach to the jurisdictional label may be so drastic,” the Supreme Court has “tried in recent
cases to bring some discipline to the use of this term.” Henderson ex rel. Henderson v.
Shinseki, 131 S. Ct. 1197, 1202 (2011). In Henderson itself, the Court held that “a rule should
not be referred to as jurisdictional unless it governs a court’s adjudicatory capacity.” Id.
(citing Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1243-44 (2010)) (emphasis added). In
contrast, rules that define the kind of conduct a statute reaches, for example, are essentially
defining the kind of conduct a statute prohibits, which goes to the merits of a dispute, not to
10

the court’s jurisdiction. Morrison v. Nat’l Aus. Bank Ltd., 130 S. Ct. 2869, 2877 (2010). As the
Supreme Court explained in Henderson, “even if important and mandatory,” such rules should
not be given the jurisdictional brand. 131 S. Ct. at 1203.
Thus, the “general rule is that if the complaint states a case arising under the
Constitution or federal law, proper federal subject matter jurisdiction exists even though on
the merits the plaintiff may have no cognizable federal claim.” Graf v. Barker, 409 F. Supp.
571, 573 (E.D. Wis. 1976) (citing Bell v. Hood, 327 U.S. 678 (1946)); cf. Miller v. Herman, 600
F.3d 726, 731-32 (7th Cir. 2010) (noting that, when a plaintiff had to show that windows were a
“consumer product” within the meaning of a statute to prevail, and not just to get into federal
court, “defendants’ Rule 12(b)(1) motion was in fact an indirect attack on the merits” and
should have been treated as a Rule 12(b)(6) motion). There is an exception even to this general
rule: as explained by the Supreme Court in Bell, “a suit may sometimes be dismissed for want
of jurisdiction where the alleged claim under the Constitution or federal statutes clearly
appears to be immaterial and made solely for the purposes of obtaining jurisdiction or where
such a claim is wholly insubstantial and frivolous.” Bell, 327 U.S. at 682-83. Beyond this
narrow exception, a district court has federal question jurisdiction over cases arising under the
Constitution or federal law, even if a case seems fated to fail on its merits. See id. at 682 (“If
the court does later exercise its jurisdiction to determine that the allegations in the complaint
do not state a ground for relief, then dismissal of the case would be on the merits, not for want
of jurisdiction.”).
Turning to the context of this case, the Seventh Circuit addressed the difficulty of
drawing a line between subject matter jurisdiction and merits in the immigration context in
Ahmed v. Dep’t of Homeland Sec., 328 F.3d 383 (7th Cir. 2003). In that case, a native and
resident of Pakistan thought she had secured the right to live in the United States after
“winning” a place in the so-called “diversity visa lottery” program, but bureaucratic delay and
circumstances beyond her control prevented her from completing her application to secure
11

that visa before her opportunity expired. Id. at 384. She then brought suit under the APA and
MVA to compel the government to process her visa application even though the deadline had
passed. The district court dismissed her claims for lack of subject matter jurisdiction, finding
that “because Ahmed had not shown that she was entitled to mandamus relief, it did not have
subject-matter jurisdiction over her claim.” Id. at 385. In affirming the dismissal, the Seventh
Circuit found “that the district court was empowered to adjudicate the mandamus petition and
the APA claims before it, but that it correctly determined on the merits that neither the petition
for mandamus nor the claim for relief under the APA could be granted.” Id. at 388 (emphasis
added).
The Seventh Circuit’s discussion in Ahmed is instructive. As an initial matter, the court
noted that “[n]o one has suggested that [Ahmed’s] APA claim seeking to compel a federal
agency . . . did not fall under the general federal-question jurisdiction conferred in 28 U.S.C.
§ 1331.” Id. at 385. Although the “mandamus claim . . . [gave] rise to more questions,” the
court went on to explain that:
In our view, it is necessary to distinguish between the court’s
power to adjudicate the petition and the court’s authority to grant
relief. Only the former necessarily implicates the subject-matter
jurisdiction of the court; the latter will depend on whether the
statute on which the plaintiff is relying imposes a clear duty on the
officer or employee of the United States.
Id. at 385-86. Accordingly, the Seventh Circuit explained that a conclusion that one of the
three prerequisites for a writ of mandamus to issue is lacking "should lead the district court to
deny the petition, not because it now realizes that it had no power to be thinking about the case
in the first place, but because the plaintiff has not demonstrated an entitlement to this form of
extraordinary relief.” Id. at 387. For this reason, the court ultimately held that a district court
has federal jurisdiction over an action under § 1361 “unless the claim is so frivolous that it fails
the Bell v. Hood test.” Id. at 386-87.

12

In keeping with the recent Supreme Court holdings previously discussed and the
Seventh Circuit’s decision, Sutton need not demonstrate entitlement to relief under either the
APA or the MVA for this court to exercise subject matter jurisdiction over those claims. Most
telling in Ahmed is the court’s ultimate holding was that even though the plaintiff’s claim was
“plausible enough to engage the court’s jurisdiction,” she was not entitled to relief under either
the APA or the MVA. Id. at 387-88. Rather, to establish jurisdiction under 5 U.S.C. § 706(1),
Sutton must state a non-frivolous claim “that an agency failed to take a discrete agency action
that it is required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)
(emphasis in original). Having plausibly pled that his claim “arises under” the APA, this court
has jurisdiction pursuant to 28 U.S.C. § 1331 to consider the claim, even if it ultimately fails on
the merits.

Similarly, unless Sutton’s claim for mandamus relief is “patently frivolous,”

Ahmed, 328 F.3d at 386 (citation omitted), this court has jurisdiction to determine whether
the three prerequisites to mandamus relief have been satisfied: (1) a clear right to the relief
sought, (2) a duty by defendants to perform the act, and (3) the lack of another adequate
remedy.6 Ahmed, 328 F.3d at 386-87.
Here, the relief Sutton seeks under either the APA or the MVA is the same: orders
compelling USCIS to respond to the BIA Remand Order and to adjudicate Sutton’s pending I130 petition. Indeed, in cases seeking compelled adjudication of immigration status, plaintiffs
frequently move for relief under both statutes. See, e.g., Lindems v. Mukasey, 530 F. Supp. 2d
1044, 1045 (E.D. Wis. 2008) (alien brought suit asking for an order to compel federal officials
to act on his application for permanent residency under both APA and MVA); Saleem v.
Keisler, 520 F. Supp. 2d 1048, 1057 (W.D. Wis. 2007) (“Like most other parties seeking an
Admittedly, the holding in Ahmed appears to conflict with another Seventh Circuit case decided
around the same time, Kitphothiyan v. Ashcroft, 74 Fed. App’x 623 (7th Cir. 2003). In
Kitphothiyan, the Seventh Circuit affirmed a dismissal for lack of jurisdiction because one of the
requirements for mandamus relief had not been met. Id. at 627. Given the general rule that courts
should not disguise a decision on the merits as a jurisdictional dismissal, and given the holdings of
recent Supreme Court cases like Henderson and Morrison, the court finds the reasoning of the
Ahmed court more persuasive.
13
6

adjudication of an application for an adjustment of status, plaintiff seeks to compel action
under the Administrative Procedure Act and the Mandamus Act.”). Even so, the court will
consider both potential grounds for subject matter jurisdiction. Sutton has not yet elected
under which act to proceed.

B. APA Jurisdiction
As regards the APA, Sutton alleges in his Second Amended Complaint that USCIS has
failed (1) to adjudicate his petition, and (2) to comply with the BIA Remand Order by providing
answers to the eight questions before adjudicating his petition. (See Second Amended Compl.
(dkt. #47) ¶ 42.) Defendants do not contest that these are “discrete” agency actions. The
remaining question for jurisdictional purposes is whether Sutton’s claims are substantial
enough to be non-frivolous, because each concerns actions he alleges that USCIS is required to
take. The court must therefore determine: (1) whether USCIS must adjudicate his I-130
petition at all;7 and (2) whether USCIS must respond to the questions in the Remand Order
before adjudicating that petition. Only if the claims as alleged are “wholly insubstantial and
frivolous,” Bell, 327 U.S. at 682-83, will this court dismiss them for lack of subject matter
jurisdiction.
Because 8 U.S.C. § 1154(b) indicates in pertinent part that if it is determined that the
facts stated in the petition are true and the alien is an immediate relative, the adjudicator
“shall . . . approve the petition,” it would appear that I-130 petitions must, at some point, be
adjudicated. Cf. Iddir v. Immigration & Naturalization Servs., 301 F.3d 492, 499-500 (7th
Cir. 2002) (finding that “nondiscretionary language,” including the word “shall,” indicated that
appellants “[had] a right to have their cases adjudicated”); Saleem, 520 F. Supp. 2d at 1054

Sutton does not argue that the adjudication must be one favorable to him, nor would such an
argument have merit. See Norton, 542 U.S. at 65 (“Thus, when an agency is compelled by law to
act within a certain time period, but the manner of its action is left to the agency’s discretion, a
court can compel the agency to act, but has no power to specify what the action must be.”).
14

7

(noting that even where statutes did not contain an explicit command to adjudicate an
application for adjustment of status within a particular time period, “the regulations are
drafted on the assumption that defendants will decide each application”) (emphasis in
original). This reading is strengthened by the language of 5 U.S.C. § 555(b), which states that
“within a reasonable time, each agency shall proceed to conclude a matter presented to it.”
Taken together, these provisions strongly suggest that while USCIS has discretion in the
outcome of an I-130 petition, it does not have the discretion not to make a decision at all.
Additionally, as noted by this court in Saleem, “a right to request relief inherently
implies a corresponding obligation to respond.” Saleem, 520 F. Supp. 2d at 1054 (citing
Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004)); see also Lindems v. Mukasey, 530 F.
Supp. 2d 1044, 1046 (E.D. Wis. 2008) (same). Without such an obligation, “defendants could
delay a decision indefinitely and thus render meaningless the right to apply for adjustment of
status.” Lindems, 530 F. Supp. 2d at 1046.
Finally, defendants do not appear to contest that USCIS does, in fact, have a duty to
adjudicate I-130 petitions at some point (though they argue that there is no duty to have
already adjudicated the petition at this point). Thus, the court finds that Sutton has stated a
non-frivolous claim that “arises under” 5 U.S.C. §§ 555(b) and 706(1), and that it can exercise
jurisdiction over that claim.
What defendants do contest is the scope of their alleged duty to “comply” with the BIA’s
Remand Order, arguing that Sutton misconstrues what is required of them on remand. (Def.’s
Reply (dkt. #54) 9.) Sutton essentially contends that the Remand Order requires USCIS to
issue a response to the eight questions that the BIA posed before it adjudicates the I-130. He
also points to 8 C.F.R. § 1003.1(g), which states that “decisions of the Board . . . shall be
binding on all officers and employees of the Department of Homeland Security,” as creating a
duty to obey the BIA. Defendants argue that there is no statutory or regulatory requirement
that compels them to answer those questions, as the Remand Order did not expressly require
15

USCIS to submit the answers to those questions either to Sutton or to the BIA. Rather, the
Remand Order states only that (1) “a remand for further development of the record is
appropriate” and (2) “[t]o the extent that one or more of the [six] issues presented . . . are
relevant in this case and have not been addressed by the Field Office Director or by the parties
on appeal, we ask that the parties consider and respond.” (See dkt. #21.) The Order then
states that “in the event that the Field Office Director denies this visa petition again,” the
parties are advised to include a jurisdictional statement in any further appeal to the BIA
addressing the final two questions. (See id.)
While decisions of the BIA are binding on all employees of the Department of
Homeland Security as per the regulations, it is by no means apparent that USCIS has any duty
to do what Sutton contends it must, which is to provide him with responses to the questions
before adjudicating the I-130 petition. Moreover, Sutton does not merely seek compliance with
the binding order; rather, his suit asks that the court ultimately interpret

the highly

discretionary language in the BIA Remand Order as describing an action that USCIS is
required to take. Still, the court finds that these claims are sufficiently non-frivolous to go
forward, if just barely: USCIS does have a duty to comply with orders of the BIA. Sutton’s
allegation that USCIS has not done so may be unconvincing, but it does not quite rise to the
level of “wholly insubstantial and frivolous” such that this court lacks subject matter
jurisdiction over its adjudication. Bell, 327 U.S. at 682-83.
Defendants’ other arguments that the court lacks subject matter jurisdiction under the
APA are wholly unavailing. They argue first that this court lacks jurisdiction because there has
been no final agency action. (See Second Amended Mot. to Dismiss (dkt. #49) 10-16.) They
point to 5 U.S.C. § 704, which makes reviewable “final agency action,” defined as action that
marks the consummation of the decision making process and from which “legal consequences
flow,” Bennett v. Spear, 520 U.S. 154, 178 (1997), and argue that the lack of a final agency
action deprives the court of subject matter jurisdiction. The court will not devote much time to
16

this argument, since even the cases defendants cite indicate that the APA’s final agency action
requirement is not jurisdictional in nature. See, e.g., Trudeau v. Fed. Trade Comm’n, 456 F.3d
178, 184 (D.C. Cir. 2006); Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety
Comm’n, 324 F.3d 726, 731 (D.C. Cir. 2003). Thus, “even if [the court] were to infer by
negative implication that agency conduct not amounting to final agency action is not
‘reviewable,’ that inference would not deprive a federal court of any jurisdiction it otherwise
has.” Trudeau, 456 F.3d at 183-84.8
Second, defendants lay out numerous developments in Sutton’s case since its filing,
pointing out that some action was taken, in the form of a NOID, as recently as May 6, 2013 and
that Sutton responded on June 5, 2013. (See Second Amended Mot. to Dismiss Exh. A (dkt.
#49-1).)

For this reason, they argue, the delay Sutton alleges cannot possibly be

“unreasonable.” While these events go to the merits of Sutton’s claim of unreasonable delay -and may well affect his ability to prevail on his APA claim, see Saleem, 520 F. Supp. 2d at
1058-59 (listing “length of the delay” as a factor for courts to consider in assessing
reasonableness of delay) -- they do not deprive the court of jurisdiction. While defendants may
ultimately be able to demonstrate the delay Sutton alleges was not at all unreasonable and
thereby prevail on the merits, that possibility does not deprive the court of subject matter
jurisdiction under the APA. Cf. Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 89-90 (1998)
(noting that where petitioners’ rights to recover on their complaint are sustained on one
construction of the Constitution or federal law, and defeated on another, the district court has
jurisdiction).

“[W]here delay will inflict such impairment on a party’s rights as to amount to a violation of a
legal right, it may be considered ‘final action’ subject to judicial review.” 2 Fed. Proc., L. Ed.
§ 2:319. Thus, “[t]he claim of unlawful or unreasonable delay establishes court jurisdiction even
though there has been no final agency order, and the relief sought is e.g. an order requiring the
agency to hold a hearing.” Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Nat’l
Mediation Bd., 425 F.2d 527, 535 n.3 (D.C. Cir. 1970) (citations omitted).
17

8

Finally, defendants argue in their initial motion that Sutton’s APA claims are not ripe,
since they are not currently fit for judicial decision and there is no hardship to delaying court
consideration. (See Second Amended Mot. to Dismiss (dkt. #49) 11-16.) This argument
appears to have arose from defendants’ confusion over the nature of Sutton’s APA claim,
believing he intended to challenge a denial of his I-130 petition, rather than a refusal to decide.
Were this Sutton’s actual challenge, defendants would be correct in finding Sutton’s claims not
yet ripe at this time (just as his constitutional claims, premised on a hypothetical denial of the
I-130 petition, are not currently ripe). In actuality, Sutton is asking the court to compel a
decision -- any decision -- on the I-130 petition, which presents an entirely different claim. To
dismiss on ripeness grounds given what Sutton is actually requesting strikes the court as
problematic, since to hold that claims to compel agency action are not ripe where no final
agency action has yet taken place would be to eviscerate the force behind 5 U.S.C. § 706(1)’s
permission to “compel agency action unlawfully withheld or unreasonably delayed.”
Accordingly, the court declines to dismiss Sutton’s APA claims on ripeness grounds.

C. Mandamus Jurisdiction
To state a claim for mandamus relief, a plaintiff must demonstrate that: (1) he has a
clear right to the relief sought; (2) the defendant has a duty to perform the act in question; and
(3) there is no other adequate remedy available. Ahmed, 328 F.3d at 387. As previously noted,
a district court has jurisdiction to determine whether these prerequisites have been satisfied
“unless the claim is so frivolous that it fails the Bell v. Hood test.” Id. at 386.
Relief by means of mandamus often “goes hand in hand with” relief under the APA. He
v. Chertoff, 528 F. Supp. 2d 879, 884 (N.D. Ill. 2008) (citing Xin Liu v. Chertoff, No. 06-2808,
2007 WL 2433337, at *3 (E.D. Cal. Aug. 22, 2007); see also, e.g., Hernandez-Avalos v.
Immigration & Naturalization Servs., 50 F.3d 842, 845 (10th Cir. 1995) (noting that “[a]
mandatory injunction [issued under the APA] . . . is essentially in the nature of mandamus.
18

Thus, jurisdiction for its issuance can be based on either § 1361 or 1331, or both.”) (quoting
Carpet, Linoleum and Resilient Tile Layers Local 419 v. Brown, 656 F.2d 564, 566-67 (10th
Cir. 1981) (alterations in original)); Sawan v. Chertoff, 589 F. Supp. 2d 817, 822-23 (S.D. Tex.
2008) (noting that plaintiffs must make “a similar showing” for mandamus relief and
injunctive relief under the APA). There is, therefore, neither a reason to repeat the analysis as
to Sutton’s right to relief sought and defendants’ duty to adjudicate Sutton’s I-130 petition, nor
to respond to the BIA remand order; there is also no discernible reason why USCIS would
potentially have a duty to act under the APA, which allows a court to compel “required agency
action,” but not under the MVA, which allows a court to compel action the defendant has a
“duty to perform.”
Though defendants are correct that mandamus is “an extraordinary remedy . . . to be
employed only under exceptional circumstances,” Ass’n of Am. Med. Colleges v. Califano, 569
F.2d 101, 110 n.80 (D.C. Cir. 1977), that contention again goes to whether Sutton will ultimately
be entitled to the mandamus relief he seeks, not whether the court has jurisdiction to entertain
a request for that relief. Indeed, most of defendants’ arguments involving the MVA assert that
Sutton’s claims are “without merit.” (See, e.g., Defs.’ Reply (dkt. #54) 13.) Defendants will
have an opportunity to challenge the merits of Sutton’s mandamus claim; for now, it is
sufficient that the court finds his claim “plausible enough to engage the court’s jurisdiction.”
Ahmed, 328 F.3d at 387.9

Defendants do not argue that Sutton has an adequate alternative remedy, but even considering
that possibility, the court finds it plausible that he does not. First, as this court held in Saleem,
“‘[w]aiting’ is not a ‘remedy.’” Saleem, 520 F. Supp. 2d at 1061. Second, it is true that some courts
have held the existence of a remedy under the APA precludes mandamus relief. See, e.g.,
Wyandotte Nation v. Salazar, No. 11-2656-JAR-DJW, 2013 WL 1497821 (D. Kan. Apr. 10, 2013),
at *6 (“The availability of a remedy under the APA technically precludes [the Nation’s] alternative
request for a writ of mandamus.”) (quoting Mt. Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170
(10th Cir. 1997)). Given the Seventh Circuit’s holding in Ahmed, which indicated that even a
conclusion that one of the prerequisites of mandamus is missing does not deprive the court of
subject matter jurisdiction, and given that it is still unclear whether Sutton does, in fact, have a
remedy under the APA, the court finds that it has subject matter jurisdiction in this case.
19
9

Finally, defendants also argue in their initial motion that Sutton’s claims under the
MVA are moot. Mootness “has two aspects: when the issues presented are no longer ‘live’ or
the parties lack a legally cognizable interest in the outcome.” U.S. Parole Comm’n v. Geraghty,
445 U.S. 388, 396 (1980) (internal quotation marks omitted).

Defendants contend that

because Sutton asks this court to compel action on his pending I-130 petition, and because
USCIS has been active in his case since October 22, 2012, his claim is therefore moot.
The court does not find that the controversy in this case has been rendered moot by this
action of the USCIS to date. Sutton has requested as relief not just that USCIS take “some sort
of action” in his case, but also that it issue a response to the BIA’s remand order and decide his
pending I-130 petition. (See Second Amended Compl. (dkt. #47) 12-13.) USCIS has done
neither. Again, the court does not intend to opine on the merits of Sutton’s requests; it simply
notes that the issues Sutton raises are still “live” and that he has a concrete interest -adjudication of his pending petition -- in the outcome of this lawsuit.

ORDER
IT IS ORDERED that:
1) Plaintiff Sutton’s constitutional claims are DISMISSED without prejudice for lack of
ripeness.
2) Defendants’ motion to dismiss for lack of subject matter jurisdiction is in all other
respects DENIED.
3) The deadline for the parties to file any dispositive motions or revised motions is
extended to December 16, 2013. In light of the holidays, responses shall be due on
or before January 15, 2014, with replies due by January 31, 2014.
Entered this 15th day of November, 2013.
BY THE COURT:
s/ William M. Conley
WILLIAM M. CONLEY
District Judge 
20