Zhou v. FBI, Director, et a l . CV-07-238-PB 06/12/08

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kuan Zhou

v. Case No. 07-cv-238-PB Opinion No.

Federal Bureau of Investigation, Director, et a l .

MEMORANDUM AND ORDER

I. BACKGROUND

Kuan Zhou, a thirty-three year old Chinese citizen, lives in

Durham, New Hampshire. He filed an 1-485 application to adjust

his status to become a lawful permanent resident at the Vermont

Service Center of the United States Citizenship and Immigration

Service ("USCIS") on March 23, 2005. Zhou's application was

transferred to USCIS's Texas Service Center in March 2007, but

remains unadjudicated. According to USCIS's online case status

service, as of the filing of Zhou's complaint, the Texas Service

Center was already processing 1-485 applications that were filed

in August of 2006, some eighteen months after Zhou filed his I-

485 application. His security investigation remains unfinished. Zhou seeks an order from this court compelling the relevant

agencies to complete his security investigation and adjudicate

his 1-485 application. Defendants argue in a motion to dismiss

that the court lacks subject matter jurisdiction and that the

complaint fails to state a claim for relief.

II. STANDARD OF REVIEW

The standard that a district court must use in evaluating a

challenge to its subject matter jurisdiction will vary depending

upon the nature of the challenge. Here, the motion to dismiss

does not depend upon disputed facts. Thus, dismissal for lack of

subject matter jurisdiction will be warranted only if "the facts

alleged in the complaint, taken as true, do not justify the

exercise of subject matter jurisdiction." Muniz-Rivera v. United

States,

(1st Cir. 2003) .

On a motion to dismiss for failure to state a claim, I

accept as true the well-pleaded factual allegations of the

complaint and draw all reasonable inferences therefrom in the

plaintiff's favor. Martin v. Applied Cellular Tech., Inc.,

(1st Cir. 2002). Although the complaint "does not need

detailed factual allegations," the allegations "must be enough to

- 2 - raise a right to relief above the speculative level." Bell Atl.

Corp. v. Twombly, 127 S. C t . 1955, 1965 (U.S. 2007); Parker v.

Hurley,

(1st Cir. 2008). The recently-

promulgated Bell Atlantic Corp. v. Twombly, 127 S. C t . 1955 (U.S.

2007), standard is more demanding than the "any set of facts"

standard that it superseded. See id. at 1965.

III. ANALYSIS

The government first contends that

(a)(2)(B)

(ii) strips the court of jurisdiction to hear Zhou's claims. It

alternatively argues that Zhou's complaint fails to state a

viable claim for relief both because the Administrative Procedure

Act ("APA") does not provide him with a right to sue1 and because

his complaint in any event fails to allege sufficient facts to

support a claim under the APA. I address each argument in turn.

1 The government characterizes this argument as a challenge to the court's subject matter jurisdiction. Because the guestion of whether the APA provides for judicial review of an agency's action is not an issue of subject matter jurisdiction, see Air Courier Conference v. Am. Postal Workers Union,

, 523 n.3 (1991) (noting that the judicial review provisions of the APA are not jurisdictional); R.I. Dep't of Envtl. Mgmt. v. United States,

, 40 (1st Cir. 2002) (analyzing issue as a guestion of whether a cause of action exists under the APA), however, I have reframed the government's argument and analyzed it under Fed. R. Civ. P. 12 (b) (6) .

- 3 - A. Whether

(a)(2)(B)(ii) Strips this Court of Jurisdiction

The government argues that

(a) (2) (B) (ii)

strips this court of jurisdiction to hear any case challenging

the pace at which USCIS decides adjustment of status

applications. In relevant part, § 1252(a) (2) (B) states:

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

(a) (2) (B) .

Importantly, this jurisdictional bar does not cover all

discretionary decisions or actions. Aguilar v. U.S. Immigration

& Customs Enforcement Div.,

(1st Cir. 2007); Cho

v. Gonzales,

, 99-100 (1st Cir. 2005); see also, e.g.,

Alaka v. Attorney Gen.,

(3d Cir. 2006); Zhao

v. Gonzales,

(5th Cir. 2005); Spencer Enters.

v. United States,

, 690 (9th Cir. 2003). Rather, it

applies only to decisions or actions "the authority for which is

specified under this subchapter to be in the discretion of the

Attorney General or the Secretary of Homeland Security."

(a)(2)(B)(ii) (emphasis added). Accordingly, courts

- 4 - must "engage in a precise reading of both the agency decision and

the petition" to determine whether the jurisdictional bar

applies. Cho,

. "If a statute does not

explicitly specify a particular authority as discretionary,

section 1252(a)(2)(B)(ii) does not bar judicial review of an

ensuing agency action." Aguilar,

.

In this case, Zhou has applied for an adjustment of status

to become a lawful permanent resident pursuant to

. Section 1255(a) expressly grants discretionary authority

to the Secretary of Homeland Security2 to grant or deny such an

adjustment reguest.

(a). The statute does not

separately specify, however, that the Secretary has discretionary

authority to withhold adjudication of an adjustment of status

reguest or to otherwise delay the pace of the adjudication

process. Instead, discretion with respect to the timing of a

decision on an adjustment of status application must be inferred

from the discretion that is explicitly granted to the Secretary

to approve or deny the application.

2 The text of § 1255 (a), as enacted, gives the Attorney General this authority, but theauthority has since been transferred to the Secretary ofHomeland Security. See

7 1 (b) (5);

.

- 5 - The government argues that the explicit grant of discretion

in § 1255(a) to approve or deny an adjustment of status

application also gualifies as a specification of discretion to

withhold or delay the adjudication of an adjustment of status

reguest. In making this argument, the government appears to

endorse the reasoning employed by a number of district courts,

all but one of which come from outside the First Circuit.3 See,

e.g., Touarsi v. Mueller,

(D. Mass.

2008); Virelles v. Gonzalez, No. 07-21687-CIV,

,

at *3 (S.D. Fla. Oct. 11, 2007); Sharif v. Chertoff,

(N.D. 111. 2007); Zhang v. Chertoff,

(W.D. Va. 2007); Serrano v. Quarantillo, No. 06-cv-5221,

, at *3 (D.N.J. Apr. 9, 2007); Safadi v. Howard,

(E.D. V a . 2006).

I decline to adopt the government's reasoning because it is

inconsistent with First Circuit precedent. Cho v. Gonzales,

(1st Cir. 2005), is instructive. In Cho, the plaintiff

initially received conditional permanent residency on the basis

3 Although it was decided too recently to be reflected in the briefs, Touarsi v. Mueller,

(D. Mass. 2008), holds that § 1252(a)(2)(B)(ii) precludes review of the timing of USCIS's processing of adjustment of status applications. For the reasons discussed below, however, I find the Touarsi court's analysis unconvincing.

- 6 - of her marriage to a U.S. citizen.

. After the

couple divorced, the plaintiff applied for a hardship waiver to

remove the conditionality of her permanent residency.

The

Immigration and Nationality Act ("INA") gave the Attorney General

discretion to grant or deny such a waiver so long as the

petitioner met certain reguirements specified in the statute.

Id. at 98; see also 8 U.S.C. § 1186a(c) (4) . Ultimately, the

Attorney General denied the waiver on the ground that the

plaintiff failed to meet the statutory reguirement of having

married in good faith. Cho,

. In response to the

plaintiff's challenge to this determination, the First Circuit

held that the relevant "decision or action" for § 1252(a) (2) (B)

(ii) purposes was not the Attorney General's ultimate decision to

deny the hardship waiver, but rather the underlying finding that

the plaintiff failed to establish that she married in good

faith.4 Id. at 99. Thus, § 1252(a)(2)(B)(ii) could only strip

4 As the Cho court pointed out, if Congress had intended to impose a broader jurisdictional bar to apply in this circumstance, "it is hard to see why it would not have said so more clearly and categorically, using language such as that in, for example, IIRIRA [Illegal Immigration Reform and Immigrant Responsibility Act of 1996] § 309(c)(4)(G) ( ' [ T ] h e r e shall be no appeal permitted in the case of an alien who is inadmissable or deportable by reason of having committed [certain criminal offenses]') . . . ." Cho,

.

- 7 - the court of jurisdiction over the plaintiff's claim if some

language in the INA explicitly committed the good-faith marriage

determination to the Attorney General's discretion. Id. at 101.

Under Cho, then, the relevant decision or action for §

1252(a)(2)(B)(ii) purposes is not the ultimate decision to grant

or deny relief, but the underlying decision or action that

actually gave rise to the petitioner's grievance. See id. at 99.

As applied to Zhou's situation, this means that the relevant

action or inaction is not the ultimate grant or denial of Zhou's

adjustment of status application, but rather the Secretary's

alleged failure to act on the application in a timely fashion.

Nothing in the INA explicitly commits the pace of adjudication to

the discretion of the Secretary or explicitly gives the Secretary

discretion to withhold adjudication. Accordingly, the pace of

adjudication is outside the reach of the jurisdictional bar. See

id.

In addition to being supported by First Circuit precedent,

this construction of the jurisdictional bar is consistent with

the overall statutory scheme. If § 1252(a)(2)(B)(ii) reached as

broadly as the government contends, then USCIS could, without

fear of judicial intervention, flatly refuse to carry out its statutory duty to adjudicate adjustment of status petitions.

Such a result would conflict with the congressional intent,

embodied in the APA, to allow courts to intervene when agencies

fail to carry out their mandatory duties in a reasonable period

of time. See

(b) ("With 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."). It would also conflict

with the strong general presumption in favor of judicial review

of administrative action. See INS v. St. Cyr,

(20 0 1 ) .

Finally, the conclusion I reach is consistent with a number

of recent decisions by other district courts, including the

majority of district courts in the First Circuit that have

considered the issue. See Vorontsova v. Chertoff, No. 07-10426-

RGS,

, at *2 (D. Mass. Nov. 2, 2007); Aziz v.

Chadbourne, No. 07-11806-GAC,

, at *2 (D. Mass.

Oct. 15, 2007); Tang v. Chertoff,

(D.

Mass. 2007); see also, e.g., Ceken v. Chertoff,

(D. Conn. 2008); Lindems v. Mukasey,

(E.D. Wis. 2008); Belegradek v. Gonzales,

(N.D. G a . 2007); Alkeylani v. Dep't of Homeland

Sec.,

(D. Conn. 2007); Dong v.

Chertoff,

(N.D. Cal. 2007); Liu v .

Novak,

(D.D.C. 2007); Cao v. Upchurch,

(E.D. Pa. 2007).

Accordingly, because the INA does not expressly grant

discretionary authority to any agency to withhold or delay a

decision on an adjustment of status application, § 1252(a) (2) (B)

(ii) does not strip this court of jurisdiction to review Zhou's

complaint.5

B. Whether Zhou Asserts a Cognizable Cause of Action

Zhou asserts that his claims arise under the mandamus

5 The government alternatively argues that

(b)(18), which gives agency officials the discretion to withhold adjudication in six-month increments to allow time for extended investigations, is an express grant of discretionary authority that triggers the jurisdictional bar. The First Circuit has held, however, that § 1252(a) (2) (B) (ii) "does not limit our jurisdiction when [the relevant agency] exercises discretion that is not specified anywhere in the statutory subchapter, but rather derives entirely from regulations promulgated by the Attorney General under the statute." Alsamhouri v. Gonzales,

(1st Cir. 2007) . Because the discretionary process described in

(b)(18) is merely a regulation promulgated by the Secretary that is not specified anywhere in the statutory subchapter, it does not trigger § 1252 (a) (2) (B) (ii) . Id.

- 10 - statute,

; the APA,

et seq.; and

the Declaratory Judgment Act,

.6 Because I find

that Zhou has a cognizable claim under the APA, I need not

consider Zhou's other asserted bases for his claim.

The APA authorizes suit by, inter alia, a person who is

adversely affected by an agency withholding or delaying a

reguired action. Norton v. S. Utah Wilderness Alliance (SUWA),

(2004). Such a suit may proceed only if the

"plaintiff asserts that an agency failed to take a discrete

agency action that it is required to take."

(emphasis

in original);

(1). The government argues that

because there is no deadline by which USCIS must complete its

review of Zhou's application, USCIS has no duty ever to complete

the review; alternatively, the government contends that if such a

duty exists, it is too unbounded for a court to enforce. Neither

argument has merit.

As to the first argument, nothing in the INA or the relevant

regulations suggests that it would be a proper exercise of

6 As noted earlier, although the government characterizes this as an issue of subject matter jurisdiction, I have reframed the government's argument as being that Zhou is unable to maintain a cause of action under the APA and I analyze it under Fed. R. Civ. P. 12 (b) (6) .

- 11 - discretion for USCIS to refuse to adjudicate an applicant's

adjustment of status application.7 Rather, the statutes and

regulations assume that an actual decision -- that is, an

approval or denial of the application -- will be made on each

application. See, e.g.,

(a) (5) (describing

procedures for approving or denying an application for adjustment

of status, but giving no procedure for deciding never to act upon

the application).

In this context, the absence of an explicit deadline for

adjudication does not eliminate USCIS's duty to adjudicate

applications. Instead, it forces a reviewing court to fall back

on the APA's general reguirement, contained in

(b),

that " [w]ith due regard for the convenience and the necessity of

the parties or their representatives and within a reasonable

time, each agency shall proceed to conclude a matter presented to

it."

(b). Accordingly, USCIS has a duty to

adjudicate Zhou's application "within a reasonable time." See

(b).

7 It is true that

(b) (18) allows USCIS to withhold adjudication in six-month increments to permit further investigation. Such withholding is, however, allowed only for a specific purpose and for limited periods of time. It is not a blanket authority to avoid making a final decision indefinitely or for any reason.

- 12 - To support its contention that no duty exists at all, the

government relies on Norton v. Southern Utah Wilderness Alliance

(SUWA),

(2004), in which the Supreme Court held that

the APA did not authorize a suit against the Bureau of Land

Management for that agency's failure to implement various

elements of its non-binding land use plan. See

.

The analogy between Zhou's case and SUWA is unconvincing,

however, because the result in that case hinged on the

aspirational nature of the land use plan. See

("[A] land use

plan is generally a statement of priorities; it guides and

constrains actions, but does not (at least in the usual case)

prescribe them."). The Secretary's duty to adjudicate adjustment

of status applications is not aspirational. Thus, SUWA is

distinguishable.

The government's fallback argument -- that even if it does

have some duty to adjudicate Zhou's application, the general

directive of § 555 (b) is too vague for a court to enforce -- also

fails. The government relies on Heckler v. Chaney,

(1985), which states that judicial review may be precluded when

"a court would have no meaningful standard against which tojudge

the agency's exercise of discretion."

. The

- 13 - government incorrectly focuses on Heckler's "no meaningful

standard" language, however, without considering the meaning of

the phrase "against which to judge the agency's exercise of

discretion." Heckler is similar to SUWA in that the Heckler

plaintiffs sought to challenge an agency's discretionary refusal

to initiate an enforcement action. Heckler,

.

The Heckler court declined to exercise jurisdiction based not on

guestions of timing, but because of the more basic "general

unsuitability for judicial review of agency decisions to refuse

enforcement," which made it impossible to judge whether or not

the agency's discretionary decision not to initiate an

enforcement action was appropriate.

.

In this case, however, the inaction at issue is not a

discretionary refusal to initiate an enforcement action. It is

USCIS's alleged failure to carry out its duty to adjudicate

Zhou's application for adjustment of status within a reasonable

time. Because USCIS may exercise discretion only over how and

when it will adjudicate the application, not whether it will

adjudicate the application at all. Heckler is inapposite. For

actions that an agency has no discretion to refuse to carry out,

but may complete on an indeterminate schedule, the courts have

- 14 - been more willing to inquire into whether the agency has

unreasonably delayed such action. See, e.g., Mashpee Wampanoag

Tribal Council, Inc. v. Norton,

(D.C. Cir.

2003) (remanding to the district court for "a full and fresh

evaluation" of whether the Bureau of Indian Affairs unreasonably

delayed the adjudication of a petition for tribal recognition);

Forest Guardians v. Babbitt,

(10th Cir. 1999)

("[I]f an agency has no concrete deadline establishing a date by

which it must act . . . a court must compel only action that is

delayed unreasonably.").

The process of deciding what constitutes an "unreasonable

delay" is often a complex and fact-intensive task. See Mashpee

Wampanoag Tribal Council,

("Resolution of a

claim of unreasonable delay is ordinarily a complicated and

nuanced task requiring consideration of the particular facts and

circumstances before the court."); Cobell v. Norton,

(D.C. Cir. 2001) (describing a fact-intensive multi­

factor test that the D.C. Circuit considers in reviewing

unreasonable delay claims). But it is the kind of task that

courts can and do undertake. Accordingly, I find that under the

APA, I may consider whether USCIS's delay in processing Zhou's

- 15 - adjustment of status application was so lengthy and unjustified

that it became unreasonable. See Vorontsova,

, at

*2; Aziz,

, at *3; Tang,

-

56; see also, e.g., Ceken,

; Lindems,

; Belegradek, 52 3 F. Supp. 2d at 13 68;

Alkeylani,

; Liu,

;

Cao,

. But see Dong,

(finding jurisdiction under the APA but not tracing its

source to the "unreasonable delay" rule).

C. Whether Zhou Has Adequately Alleged an Unreasonable Delay

I now turn to the guestion of whether Zhou's allegations of

unreasonable delay are sufficient to raise his right to relief

"above the speculative level." See Bell At l . Corp., 127 S.Ct. at

1965.

Congress has provided little guidance here, but it did set

an aspirational goal that immigration benefit applications

should, as a general rule, be processed within 180 days of

filing.

(b). Additionally,

(b)(18) specifies a process by which USCIS may temporarily

withhold adjudication to allow for completion of an

investigation. Under this process, the district director may

- 16 - authorize up to two six-month delays and the regional

commissioner may authorize an additional six-month delay.

Further six-month delays are permissible only if the Associate

Commissioner of Examinations and the Associate Commissioner of

Enforcement agree that they are necessary to allow for completion

of the investigation.

(b) (18) . Taken together,

this means that an application may be delayed for up to two years

without the approval of anyone above the regional commissioner

level. This suggests that a delay of two years or less is

unlikely to be per se unreasonable, but it does not offer much

aid in evaluating longer delays like the one in the case at bar.

In determining what constitutes an unreasonable delay, other

courts have examined such factors as the length of the delay, the

reasons for the delay, the relative fault of the parties in

causing the delay, the complexity of the matter under review, the

interest of the plaintiff in expediting the matter, and any

interests of the agency that would be negatively affected by

expediting the matter. See, e.g., Ceken,

("In order to determine the reasonableness of the delay, the

court must look to the source of the delay -- e.g., the

complexity of the investigation as well as the extent to which

- 17 - the defendant participated in delaying the proceeding." (internal

guotations omitted)); Lindems,

("I may

consider such factors as the length of delay, the complexity of

the matter under review and the relative fault of the parties in

causing the delay."); Belegradek,

("[CJourts have applied a rule of reason, considering: (1) the

source of the delay, (2) the complexity of the investigation, (3)

whether any party participated in delaying the proceeding, (4)

the nature and extent of the interests prejudiced by the delay,

and (5) whether expediting action on agency activities will have

an adverse effect on higher or competing priorities.").

Within the First Circuit, district courts have focused

primarily on the length of the delay. See Vorontsova,

, at *3 ("[A] twenty-one month delay in adjudicating

Vorontsova's application is not per se unreasonable."); Aziz,

, at *2 ("As a matter of law, the agency cannot be

held to have 'unreasonably delayed' action if the application has

not been processed within two months after filing. That is well

within the aspirational time limit expressed by Congress, as well

as those limits implied by cases that have found unreasonable

delays."); Tang,

("It has taken over

- 18 - four years and counting for the government simply to acknowledge

. . . that there are no FBI records pertaining to Tang.").

In this case, Zhou's application has been pending for

approximately three years (he first applied for adjustment of

status in March 2005). As of July 2007, this put his application

approximately eighteen months behind other 1-485 applications

being processed at the Texas Service Center. This is a longer

delay than those in cases that courts have dismissed at the

12(b)(6) stage. See Vorontsova,

, at *3 (granting

government's motion to dismiss where applicant experienced a

delay of slightly less than two years); Aziz,

, at

*3 (granting government's motion to dismiss where applicant

experienced a two-month delay). Additionally, it is within the

range of delays that have survived motions to dismiss. See,

e.g., Belegradek,

(denying government's

motion to dismiss where applicant experienced a two-year delay) ;

Alkeylani,

(denying government's motion to

dismiss where applicant experienced a three-year delay); Cao,

(granting plaintiff's motion for summary

judgment where applicant experienced a four-year delay); Tang,

(denying government's motion to dismiss

- 19 - where applicant experienced a four-year delay). In addition to

the absolute length of the delay, it is noteworthy that Zhou's

application has fallen eighteen months behind the processing of

other 1-485 applications. Although other factors may be relevant

for summary judgment purposes,8 Zhou's time-based allegations are

alone sufficient to raise his claim above the level of mere

speculation.

The government points to two general policy concerns that,

it argues, should nevertheless prevent Zhou's case from

proceeding further. The first is that allowing some applicants

to sue for speedier adjudication would simply reshuffle the line

without speeding up the process as a whole. The second, related

concern is that such reshuffling would do nothing to alleviate

the underlying problem of limited agency resources that leads to

long processing times in the first place. Although I am

sympathetic to USCIS's predicament, nothing before me indicates

that advancing the relatively small number of applicants who have

experienced multi-year delays to the head of the line would

seriously interfere with higher or competing priorities. As

8 For example, nothing presently before me sheds light on the reasons for the delay or the relative fault of the parties in causing the delay.

- 20 - other courts have noted, the fact that the relevant agencies lack

sufficient resources to timely process all adjustment of status

applications is ultimately a problem for the political branches,

not the courts, to solve. It is not the aggrieved applicants who

have created this problem, and it would not be appropriate for

the courts to shift the burdens of this political failure onto

the shoulders of individual immigrants. See Tang, 4 93 F. Supp.

2d at 158.

IV. CONCLUSION

For the foregoing reasons. Defendants' Motion to Dismiss

(Doc. No. 7) is denied.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

June 12, 2008

cc: Randall A. Drew, Esg. Seth R. Aframe, Esg.

- 21 -