ORDER
This matter is before the Court on the Report and Recommendation (“R & R”) of Magistrate Judge Janie S. Mayeron dated February 14, 2008. In the R & R, Magistrate Judge Mayeron recommended that this Court deny Defendants’ Motion to Dismiss.
Defendants have filed a one-page objection to the R & R, contending that the Magistrate Judge erred by failing to distinguish between Defendant Mueller and the USCIS Defendants. Defendants apparently do not otherwise take issue with the R & R’s conclusion that this Court has subject matter jurisdiction over Plaintiffs challenge to the inordinate delay in ruling on his adjustment-of-status application.
Defendants may be correct that Defendant Mueller cannot grant (or deny) Plaintiff the relief he seeks. However, a review of the papers filed in this matter reveals that Defendants failed to raise this argument before the Magistrate Judge. Thus, it is disingenuous to claim that the Magistrate Judge erred on this point. By neglecting to make this argument, Defendants have waived it, at least for the purposes of the Motion to Dismiss.
Accordingly, IT IS HEREBY ORDERED that:
1. The Report and Recommendation (Docket No. 17) is ADOPTED; and
2. Defendants’ Motion to Dismiss (Docket No. 5) is DENIED.
REPORT AND RECOMMENDATION
JANIE S. MAYERON, United States Magistrate Judge.
The above matter came before the undersigned upon defendants’ Motion to Dismiss [Docket No. 5]. Lonnie F. Bryan, Esq. appeared on behalf of defendants. Marc Prokosch, Esq., appeared on behalf of plaintiff. The matter was referred to the undersigned by the District Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
I. FACTUAL BACKGROUND
Plaintiff Hani Burni brings this action against Denise Frazier, District Director, *897 United States Citizenship and Immigration Services (“USCIS”); Emilio T. Gonzalez, Director, United States Citizenship and Immigration Services; and Robert S. Mueller, Director, Federal Bureau of Investigation, seeking a writ to compel defendants to complete the required background checks and security clearances and to adjudicate his application for adjustment of immigration status.
Plaintiff is a native of Saudi Arabia and a citizen of Syria who resides in Minneton-ka, Minnesota. Complaint, ¶¶ 1, 8 [Docket No. 1]. After marrying a U.S. citizen in 2004, he filed an 1-485 application for adjustment of status to lawful permanent residency on or about December 10, 2004. Id., ¶ 8. Plaintiffs wife filed an 1-130 visa petition simultaneously with plaintiffs I-485 petition. Id., ¶ 9. The visa petition was approved on June 30, 2005, and plaintiff was therefore immediately eligible to adjust his immigration status to that of a lawful permanent resident. Id. Plaintiff was given notice that he could not be recommended for final approval because his security checks were not complete. Id., ¶ 10. Plaintiff has made numerous efforts to get defendants to complete their security checks and adjudicate his application, including making written inquiries to the Department of Homeland Security, making Infopass appointments at the local district office to inquire about the status of his case, and writing to various government officials. Id., ¶ 12. Because his application has not been adjudicated, plaintiff has been unable to move forward with his life, he has lost valuable job opportunities, he has been deprived of peace of mind, and deprived of important benefits, rights and protections to which he would be entitled as a lawful permanent resident of the United States. Id., ¶ 14.
According to defendants, the FBI commenced plaintiffs name check on or about December 23, 2004. 1 Declaration of Rebecca Arsenault Herize, ¶ 5(d) [Docket No. 7].
The Complaint seeks an order compelling defendants and those acting under them to complete the required background checks and adjudicate plaintiffs application for adjustment of status. Complaint, ¶ 21. Plaintiff alleges that this Court has jurisdiction of the suit pursuant to 28 U.S.C. § 1361 (Mandamus Act), 28 U.S.C. § 1331 (federal question statute) and 5 U.S.C. §§ 551 et seq. and 701 et seq. (Administrative Procedure Act). Complaint, ¶ 2. Plaintiff asserts that he has exhausted his administrative remedies. Complaint, ¶ 13.
Defendants now bring the current motion to dismiss for lack of subject matter jurisdiction. [Docket No. 5].
II. STANDARD OF REVIEW
A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1) may challenge the plaintiffs complaint either on its face or on the factual truthfulness of its averments.
See Titus v. Sullivan,
In a factual challenge to jurisdiction, the court may consider matters outside the pleadings and the non-moving party does not benefit from the safeguards of 12(b)(6).
See Titus,
Here as the parties are relying on facts extrinsic to the Complaint, the Court will treat defendants’ motion as a factual challenge to jurisdiction.
See Sawad v. Frazier,
III. ANALYSIS
Defendants move to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that none of the grounds for jurisdiction cited by plaintiff are valid, and that the Immigration and Nationality Act (“INA”) bars plaintiffs claim. Defs. Mem., p. 3 [Docket No. 10]. Specifically, defendants’ motion to dismiss is based on their contention that 8 U.S.C. § 1252(a)(2)(B)(ii) of the Immigration and Nationality Act (“INA”) bars plaintiffs claim, and the other statutes relied upon by plaintiff, the Mandamus Act and the APA, do not confer subject matter jurisdiction on this Court. Defs. Mem., p. 1 [Docket No. 6]. Thus, it is defendants’ position that while plaintiff has been waiting more than 3 years for USCIS to adjudicate his application for adjustment of status, his only remedy is to wait and this Court has no authority to intervene. For all of the reasons set forth below, this Court rejects defendants’ contentions and concludes that it has jurisdiction over plaintiffs suit.
A. 8 U.S.C. § 1252(a)(2)(B)(ii)
It is defendants’ position that 8 U.S.C. § 1252(a)(2)(B)(ii) bars judicial review of the denial of an adjustment of status application. Therefore, they maintain that a court cannot compel USCIS to adjudicate an adjustment of status application within a particular period of time. Defs. Mem., p. 9. In short, defendants claim that § 1252(a)(2)(B)(ii) strips this Court of jurisdiction over plaintiffs suit and his case should be dismissed. The Court disagrees.
In pertinent part, 8 U.S.C. § 1252(a)(2)(B)(ii) states as follows:
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), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—
(ii) any other decision or action of the Attorney General or the Secretary of *899 Homeland Security the authority for which is specified under this subchap-ter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
(Emphasis added).
Section 1255 of Title 8 is the provision within the INA that bears on plaintiffs application for adjustment of status. This statute states:
The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA 2 self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
(Emphasis added).
Defendants claim that because § 1255 gives the Attorney General discretion to adjust plaintiffs adjustment of status, it follows that § 1252(a)(2)(B)(ii) strips the Court of jurisdiction to address his claims.
“The jurisdiction stripping language [of Section 1252] applies not to all decisions the Attorney General is entitled to make, but to a narrower category of decisions where Congress has taken the additional step to specify that the sole authority for the action is in the Attorney General’s discretion.”
Alaka v. Attorney General,
One might mistakenly read § 1252(a) (2) (B) (ii) as stripping us of the authority to review any discretionary immigration decision. That reading, however, is incorrect, because § 1252(a)(2)(B)(ii) strips us only of jurisdiction to review discretionary authority specified in the statute. The statutory language is uncharacteristically pellucid on this score; it does not allude generally to “discretionary authority” or to “discretionary authority exercised under this statute,” but specifically to “authority for which is specified under this sub-chapter to be in the discretion of the Attorney General.”
Khan v. Atty. Gen. of United States,
There is no explicit provision in either § 1255 (or for that matter, its implementing regulations) that grants the Attorney General or USCIS specific discretion regarding the pace of adjudicating adjustment of status applications; rather, § 1255 only specifies that the Attorney General may adjust the status of an alien in his discretion.
3
“While 8 U.S.C. § 1255(a)
*900
specifically places the decision of whether to adjust status in the discretion of the Attorney General, it says nothing about the pace of such a decision, and certainly does not confer on the Attorney General discretion to let such a petition languish indefinitely.”
Han Cao v. Upchurch,
Therefore, pursuant to the plain language of § 1255, as there is nothing in this statute that grants discretion to defendants to determine the pace of adjudication of 1-485 applications for adjustment of status, this Court finds that § 1252(b)(2)(B)(ii) does not strip the court of jurisdiction. 4
Further, while some courts have found that the pace at which the USCIS processes an application is a discretionary action within the meaning of 8 U.S.C. § 1252(b)(2)(B)(ii),
see Safadi v. Howard,
[A] “decision” means that something must be decided. Although an “action” has a broader meaning, it too suggests that some conclusion has been made about the appropriate course to take. Dong v. Chertoff,513 F.Supp.2d 1158 (N.D.Cal.2007) (“The phrase ‘decision or action’ connotes some affirmative conduct by the Attorney General.”). Because plaintiffs claim is premised on defendants’ refusal to make a “decision” or to take “action” on his application, ... § 1252(a)(2)(B) is not implicated in this case.
Saleem,
Having found that jurisdiction is not foreclosed by § 1252(a)(2)(B), the Court now turns to the question of whether it has subject matter jurisdiction to proceed.
B. Mandamus Act and APA
Plaintiff alleges subject matter jurisdiction based on 28 U.S.C. § 1331, the federal question statute, 6 28 U.S.C. § 1361, the Mandamus Act, and the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 551 et seq., and 701, et seq.
The Mandamus Act 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.” 28 U.S.C. § 1361. A writ of mandamus is appropriate only where “(1) the petitioner can establish a clear and indisputable right to the relief sought, (2) the defendant has a nondiscretionary duty
*903
to honor that right, and (3) the petitioner has no other adequate remedy.”
Castillo v. Ridge,
The APA requires 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). Further, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. When judicial review is proper, “[t]he reviewing court shall compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706. However, the APA does not apply where (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. 5 U.S.C. § 701(a).
In response to plaintiffs claim for relief under the Mandamus Act, defendants argued that mandamus is inappropriate because plaintiff does not have a clear right to adjudication of his application within a specific time frame, and he has an adequate alternative remedy, which is to wait until his application is adjudicated. Def. Mem., pp. 13-15. In response to plaintiffs claim under the APA, defendants maintained that the INA (i.e. 8 U.S.C. § 1252(b)(2)(B)(ii)) precludes judicial review, 7 the APA precludes judicial review of agency actions committed to the discretion of the agency, and plaintiff has an adequate remedy. Id., pp. 15-17.
Plaintiff countered that he filed his I-485 application pursuant to 8 C.F.R. § 245. This regulatory scheme requires:
The applicant shall be notified of the decision, and if the application is denied, of the reasons for denial ... If the application is approved, the applicant’s permanent residence shall be recorded as of the date of the order approving the adjustment of status ...
8 C.F.R. §§ 245.2(a)(5)© and (ii).
According to plaintiff, this regulation, in conjunction with § 555(b) of the APA, creates a non-discretionary duty to adjudicate his within a reasonable time. PL’s Mem., pp. 4-5 (citations omitted). In addition, plaintiff asserted that he has no alternative, adequate remedy. Id., p. 7.
For all of the reasons articulated below, the Court rejects defendants’ reasoning and finds that both the APA and Mandamus Act afford plaintiff relief.
As a preliminary matter, this Court finds, as have other courts, that analysis of jurisdiction and relief under the Mandamus Act and APA is coextensive, and that there is no need to perform a separate analysis under the two acts.
See Sun,
The Court recognizes that district courts around the country are split on the issue of whether jurisdiction lies to entertain a claim for failure to timely adjudicate an adjustment of status application.
See e.g. Orlov,
Like several other judges in this District, this Court “joins a growing number of district courts in concluding that the USCIS has a duty to adjudicate adjustment of status applications once they have been submitted and that the APA requires the applications to be adjudicated in a reasonable time.”
Sun,
Title 8, section 1255 of the U.S.Code provides that an applicant’s status “may be adjusted by the Attorney General, in *905 his discretion ... to that of an alien lawfully admitted for permanent residence.” This language only refers to the ultimate decision of whether to grant permanent residence status. It does not provide that the USCIS can choose not to adjudicate Sun’s application. The court is convinced that the USCIS cannot. Rather, once an adjustment of status application is before the USCIS, the agency has an affirmative, non-discretionary duty to process that application. Moreover, although § 1255 and its implementing regulations do not provide for a time frame within which the US-CIS must adjudicate 1-485 applications, the APA requires that the applications be processed in a reasonable time. See 5 U.S.C. § 555(b). Therefore, [plaintiff] has a clear, indisputable and nondiscre-tionary right to an adjudication of her application within a reasonable time.
Id. See also Han Cao,
The district court in Liang v. Attorney General of the United States succinctly summarized the issue of the USCIS’s discretion:
Defendants’ point that they are not statutorily obliged to adhere to any particular time-frame in adjudicating 1-485 applications is well-taken. It is true that the USCIS’s discretion to set the procedures by which it adjudicates these applications gives it some flexibility in determining the timing of a decision. Nonetheless, each adjudication must ultimately be completed within a reasonable amount of time. To accept Defendants’ argument that timing is always a matter of discretion beyond the Court’s power to intervene would enable them to avoid judicial review even of adjudications that were postponed indefinitely. This would eviscerate § 706(1) of the APA, which clearly gives the Court the power to “compel agency action ... unreasonably delayed.”
As explained in Yu v. Brown,36 F.Supp.2d 922 , 932 (D.N.M.1999), “although neither [governing] statute specifies a time by which an adjudication should be made, we believe that by necessary implication the adjudication must occur within a reasonable time. A contrary position would permit the INS to delay indefinitely. Congress could not have intended to authorize potentially interminable delays.” Accordingly, the Court finds that it has the authority *906 under the Mandamus Act and the APA to compel Defendants to adjudicate promptly Plaintiffs’ petitions for adjustment of status.
With regard to defendants’ argument that plaintiff has an alternative or adequate remedy,
i.e.
waiting, the Court also finds that such a claim lacks merit. “The injury that plaintiffs complain of is that they have been required to wait too long already. It would be disingenuous to now conclude that because they could simply wait longer the court does not have jurisdiction.”
Sawad,
Here, plaintiffs application has been pending for over three years, and the Court finds that USCIS’s failure to act on the application in that time frame constitutes final agency action for the purposes of this case.
See Shah,
Because plaintiff can establish a clear and indisputable right to have his application adjudicated in a reasonable amount of time, defendants have a nondiscretionary duty to honor that right, and plaintiff has no other adequate remedy, the Court finds that mandamus and the APA provide a valid basis for subject matter jurisdiction. Therefore, this Court recommends that defendants’ motion to dismiss for lack of subject matter jurisdiction should be denied.
C. jReasonableness of Delay
In plaintiffs opposition to defendants’ motion to dismiss, plaintiff argued that the delay he has experienced is unreasonable as a matter of law. PL’s Mem., p. 8. Defendants argue that a three-year delay is not unreasonable because the Complaint does not allege nefarious intent, and because the delay experienced is less than the five-year delay considered reasonable in
Saleh v. Ridge,
*907
The Court concludes that it cannot on the present record determine that delay in excess of three years is unreasonable as a matter of law. In order to make a determination as to whether plaintiffs delay is unreasonable or not, it is necessary to evaluate information specific to plaintiffs case and the reason why plaintiffs name check in particular has been so delayed.
See Sawad,
RECOMMENDATION
For the reasons set forth above, it is recommended that Defendants’ Motion to Dismiss be denied.
Pursuant to Local Rule 72.2(b), any party may object to this Report and Recommendation by filing with the Clerk of Court, and by serving upon all parties on or before March 3, 2008 a copy of this Report, written objections which specifically identify the portions of the Report to which objections are made and the bases for each objection.
*908 EXHIBIT A
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
VICTOR MOC ANU CIVIL ACTION No. 07-0445 V. ROBERT S. MUELLER, ET AL.
GUISEPPE CUSUMANO V. MICHAEL B. MUKASEY, ET AL. CIVIL ACTION No. 07-0971
MOHAMMAD BARUCBIN V. UNITED STATES, ET AL CIVIL ACTION No. 07-3223
JEAN ELISSAINT V. UNITED STATES, ctal CIVIL ACTION No. 07-4747
ANDREW O, NEWTON, M.D. V. DONALD MONICA, ctal. CIVIL ACTION No. 07-2859
TONGZIAO ZHANG CIVIL ACTION No. 07-2718 V. MICHAEL CHERTOFF, et al.
SAID HUSSAIN CIVIL ACTION No. 08-195 V. MICHAEL B. MUKASEY, et al.
l
*909 PRAECIPE
TO THE CLERK OF THE COURT:
Kindly file the enclosed Certification of Supplement to the Administrative Record (AR CIS) and attached Memorandum regarding Revised National Security Adjudication and Reporting Requirements issued by USCIS as of February4,2008 in the above-captioned cases. The above-captioned actions were joined by the Honorable Michael Baylson, Judge Ü.S. District Court, for consolidated hearing with the other cases captioned on the Administrative Records previously supplied by FBI and CIS. The purpose of this supplement to the CIS Administrative Record (AR CIS) is to provide the Court and all counsel of record with a certified copy of the Revised National Security Adjudication and Reporting Requirements issued by USCIS on February 4,2008 which has been sent to all USCIS offices and the FBI (see e-mail Smith to Cannon at attached AR CIS 0103-0104.
Respectfully submitted,
PATRICK L. MEEHAN United States Attorney
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Date: February 6,2008
*910 IN THE UNITED STATES DISTRICT COURT FOR. THE EASTERN DISTRICT OF PENNSYLVANIA .
VICTOR MOCANU CIVIL ACTION No. 07-0445 V. ROBERTS. MUELLER, ETAL.
GIUSEPPE CUSUMANO V. MICHAEL R MUKASEY, ET AL. OVIL ACTION No. 07-0971
MOHAMMAD BAR1KBIN V. UNITED STATES, ETAL. CIV11. ACTION No. 07-3223
JEAN EUSSAINT CIVIL ACTION No. 07-4747 V. UNITED STATES, eUl,
HASSAIN V. CIVIL ACTION No.M-195 MUKASEY, eld.
ANDREW O.NEWTON, M.D, V. CIVILACnON No. 07-2*59 DONALD MONICA, «Id.
*911 TONGZIAO ZHANG V. MICHAEL CHERTOFF. el bL CIVIL ACTION No. 07-2718
SAID HUSSAIN CIVIL ACTION No. 08-195 v. MICHAEL B. MUKASEY, tí oL
CERTIFICATION OF SUPPIJMENTTQ THE ADMINISTRATIVE RECORD
Gregory Smith, punuast to 28 U.S.C. $ 1746, dedans the following:
1. ! am currently employed as the Acting AssociMe Director of the National Security and Records Verification Directorate ofU.S. Citizenship end Iramigreliofi Services (USCIS). m agency within the US. Depcnment of Hotnetod Security (DHS). My duly station is .presently Washington, D.C.
2. I hive been employed as the Associate Director since M*y 28,2D07. 1 havebeen employed by USCIS since Match2003, when the agency was crested. My curenidutks include the management orthe Nations! Security and Records Veri Gestión Direct Orete, whiehiucl udes individuals who work to resolve national security background check issues in the conic» of adjudicating applications and petition* for immigration benefits.
3. Due to the nature of my officii! duties, 1 am familiar with the procedures for investigation and examination of op pli cists far naturalization and adjustment of status sndtbo cotnmuntestiont between USCIS and the Federal Bureau of Investigation, which conducts name check* on applicant*.
4.I have reviewed information about the name check process, USCIS policy on nsrac chick* and other USCIS system of record a and 1 dosignaled iho Supplement to tbs Administrative Record in this caso. This infimnstion was created in the regular caursedrUSCtS business.
*912 Pursuant to 28 U.S.C. 9 1746,1 declare uadef pcnstly ofparjtuy that the foregoing istruc mid correct to the be« of ray knowledge and beGaE
Executed (hi* day ofFebnxay 20DÍ.
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Acting Associate Director National Security and Record Voificatioa Directorate
United States CItizenahip and Immigration Services Washington, D.C
*913 RB4- TIDE
[¶] 7<V23 A7Q/2I.1
Interoffice Memorandum
TO; Field Leadership
FROM: Michael AyU3 Associate Director, Domestic Oji
SUBJECT; Rewed Rational Security Adjudication and Reporting Requirements
Background
U.S. Citizenship and Immigration Service» (USOS) conducts background checks on si! applicants, petitioners, and beneficiaries seeking immigration benefits. This it done both to enhance national security and to enturo the integrity of the immigration process. USCISbas previously mandated that FBI name check* be completed and resolved befara any positive adjudication can proceed on certain form types. This memorandoin modifies existing guidance for applications where statutory immigration provisions allow for the detention and removal of an atien who isthe subject of actionable information (hat it received from the FBlor other law enforcement agracies aftar approval of the application,
USC1S b issuing revised guidance in response to recommendations of (he QHS Office of’ Inspector General (OKJ-Oti-06) regarding (he need to align tho agency’s background and «¿rarity check policies with those of U.S. Immigration and Customs Enforcement (ICC). Tha Background aid Security Investigations fa Proceedings Before Immigration Judges and ti» Board ofImmigration Appeals regulations prevent immigration judges and the Board of Immigration Appeals (BIA) from granting benefits to alias before ISIS confirma (bat all background and security checks have been completed, &»BCFJL§ 1003.47(g); SCJPJL} 100Al(d)(S)(i). In the context of removal proceeding*, ICE has determined that FBI fingerprint checks end Interagency Border Inspection Services (IBIS) checks are the required security checka for purposes oftha applicable regulations. In the imllkdy event that FEUnamtchecks reveal actionable information after the imndgrtitou judge grants an atien permanent resident statue, DHS may detain and initiate removal proceedings against the permanent resident. Sett U.S.C. 51227; see abo 8 U.S.C. § 1256 (allowing DHS to rescind an alien's adjustment of stilus).
www.0*d»4pv
*914 Revised Nation at Security Adjudication and Reporting Requirements Page 2
Revised Gtrtdanea
A definitive FBI fingerprint d»ck and the IBIS «heck ««at be obtained and resolved bfefoft an Application fcr Adjustment of Status (1-485), Application for Waiver of Ground of Inadmissibility (1-601), Application fbr Status ai a Temporary Resident Under Sectton245A .of the Immigration and Nationality Act (1-687), or Appfieatxro to Adjust Status ftomlemporary to Permanent Resident (Under Section245A of JPubHctaw 99-603) (W98) to approved. U3CIS will continue to initiate FBI name cheeks when those Applications are received. Where the application is otherwise approvdda and th* FBI mine check request has been pending fbr more than 180 days, (he adjudicator shall approve tho MIS, 1-601,1-687, or 1-698 and proceed with cud issuance. The FBI has committed to providing FBI name check resulta witihi» (his timeftsmo.
Ibero is no change in (ho requirement that FBI fingerprint Check, IBIS check and FBl nama check results be obtained and resolved prior lo (he adjudication of an Application for Naturalization. (N-400).
Pending farther guidance regarding post-audit reporting and tracking requiremenb ind modifications to associated quality assurance procedures, applications approved pursuant to this memorandum shall beheld at the adjudicating office. Rderogatcuy or ¿vene information is received from tho FBI after ti» application is approved, USCIS will determine if rescission or removal proceedings are appropriate and warranted.
Subject to the reporting requirements set forth in the February 16,2007, memorandum tided “FBI Name Checks Policy and Process Clarification fbr Domestic Operations,” an application or petition may bo denied, dismissed, administratively closed, withdrawn, or referred to the hnmigfatiim Court at any time.
operational channels. Local offices should work through their chain of command.
Distribution List:
Regional Director»
Service Center Directo»
District Directors (except foreign)
Hold Officer Directors (except foreign)
National Benefits Center Director
*915 From: Smith, Gregory B
Sent: Tuesday, February 05,200811:40 AM
To: Cannon, Michael
Subject: Revised USOS Name Cheek Guidance
Michael
Thank you for meeting kwt week to cflscu» our mutual efforts to address tíre FBIname check backlog.
I am attaching revised guidance that USOS wHI distribute to the field today.. Urjdar the revised guidance, a definitive FBI fingerprint check and the IBIS check meet be obtained and resolved before an adjustment of status application Is approved. USOS will continue to Initiate FBI name died» when those applications are received. Where the application Is otherwise appiwabfe and the FBI name died» request has been pending for more than 180 days, the adjudicator shall approve the adjustment of status application.
The overwhelming majority of FBI name died» are completed within six rnoritfts»rand it is the goal to complete all FBI name checks within that tíme frame, While USOS would prefer to have the FBI name Chech results before approving the application (and «MÜÜhave the results as the FBI meets Its processing goals), the alien H already In the United States and DHS Is able to detain and remoue the alien Irrespective af whether the adjustment application has been approved or remains pending.
The revised guidance does not make any changes to naturalization appficatfons. USGS will continue to require that FBI fingerprint check, IBIS chech and FBI name diedi results be obtained and resolved prior to the adjudication of an application for naturalization. It Is exceedingly difficult to denaturalize a citizen, and ft b imperative that wo protect the integrity of the naturalization process.
However, USCIS will prioritize allocation of additional appropriations (i.e. a significant percentage of the $20 million In the DHS appropriations trill) to addressing "FBI name cheeks that delay adjudication of naturalization applications. Existing resources should not be diverted from pending adjustment of status name chocks, but new resources should be directed to resolving those died» that hold up the oldest naturalization applications. AH avalabie options should be explored, induing the use of additional contractors, shift work, rehlred annuitants, and any other tools designed to decrease cose processing times and Increase productivity without sacrificing quality controls.
USOS has provlauily requested that the FBI provide a detailed and reliable plan for linking additional resources to measurable Improvements In FBI name check process. USGS foobs forward to working wfih you to develop that plan. USOS has committed to addressing the backlog of pending naturalization applications, and dedicating additional resources to tackle the FBI name check Issue Is critical to the agency's success.
Regards.
Greg
*916 CERTIFICATE OF SERVICE
I hereby certify that on this date, I served a true and comet copy of the Praecipe to file the Certification of Supplement to the Administrative Record (AR CIS 0097-0102) and attached Memorandum regarding Revised National Security Adjudication and Reporting Requirements issued by USC1S as of February 4,2008 first class mail, postage prepaid, on the following:
Lamine A. Ryan, Esq. 1601 M1LLTOWN RD., STE 8 POBOX 5733 WILMINGTON, DE 19808 (Said Hussain)
Daniel Sanson's, Esquire 8040 Roosevelt Boulevard Suite 218 Philadelphia, PA 19152 (Jean Eliassaint)
Jon Landau, Esquire Baumann, De Seve & Landau 510 Walnut Street Suite 1340 Penn Mutual Building Philadelphia PA 19106 (Mohammed Barikbin)
Daniel George Anna, Esquire 533 A Darlington Road Media, PA 19063 (Andrew O. Newton, MD)
Tongxiao Zhang, Pro Sé 26 Adamson Court Fhoemxvifie, PA 19460
Ephraim Tahir Mella, Esquire Law Offices of Ephraim Tahir Mella 1814 Callowhill Street, 1“ Floor Philadelphia. PA 19130 (Guiseppe Cusumano)
David Kaplan, Esquire Qrlow & Orlow, P.C. 620 Chestnut Street Suite 656 Philadelphia, PA 19106 (Victor Mocanu)
fifebmaiy6,2008
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Notes
. The Declaration of Michael Cannon states that the name check request for plaintiff was received by the FBI on or about December 30, 2004. Cannon Deck, ¶ 22 [Docket No. 8].
. VAWA stands for the Violence Against Women Act. See 8 U.S.C. § 1101(a)(51).
. To the extent that defendants are relying on 8 C.F.R. § 103.2(b)(l8) for the proposition that this regulation permits withholding of adjudication of an adjustment to status application until investigation is complete, (Defs.Mem., p. 10), this argument finds no support in the language of the regulations or the facts in this case. Section 103.2(b)(18) states, in pertinent part:
*900 A district director may authorize withholding adjudication of a visa petition or other application if the district director determines that an investigation has been undertaken involving a matter relating to eligibility or the exercise of discretion, where applicable, in connection with the application or petition, and that the disclosure of information to the applicant or petitioner in connection with the adjudication of the application or petition would prejudice the ongoing investigation. If an investigation has been undertaken and has not been completed within one year of its inception, the district director shall review the matter and determine whether adjudication of the petition or application should be held in abeyance for six months or until the investigation is completed, whichever comes sooner. If, after six months of the district director’s determination, the investigation has not been completed, the matter shall be reviewed again by the district director and, if he/she concludes that more time is needed to complete the investigation, adjudication may be held in abeyance for up to another six months. If the investigation is not completed at the end of that time, the matter shall be referred to the regional commissioner, who may authorize that adjudication be held in abeyance for another six months. Thereafter, if the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement, determines it is necessary to continue to withhold adjudication pending completion of the investigation, he/she shall review that determination every six months.
Section 103.2(b)(18) sets forth procedures for withholding of a decision on an application under certain circumstances, beginning one year after an application has been filed and no decision has been made. However, "this regulation ... does not deprive this court of jurisdiction.”
Saleem v. Keisler,
. This Court recognizes that a number of district courts have reached a contrary conclusion, finding that § 1252(b)(2)(B)(ii) does strip the court of jurisdiction.
See e.g. Orlov v. Howard,
. In
Safadi,
the court concluded that an "action” under § 1252(a)(2)(B)(ii) encompasses not just final decisions but "any act or series of acts that are discretionary within the adjustment of status process,” including "the completion of background and security checks and the pace at which the process proceeds.”
[The] argument in Safadi is a red herring because an exercise of jurisdiction over plaintiffs claim is not contingent on whether an 'action' is a final decision or includes interim actions taken along the way. The logic of Safadi would have force if plaintiff were challenging defendants' decision to conduct certain background checks or the actions taken in furtherance of that decision ... But plaintiff is not challenging any in *902 terim action of defendants, only their failure to act. Thus, no matter how narrowly a court defines 'action,' it would require an Orwellian twisting of the word to conclude that it means a failure to adjudicate.
. Defendants correctly argue that the federal question statute does not, in itself, provide subject matter jurisdiction. However, subject matter jurisdiction under the APA does arise under the federal question statute.
Califano v. Sanders,
. The Court has already determined that 8 U.S.C § 1252(a)(2)(B) does not preclude judicial review.
. This Court recognizes that in a fifth case out of this District,
Chaudry v. Chertoff,
. To determine whether agency delay is reasonable or not, courts have obtained guidance from the six factors set forth in
Telecommunications Research & Action Center v. FCC,
1. The time agencies take to make decisions must be governed by a rule of reason.
2. Where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason.
3. Delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake.
4. The court should consider the effect of expediting delayed action on agency activities of a higher or competing priority.
5. The court should also take into account the nature and extent of the interests prejudiced by delay.
6. The court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.
Id.
at 80.
See also Yu,
. If plaintiff's 1-485 application is not immediately approved, pursuant to the February 4, 2008 USCIS Memorandum, the Court suggests that an appropriate record be developed and cross-motions for summary judgment be submitted to the Court by the parties on the reasonableness of the delay of completing plaintiff's FBI check and adjudicating his adjustment of status application.
See Aslam v. Mukasey,