DECISION AND ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
I. Introduction
This case presents an issue that has divided district courts across the country, and remains open in the Second Circuit: does a district court have jurisdiction to hear a claim against CIS for its failure to adjudicate an application for adjustment of status under Section 245 of the Immigration and Naturalization Act?
This court is persuaded by those cases that hold that a district court does have jurisdiction. Because Plaintiffs claim is not patently without merit, Defendants’ motion to dismiss is DENIED.
*542 II. Background
Plaintiff Azat Nigmadzhanov, a United States citizen, and Plaintiff Maryam Ibra-gimova, a citizen of Uzbekistan, were married on October 16, 2001. Pl.’s Opp. at 2. Weeks later, Nigmadzhanov filed a form I-130 to classify his wife, Ibragimova, as an “immediate relative” pursuant to 8 U.S.C. § 1154(a)(l)(A)(i). Id. As an immediate relative, Ibragimova became eligible to apply for permanent residence. Thus, at the same time Nigmadzhanov filed his 1-130, Ibragimova submitted an 1-485 application to the United States Citizenship and Immigration Services (CIS) to adjust her status to “lawful permanent resident,” on the basis of her status as an immediate relative of a U.S. citizen. Id.
Section 245 of the Immigration and Nationality Act, codified at 8 U.S.C. § 1255 — under which Ibragimova filed her form 1-485 application for adjustment of her status — provides, in pertinent part, that:
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 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.
28 U.S.C. § 1255(a). Part of the adjustment process is a mandatory name check by the FBI. The parties agree that the decision whether or not to grant (or to deny) an adjustment of status application is solely within the discretion of the Attorney General. Id. at 6.
Several years passed without CIS taking any action on Ibragimova’s adjustment of status application. After several inquiries, Plaintiff learned that the delay was due to the FBI’s failure to complete its mandatory background check. Id. at 2-3.
On February 16, 2007 — more than five years after she submitted her application — Ibragimova filed a complaint in this court, seeking an order compelling the FBI to complete Ibragimova’s background check within 30 days, and compelling CIS to complete its adjudication of her application within 30 days of receiving the FBI’s report. Id. at 3.
Defendants now ask this court to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). Defs.’ Mem. at 2.
III. Discussion
A. Legal principles
Dismissal for lack of subject matter jurisdiction is proper where the district court lacks statutory or constitutional authority to decide the case. Fed.R.Civ.P. 12(b)(1);
Makarova v. United States,
*543 Defendant argues that there is no statutory or constitutional basis for subject matter jurisdiction over Plaintiffs claims. Plaintiff responds by pointing to the Administrative Procedure Act, in conjunction with the federal question statute, 28 U.S.C. § 1381, as well as the Mandamus and Venue Act, 28 U.S.C. § 1361.
1. Federal question statute, 28 U.S.C § 1831
The federal question statute confers jurisdiction on the district courts over actions “arising under” federal law. 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). “An action arises under a federal statute where the statute creates or is a necessary element of the cause of action or the plaintiff would prevail if the statute were construed one way and lose if it were construed another.”
Kim v. Ashcroft,
2. The Administrative Procedure Act
The APA alone does not confer jurisdiction on a district court to review the decision of an administrative agency,
Califano v. Sanders,
Here, the relevant provision of the APA is 5 U.S.C. § 555(b), which states, “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.” (emphasis added).
3.Mandamus and Venue Act
Plaintiff also claims that the Mandamus and Venue Act confers jurisdiction. That Act empowers the federal courts to compel government officials to carry out “ministerial” duties.
Work v. United States ex rel. Rives,
One court recently summarized the elements of mandamus jurisdiction in the Second Circuit as follows:
Mandamus jurisdiction is “closely related to the merits of whether a writ of mandamus should issue.” Ocuto Blacktop & Paving Co., Inc. v. Perry,942 F.Supp. 783 , 786 (N.D.NY.1996) (citations omitted). Three elements must exist to support a writ of mandamus: (1) a “ ‘clear and indisputable’ ” right to the *544 relief sought, In re Drexel Burnham Lambert Inc.,861 F.2d 1307 , 1312 (2d Cir.1988) (quotation and other citations omitted); (2) “a plainly defined and peremptory duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available[,]” Lovallo v. Froehlke,468 F.2d 340 , 343 (2d Cir.1972) (citations omitted). Conversely, mandamus jurisdiction is inappropriate where there is no plainly defined clear nondiscretionary duty, see Anderson v. Bowen,881 F.2d 1 , 5 (2d Cir.1989) (citation omitted), or where there is no compelled duty owed to the plaintiff, see Leopold v. United States Civil Service Commission, 450 F.Supp. 154, 157 (E.D.N.Y.1978).
Anand v. U.S. National Sec. Agency,
4. Jurisdictional bars
Aside from the question of whether either the APA or the Mandamus Act affirmatively provides this court with subject matter jurisdiction, there is the question of whether judicial review is explicitly barred.
Section § 1252(a)(2)(B) of the INA states, in relevant part, that no court has jurisdiction to review: “(i) any judgment regarding the granting of relief under [section 245] or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security....” 8 U.S.C. § 1252(a)(2)(B).
5. Relevant authority
The arguments about whether jurisdiction exists in the circumstances of this case have been made numerous times before district courts across the country, so while this issue remains “open” it does not remain unexplored. The district courts have split both between and within circuits, and even districts.
Recent cases that have not found jurisdiction in these circumstances include:
Qiu v. Chertoff,
Recent cases that have found jurisdiction in these circumstances include:
Ger-shenzon v. Gonzalez,
Courts in the Southern District of New York have likewise been divided.
Compare Espin v. Gantner,
It is hard to say which view has taken greater hold in this district. The court in
Espin v. Gantner
correctly notes that mandamus jurisdiction generally has not been found,
No Circuit Court of Appeals has addressed the issue, although at least two
cases
— Grinberg
v. Swacina,
The above-cited cases split on a number of questions. Three of particular impor1 tance have been identified.
First, does CIS have a nondiscretionary duty to adjudicate adjustment of status applications at all? If there is no such duty, and the agency has discretion whether or not to adjudicate, then clearly there could be no jurisdiction under either statute, as wholly discretionary acts (1) cannot be compelled under the Mandamus Act, and (2) are removed from judicial review under 8 U.S.C. § 1252(a)(2)(B)(ii).
Compare Espin v. Gantner,
Second, even if there is a duty to adjudicate at some point, must that duty be exercised “within a reasonable time”?
Compare Li v. Chertoff,
Finally, do the jurisdiction-stripping provisions of the INA foreclose judicial review?
Compare Safadi v. Howard,
466
*546
F.Supp.2d at 700 (concluding that “ § 1252(a)(2)(B)(ii) precludes judicial review of any ‘action,’ meaning any act or series of acts, included within the ongoing adjudication process and the pace at which that action proceeds.”),
with Koren v. Chertoff,
The parties have briefed only the first question, and that only to a limited extent. Fortunately, I have been assisted by the thorough scholarship of Lauren Sasser, a second year law student at Fordham University School of Law (and former intern), whose student note exhaustively details the statutory and case law on this very issue. Sasser, Note,
Waiting in Immigration Limbo: The Federal Court Split over Suits to Compel Action of Stalled Adjustment of Status Applications,
16 Fordham L.Rev. 2511 (2008) (collecting and analyzing cases). In addition, the many district court decisions cited above have laid out the competing positions. For a particularly thorough recounting of the case law in this District, see Judge Scheindlin’s opinion in
Kim v. Ashcroft,
This court is not inclined to reinvent the wheel. For the reasons discussed below, I find persuasive those cases that conclude that jurisdiction exists under 5 U.S.C. § 555(b) and 28 U.S.C. § 1331. I therefore conclude that the court has subject matter jurisdiction to hear .Ibragimova’s claim.
B. The court has APA/federal question jurisdiction over Ibragimova’s claim
I address the three questions identified in turn.
As to the first question that has divided the courts, I am persuaded that CIS has a non-discretionary duty to adjudicate adjustment of status applications. This duty can be implied from Congress’ explicit delegation of the power (and responsibility) to process form N185 applications, in conjunction with the general § 555(b) requirement that an agency complete its delegated tasks with a reasonable time. Of course, the Attorney General has unfettered (and hence, unreviewable) discretion whether
to grant or deny
an application. However, one cannot infer from that the existence of discretion
to never decide it at all. See Kim v. Ashcroft,
Even courts that find no jurisdiction concede, either implicitly or explicitly, that CIS has
some
duty to adjudicate applications for adjustment of status. For instance, in
Safadi v. Howard
— where the Court concluded that jurisdiction did not exist — the Court explicitly refused to address “whether jurisdiction would exist in a district court to review plaintiffs case where USCIS refused altogether to process an adjustment application or where the delay was so unreasonable as to be tantamount to a refusal to process the application,” since the case before it did not present such facts.
The second question that divides courts is whether the APA imposes a “reasonable time” requirement on the decision-making process. Courts that conclude that it does not point to the absence of any specific time limit for action in Sec
*547
tion 245, contrasting this with the explicit time limits for actions found in other sections, especially 8 U.S.C. § 1447(b) (applications for naturalization).
See, e.g., Grinberg v. Swacina,
I reject this argument, and accept the reasoning of the cases that find that CIS’s duty is subject to a requirement of reasonableness. The duty to decide “within a reasonable time” can be found in § 555(b), the very statute on which Plaintiff bases her suit. Furthermore, a duty to decide that is unconstrained by a reasonableness requirement makes little sense. “The ‘duty to decide’ becomes no duty at all if it is accompanied by unchecked power to decide when to decide.”
Razaq v. Poulos,
As will be seen, it is unnecessary to decide precisely what is “reasonable” at this juncture, as Plaintiffs allegation that a five (now six and one half) year delay is unreasonable is not without merit.
Finally, I also agree with the courts that decline to find jurisdiction precluded by Section 1252(a)(2)(B) of the INA. That law precludes review of “(i) any judgment regarding the granting of relief under section ... 245 or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this title to be in the discretion of the Attorney General or the Secretary of Homeland Security of this title.”
As I have already decided that there is a nondiscretionary duty to decide on an application for adjustment of status within a reasonable amount of time, the inapplicability of these sections is manifest.
First, there has been no judgment granting relief. There has been no judgment denying relief, either. There has been no judgment. So subsection (i) is inapplicable.
Second, no statutory provision in the relevant subchapters expressly gives the government the power not to adjudicate an adjustment of status application. On the contrary, § 555(b) imposes a nondiscre-tionary duty to decide within a reasonable time. Therefore, subsection (ii) is inapplicable.
In conclusion, Plaintiff has identified a non-discretionary duty to act within a reasonable time on her application for adjustment, and review of the failure to carry out that duty is not barred by § 1252(a)(2)(B). Because she has sufficiently alleged an “unreasonable delay,” she has stated a claim that turns on the application of a federal law that is not patently without merit. Therefore, she *548 has established federal question jurisdiction under 28 U.S.C. § 1331.
Correspondingly, Plaintiff fails to establish mandamus jurisdiction. In light of the availability of a remedy under the APA, she cannot satisfy the third element of mandamus, which requires that “no other adequate remedy [can be] available.”
Anderson v. Bowen,
C. Ibragimova has stated a claim
To state a claim for relief under the APA, Plaintiff must allege (1) a clear duty owed to her under by the agency, (2) a duty which is mandatory and not discretionary, and (3) a clear right to relief.
See Yu v. Brown,
Plaintiff urges the court to find the delay unreasonable as a matter of law, and to compel the government to complete her application. While I am tempted to do what Plaintiff asks, I decline to find a five — or six and one half-year delay reasonable (or unreasonable) as a matter of law at this stage of the litigation, although other courts have done so,
see, e.g., Huang v. Chertoff,
Finally, any claim by Plaintiff Nigmad-zhanov must be dismissed, as the court’s jurisdiction is limited to hearing Ibragimo-va’s request that it compel CIS to adjudicate her application. I decline to dismiss Plaintiffs claim against the FBI Defendants.
See Obeid v. Chertoff,
This is the decision and order of the Court.