OPINION AND ORDER DENYING MOTION TO DISMISS
Before the Court is the United States’ Motion to Dismiss for Lack of Jurisdiction (Doc. # 7). The Plaintiffs filed a Response to the Motion (Doc. # 14) and resist dismissal.
FACTS
Plaintiff Roopalakshmi Sharadanant is a citizen of India and her husband, Plaintiff Mahinda Ferdinando, is a citizen of Sri Lanka. Ms. Sharadanant has an approved 1-140 visa, filed by her employer, and therefore has status as an H-1B non-immigrant temporary worker. Her status is valid through December 28, 2009. Mr. Ferdinando also has status as an H-1B non-immigrant temporary worker, based on a visa filed by American Crystal Sugar Company. His status is valid through June 26, 2009.
On February 3, 2005, Plaintiffs filed I-485 Applications to Register Permanent Residence or Adjust Status, along with supporting documents, with the USCIS Nebraska Service Center. The applications have been received and are pending with the Citizenship and Immigration Service but the name and background checks have not been completed. Mr. Ferdinan-do’s “derivative spouse” application may not be processed until after Ms. Sharadan-ant’s application is completed. Plaintiffs bring this action, seeking the Court compel the Citizenship and Immigration Service to adjudicate the 1-485 applications.
ANALYSIS
The United States argues this action should be dismissed pursuant to Rule 12(b)(1), Fed.R.Civ.P., for lack of subject matter jurisdiction.
Dismissals based on lack of subject matter jurisdiction should be granted sparingly.
Wheeler v. St. Louis Southwestern Ry. Co.,
When a motion to dismiss pursuant to Rule 12(b)(1), Fed.R.Civ.P., is filed, the non-moving party may defeat such motion by making a prima facie showing of jurisdiction.
Dakota Industries, Inc. v. Dakota Sportswear, Inc.,
The Jurisdiction-Stripping Provision of the IN A
It is well-established that a statute with a specific grant or limitation of juris
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diction takes precedence over a statute with a general grant or limitation of jurisdiction.
Pulido v. Bennett,
[N]o court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, 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 subchap-ter 1 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.
8 U.S.C. § 1252(a)(2)(B) (emphasis added).
Adjustments of status are governed by 8 U.S.C. § 1255, which states status “may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe ...” The Eighth Circuit has recognized that § 1252(a)(2)(B)(ii) strips courts of jurisdiction to review discretionary decisions.
Onyinkwa,
Although it appears at first blush that the Court is therefore without jurisdiction to address the claims presented by the Plaintiffs, the nuances between the situation here and the general case for which the jurisdiction-stripping provision was enacted require further examination. The argument has been advanced here, as it has been in many district courts
2
, that
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there is a difference between review of the ultimate determination on an adjustment application and judicial intervention to force a determination when an application is pending. In other words, even if it is acknowledged that final agency “decisions” or “actions” are discretionary and precluded from review by the jurisdiction-stripping provision of § 1252(a)(2)(B), a separate discrete and distinct question is presented as to whether a Court has jurisdiction to order that
an
action be taken or
a
decision be made. “[T]he decision of whether to
grant
or
deny
an adjustment application is discretionary,” but a different scenario is at issue when “Plaintiffs are only asking this Court to compel Defendants to make
any
decision.”
Haidari v. Frazier,
Having concluded the jurisdiction-stripping provision is inapplicable to the instant case, the question remains whether the Court has jurisdiction.
Jurisdiction under the Mandamus Act and the APA
Separate analyses determining whether the Court has jurisdiction under the Mandamus Act and/or the APA have been considered by other courts to be unnecessary because the two are coextensive.
Zhu,
Here, the simpler analysis is under the APA, which allows courts to “compel agency action unlawfully withheld or unreasonably delayed.”
Id.;
5 U.S.C. § 706(1). First, Defendants had a nondiscretionary duty to act. The APA requires prompt resolution of matters before administrative agencies, stating, “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.” 5 U.S.C. § 555(b).
Sawad,
Even if a two-year delay is not “unreasonable,” this Court would have jurisdiction under the Mandamus Act, 28 U.S.C. § 1361. First, the Plaintiffs can show a clear and indisputable right to have their applications processed. They followed the procedures set forth by the Immigration and Naturalization Act, and even defendants appear to concede that the plaintiffs are entitled to a decision at some point. Second, as previously established herein, the defendants have a non-discretionary duty to honor the petitioners’ right to have their applications processed. Finally, the petitioners have no other adequate remedy. No other avenues exist to challenge the delay or accelerate the process. Plaintiffs’ only real alternative is to attempt to maintain the status quo, awaiting the processing of their applications while renewing their visas as needed, which appears to be an expensive and unreasonable option.
DECISION
Adjustment of status determinations are discretionary and left to the Attorney General; however, there is a non-discretionary duty to make a determination. Consistent with the majority of district courts within the Eighth Circuit, it is hereby concluded that the Court has subject matter jurisdiction over this case. The Defendants’ motion to dismiss is therefore DENIED.
IT IS SO ORDERED.
Notes
. "[T]his subchapter” as referenced in § 1252(a)(2)(B)(ii) refers to Subchapter II, which includes Sections 1151 through 1381 of Title 8.
Onyinkwa v. Ashcroft,
. District courts around the country were more or less divided on this matter the last time this issues was addressed by the Court, some concluding there is jurisdiction to compel action on adjustment applications,
see Linville v. Barrows,