AMENDED MEMORANDUM AND ORDER RE: DEFENDANTS’ MOTION TO DISMISS
This Memorandum and Order replaces the one filed earlier today. Two changes have been made: This Memorandum has a full caption listing all defendants, and the ampersand has been replaced in the title. No other changes have been made.
*150 1. INTRODUCTION
This is an action to compel the United States Citizenship and Immigration Service (“USCIS”) to act on a four-year-old application for adjustment of status to permanent residency. Numerous such cases are before this Court and others throughout the country. Courts have split on whether there is subject matter jurisdiction to review an unreasonable delay in the processing of an application for permanent residency.
For the reasons below, I DENY the government’s motion to dismiss (document # 9), and GRANT the relief sought by plaintiffs. I cannot accept the argument that, simply because adjustment of status is a form of discretionary relief, there is no limit to the length of time the USCIS may take processing applications. The duty to act is no duty at all if the deadline is eternity.
II.BACKGROUND
Plaintiff Yong Tang (“Tang”), a non-permanent resident, filed an 1-485 application on June 23, 2003, to adjust his status to permanent residency, with his wife and co-plaintiff Yan Luo as derivative beneficiary. He filed an 1-140 Immigrant Petition for Alien Worker through his employer, Millennium Pharmaceuticals, on May 30, 2003; it was approved by USCIS on March 22, 2004. He and his wife were fingerprinted on August 31, 2004.
Since then, they have seen no progress on their permanent residency application. They inquired into its status on March 11, 2005, July 12, 2005, August 10, 2005, September 9, 2005, September 13, 2005, May 2, 2006, October 16, 2006 and January 30, 2007, but were told each time simply that their background checks had not been completed, and to check back in 6 months. Ex. C — 1 through C-7 and Ex. 4 to Complaint (document # 1-2).
In May 2006, plaintiffs made a Freedom of Information and Privacy Act (“FOIPA”) request to the Federal Bureau of Investigation (“FBI”) seeking any records relating to them; they were told that there were no such records. Ex. E-l, E-2 to Complaint (document # 1-2). Plaintiffs finally filed this action on February 6, 2007, 43 months after the initial application, seeking to compel adjudication of Tang’s application for adjustment of status.
In response to the Court’s order of May 22, 2007, defendants filed an affidavit on June 5 stating that Yan Luo’s background check was completed, but that Yong Tang’s was still pending as of that date (document # 15).
III. STANDARD OF REVIEW
A complaint is subject to dismissal under Rule 12(b)(6) only if “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.”
Gorski v. New Hampshire Dep’t of Corrections,
There are no disputed facts in this case. The parties disagree only on matters of law.
IV. SUMMARY OF ARGUMENTS
The government moves to dismiss for lack of subject matter jurisdiction. Plaintiffs name three statutory bases for jurisdiction: the Mandamus statute (28 U.S.C. § 1361), the Declaratory Judgment Act (28 U.S.C. § 2201 et seq.), and the federal question statute (28 U.S.C. § 1331) in com *151 bination with the Administrative Procedures Act (“APA”).
Defendants argue first that the Declaratory Judgment Act is not an independent basis of jurisdiction. They then argue that adjustment of status is within the discretion of the Attorney General, and that the Immigration and Naturalization Act (“INA”) provides no time-line for resolution of applications for adjustment of status. Since there is no duty to timely process applications, defendants argue, there is nothing to Mandamus, and no standard against which to declare a delay unreasonable under the APA. Further, defendants point to INA § 242 (8 U.S.C. § 1252(a)(2)), which bars judicial review of certain actions on which the Attorney General is given discretion under the INA. Since adjustment of status is within the discretion of the Attorney General, -defendants argue that no aspect of it is reviewable.
Plaintiffs counter that, while the final decision as to adjustment of status is within the Attorney General’s discretion, aspects of the process, such as the timing of these decisions, are not. They argue that the Administrative Procedures Act (specifically 5 U.S.C. § 555(b)) imposes a non-discretionary duty to adjudicate applications in a reasonable time, and that review of this duty is not barred by the INA’s jurisdiction-stripping provision.
Defendants are correct that the Declaratory Judgment Act is not an independent basis for jurisdiction.
See Skelly Oil Co. v. Phillips Petroleum Co.,
V. WHETHER INA § 242 PREVENTS REVIEW
INA § 242 strips the Court of jurisdiction to review “any judgment regarding the granting of relief under section ... 245 [8 U.S.C. § 1255],” 8 U.S.C. § 1252(a)(2)(B)(i), or “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)(ii). Thus, if the pace of adjudication is a “judgment regarding the granting of relief under section 245” or is within the Attorney General’s discretion “under the subchapter,” the Court does not have subject matter jurisdiction.
The ultimate decision whether or not to adjust an alien’s status under INA § 245 is undisputedly within the discretion of the Attorney General. “The status of an alien who was inspected and admitted or paroled into the United States ... 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.” 8 U.S.C. § 1255(a).
But that does not mean that all actions that call for some discretion or that have any relation to adjustment of status are unreviewable. INA § 242’s jurisdiction-stripping language is more precise than that.
8 U.S.C. § 1252(a)(2)(B)(I) applies to the ultimate decision whether or not to grant relief. In passing it, Congress repeatedly noted the increasing number of aliens declared removable by the agency but never removed. (See S. REP. NO. 104-249, pt. 1 1996);
see also
H.R. REP. No. 104-469, pt. 1 (1996) (“an important subset of the annual growth in the number of illegal aliens as many as [sic] 50,000 or
*152
more consists of those who have been ordered deported, but are not actually removed.”) Thus, the original purpose of this subparagraph was to ensure removal of those individuals adjudicated removable by making the Attorney General’s decision final as to relief by adjustment of status.
1
It was not to immunize the government from all claims based on conduct — even clear wrongdoing — that happens to relate to the adjustment of status process.
See e.g. Osunsanya v. USCIS,
The second jurisdiction-stripping provision potentially at issue here, 8 U.S.C. § 1252(a)(2)(B)(ii), applies only to those actions or decisions “the authority for which
is specified under this subchapter to
be in the discretion of the Attorney General or the Secretary of Homeland Security.”
Id.
(emphasis supplied). As to which decisions are “discretionary” for the purposes of this subparagraph, the Third Circuit has noted that the language of that provision 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 aetion is in the Attorney General’s discretion.”
Alaka v. AG of the United States,
refers not to ‘discretionary decisions,’ as did the transitional rules [of the Illegal Immigration Reform and Immigrant Responsibility Act], but to acts the authority for which is specified under the INA to be discretionary. Following the ‘well-established canon of statutory interpretation that the use of different words or terms within a statute demonstrates that Congress intended to convey a different meaning for those words,’ we must assume that this difference in language is legally significant. If Congress had intended to withdraw jurisdiction over all ‘discretionary decisions,’ it would have used the same language found in the transitional rules.
Spencer Enters. v. United States,
One might mistakenly read § 1252(a)(2)(B)(ii) as stripping us of the authority to review any discretionary immigration decision. Such a reading is mistaken, however, because § 1252(a)(2)(B)(ii) strips us only of jurisdiction to review the discretionary authority that is specified in the statute. As we have repeatedly noted, we observe again that the language of § 1252(a)(2)(B)(ii) is thoroughly pellucid on this score; it does not allude generally to ‘discretionary authority’ or to ‘discretionary authority exercised under this statute,’ but specifically to ‘authority *153 for which is specified under this sub-chapter to be in the discretion of the Attorney General.
Ahmed v. Gonzales,
Thus, it is not enough that an action in practice involves some discretion; rather, to be immune from judicial review, it must be specified as discretionary in the INA. “The subchapter at issue specifies only that it is within the discretion of the Attorney General to adjust one’s -status; it does not address, much less specify any discretion associated with, the pace of application processing.”
Duan v. Zamberry,
VI. WHETHER THE APA IMPOSES A DUTY ON AGENCIES TO ADJUDICATE WITHIN A REASONABLE TIME
That INA § 242 does not bar review is only the first part of the jurisdictional analysis. The Court still cannot reach the merits of plaintiffs’ complaint unless there is a positive basis for subject matter jurisdiction.
Plaintiffs argue that the Court has jurisdiction under the federal question statute, 28 U.S.C. § 1331, to decide whether the government has violated the APA’s requirement 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) (emphasis supplied). Defendants argue that the “reasonable time” requirement.is too vague to be the basis for judicial review.
Numerous courts have found the provision definite enough to support a cause of action:
Loo v. Ridge,
Further, 5 U.S.C. § 706(1) requires that reviewing courts “compel agency action unlawfully withheld or unreasonably delayed.” The government points to the Supreme Court’s holding in
Norton v. So. Utah Wilderness Alliance,
The government argues that neither 5 U.S.C. § 555(b) nor 5 U.S.C. § 706(1) can apply here because there is “no meaningful standard against which to judge the agency’s exercise of discretion.”
Heckler v. Chaney,
Likewise, in
Keane v. Chertoff,
While “reasonable time” is not a clear standard, I cannot simply ignore it as meaningless.
See Imperial Production Corp. v. Sweetwater,
Nor does an agency have sole discretion to define what is a reasonable time under the APA, which would render meaningless § 706(l)’s clearly mandatory language that the “reviewing court shall compel agency action unlawfully withheld or unreasonably delayed.” Notably, Congress did not say “agency action unlawfully withheld or delayed,” as it could have if it meant to allow judicial review only where agency delay violated a fixed deadline set out in a separate statute or regulation. The deliberate insertion of the word “unreasonably” contemplates that reviewing courts will delve into the question of what is “reasonable” in the pacing of adjudication.
Nor are reviews of the pacing of agency action judicially unmanageable.
Accord Zadvydas v. Davis,
Further, courts have noted that to defer to agencies on pace of adjudication would be effectively to lift the duty to adjudicate applications altogether.
See Agbemaple v. INS,
Defendants argue that some of the “reasonable time” cases finding that there is subject matter jurisdiction predate the jurisdiction-stripping amendment of § 242. But the fact that these cases precede the amendment only means that I must presume that Congress was aware of them when it used the word “discretion” in connection with specified authority under 8 U.S.C. § 1252(2)(B)(ii).
See McNary v. Haitian Refugee Ctr.,
Thus, I conclude that the Court has subject matter jurisdiction to consider whether the delay in adjudicating Tang’s application has been unreasonable.
VII. WHETHER THE DELAY IN THIS CASE IS UNREASONABLE
Defendants argue that there is no judicially manageable standard by which the Court can determine when a delay is unreasonable under 5 U.S.C. §§ 555(b) or 706(1). It is true that there is no clear benchmark either in the INA or the APA, but, as discussed above, this does not render 5 U.S.C. §§ 555(b) or 706(1) null, nor has it stopped courts from finding delays unreasonable in the past. Thus, the Court must construe the statute, even if Congress has not been kind enough to make this an easy task.
In response to the Court’s request for further briefing, the government has provided a helpful description of its name-check process. Aff. of Michael A. Cannon. In 1995, the FBI converted its extensive records into one computerized Automated Case Support System (“ACS”), including indices of 98.4 million records that can be searched by proper name. Id. at ¶¶ 9-11. *157 68% of name-checks return a “No Record” response by electronically searching these indices, and therefore can be concluded less than 72 hours after they begin. Id. at ¶ 13. Another 22%, for reasons not explained by the government, require an additional check that may take 30-60 days to return a “No Record” response. Id. at ¶ 14. The remaining 10% are “idents,” meaning that they return an indication that the FBI has a record on the individual that must be retrieved from paper files and further reviewed. Id. at ¶¶ 12, 14-15.
Robert J. Garrity, Jr., Acting Assistant Director of the FBI’s Records Management Division, describes a “No Record” response as follows:
A ‘No Record’ indicates that the FBI’s Central Records System contains no identifiable information regarding this individual. By agreement with State, partially due to our concern about the time factors in approving most visa requests a ‘No Record’ equates to a No Objection to the issuance of a visa. The substantive investigative divisions in the FBI ... do not review visa requests where there is no record of the individual.
Robert J. Garrity Jr., Acting Assistant Director, Records Management Division, FBI, Testimony Before House Committee on Government Reform (June 10, 2003) (transcript available at <www.fbi.gov/ congress/congress03/garrity071003.htm>).
As discussed above, the FBI has already performed a name check on Tang in response to his FOIPA request, and returned a “No Record” response. Nevertheless, the delay here has been nearly four years (if measured from the filing of plaintiffs application on June 23, 2003) or two years and nine months (if measured from plaintiffs fingerprinting on August 23, 2004, at which point the application was complete except for the still-pending background check). Both of these numbers are larger than the delays found unreasonable by other courts.
Paunescu,
Further, plaintiffs offer various numbers quoted to them during the application process as benchmarks for what is “reasonable” in processing an application for adjustment of status. The receipt sent to plaintiffs upon filing of the application gave an estimate of 365 to 540 days for processing. Ex. A-l & A-2 to Complaint. When plaintiffs inquired about the status of the application on October 20, 2005 (after 540 days had elapsed), they were told to check back in 6 months. Ex. C-6. When they inquired on May 27, 2006, they were told again to check back in 6 months. Ex. C-2 to Complaint. Defendants have also recently informed the public that the wait time for adjustment applications as of September 30, 2006, was 7 months. 3 While none of these numbers are binding on defendants, they do suggest that Tang’s application has taken significantly longer than others.
It is not necessary in this case to locate the exact position of the boundary between reasonable and unreasonable time for adjudication of permanent residency applications. Wherever that line may fall, this case is far to the “unreasonable” side. It has taken over four years and counting for the government simply to acknowledge what is already known to them, to plain *158 tiffs, and to the Court: that there are no FBI records pertaining to Tang.
Defendants also argue that, because adjustment of status relates to national security, they are due deference in terms of the timing of their processes. Quoting
Safadi v. Howard,
Finally, defendants argue that delays in adjudication are due to a high volume of applications and scarce resources, and that this situation is best remedied by the political branches. I agree. If the agencies involved find themselves short of the resources necessary to fulfill their statutory duty to act within a reasonable time, that is a policy crisis. But it is not plaintiffs who ask the Court to take on the burden of remedying this crisis. Rather, it is defendants who ask the Court to relieve the pressure by excusing them from their statutory duty and letting the cost fall on immigrant plaintiffs. I will follow the law and leave it for the political branches to fix the system.
VIII. CONCLUSION
For the reasons above, Defendants’ Motion to Dismiss (document # 9) is hereby DENIED. Defendants are ORDERED to adjudicate Tang’s application for adjustment of status to permanent resident. Defendants shall file an Affidavit demonstrating compliance with this Order on or before August 6, 2007.
SO ORDERED.
Notes
. Subparagraph (I) was amended in 2005 to make it clear that Congress intended this finality to apply outside of the removal context as well. 109 P.L. 13; 119 Stat. 231, 305 (2005).
. Contrast
Aquilar v. United States Immigration & Customs Enforcement,
. https://egov.immigratio n.gov/cris/jsps/Pro-cesstimes.jsp?SeviceCen ter=VSC (cited by plaintiff's memorandum at 9) (document # 14).