THIS MATTER is before the Court on Defendants’ Motion for Judgment on the Pleadings, filed May 4, 1998 [Doc. 18]. The Court, having considered the motion, response, relevant law, and being otherwise fully informed, finds that the motion is not well taken and will be DENIED, as explained below.
BACKGROUND
Plaintiff Yue Yu (“Yu”), on behalf of herself and a purported class of similarly situated individuals, brings this action requesting this Court to issue an affirmative injunction and/or writ of mandamus commanding officials at the Immigration and Naturalization Service (“INS”) to act on their applications for “Special Immigrant Juvenile Status” and for adjustment of status to lawful permanent resident. For the purpose of resolving this motion, the Court assumes the truth of the following facts as plead in the Complaint:
Yu, a citizen of China, is unmarried and was under 21 years of age at the time the Complaint was filed. 1 On July 17, 1996, the First Judicial District of New Mexico entered an order appointing Dwight Barrus as Yu’s permanent guardian. The court concluded that Yu is dependent on the juvenile court and found Yu eligible for long-term foster care and permanent guardianship. The court further found that it was in Yu’s best interest that she be a dependent of the court, under the guardianship of Barrus, and that it was not in her best interest to be returned to China. At the filing of the Complaint, Yu remained dependent on the juvenile court and remained under the guardianship of Bar-rus. 2
The Immigration and Nationality Act (“INA”) provides for “special immigrant juvenile status” (“SIJ status”) for minors who have been declared dependant on a juvenile court and found eligible for long-term foster care, and for whom a judge has determined that it would not be in the minor’s best interest to return to her country of origin. 8 U.S.C. § 1101(a)(27)(J). To qualify for the SIJ status, the individual must be under 21 and unmarried. Id. The INA further provides that a minor with SIJ status may apply for adjustment of status to that of lawful permanent resident (“LPR”) and may obtain an immigrant visa regardless of numerical limitations on the number of visas allotted to the minor’s country of origin. 3 8 U.S.C. § 1255.
Yu filed an application for SIJ status and for adjustment to LPR status on August 21, 1996. According to the Complaint, no action was taken on the application. The Complaint further states that each member of the proposed class has had an SIJ application pending with INS for more than one year. Further, on information and belief, the Complaint alleges that INS previously completed processing SIJ applications in six months. Based on the forgoing, the Complaint asserts that INS has unreasonably delayed in processing the SIJ applications. The Complaint requests that the Court:
“(a) compel Defendants and those acting under them to perform their duty to act on the Special Immigrant Juvenile Status Applications filed by Yu and the members of the Plaintiff class; [and]
(b) compel Defendants and those acting under them to allocate sufficient personnel to the Albuquerque Suboffice to process and act on the Special Immigrant JuvenileStatus Applications filed by Yu and the members of the Plaintiff class .... ”
Complaint, Prayor for Relief, p. 9.
In addition to the forgoing, Defendants have attached to their motion an affidavit from an INS employee indicating that Yu’s application did not contain a set of fingerprints which conformed to INS requirements. By letter dated June 9,1997 (nearly 10 months after Yu filed her application), INS informed Yu of the problem and that she had 87 days to correct it. The letter was returned unopened as Yu had moved without providing a forwarding address. After the filing of the Complaint in this action, INS discovered a problem with Yu’s medical records which were communicated to Yu’s attorney. On or about January 30, 1998, Yu submitted proper fingerprints. The affidavit fails to state whether the problem with the medical records was cured.
Yu’s Response to Defendant’s Motion also includes the affidavit of her attorney as well as her SIJ Application. Yu’s attorney states that he prepared Yu’s SIJ application and entered a Notice of Appearance in the matter when he filed the application with INS. Despite the fact that he was attorney of record and despite a regulation requiring INS to communicate all deficiencies in an application to both the individual and her attorney, INS never notified Yu’s attorney of the problem with her fingerprints until this action was commenced. Further, Yu’s attorney states that the problem with the fingerprints provided was that Yu’s birth date was inadvertently left off the form. The birth date was however available on numerous other documents in the application, including Yu’s birth certificate. 4
Defendants now move for judgment on the pleadings, or in the alternative to dismiss for lack of subject matter jurisdiction. Plaintiffs resist, arguing that the Court has federal question jurisdiction pursuant to the Mandamus Act, the Administrative Procedures Act and the INA, that the Complaint successfully states a claim, and that Defendants are not entitled to judgment as a matter of law.
STANDARDS OF REVIEW
A. Motion For Judgment on Pleadings
A Rule 12(c) motion for judgment on the pleadings is governed by the same standards as a Rule 12(b)(6) motion to dismiss.
Mock v. T .G. & Y,
B. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction and may only exercise jurisdiction
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction typically take two forms: a facial challenge or a factual challenge.
Holt v. United States,
A court, however, is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when “resolution of the jurisdictional question is intertwined with the merits of the case.”
Holt,
ANALYSIS
Because federal courts are courts of limited jurisdiction, the Court will begin with the numerous jurisdictional challenges raised by Defendants. Having concluded that the Court does have subject matter jurisdiction over this controversy and that it is otherwise properly before the Court, the Court will then address Defendants’ argument that they are entitled to judgment as a matter of law. The Court concludes that the Complaint successfully states a cause of action and that Defendants are not entitled to judgment in their favor on the pleadings.
A. Jurisdictional Challenges
Defendants raise a series of challenges to this Court’s jurisdiction over this dispute. Defendant’s argue that this Court has no jurisdiction because: (1) the Mandamus Act and the Administrative Procedures Act do not provide a “separate” grant of jurisdiction; (2) the decision at issue is discretionary not mandatory; (3) the Plaintiff did not exhaust her administrative remedies; (4) the case is not ripe for review; and (5) the named Plaintiff has not plead irreparable injuries. In addition, Defendants assert that the 1997 amendments to the INA prevent judicial review of this kind. The Court will address the first collection'of arguments together as they all reach the elements necessary for establishing jurisdiction to review unreasonably delayed agency action. Finding that the Court does have jurisdiction over this dispute pursuant to federal question jurisdiction and the APA, the Court will then addi-ess Defendants’ argument that the amendments to the INA have stripped this Court of jurisdiction. Finding Defendants’ arguments unpersuasive, the Court concludes that it does have subject matter jurisdiction over this case.
1. Jurisdiction to Review Delayed Agency Action
Plaintiffs base subject matter jurisdiction in this case on federal questions jurisdiction, 28 U.S.C. § 1331, the INA, the Administrative Procedures Act (APA), 5 U.S.C. § 555(b), 706(1), and the Mandamus Act, 28 U.S.C. § 1361. Defendants assert that federal question jurisdiction does not exist be
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. To be entitled to mandamus relief, the plaintiff must establish (1) that his or her claim is “clear and certain”; (2) that the duty owed is “ministerial and so plainly prescribed as to be free from doubt;” and (3) that no other adequate remedy is available.
Johnson v. Rogers,
The Administrative Procedure Act provides 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).
The APA further provides that the federal courts “shall ... compel agency action unlawfully withheld or unreasonably delayed ....” 5 U.S.C. s 706(1). As the Tenth Circuit recently pointed out, the APA prohibits both agency action unlawfully withheld
and
agency action unreasonably delayed.
Forest Guardians v. Babbitt,
Seeking to harmonize the Mandamus Statute with the APA, the Tenth Circuit has held that, since mandamus requires that no other remedy be available and the APA provides a means of challenging unreasonably delayed agency action, technically mandamus is no longer available in such cases.
Mt. Emmons Mining Co. v. Babbitt,
Thus, in evaluating claims of unreasonable agency delay which seek either mandamus or a mandatory injunction under the APA, or both, the Tenth Circuit applies the same principles and standards, both to determine jurisdiction over the claim and to assess the merits of the claim.
Id.
at 844. With regard to jurisdiction, the Tenth Circuit, along with most other courts, has held that courts may entertain challenges to unreasonably delayed agency action on the basis of § 1331 jurisdiction and § 706(1) of the APA.
Carpet,
[tjhis understanding was made explicit by the Senate Judiciary Committee: “An anomaly in Federal jurisdiction prevents an otherwise competent United States district court from hearing certain cases seeking ‘nonstatutory’ review of Federal administrative action, absent the jurisdictional amount in controversy required by 28 U.S.C. section 1331, the general ‘Federal question’ provision. These cases ‘arise under’ the Federal Constitution or Federal statutes, and the committee believes they are appropriate matters for the exercise of Federal judicial power regardless of the monetary amount involved.” S.Rep.No. 94-996, p. 12 (1976) (emphasis supplied); see B.R.Rep. No. 94-1656, p. 13 (1976); U.S.Code Cong. & Admin.News 1976, p. 6121.
Id.
Based on Califano’s interpretation of § 1331, the
Carpet
court concluded that federal courts have federal question jurisdiction over claims which require the interpretation of federal statutes but which are not pursued as causes of action under that statute.
Carpet,
Thus, courts have uniformly concluded that, “[wjhen an agency’s recalcitrance, inertia, laggard pace or inefficiency sorely disadvantages the class of beneficiaries Congress intended to protect, judicial review ... is in order.”
In re Amer. Feder. of Gov. Employees, AFL-CIO,
To determine whether jurisdiction is appropriate in actions such as these challenging unreasonably delayed agency action, courts use the elements required to warrant relief to assess whether the plaintiff has established a prima facie case, warranting the exercise of jurisdiction over the dispute.
See Hernandez-Avalos,
a. Duty to Plaintiff
The first and arguably most important question is whether Defendants owe Plaintiffs a duty.
See 13
A.L.R. Fed. § 145 (“Where a duty has been found to exist, so has jurisdiction, and relief has generally followed.”) The Tenth Circuit has concluded that the question- of whether an agency owes the plaintiff a duty in cases such as this should be resolved by applying the “zone of interest test” for standing under the APA.
Hernandez-Avalos,
[T]he essential inquiry in the zone of interests test in this circuit is whether “Congress intended for a particular class of plaintiffs to be relied upon to challenge agency disregard of the law,” and there need be “no indication of congressional purpose to benefit the would-be plaintiff.”
Id.
846-47 (quoting
Mount Evans Co. v. Madigan,
In the present case, the Court has no hesitation in concluding that the named Plaintiff Yu and the purported class of Plaintiffs fall within the zone of interest of the INA provisions for SIJ and LPR status. As the Supreme Court recently stated, “[w]hen the suit is one challenging government action or inaction, [and] the plaintiff is himself an object of the action (or foregone action) at issue, ... there is ordinarily little question that the action or inaction caused him injury, and that a judgment preventing or requiring the action will redress it.”
Lujan v. Defenders of Wildlife,
b. Mandatory Duty to Act
Next, the Court must determine whether Defendants are subject to a mandatory duty to act or whether the action, or inaction, challenged is committed to the discretion of the agency. The Court cannot compel an agency to exercise its discretion in a particular manner. However, “[administrative agencies do not possess the discretion to avoid discharging the duties that Congress intended them to perform.”
Forest Guardians,
Defendants argue that in the present case Plaintiffs cannot establish a mandatory duty to act because granting adjustment to the status of LPR is within the discretion of the Attorney General. Because they have no right to LPR status, the argument goes, they have no right to action on their application for LPR status.
This argument has been flatly rejected numerous times by other courts.
See Forest Guardians,
All other courts addressing this question have held that INS has a non-diseretionary duty to process applications for LPR status as well as all other immigration applications.
See Wan Shih Hsieh v. Kiley,
Defendants next argue that because there is no statutory deadline imposed on the processing of SIJ or LPR applications, they cannot be found to have unreasonably delayed. Defendants fail to comprehend that the APA itself imposes on them the duty to
if an agency has no concrete deadline establishing a date by which it must act, and instead is governed only by general timing provisions — such as the APA’s general admonition that agencies conclude matters presented to them ‘within a reasonable time,’ see 5 U.S.C. § 555(b) — a court must compel only action that is delayed unreasonably.
Forest Guardians,
[although neither 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. We hold that as a matter of law, [the plaintiff] is entitled to a decision within a reasonable time, and that it is within the power of the court to order such an adjudication.
Agbemaple v. INS,
c. Clear Right to Relief
Finally, the Court must determine if Plaintiffs have a “clear and certain” right to mandamus or injunctive relief. This requires first that Plaintiffs have no other adequate remedy available to them, and second that Plaintiffs have established a prima facie case that Defendants have violated the non-discretionary duty owed them. In addition, the Court must consider whether there are any other impediments to review of Plaintiffs’ claims, as raised by Defendants, including a lack of finality, failure to exhaust administrative remedies, or ripeness problems.
First, Plaintiffs have established that there is no other adequate remedy available for the harm they seek to redress. Plaintiffs here complain of the failure of INS to process their applications in a timely manner. They are afforded no means, other than resort to this Court, to challenge this alleged agency malfeasance.
See Forest Guardians,
Second, Plaintiffs have established a
prima facie
case that Defendants have unreasonably delayed in processing their applications. The named Plaintiff Yu filed her application for SIJ and LPR status on August 21, 1996, two and a half years ago. This is on its face an unreasonable amount of time to process a routine application and requires an explanation. The Complaint further pleads that the purported class of Plaintiffs have all had applications pending before INS for more than one year. This is also sufficient to establish that Defendants have unreasonably delayed in acting on Plaintiffs’ applications. For the purposes of establishing jurisdiction or a motion to dismiss, Plaintiffs are entitled to the inference that a delay of this length is unreasonable.
See Agbemaple,
Defendants raise numerous other challenges to Plaintiffs’ core assertion that the
In addition, Defendants argue that Plaintiffs’ claims are not properly before the Court because there is no final agency decision, they have failed to exhaust administrative remedies, they have not pled irreparable harm, and the claim of the named Plaintiff is not ripe. None of these arguments have merit. “By definition, a claim of unreasonable delay cannot await final agency action before judicial review, as the very lack of agency action is what gives rise to the complaint.” 2 Am.Jur.2d Administrative Law § 379;
TRAC,
Accordingly, the Court holds that Plaintiffs have established a non-discretionary duty on the part of INS and the other Defendants to process their SIJ and LPR applications in a reasonable time. Further, Plaintiffs have established a prima facie case that Defendants have breached this duty. Thus, this Court does have jurisdiction over Plaintiffs’ claims under 28 U.S.C. § 1331 and the APA § 706(1).
2. 1997 Amendments to INA
The last jurisdictional obstacle which Defendants point to is the 1997 Amendments to the INA. As amended, 8 U.S.C. § 1252, entitled “Judicial review of orders of removal,” provides, in pertinent part, as follows:
(g) Exclusive jurisdiction
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
Defendants argue that this provision strips this Court of jurisdiction to hear Plaintiffs’ claims.
There is a well settled presumption in favor of interpreting statutes to allow judicial review of administrative action.
McNary v. Haitian Refugee Ctr., Inc.,
498
As both the title and the text of § 1252(g) make clear, the statute broadly limits judicial review of “removal orders” and all actions taken in conjunction with such orders. Whether or not the failure to institute removal proceedings would qualify as an action, thereby prohibiting challenges similar to the present one to INS failure to institute removal proceedings, is an interesting but irrelevant question. Plaintiffs are currently challenging the failure of the INS to act with reasonable promptness in processing their applications for SIJ and LPR status. The present case has nothing to do with removal orders. If Congress intended to limit all judicial review of any INS action or in action, on any matter before the agency, it could have done so. However, by limiting judicial review of “removal orders” it specifically left intact judicial review of all other matters properly before the Court.
Cf. Hernandez-Avalos,
B. Judgment on the Pleadings
Finally, Defendants assertion that they are entitled to judgment in their favor as a matter of law must fail. The Court has already found for jurisdictional purposes that Plaintiffs successfully state a cause of action in that they have established that Defendants owe them a non-discretionary duty to process their applications in a reasonable time. The Court will here address in more detail Defendants’ argument that a delay of a year or more is not unreasonable as a matter of law.
“The passage of time alone is rarely enough to justify a court’s intervention in the administrative process, especially since administrative efficiency is not a subject particularly suited to judicial evaluation.”
Singh,
(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; and (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;
Forest Guardians,
On the other hand, in
Galvez v. Howerton,
In the present case, as noted, the named Plaintiff Yu’s application has now been pending for two and a half years. Even accepting INS’ argument that the application was not complete until January of 1998, the application has now been pending for more than a year. Further, even accepting INS’ assertion that it did not act unreasonably in failing to notify Yu’s attorney of the problem with the application, as required to do by the Code of Federal Regulations, INS failed to make any attempt to alert Yu to the problem for nearly ten months. The Court is not inclined to find such conduct reasonable as a matter of law.
Taking the further steps of viewing the facts in the light most favorable to the Plaintiffs and setting aside the information outside of the pleadings-as the Court is required to do on this motion-the delay in this case is far from reasonable. The Court cannot imagine a reasonable justification for allow- ing Yu’s application to go unresolved for more than two and a half years, until after Yu reached the age of majority meaning she may no longer be eligible for SIJ status. How can a young woman in her position make plans for her future when she does not even know if she will be permitted to remain in the country? And how can such an appli- cation require two and a half years to com- plete, even if it could be described as compli- cated? Particularly in light of INS’ past practice of processing similar applications in six months, the balance of interests in this case strongly point to the unreasonableness of a two and a half year delay in processing Yu’s application.
With regard to thunnamed Plaintiffs, the only assertion before the Court is that all of their applications have been pending for more than a year. At this stage, the Court simply does not have sufficient facts to deter- mine whether this delay is reasonable. While it may be that INS will be able to persuade the Court that a year long delay is not unreasonable, the Court is not prepared to rule that it is reasonable as a matter of law. The reasonableness of such delays de- pends on the facts and circumstances of each individual case which are currently not be- fore the Court. Accordingly, Defendants are not
Accordingly, Defendants are notentitled to judgment in their favor on the pleadings. CONCLUSION IT IS THEREFORE
CONCLUSION
ITS IS THEREFORE ORDEREDthat Defendants’ Motion for Judgment on the Pleadings [Doc. 18] is hereby DENIED. 18] is hereby DENIED.
Notes
. Yu's INS application, attached to her Response to Defendant's Motion for Judgment on the Pleadings, indicates that her date of birth is April 2, 1977, making Yu currently 21 years old. The parties have failed to brief the significance of this fact.
. Again, the parties have failed to brief the current status of Yu's guardianship now that she is 21 years old.
.To be eligible to adjust status to that of lawful permanent resident, an applicant must demonstrate that a visa is immediately available and is usually constrained by the number of visas allotted to the applicant’s country of origin.
. The Court will consider the information in these affidavits only as it pertains to subject matter jurisdiction, not in determining whether judgment on the pleadings is appropriate.
. The Court discusses these findings in more detail below. See "B. Judgment on the Pleadings.’’
. The cases cited by Defendants as requiring "irreparable injury” all address writs of mandamus directed at trial judge in an ongoing case.
In re Eisenberg v. U.S. District Court,