Rasool Kashkool, Plaintiff, vs. Michael Chertoff, et al., Defendants.
No. CV-07-190-PHX-LOA
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
2008 U.S. Dist. LEXIS 28292
April 7, 2008, Decided
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On February 8, 2008, USCIS released a memorandum to the field revising adjudication guidance concerning adjustment of status applications. The memorandum directs the field to continue to initiate FBI name checks, but revises prior guidance by directing that where the application is otherwise approvable and the name check request has been pending for more than 180 days, the adjudicator [*36] is to approve the I-485 application and proceed with card issuance. Interpreter Releases, Vol. 85, No. 7, February 11, 2008. Because neither party has cited this USCIS memorandum, the Court does not rely upon this USCIS memorandum in reaching its decision. The Court, however, notes that it provides further evidence that USCIS has a nondiscretionary duty to process I-485 applications within a reasonable time.
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8 The court in Jiuru Hu commented that "hould USCIS refuse to take any steps whatsoever to resolve a LPR application or employ procedures such that no decision will issue, it might legitimately be said the agency's inaction was not the result of an exercise of discretion at all. The agency would then not be operating within its statutory discretion at all but rather abdicating its statutory duty to adjudicate applications, and under those circumstances, this court could have jurisdiction to review the agency's actions.") Jiuru Hu, 2007 U.S. Dist. LEXIS 40489, 2007 WL 1515067, *4.
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3 Defendants also suggest that Plaintiff's failure to name the Federal Bureau of Investigation ("FBI"), the agency responsible for conducting name checks, as a defendant is fatal to Plaintiff's suit. (docket # 30 at 2) The Court disagrees. The FBI's involvement in adjudicating I-485 applications arises not by statute or duty otherwise imposed by law, but by a contract between USCIS and the FBI. Konchitsky v. Chertoff, No. C-07-00294-RMW, 2007 U.S. Dist. LEXIS 53998, 2007 WL 2070325, *6 (N.D.Cal., July 13, 2007). In view of that arrangement, FBI may lack a clear duty to Plaintiff, and thus, this Court lacks mandamus jurisdiction over the FBI. Eldeeb v. Chertoff, No. 8:07-CV-23 6-T- 17EAJ, 2007 U.S. Dist. LEXIS 55000, 2007 WL 2209231, *21-22 (E.D.Fla., July 30, 2007). Similarly, absent any legal duty owed to Plaintiff that has been violated, Plaintiff could not state a claim against the FBI under the APA. Konchitsky, 2007 U.S. Dist. LEXIS 53998, 2007 WL 2070325, *6 [*6] (noting that "courts squarely addressing the issue of whether they have jurisdiction to compel the FBI to perform name checks in connection with adjustment of status petitions have overwhelmingly concluded that they do not.") Thus, Plaintiff prudently chose not to name FBI as a defendant. The Court notes, however, that the USCIS has the authority to direct the FBI to conduct a name check on an expedited basis. (docket # 30, Cannon Decl. P 19)(stating that "the FBI generally processes name checks on a 'first-in, first-out' basis unless USCIS directs that a particular name check be expedited.")
