485 mandamus victory ND illinois(still no Feb 4 memo)
AMER FAROUQ ADIB KAMAL, Plaintiff, v. ALBERTO R. GONZALES, et al., Defendants.
No. 07 C 4840
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2008 U.S. Dist. LEXIS 15942
March 3, 2008, Decided
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Defendants argue that we lack jurisdiction over Kamal's claim because "Congress granted USCIS, through the Attorney General and the Homeland Security Secretary, the discretion to adjudicate adjustment of status petitions," which "includes the timing, the method, and information needed for adjudication." (Mot. at 3). It appears that no federal circuit court has decided whether the delayed timing, or pace, of adjudicating adjustment of status applications falls under the scope of discretionary power -- thus precluding it from judicial [*9] review under § 1252(a)(B)(ii) -- and district courts around the country are split on the matter.
However, we find that the issue in this present claim is broader than the Defendants have framed it. The question at issue is not whether § 1252(a)(2)(B)(ii) bars judicial review over challenges to the pace of application processing, but rather whether the provision precludes review over challenges to the failure to adjudicate an application. See Khelashvili v. Chertoff, No. 07 C 2826, 2007 WL 4293634, at *2 (N.D. Ill. Dec. 7, 2007) ("t is undisputed that the decision whether to grant or deny an application for adjustment of status is discretionary. The [question] is whether the adjudication of those applications is also discretionary."). We agree that we neither have the power to adjust a petitioner's legal permanent resident status, nor to review decisions where the USCIS has denied or granted a petitioner's application for such status. See, e.g., Yong Tang v. Chertoff, 493 F. Supp. 2d 148, 151 (D. Mass. 2007) ("The ultimate decision whether or not to adjust an alien's status under INA § 245 is undisputably within the discretion of the Attorney General."). But we perceive a key distinction [*10] between how the Attorney General processes an application and whether he adjudicates the application at all. Singh v. Still, 470 F. Supp. 2d 1064, 1067 (N.D. Cal. 2007) ("[T]here is a difference between the INS's discretion over how to resolve an application and the INS's discretion over whether it resolves an application.").
On this latter issue, the Seventh Circuit has already provided controlling language in Iddir v. INS, 301 F.3d 492 (7th Cir. 2002). In Iddir, plaintiffs were foreign nationals who were eligible to apply for immigrant visas and eventually, legal permanent resident status, under the Diversity Visa Lottery Program, but whose applications were denied because the INS failed to process their applications within the statutorily mandated one-year timeframe. Id. at 493-94. Although the Seventh Circuit found that the district court lacked jurisdiction to hear the plaintiffs' mandamus claims, it held as a threshold matter that the district courts did have jurisdiction to review the claim under § 1252(a)(2)(B). 2 Id. at 498, 501. The court concluded that § 1252(a)(2)(B), "by use of the terms 'judgment' and 'decision or action', only bars review of actual discretionary decisions [*11] to grant or deny relief under the enumerated sections, including section 1255." Id. at 497 (emphasis added); 3 see also Ahmed v. Dep't of Homeland Security, 328 F.3d 383, 387 (7th Cir. 2003) (reiterating Iddir's holding "that 8 U.S.C. § 1252(a)(2)(B) . . . applies only if there has been an actual discretionary decision either to grant or to deny the visa.").
Last, the Defendants point to the argument in Sadafi that the pace of adjudication falls under the discretion of USCIS because "Congress included no statutory time limits in § 1255(a), nor expressed any need for 'expedition' in the adjudication process." (Mot. at 5-6); see also Kuchumov, 2007 WL 2782045, at *3 [*17] (declining to find jurisdiction because unlike in other sections of the INA, Congress did not in § 1255(a) "set forth a statutory time period for adjudication and an explicit provision granting [adjustment of status] applicants a right to judicial review upon the expiration of that time period"). The absence of such time limits, the Defendants contend, confirms "Congress' intent that…the pace of decision-making[] be within the discretion of USCIS, and thus excluded from judicial review." (Mot. at 6). However, in order to preclude judicial review, "congressional intent to limit federal jurisdiction, generally, must be clear and convincing." Iddir, 301 F. 3d at 496. The absence of a statutory time limit, without more, is insufficient to suggest that Congress intended to preclude judicial review over challenges to the adjudication of adjustment of status applications. See, e.g., Saleem, -- F. Supp. 2d --, 2007 WL 3132233, at *4 ("t is inappropriate to infer a congressional intent to remove jurisdiction simply from the absence of a statutory deadline for making a decision.").
The Defendants argue that this delay is reasonable because the extra time is necessary to conduct background checks of non-citizens pursuant to national security interests. (Mot. at 10-11). This argument is not persuasive because it urges us to refrain from ordering adjudication of Kamal's claim before his background checks have been completed. (Mot. at 11). Kamal is not challenging the background checks -- indeed, he has willingly supplied fingerprint and other biometric data on no less than three different occasions since August 2002 -- but rather is challenging USCIS's failure altogether to decide on his application. Accordingly, on the record before us, a five-year delay in processing and adjudicating Kamal's adjustment of status application is unreasonable. See, e.g., Singh, 470 F. Supp. 2d at 1069 ("[T]he mere invocation of national security is not enough to render agency delay reasonable per se.").
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