one more victory (M.D. Florida)
HONGWEN REN, Plaintiff, -vs- ROBERT S. MUELLER, III, EMILIO T. GONZALEZ, AND EVELYN UPCHURCH, Defendants.
Case No. 6:07-cv-790-Orl-19DAB
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, ORLANDO DIVISION
2008 U.S. Dist. LEXIS 4300
January 20, 2008, Decided
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The Court also must read Section 1252(a)(2)(B)(ii) in light of Section 1252(g), another jurisdiction-stripping provision of the INA. Section 1252(g) involves the removal process and states that "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, [*17] adjudicate cases, or execute removal orders against any alien under this chapter." 8 U.S.C. § 1252(g). This provision clearly and explicitly removes the agency's decision whether or not to adjudicate cases from judicial review. Congress here distinguished the process of adjudication from the ultimate decision and was explicit in removing the entire process from judicial review. In contrast, Congress remained silent concerning the decision whether to adjudicate applications in Section 1252(a)(2)(B)(ii). The Court must assume that this was deliberate and that Congress did not intend to remove this decision from judicial review by leaving it entirely in the discretion of the USCIS.
Defendants nevertheless argue that Plaintiff does not have a right to relief because agency regulations do not mandate any deadlines for acting on applications and in fact give USCIS the authority to "withhold adjudication" in certain circumstance. (Doc. No. 11 at p. 6) (citing 8 C.F.R. § 103.2(b)(18)). ..This regulatory provision clearly gives the USCIS discretion to process applications within a year. 7 After that time, if certain conditions are met, the USCIS may withhold adjudication for six-month increments. In the current case, Defendants have not alleged that the conditions of this provision have been met. (See Doc. No. 11.) They have offered no evidence that the USCIS District Director, Regional Commissioner, and the Associate Commissioner, Examinations, with the concurrence of the Associate Commissioner, Enforcement, have approved withholding adjudication of Plaintiff's Application in excess of one year. (See id.) Absent such evidence, the Court cannot find that this Section applies to the current case.
