I am hopping to get my case filed early next week. I am about to fax my senator too. If that does not help,at least I have one more document to add to my case to prove I have done everything I could possibly do
Here is the case from your court that may be useful (AOS WOM):
WEIZHU ZHU v. MICHAEL CHERTOFF, et al., Defendants.
No. 07-4104-CV-C-NKL
The court ultimately granted summary judgment for plaintiff and ordered USCIS to complete processing in 90 days.
"Zhu has a clear, indisputable and nondiscretionary right to have the USCIS adjudicate his application within a reasonable time. See Haidari, 2006 WL 3544922, at *4 (citing Aboushaban, 2006 WL 3041086, at *2; Kim v. Ashcroft, 340 F. Supp. 2d 384, 391-92 (S.D.N.Y. 2004)); see also Sawad v. Frazier, No. 07-1721, 2007 WL 2973833, at *2-*3 (D. Minn. Oct. 9, 2007) (finding clear, indisputable and nondiscretionary right and rejecting government's argument that 8 U.S.C. § 1252(a) precludes judicial review); Konchitsky v. Chertoff, No. 07-00294, 2007 WL 2070325, at *3 (N.D. Cal. July 13, 2007); Tang v. Chertoff, 493 F. Supp. 2d 148, 152-55 (D. Mass. 2007) (finding clear, indisputable and nondiscretionary right and rejecting government's argument that § 1252(a) precludes judicial review); Pool v. Gonzales, No. 07-258, 2007 WL 1613272, at *2 (D.N.J. June 1, 2007); Song v. Klapakas, No. 06-05589, 2007 WL 1101283, at *3 (E.D. Pa. Apr. 12, 2007).
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But determining what is a reasonable time is a more nuanced question. "In determining reasonableness [for purposes of § 555(b) of the APA], we look to the source of delay — e.g., the complexity of the investigation as well as the extent to which the defendant participated in delaying the proceeding." Haidari, 2006 WL 3544922, at *5 (quoting Reddy v. Commodity Futures Trading Comm'n, 191 F.3d 109, 120 (2d Cir. 1999)); see also Takkallapalli, 487 F. Supp. 2d at 1098 (citing Pub. Citizen Health Page 6 Research Group v. Comm'r, Food & Drug Admin., 740 F.2d 21, 35 (D.C. Cir. 1984)). In the immigration context, unreasonableness "depends to a great extent on the facts of the particular case." Yu v. Brown, 36 F. Supp. 2d 922, 935 (D.N.M. 1999).
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The Court is mindful of the government's national security concerns in processing applications, but this does not give the government the right to indefinitely delay Zhu's application. See Konchitsky, 2007 WL 2070325, at *5 ("Although defendants assert that the delay results from `increased national security issues and not agency inaction,' defendants have not shown how national security concerns are a reason for the delay in plaintiff's application."); Haidari, 2006 WL 3544922, at *6 (explaining USCIS does not have "unfettered discretion to relegate aliens to a state of `limbo'"). Moreover, Zhu alleges that he has exhausted all administrative remedies and Defendants do not dispute that he has done so.
Therefore, the USCIS must adjudicate Zhu's application expeditiously, or, at the latest, within 90 days. See Qijuan Li, 2007 WL 2123740, at *3 ("However, the defendant Attorney General oversees both USCIS and the FBI, so shifting the onus to the FBI does not show timeliness."); see also Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 65 (2004) ("[W]hen an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency's discretion, a court can compel the agency to act, but has no power to specify what the action must be.").
