Legal arguments like the ones presented in this case have divided federal district courts and judges within this district. Compare Linville v. Barrows, 489 F. Supp. 2d 1278 (W.D. Okla. 2007) (Russell, J.) (jurisdiction); with Guo v. Chertoff, No. CIV-07-0062-HE, Order (W.D. Okla. Aug. 31, 2007) (Heaton, J.) (no jurisdiction). For reasons that follow, the Court finds the existence of subject matter jurisdiction in this case. The Court sees no need, however, to replicate a complete analysis of the issues presented; they have been thoroughly discussed in a substantial, ever-increasing body of case law.
ant number of courts have concluded that jurisdiction does not exist to consider a claim involving a failure to adjudicate an application for an adjustment of status, at least as many courts have come to the opposite conclusion. Compare Chehab v. Chertoff, No. 07-11068, 2007 WL 2372356 (E.D. Mich. Aug. 17, 2007) (concluding that court lacked jurisdiction to hear case to compel immigration officers to decide application for adjustment in status); Qiu v. Chertoff, 486 F. Supp. 2d 412 (D.N.J. 2007) (same);Sharif v. Chertoff, 497 F. Supp. 2d 928 (N.D. Ill. 2007); Li v. Chertoff, 482 F. Supp. 2d 1172 (S.D. Cal. 2007); Rogatch v. Chertoff, No. CA 06-541ML, 2007 WL 1160358 (D.R.I. Apr. 17, 2007) (same); Mustafa v. Pasquerell, No. Civ. SA05CA-658-XR, 2006 WL 488399 (W.D. Tex. Jan. 10, 2006) (same); Zhang v. United States Citizenship Immigration Services, No. 05 Civ. 4086 (RJH) (AJP), 2005 WL 3046440 (S.D.N.Y. Nov. 8, 2005) (same);Zheng v. Reno, 166 F. Supp. 2d 875 (S.D.N.Y. 2001) (same) with Linville v. Barrows, 489 F. Supp. 2d 1278 (W.D. Okla. 2007) (concluding that ยง 1252 does not bar judicial review of a failure to adjudicate application for adjustment of status);Xu v. Chertoff, No. 07-366(DMC), 2007 WL 2033834 (D.N.J. July 11, 2007) (same);Yan Yang v. Gonzales, No. 2:07-cv-050, 2007 WL 1726501 (S.D. Ohio June 11, 2007) (same);Song v. Klapakas, No. 06-05589, 2007 WL 1101283 (E.D. Pa. Apr. 12, 2007) (same);Elmalky v. Upchurch, Civil Action No. 3:06 CV-2359-B, 2007 WL 944330 (N.D. Tex. Mar. 28, 2007) (same);Haidari v. Frazier, Civil No. 06-3215 (DWF/AJB), 2006 WL 3544922 (D. Minn. Dec. 8, 2006) (same); Kim v. Ashcroft, 340 F. Supp. 2d 384 (S.D.N.Y. 2004) (same); Batista v. INS, No. 99 Civ. 2847 MBM, 2000 WL 204535 (S.D.N.Y. Feb. 22, 2000) (same). See also Zeng v. Upchurch, Civil No. 2:06-cv-112, 2007 WL 2694253, *2 (D.N.D. Sep. 11, 2007) (noting that "[d]istrict courts are more or less divided on this matter").
Because the APA requires federal courts to "compel agency action unlawfully withheld or unreasonably delayed," 5 U.S.C. ยง 706(1), Plaintiffs contend that a refusal to act or an unreasonable delay in adjudicating an application for adjustment of status is subject to judicial review. The weight of the authorities supports Plaintiffs' position.See Linville v. Barrows, 489 F. Supp. 2d 1278, 1282 (W.D. Okla. 2007) (noting that "the majority of court decisions make clear that immigration officials have a nondiscretionary duty to act on an application, and that such action must be taken within a reasonable time"); Duan v. Zamberry, No. 06-1351, 2007 WL 626116, at *3 (W.D. Pa. Feb. 23, 2007) ("The weight of authority, however, supports a finding that Defendants have a non-discretionary duty to process or adjudicate an adjustment application; that duty supports a mandamus action."); Razaq v. Poulos, No. 06-2461-WDB, 2007 WL 61884, at *3 (N.D. Cal. Jan. 8, 2007) ("We find that the USCIS has a mandatory duty to decide whether to grant or deny I-130 Petitions. . . . While the substance of the decision whether to grant or deny a petition obviously is discretionary, the duty to process the application is just as obviously ministerial."); Haidari v. Frazier, No. 06-3215, 2006 WL 3544922, at *4 (D. Minn. Dec. 8, 2006) ("Because Plaintiffs have neither been denied nor granted relief, ยง 242 does not bar jur
A bevy of courts have held that the regulation's mandatory language imposes on USCIS "a non-discretionary, mandatory duty to act on Plaintiffs' applications." Yu v. Brown, 36 F. Supp. 2d 922, 931 (D.N.M. 1999); accord Singh, 470 F. Supp. 2d at 1067 n.6 (finding the same); Burni v. Frazier, 545 F. Supp. 2d 894, 904-06 (D. Minn. 2008) (same); Linville v. Barrows, 489 F. Supp. 2d 1278, 1281 (W.D. Okla. 2007) (same); cf. Patel v. Cissna, 400 F. Supp. 3d 1373, 1380 (M.D. Ga. 2019) (finding no duty to adjudicate U-Visa work authorization applications and contrasting that with duty to adjudicate adjustment of status applications).
Father McGuire argues that, "[i]n taking 356 days to process the I-360, USCIS breached its nondiscretionary duty to him under the APA to render decisions in a reasonable time ( 5 U.S.C. ยง 555(b) ) and under 8 U.S.C. ยง 2155(k)(2) to render decisions within 180 days." Response at 20 (citing Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir. 1999) ; Kim v. USCIS, 551 F. Supp. 2d 1258, 1264-65 (D. Colo. 2008) (Miller, J.); Linville v. Barrows, 489 F. Supp. 2d 1278, 1282 (W.D. Okla. 2007) (Russell, J.); Yu v. Brown, 36 F. Supp. 2d 922, 928-35 (D.N. M 1999) (Vazquez, J.)). Father McGuire also argues that 8 C.F.R. ยง 245.1(d)(2)(i) does not apply to his case.
5 U.S.C. ยง 701(a). District courts across the country are split on whether the Mandamus Act and/or the APA afford subject matter jurisdiction over claims that USCIS failed to adjudicate, or is unreasonably delayed in adjudicating, a Form Iโ485. Compare Qiu v. Chertoff, 486 F.Supp.2d 412 (D.N.J.2007); Li v. Chertoff, 482 F.Supp.2d 1172 (S.D.Cal.2007); Rogatch v. Chertoff, 2007 WL 1160358 (D.R.I. Apr. 17, 2007); and Mustafa v. Pasquerell, 2006 WL 488399 (W.D.Tex. Jan. 10, 2006) (all finding a lack of subject matter jurisdiction to compel immigration officers to adjudicate the Form Iโ485), with Kashkool v. Chertoff, 553 F.Supp.2d 1131 (D.Ariz.2008); Linville v. Barrows, 489 F.Supp.2d 1278 (W.D.Okla.2007); Kim v. Ashcroft, 340 F.Supp.2d 384 (S.D.N.Y.2004); Bemba v. Holder, 930 F.Supp.2d 1022 (E.D.Mo.2013); and Irshad v. Napolitano, 2012 WL 4593391 (D.Neb. Oct. 2, 2012) (all finding subject matter jurisdiction exists). A similar split exists among district courts within the Sixth Circuit. Compare, e.g., Kobaivanova v. Hansen, 2011 WL 4401687 (N.D.Ohio Sept. 16, 2011) (finding subject matter jurisdiction), with Xu v. Gonzales, 2007 WL 2815449 (S.D.Ohio Sept. 25, 2007) (finding a lack of subject matter jurisdiction).
Ansari, 2007 WL 4553920, *3;Asrani, 2007 WL 3521366, *2-3. Consistent with the majority of district courts in this circuit, the Court hereby finds the jurisdiction-stripping provision of ยง 1252(a)(2)(B) does not apply. District courts around the country were more or less divided on this matter the last time this issues was addressed by the Court, some concluding there is jurisdiction to compel action on adjustment applications, see Linville v. Barrows, 489 F.Supp.2d 1278, 1281 (W.D. Okla. 2007); Haidari v. Frazier, 2006 WL 3544922 (D. Minn., Dec. 8, 2006); and others concluding there is not,see, Qiu v. Chertoff, 486 F.Supp.2d 412 (D.N.J. 2007); Sharif v. Chertoff, 2007 WL 2045489 (N.D. Ill., July 18, 2007). However, recent opinions the district courts within the Eighth Circuit show a growing tendency to find courts have such jurisdiction.
g v. Chertoff, 513 F.Supp.2d 1158, 1165 (N.D.Cal. Sept. 6, 2007); He v. Chertoff, No. 2:07-14, 2007 WL 2572359, at *3 (D.Vt. Sept. 4, 2007); Liu v. Novak, 509 F.Supp.2d 1, 6-7 (D.D.C. 2007); Tang v. Chertoff, No. 07-203, 2007 WL 2462187, at *4 (E.D.Ky. Aug. 29, 2007); Liu v. Chertoff, No. 06-2808, 2007 WL 2433337, at *4 (E.D.Cal. Aug. 22, 2007); Totonchi v. Gonzales, No. 1:07-256, 2007 WL 2331937, at *3-4 (N.D.Ohio Aug. 13, 2007); Cao v. Upchurch, 496 F.Supp.2d 569, 573 (E.D.Pa. 2007); Konchitsky v. Chertoff, No. 07-294, 2007 WL 2070325, at *3 (N.D.Cal. July 13, 2007); Landry v. Chertoff, No. 07-506, 2007 WL 2007996, at *2-3 (E.D.La. July 5, 2007); Tang, 493 F.Supp.2d at 153-54; Qiu v. Chertoff, No. C07-0578, 2007 WL 1831130, at *3 (N.D.Cal. June 25, 2007); Pool v. Gonzales, No. 07-258, 2007 WL 1613272 (D.N.J. June 1, 2007); Koren v. Chertoff, No. 3:07-CV-157, 2007 WL 1431948, at *3 (D.Conn. May 14, 2007); Huang v. Gonzales, No. C07-96, 2007 WL 1302555, at *3, (W.D.Wash. May 2, 2007); Linville v. Barrows, 489 F.Supp.2d 1278, 1282 (W.D.Okla. 2007); Duan v. Zamberry, No. 06-1351, 2007 WL 626116, at *2-3 (W.D.Pa. Feb. 23, 2007). Perhaps recognizing this conundrum, the Safadi court qualified its reasoning by recognizing that it was not addressing a circumstance where "USCIS refused altogether to process an adjustment application or where the delay was so unreasonable as to be tantamount to a refusal to process the application."
The district courts who have addressed this issue are split on the matter. Compare, e.g., Bugulu v. Gonzalez, 490 F.Supp.2d 965, 967 (W.D. Wis. 2007) (holding that courts lacks jurisdiction to review the pace at which the USCIS processes an adjustment status); Sharif v. Chertoff, 497 F.Supp.2d 928, 933-34 (N.D. Ill. 2007) (same); Li v. Chertoff, 482 F.Supp.2d 1172, 1176-79 (S.D. Cal. 2007) (same); Safadi v. Howard, 466 F.Supp.2d 696, 699-701 (E.D. Va. 2006) (same), with Saleem v. Keisler, 2007 WL 3132233, at *3 (W.D. Wis. Oct. 26, 2007) (holding that courts have jurisdiction to review whether there is an unreasonable delay in processing an adjustment status); Fu v. Gonzalez, 2007 WL 1742376, at *6 (N.D. Cal. May 22, 2007) (same); Linville v. Barrows, 489 F.Supp.2d 1278 (W.D. Okla. 2007) (same); Duan v. Zamberry, 2007 WL 626116 (W.D. Pa. Feb. 23, 2007) (same). Dossioukov cites Iddir v. INS, 301 F.3d 492 (7th Cir. 2002), but Iddir is distinguishable from the present case.
As discussed above, we disagree with this interpretation and hold that the duty to process applications and the "timeliness of the process is not discretionary." Linville v. Barrows, 489 F. Supp. 2d 1278, 1281 (W.D. Okla. 2007). As recently stated by a federal court sitting in the Northern District of California, such a restrictive interpretation of 8 U.S.C. ยง 1252(a)(2)(B)(ii) "would render toothless all timing restraints, including those imposed by the APA, which would amount to a grant of permission for inaction." Fu v. Gonzales, No. 07-0207, 2007 WL 1742376, *4 (N.D. Cal. May 22, 2007).