ORDER

GLENDA EDMONDS, Magistrate Judge

Pending before the court is a motion to dismiss filed by the defendants on August 15, 2007. [doc. # 14] The plaintiff filed a response, and the defendants filed a reply. The plaintiff filed a sur-reply and a supplemental memorandum.

The plaintiff in this case, Ruizhong Wang, applied for permanent residency by filing an I-485 application in January of 2005. He brings the instant action to compel the defendants to "expedite and finish" their adjudication of his application. The defendant filed the instant motion pursuant to FED.R.CIV.P. 12(b)(1). They assert this court lacks subject matter jurisdiction.

Magistrate Judge Edmonds presides over this action pursuant to 28 U.S.C. § 636(c)(1) having received the written consent of all parties.

No party has requested a hearing, and the court finds the motion suitable for decision without oral argument. The motion to dismiss will be granted in part. This court has no jurisdiction over the FBI.

Background

The plaintiff, Ruizhong Wang, is a citizen of the People's Republic of China and currently resides in Tucson, Arizona as a resident alien. He is employed by the University of Arizona in the field of biomedical research. Wang applied for permanent residency in the United States by filing an I-485 application on January 25, 2005. He also filed applications on behalf of his wife and son. Since filing his application, Wang has made numerous inquiries into the status of his application. Mr. Wang has been told repeatedly that his application is awaiting adjudication because the FBI name check has not been completed.

On February 15, 2007, Wang filed the instant complaint. He alleges this court has jurisdiction under Section 706 of the Administrative Procedure Act (APA), the Mandamus and Venue Act, 28 U.S.C. § 1361, and the Declaratory Judgment Act, 28 U.S.C. § 2201(a). He claims he has lost professional opportunities due to the defendants' delay in adjudicating his application. He asks that the court issue an order compelling the defendants to "expedite and finish" his FBI name check and adjudicate his I-485 application.

On August 15, 2007, the defendants filed the instant motion to dismiss pursuant to FED.R.CIV.P. 12(b)(1). They do not dispute Wang's assertion that his application is pending and currently awaits completion of the FBI name check. They nevertheless argue the court has no subject matter jurisdiction over the action because the government has unfettered discretion over the pace with which it adjudicates I-485 applications.

Motion to Dismiss for Lack of Subject Matter Jurisdiction

The defendants move that this court dismiss the complaint pursuant to FED.R.CIV.P. 12(b)(1) because the court lacks subject matter jurisdiction. In analyzing the motion, the court accepts as true the factual allegations contained in the complaint. Orsay v. U.S. Dept. of Justice, 289 F.3d 1125, 1127 (9^th Cir. 2002). Because federal courts are courts of limited jurisdiction, the party invoking the jurisdiction of the court has the burden of proof. Thornhill Pub. Co., Inc. v. General Tel. Electronics Corp., 594 F.2d 730, 733 (9^th Cir. 1979).

Discussion

Wang alleges this court has jurisdiction under Section 706 of the Administrative Procedure Act (APA), the Mandamus and Venue Act, 28 U.S.C. § 1361, and the Declaratory Judgment Act, 28 U.S.C. § 2201(a). While these are distinct vehicles for the court's jurisdiction, Wang seeks the same relief regardless. In such a situation, the Ninth Circuit has expressed a preference for first analyzing jurisdiction under the APA. See Independence Mining Co., Inc. v. Babbitt, 105 F.3d 502, 507 n. 6 (1997); Dong v. Chertoff, 2007 WL 2601107, *3 (N.D.Cal. 2007) ("[I]f the Court has jurisdiction pursuant to one, it need not analyze jurisdiction with respect to the other.").

Under the Administrative Procedures Act, 5 U.S.C. § 706, the court is authorized to "compel agency action unlawfully withheld or unreasonably delayed." The APA does not create subject matter jurisdiction by itself. The court, however, has jurisdiction under 28 U.S.C. § 1331 over "all civil actions arising under the Constitution, laws, or treaties of the United States." Accordingly, the APA in conjunction with 28 U.S.C. § 1331 gives the court jurisdiction to compel action from a government agency unlawfully withheld or unreasonably delayed. Idaho Watersheds Project v. Hahn, 307 F.3d 815, 830 (9^th Cir. 2002); Dong v. Chertoff, 2007 WL 2601107, *2 (N.D.Cal. 2007). An action may be "unreasonably delayed," however, only if there exists a duty to act in the first place. San Francisco BayKeeper v. Whitman, 297 F.3d 877, 885 (9^th Cir. 2002). The court considers whether or not the government has a duty to adjudicate Wang's application.

The U.S. Citizenship and Immigration Service (USCIS), an arm of the Department of Homeland Security, "has jurisdiction to adjudicate an application for adjustment of status filed by any alien. . . ." 8 C.F.R. § 245.2(a)(1). This regulation gives the USCIS the authority to act but does not explicitly require the USCIS to act on all applications. A later section of the regulations, however, states that "[t]he applicant shall be notified of the decision of the director and, if the application is denied, the reasons for the denial." 8 C.F.R. § 245.2(a)(5)(i). This passage implies that the director will make a decision in each case. The decision may be favorable or unfavorable, but a decision must be made. See Quan v. Chertoff, 2007 WL 1655601, *3 (N.D. Cal.); see also Brower v. Evans, 257 F.3d 1058, 1068 n. 10 (9^th Cir. 2001) ("`Shall' means shall.").

The court's analysis is further informed by another regulation, 8 C.F.R. § 103.2(b)(18). This regulation permits the government to withhold the adjudication of a visa petition or other application for a specific period of time if there is a sensitive investigation proceeding that would be prejudiced if the petition or application were to go forward. The existence of this regulation further supports the plaintiff's argument that the government has a duty to adjudicate his petition. If there were no duty to adjudicate in the first place, there would be no need for a specific regulation allowing the government to temporarily withhold adjudication while sensitive investigations are allowed to proceed. The court concludes from the regulatory framework that the government has a duty to adjudicate an alien's application for adjustment of status. See Dong v. Chertoff, 2007 WL 2601107, *7 (N.D. Cal 2007).

The regulations do not establish a time frame for the decision. Nevertheless, this oversight does not allow the USCIS unlimited freedom to delay adjudication indefinitely. See, e.g., Tang v. Chertoff, 493 F.Supp.2d 148, 150 (D.Mass. 2007) ("The duty to act is no duty at all if the deadline is eternity."). Congress has provided a catchall timing provision in section 555(b) of the APA, which provides that "[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." 5 U.S.C. § 555(b). The USCIS has a general duty to adjudicate petitions within a reasonable time. Accordingly, this court has jurisdiction over the instant action in accordance with section 706 of the APA in conjunction with 28 U.S.C. § 1331.

The defendants argue the APA does not confer jurisdiction because that statute precludes review if "agency action is committed to agency discretion by law." See 5 U.S.C. § 701(a)(2). The court acknowledges the existence of this exception but does not agree that it applies here.

The defendants correctly observe that the decision to grant or deny a petition for adjustment of status is discretionary and not subject to judicial review. See 8 U.S.C. § 1255(a). Wang, however, does not ask the court to review a decision of the USCIS to grant or deny. He asks the court to review the USCIS's failure to adjudicate his application in a reasonable time. The timing of the adjudication process is not a matter over which the USCIS has unfettered discretion. It has a duty to act within a reasonable time.

The defendants further argue this court lacks jurisdiction in accordance with section 242 of the Immigration and Nationality Act which reads in pertinent part as follows:

Notwithstanding any other provision of law (statutory or nonstatutory), . . . no court shall have jurisdiction to review —

* * *

(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title [dealing with asylum].

Section 1255(a), which is within the same subchapter as section 1252, states that "an alien who was inspected and admitted . . . may be adjusted by the Attorney General in his discretion and under such regulations as he may prescribe to that of an alien lawfully admitted for permanent resident. . . ." Accordingly, the defendants argue this court has no jurisdiction over the instant action because it challenges a "decision or action of the Attorney General or the Secretary of Homeland Security" that is discretionary. The court does not agree.

As discussed above, the government has discretion over whether to grant or deny an I-485 application. The government, however, does not have discretion over when the decision must be made. It must be made within a reasonable time.

The defendants argue the term "decision or action" is sufficiently broad to include the process of adjudication. The court does not agree. Section 1252(a)(2)(B)(ii) removes the court's jurisdiction over a "decision or action . . . the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security." See Liu v. Novak, 2007 WL 2460425 (D.D.C. 2007). This subchapter does not give the Attorney General or the Secretary of Homeland Security discretionary authority over the pace of adjudication. Section 1252(a)(2)(B)(ii) therefore does not apply.

The court recognizes this is a close question upon which reasonable minds may differ. Some courts have concluded the term "decision or action" encompasses the pace at which the adjudication is made. See, e.g., Grinberg v. Swacina, 478 F.Supp.2d 1350, 1352 (S.D.Fla. 2007). This court, however joins with those that read the jurisdiction stripping provision more narrowly. See, e.g., Dong v. Chertoff, 2007 WL 2601107, *6 (N.D. Cal 2007). The court reaches its conclusion in accordance with the following general principles: (1) legislation restricting judicial review should be read narrowly and (2) there is a "strong presumption in favor of judicial review of administrative action." Board of Governors of Federal Reserve System v. MCorp Financial, Inc., 502 U.S. 32, 44 (1991) (1); I.N.S. v. St. Cyr, 533 U.S. 289, 298 (2001) (2); ANA Intern., Inc. v. Way, 393 F.3d 886, 891 (9^th Cir. 2004) (1 and 2).

The defendants further argue this court has no jurisdiction over the defendant, Robert S. Muller, III, Director of Federal Bureau of Investigation (FBI). They are correct. The FBI has no duty to adjudicate Wang's application. The defendants' motion will be granted as to this defendant.

The defendants argue generally that this court could not meaningfully review agency action to determine "unreasonable delay" because no standards exist. The court does not agree.

In the Ninth Circuit, agency delay is measured by the so-called TRAC factors. They are as follows:

(1) the time agencies take to make decisions must be governed by a "rule of reason";

(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;

(3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;

(4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;

(5) the court should also take into account the nature and extent of the interests prejudiced by the delay; and

(6) the court need not "find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed."

IT IS ORDERED that the motion to dismiss filed by the defendants on August 15, 2007, is GRANTED IN PART. [doc. # 14] The motion is granted as to the defendant, Robert S. Muller, III, Director of Federal Bureau of Investigation. The motion is otherwise denied.

It remains to be determined whether the defendants' delay in processing Wang's I-485 application has been reasonable. The remaining defendants shall file a motion for summary judgment on the issue by December 18, 2007. The plaintiff shall file a response in accordance with LRCiv 56.1.