Summary
noting that the plaintiff was "largely responsible for the delay in her case" by submitting incorrect or incomplete information
Summary of this case from Singh v. StillOpinion
01 Civ. 1698 (BSJ)
September 21, 2001
Order and Opinion
Facts
Ying Wang brings an action for declaratory judgment and mandamus to require the Immigration and Naturalization Service to adjudicate her application for permanent residence. The following facts are undisputed. Ms. Wang attempted to enter the country unlawfully with a fraudulent passport in October, 1996. After initiating proceedings to exclude Wang from the United States, the INS released her from its custody on a bond posted by a relative in New York. In January, 1998, Ms. Wang submitted a petition to the INS, seeking to have herself classified as a special immigrant juvenile and, based upon this requested status change, also submitted an application for a discretionary adjustment of her immigration status to that of lawful permanent resident. Ms. Wang's filings had several inconsistencies and several questions were left blank. Additionally, her application forms had an incorrect A number on them, though the cover letters they were submitted with had the correct A number. Further, the Family Court Order that accompanied the application did not have the specific language required by the amended statute, 8 U.S.C. § 1101 (a) (27) (J)(i).
On June 22, 1998, the INS issued Ms. Wang a notice instructing her to be fingerprinted in connection with her I-360 and I-485 forms. On August 26, 1998, Ms. Wang was issued her Employment Authorization Card. Ms. Wang sent a letter to the INS on November 21, 2000, requesting that her application be adjudicated. On February 26, 2001, Ms. Wang filed this action seeking to compel the INS to adjudicate her application within thirty days. Ms. Wang turns twenty-one on September 23, 2001, at which point she will no longer be eligible for special immigrant juvenile status. Therefore, she has requested that this Court render its decision before her birthday.
In her submissions, Ms. Wang claims this Court has subject matter jurisdiction based upon a variety of statutes, including the Mandamus Act, 28 U.S.C. § 1361, the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (the "APA"), and the federal question statute, 28 U.S.C. § 1331. The Government has filed a motion to dismiss the complaint for lack of subject matter jurisdiction, or, in the alternative, for summary judgment.
Analysis
For the reasons stated below, the Court finds it lacks subject matter jurisdiction or, in the alternative, that Ms. Wang has failed to file a claim upon which relief can be granted.
The mandamus statute provides that "the district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." In order to be entitled to mandamus relief, the plaintiff must establish (1) a clear right to the relief requested; (2) that the duty owed is peremptory; and (3) that no other adequate remedy is available. Heckler v. Ringer, 466 U.S. 602, 616-17 (1984). Ms. Wang has not satisfied the first prong of this test: she has not established a clear right to the relief requested. Ms. Wang filed her petition with the INS on January 14, 1998. It is undisputed, however, that the papers filed had an incorrect A number on them. It is also undisputed that the Court Order filed in support of Ms. Wang's petition was facially insufficient under the revised statute. Though Ms. Wang apparently has received an amended Court Order from Family Court, there is nothing in the record that indicates Ms. Wang has submitted a copy of this order to the INS. Additionally, Ms. Wang has failed to remedy the inconsistencies and blank statements contained in her initial filings. Because Ms. Wang has not filed a complete and correct petition with the INS, she has failed to meet the first prong of the test for mandamus relief. This Court therefore lacks subject matter jurisdiction under the Mandamus Act.
Even if Ms. Wang's application had been complete, however, Courts in this district universally have found the Mandamus Act does not confer jurisdiction over the question of how long the INS can wait between receiving an application and scheduling an interview. See Kupferberg v. US. INS, No. 99 Civ. 0507 (LAK), 1999 WL 1627350 at *1 (S.D.N.Y. July 7, 1999) (the NA does not require that any action be taken in regards to an application for change of status, and certainly places no time limit on the Attorney General's decision); Ortiz v. INS, No. 99 Civ. 0705 (WHP), 2000 WL 728145 at *1 (S.D.N.Y. Jan.18, 2000) ("the applicable federal regulations do not impose a mandatory time limit in which the INS must adjudicate his adjustment application"); Alomari v. Reno, No. 97 Civ. 6837 (DAB), 1997 WL 724815 at *2 (S.D.N.Y. Nov. 19, 1997) (no subject matter jurisdiction in case where plaintiff had been waiting for an interview for 2 1/2 years; "neither the statute itself nor the Federal Regulations require that INS render a decision within a proscribed period of time").
Ms. Wang's contention that subject matter jurisdiction exists under the APA also fails. While some Courts in this District have found jurisdiction in factually similar cases under the federal question statute and the APA if plaintiff alleges that the time elapsed before the interview has been "unreasonable," see Cordoba v. McElroy, 78 F. Supp.2d 240, 244-45 (S.D.N.Y. 2000); Batista v. U.S. INS, No. 99 Civ. 2847 (MBM), 2000 WL 204535 (S.D.N.Y. Feb. 22, 2000), Ms. Wang has not asserted a claim under the APA as combined with the federal question statute.
Ms. Wang's Complaint merely asserts jurisdiction on the bases of the APA and the Mandamus Act. In Plaintiff's Memorandum of Law in Support of Cross-Motion for Summary Judgement, however, Ms. Wang includes an assertion of jurisdiction under the federal question statute. Technically, Ms. Wang needed to have submitted an amended Complaint in order to add a basis for jurisdiction.
Even if Ms. Wang had properly asserted this claim, however, it would still have failed on the merits. Pursuant to section 6 of the APA, an agency must conclude proceedings "within a reasonable time." "In determining reasonableness, [courts] 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." Batista, 2000 WL 204535, at *4 (quoting Reddy v. Commodity Futures Trading Comm'n, 191 F.3d 109, 120 (2d Cir. 1999)). In Batista, a three year delay between the filing of an application and the scheduling of an interview was found to be reasonable, because Batista himself was largely responsible for the delay. This Court is convinced that Ms. Wang is largely responsible for the delay in her case. Initially, she submitted an incorrect A number on her application, and her Family Court Order was facially insufficient to make her eligible for a status adjustment. Her application also contains inconsistencies and leaves some questions unanswered. Based on the record, these issues have not been resolved. Therefore, the delay in scheduling an interview has not been "unreasonable."
Finally, even if this Court did have subject matter jurisdiction, Ms. Wang has failed to state a cognizable claim upon which relief may be granted. Since Ms. Wang has not remedied the insufficiencies in her initial application to the INS, that application remains facially inadequate. The INS Operating Instruction Ms. Wang relies on in her July 26, 2001 letter, states that "if prima facie eligibility has been established, the applicant shall be . . . scheduled for an interview approximately sixty but no more than ninety days later." OI 245.2 (emphasis added). As noted, prima facie eligibility has not been established, and Ms. Wang therefore does not qualify for an interview based upon her application.
Conclusion
In sum, for the reasons given above, this Court grants defendant's motion to dismiss on the ground that the Court lacks subject matter jurisdiction or, in the alternative, that the complaint fails to state a claim upon which relief may be granted.
The Clerk of the Court is directed to close the case.