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Duan v. Zamberry

February 23, 2007

LIU DUAN, PETITIONER-PLAINTIFF,
v.
DEBRA ZAMBERRY, OFFICER IN CHARGE, PITTSBURGH SUB-OFFICE, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ambrose, Chief District Judge.

OPINION and ORDER OF COURT

SYNOPSIS

In this civil action, Plaintiff is a Chinese citizen, present in the United States on a non-immigrant visa, who is married to a United States citizen. She alleges that her I-485 application for adjustment of citizenship status has been pending since October 17, 2005. She seeks mandamus, injunctive, and declaratory relief to compel Defendants, an officer of the U.S. Citizenship and Immigration Services ("CIS") and the Attorney General of the United States, to act on her application. In particular, Plaintiff requests, inter alia, that the Court declare unreasonable the delay in processing her application; compel Defendants to immediately take all action necessary to adjudicate her adjustment of status application within thirty days; and compel Defendants to perform their duties, as required by statutes and regulations.

Jurisdiction is premised on the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 555 and 701 et seq., and 28 U.S.C.§§ 1331, 1361, and 2201.

Defendants have moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1), based on lack of subject matter jurisdiction. For the following reasons, Defendants' Motion will be denied.

I. Applicable Standards

In deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), all factual allegations, and all reasonable inferences therefrom, must be accepted as true and viewed in a light most favorable to the plaintiff. Colburn v. Upper Darby Twp., 838 F. 2d 66, 666 (3d Cir. 1988). I will dismiss a complaint only if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957). The defendant bears the burden of demonstrating that no claim exists. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). When considering a facial attack under Rule 12(b)(1), the applicable standard is the same as that when considering a motion to dismiss for failure to state a claim under Rule 12(b)(6). Petruska v. Gannon Univ., 462 F.3d 294, 299 (3d Cir. 2006).

Defendants present matters outside the pleadings for my consideration. Typically, I would convert the Rule 12(b)(6) Motion into one for summary judgment, and consider it according to Rule 56. The matters thus presented, however, go to factual issues regarding the reasonableness of the length of time taken in processing Plaintiff's application. In contrast, Defendants' Motion rests solely on questions of law regarding my authority, in the first instance, to even consider whether the alleged delay in processing is reasonable.*fn1 Therefore, at this time, I need not consider matters outside the pleadings, nor treat the motion pursuant to Fed. R. Civ. P. 56. Instead, I shall consider the Motion as a facial attack on jurisdiction, under Rule 12(b)(6) standards. The party seeking to invoke federal jurisdiction bears the burden of demonstrating that jurisdiction is proper. Vestcom Int'l, Inc. v. Chopra, 114 F. Supp. 2d 292, 297 (D.N.J. 2000).

II. Defendant's Motion

1. IIRIRA Jurisdiction-Stripping Statute

I first address Defendants' contention that the Complaint should be dismissed because the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. § 1252(a)(2)(B)(ii), divests this Court of jurisdiction.

That Section provides, in pertinent part, that a court is without jurisdiction to review "any...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...." Moreover, an alien's status "may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe." Id. at § 1255(a). The IIRARA is to be read narrowly. Prado v. Reno, 198 F. 3d 286, 290 (1st Cir. 1999). Further, as a general matter, there is a "strong presumption in favor of judicial review of administrative action." Khan v. United States, 448 F.3d 226, 232 (3d Cir. 2006) (quoting INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed. 2d 347 (2001)).

There is a dearth of authority on point to this issue. Our Court of Appeals, however, has observed that "[t]he jurisdiction stripping language [of Section 1252] applies not to all decisions the Attorney General is entitled to make, but to a narrower category of decisions where Congress has taken the additional step to specify that the sole authority for the action is in the Attorney General's discretion." Alaka v. Attorney General, 456 F.3d 88, 95 (3d Cir. 2006). "To specify," the Court noted, means "to state explicitly or in detail." Khan, 448 F.3d at 233. The statute in question, therefore, must specifically provide the discretionary authority before Section 1252 divests the court of jurisdiction. Id. at 96. In that regard, the Khan court quoted, with approval, the following statement:

One might mistakenly read ยง 1252(a)(2)(B)(ii) as stripping us of authority to review any discretionary immigration decision. That reading, however, is incorrect, because 1252(A)(2)(b)(ii) strips us only of jurisdiction to review discretionary authority specified in the statute, The statutory language is uncharacteristically pellucid on this score: it does not allude generally to "discretionary authority" or to "discretionary authority exercised under this statute," but ...


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