The opinion of the court was delivered by: Nora Barry Fischer United States District Judge
Plaintiff Mikhail Gershenzon ("Plaintiff") brought this action against Emilio Gonzalez, in his capacity as director of the United States Customs and Immigration Service ("USCIS"), and Alberto Gonzales, in his capacity as Attorney General of the United States (collectively, the "Defendants"). Plaintiff, a citizen of Russia, seeks to compel the defendants to adjudicate his Adjustment of Status application in a timely manner, and brings this suit under the Declaratory Judgment Act, 28 U.S.C. §2201, the Administrative Procedure Act ("APA") 5 U.S.C. §§ 551, et seq., and the Mandamus Act, 28 U.S.C. §1361. Presently, before this Court is Defendants' motion to dismiss all claims for lack of subject matter jurisdiction ("Defendants' Motion") (Docket No. 5).*fn1 For the following reasons, Defendants' Motion is DENIED.
This suit arises out of the Plaintiff's attempt to adjust his immigration status to that of permanent resident, a process known as an I-485 application. Plaintiff is a native of Russia. After graduating from Boston College with a Ph.D. in chemistry in 2003, Plaintiff was issued an H-1B visa. In April 2004, Plaintiff filed for an Adjustment of Status ("AOS") so that he could become a permanent resident of the United States. Plaintiff claims that despite filing all of the necessary fees and supporting documents, the USCIS and the Federal Bureau of Investigation ("FBI") have failed to adjudicate his application for the past three years. In his complaint, Plaintiff alleges that the reason his application has been delayed is that the FBI has not yet completed his background check. Plaintiff claims that the failure of USCIS and FBI to process his application has adversely affected him in that it has limited his ability to travel abroad and obtain work authorization.
The Defendants challenge this court's subject matter jurisdiction over this action. Federal Rule of Civil Procedure 12(b)(1) provides that a claim may be dismissed for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion to dismiss pursuant to Rule 12(b)(1) contests the court's authority to hear and decide the case. Federal courts are courts of limited jurisdiction; accordingly, every case begins with the presumption that the court lacks jurisdiction to hear it. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In a Rule 12(b)(1) motion, the party invoking jurisdiction has the burden of demonstrating that subject matter jurisdiction exists. See Thomson v. Gaskill, 315 U.S. 442, 446 (1942).
In reviewing 12(b)(1) motions, the court must distinguish between facial attacks and factual attacks. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). Defendants' arguments in support of the instant motion are based solely on questions of law related to this Court's ability to consider the Plaintiff's complaint. Therefore, the Court will consider the motion as a facial attack on jurisdiction. When considering a facial attack, the court only considers the allegations in the pleadings, and does so in the light most favorable to the plaintiff. United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007).
The Defendants have moved to dismiss this action for lack of subject matter jurisdiction under 8 U.S.C. §1252(a)(2)(B)(ii). Alternatively, the Defendants argue that the court also lacks subject matter jurisdiction under the Mandamus Act, the Administrative Procedure Act, and the Declaratory Judgment Act.*fn2
As an initial matter, this Court notes that several suits of this nature are currently pending before other federal district courts. Such courts throughout the country and within this circuit are split on whether federal courts have subject matter jurisdiction in these cases, and the Third Circuit Court of Appeals has not ruled on the issue.*fn3
A. 8 U.S.C. § 1252(a)(2)(B)(ii)
The Defendants' primary argument in support of the instant motion is that 8 U.S.C. § 1252(a)(2)(B)(ii) divests the Court of subject matter jurisdiction because the adjudication of an adjustment of status application is ...