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Shi v. Napolitano

December 2, 2009

JIAN CHUN SHI, PLAINTIFF,
v.
JANET NAPOLITANO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Joyner, J.

MEMORANDUM AND ORDER

This case is now before the Court on Plaintiff's Petition for Writ of Mandamus (Doc. No. 1). For the reasons set forth below, Plaintiff's requests for mandamus and APA relief are denied, and we will not rule on Plaintiff's request for a declaratory judgment at this time.

Factual Background

Plaintiff, Jian Chun Shi, brings this Petition requesting relief against Defendants for their failure to adjudicate his INA I-485 Application for Adjustment of Status. Plaintiff brings this claim against Secretary of Homeland Security Janet Napolitano, Alejandro Mayorkas, Director of the U.S. Citizenship & Immigration Services, and Field Director Karen Fitzgerald of U.S. Citizenship and Immigration Services. He seeks mandamus relief, judicial review of agency action pursuant to the Administrative Procedure Act, and a declaratory judgment.

Plaintiff, a native and citizen of the People's Republic of China, was paroled into the United States on March 12, 1995. He was subsequently placed in exclusion proceedings, where he was denied asylum into the United States and ordered excluded on October 27, 1995. Plaintiff's appeal to the Board of Immigration was subsequently denied on December 5, 1996.

On November 12, 2006, Plaintiff married a U.S. citizen and on the same day filed an Application for Adjustment of Status (Form I-485) concurrently with a Petition for Alien Relative (Form I-130), seeking to adjust his status to that of a lawful permanent resident. The Philadelphia office of U.S. Citizenship and Immigration Services ("CIS") conducted an interview on July 10, 2007. Plaintiff alleges that, to date, CIS has neither taken any further action on his application nor provided Plaintiff with a substantive response to his inquiries regarding the application. In response to Plaintiff's most recent request for information, CIS sent a form letter, dated May 11, 2009, indicating only that the request for information had been forwarded to the local CIS office.

Because Plaintiff has already been ordered excluded and is not currently in the country on a lawful visa, he is not one of the class of individuals who are generally eligible to adjust their status to permanent residents. Plaintiff submits, however, that he is eligible under an exception to this rule for those who have entered a marriage prior to a final order of removal. On July 28, 2009, Plaintiff requested this bona fide marriage exception and submitted supporting documentation to prove his eligibility. This documentation includes proof that Plaintiff and his wife share a daughter, Kaya, born on July 14, 2005, have consistently filed their taxes jointly since their marriage, and have commingled their lives together.

Plaintiff filed this case on October 7, 2009. Along with his Petition, Plaintiff filed a Certificate of Service that stated that the Petition had been served on the U.S. Attorney's Office in Philadelphia as well as Defendant Fitzgerald. None of the Defendants has filed a Response.

Standard

Plaintiff alleges that jurisdiction is proper under the mandamus statute, 28 U.S.C. § 1361. The common law writ of mandamus is intended to provide a remedy only if the plaintiff has exhausted all other avenues of relief and the defendant has a clear, non-discretionary duty to act. Heckler v. Ringer, 466 U.S. 602, 616 (1984). The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. Will v. United States, 389 U.S. 90, 95-96 (1967). The party seeking the issuance of the writ has the burden of demonstrating that no other adequate means are available to obtain the relief desired, Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980), and that the right to the issuance of the writ is "clear and indisputable." Banker's Life & Cas. Co. v. Holland, 346 U.S. 379, 384 (1953). The decision to issue the writ is largely within the discretion of the court to which the petition is addressed. Kerr v. U.S. Dist. Court, 426 U.S. 394, 403 (1976).

Plaintiff also contends that this Court has jurisdiction pursuant to 28 U.S.C. § 1331 to review agency action or inaction under the Administrative Procedure Act ("APA"), 5 U.S.C. § 201 et seq. Federal question jurisdiction serves as the basis for federal court review of agency action when a plaintiff brings claims under the APA. Califano v. Sanders, 430 U.S. 99, 105 (1977); Yeboah v. Dep't of Justice, 345 F.3d 216, 220 (3d Cir. 2003). As with the mandamus petition, a plaintiff must show that the defendant has a non-discretionary duty to act in order to receive relief under the APA. 5 U.S.C. § 706(1); Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63 & n.1 (2004). The duty owed must be "a legal duty which is a specific, plain ministerial act 'devoid of the exercise of judgment or discretion.'" Harmon Cove Condo. Ass'n v. Marsh, 815 F.2d 949, 951 (3d Cir. 1987) (quoting Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972) (en banc), rev'd on other grounds, 418 U.S. 166 (1974)). Further, an act is ministerial only "when its performance is positively commanded and so plainly prescribed as to be free from doubt." Id. If an agency fails to perform a non-discretionary, ministerial duty, the court is empowered to "compel agency action" if it is "unlawfully withheld or unreasonably delayed."

5 U.S.C. § 706(1).

Finally, Plaintiff seeks a declaratory judgment pursuant to 28 U.S.C. §§ 2101-02. A court "may declare the rights and other legal relations of any interested party seeking such declaration" pursuant to § 2101. Importantly, however, it is largely within the discretion of the court whether to hear the claim for a declaratory judgment. See Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995). In addition, § 2102 allows a court to grant any further relief ...


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