D.N.J. Notes Split Re Whether U.S. Citizenship & Immigration Services' Delay in Processing an Application for Adjustment of Status Is a "Judgment"
Per Pool v. Gonzales, Slip Copy, 2007 WL 1613272 (D.N.J. June 01, 2007):
The fundamental question raised by Defendant's Motion to Dismiss is whether the USCIS's [United States Citizenship and Immigration Services] delay in processing an application for adjustment of status constitutes “a judgment” or “any other decision or action” under 8 U.S.C. § 1252(a)(2)(B), thereby depriving this Court of subject matter jurisdiction to hear Plaintiff's plea for a writ of mandamus. At the outset, the Court notes there is a split of authority across Circuit Courts of Appeals and within the Third Circuit's District Courts, as to whether failure or delay in processing an application for adjustment of status constitutes an “action” by the USCIS under § 1252(a)(2)(B), thereby stripping jurisdiction from federal courts. Compare Song v. Klapakas, 06-5589, 2007 U.S. Dist. LEXIS 27203, at *12 (E.D.Pa. Apr. 12, 2007) (finding that defendants' failure to adjudicate an application for adjustment of status was not a discretionary decision); Loo v. Ridge, No. 045553, 2007 U.S. Dist. LEXIS 17822, at *9 (E.D.N.Y. Mar. 14, 2007) (noting that adjudicating an adjustment of status application is not at the discretion of defendants because defendants are required to do so); Duan v. Zamberry, No. 06-cv-1351, 2007 U.S. Dist. LEXIS 12697, at *7 (W.D.Pa. Feb. 23, 2007) (“Although the speed of processing may be ‘discretionary’ in the sense that it is determined by choice, and that it rests on various decisions that Defendants may be entitled to make, it is not discretionary in the manner required by the jurisdiction-stripping language of the IIRIRA.”); Singh v. Still, 470 F.Supp.2d 1064, 1068 (N.D.Cal.2007) (noting that defendants had conceded that they have a mandatory duty to act on adjustment applications); Yu v. Brown, 36 F.Supp.2d 922, 931-32 (D.N.M.1999) (holding that the INS owes plaintiff a duty to process her application for a change of status to permanent resident); with Elzerw v. Mueller, No. 07-166, 2007 U.S. Dist. LEXIS 30429, at *4-8 (E.D.Pa. Apr. 23, 2007); Serrano v. Quarantillo, No. 06-5221, 2007 WL 1101434 (D.N.J. Apr. 9, 2007); Safadi v. Howard, 466 F.Supp.2d 696, 700 (D.Va.2006). There is no precedent directly on point from the Third Circuit Court of Appeals.
However, the majority of federal courts that have considered similar claims have found that subject matter jurisdiction exists and that mandamus relief, at times, may be appropriate. See, e.g., Song, 2007 U.S. Dist. LEXIS 27203, at *9-10. “These courts have reasoned that even though the actual decision to grant or deny an application for adjustment is discretionary, the USCIS has a non-discretionary duty to act on applications within a reasonable time.” Id. This Court finds this reasoning persuasive, and will deny Defendant's Motion to Dismiss on that basis.