Response part 1

ARGUMENT

Plaintiffs, xxxx and his spouse XXXX, this brief in opposition to Defendants’ Motion to Dismiss (abbreviated as MTD), because jurisdiction is proper in this court. Plaintiffs seek a Writ of Mandamus to compel Defendants to perform a duty they owe to Plaintiffs, namely to adjudicate the Application for Adjustment of Status (I485 Application), one way or another, in a reasonable time. Plaintiffs seek this Writ because Defendants have unreasonably withheld processing Plaintiffs’ Applications for over two years. Defendants assert in their MTD that this court dose not have jurisdiction over Plaintiffs’ complaint and Plaintiffs failed to state a claim for which Plaintiffs are entitled to relief. In response, for the reasons set forth, Plaintiffs will show that Defendants’ arguments misunderstand the applicable law; therefore their MTD is without merit.

1. Defendants argued that “Neither the APA nor DJA provide an independent basis for the court’s subject matter jurisdiction (MTD, p4).” But the APA, in conjunction with this Court’s federal question jurisdiction, 28 U.S.C. § 1331, vests the Court with jurisdiction to “compel agency action unlawfully withheld or unreasonably delayed [.]” 5 U.S.C. § 706(1); Alkenani v. Barrows, 356 F.Supp.2d 652, 656 (N.D. Tex. 2005). The APA authorizes a suit by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute[.]” 5 U.S.C. § 702. The statute expressly defines “agency action” to include “failure to act.” 5 U.S.C. § 551(13). APA also requires that “… within a reasonable time each agency shall proceed to conclude a matter presented to it.” Id. at 555(b). Under 28 U.S.C. § 1331, federal district courts have jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” See Sierra Club. v. Glickman, 156 F. 3d 606, 617 (5th Cir. 1998); Duan v. Zamberry, Case No. 06-1351 2007 U.S. Dist. LEXIS 12679 (W.D. Pa. Feb. 23, 2007) (jurisdiction is proper under the APA and 28 U.S.C . § 1331 to compel the INS to adjudicate an application for adjustment to permanent status); (Exhibit A). See also Hu v. Reno, Case No. 3-99-cv-1136-DB, 2000 U.S. Dist. LEXIS 5030, at **9-10 (N.D. Tex. April 18, 2000) (defendants cannot defeat jurisdiction under the APA merely because they have discretion in adjudicating plaintiffs’ applications…and this court joins the majority that APA and 28 U.S.C. § 1331 together vest court with authority to order the agencies to act); Fu v. Reno, 3:99-cv-0981-L 2000 U.S. Dist. LEXIS 16110 (N. D. Tex. Nov. 1, 2000) (the APA in conjunction with section 1331 does provide [subject-matter] jurisdiction); Yu v. Brown, 36 F. Supp. 2d 922, 933 (N.D.M. 1999); Fraga v. Smith, 607 F. Supp. 517, 521 (D. Or. 1985).

The mandamus statute provides that “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.” 28 U.S.C. § 1361. Jurisdiction depends on “whether mandamus would be an appropriate means of relief.” Jones v. Alexander, 609 F.2d 778, 781 (5th Cir.1980). Mandamus relief requires a plaintiff to establish that: (1) the plaintiff has a clear right to the relief sought; (2) the defendant holds a plainly defined and mandatory, nondiscretionary duty to perform the act in question; and 3) no other adequate remedy is available. See Allied Chem. Corp.v. Daiflon, Inc., 449 U.S. 33, 34 (1980); Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir. 1992).

Defendants cited 8 U. S. C 1252 (a)(2)(B) (i) (Notwithstanding any other provision of law, no court shall have jurisdiction to review— (i) any judgment regarding the granting of relief under section …1255 of this title) (MTD, p5) to bar the Court from reviewing this case. In the instant case, Plaintiffs believe that Defendants have misconstrued the Agency’s duty in adjudicating properly filed applications for adjustment of status. While the ultimate decision for adjustment of status is discretionary, there is clear difference between adjudicating the application and actual decision to grant or deny the application. Plaintiffs’ proposed amended complaint deals solely with the Agency’s failure to perform its non-discretionary duty to process and adjudicate application within a reasonable time . “Although the INS is vested with broad discretion in making the ultimate decision whether to grant an application for adjustment to permanent resident status,” (Hu v. Reno, 2000 WL 425174, at *3 N.D. Tex. April 18, 2000) “the weight of authority, however, supports a finding that Defendants have a non-discretionary duty to process or adjudicate an adjustment application and that duty supports a mandamus action.” Duan v. Zamberry, Case No. 06-1351 2007 U.S. Dist. LEXIS 12679 (W.D. Pa. Feb. 23, 2007); (Exhibit A). See also Elmalky v. Upchurch (3:06-cv-2359B, N.D. Tex. March 28, 2007) (“Though the decision whether to grant or deny an application for adjustment is plainly made discretionary under the statute, the regulations and the majority of court decisions make clear that immigration officials have a nondiscretionary duty to act on an application); Haidari v. Frazier, 2006 WL 3544922, at *4 (D. Minn. Dec. 8, 2006) (distinguishing the discretionary decision of whether to grant or deny an adjustment application from the mandatory duty to make any decision); Yu v. Brown, 36 F.Supp.2d 922, 931 (D.N.M. 1999) (“All other courts addressing this question have held that INS has a non-discretionary duty to process applications for LPR status as well as all other immigration applications.”); Paunescu v. INS, 76 F. Supp. 2d 896, 900-901 (N. D. Ill. 1999) (Defendants nevertheless had a non-discretionary duty to issue a decision on plaintiff’s application within a reasonable time.); Kim v. Ashcroft, 340 F. Supp. 2d 384, 391-93 (S.D. N.Y. 2004); Elkhatib v. Butler, Case No. 04-22407 2005 U.S. Dist. LEXIS 22858 (S.D. Fla., June 6, 2005) (Court found mandamus jurisdiction to order adjudication of Adjustment of Status); Hu v. Reno, Case No. 3-99-cv-1136-DB, 2000 U.S. Dist. LEXIS 5030 (N.D. Tex. April 18, 2000) (Court has mandamus authority to order INS to adjudicate a pending adjustment of status application).

Furthermore, 8 CFR § 245.2 clearly states that “the application (Lawful Permanent Resident) shall be noticed of the decision of the director, and, if the application is denied, the reason for the denial.” Courts have found that this language (“shall”) creates a non-discretionary duty to adjudicate Plaintiffs’ application. See Yu v. Brown, 36 F. Supp. 2d 922, 931-932 (D. N.M. 1999) (holding under the regulatory language that the INS owed plaintiff a duty to process her application for a change of status to permanent resident); Dabone v. Thornburgh, 734 F. Supp. 195, 200 (E.D. Pa. 1990) (The repeated use of “shall” in the statute and in the regulations reduces greatly the discretion of the BIA over whether it shall decide a case properly before it. The word “shall” is mandatory, not precatory.); Am. Academy of Religion v. Chertoff. No. 06 Civ. 588 (PAC), 2006 U.S. Dist. LEXIS 42601 (S.D. N.Y. June 23, 2006) (holding that the regulation stating that consular officials either “issue or refuse” a completed visa creates a duty to adjudicate); Aboushaban v. Mueller, Case No: 3:06-cv-01280 BZ, 2006 U.S. Dist. LEXIS 81076 (N. D. Cal. Oct. 24, 2006) (The court reads statutory text as creating a non-discretionary duty to adjudicate the plaintiff’s application); Razaq v. Poulos Case No. C 06-2461 WDB, 2007 U.S. Dist. LEXIS 770 (N.D. Cal. Jan. 08, 2007) (the duty to process the application is just as obviously ministerial); See also Haidari v. Frazier, Case No. 06-3215, 2006, U.S. Dist. LEXIS 89177, at **10-11 (D. Minn. Dec. 8, 2006); Valenzuela v. Kehl, Case No. 3:05-cv-1764-BF, 2006, U.S. Dist. LEXIS 61054, at **19-20 (N.D. Tex. Aug. 23, 2006). Therefore, Defendants owe Plaintiffs a duty to adjudicate their applications; that duty is non-discretionary, free from doubt and purely “ministerial”.