Response part 2

2. Defendants specifically relied on 8 U.S.C. § 1252(a)(2)(B)(ii) (Notwithstanding any other provision of law, no court shall have jurisdiction to review—(ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158 (a) of this title.) (MTD, p5) and the interpretation in Safadi to deprive the court of jurisdictional authority. Safadi v. Howard, 466 F. Supp. 2d 696 (E.D. Va. Dec 20, 2006). Yet Defendants admitted that the result in Safadi on this matter is disputable. Indeed, many courts have pointed out the fallacy of this argument. See Linville v. Barrows Case 5:06-cv-01430-R (W. D. Okla. April 19, 2007); Elmalky v. Upchurch Case No.3:06-cv-2359B, (N.D. Tex. March 28, 2007); Duan v. Zamberry, Case No. 2:06-cv-01351-DWA (W.D. Pa. Feb. 23, 2007); (Exhibit A). Song v. Klapakas, Case No. 06-05589 (W.D. Pa. April. 12, 2007).

Specifically, the correct interpretation of § 1252(a)(2)(B)(ii) was provided by Duan v. Zamberry, Case No. 2:06-cv-01351-DWA (W.D. Pa. Feb. 23, 2007), quoting Khan v. United States, 448 F.3d 226, 232 (3d Cir. 2006) and Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005), as follows:
One might mistakenly read § 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 specifically to “authority for which it is specified under this subchapter to be in the discretion of the Attorney General.”

Duan v. Zamberry reasoned:

The subchapter at issue specifies only that it is within the discretion of the Attorney General to adjust one’s status; it does not address, much less specify any discretion associated with, the pace of application processing. Given the absence of an explicit provision to the affect . . . Section 1252(a)(2)(B)(II) [is] inapplicable to a claim of adjudicatory delay. Although the speed of processing may be “discretionary in the sense that it is determined by choice, and that it rests with various decisions that Defendants may be entitled to make, it is not discretionary in the manner required by the jurisdiction stripping language of the IIRIA.

This matter was further illuminated by Elmalky v. Upchurch, Case No.3:06-cv-2359B, (N.D. Tex. March 28, 2007), in agreement with 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):

Defendants would read § 1252(a)(2)(B)(ii) as depriving courts of jurisdiction to review “any . . . ongoing process of the Attorney General . . . the authority for which is specified under this subchapter to be in the discretion of the Attorney General[.]” Even if the Court accepts this reading it would avail Defendants nothing because §1255(a) does not specifically commit the “process” of adjusting an applicant’s status to the Attorney General; it simply says that the Attorney General may make an adjustment in his discretion. Moreover, the title of § 1252(a)(2)(B) – “Denials of discretionary relief” – suggests that the section’s primary purpose is to preclude courts from entertaining appeals from disappointed aliens who have had their applications denied. Here Elmalky is not complaining that his application was denied but rather that it was not promptly acted upon. The Court has already found that, notwithstanding § 1255(a), the USCIS has a nondiscretionary duty to issue some decision on an adjustment application within a reasonable time. Because § 1252(a)(2)(B)(ii) does not proscribe judicial review over nondiscretionary actions, it does not strip this Court of jurisdiction over Elmalky’s complaint. (Internal citations omitted)

See also Paunescu v. I.N.S., 76 F.Supp.2d 896, 900 (N.D. Ill.1999). “[w]ere plaintiffs contending that they had been denied relief, this court likely would not have jurisdiction over their claims. Because plaintiffs have neither been denied nor granted relief, [this section] does not bar jurisdiction....[D]efendants simply failed to do anything at all. This was not a ‘decision,’ let alone a discretionary call. Plaintiffs do not ask this court to ‘review’ a governmental action, but to examine and rectify a gross inaction.” (internal citations omitted). In Plaintiffs’ opinion, Safadi erred in interpreting “inaction” as a governmental action and regarding “decide whether to decide or when to decide” as discretional duty. However, “A ‘duty to decide’ becomes no duty at all if it is accompanied by unchecked power to decide when to decide” and “– a duty that can be real only if it must be honored sometime.” Razaq v. poulos. Case no. 4:06-cv-02461-WDB, 2007 U.S. Dist. LEXIS 770 (N.D. Cal. Jan, 08, 2007)

3. Defendants cited Federal Rules of Civil Procedure 12(b)(6) (failure to state a claim) to defeat the jurisdiction of the Honorable Court. However, Defendants did not give any factual allegations in supporting such an argument. Motions to Dismiss under Rule 12(b)(6) are disfavored and rarely granted in courts. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). The Court liberally construes the complaint in the plaintiff’s favor, and all pleaded facts are taken as true. Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir. 1986). Unless it appears beyond doubt that the plaintiff cannot prove any set of facts entitling him or her to relief, the complaint should not be dismissed. Conley v. Gibson, 355 U.S. 42, 45 (1957). In similar cases, courts refused to consider such an argument raised by Defendants. See Linville v. Barrows Case 5:06-cv-01430-R (W. D. OK. April 19, 2007); Song v. Klapakas, Case No. 06-05589 (W.D. Pa. April. 12, 2007).

Courts have concluded, in similar cases, that the Plaintiffs firmly state a claim for relief and they have a clear right to have their application for adjustment of status adjudicated within a reasonable time. See Krishnamoorthy v. Ridge, Case No. 03 C 0415 2003 U.D. Dist. LEXIS 8381 (N.D. Ill. May 19, 2003) (a petitioner has a right to adjudication of ….[an] adjustment of status application […] and the INS has a corresponding duty to adjudicate these applications); Paunescu v. INS, 76 F. Supp. 2d at 896, 901 (N.D. Ill. 1999) (section §1255 “provide[s] a right to an adjudication…there as mandamus jurisdiction because “Plaintiffs have a right to have their application for adjustment of status adjudicated, defendants have a duty to perform this adjudication within a reasonable time”); Agbemaple v. INS, Case No. 97 C 8547 1998 U.S. Dist. LEXIS 7953, *6 (E.D. Ill. May 12, 1998) (8 U.S.C §1255 provides a right to an adjudication); See also Razik v. Perryman, No. 02 C-5189, 2003, U.S. Dist. LEXIS 13818, at *6-8 (N.D. Ill. Aug. 6, 2003).

4. Defendants argued that “There is no statutory or regulatory time limit for the adjudication of I-485…” and transferred the blame and responsibility to FBI by stating “…that is pending a national security background investigation”. (xxxxxx, p6, line1-3). Such a circular reasoning fails to acknowledge the Government’s obligation to adjudicate applications within a reasonable time. Because both USCIS and FBI are named as Defendants in this instant case, neither could escape a mandamus decision by the court concerning the delayed adjudication. See Khan v. Frazier, 2007 WL 270413, *4 (D. Minn. 2007); Hussein v. Gonzeles, 2007 U.S. Dist. LEXIS 6927, *11 (D. Fla. 2007).

Section 555(b) of the APA sets forth a clear guideline on such a matter: “Within due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it”. Therefore, 8 U.S.C §1255 dose not provide Attorney General pure discretion unguided by legal standards or statutory guidelines. Courts have held that when USCIS fails to make a determination of a timely filed petition within a reasonable period of time, subject matter jurisdiction exists under the Mandamus Act and/or the APA and that “Were it otherwise, the CIS could hold adjustment applications in abeyance for decades without providing any reasoned basis for doing so.” Kim v. Ashcroft, 340 F.Supp.2d 384, 393 (S.D.N.Y. 2004). See also Elkhatib v. Bulter, Case No. 04-22407-CIV-SEITZ/MCALILEY, 2005 U.S. Dist. LEXIS 22858 (S.D. Fla. June 6, 2005); Paunescu V. INS, 76 F. Supp. 2d 896, 901 (N.D. Ill. 1999); Yu v. Brown, 36 F. Supp. 2d 922, 933 (N.D. M. 1999); Alkenani v. Barrows, 356 F. Supp. 2d 652, 656-657 (N.D. Tex. 2005); Iddir v. INS, 301 F 3d 492, 500 (7th Cir. 2002); Przhebelskaya v. USCIS, 338 F. Supp. 2d 399, 405 (E.D. N.Y. 2004) (the order [granting mandamus relief] was a proper exercise of the court’s mandamus jurisdiction because the Agency had a clear non-discretionary duty to issue a decision on plaintiffs’ application within a reasonable period of time); Abdel Razik v. Perryman, No. 2-CV-05189 2003 U.S. Dist. LEXIS 13818 (N.D. Ill. Aug. 6, 2003) (same); See also Aboushaban v. Mueller, Case No: 06-CV-01280-BZ 2006 U.S. Dist. LEXIS (N.D. Cal. Oct. 24, 2006) (the government has a duty to adjudicate plaintiff’s application within a reasonable time). Court in Aboushaban held that “although the immigration statutes at issue here provide no timeline requirement, I am persuaded by those courts who have read the APA to impose such a requirement.” Id. Court in Razaq v. poulos (Case No. 4:06-cv-02461-WDB, 2007 U.S. Dist. LEXIS 770 (N.D. Cal. Jan, 08, 2007)) held that “the fact that neither the statute nor the regulations establish specific deadline does not change the character of the duty itself … Congress expected the executive branch to receive applications of this kind and then to ‘adjudicate’ them to a decision. It is equally clear that Congress had to have intended the executive branch to complete these ‘applications’ within a reasonable time – because imposing no time constraint at all on the executive branch would be tantamount to giving the government the power to decide whether it would decide. If congress had wanted to give the executive branch that power, the power to decide whether to decide, it would have been obvious to Congress how to articulate that intention. But the Congress followed no such course. Instead, by using the phrase of legal art “shall”, Congress ordered the executive branch to make decisions on these applications. Congress would have eviscerated that mandate (ordering the executive branch to make a decision) if it had given the executive branch full discretion to determine the time frame for concluding the processing of the applications. A ‘duty to decide’ becomes no duty at all if it is accompanied by unchecked power to decide when to decide). Similarly, court in Nyaga also recognized, “Congress could not have intended to authorize potentially interminable delays; not recognizing a duty to act would permit the government to delay indefinitely.” Nyaga v. Ashcroft, 186 F. Supp. 2d 1244, 1252-1253 (N.D. Ga. 2002). Therefore, where a statute dose not specify a deadline for a particular kind of government action, the APA (5 U.S.C. §555(b)) compels the executive agency to act “within a reasonable time”.

“[W]hen an agency is required to act -- either by organic statute or by the APA -- within [a]...reasonable time, § 706 [of the APA] leaves in the courts the discretion to decide whether agency delay is unreasonable.” (Citing Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir. 1998). Duan v. Zamberry, Case No. 2:06-cv-01351-DWA (W.D. Pa. Feb. 23, 2007). (Exhibit A). Decisions from courts suggested that delays approximating two years may be unreasonable and Plaintiffs cannot be expected to provide more “factual” allegations that demonstrate unreasonable delay. See Song v. Klapakas, Case No. 06-05589 (W.D. Pa. April. 12, 2007) (23 months delay is unreasonable); Yu. v. Brown, 36F. Supp. 2d 922, 931-935 (D. New Mexico, Jan. 28, 1999) (two and half years delay is unreasonable); Agbemaple v. INS, Case No. 97 C 8547 1998 U.S. Dist. LEXIS 7953 (N.D. Ill May 12, 1998) (20 month delay is unreasonable); Paunescu v. INS, 76 F. Supp. 2d 896, 902 (N.D. Ill. 1999) (two years delay is unreasonable); Nadler v. INS, 737 F. Supp. 658, 659 (D. D.C. 1989) (INS failed to show that its delay of nearly two years in processing application [adjustment of status] was substantially justified and its belated arguments in that regard were without reasonable basis in fact). See also Kim v. Ashcroft, 340 F. Supp. 2d 384, 393 (S.D. N.Y. 2004) (Section 555(b) of the APA requires the government to act within a reasonable amount of time and the danger posed by non-reviewability is the “unfettered discretion to relegate aliens to a state of ‘limbo’, leaving them to languish there indefinitely”). Salehian v. Novak, Case No. 3:06-cv-00459-PCD 2006 U.S. Dist. LEXIS 77028 (D. Conn. Oct. 23, 2006) (Court found that the delay of two and half years is unreasonable. Plaintiffs have demonstrated their full cooperation over what appears to be an extremely lengthy waiting period. They cannot be expected to provide more factual allegations that demonstrate unreasonable delay.)

Furthermore, 8 USC §1571(b) clearly lays down the parameters of reasonableness in immigration adjudication, stating: “It is the sense of Congress that the processing of an immigration benefit application should be completed no later than 180 days after the initial filing of the application.” In this instant case, Plaintiffs’ applications have been withheld for xxxx days, xxxx longer than what Congress intends. Therefore, the regulation does not envision or allow the government to hold an application for an unreasonable period of time without making a decision and providing the applicant a notice of the decision. It appears beyond doubt that Plaintiffs can support the claim that Defendants have failed to conclude matters presented to them “within a reasonable time” under 5 U.S.C. § 555(b).

In summary, based on the arguments set above in 1-4, in the instant case, jurisdiction does exist under the Mandamus Act (28 U.S.C. § 1361), and under Administrative Procedure Act (APA) in combination with 28 U.S.C. § 1331. Plaintiffs are entitled for relief under Mandamus Act and APA in combination with 28 U.S.C. § 1331. Plaintiffs are seeking to compel Defendants to adjudicate Plaintiffs’ properly-filed applications within a reasonable time. As Plaintiffs’ claim(s) is not patently without merit, Plaintiffs’ Complaint should not be dismissed.