Aydemir v. Garland

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SEYHMUS AYDEMIR, Petitioner, v. MERRICK GARLAND, U.S. Attorney General, ALEJANDRO MAYORKAS, Secretary, U.S. Department of Homeland Security, UR MENDOZA JADDOU, Director, U.S. Citizenship and Immigration Services, CHRISTOPHER WRAY, Director, Federal Bureau of Investigation, Respondents.

No. 22-cv-100 (PAC)

United States District Court, S.D. New York

September 6, 2022

OPINION & ORDER

HONORABLE PAUL A. CROTTY, UNITED STATES DISTRICT JUDGE

Petitioner Seyhmus Aydemir has a pending application for a green card. He filed that application with United States Citizenship and Immigration Services (“USCIS”) in April 2020. After waiting about 18 months, Aydemir commenced this mandamus action against the Director of USCIS and three other government respondents (collectively, the “Respondents”), seeking to compel USCIS to complete his application. Aydemir's Petition contends that USCIS has not adjudicated his application within a reasonable amount of time.

The Respondents have moved to dismiss the Petition for lack of subject-matter jurisdiction and for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated below, the Respondents' motion to dismiss is GRANTED.

BACKGROUND

Aydemir is a citizen of Turkey who resides in New York. See Petition ¶ 2, ECF No. 4. He was granted asylum in the United States in 2019. Id. ¶ 8. He subsequently filed a Form I-485 application for adjustment of permanent resident status-commonly known as a green card-in April 2020. Id. ¶ 1. His application has been pending for approximately 28 months. During that time, he provided USCIS with fingerprint and biometric data. Id. ¶ 11. He also sought assistance from one of his elected representatives to expedite his application. See id. ¶ 1. USCIS denied Aydemir's request to expedite his case. See id.

Aydemir subsequently filed a Petition in this Court against the Director of USCIS, the Attorney General of the United States and the Secretary of the United States Department of Homeland Security-who Aydemir claims are together “responsible for adjudicating visa petitions, implementing the Immigration and Nationality Act . . . and ensuring compliance with all applicable federal laws, including the [Administrative Procedure Act].” Id. ¶ 3. He also names a fourth respondent, the Director of the Federal Bureau of Investigation, who bears responsibility “for running all . . . visa applicants through its various security and background check programs,” because he claims the delay in his application “may be attributed to a failure to process a security check.” Id.

Aydemir's Petition contends the delay in his green card application has been unreasonable, and that USCIS must be compelled to expedite his application. He argues the delay has prejudiced him because he is a medical professional, and it is difficult to seek employment in his field without a green card. Id. ¶¶ 1, 12. The Respondents have moved to dismiss.

DISCUSSION

I. Legal Standard for a Motion to Dismiss

A. Lack of Subject-Matter Jurisdiction under Rule 12(b)(1)

On a motion to dismiss pursuant to Rule 12(b)(1), the party seeking to invoke the Court's jurisdiction bears the burden of proving that subject-matter jurisdiction exists. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The petitioner must prove subject matter jurisdiction exists by a “preponderance of the evidence” standard. Id.; see also Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996).

B. Failure to State a Claim under Rule 12(b)(6)

To defeat a motion to dismiss under Rule 12(b)(6), a petition “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible “when the [petitioner] pleads factual content that allows the court to draw the reasonable inference that the [respondent] is liable for the misconduct alleged.” Id. The Court draws all inferences in favor of the petitioner as the nonmoving party. See Gamm v. Sanderson Farms, Inc., 944 F.3d 455, 462 (2d Cir. 2019). The Court may consider facts alleged in the petition as well as documents that it attaches or incorporates by reference. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002).

II. APA Claim

Aydemir first claims the Administrative Procedure Act (“APA”) requires this Court to compel USCIS to expedite his green card application. This claim fails.

A. Subject-Matter Jurisdiction over the APA Claim

The Court must initially confirm it has subject-matter jurisdiction before addressing the merits of Aydemir's Petition. See Bhaktibhai-Patel v. Garland, 32 F.4th 180, 187 (2d Cir. 2022).^[1]The Court confirms it has jurisdiction over Aydemir's APA claim.

It is well-settled that “[t]he APA in conjunction with the federal question statute, 28 U.S.C. § 1331, may provide a jurisdictional basis” to hear a claim that an agency adjudication has been unduly delayed. Nigmadzhanov v. Mueller, 550 F.Supp.2d 540, 543 (S.D.N.Y. 2008) (citation omitted). Aydemir alleges USCIS has violated two APA provisions by delaying adjudication of his green card, see 5 U.S.C. §§ 555(b) and 706(1), and he has therefore established a presumptive basis for jurisdiction.

Nonetheless, a third statute-the Immigration and Nationality Act (“INA”)-looms over the jurisdictional question. See Shabaj v. Holder, 718 F.3d 48, 52 (2d Cir. 2013) (observing that regardless of the federal question statute, “the judicial review provisions of the APA do not apply ‘to the extent that . . . statutes preclude judicial review'”) (quoting 5 U.S.C. § 701(a)(1)). The thorn here comes from INA Section 1252, which provides that “no court shall have jurisdiction to review . . . any judgment regarding the granting of relief” concerning an application-like Aydemir's-for adjustment of legal permanent residence; nor shall courts have jurisdiction to review “any other decision or action” of the Attorney General or the Secretary of the Department of Homeland Security for which they have sole discretion under the INA. 8 U.S.C. § 1252(a)(2)(B). Some courts have held that INA Section 1252 has “stripped [them] of jurisdiction to review the status of unadjudicated adjustment applications.” Geneme v. Holder, 935 F.Supp.2d 184, 190 (D.D.C. 2013) (collecting cases). Yet “[m]any other courts” disagree and have held that courts may hear lawsuits to speed up the green card adjudication process. See id. at 191.

The Court joins those district courts who have confirmed subject-matter jurisdiction here. Specifically, the Court endorses Judge Schofield's reasoning from Boussana v. Johnson, No. 14 Civ. 3757, 2015 WL 3651329, at *5-7 (S.D.N.Y. June 11, 2015). As Judge Schofield explained, the Second Circuit has made clear that INA Section 1252 precludes review “only of ‘a judgment denying a request for adjustment of status.'” Id. at *6 (quoting Sharkey v. Quarantillo, 541 F.3d 75, 85 (2d Cir. 2008)). By contrast, nothing in the INA “expressly gives the government the power not to adjudicate an adjustment of status application,” which is what Aydemir seeks to compel USCIS to do here. Nigmadzhanov, 550 F.Supp.2d at 547 (emphasis added). In other words, the Court would lack jurisdiction, under the INA, to order USCIS to reach a particular judgment regarding Aydemir's green card application. But the Court does have jurisdiction to order USCIS to fulfill its nondiscretionary duty to reach a judgment in the first place.

This Court has suggested it would endorse this jurisdictional conclusion before. In Kilani-Hewitt v. Bukszpan, this Court-adopting a report and recommendation by Magistrate Judge Maas-held that it lacked jurisdiction over a case seeking to compel the Attorney General's “discretion to defer indefinitely the adjudication of removal proceedings that have been commenced.” 130 F.Supp.3d 858, 864 (S.D.N.Y. 2015) (emphasis added). In so doing, Judge Maas contrasted Judge Schofield's decision in Boussana-again, a delayed-green-card case-as an example of a viable APA claim because processing that application is not a “discretionary decision[] and thus must be made within a reasonable time.” Id. In sum, INA Section 1252 does not strip this Court of jurisdiction.

B. Legal Standard for APA Claims of Unreasonable Delay

With jurisdiction established, the Court turns to the merits of Aydemir's APA claim. The APA allows federal courts to review agency actions that are either not completed “within a reasonable time” or are “unreasonably delayed.” See 5 U.S.C §§ 555(b), 706(1). In determining reasonableness, “[courts] look to the source of delay-e.g., the complexity of the [agency adjudication] as well as the extent to which the [respondents] participated in delaying the proceeding.” Reddy v. CFTC, 191 F.3d 109, 120 (2d Cir. 1999). Courts in this District also apply the six factors set forth in Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”).^[2] See NRDC v. FDA, 710 F.3d 71, 84 (2d Cir. 2013) (citing TRAC as “setting forth test for determining if agency action is unreasonably delayed”). Those TRAC factors are: (1) the time agencies take to make decisions, which is governed by “a rule of reason”; (2) whether Congress has provided a timetable that informs this rule of reason; (3) whether “human health and welfare are at stake,” in which case delays are “less tolerable”; (4) whether expediting the delayed action will impact agency activities of a higher...