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CORDOBA v. MCELROY

January 3, 2000

MARTHA CORDOBA, PLAINTIFF,
V.
EDWARD J. MCELROY, ETC., ET ANO., DEFENDANTS. IWAMOTO, KEIKO, PLAINTIFF, V. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, ET ANO., DEFENDANTS.



The opinion of the court was delivered by: Kaplan, District Judge.

MEMORANDUM OPINION

Plaintiffs in these cases seek to compel the District Director of the Immigration and Naturalization Service ("INS") and the INS to act on their allegedly long-pending applications, pursuant to Section 245 of the Immigration and Nationality Act, as amended (the "Act"),*fn1 for adjustment of status. The Court sua sponte directed the plaintiffs to show cause why the petitions should not be dismissed for lack of subject matter jurisdiction. The cases were consolidated for oral argument.

I

According to the allegations of her complaint, which are accepted as true for present purposes, plaintiff Martha Cordoba is a citizen of Colombia who resides in New York. She filed an application with the Attorney General for an adjustment of her immigration status to that of a lawful permanent resident of the United States. Although the complaint does not state when the application was submitted, Cordoba maintains that the "normal period prescribed . . . for ruling on adjustment of status applications has passed" and seeks an order compelling the INS, as the Attorney General's designee, to "rule upon" her application.

Plaintiff Keiko Iwamoto allegedly is a native and citizen of Japan who last entered the United States on a student visa in August 1996. She claims that her husband is a lawful permanent resident of the United States and that in 1992 he successfully filed a so-called "second preference" petition on her behalf to classify her as the spouse of a lawful permanent resident for immigrant visa purposes, pursuant to Section 203(a)(2)(A) of the Act, as amended.*fn2 Based on the visa petition, Iwamoto filed an application with the Attorney General on November 16, 1996 — only three months after entering the United States on her temporary student visa*fn3 — for a discretionary adjustment of her immigration status to that of a lawful permanent resident. She was interviewed in connection with that application in September 1997. Like Cordoba, Iwamoto claims that the INS has not acted with sufficient alacrity in passing upon her application for adjustment of status and seeks an order of this Court requiring that it do so.*fn4

II

Both Cordoba and Iwamoto seek to invoke the Court's jurisdiction under Section 279 of the Act*fn5 and the Mandamus and Venue Act of 1962.*fn6 Cordoba in addition relies upon the general federal question statute*fn7 and the Administrative Procedure Act ("APA").*fn8

A. Section 279 of the Act

Section 279 of the Act provides as follows:

As is readily apparent, the contention that jurisdiction lies under this statute is entirely frivolous. These are actions by private plaintiffs against the government. The statute creates jurisdiction only over actions by the government and specifically excludes cases such as this.*fn10

B. The APA as a Basis of Jurisdiction

Cordoba alleges also that the APA creates an independent basis of subject matter jurisdiction. This contention, however, ...


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