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August 4, 2000


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


Mariusz Sadowski ("Sadowski"), a native and citizen of Poland, brings this action, alleging negligence and a violation of his due process rights, against the Immigration and Naturalization Service ("INS") and Edward McElroy, the New York District Director for the INS (collectively, the "INS"). Sadowski has moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, seeking mandamus to protect him from the INS's purported failure to act in a timely manner on his application for adjustment of status. The INS has filed a cross-motion, pursuant to Rule 12(b)(1) and (c) of the Federal Rules, to dismiss all claims for lack of subject matter jurisdiction, or, in the alternative, for judgment on the pleadings.


Sadowski, who was born on February 28, 1975 in Poland, sought to become a lawful permanent resident of the United States as a derivative beneficiary through an immigrant employment petition filed on behalf of his mother Jadwiga Sadowska. See Petition for Mandatory Relief, filed on Aug. 27, 1999 ("Petition") ¶ 1. Sadowski filed an I-485 form, an INS application for status as a permanent resident, on August 31, 1995, five and one-half months prior to his twenty-first birthday, pursuant to the provisions of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255. See id., at ¶¶ 6,8. The application was filed with supporting documents and the proper fees, along with a cover letter from Sadowski's attorney emphasizing the time sensitive nature of Sadowski's application. See id., ¶ 6.

Under the INA, in order to achieve derivative beneficiary status, the next of kin must be under the age of twenty-one at the time legal permanent resident status is granted, regardless of the application date. See Government's Reply Memorandum of Law, dated Apr. 3, 2000 ("Reply Memo") at 3. In the event that an individual is over twenty-one years when the application for adjustment of status is adjudicated, he will be subject to re-petitioning by a parent who has legal permanent resident status, in the family-based second preference category, applicable to adults aged twenty-one and over. See Petition, ¶ 10. In this category, the waiting time for processing is approximately seven years. See id. Additionally, in order to remain eligible for a visa through his mother's re-petition, Sadowski may not marry during the processing period. See id.

On or about August 6, 1998, almost three years after Sadowski submitted the I-485, his attorney, pursuant to the Freedom of Information Act, requested Jadwiga Sadowski's file which included Sadowski's application. See id., ¶ 11. On October 9, 1998, the INS responded to this request, stating that although the agency's indexes reflected the existence of such a file, it was unable to locate the file. See id. The INS located the file on or about February 4, 1999 and processed it four months later on June 17, 1999, granting legal permanent resident status to Sadowski's mother, but denying such derivative status to Sadowski based on the fact that he had become over twenty-one years old. See id., ¶¶ 11-12.


This Court must determine whether subject matter jurisdiction exists in the case at hand prior to addressing any of the pleadings. See Steel Co. v. Citizens For a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (rejecting the district court practice of assuming subject matter jurisdiction arguendo in order to decide a case on its merits). Sadowski alleges that the Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1361 and 8 U.S.C. § 1329. His reliance upon these statutes, however, is incorrect.

A. Subject Matter Jurisdiction Under 28 U.S.C. § 1361

The jurisdictional claim grounded on § 1361, which relates to mandamus relief, is addressed in Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1182 (2d Cir. 1978), where the Second Circuit determined that "matters solely within the discretion of the INS . . . are not reviewable under . . . 28 U.S.C. § 1361." This sentiment is echoed in Zheng v. McElroy, No. 98 Civ. 1772, 1998 WL 702318, at *3 (S.D.N.Y. Oct.7, 1998), where the court ruled that 28 U.S.C. § 1361 is inapplicable as a basis for jurisdiction in an adjustment of status case, because the decision process in immigration status matters should be left to the discretion of the INS. Moreover, mandamus is not appropriate to these cases. "The common law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear non-discretionary duty." Rahman v. McElroy, 884 F. Supp. 782, 787 (S.D.N.Y. 1995) (quoting Heckler v. Ringer, 466 U.S. 602, 606-17, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984)). While the application of mandamus requires the existence of a clear non-discretionary duty owed to a petitioner, no such obligation to Sadowski exists in this matter, rendering the application of 28 U.S.C. § 1361 inapposite.

B. Subject Matter Jurisdiction Under 8 U.S.C. § 1329

Sadowski's basis for jurisdiction under § 1329 is also misplaced in this matter. In Howell v. Immigration and Naturalization Serv., 72 F.3d 288 (2d Cir. 1995), the Second Circuit, noting that several other courts had so determined, held that district courts lack jurisdiction to review a district director's denial of adjustment of status. Further, § 1329 "was amended by § 381 of the Illegal Immigration Reform and Immigrant Responsibility Act (`IIRIRA') and no longer provides jurisdiction for suits filed on or after October 1, 1996." Zheng, 1998 WL 702318, at *4.

In their cross-motion to dismiss the present action, the INS asserts that the Court does not have subject matter jurisdiction, based upon 8 U.S.C. § 1252(a)(2)(B)(i) (Supp. II 1996), which states in relevant part, "[n]otwithstanding 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." Section 1255 governs the criteria for granting applications for adjustment of status. That provision therefore effectively bars judicial review of a § 1255 application denial. See Zheng, 1998 WL 702318, at * 3. The disposition in Zheng supports this notion. There the court stated that it was "unaware of any basis upon which it could entertain jurisdiction over a section 1255 denial of adjustment of status. . . ." Id. at *5. Courts generally have determined that judicial review of immigration matters is extremely limited. See e.g., Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) ("Control over matters of immigration is a sovereign prerogative, largely within the control of the Executive and Legislature."); United States v. ValenzuelaBernal, 458 U.S. 858, 864, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982) ("The power to regulate immigration — an attribute of sovereignty ...

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