OPINION AND ORDER
The plaintiff, Hui Jin Zheng, seeks a writ of mandamus and a
declaratory judgment requiring the Immigration and Naturalization Service
("INS") to schedule an interview regarding her application for adjustment
of her immigration status. She alleged jurisdiction in her complaint
under the declaratory judgment statute, 28 U.S.C. § 2201; under the
mandamus statute, 28 U.S.C. § 1361; and under the Administrative
Procedure Act ("APA"), 5 U.S.C. § 701 et. seq. In her papers on this
motion, she also contends that there is jurisdiction over a federal
question under 28 U.S.C. § 1331. The Government has moved to dismiss
the complaint for lack of subject matter jurisdiction under Fed. R. Civ.
P. 12(b)(1) and for failure to state a claim under Fed. R. Civ. P. 12
(b)(6). The plaintiff has made a crossmotion for sununary judgment under
Fed. R. Civ. P. 56.
The following facts are undisputed for purposes of these motions unless
otherwise noted. The plaintiff is a citizen and national of the People's
Republic of China living in New York City. (Compl. Ex. 1.) She entered
the United States without INS inspection at New York City in December
1992. (Compl. Ex. 1.) At some point thereafter, an Immigration Judge
ordered her excluded from the United States. However, the plaintiff did
not leave the country in compliance with the exclusion order. (See
Compl. ¶ IV, Ex. 2.)
On December 23, 1997, the plaintiff applied to the INS for an
adjustment of her immigration status to that of a permanent resident of
the United States pursuant to former section 245(i) of the Immigration
and Nationality Act of 1952 ("INA"), 8 U.S.C. § 11255 (i). (Compl.
¶ IV, Ex. 1). The INS scheduled an interview with the plaintiff
regarding her application for adjustment for June 28, 1999, but cancelled
the interview after learning of the outstanding order of exclusion
against the plaintiff. (Compl. ¶ IV.) The plaintiff then filed a
motion to reopen the exclusion proceedings, which was granted on February
9, 2000. (Compl. ¶ IV, Ex. 2.)
In the following months, the plaintiff made several inquiries regarding
a new interview date for her adjustment application. She sent four
inquiries to the INS, two to a Special Assistant United States Attorney,
and one to the INS District Counsel's Office. (Compl. ¶ V.) She
allegedly received no response to any of these inquiries and still has
not received a new interview date. (Compl. ¶ V.) Finally, on November
16, 2000, the plaintiff filed this action seeking to compel the INS to
schedule an interview date regarding her adjustment application.
On a motion to dismiss, the factual allegations contained in the
complaint are accepted as true. See Conboy v. AT&T Corp., 241 F.3d 242,
246 (2d Cir. 2001). In deciding a motion to dismiss, all reasonable
inferences must be drawn in the plaintiff's favor. See Conboy, 241 F.3d
at 246; Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.
1995); Cosmas v. Hasset, 886 F.2d 8, 11 (2d Cir. 1989). The Court's
function on a motion to dismiss is
"not to weigh the evidence that might
be presented at trial but merely to determine whether the complaint
itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d
Cir. 1985). Therefore, the defendant's motion should only be granted if
it appears that the plaintiff can prove no set of facts in support of her
claim that would entitle her to relief. See Conley v. Gibson, 355 U.S. 41,
45-46 (1957); Connolly v. McCall, 254 F.3d 36, 40 (2d Cir. 2001); see
also Goldman, 754 F.2d at 1065.
When a party challenges the Court's subject matter jurisdiction, the
Court may in its discretion decide the question on the basis of
affidavits or hold an evidentiary hearing. See Vapac Music Pub., Inc. v.
Ruff 'N' Tumble Mgmt., No. 99 Civ. 10656, 2000 WL 1006257, at *1
(S.D.N.Y. July 19, 2000). "Where, however," as here, "the district court
relies solely on the pleadings and supporting affidavits, the plaintiff
need only make a prima facie showing of jurisdiction." Robinson v.
Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994).
In its motion to dismiss for lack of subject matter jurisdiction under
Fed. R. Civ. P. 12(b)(1), the Government argues that none of the
statutes that the plaintiff relies upon in her complaint confer
jurisdiction upon this Court to compel the INS to schedule an adjustment
interview. In her reply brief, the plaintiff continues to maintain that
jurisdiction lies under the mandamus statute, 28 U.S.C. § 1361, and
under the APA. She no longer maintains that jurisdiction lies under the
declaratory judgment statute, 28 U.S.C. § 2201, but she has added a
new alleged basis for jurisdiction, 28 U.S.C. § 1331, for
jurisdiction over a federal question. With respect to federal question
jurisdiction, the plaintiff asserts that the federal question at issue is
the interpretation of the APA itself, specifically 5 U.S.C. § 706,
which states that federal courts "shall . . . compel agency action
unlawfully withheld or unreasonably delayed . . . ."
The declaratory judgment statute, 28 U.S.C. § 2201, is not an
independent basis for subject matter jurisdiction in the district
courts. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72
(1950); Fleet Bank, N.A. v. Burke, 160 F.3d 883, 886 (2d Cir. 1998). In
her reply papers, the plaintiff no longer contends that the declaratory
judgment statute confers subject matter jurisdiction, and there is no
basis for jurisdiction under this statute.
The APA itself does not confer jurisdiction on a district court to
review the decision of an administrative agency. Califano v. Sanders,
430 U.S. 99, 107 (1977); Clark v. Commodity Futures Trading Commission,
170 F.3d 110, 113 n. 1 (2d Cir. 1999); B.K. Instrument, Inc. v. United
States, 715 F.2d 713, 723 (2d Cir. 1983). However, a district court may
have subject matter jurisdiction under 28 U.S.C. § 1331 over a claim
that an agency has violated the APA. Califano, 430 U.S. at 105; Clark,
170 F.3d at 113 n. 1; Reiner v. West Village Associates, 768 F.2d 31, 33
(2d Cir. 1985) (per curiam); B.K. Instrument, 715 F.2d at 723.
Although there is a presumption in favor of judicial review of agency
actions, that presumption may be overcome if the statutory scheme
indicates that Congress intended to preclude judicial review. Block v.
Community Nutrition Institute, 467 U.S. 340, 349 (1984); Dew v. United
States, 192 F.3d 366, 371-72 (2d Cir. 1999). Under 5 U.S.C. § 701 (a)
(2), the APA does not
apply "to the extent that . . . agency action is
committed to agency discretion by law." "[W]here a decision is committed
to agency discretion, 'review is not to be had if the statute is drawn so
that a court would have no meaningful standard against which to judge the
agency's exercise of discretion.'" Dina v. Attorney General, 793 F.2d 473,
476 (2d Cir. 1986) (quoting Heckler v. Chaney, 470 U.S. 821, 830
(1985)); see also Lincoln v. Vigil, 508 U.S. 182, 190-91 (1993); Marlow
v. U.S. Dept. of Education, 820 F.2d 581, 582 (2d Cir. 1987) (per
curiam). Thus, the Court must determine whether the INS has
non-reviewable discretion in its scheduling of adjustment interviews.
Under Section 245 of the INA,
[t]he status of an alien who was inspected and
admitted or paroled into the United States . . . may
be adjusted by the Attorney General, in his discretion
and under such regulations as he may prescribe, to
that of an alien lawfully admitted for permanent
residence if (1) the alien makes an application for
such adjustment, (2) the alien is eligible to receive
an immigrant visa and is admissible to the United
States for permanent residence, and (3) an immigrant
visa is immediately available to him at the time his
application is filed.
8 U.S.C. § 1255 (a). Section 245(i) allowed the Attorney General to
adjust the status of an alien who is physically present in the United
States and who entered the country without inspection, provided that the
alien paid a specified fee. See 8 U.S.C. § 1255 (i).