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KIM v. ASHCROFT

July 26, 2004.

DAE HYUN KIM, Plaintiff,
v.
JOHN ASHCROFT, U.S. Attorney General, EDWARD McELROY, District Director, UNITED STATES BUREAU OF CITIZENSHIP & IMMIGRATION SERVICES, Defendants.



The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

Dae Hyun Kim brings this action against John Ashcroft, Edward McElroy, and the United States Bureau of Citizenship & Immigration Services ("CIS") (collectively, "defendants"), seeking to compel the adjudication of his application for an adjustment of immigration status. Kim claims that defendants have unreasonably delayed his application in violation of the Administrative Procedure Act (the "APA").*fn1 Defendants now move to dismiss the action for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted.*fn2 For the reasons set forth below, defendants' motion to dismiss is denied in its entirety.

  I. FACTS

  Kim, a Korean citizen, entered the United States in September 1991, using a visitor's ("B-2") visa. He married Yoo Mee Koh, a naturalized U.S. citizen, on June 12, 2000.*fn3 Approximately two months later, on August 23, 2000, Kim filed a "Form I-485," seeking an adjustment of his immigration status to that of a lawful permanent resident pursuant to section 245(a) the Immigration and Nationality Act (the "INA").*fn4

  In connection with this application, Mary Piano, a "District Adjudications Officer" ("DAO") interviewed the Kims on August 15, 2001. Piano then told them that she needed to "review the file with her supervisor."*fn5 When the Kims did not hear from her by January 2002, Mr. Kim's attorney wrote a series of letters to Piano and various Immigration & Naturalization Service ("INS") supervisors, requesting review or reassignment of the case.*fn6 Again, no action was taken. Kim alleges that at the time his Form I-485 was filed (August 2000), other applications requesting adjustment of immigration status were being adjudicated by the District Director in approximately twelve to eighteen months.*fn7

  On March 1, 2004, Kim filed a Complaint, naming Ashcroft (Attorney General of the United States), McElroy (District Director for the New York District of the CIS), and the CIS as defendants. Kim seeks to "compel action" on his Form I-485, alleging that defendants "are improperly withholding action on said application to [his] detriment."*fn8 II. LEGAL STANDARDS

  A. Rule 12(b)(1)

  "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."*fn9 When the defendant challenges the legal sufficiency of the plaintiff's jurisdictional allegations, the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff.*fn10 However, "where evidence relevant to the jurisdictional question is before the court, `the district court . . . may refer to [that] evidence.'"*fn11 Therefore, "[i]n resolving the question of jurisdiction, the [] court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists."*fn12 The consideration of materials extrinsic to the pleadings does not convert the motion into one for summary judgment.*fn13

  B. Rule 12(b)(6)

  "Given the Federal Rules' simplified standard for pleading, `[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'"*fn14 Thus, a plaintiff need only plead "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."*fn15 Simply put, "Rule 8 pleading is extremely permissive."*fn16

  At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'"*fn17 The task of the court in ruling on a Rule 12(b)(6) motion is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."*fn18 When deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor.*fn19

  III. DISCUSSION

  A. Subject Matter Jurisdiction

  Kim alleges that this Court has subject matter jurisdiction pursuant to the APA, the federal question statute, the Declaratory Judgment Act, and the Mandamus and Venue Act.*fn20 Because I find that subject matter jurisdiction exists pursuant to the APA in conjunction with the federal question statute, I ...


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