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United States District Court, S.D. New York

July 26, 2004.

DAE HYUN KIM, Plaintiff,

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


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.


  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


  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 do not address the other jurisdictional grounds.*fn21 1. Jurisdictional Principles

  The federal question statute confers jurisdiction on the district courts over actions "arising under" federal law. Specifically, section 1331 provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."*fn22 "An action arises under a federal statute where the statute creates or is a necessary element of the cause of action or the plaintiff would prevail if the statute were construed one way and lose if it were construed another."*fn23 This has been interpreted to mean that federal question jurisdiction exists where: "(1) the claim turns on an interpretation of the laws or Constitution of the United States and (2) the claim is not `patently without merit.'"*fn24

  The APA "itself does not confer jurisdiction on a district court to review the decision of an administrative agency."*fn25 Thus, "plaintiffs seeking specific relief are given the right to sue the government in a federal court by the [APA] but the subject matter jurisdiction basis is the federal question statute."*fn26 As such, where a plaintiff alleges that the defendant violated the APA, the court may exercise subject matter jurisdiction pursuant to section 1331. For purposes of this motion, the key provision is section 6 of the APA, which states, in relevant part, that "[w]ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it."*fn27

  2. Application of Jurisdictional Principles

  Kim submits that defendants' violation of section 555(b) brings this action within the ambit of the federal question statute.*fn28 Defendants counter that an "adjustment of immigration status is entirely discretionary with the Attorney General and his delegates . . . and Chapter 7 of the APA, governing judicial review, specifically exempts from APA jurisdiction review of any action committed to agency discretion by law."*fn29 Defendants add that "Kim simply ignores that judges in this District have consistently declined to exercise jurisdiction over claims substantially similar to his under the APA."*fn30

  Defendants' arguments fail for several reasons. First, defendants correctly note that the decision of whether to grant or deny an adjustment application is wholly discretionary.*fn31 However, Kim is not requesting judicial review of an adverse adjudication rendered by defendants; nor is he seeking to compel them to grant his petition.*fn32 Rather, he is asking this Court to compel defendants to make any decision. Whether to adjudicate an adjustment application is not discretionary, but governed by section 6 of the APA, requiring the CIS to take action on a matter presented to it "within a reasonable time."*fn33

  Defendants' second argument is also unavailing. Defendants cite numerous cases for the proposition that judges in this District "consistently" find jurisdiction lacking over claims "substantially similar" to that asserted by Kim.*fn34 But these cases are distinguishable for several reasons. First, many of them involve plaintiffs seeking either judicial review of INS/CIS decisions denying adjustment applications or to compel a favorable decision by the INS/CIS.*fn35 Second, some of these actions were dismissed for reasons other than lack of subject matter jurisdiction, or were otherwise factually distinguishable.*fn36 Third, even in those cases where the plaintiffs sought relief similar to that requested by Kim — i.e., to compel action on an adjustment application — the plaintiffs did not allege subject matter jurisdiction on the basis of section 555(b) and the federal question statute.*fn37 Because it is well established that jurisdiction must be pled on the face of the complaint, these cases are distinguishable.*fn38 Notably, only one of the cases cited by defendants — Batista — presents "substantially similar" factual circumstances. In that case, Batista complained of an unreasonable delay in the adjudication of his adjustment application in violation of, inter alia, the APA. The court exercised subject matter jurisdiction under section 555(b), finding that although Batista's claim was meritless, it was not "patently" so.*fn39

  Thus, judges have not "consistently" declined to exercise subject matter jurisdiction over cases such as that brought by Kim. To the contrary, when faced with similar circumstances, courts have found that alleging a violation of section 6 of the APA brings the action within federal question jurisdiction as long as the claim is not "wholly insubstantial and frivolous" or "patently without merit."*fn40 In other words:

As a general proposition, a complaint that turns on a federal statute . . . comes within the federal question jurisdiction. The consequence of a plaintiff's failure to plead facts making out its right to relief is a dismissal for failure to state a claim upon which relief may be granted, not a dismissal for want of jurisdiction. Where, however, "such a claim is wholly insubstantial and frivolous" . . . the court lacks jurisdiction over the subject matter. Accordingly, the Court is obliged to consider whether there is any colorable basis for [a plaintiff's] claim that the INS has violated Section 6 of the APA.*fn41
  Thus, this Court must decide whether Kim's claim is "patently without merit." "The test for determining whether a claim is `patently without merit' is `whether the right claimed is so insubstantial, implausible, foreclosed by prior decisions of [the Supreme] Court, or otherwise completely devoid of merit as not to involve a federal controversy. . . . [I]t is not necessary to determine whether the cause of action is one on which the plaintiff could actually recover.'"*fn42 Kim claims a right to have the CIS adjudicate his adjustment application within a reasonable time, as required by section 6 of the APA. He alleges that the delay (about forty-two months) from the submission of his application is unreasonable.*fn43 Because it cannot be said that this claim is patently without merit, this Court has subject matter jurisdiction.

  B. Failure to State a Claim

  1. Regulatory and Statutory Background

  Adjustment of immigration status is governed by section 245(a) of the INA, which allows "otherwise illegal aliens" an opportunity to adjust their status to become lawful permanent residents.*fn44 It provides, in relevant part, that:

The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification . . . 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.*fn45
Thus, an application for adjustment of status may only be filed if an immigrant visa is "immediately available" to the alien. Because "an unlimited number of immigrant visas are allotted to immediate relatives of U.S. citizens, an immigrant visa is always immediately available to such aliens."*fn46 For purposes of the Act, an "immediate relative" means a child, spouse, or parent of a citizen of the United States.*fn47 Accordingly, an "alien who has been admitted to the United States, meets the other requirements for an adjustment, and is an immediate relative of a U.S. citizen, can file an adjustment of status application concurrently with his [] relative's petition to classify the alien as an immediate relative."*fn48 2. Defendants' Motion to Dismiss

  As an initial matter, defendants contend that the delay in adjudication is not unreasonable because "the clock has not yet begun to run on the adjudication of Kim's adjustment application."*fn49 This is so because, according to defendants, "an adjustment application is not considered properly filed until the applicant has an immigrant visa `immediately available' to him — which Kim nowhere alleges to be the case."*fn50 But the visa petition (Form I-130) and adjustment application (Form I-485) attached to his Complaint suggest that Kim does aver that an immigrant visa was immediate available to him and as such, that his application was "properly filed." Kim notes on his Form I-485 that he is "applying for adjustment to permanent resident status because [] an immigrant petition giving [him] an immediately available immigrant visa number has been approved . . . or a relative . . . visa petition filed with this application will give [him] an immediately available visa number if approved."*fn51 Thus, Kim alleges that he filed the visa petition and adjustment application "concurrently," which he is entitled to do given his claimed status as the immediate relative of a U.S. citizen.*fn52 At a later stage in the proceedings it may be shown that Kim did not, in fact, file these documents concurrently, or otherwise improperly submitted his paperwork indicating that the "clock" has not yet started to run. However, the Complaint adequately alleges that Kim properly filed his application and accordingly, that the complained-of delay dates back to the submission of his Form I-485.

  Defendants next suggest that Kim has not stated a cognizable cause of action under the APA because the Supreme Court [in INS v. Miranda] has "instructed that evidence of the passage of time, standing alone, cannot support such a claim."*fn53 But this analogy to Miranda is flawed. In that case, the petitioner sought review of the INS's decision denying his adjustment application. The operative question was whether the government's "affirmative misconduct" prevented it from denying citizenship under a theory of equitable estoppel.*fn54 To prevail in such a case, the burden on the petitioner is a heavy one.*fn55 The difference between these cases is clear — Kim's claim is not one of equitable estoppel and he is not attempting to force the CIS to, in essence, reverse a decision denying citizenship.*fn56 Rather, he is requesting that the CIS adjudicate his application within a reasonable time.

  Moreover, although there is no statutory or regulatory deadline by which the CIS must adjudicate an application, at some point, defendants' failure to take any action runs afoul of section 555(b). Were it otherwise, the CIS could hold adjustment applications in abeyance for decades without providing any reasoned basis for doing so. Such an outcome defies logic — the CIS simply does not possess unfettered discretion to relegate aliens to a state of "limbo," leaving them to languish there indefinitely. This result is explicitly foreclosed by the APA.

  Thus, I now consider whether, under any set of facts that could be proved consistent with Kim's allegations, defendants' delay in adjudicating his adjustment application is "unreasonable" under the APA. The Second Circuit has observed that: "In determining reasonableness [for purposes of section 6 of the APA], we look to the source of delay — e.g., the complexity of the investigation as well as the extent to which the defendant participated in delaying the proceeding."*fn57 Although it is entirely possible that this delay is reasonable, there is insufficient information upon which to base such a determination at this stage in the proceedings.*fn58 Neither party has offered an explanation for the delay and as such, it cannot be said that Kim will be unable to prove any set of facts, consistent with his allegations, entitling him to relief.*fn59 Accordingly, defendants' motion to dismiss under Rule 12(b)(6) is denied.


  For the foregoing reasons, defendants' motion to dismiss is denied in its entirety. The Clerk of the Court is directed to close this motion [# 8 on the docket sheet]. A conference will be held in Courtroom 15C on August 9, 2004 at 4:30 p.m.


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