The opinion of the court was delivered by: W Illiam M. Skretny United States District Judge
On January 17, 2007, pro se petitioner Vladimir Bondarenko commenced this action alleging that respondents Chertoff, Gonzales, Gonzalez, Mueller and Novak have failed to timely decide his Form I-485 Application to Adjust Status, which was received on April 23, 2004 and remains pending. Petitioner asks this Court to: (1) declare respondents' failure to act on his application unreasonable and arbitrary, (2) direct respondents to adjudicate his application, (3) direct respondents to provide him with Notice of Approval, and (4) award him attorney's fees and costs.
Respondents moved to dismiss petitioner's suit for lack of subject matter jurisdiction.*fn1 Having reviewed the parties' submissions on respondents' motion, this Court finds oral argument unnecessary.
Petitioner is a citizen of the Russian Federation and resides in Buffalo, New York. (Petition, ¶ 2.) On April 24, 2003, the Research Foundation of the State University of New York at Buffalo submitted an I-140 Petition for Immigrant Worker on petitioner's behalf to the Department of Homeland Security ("the Department"), U.S. Citizenship and Immigration Services ("USCIS"), Vermont Service Center. (Id., Exs. B and F.) The I-140 Petition, which classified petitioner as an Outstanding Professor or Researcher pursuant to 8 U.S.C. § 1153(b)(1)(B), was approved on December 19, 2004. (Id. Ex. B.)
On April 23, 2004, petitioner filed with USCIS's Vermont Service Center a Form I-485 Application to Adjust to Permanent Resident Status ("adjustment application"). (Id., Ex. A.) On March 8, 2005, petitioner provided fingerprints to USCIS for the agency's required security checks. (Id., ¶ 15 and Ex. C.) Petitioner states that more than two years ago, on May 18, 2005, the Vermont Service Center was processing Form I-485 applications received on June 24, 2004, which is two months after the date of his filing. (Id., ¶ 17 and Ex. D; see generally, https://egov.uscis.gov/cris/jsps/Processtimes.jsp?SeviceCenter=VSC for processing dates).
After filing his application, petitioner and others acting on his behalf made numerous inquiries about the status of his application and received several communications from USCIS. On June 1, 2005, petitioner was advised by USCIS that a lack of manpower to complete routine security checks was resulting in delays in adjudicating applications. (Id. Ex. C.) In response to an inquiry from petitioner's employer, USCIS stated, on November 9, 2005, that petitioner's application "will be processed within the normal processing time here at the Center." (Id., Ex. G.) By letter dated December 7, 2005, USCIS again reported to petitioner that his case was delayed because results of the security checks had not been received. (Id., Ex. E.) On or about August 29, 2006, the Vermont Service Center advised Congresswoman Louise Slaughter that petitioner's application was "currently going through the name/date of birth security clearance process." (Id., Ex. I.) On December 27, 2006, USCIS informed petitioner that his "case is not yet ready for decision, as the required investigation into [his] background remains open." (Id., Ex. K.) Petitioner wrote to the Federal Bureau of Investigation to inquire about the status of his security checks on December 4, 2006, but received no response prior to commencing this action. (Id., ¶ 25 and Ex. N.)
Petitioner's Form I-485 application remains pending more than three years and four months after filing. By posting dated August 16, 2007, the Vermont Service Center reported that it was processing Form I-485 applications filed on July 24, 2006. (https://egov.uscis.gov/cris/jsps/Processtimes.jsp?SeviceCenter=VSC, last accessed on August 24, 2007.)
In moving for dismissal for lack of subject matter jurisdiction, respondents first argue that the adjustment of status process set forth in the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq., is "quintessentially discretionary," and is removed from the ambit of judicial review by statute. Second, respondents contend that neither the federal mandamus statute nor the Administrative Procedure Act ("APA"), both cited by petitioner as a basis for this Court's jurisdiction, is applicable here. Though presented as discrete arguments, each prong of respondents' jurisdictional attack rests upon the assertion that the timing of the I-485 adjudication process is unreviewable because it is a matter committed to agency discretion.
A. Applicable Legal Standards
Dismissal for lack of subject matter jurisdiction is proper where the district court lacks statutory or constitutional authority to decide the case. FED. R. CIV. P. 12(b)(1); Makarova v. United States, 201F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence. Luckett v. Bure, 290 F.3d 493, 496 (2d Cir. 2002). In considering whether jurisdiction exists, the court must "accept as true all material factual allegations in the complaint." Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 3012, 82 L.Ed. 2d 139 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 105 S.Ct. 3012, 82 L.Ed. 2d 139 (1984)). However, jurisdiction is to be shown affirmatively and the court is to refrain from "drawing from the pleadings inferences favorable to the party asserting it." Shipping Fin. Servs., 140 F.3d at 131 (citing Norton v. Larney, 266 U.S. 511, 515, 45 S.Ct. 145, 69 L.Ed. 413 (1925)).
The Administrative Procedure Act ("APA") permits persons adversely affected by an "agency action" to bring suit. 5 U.S.C. § 702. Although the APA does not provide the Court with an independent basis for subject matter jurisdiction, Califano v. Sanders, 430 U.S. 99, 106-107, 97 S.Ct. 773, 90 L.Ed. 2d 192 (1977), the APA in conjunction with the federal question statute, 28 U.S.C. § 1331, may provide a jurisdictional basis.
Under the APA, agency actions are reviewable where a private right of action is provided by statute or where the action complained of is a "final agency action." Id. § 704. For purposes of the APA, an "'agency action' includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." Id. § 551(13) (emphasis added).
"A 'failure to act' . . . is simply the omission of an action without formally rejecting a request-for example, the failure . . . to take some decision by a statutory deadline." Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 63, 124 S.Ct. 2373, 159 L.Ed. 2d 137 (2004). Section 706(1) provides relief for a failure to act by directing that "the reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed." However, a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete action that it is required to take. S. Utah, 542 U.S. at 64. A required agency action ...