MEMORANDUM-DECISION AND ORDER*fn2
Presently before this Court is a Motion by the United States Department of Homeland Security, Janet Napolitano in her official capacity as Secretary of Homeland Security, Michael Aytes in his official capacity as Acting Deputy Director of United States Citizenship and Immigration Services ("U.S.C.I.S.") with the Department of Homeland Security, and Gerard Heinauer in his official capacity as Director of the U.S.C.I.S. Nebraska Service Center (collectively "Defendants") seeking to dismiss the Plaintiffs' Complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Motion (Dkt. No. 18); Compl. (Dkt. No. 1).
On or about March 30, 2001, Plaintiffs Rocio Villa, Pedro Flores, and Laila Flores (collectively "Plaintiffs") filed I-485 applications for adjustment from asylees to permanent resident status with the Defendants' predecessor agency, Immigration and Naturalization Service, now the United States Citizenship and Immigration Services. Compl. at 3 (Dkt. No. 1). On or about July 5, 2005, the Defendants contacted the Plaintiffs requesting "additional evidence on their applications" including updated medical examination forms (Form I-693) and a "Supplemental Form to I-693" for each Plaintiff. Id. The Plaintiffs sent this information to the Defendants on or about August 3, 2005, and it was received by the Defendants on or about August 5, 2005. Id. The Defendants took no further action on Plaintiffs' applications. Id. at 3-4.
OnJune 12, 2008, more than seven years after filing their applications, Plaintiffs filed the instant Complaint seeking an order "[r]equiring Defendants and/or their agents to process their cases to a conclusion." Compl. at 6 (Dkt. No. 1). The Defendants subsequently moved for dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Motion at 3 (Dkt. No. 18), Defendant's Reply at 1 (Dkt. No. 26).
A federal court's subject matter jurisdiction in each case is of primary importance since "[i]t is a fundamental precept that federal courts are courts of limited jurisdiction." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court must grant a motion to dismiss when that court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "'The party invoking federal jurisdiction bears the burden of establishing' that jurisdiction exists." Sharkey v. Quarantillo, 541 F.3d 75, 82-83 (2d Cir. 2008) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). In reviewing a motion to dismiss for lack of subject matter jurisdiction on the face of the complaint, the court "must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Sharkey, 541 F.3d at 83; see Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
B. Subject Matter Jurisdiction
Plaintiffs argue that the Court has subject matter jurisdiction under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., and 555(b), in conjunction with federal question jurisdiction, 28 U.S.C. § 1331, et seq., as well as the Mandamus Statute, 28 U.S.C. § 1361. However, Defendants argue that the Court lacks subject matter jurisdiction under both the APA, 5 U.S.C. § 706(1), and the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2)(B)(ii) and 8 U.S.C. § 1252(g).
While the issues currently before the Court have not been addressed by the Second Circuit*fn3 or this district, they have been discussed by and have divided district courts across the country. Compare Nigmadzhanov v. Mueller, 550 F. Supp. 2d 540 (S.D.N.Y. 2008) (finding subject matter jurisdiction); Kashkool v. Chertoff, 553 F. Supp. 2d 1131 (D. Ariz. 2008) (same); Bondarenko v. Chertoff, No. 07-mc-00002, 2007 U.S. Dist. LEXIS 67143 (W.D.N.Y. Sept. 11, 2007) (same); Koren v. Chertoff, No. 3:07cv157 (PCD), 2007 U.S. Dist. LEXIS 35128 (D. Conn. May 14, 2007) (same); Zaigang Liu v. Novak, 509 F. Supp. 2d 1 (D. D.C. 2007) (same); Shah v. Hansen, No. 1:07 CV 1576, 2007 U.S. Dist. LEXIS 80636 (N.D. Ohio 2007) (same); Belegradek v. Gonzales, 523 F. Supp. 2d 1364 (N.D.Ga. 2007) (same); Toor v. Still, No. C07-0645 BZ, 2007 U.S. Dist. LEXIS 53173 (N.D.Cal. July 10, 2007) (same); Ma v. Gonzales, No. C07-122RSL, 2007 U.S. Dist. LEXIS 41103 (W.D. Wash. June 5, 2007) (same); with Cholewinska v. Chertoff, No. 07-518, 2008 U.S. Dist. LEXIS 13755 (D. N.J. Feb. 21, 2008) (finding no subject matter jurisdiction); Touarsi v. Mueller, 538 F. Supp. 2d 447 (D. Mass. 2008) (same); Grinberg v. Swacina, 478 F. Supp. 2d 1350 (S.D. Fl. 2007) (same); Torres v. Chertoff, No.1:07-cv-01649-WSD, 2007 U.S. Dist. LEXIS 88812 (N.D. Ga. Nov. 30, 2007) (same); Wang v. Chertoff, No. 1:07-cv-00948-WSD, 2007 U.S. Dist. LEXIS 80249 (N.D. Ga. Oct. 30, 2007) (same); Salazar v. Chertoff, No. 2:06CV502, 2007 U.S. Dist. LEXIS 36899 (S.D.N.Y. May 18, 2007) (same); Grinberg v. Swacina, 478 F. Supp. 2d 1350 (S.D. Fl. 2007) (same); Orlov v. Howard, 523 F. Supp. 2d 30 (D. D.C. 2007) (same); Safadi v. Howard, 466 F. Supp. 2d 696 (E.D. Va. 2006) (same); Espin v. Gardner, 381 F. Supp. 2d 261 (S.D.N.Y. 2005) (same). The area of immigration applications is one involving so many citizens and potential citizens that it must be addressed. As discussed below, the Court finds, in agreement with a growing number of district courts, that it has subject matter jurisdiction.
1. Administrative Procedure Act
The APA allows "[a] person suffering a legal wrong because of agency action" to bring suit.
5 U.S.C. § 702. While the "APA does not confer jurisdiction" on its own, Califano v. Sanders, 430 U.S. 99, 107 n.7 (1977), it has been read to confer jurisdiction in combination with the federal question statute. Sharkey, 541 F.3d at 84; Bondarenko, 2007 U.S. Dist. LEXIS 67143 at *6.
The federal question statute confers jurisdiction on the district courts over "all civil actions arising under" federal law. 28 U.S.C. § 1331. This statute "has been interpreted to mean that federal question jurisdiction exists where: (1) the claim turns on the interpretation of the laws or Constitution of the United States, and (2) is not patently without merit." Kim v. Ashcroft, 340 F. Supp. 2d 384, 388 (S.D.N.Y. 2004). Here, Plaintiffs argue that sections ...