Opinion
No. 2:13-cv-02396 JAM DAD
03-14-2014
LIANGDA FENG, Plaintiff, v. RAND BEERS, Acting Secretary of the Department of Homeland Security; ALEJANDRO MAYORKAS, Director, U.S. Citizenship and Immigration Services; MICHAEL BIGGS, USCIS, Sacramento Field Office Director, Defendants.
ORDER DENYING DEFENDANTS' MOTION
TO DISMISS AND MOTION FOR
SUMMARY JUDGMENT, AND DENYING
PLAINTIFF'S CROSS-MOTION FOR
SUMMARY JUDGMENT
This matter is before the Court on Defendants Rand Beers, Alejandro Mayorkas, and Michael Biggs' (collectively "Defendants") Motion to Dismiss (Doc. #6) Plaintiff Liangda Feng's ("Plaintiff") Complaint (Doc. #1) for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP") and Motion for Summary Judgment (Doc. #6). Also before the Court is Plaintiff's Cross-Motion for Summary Judgment (Doc. #7). Plaintiff opposes Defendants' motions (Doc. #7) and Defendants oppose Plaintiff's motion (Doc. #8).
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for March 5, 2014.
I. PROCEDURAL AND UNDISPUTED FACTUAL BACKGROUND
Plaintiff is a United States citizen. Plaintiff's Statement of Undisputed Facts at 1 ("PSUF"). Defendant Rand Beers is the Acting Secretary of the Department of Homeland Security. Compl. ¶ 3. Defendant Alejandro Mayorkas is the Director of the U.S. Citizenship and Immigration Services ("USCIS"). Compl. ¶ 3. Defendant Michael Biggs is the Director of the USCIS Sacramento Field Office. Compl. ¶ 3.
Plaintiff's wife Ruifang Wu is currently in removal proceedings, and could be ordered removed at her next immigration court hearing date on April 22, 2014. PSUF at 4-5. Plaintiff filed an I-130 Petition for Alien Relative with the USCIS on behalf of Ms. Wu on October 26, 2012. PSUF at 2. Plaintiff and Ms. Wu were interviewed at the USCIS Sacramento Field Office on April 15, 2013. PSUF at 3. Plaintiff's I-130 petition remains unadjudicated at this date, 16 months after it was originally filed. PSUF at 6.
On November 18, 2013, Plaintiff filed the Complaint (Doc. #1) in this Court. Plaintiff requests that the Court require Defendants to "expeditiously process Plaintiff's I-130 Petition." Compl. ¶ 15.
II. OPINION
A. Discussion
1. Motion to Dismiss
Defendants argue that Plaintiff's complaint must be dismissed because Plaintiff has failed to state a claim for relief under Rule 12(b)(6) of the FRCP. Mot. at 2. Specifically, Defendants argue that Plaintiff "does not allege any facts that 15 months is an unreasonable amount of time" for USCIS to process Plaintiff's I-130 petition. Mot. at 5. Plaintiff responds that the delay - now 16 months - is unreasonable because it significantly exceeds the average processing times for I-130 petitions, as self-reported by USCIS. Pl.'s Opp/Cross-Mot. at 4.
Defendants' Rule 12(b)(6) challenge to Plaintiff's complaint is based on the "reasonableness" of USCIS' delay. However, in the context of immigration applications, the question of "what constitutes an unreasonable delay . . . depends to a great extent on the facts of the particular case." Houle v. Riding, 2008 WL 223670, at *7 (E.D. Cal. Jan. 28, 2008). Moreover, "whether the delay is reasonable is a question of fact which must be determined by [the] Court after consideration of the merits of Plaintiff's claims." Id. at *7. Accordingly, absent circumstances suggesting that Plaintiff's claim is frivolous, the Court will not grant Defendants' 12(b)(6) motion to dismiss based on Plaintiff's failure to establish that the delay was "unreasonable." Id. at *7 (denying a similar Rule 12(b)(6) motion to dismiss because "it is premature to determine whether the delay is unreasonable" at "this early stage of litigation"). The allegations in the Complaint support this Court's finding that Plaintiff's claim is not frivolous, as the USCIS has not yet ruled on his petition, and the delay has exceeded the average processing times for I-130 petitions. Compl. ¶ 9. Therefore, Defendants' motion to dismiss is DENIED.
Defendants bring their motion to dismiss under Rule 12(b)(6), not Rule 12(b)(1). Mot. at 2. Accordingly, Defendants have not challenged the Court's subject matter jurisdiction in this case. Nevertheless, the issue warrants brief discussion. See Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action"). The majority of courts that have considered requests to compel USCIS to adjudicate similar "adjustment of status" petitions have held that "federal court jurisdiction exists pursuant to both the APA and the Mandamus Act." Houle v. Riding, 2008 WL 223670, at *4 (E.D. Cal. Jan. 28, 2008) (cataloging district court cases within the Ninth Circuit, all of which found that subject matter jurisdiction existed under similar circumstances). In fact, "[i]n the Eastern District of California, virtually every district judge who has considered the issue has found that subject matter jurisdiction exists." Amanjee v. Chertoff, 2009 WL 347666, at *5 (E.D. Cal. Feb. 11, 2009) report and recommendation adopted, 2009 WL 8641703 (E.D. Cal. Mar. 13, 2009). In keeping with these cases and pursuant to the Court's independent review of the relevant statutes, "[j]urisdiction is properly premised on both the mandamus statute and on the APA in conjunction with federal question jurisdiction under 28 U.S.C. § 1331 because the government has a non- discretionary duty to process adjustment applications." Amanjee, 2009 WL 347666, at *6.
2. Cross-Motions for Summary Judgment
Defendants argue that they are entitled to summary judgment because the delay is reasonable as a matter of law. Mot. at 6. Defendants contend that "existing case law and legal standards establish that the processing of such a complex adjustment case is, as a matter of law, not an unreasonable delay." Mot. at 6. Plaintiff, in turn, argues that he is entitled to summary judgment because the 16-month delay is "beyond any reasonable amount of time to adjudicate the petition, particularly given that according to USCIS, current processing times for immediate relative I-130 petitions [are] approximately 10 months from the date of receipt." Pl.'s Opp./Cross-Mot. at 6.
Where the governing statute does not include an explicit timeline for an agency action, courts are guided by the following six-part test in determining whether an agency has unreasonably delayed in violation of the APA: (1) "the time agencies take to make decisions must be governed by a 'rule of reason;'" (2) "where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;" (3) "delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;" (4) "the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;" (5) "the court should also take into account the nature and extent of the interests prejudiced by delay;" and (6) "the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed." Telecommunications Research & Action Ctr. v. F.C.C., 750 F.2d 70, 80 (D.C. Cir. 1984). The foregoing list is commonly referred to as the "six-factor TRAC test" and has been adopted by the Ninth Circuit. See Brower v. Evans, 257 F.3d 1058, 1068 (9th Cir. 2001) (balancing the TRAC factors to determine whether an agency unreasonably delayed).
Given the procedural posture of this case, the Court must apply the TRAC factors in accordance with the legal standard for summary judgment. Rule 56(a) of the FRCP provides that "a court shall grant summary judgment if the movant shows there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." A factual issue is "genuine" when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). The Court must view the facts and draw inferences in the manner most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The only case cited by either party that is directly on point is Razaq v. Poulos, 2007 WL 61884 (N.D. Cal. Jan. 8, 2007). In Razaq, the Northern District of California evaluated the reasonableness of the USCIS' 27 month delay in adjudicating an I-130 petition filed on behalf of Mr. Razaq. Id. at *1. While in the United States, Mr. Razaq was taken into custody after the immigration authorities determined that he had overstayed his tourist visa. Id. at *1. Mr. Razaq chose to leave the country rather than litigate his status, and subsequently married a U.S. citizen in Antigua. Id. at *1. His wife - on his behalf - then submitted an I-130 application to the USCIS, which failed to rule on the petition for 27 months. Id. at *1. Ms. Razaq brought suit in the Northern District of California, asking the district court to compel the USCIS to immediately process his I-130 petition. Id. at 1. The court denied both parties' cross-motions for summary judgment, emphasizing the lack of evidence submitted by either party. Id. at *13. Specifically, the court found that "the record leaves a good many potentially relevant questions unanswered." Id. at
The record is similarly sparse in the present case. It is undisputed that Plaintiff's I-130 petition was filed on October 26, 2012, and that Plaintiff and his wife were interviewed by USCIS on April 15, 2013. PSUF at 2-3. However, neither party submits any other evidence which establishes what has been done by USCIS since the I-130 petition was filed. Although Defendants acknowledge that "approximately six months of [the delay] can be attributed to possession of the relevant A-file by U.S. Immigration and Customs Enforcement," they do not provide any further detail as to when this occurred or what investigative actions were taken by ICE. Arsala Declaration at 2. Similarly, Plaintiff has submitted no evidence documenting the actions of USCIS .
With these limited background facts in mind, the Court analyzes Plaintiff's claim under the six-part TRAC test. Telecommunications Research & Action Ctr., 750 F.2d at 80. Of relevance to the Court's analysis is the Razaq court's denial of both parties' cross-motions for summary judgment, when presented with USCIS' 27-month delay.
The first TRAC factor, which states that agency timeliness must be governed by the "rule of reason" does not weigh strongly in favor of either party. Telecommunications Research & Action Ctr., 750 F.2d at 80. Plaintiff notes that the 16-month delay significantly exceeds the average processing times for I-130 petitions, as self-reported by USCIS. Pl.'s Opp./Cross-Mot. at 4-5. However, the delay is nearly a year less than that seen in Razaq. Moreover, the average processing time for an I-130 petition is of limited relevance in this case: Plaintiff's marriage occurred after the commencement of removal proceedings and it would therefore be reasonable for USCIS to "apply more scrutiny and more time" to Plaintiff's petition than it would apply to petitions filed under less questionable circumstances. Mot. at 7. On the other hand, a 16-month delay is extensive, especially in light of the fact that USCIS interviewed Plaintiff and his wife nearly a year ago and has not subsequently requested additional information from them. Given these conflicting indicia, the reasonableness of the 16-month delay turns almost entirely on what exactly USCIS has been doing during that period. If it has been diligently investigating the validity of Plaintiff's marriage, then the delay is likely reasonable. If it has merely placed Plaintiff's petition on the back-burner, the delay is likely unreasonable. Given the absence of more specific, detailed evidence as to how USCIS has handled Plaintiff's petition, there remains a genuine issue of fact in the application of the first TRAC factor.
The second TRAC factor instructs the Court that a Congressionally-provided timetable "may supply content for this rule of reason." Telecommunications Research & Action Ctr., 750 F.2d at 80. There is no statutory or regulatory provision that indicates the maximum time USCIS may take in adjudicating an I-130 petition. 8 U.S.C. § 1154; 8 C.F.R. §§ 204 et seq. Defendants' argument that this factor tips in their favor because Congress expressly chose not to include a timetable is unpersuasive. Mot. at 7. Although no timetable appears in § 1154, Congress did expressly include a "reasonableness" requirement in the APA; the absence of a quantified timetable does not mean that an agency may take as much time as it sees fit. The second TRAC factor does not weigh in favor of either party.
The third and fifth TRAC factors take into account the human interests impacted by USCIS' delay. Telecommunications Research & Action Ctr., 750 F.2d at 80. It is difficult to imagine a scenario where "human health and welfare" are more at stake than in the present case. Plaintiff's life and marriage hang in the balance while USCIS considers his petition. Furthermore, the "interests prejudiced by the delay" are concrete and significant. Plaintiff's wife faces the very real possibility of deportation at the April 22, 2014 hearing, if USCIS does not return a favorable finding before that date. Here, the potential prejudice is far more severe than that seen in Razaq: Mr. Razaq did not reside in the United States at the time of the proceeding, so any prejudice was limited to continued uncertainty about his ability to eventually move back to the United States. The third and fifth TRAC factors weigh strongly in favor of Plaintiff.
The fourth TRAC factor requires the Court to consider "the effect of expediting delayed action on agency activities of a higher or competing priority." Telecommunications Research & Action Ctr., 750 F.2d at 80. Defendants argue that "expediting adjudication would intrude on agency discretion." Mot. at 8. However, they fail to provide any concrete details about "agency activities of a higher or competing priority." Telecommunications Research & Action Ctr., 750 F.2d at 80. Nor do they explain what specific investigative procedures have delayed adjudication of Plaintiff's petition for nearly a year and a half, and how a court order to promptly adjudicate Plaintiff's petition would compromise that investigation. "Agency discretion" is not a talismanic incantation that the government may trot out every time its efficiency is challenged. It must provide specific examples of higher priorities that would be subordinated or agency actions that would be hindered by an unfavorable court order. See Razaq, 2007 WL 61884 at *7 (noting that "government has given [the court] virtually no information by which [it] could assess the weight of this factor"). In the absence of any concrete details, the Court gives little weight to the agency's pleas of judicial intrusion.
The sixth aspect of the TRAC test is not really a "factor," but merely a confirmation that agency delay need not be intentional to be unreasonable. Telecommunications Research & Action Ctr., 750 F.2d at 80. Although the presence of intentional delay would strongly support Plaintiff's argument, the opposite is not necessarily true for Defendants. As there is no evidence that USCIS has deliberately withheld adjudication of Plaintiff's petition, the sixth element of the TRAC test favors neither party.
All in all, the six-part TRAC test weighs moderately in favor of Plaintiff. However, a number of unanswered factual questions remain, primarily with regard to the first TRAC factor. Each party asks the Court to find that no genuine issue of material fact remains, but each provides little or no detail as to what has actually occurred. Presented with such a bare record, the Court cannot find as a matter of law that the delay was unreasonable. It remains possible that USCIS has been diligently investigating Plaintiff's petition and the delay is warranted. Likewise, the Court cannot find as a matter of law that the 16-month USCIS delay was reasonable. It remains possible that USCIS has been dragging its feet, intentionally or not. Accordingly, both Plaintiff's and Defendants' motions for summary judgment are DENIED.
The Court notes that, on January 17, 2014, Defendants committed to complete adjudication of Plaintiff's petition within 120 days of that date. Mot. at 1. On February 5, 2014, USCIS issued a "Notice of Intent to Deny" Plaintiff's I-130 petition. Defs.' Reply at 1. Under USCIS guidelines, Plaintiff has 30 days to respond, after which USCIS will issue its ruling. Id. at 1. Despite denying both parties' motions for summary judgment, the Court retains jurisdiction over this action. Moreover, the Court invites Plaintiff to file an amended motion for summary judgment after Monday, May 19, 2014 if Defendants fail to keep their promise to resolve the I-130 petition by that date. See Razaq, 2007 WL 61884 at *1 (similarly "invit[ing] petitioners to file an amended motion for summary judgment . . . if the government has failed to keep its promise to resolve [the] outstanding I-130 application").
III. ORDER
For the reasons set forth above, the Court DENIES Defendants' Motion to Dismiss and Motion for Summary Judgment and DENIES Plaintiff's Cross-Motion for Summary Judgment:
IT IS SO ORDERED.
__________
JOHN A. MENDEZ
UNITED STATES DISTRICT JUDGE