The opinion of the court was delivered by: Wayne R. Andersen District Judge
MEMORANDUM OPINION AND ORDER
This matter comes before the court on defendants' motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the motion is denied.
Plaintiffs filed a writ of mandamus to compel the U.S. Citizenship and Immigrations Services ("USCIS") to adjudicate plaintiffs' Form I-485 Applications for Adjustment of Status. The applications were filed in January 2003, but have not been adjudicated by USCIS because the required background and name checks have not been completed. Plaintiff Khelashvilli bases his application on an approved Labor Certification and an approved I-140 Immigrant Petition for Alien Worker. As an Assistant Research Professor of Physics at the Illinois Institute of Technology, his application also falls within the EB-2 employment category. Plaintiff Cholokava filed her petition as a derivative beneficiary based upon her marriage to Khelashvilli. The couple lives in Chicago, Illinois with their daughter who was born in the United States.
Defendants have moved to dismiss for failure to state a claim and/or lack of subject matter jurisdiction. They contend that plaintiffs have no clear right to relief and that federal courts have no authority to review this matter. Plaintiffs argue that jurisdiction exists pursuant to 28 U.S. C. § 1331 (arising under federal law, namely the Administrative Procedures Act ("APA"), 5 U.S.C. § 555) and the Mandamus Act, 28 U.S.C. § 1361. Even if the court finds that jurisdiction could be conferred by these statutes, the defendants also argue that it is removed by the jurisdiction provision of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), 8 U.S.C. § 1252(a)(2).
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court must accept all well-pleaded allegations in the complaint as true, and draw all reasonable inferences in a light favorable to the plaintiff. Jackson v. E.J. Brach Corp., 176 F.3d 971, 978 (7th Cir. 1999). A complaint must describe the claim with sufficient detail as to give the defendants "fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Further, the "allegations must plausibly suggest that the defendant has a right to relief, raising that possibility above a 'speculative level.'" EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007) (citing Bell Atlantic, 127 S.Ct. at 1965).
The standard for resolving a motion for lack of subject matter jurisdiction under Rule 12(b)(1) differs from a Rule 12(b)(6) motion to dismiss only in that the court is not limited to the jurisdictional contentions asserted in the complaint, but may consider other evidence submitted to determine whether subject matter jurisdiction exists. Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995).
I. Jurisdiction is conferred by the APA and the Mandamus Act
District courts have "jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. "Mandamus relief will be granted if the plaintiff can demonstrate that the three enumerated conditions are present: (1) a clear right to the relief sought; (2) that the defendant has a duty to do the act in question; and (3) no other adequate remedy is available." Iddir v. INS, 301 F.3d 492, 499 (7th Cir. 2002) (citing Scalise v. Thornburgh, 891 F.2d 640, 648 (7th Cir. 1989)). In other words, mandamus cannot be used to compel or review discretionary actons. Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir.1983)
The APA provides 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." 5 U.S.C. § 555(b). The court is empowered to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706. To invoke jurisdiction under the APA, plaintiffs must show that the agency (1) had a non-discretionary duty to act and (2) unlawfully withheld or unreasonably delayed acting on that duty.Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63-65 (2004); Liu v. Chertoff, No. 06-2808, 2007 WL 2023548, *3 (E.D. Cal. Jul.11, 2007).
Both the Mandamus Act and the APA require the court to decide whether the USCIS had a non-discretionary duty to adjudicate plaintiffs' applications for adjustment of status. The Immigration and Nationality Act authorizes "the Attorney General, in his discretion and under such regulations as he may prescribe," to adjust to permanent residence status certain aliens who have been admitted into the United States. 8 U.S.C. § 1255(a). From the plain language of the statue, it is undisputed that the decision whether to grant or deny an application for adjustment of status is discretionary. The issue in this case is whether the adjudication of those applications is also discretionary.
Although we acknowledge that a number of courts have found no duty to process applications under 8 U.S.C. § 1255(a)*fn1 , in the absence of authority from the Seventh Circuit or Supreme Court, we are persuaded by the reasoning of an equal number of courts finding in favor of subject matter jurisdiction and a non-discretionary duty to adjudicate. See e.g. Liu v. Chertoff, No. 06-2808, 2007 WL 2023548, *3 (E.D. Cal. Jul. 11, 2007); Lei Xu v. Chertoff, No. 07-366, 2007 WL 2033834, (D.N.J. 2007); Saleem v. Keisler, No. 2007 WL 3132233 (W.D. Wis. Oct. 26, 2007); Hoyoung Song v. Klapakas, No. 06-05589, 2007 WL 1101283 (E.D. Pa. Apr. 12, 2007); Guangming Liu v. Chertoff, No. 06-3297, 2007 WL 1202961 (C.D. Ill. Apr. 23, 2007); Paunescu v. INS, 76 F. Supp. 2d 896, 901 (N.D. Ill. 1999). These courts have held that the USCIS has a non-discretionary duty to adjudicate adjustment applications and that this duty supports a mandamus action. Lei Xu v. Chertoff, 2007 WL 2033834, at *3 (citing Song v. Klapakas, 2007 WL 1101283, at *3). Without mandamus relief, USCIS could choose to fail to process applications indefinitely, leaving applicants in "a state of limbo" and without recourse. Pool v. Gonzales, No. 07-258, 2007 WL 1613272, *2 (D.N.J. Jun. 1, 2007). The court, therefore, finds that the plaintiffs have properly ...