The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court
MEMORANDUM OPINION AND ORDER
Hon. Harry D. Leinenweber
Before the Court is Defendant's Motion to Dismiss pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief may be granted. For the following reasons, the Motion is denied.
Plaintiff Anita Catlan Camerena (hereinafter, "Camerena" or "Plaintiff") filed a Writ of Mandamus to compel the United States Citizenship and Immigration Services ("USCIS"), part of the Department of Homeland Security, to adjudicate her Form I-485 application for adjustment of status. Camerena bases jurisdiction on the Mandamus Act, 28 U.S.C. § 1361, and 28 U.S.C. § 1331 in conjunction with the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 701-706. See Compl. ¶ 1, 10. Camerena entered the United States on August 7, 2001 on a J1 visa. Compl. ¶ 3. She married her husband, Michael, on August 10, 2004. In September 2004, she filed an Application to Adjust Status, and her husband filed an I-130 Petition for Alien Relative on her behalf. Compl. ¶ 6. Camerena and her husband completed an interview with USCIS on April 19, 2005. Id. Camerena has been making inquiries regarding her application since then, but USCIS has yet to adjudicate her pending application. Compl. ¶¶ 8-9.
Defendant seeks to dismiss for failure to state a claim and lack of subject matter jurisdiction. Defendant contends that because the decision whether to adjust status is discretionary, Plaintiff has no clear right to relief under the Mandamus Act and 8 U.S.C. § 1252(a)(2)(B)(ii) strips the federal courts of jurisdiction to review the pace at which USCIS processes adjustment of status applications. Def.'s Mot. to Dismiss at 1.
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court accepts all well-pleaded allegations in the complaint as true and draws all reasonable inferences in a light favorable to the plaintiff. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). To avoid dismissal, the "allegations must plausibly suggest that the defendant has a right to relief, raising that possibility above a 'speculative level.'" E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citing Bell Atlantic, 127 S.Ct. at 1965).
A. Stating a claim under the Mandamus Act and the APA
Defendant argues that there is no clear right to relief under the Mandamus Act and no review pursuant to 5 U.S.C. § 701(a) because the ultimate decision whether to grant or deny an application for adjustment of status is discretionary. See Def.'s Mot. to Dismiss at 3, 6-8. While the ultimate decision whether to adjust status is discretionary, see 8 U.S.C. § 1255(a) ("The status of an alien . . . 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. . . .") (emphasis added), the question here is whether making a decision within a reasonable time -- or at all -- is also discretionary. No circuit court has spoken on this issue, and district courts around the country are divided. Compare, e.g., Grinberg v. Swacina, 478 F.Supp.2d 1350 (S.D. Fla. 2007) (holding that the pace of adjudication of adjustment of status applications is discretionary and not subject to judicial review); Li v. Chertoff, 482 F.Supp.2d 1172 (S.D. Cal. 2007) (same); Safadi v. Howard, 466 F.Supp.2d 696 (E.D. Va. 2006) (same) with He v. Chertoff, ___ F.Supp.2d ___, 2008 WL 36634 (N.D. Ill. Jan. 2, 2008) (holding that USCIS owes a non-discretionary duty to adjudicate applications within some reasonable time); Khelashvili v. Dorochoff, No. 07 C 2826, 2007 WL 4293634 (N.D. Ill. Dec. 6, 2007) (same); Tang v. Chertoff, 493 F.Supp.2d 148 (D. Mass. 2007) (same); Saleem v. Keisler, ___ F.Supp.2d ___, 2007 WL 3132233 (W.D. Wis. Oct. 26, 2007) (same); Agbemaple v. I.N.S., No. 97 C 8547, 1998 WL 292441 (N.D. Ill. May 18, 1998) (same).
The Court is persuaded that the adjudication of adjustment of status applications within some reasonable amount of time is not discretionary and that Plaintiff has stated a claim under the Mandamus Act and the APA.
Under the Mandamus Act, district courts have "original 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. I.N.S., 301 F.3d 492, 499 (7th Cir. 2002); see also, Ahmed v. Department of Homeland Security, 328 F.3d 383, 386-87 (7th Cir. 2003) ("A conclusion that only one of those prerequisites is missing should lead the district court to deny the petition, not ...