The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendants' (collectively referred to as "Government") combined motion to dismiss and motion for summary judgment. For the reason stated below, the Government's combined motion is granted in its entirety.
Plaintiff Fadil Nuredini (Nuredini) is a native and citizen of Kosovo (formerly the Republic of Yugoslavia and Serbia-Montenegro). In 2003, Nuredini entered the United States using a passport containing an assumed name and identity. In December 2006, an immigration judge granted Nuredini's request for asylum. In December 2007, Nuredini filed a Form I-485, Application to Register Permanent Residence or Adjust Status (Adjustment Application). The Government contends that the required background and name checks were completed by the Government in January 2008. Subsequently, United States Citizenship and Immigration Services (USCIS) placed the Adjustment Application on administrative hold and the application remains pending.
The Government contends that the Adjustment Application is not being delayed because of background and security checks. The Government asserts that Nuredini indicated in his asylum application that he was trained as a military sniper by the Armed Forces of Kosovo (FARK) and Nuredini admitted to participating in armed combat in 1998 and 1999 against the Serbian government forces and to killing Serbian soldiers. According to the Government, based on the violent activities and objectives of FARK, USCIS determined that FARK meets the definition of a Tier III undesignated terrorist organization. The Government asserts that if USCIS was required to complete the adjudication of the Adjustment Application today, the application would be denied based on terrorism-related inadmissibility grounds. The Government also indicates that the Secretary of the Department of Homeland Security (Secretary) has discretionary authority to exempt certain Tier III groups or individuals when appropriate, but that to date, no exemption is in place for FARK or Nuredini. The Government contends that the Adjustment Application remains on hold in accordance with agency policy pending future exemption-related guidance. Nuredini brought the instant action pursuant to the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedures Act, 5 U.S.C. § 551 et sq. to compel the Government to adjudicate the Adjustment Application. The Government now moves to dismiss this action for lack of subject matter jurisdiction, arguing that the decision to place Nuredini's Adjustment Application on hold is an unreviewable discretionary determination. The Government also moves in the alternative for summary judgment, arguing that the delay of processing the Adjustment Application, is as a matter of law, not unreasonable.
Federal Rule of Civil Procedure 12(b)(1) (Rule 12(b)(1)) requires a court to dismiss an action when it lacks subject matter jurisdiction. United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942, 946 (7th Cir. 2003). If the concern of the court or party challenging subject matter jurisdiction is that "subject matter jurisdiction is not evident on the face of the complaint, the motion to dismiss pursuant to Rule 12(b)(1) would be analyzed as any other motion to dismiss, by assuming for purposes of the motion that the allegations in the complaint are true." Id.; see also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995)(stating that when reviewing a motion to dismiss brought under Rule 12(b)(1), this court "must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff"). However, if the complaint appears on its face to indicate that the court has subject matter jurisdiction, "but the contention is that there is in fact no subject matter jurisdiction, the movant may use affidavits and other material to support the motion." United Phosphorus, Ltd., 322 F.3d at 946 (emphasis in original). For the purpose of determining subject matter jurisdiction, this court "may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Ezekiel, 66 F.3d at 897 (quoting Capitol Leasing Co. v. Federal Deposit Insurance Corp., 999 F.2d 188, 191 (7th Cir. 1993)). The burden of proof in a Rule 12(b)(1) motion is "on the party asserting jurisdiction." United Phosphorus, Ltd., 322 F.3d at 946.
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A "genuine issue" of material fact in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
The Government argues that this court lacks subject matter jurisdiction in this case because the court lacks jurisdiction to review a discretionary determination by USCIS. The lack of jurisdiction over "[d]enials of discretionary relief," is addressed in 8 U.S.C. § 1252(a)(2)(B), which provides as follows:
Notwithstanding any other provision of law (statutory or non-statutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review - - (i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. 8 U.S.C. § 1252(a)(2)(B)(emphasis added). The decision by USCIS over how and when to adjudicate an adjustment of status application of an asylee is a discretionary determination by the Secretary, which is covered by 8 U.S.C. § 1252(a)(2)(B)(ii). See, e.g., 8 U.S.C.§ 1159(b); 8 U.S.C.§ 1255; 8 U.S.C. § 1182(a); 8 C.F.R. § 209.2.
The Government points out that the Adjustment Application is merely on hold and this case does not represent an instance when the Government has failed to act or has indicated that it will not act in the future. The Government has also listed a series of recent instances when exemptions were issued and the Secretary exercised her exemption for certain individuals whose adjustment applications would otherwise have been denied based on terrorism-related inadmissibility grounds. (Mot. 10 n.4). The Government contends that such exemptions show that the delay in the Adjustment Application for Nuredini will not be an indefinite delay as argued by Nuredini. The Government contends that it is fulfilling its duty to act on the Adjustment Application by making the decision to place it on hold, pending the availability of a potential exemption. The Government correctly points out that the mere fact that a final decision has not been made on the Adjustment Application does not show that the Government is failing to exercise its administrative duties. Further, the fact that ...