CASES OF INTEREST click here to go back to the Cases of Interest         IMMIGRATION: MANDAMUS ISSUES ISSUE: Jurisdiction under Mandamus statute, 28 U.S.C. § 1361, APA , 5 U.S.C. § 706(1), federal question statute, 28 U.S.C. § 1331,   Issue: Issue: adjudication of I485 application     ISSUE: Jurisdiction under Mandamus statute, 28 U.S.C. § 1361, APA , 5 U.S.C. § 706(1), federal question statute, 28 U.S.C. § 1331, In re AGHA RAZA ALI, v. MICHAEL CHERTOFF, et al., Defendants. UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, ALEXANDRIA DIVISION1:07cv470 (JCC) 2007 U.S. Dist Q.1.When does the 120-day counting time for adjudication commence after a Naturalization petition interview, under 8 U.S.C.S. § 1447(b)? Q.2. Does a failure to adjudicate trigger the District Court's subject matter jurisdiction? Fed. R. Civ. P. 12(b)(1) A. Yes. The controlling jurisdictional statute, 8 U.S.C. § 1447(b) provides a district court with jurisdiction to either compel agency action on a naturalization application, or to adjudicate an application when "there is a failure to make a determination under § 1446 of [Title 8] before the end of the 120-day period after the date on which the examination is conducted." 8 U.S.C. § 1447(b). Since CIS is precluded by 8 U.S.C. § 1446 from granting applications until the background checks are completed, the Court remanded Plaintiff's matter back to CIS and directed that agency to make a decision on the application within a reasonable time after the background check has been completed. In 1991, the minor plaintiff was injured on board the appellant vessel while it was steaming in international waters. Plaintiffs. Indian nationals, sought medical assistance in New York and overstayed their temporary visas. In 1992 plaintiffs sued appellants in federal court in New York under the court's admiralty jurisdiction, then transferred the action to the Eastern District of Pennsylvania, when the vessel was docked at the Port of Philadelphia in October 1992. The Court did not specify the time frame for adjudication to discourage use of the judicial system to "jump to the front of the line" and interfere with fair and thorough processing of applications and background checks.   In re SYED KARIMUSHAN, ET AL. v. MICHAEL CHERTOFF, ET AL. CIVIL ACTION NO. 07-2995 2007 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Q. Does the district court have jurisdiction to consider the merits of the plaintiff's claims? A. Plaintiff's filed action against the Department of Homeland Security, CIS and the FBI, seeking an order requiring the FBI to complete checks and requiring CIS to adjudicate his naturalization application. CIS had not adjudicated plaintiff's citizenship application for 18 months because the FBI had not issued result of its background checks. The court agreed with the Plaintiffs' assertion that the district court had jurisdiction under both the mandamus statute, 28 U.S.C. § 1361, and the APA in conjunction with the federal question statute, 28 U.S.C. § 1331, to consider whether Defendants had violated section 706(1) of the Administrative Procedures Act ("APA"), 5 U.S.C. § 706(1), and are subject to an order in mandamus, because they have unlawfully withheld and unreasonably delayed required agency action. back to the top   Issue: adjudication of I485 application choice of forum   DEEPAKKUMAR HIMATLAL SONEJI and KINNARI DEEPAKKUMAR SONEJI, Plaintiffs, v. Department of Homeland Security, MICHAEL CHERTOFF, Secretary; Federal Bureau of Investigation, ROBERT MUELLER, Director; U.S. Attorney General, ALBERTO GONZALES; U.S. Citizenship and Immigration Services, ROBERT DIVINE, Acting Director; U.S. Citizenship and Immigration Services Nebraska Service Center, GERARD HEINAUER, Director, Defendants. Case No. 07-2290 SC UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Q. A. Facts: Plaintiffs' Applications have been pending for more than 3 and one half years USCIS is presently unable to adjudicate Plaintiffs' I-485 applications because it has not yet received the results of [Mr.] Deepakkumar Soneji's FBI name check the Court has jurisdiction under both the APA. and the Mandamus Act. 2. Administrative Procedure Act, 5 U.S.C. § 701 For federal question jurisdiction under the APA, Plaintiffs must show that Defendants unreasonably delayed in processing their applications. See 5 U.S.C. § 555(b) Section 55(b) of the APA states: "With 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) Thus, the Court finds that Defendants are required to adjudicate Plaintiffs' application within a reasonable time. Accordingly, the Court finds that Defendants have a nondiscretionary duty to adjudicate Plaintiffs' Applications and this duty must be undertaken within a reasonable amount of time. Therefore, the Court has jurisdiction to consider Plaintiffs' Petition pursuant to the APA. 3. Mandamus Act, 28 U.S.C. § 1361 Relief under the Mandamus Act is "available to compel a federal officer to perform a duty if: (1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available." For the foregoing reasons the Court finds that Plaintiffs have satisfied the requirement's to bring a mandamus action. Thus, the Court finds that it has, jurisdiction under the Mandamus Act. back to the top