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Orlov v. Howard

December 10, 2007


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Alexei G. Orlov, a citizen of the Russian Federation, brings this action against Phyllis A. Howard, District Director of the Washington Field Office of the U.S. Citizenship and Immigration Services; Emilio T. Gonzalez, Director of the U.S. Citizenship and Immigration Services; Michael Chertoff, Secretary of the U.S. Department of Homeland Security; and Robert S. Mueller, Director of the Federal Bureau of Investigation. Plaintiff asks this Court to compel defendants to adjudicate without further delay his pending Form I-485 application for an adjustment of immigration status to become a lawful permanent resident. Currently before the Court is defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Upon careful consideration of the motion and the parties' memoranda, the applicable law, and the entire record, the Court will grant defendants' motion.


Plaintiff came to the United States in 1993 with a J-1 student visa. Compl. ¶ 10. In 2001, he married a U.S. citizen, Dr. Kristin K. Froemling, and in 2003, plaintiff's wife filed with the Washington Field Office of the U.S. Citizenship and Immigration Services ("USCIS") a Petition for an Alien Relative (Form I-130) along with plaintiff's Application to Register Permanent Residence or Adjust Status (Form I-485). Id. USCIS issued a receipt notice for plaintiff's application dated March 27, 2003. Id.

According to the declaration of Susan P. Dibbins, Field Office Director of the Washington District Office of USCIS, after an alien applies for an adjustment of status, USCIS conducts a number of investigations to ensure that the alien is not a risk to national security and that the alien is eligible for the benefit sought. See Decl. of Susan P. Dibbins ¶ 1. In addition to record checks against the Department of Homeland Security ("DHS") immigration systems, "these background checks currently include (a) a Federal Bureau of Investigation ("FBI") fingerprint check for relevant criminal history records on the alien (e.g., arrests and convictions);

(b) a check against the DHS-managed Interagency Border Inspection System ("IBIS") that contains records and 'watch list' information from more than twenty federal law enforcement and intelligence agencies; and (c) an FBI name check, which is run against FBI investigative databases containing information that is not necessarily revealed by the FBI's fingerprint check or IBIS." Id. According to Dibbins, "[n]o immigration benefit (e.g., adjustment of status, naturalization/U.S. citizenship) is granted unless and until all the above-required background checks have been completed and resolved." Id.

Fingerprint checks for plaintiff were submitted to the FBI on May 7, 2003, and USCIS received the results on May 8, 2003. Id. ¶ 9. Because these fingerprint checks "expire" every fifteen months, USCIS submitted additional fingerprint requests to the FBI on December 14, 2004, and on March 1, 2006, and received results for each submission. Id. At the time of the parties' filings, the third set of fingerprint checks was set to expire on June 1, 2007, so plaintiff was issued a fingerprint appointment for August 14, 2007. See Supp. Decl. of Susan P. Dibbins ¶ 2.

Regarding the IBIS checks, USCIS represents that such checks were initiated on plaintiff on July 20, 2005, and on May 1, 2007, and both checks have been concluded. See Decl. of Susan P. Dibbins ¶ 10. Thus, the main outstanding item relating to plaintiff's application is the FBI name check. USCIS submitted the original name check request to the FBI on May 5, 2003, and USCIS is still awaiting the results of this investigation. Id. ¶ 11. In Dibbins' declaration, she attests that "[u]pon receipt and analysis of the results of the pending security checks, USCIS will continue to review Mr. Orlov's adjustment application and complete its adjudication as expeditiously as possible under the circumstances." Id. ¶ 12.

Believing USCIS has unreasonably delayed the adjudication of his adjustment of status application, plaintiff filed with this Court a verified complaint for mandamus and a declaratory judgment, seeking to "compel the Defendants and those acting under them to take all appropriate action to adjudicate the Plaintiff's Application to Adjust Status to Lawful Permanent Resident (Form I-485) without further delay." Compl. ¶ 1. Defendants have now moved to dismiss this action for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Defendants argue that the Immigration and Nationality Act ("INA") "divests courts of jurisdiction over suits where, as here, the Plaintiff seeks judicial review of either an agency's discretionary decision or action, INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii)"; that "mandamus may not issue here because the Plaintiff lacks a clear right to an immediate adjudication of the application to adjust status"; and that "the APA precludes judicial review of an agency's discretionary decisions." Defs.' Mot. to Dismiss at 9-10. As discussed below, this Court agrees that it lacks jurisdiction over plaintiff's complaint.


"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Therefore, the factual allegations must be presumed true, and plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the Court need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court --plaintiff here -- bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). "'[P]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.1992).

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court is mindful that all that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. ___, 127 S.Ct. 2197, 2200 (2007) (per curiam). "A Rule 12(b)(6) motion tests the legal sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Thus, the complaint's "[f]actual allegations must be enough to raise a ...

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