The opinion of the court was delivered by: The Honorable Richard A. Jones United States District Judge
HONORABLE RICHARD A. JONES
This matter comes before the court on cross-motions for summary judgment (Dkt. ## 33, 34). Neither party has requested oral argument. For the reasons stated below, the court DENIES Mr. Singh's motion (Dkt. # 33), and GRANTS Defendants' motion (Dkt. # 34) in part and DENIES it in part.
Plaintiff Nirmal Singh is a native of India who has resided lawfully in the United States since at least 1999, when he was granted asylum. In February 2001, he filed an I-485 application to adjust his immigration status to "lawful permanent resident."
For reasons that the court will soon discuss in detail, United States Citizenship and Immigration Services ("USCIS")*fn1 took no action on his application for many years. In July 2007, Mr. Singh filed this suit to compel adjudication of his application. In October 2007, USCIS issued a notice of its intent to deny Mr. Singh's application based on his alleged provision of aid to an Indian group known as Damdami Taksal. According to the notice, USCIS deemed Damdami Taksal to be a terrorist organization. On February 20, 2008, with cross-motions for summary judgment pending, USCIS denied Mr. Singh's application because of his involvement with Damdami Taksal. Mr. Singh agreed that USCIS's actions mooted his request to compel an adjudication of his application, but he sought leave to amend his pleadings to add a claim challenging the denial of his application. The court granted leave on May 21, 2008. Mr. Singh filed an amended complaint naming Mr. Heinauer, USCIS Director Emilio Gonzales, and Michael Chertoff, Secretary of the Department of Homeland Security ("DHS"), as Defendants.
On April 29, 2008, USCIS unilaterally reopened Mr. Singh's adjustment application in response to a March 26, 2008 top-level memorandum directing the reopening of all immigrant petitions that USCIS had denied based on providing material aid to terrorist organizations. Dkt. # 34, Ex. A (Mar. 26, 2008 memo). The memo explained that recent statutory changes expanded USCIS's discretion to grant relief in cases where an immigrant applicant had involvement with certain terrorist organizations. The memo directed USCIS adjudicators to withhold decisions on any applications that might benefit from the statutory changes, and to reopen any applications adjudicated after December 2007. All such applications were to be placed on hold pending further guidance from the DHS Secretary regarding policy changes in light of the statutory changes. Mr. Singh's application is "on hold" in accordance with the March 2008 memo. Supp. Heinauer Decl. (Dkt. # 35) ¶ 6.
There is no evidence that USCIS has decided whether to implement policy changes that might benefit Mr. Singh. There is no evidence that USCIS or DHS has implemented any policy changes as promised in the March 2008 memo. There is no evidence regarding when USCIS will make a decision on any policy changes. Indeed, the only evidence regarding the status of the policy changes comes from Mr. Heinauer, who states only that decisions "are being made at the highest level of DHS after careful consideration of all relevant factors . . . ." Supp. Heinauer Decl. ¶ 7. No one with personal knowledge has provided any information regarding the status of the forthcoming DHS policy changes. Mr. Singh's application for adjustment of status remains reopened and on hold. In the interim, he remains subject to travel limitations, work authorization requirements, and other regulations that do not apply to lawful permanent residents. Supp. Heinauer Decl. ¶ 8.
Before the court are two motions for summary judgment. Mr. Singh asks the court to compel Defendants to immediately adjudicate his application. Defendants ask the court to dismiss his complaint for lack of subject matter jurisdiction, or, alternatively, to decline to compel adjudication of his application.
The court has addressed motions to compel adjudication of immigrant adjustment of status applications in several prior orders. First, in Amirparviz v. Mukasey, No. C07-1325RAJ, 2008 U.S. Dist. LEXIS 7964 (W.D. Wash. Feb. 4, 2008), the court rejected the government's contention that the court lacks subject matter jurisdiction in actions to compel adjudication of adjustment of status applications. The court has reiterated that holding in several decisions. E.g., Huang v. Mukasey, No. C07-132RAJ, 2008 U.S. Dist. LEXIS 10659 (W.D. Wash. Feb. 12, 2008), Hong Wang v. Chertoff, 550 F. Supp. 2d 1253 (W.D. Wash. 2008), Ali v. Mukasey, No. C07-1030, 2008 U.S. Dist. LEXIS 18171 (W.D. Wash. Mar. 7, 2008). Although Defendants adhere to their contention that the court lacks subject matter jurisdiction, they concede that they raise no new arguments. The court holds that it has subject matter jurisdiction in this action for all of the reasons stated in Amirparviz. 2008 U.S. Dist. LEXIS 7964, at *5-11.
In Amirparviz and other cases cited in the previous paragraph, the court concluded that the government's long and inexplicable delay in adjudicating the adjustment of status applications justified an award of mandamus relief. In each of those cases, the government attributed its delay to delays in processing the "name check" portion of the required investigation into the applicant's background. The government failed to offer any individualized evidence explaining why each applicant's name check had been delayed. The government also failed to offer any evidence as to when each applicant could expect adjudication. The court, after considering the six "TRAC factors" and other considerations relevant to its discretionary mandamus authority, found that the adjudication delays in those cases were unacceptable and ordered relief. E.g., Huang, 2008 U.S. Dist. LEXIS 10659, at *19-20 (three-year delay), Hong Wang, 550 F. Supp. 2d at 1254, 1260 (three-year, two-month delay), Ali, 2008 U.S. Dist. LEXIS, at *2, *13 (four-year delay).
Mr. Singh has been waiting more than seven years for adjudication of his application, substantially longer than any of the plaintiffs in prior cases the court has considered. Despite that long wait, however, there are important differences in the circumstances surrounding his application. First, much of the USCIS's delay was not merely justified, it was legally mandated. All parties concede that from 2001 to May 2005, USCIS could not adjudicate Mr. Singh's application because of a statutorily-mandated 10,000-per-year cap on the number of asylees who could become lawful permanent residents. Mr. Singh was thus forced to wait while older asylee applications were adjudicated. No one argues that USCIS could have taken action on Mr. Singh's application until Congress lifted the numerical cap in May 2005. It was not until October 2007, almost two and a half years after the cap was ...