provides:

Notwithstanding any other provisions of law, no court shal! have jurisdiction to review . .

. any judgment regarding the granting of relief under section . . . 1255 [governing

adjustment of status] or this title.

Id. In response, Krishnamoorthy correctly argues that §242 only precludes judicial review of
discretionary decisions. Liu v. INS, 274 F.3d 533, 535 (D.C. Cir. 2001).

Here, the basis for INS’s denial of Krishnamoorthy’s application was the automatic
revocation of approval of Utek’s visa petition for him pursuant to 8 C.F.R. §205(a)(3)(C)(iii)."
Because Utek withdrew its petition after Krishnamoorthy stopped working for it, the petition was
automatically revoked as of its filing date. Accordingly, the Service Center denied
Krishnamoorthy’s application. Krishnamoorthy seeks review on the ground that INS failed to
adjudicate the application in accordance with §204(j) of the INA. Section 204(j) states:

A petition under subsection (a)(1)(D) of this section for an individual whose application

for adjustment of status pursuant to section 1255 of this title has been filed and remained.

unadjudicated for 180 days or more shall remain valid with respect to a new job if the
individual changes jobs or employers if the new job is in the same or a similar
occupational classification as the job for which the petition was filed.

8 U.S.C. § 1154()).

Nothing in the record demonstrates that INS officials considered the effect of §204(j) on

Krishnamoorthy’s application. In fact, the decision denying his Motion to Reconsider expressly

Under this provision, automatic revocation of approval of a petition occurs if:

any of the following circumstances occur before the beneficiary’s journey to the
United States commences or before the decision on his adjustment of status
application becomes final . . . upon written notice of withdrawal filed by the
petitioner, in employment-based preference cases, with any officer of the Service
who is authorized to grant or deny petitions.



F.2d 781, 783 (7th Cir. 1979). In such a situation, I “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.” Capitol Leasing, 999 F.2d at 191;
Grafon, 602 F.2d at 783. “In cases where the jurisdiction of the court is challenged as a factual
matter, the party invoking jurisdiction has the burden of supporting the allegations of
jurisdictional facts by competent proof.” Id.

The employment based permanent resident application process consists of three distinct
steps. First, the employer must obtain a certified alien Labor Certification from the Department
of Labor establishing that there are no qualified U.S. workers for the open position. Once the
Labor Certification is certified, the sponsoring employer may file an I-140 Immigrant Petition
with the Service requesting that the alien be classified as eligible to apply within a specified visa
preference category. See 8 U.S.C. § 1154. This petition must be made by the employer, not the
employee, see 8 C.F.R. §204.5(c)(2000), and it is the employer who is informed of the decision
on the visa and given the right to appeal if the visa is denied, see 8 C-F.R. §204.5(n)(2000). If
the petition is approved, the alien may then apply for adjustment of status to that of a lawful
permanent resident. See 8 C.F.R. §245.1(a), 8 U.S.C. § 1255(a).

As discussed above, pursuant to these procedures, Krishnamoorthy filed an application
for an adjustment of status, which INS subsequently denied. Krishnamoorthy seeks judicial
review of the denial, but defendants claim that §242(a)(2)(B)(i) of the Immigration and
Nationality Act (INA) divests this court of jurisdiction to review it because it constitutes a

“judgment regarding the granting of relief.” 8 U.S.C. § 1252(a)(2)(B)(i). Section 242(a)(2)(B)(i)


notes that INS believed that §204(j) could not, “in the absence of regulatory guidance or
instructive policy memoranda, be applied in the instant matter.” Therefore, the denial of
Krishnamoorthy’s application was not a matter of administrative discretion and is thus subject to
judicial review. By way of analogy, this situation is similar to the one in Jddir v. INS, 166
F.Supp.2d 1250, 1255 (N.D. Ill. 2001), in which the court noted that “[t]he jurisdictional
language in Section 242 does not divest this court of jurisdiction in the case of an administrative
oversight or delay, which causes the INS, in essence, to lose the power to adjudicate the
application.” As in Jddir, Krishnamoorthy seeks to point out an administrative oversight by INS,
namely its refusal to adjudicate his application in accordance with §204(j). As such, §242 does
not preclude review. See also, Paunescu y. INS, 76 F.Supp.2d 896, 900 (N.D. Ill. 1999).

Although §242 does not preclude judicial review, Krishnamoorthy must still identify a
basis for jurisdiction here. Fed.R.Civ.P. 8(a); Whitmire v. Victus Ltd., 212 F.3d 885, 887 (Sth
Cir. 2000). He has raised mandamus jurisdiction as one possible basis. Pursuant to 28 U.S.C.
§ 1361, “[t]he district courts shall 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.” In order to qualify for mandamus relief, a plaintiff must
show that: (1) he has a clear right to the relief sought; (2) the defendant has a clear duty to
perform; and (3) no other adequate remedy is available. Blaney v. U.S., 34 F.3d 509, 513 (7th
Cir. 1994).

The relief sought in this case is the adjudication of Krishnamoorthy’s applications for
adjustment of status in accordance with §204(j). Courts in this district have already held that “a

petitioner has a right to adjudication of .. . [an] adjustment of status application{] and that INS



Minuve Order Forms (06/97)

United States District Court, Northern District of Hlinois

Name of Assigned Judge James B. Zagel Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 03 C 415 DATE 5/20/2003
CASE KRISHNAMOORTHY vs. RIDGE
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) a Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) O Answer brief to motion due. . Reply to answer brief due
(4) a Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference(held/continued to] [set for/re-set for]on____—s set for___ at
(7) ia) Trial[set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continued to at _
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
COFRCP4(m) OlLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2)
qo) [Other docket entry] Motion (3-1) to dismiss is denied. Motion (6-1) for summary judgment
is denied.
(1) [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
Number
No notices required. ;
uber of notices
Notices mailed by judge’s stat". MAY 28 2003
Notified counsel by telephone. ge docketed
Y | Docketing to mail notices.
Mail AO 450 form. LMU.
Copy to judge/magistate judge. ‘ 5 - nw
eo way 28 2h
5 dave maited notice
courtroom - H jie
pw deputy’s CS j
initials
Date/lime recéived in, .
gentral Clerk's Office, wt smaling deputy ina
toe


has a corresponding duty to adjudicate these applications.” Setharatsomphou v. Reno, No. 99 C
0836, 1999 WL 755292, at *4 (N.D. ILL. Sept. 27, 1999) (citation omitted). This duty is
mandatory, not discretionary. See Paunescu, 76 F.Supp.2d at 901. Furthermore, to be
meaningful, INS must adjudicate applications in accordance with governing statutes, including
§204(j). Therefore, INS has a clear duty to adjudicate Krishnamoorthy’s application in
accordance with §204(j), but it has not done so. Finally, as both parties acknowledge, no other
adequate remedy is available to Krishnamoorthy. Therefore, mandamus jurisdiction exists to
compel INS to adjudicate Krishnamoorthy’s application in accordance with §204(j). See Iddir,
166 F. Supp. at 1255. Paunescu, 76 F.Supp.2d at 901. In addition, from the foregoing analysis
concluding that mandamus jurisdiction exists, it is clear that Krishnamoorthy has sufficiently
stated a claim for mandamus. Accordingly, the motion to dismiss for failure to state a claim

upon which relief can be granted is also denied.

For the reasons above, Ridge and Way’s Motion to Dismiss the Complaint for Mandamus
is DENIED and Krishnamoorthy’s Motion for Summary Judgment is DENIED for failure to

comply with Local Rule 56.1.

ENTER:

ame B. Zagel / 0
Uniféd States DistricfJud,

DATE: 29 Wry COG



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SUBASH KRISHNAMOORTHY,
Plaintiff,

v. No. 03 C 0415

Judge James B. Zagel
Homeland Security, and TERRY E. WAY, qo p
Bureau of Citizenship and Immigration E ao
Services, Director, Nebraska Service Center,
MAY 2 8 2003

TOM RIDGE, Secretary, Department of

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Subash Krishnamoorthy is a native and citizen of India who last entered the
United States on January 23, 2000 as a temporary worker with a valid Hi-B employment visa.
Prior to this last entry, however, Krishnamoorthy, through his employer, Utek, Inc., sought an I-
140 visa petition for permanent employment as a foreign national. The United States Department
of Labor certified the employment position as a software engineer for Utek, and the Immigration
and Naturalization Services (INS) approved the petition filed by Utek. Based upon this approved
petition, Krishnamoorthy then filed an application for adjustment of status form I-485 with INS
on July 21, 2000, Subsequently, Krishnamoorthy left his job at Utek in February, 2001, and went
to work for Gluon Network, Inc. on March 19, 2001, two hundred and forty-one days after filing
his application. After he left, Utek revoked the I-140 visa petition, but Gluon never filed a
petition for Krishnamoorthy, who apparently only worked there until May 21, 2001. On July 11,
2001, INS denied Krishnamoorthy’s application based on the fact that the visa petition had been

revoked. INS denied Krishnamoorthy’s subsequent Motion to Reopen and Reconsider based



upon the fact that the petition was revoked and that the “portability under Section 106(c) or the
American Competitiveness in the 21st Century Act,” claimed by Krishnamoorthy, could not, “in
the absence of regulatory guidance or instructive policy memoranda, be applied in the instant
matter.” Krishnamoorthy then changed jobs again and began working on March 28, 2002, for
AT&T Voice Data Systems, where he is currently employed. No petition has been filed for
Krishnamoorthy by AT&T.

Krishnamoorthy has filed this suit for mandamus relief requesting that this Court take
jurisdiction over the matter, declare INS’s denial of his application for adjustment of status to be
arbitrary and capricious, and compel defendants Tom Ridge, Secretary, Department of Homeland
Security, and Terry Way, Bureau of Citizenship and Immigration Services, Director, Nebraska
Service Center to favorably adjudicate his application. Defendants move to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim
upon which relief can be granted. In response to their motion, Krishnamoorthy moves for
summary judgment.

Defendants first argue that there is no subject matter jurisdiction to review INS’s denial
of Krishnamoorthy’s application for adjustment of status. In ruling on a motion to dismiss for
lack of subject matter jurisdiction, I must accept as true all well-pleaded factual allegations and
draw all reasonable inferences in favor of the plaintiff. Capitol Leasing Co. v. FDIC, 999 F.2d
188, 191 (7th Cir. 1993). However, I am not required to accept as true those allegations “which
tend to establish jurisdiction where a party properly raises a federal question concerning the

jurisdiction of the district court to proceed with the action.” Grafon Corp. v. Hausermann, 602