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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAWAD MOUAWAD,

Plaintiff, Case No. 08-15136

v. Hon. Victoria A. Roberts

DISTRICT DIRECTOR, USCIS DETROIT,

UNITED STATES DEPARTMENT OF 

HOMELAND SECURITY, U.S. ATTORNEY

GENERAL AND FEDERAL BUREAU OF

INVESTIGATION,

Defendants.

_____________________________________________________________________

ORDER

I. INTRODUCTION

This matter is before the Court on the Court’s own Motion to determine whether it

has subject matter jurisdiction. The Court ordered an expedited briefing schedule and

instructed the parties to file briefs specifically addressing the issue of whether “this

matter is the proper subject of a petition for Writ of Habeas Corpus and/or Writ of

Mandamus.” 

II. BACKGROUND

Plaintiff Jawad Mouawad is a 31 year old native and citizen of Lebanon. Plaintiff

was admitted to the United States on or around May 10, 2000, as a non-immigrant

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Artist/Entertainer in a Culturally Unique Program (P3 status). On August 2, 2002, he

married a United States citizen. Plaintiff’s status was adjusted to conditional permanent

resident on December 10, 2003, based on his qualifying marriage. On September 23,

2005, Plaintiff and his wife filed a joint petition, Form I-751, to remove the conditions,

asserting that they were in a bona fide relationship with each other. They missed an

interview on October 12, 2006. On November 1, 2006, Plaintiff and his wife appeared

for a rescheduled interview. They presented evidence and testimony in support of the

joint petition. Plaintiff’s petition has been pending since then.

Defendants suspect that Plaintiff and his wife were not and are not engaged in a

bona fide relationship with each other. Defendants say they requested further evidence

to be submitted within 30 days of Plaintiff’s interview, which they did not receive.

Nearly one year later, on September 18, 2007, the USCIS informed Plaintiff that

it intended to deny the joint petition and gave him an additional 30 days to submit

evidence requested earlier, to overcome the basis of the proposed denial. Additional

information was furnished by letter dated October 17, 2007. 

On December 21, 2007, Plaintiff enlisted into the United States Army Reserves. 

He is scheduled to deploy with his reserve unit on February 25, 2009 and says he can

not ship out unless the conditions on his residence are removed. Plaintiff says he has

postponed his deployment five times while awaiting the results of his I-751 petition. 

This is the final time he can deploy with his unit. However, the original Notice of Action

on Plaintiff’s I-751 petition says that employment and travel are authorized. Thus, it is

unclear whether he cannot deploy due to an army regulation, a personal decision or an

immigration status issue.

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On December 12, 2008, Plaintiff filed this Complaint seeking declaratory,

injunctive, habeas corpus and/or mandamus relief. Plaintiff says the USCIS is in

violation of 8 C.F.R. § 216.4(c) by failing to adjudicate his petition within 90 days of his

interview. Plaintiff asks the Court to compel Defendants to adjudicate his petition by

February 1, 2009 and to grant a writ of habeas corpus so that he can commence

employment with the U.S. military. While Plaintiff attributes the delay in adjudication to

the FBI’s failure to process his name check, Defendants say the delay is a result of their

continuing investigation. Defendants contend there is no mandated time frame for

adjudication of a Form I-751, and Plaintiff’s claims are not the proper subject of a

petition for writ of habeas corpus or mandamus. 

III. STANDARD OF REVIEW

“[F]ederal Courts, being courts of limited jurisdiction, must examine their

subject-matter jurisdiction throughout the pendency of every matter before them.”

Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1419 n. 1 (6th

Cir.1996). “The established rule is that a plaintiff, suing in federal court, must show in

his pleading, affirmatively and distinctly, the existence of whatever is essential to federal

jurisdiction, and, if he does not do so, the court, on having the defect called to its

attention or on discovering the same, must dismiss the case, unless the defect be

corrected by amendment.” Smith v. McCullough, 270 U.S. 456, 459, 46 S.Ct. 338, 70

L.Ed. 682 (1926). "The court has wide discretion to consider materials outside the

complaint in assessing the validity of its jurisdiction." Ohio Nat'l Life Ins. Co. v. United

States, 922 F.2d 320, 325 (6th Cir. 1990).

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IV. CASE LAW AND ANALYSIS

Under the Immigration Marriage Fraud Act of 1986 (“IMFA”), 8 U.S.C. § 1101 et

seq., an alien spouse is only entitled to a two-year conditional status as a lawful

permanent resident. Within 90 days of expiration of the two-year period, an alien and

his citizen spouse can file a joint application to remove the condition on the alien’s

residence and adjust his status. At the end of the two-year probationary period, the

condition is removed after a personal interview with a USCIS official so long as the

marriage is bona fide and has not been terminated. 8 U.S.C. § 1186a.

Plaintiff says Defendants maintain a practice of failing and refusing to: (1) timely

grant or deny adjustment applications; (2) schedule adjustment interviews; (3) notify

adjustment applicants regarding the results of their adjustment interview; and (4) timely

issue a decision on the adjustment applications. With respect to him, Plaintiff says this

conduct constitutes a deprivation of a protected liberty interest, to wit, the right to work

for a living in his chosen profession. 

Plaintiff asserts subject jurisdiction based on: (1) the Federal Question Statute,

28 U.S.C. § 1331; (2) the Mandamus and Venue Act of 1962 (“Mandamus Act”), 28

U.S.C. § 1361; (3) the Habeas Corpus Statute (“Habeas Statute”), 28 U.S.C. § 2241; (4)

the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq., and 5 U.S.C. §

555(b); (5) the Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201 et seq.; and (6) the

Immigration Services and Infrastructure Improvements Act of 2000 (“ISIIA”), 8 U.S.C. §

1571. 

The DJA does not provide an independent basis for subject matter jurisdiction.

Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72, 70 S. Ct. 876, 94 L. Ed.

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1194 (1950). Similarly, the Federal Question Statute and the ISIIA do not provide an

independent basis for jurisdiction. Thus, this Court examines the Mandamus Act, the

APA, and the Habeas Statute for subject matter jurisdiction.

A. Mandamus Act

Mandamus in federal court is governed by 28 U.S.C. § 1361. It provides that

"[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

there-of to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. Mandamus is

intended to provide a remedy only if the plaintiff exhausted all other avenues of relief

and only if the defendant owes the plaintiff a clear nondiscretionary duty. Heckler v.

Ringer, 466 U.S. 602, 617, 104 S. Ct. 2013, 80 L. Ed. 2d 622 (1984). 

Mandamus relief is proper when three conditions are met: (1) the plaintiff has a

"clear and certain claim" to the relief sought, (2) the defendant official has a

"nondiscretionary, ministerial" duty to act "so plainly prescribed as to be free from doubt"

and (3) no other adequate remedy [is] available." Shen v. Chertoff, 494 F. Supp. 2d 592,

595 (E.D. Mich. 2007) (Friedman, J.); see also In re Gregory, 181 F.3d 713, 715 (6th

Cir. 1999) (holding that mandamus should "be invoked only in extraordinary situations

where the petitioner can show a clear and indisputable right to the relief sought and only

in circumstances amounting to a judicial usurpation of power"). 

For purposes of mandamus jurisdiction, the petitioner's allegations, "unless

patently frivolous, are taken as true to avoid tackling the merits under the ruse of

assessing jurisdiction." See Carpet, Linoleum & Resilient Tile Layers, Local Union No.

419 v. Brown, 656 F.2d 564 (10th Cir. 1981), quoted in Ahmed v. Dep't of Homeland

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Security, 328 F.3d 383, 386 (7th Cir. 2003). However, the Mandamus Act generally

does not provide an independent basis for federal jurisdiction. Andrean v. Secretary of

U.S. Army, 840 F. Supp. 1414, 1420 (D. Kan., 1993) (citing Craig v. Colburn, 414 F.

Supp. 185, 193 (D. Kan. 1976). It merely provides a remedy in actions otherwise

properly brought on independent jurisdictional grounds. Id. (citing Udall v. Oil Shale

Corp., 406 F.2d 759 (10th Cir. 1969), rev'd on other grounds, 400 U.S. 48, 91 S. Ct.

196, 27 L. Ed. 2d 193 (1970); Prairie Band of Pottawatomie Tribe of Indians v. Udall,

355 F.2d 364 (10th Cir. 1966), cert. denied, 385 U.S. 831, 87 S. Ct. 70, 17 L. Ed. 2d 67

(1966)). In other words, the duty owed to the plaintiff must arise on an independent

basis that otherwise provides for federal jurisdiction.

There are exceptions to the requirement that federal jurisdiction arises on an

independent basis. In limited situations, mandamus has been held to lie, absent

independent jurisdiction, where the performance of an act is committed to discretion. 

An example is where federal officials fail to act within the zone of their permissible

discretion, but abuse their discretion or otherwise act contrary to law. Davis v. Shultz,

453 F.2d 497, 502-03 (3d Cir. 1971). Another example is where a federal official takes

or fails to take a required action as opposed to a decision taken within the federal

official's discretion. Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir. 1997).

In Davis, supra, the plaintiff appealed a district court judgment dismissing his

complaint for lack of subject matter jurisdiction. He had filed suit on behalf of himself

and 178 other economically disadvantaged youths, to challenge their dismissal from a

summer youth employment and training program implemented under Title I-B of the

Economic Opportunity Act of 1964, 42 U.S.C. § 2737 et seq. The program was

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administered by a local non-profit community agency under contract with the U.S.

Department of Labor. Plaintiff argued the community agency should have been named

as a prime sponsor. Plaintiff said the Secretary of Labor had no discretion to permit the

agency to operate a Title I-B program without a prime sponsor and was obliged to see

that the duties of the prime sponsor were carried out. The court affirmed the dismissal

of the complaint because plaintiff sought to compel an act that was committed to the

Secretary’s discretion, i.e., the naming of a prime sponsor. Moreover, plaintiff did not

claim the Secretary varied from the permissible scope of discretion granted to him but

rather that he disregarded a mandatory duty to appoint a prime sponsor. Since the

court found that no such mandatory duty existed, mandamus relief was not proper.

 By contrast, in Patel, supra, a naturalized U.S. citizen and his East Indian wife

filed a mandamus action to compel the U.S. consulate to make a decision on their

family visa applications, which had been pending for eight years without action. The

INS (predecessor to USCIS) suspected the citizen was naturalized under false

pretenses by marrying an American citizen while still married to his Indian wife, and

began denaturalization proceedings. The consulate held the visa applications in

abeyance pending conclusion of the denaturalization procedures. The court concluded

the consulate had a duty to act, and failed to act in accordance with its duty, because its

provisional refusal of the applications did not fit within the regulatory exception to the

requirement that the consulate either issue or refuse the visa. The court reasoned that

the suspension of applications was authorized upon discovery of fraud or

misrepresentation, but only if the consulate returned the petition to the INS for final

disposition, which it had not done. Consequently, the court issued the writ of

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mandamus and instructed the consulate to render a decision within 30 days. 

There is no controlling Sixth Circuit precedent and the decisions addressing

whether mandamus jurisdiction exists to review claims to adjust status are divergent.

Tang v. Chertoff, No. 07-203-JBC, 2007 U.S. Dist. LEXIS 64022, 2007 WL 2462187 at

3 (E.D. Ky. Aug. 29, 2007). The analysis turns to the requirements for issuance of a Writ

of Mandamus.

1. Right to Relief Sought

Section 1186a of Title 8 of the United States Code provides:

If--

 (I) a petition is filed in accordance with the provisions of paragraph (1)(A),

and

 (ii) the alien spouse and petitioning spouse appear at the interview

described in paragraph (1)(B),

 the Attorney General shall make a determination, within 90 days of the date of

the interview, as to whether the facts and information described in subsection

(d)(1) and alleged in the petition are true with respect to the qualifying marriage.

28 U.S.C. § 1186a(c)(3)(A).

Furthermore, the applicant must be notified of the decision of the director and, if the

application is denied, the reasons for the denial. 8 C.F.R. § 216.4.

Section 1186a confers upon Plaintiff the right to have his petition adjudicated. 

Defendants do not argue otherwise. Therefore, the first element of mandamus relief is

met.

2. Clear, Non-Discretionary Duty to Act

The parties do dispute whether Plaintiff is owed a clear, non-discretionary duty.

As indicated above, unless a statute creates a duty owed to Plaintiff by Defendants, a

Writ of Mandamus should not issue. Plaintiff argues that, pursuant to 8 C.F.R. § 216.4,

Defendants have a duty to adjudicate his application within 90 days. Alternatively,

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Plaintiff argues that the ISIIA states Congress’ intention to eliminate the backlog in

processing immigration benefit applications. Section 1571(b) of the ISIIA states that an

immigration benefit application "should be" completed within 180 days. Thus, even

though Congress may desire that immigration benefit applications be completed within a

certain time period, it stopped short of declaring that those applications must be

completed within that time period. Similarly, Congress failed to specify the

consequences of a failure by the government agency to meet the statutory deadline. 

Based on this, a majority of courts decline mandamus jurisdiction over status

adjustment claims. These courts hold that all aspects of status adjustment-related

claims, including the time period in which they are addressed, are matters within the

discretion of the USCIS, and not subject to judicial review. See Safadi v. Howard, 466 F.

Supp. 2d 696, 700 (E.D. Va. 2006) (denying mandamus relief where defendant not

required to process adjustment of status application at any particular pace), Dridi v.

Chertoff, 412 F. Supp. 2d 465, 468 (E.D. Pa. 2005) (mandamus jurisdiction lacking

because timeliness of immigration decisions are discretionary), Chaudry v. Chertoff, No.

06-1303, 2006 U.S. Dist. LEXIS 66842, 2006 WL 2670051, (D. Minn. Sept. 18, 2006)

(same); Espin v. Gantner, 381 F. Supp. 2d 261, 265 (S.D.N.Y. 2005) (mandamus

jurisdiction lacking because immigration status adjustment is wholly discretionary with

the Attorney General); Sadowski v. INS, 107 F. Supp. 2d 451, 453 (S.D.N.Y. 2000)

(mandamus jurisdiction lacking where INS has discretionary duty to decide matters of

immigration status); Tageddine v. USCIS, No. 07-11315, 2007 U.S. Dist. LEXIS 61896

(E.D. Mich. July 12, 2007) (Zatkoff, J.) (court lacks mandamus jurisdiction where INS

commits adjudication of adjustment of status applications to agency discretion).

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Some courts, however, take jurisdiction over adjustment-related claims to

determine whether a Writ of Mandamus should issue. These courts hold there is a duty

to complete status adjustment, and other immigration matters, in a reasonable time

frame. See Rios v. Ziglar, 398 F.3d 1201 (10th Cir. 2005) (alien seeking to adjust status

to lawful resident alien under Nicaraguan Adjustment and Central American Relief Act

can bring mandamus claim where processing application is a ministerial task rather than

discretionary task, but mandamus is improper where alien failed to submit a proper

application by deadline); Iddir v. INS, 301 F.3d 492, 500 (7th Cir. 2002) (INS had duty to

adjudicate appellants' lottery visa applications within reasonable period of time but

mandamus remedy not appropriate where visas could only be awarded within fiscal

year for which they were selected and that time period had run); Wan Shih Hsieh v.

Kiley, 569 F.2d 1179, 1182 (2d Cir. 1978) (district court may consider whether INS has

duty to conduct an investigation to determine whether visas should be issued, but court

lacks jurisdiction to review suspension or denial of immigration visas or to compel the

INS to investigate fraudulently obtained preference status), cert. denied, 439 U.S. 828,

99 S. Ct. 102, 58 L. Ed. 2d 121 (1978); Alkenani v. Barrows, 356 F. Supp. 2d 652,

656-57 (N.D. Tex. 2005) (immigration officials have non-discretionary duty to process

naturalization application within reasonable time but 15-month delay not unreasonable);

Paunescu v. INS, 76 F. Supp. 2d 896 (N.D. Ill. 1999) (INS had non-discretionary duty to

issue a decision on plaintiffs' application for a lottery visa within a reasonable time, so

mandamus relief was granted for 10-month delay); Przhebelskaya v. USCIS, 338 F.

Supp. 2d 399, 405 (E.D. N.Y. 2004) (CIS had nondiscretionary duty to issue decision on

plaintiffs' application for diversity visas within a reasonable time, thus mandamus was

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granted), Kiromi v. USCIS Detroit, No. 07-10446, 2007 U.S. Dist. LEXIS 50797, 2007

WL 2049521 (E.D. Mich. 2007) (Cook, J.) (two-year delay not unreasonable, thus writ of

mandamus not appropriate).

Plaintiff alleges the USCIS improperly delayed or refused to process his

application to adjust status. Defendants say they have not completed their investigation

and will render a decision once it is complete. On October 14, 2005, less than one

month after Plaintiff and his wife filed the joint petition, she wrote to USCIS stating that

Plaintiff entered into the marriage to “gain access and to stay in the United States.” This

was precipitated by several domestic violence incidents, one of which occurred on the

date Plaintiff filed the joint petition. The police report indicated the parties fought over

money Plaintiff owed to his wife. Based on the timing of the incidents, Defendants

suspect the money was for payment expected by Plaintiff’s wife for filing the joint

petition.

After the joint interview of Plaintiff and his wife on November 1, 2006, Defendants

say they requested further evidence in support of the petition, some of which they

received in October 2007. Defendants continue to have concerns whether this was and

is a bona fide marriage; their investigation centers around these concerns. Plaintiff’s

wife says by Affidavit that she explained during the interview that she wrote the letter

because she was angry at her husband for striking her. She says she separated from

her husband for some periods after that incident, but not since Plaintiff completed anger

management classes. She says their marriage is genuine and has been since its

beginning.

This Court is of the view that no mandamus jurisdiction exists to review status

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adjustment claims because they are matters within the discretion of the USCIS, not

subject to judicial review. But even if mandamus jurisdiction did exist to review

Plaintiff’s claims, given the facts and circumstances of this case, the delays are

reasonable and the complications arose to a significant degree from the suspicious

circumstances created by the actions of Plaintiff and his spouse. Plaintiff and his wife

were interviewed on November 1, 2006. On that date, Defendants raised concerns

about the validity of the marriage and gave Plaintiff 30 days to provide additional

requested evidence; it was not provided within the specified time frame. On September

18, 2007, Plaintiff was advised by letter of the USCIS’ intention to deny the joint

application and given 30 days to provide additional information. Plaintiff responded by

letter on October 17, 2007, though it is unclear whether he provided all requested

evidence. Hence, at least 12 months of the delay in adjudication is directly attributable

to Plaintiff. By the Court’s calculation, that leaves a 14-month delay which may be

attributable to the USCIS; this time period is not unreasonable. Because Plaintiff fails to

establish a clear right to relief, the second element of mandamus relief is not met. The

Court therefore lacks mandamus jurisdiction.

B. Administrative Procedure Act

Plaintiff also seeks relief pursuant to the Administrative Procedure Act (APA), 5

U.S.C. § 701 et seq., which provides that "[a] person suffering a legal wrong because of

agency action, or adversely affected or aggrieved by agency action within the meaning

of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. The APA, by

itself, does not provide an independent basis for subject matter jurisdiction. Califano v.

Sanders, 430 U.S. 99, 105-06, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977). But, the APA in

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conjunction with the federal question statute, 28 U.S.C. 1331, may allow federal courts

to establish subject matter jurisdiction provided there is a valid APA claim.

While deportation proceedings are exempt from the provisions of the APA,

rulemaking under the Act and other agency actions are not included within that

exemption. See Matter of Anselmo, Interim Decision 3105 (BIA 1989); Matter of

Fedorenko, 19 I&N Dec. 57, 63-64 (BIA 1984). Hence, those matters arguably can form

the basis of a valid APA claim.

Plaintiff argues that Defendants have a duty to timely adjudicate his application

under Section 555(b) of the APA. 5 U.S.C. § 555(b). The APA permits courts to "compel

agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). It further

provides that "[a] person suffering a legal wrong because of an agency action, or

adversely affected or aggrieved by agency action within the meaning of a relevant

statute, is entitled to judicial review thereof." 5 U.S.C. § 702. The APA also states that

"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). 

The Supreme Court determined that "the only agency action that can be

compelled under the APA is action legally required." Norton v. Southern Utah

Wilderness Alliance, 542 U.S. 55, 63, 124 S. Ct. 2373, 159 L. Ed. 2d 137 (2004).

Agency action means “final agency action” and includes the failure to act. 5 U.S.C. §

704; 5 U.S.C. § 551(13). A claim may not be reviewed by a court if the relevant agency

action is "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). This means that

"review is not to be had if the statute is drawn so that the court would have no

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meaningful standard against which to judge the agency's exercise of discretion. Heckler

v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 84 L. Ed. 2d 714 (1985). 

Moreover, a claim may not be reviewed by a court where the agency has not

forestalled the decisive action regarding the matter, but is in the process of gathering

the information necessary to make its decision. Fonov v. Gonzalez, No. C-3-07-207,

2007 U.S. Dist. LEXIS 71037, at 13 (S.D. Oh. 2007). 

In Fonov, 2007 U.S. Dist. LEXIS 71037 (S.D. Oh. 2007), the court denied relief to

a plaintiff seeking to compel the USCIS to adjudicate his adjustment application under

the APA. The court reasoned that plaintiff had not alleged any facts that would show his

application has been unreasonably delayed or that the Defendants were adverse to

processing his application. Likewise, he had not alleged that the USCIS acted in bad

faith or remained completely idle. In the absence of such allegations, the court ruled

plaintiff did not plead factual allegations that created a duty by the Attorney General to

adjudicate his application within a certain time period based upon the APA.

Similarly, in Usai Kyaw Swa Oo v. Jenifer, Case No. 07-CV-12030, 2008 U.S.

Dist. LEXIS 21937 E.D. MI (March 20, 2008), the court declined to exercise jurisdiction

under the APA to compel the USCIS to adjudicate plaintiff’s adjustment application. The

court reasoned that the Attorney General had sole discretion to process an application

for adjustment of status under 8 U.S.C. § 1255(a), and in 8 U.S.C. § 1252, Congress

expressly precluded review of any judgment regarding the granting of relief under §

1255. Thus, the court ruled that adjustment applications were matters within agency

discretion precluded from judicial review under the APA.

Several other courts, however, have found that subject matter jurisdiction does

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exist under the APA for the INS's failure to adjust status within a "reasonable time." See

Kim v. Ashcroft, 340 F. Supp. 2d 384, 389 (S.D.N.Y. 2004) (42-month delay raises

question of fact as to whether delay is unreasonable); Saleh v. Ridge, 367 F. Supp. 2d

508, 513 (S.D.N.Y. 2005) (five-year delay not unreasonable where asylee visas limited

to 10,000); Bartolini v. Ashcroft, 226 F. Supp. 2d 350, 355 (D. Ct. 2002) (approximately

three-year delay not unreasonable where allegations of fraud surrounded his marriages

to United States citizens).

Here again, the legally required action by Defendants is to adjudicate Plaintiff's

change of status application. This action began and Defendants are investigating

Plaintiff’s application. Plaintiff has not alleged any facts that would show his application

has been unreasonably delayed or that Defendants are adverse to processing his

application. Likewise, he has not alleged that the USCIS is acting in bad faith or is

completely idle. For these reasons, the Court concludes Plaintiff has not demonstrated

that Defendants have a duty to adjudicate his application within a certain time frame. 

Accordingly, judicial review is not available. 

C. Habeas Corpus Statute

The remedy sought by Plaintiff is one provided by federal statute. 28 U.S.C. §§

2241 et seq. (1988). Among other things, the law provides that the Great Writ shall not

extend unless the petitioner is in custody. 28 U.S.C. § 2241 (1988). In addition, it states

that all writs of habeas corpus "shall be directed to the person having custody of the

person detained." 28 U.S.C. § 2243 (1988). Writ of habeas corpus can reach behind

prison walls and iron bars, but it is not a static, narrow, formalistic remedy; its scope

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also includes protection of individuals against erosion of their right to be free from

wrongful restraints upon their liberty. Jones v. Cunningham (1963) 371 US 236, 9 L Ed

2d 285, 83 S Ct 373, 92 ALR2d 675.

Plaintiff says Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed. 2d

548 (1971) supports his proposition that the Court should broadly construe the concept

of “liberty.” Plaintiff cites Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 60 L.Ed. 131

(1915) as standing for the proposition that one has a constitutionally protected liberty

interest in pursuing a chosen occupation. Plaintiff says Defendants’ failure to adjudicate

applications within regulatory deadlines or within a reasonable amount of time

constitutes a deprivation of that protected liberty interest. In Plaintiff’s view, this equates

to “custody” for habeas purposes. 

Defendants say the removal of conditions on permanent residence is a decision

committed to the judgment of the Attorney General, hence the Court has no jurisdiction

to compel the approval of Plaintiff’s Form I-751. Moreover, Defendants say Plaintiff is

not “in custody” under Jones v. Cunningham. Accordingly, they say his claim is not a

proper subject of a petition for writ of habeas corpus. The Court agrees.

First, Plaintiff’s allegations do not satisfy the “in custody in violation of the

Constitution or laws or treaties of the United States” requirement for a writ of habeas

corpus under 28 U.S.C. § 2241(c)(3). The writ of habeas corpus is the appropriate

remedy for an inductee seeking discharge from the Army based on an improper

classification by the Selective Service. Witmer v. United States, 348 U.S. 375, 377, 75

S. Ct. 392, 99 L. Ed. 428 (1955). Habeas corpus has also been deemed the

appropriate remedy for an enlistee who was denied an in-service discharge as a

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conscientious objector. See, e. g., United States ex rel. Brooks v. Clifford, 409 F.2d 700

(4th Cir. 1969). However, Plaintiff does not seek a discharge from the military. In fact,

he seeks to deploy with his army unit and “take his chosen job.” And, he does not have

a custodian. The Court has found no cases in which an enlistee sought or was granted

a writ of habeas corpus under the circumstances pled by Plaintiff. This novel theory

advanced by Plaintiff does not fall within the meaning of “in custody.” As expressed by

the Supreme Court in Hensley v. Municipal Court, 411 U.S. 345, 93 S. Ct. 1571, 36 L.

Ed. 2d 294 (1973):

The custody requirement of the habeas corpus statute is designed to preserve

the writ of habeas corpus as a remedy for severe restraints on individual liberty.

Since habeas corpus is an extraordinary remedy whose operation is to a large

extent uninhibited by traditional rules of finality and federalism, its use has been

limited to cases of special urgency, leaving more conventional remedies for

cases in which the restraints on liberty are neither severe nor immediate.

Id. at 351, 93 S. Ct. at 1574. 

Second, contrary to Plaintiff’s assertions, the interests involved are not

encompassed in the Fourteenth’s Amendments protection of liberty or property. In

Board of Regents, supra, cited by Plaintiff, a nontenured college teacher sued university

authorities after his one-year employment contract was not renewed. The teacher

argued he was denied procedural due process when he was not given the reasons for

the decision not to rehire. The university authorities appealed a Seventh Circuit

judgment affirming the lower court’s grant of summary judgment to the teacher. The

Supreme Court reversed and held that the Fourteenth Amendment did not require

opportunity for hearing prior to the nonrenewal of the nontenured state teacher’s

contract, unless he could show that the nonrenewal deprived him of an interest in

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“liberty” or that he had a property interest in continued employment despite the lack of

tenure or a formal contract. The Court found that the nonretention of the teacher,

absent any charges against him or stigma foreclosing other employment, was not

tantamount to “liberty.” Similarly, the terms of the teacher’s employment accorded him

no “property” interest protected by procedural due process.

Likewise, no liberty interest or property interest is implicated here. Plaintiff has

not alleged that the conditions on his residence prevent him from obtaining any

employment; he only maintains that the conditions prevent him from deploying with his

army unit. However, a "reserve of the armed forces who is not on active duty . . . is

deemed not an employee . . . [of] the United States." 5 U.S.C. § 2105(d). Moreover,

while an alien may be eligible for a grant of asylum or an adjustment of status under the

immigration laws, he is not entitled to such benefits as a constitutional matter. Abdulai v.

Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). Thus, Plaintiff cannot claim a constitutionally

protected liberty interest to work in the military. 

In the same vein, an alien has no inherent property interest in an immigrant visa,

and the IMFA does not grant any such property interest. Azizi v. Thornburgh, 908 F.2d

1130, 1134 (2nd Cir. 1990). To have a property interest in a benefit, a person clearly

must have more than an abstract need or desire for it. He must have more than a

unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to

it." Board of Regents, 408 U.S. at 577. Of course, "[p]roperty interests . . . are not

created by the Constitution," Id., and the Supreme Court has recognized that

constitutionally protected liberty or property interests may spring from positive rules of

law, enacted by the state or federal government and creating a substantive entitlement

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in a particular government benefit. See, e.g. Connecticut Bd. of Pardons v. Dumschat,

452 U.S. 458, 463, 101 S. Ct. 2460, 69 L. Ed. 2d 158 (1976) ("[A] state-created right

can, in some circumstances, beget yet other rights to procedures essential to the

realization of the parent right."). 

Nevertheless, the various discretionary privileges and benefits conferred on

aliens by our federal immigration laws do not vest in aliens a constitutional right to have

their immigration matters adjudicated in the most expeditious manner possible. See Id.

("A constitutional entitlement cannot be created . . . merely because a wholly and

expressly discretionary state privilege has been granted generously in the past."); INS v.

Miranda, 459 U.S. 14, 18, 103 S. Ct. 281, 74 L. Ed. 2d 12 (1982) ("Both the number of

applications received by the INS and the need to investigate their validity may make it

difficult for the agency to process an application as promptly as desirable."). Thus,

Plaintiff cannot assert a constitutionally protected property interest in a permanent

resident card. 

Because Plaintiff has not demonstrated that he is “in custody” or that he has

been denied a constitutionally protected property or liberty interest, the Court lacks

jurisdiction to hear his habeas claim. Even if it had jurisdiction, Plaintiff would need to

specify the gross unreasonableness of the delay in his case to persuade the Court to

intervene notwithstanding Defendants’ vested interest in protecting national security.

See Lazli v. USCIS, No. 05-CV-1680-BR, 2007 U.S. Dist. LEXIS 10713, 2007 WL

496351 (D. Or., Feb. 12, 2007).

IV. CONCLUSION

For the reasons stated, the Court finds it lacks subject matter jurisdiction over

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Plaintiff’s status adjustment claim. This matter is DISMISSED.

IT IS ORDERED.

/s/ Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: January 23, 2009

The undersigned certifies that a copy of this

document was served on the attorneys of

record by electronic means or U.S. Mail on

January 23, 2009.

s/Linda Vertriest 

Deputy Clerk

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