UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BING MA,

 

Plaintiff,

Case Nos. 08-CV-14008, 

 08-CV-14009

vs.

HON. GEORGE CARAM STEEH

CONDELEEZZA RICE, ET AL,

Defendants.

_____________________________/

ORDER DISMISSING PLAINTIFF’S MANDAMUS ACTION FOR LACK OF

JURISDICTION AND DENYING PLAINTIFF’S MOTION FOR PRELIMINARY

INJUNCTION AS MOOT

Pro se plaintiff Bing Ma has filed a complaint for a writ of mandamus and a

motion for a preliminary injunction against defendants seeking an order compelling them

to immediately adjudicate her application to adjust status to that of permanent resident. 

Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6). This

matter shall be decided based on the written submissions without oral argument. 

Because the Court lacks subject matter jurisdiction over Ma’s complaint, defendants’

motion to dismiss shall be granted and plaintiff’s motion for injunctive relief shall be

denied as moot.

BACKGROUND

A. The Parties

Plaintiff Bing Ma (“Ma”) is an adult national of China who works as a research

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 1 of 14 Pg ID 88
2

faculty member at the University of Michigan. On September 17, 2008, she filed a

mandamus complaint seeking to compel defendants to process her application to adjust

status. Defendants in that lawsuit are Michael Chertoff, Secretary of Department of

Homeland Security; Jonathon Scharfen, Acting Director of United States Citizenship

and Immigration Services (USCIS); and Gerard Heinauer, Director of USCIS, Nebraska

Service Center. For purposes of this order, the defendants shall be referred to

collectively as “the government.” 

On the same date that she filed her complaint, Ma filed a motion for preliminary

injunction, which was filed as a separate lawsuit. That motion involves the same

parties, with the exception of adding as a defendant Condeleezza Rice, Secretary of

State. The Court ordered the government to respond to the motion for preliminary

injunction on an expedited schedule and the government complied with that order. The

government discussed the preliminary injunction motion on the merits without

addressing whether or not this Court has subject matter jurisdiction. However, the

government filed a motion to dismiss, for lack of subject matter jurisdiction, the

complaint seeking mandamus relief. Ma has not filed a response to the motion to

dismiss and the time period for doing so has expired. The motion for preliminary

injunction and the mandamus complaint involve the same claims and parties. In

essence, they are one and the same case and the Court shall treat them as such. Were

Ma represented by counsel, and not proceeding pro se, this Court has no doubt that she

would have filed the preliminary injunction motion under the same docket number as the

original complaint, rather than paying the filing fee twice. 

B. Plaintiff’s Application to Adjust Status

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 2 of 14 Pg ID 89
3

According to the declaration of Gerald Heinauer (“Heinauer”), the Director of the

Nebraska Service Center for the USCIS, plaintiff filed a Form I-485, Application for

Adjustment of Status to Permanent Resident, on September 29, 2005. (08-14008, Doc.

10, Exhibit B at ¶ 10). That application was based on her I-140 Petition for Alien

Worker, which she filed on her own behalf on that same date, thus, establishing her

priority date as September 29, 2005. (Id. at ¶ 7, 13). The purpose of the I-140 petition

and I-485 filing is to obtain lawful permanent resident status (green cards) for the alien

worker and any qualified derivative spouse and children. (Id. at ¶ 10). On November

10, 2005, Ma’s Form I-140 petition was approved in the second preference employment

category for advanced degree professionals. (Id. at ¶ 7).

One week later, on November 16, 2005, Ma’s name check was electronically

submitted to the Federal Bureau of Investigation (“FBI”). Id. at ¶ 15, 18. While the FBI

name check was pending, Ma sought the help of Senator Debbie Stabenaw and first

lady Laura Bush to expedite her application. (08-14008, Doc 1 at ¶ 22-23). 

Approximately two years later, on November 23, 2007, the name check was complete. 

(Id. at ¶ 18). Defendants explain the two-year time period for processing the name

check is attributable to the millions of name check requests that the USCIS has

submitted to the FBI since 9/11. (Id. at ¶ 16). As of May, 2008, there were 269,943

name checks pending, and of those, 185,162 had been pending for over six months.

(Id.) At the time that Ma’s name check was complete, plaintiff did not have a visa

number available to her. (Id. at ¶ 18). 

Ma’s fingerprints were taken on May 10, 2007. (Id. at ¶ 19). Because the

fingerprint check is only good for fifteen months, she was rescheduled to report for

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 3 of 14 Pg ID 90
4

refreshed fingerprints on September 19, 2008. (Id.) Ma filed the instant lawsuit on

September 17, 2008 based on the assumption, gleaned from information published in

the Visa Bulletin, that a visa would be available for her in September, 2008, but would

no longer be available in October, 2008. In fact, in September, 2008, the State

Department opened up China second preference visa numbers up to August 1, 2006

priority dates to maximize use of all of the 2008 visa numbers which could not be

carried over at the end of the year. (Id. at 22). Ma’s fingerprint results posted on

September 22, 2008 but there were no visas available at that time. (Id. at ¶ 21). 

The government also relies on the declaration of Charles W. Oppenheim, who is

employed by the State Department as the Chief of the Immigrant Visa Control and

Reporting Division of the Visa Office (“VO”) who avers that visas for Chinese applicants

in the employment second preference category became unavailable in early September,

2008, and thus, no immigrant visa numbers were available for Ma. (08-14008, Doc. 10,

Exhibit A at ¶ 3). Based on the large pool of applicants in the China employment

second preference category in September, 2008, the Department of State retrogressed

the cut-off date for that category in the October 2008 visa bulletin so that visas are only

available to alien workers with a priority date earlier than April 1, 2004. (08-14008, Doc.

10, Exhibit B at ¶ 22). Ma’s application was filed about a year after this priority date, so

she was not eligible for a visa when she became documentarily qualified on September

22, 2008. 

Ma, on the other hand, counters that visas were available in September, 2008,

based on information published on an Internet website entitled TrackGG.com. She

relies on a spread sheet from that online site which purports to show that another

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 4 of 14 Pg ID 91
5

China-born applicant had a visa issued on September 30, 2008. (08-14008, Doc. 11,

Exhibit A). The government responds that information taken from the online site is

inherently unreliable as the information is self-reported and cannot be verified by

defendants. The government also suggests many explanations exist for why an

applicant might erroneously believe that his visa was issued on September 30, 2008,

when in fact, it issued sooner. For example, applicants do not receive a copy of their

Form I-485 with a dated approved stamp on it, thus applicants are unlikely to know the

exact timing of their approval. While applicants do eventually receive a “welcome” letter

notifying them that they will be granted a green card, the letter tends to lag behind

actual approval of the Form I-485. Moreover, the government posits that even if the

date of approval of an I-485 by the USCIS is accurately reported on TrackGC.com, that

date need not necessarily correspond to the date the visa issued.

Plaintiff also seeks to rely on e-mail messages posted on an immigration website,

known as “trackitt,” which purports to show that some visa applicants had their Form I485s approved with expired fingerprints. The government responds that the posted

messages do not countermand the agency’s long-standing policy and practice of

requiring fingerprint checks to be no older than fifteen months. (08-14008, Doc. 10,

Exhibit B at ¶ 19).

Ma complains that immigrants who filed I-485 petitions to adjust status after her

have had their petitions finally adjudicated before her. The government responds that

applicants are processed in the order that they become documentarily qualified, that is

when the FBI background checks are complete and all necessary evidence is obtained

and evaluated, not necessarily in the order in which their I-485s are filed. When an

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 5 of 14 Pg ID 92
6

applicant’s name check proceeds quickly, the USCIS does not make the applicant wait

until applicants who were filed after her, including those whose FBI name checks are

taking a long time, are approved before requesting a visa number. According to

defendants, many applicants who filed their I-485 applications to adjust status before

her are still awaiting final adjudication on their petitions. The government avers that it is

processing Ma’s adjustment of status application according to its standard procedures

and that her case will be complete as soon as a visa number becomes available to her. 

(Id. at ¶ 24).

STANDARD OF LAW

The government has filed its motion to dismiss under Rule 12(b)(1) and 12(b)(6). 

The 12(b)(6) motion, as well as Ma’s motion for injunctive relief, become moot if this

Court lacks subject matter jurisdiction. Accordingly, the Court considers the Rule

12(b)(1) motion first. Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269

(6th Cir. 1990). Plaintiff bears the burden of proving that jurisdiction exists. Id. To

defeat a motion to dismiss for lack of jurisdiction, “the plaintiff must show that the

complaint ‘alleges a claim under federal law, and that the claim is substantial.’” Mich.

S.R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass’n, Inc., 287 F.3d 568, 573

(6th Cir. 2002) (citations omitted). The federal question must be presented on the face

of the complaint. See Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998).

SUBJECT MATTER JURISDICTION

Ma relies on a plethora of theories in support of her claim that this Court has

subject matter jurisdiction. First, she argues that the Court has federal subject matter

jurisdiction under 28 U.S.C. § 1331 because her cause of action allegedly arises under

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 6 of 14 Pg ID 93
1

In her motion for preliminary injunction, Ma also alleges that jurisdiction lies under

Fed. R. Civ. P. 65 but that is a procedural rule only which does not confer jurisdiction.

2

6 U.S.C. § 271(b)(5).

7

the Constitution, including the Fifth Amendment. She also argues that jurisdiction arises

under the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq.; the

Declaratory Judgment Act, 28 U.S.C. § 2201; and the All Writs Act, 28 U.S.C. § 1651. 

Finally, she claims that jurisdiction exists under the Mandamus Act, 28 U.S.C. § 1361

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

1

Jurisdiction does not lie under the Federal Question Statute as Ma has no

interest, either arising under the Constitution or by federal statute, in seeking lawful

permanent resident status. While Ma’s alleged injuries are palpable, including her

difficulties in securing research funding, applying for jobs, traveling, and the delay of her

ability to apply for naturalization, none of these harms rises to the level of a

Constitutional deprivation or the denial of a federal right guaranteed by a Congressional

statute or regulation. An alien seeking lawful permanent resident status cannot show

“that [her] interest is one protected by the Constitution or created by statute.” Almario v.

Att’y Gen’l, 872 F.2d 147, 151 (6th Cir. 1989). Ma’s allegation that jurisdiction lies under

the INA also fails. While the INA authorizes the Attorney General, who in turn

transferred his authority to the Secretary of Homeland Security and the USCIS,2

 to

adjudicate applications for adjustment of status, 8 U.S.C. § 1255(a), the INA provides

the Attorney General with broad discretion, and does not provide any time table for such

adjustments. Maftoum v. Chavez, No. 07-CV-12819, 2007 WL 3203850, *3 (E.D. Mich.

Oct. 31, 2007) (Cleland, J.). The INA does not provide for a private cause of action to

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 7 of 14 Pg ID 94
8

speed up the processing of an adjustment of status application. To the extent that Ma

seeks to rely on 8 U.S.C. § 1571(b), which provides that “[i]t is the sense of Congress

that the processing of an immigration benefit application should be completed not later

than 180 days after the initial filing of the application,” that provision does not confer

jurisdiction and is non-binding legislative dicta. Id. (quotations and citations omitted).

Jurisdiction also is lacking under the Declaratory Judgment Act which fails to

provide an independent basis for subject matter jurisdiction. Skelly Oil Co. v. Phillips

Petroleum Co., 339 U.S. 667, 671-72 (1950). Similarly, the All Writs Act, 28 U.S.C. §

1651 (a) provides that “[t]he Supreme Court and all courts established by Act of

Congress may issue all writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law.” The All Writs Act does

not confer jurisdiction on the federal courts. Syngenta Crop Protection, Inc. v. Henson,

537 U.S. 28, 33 (2002). It merely allows a court to issue process in aid of its existing

statutory jurisdiction, but does not enlarge that jurisdiction. Id. (citation and quotations

omitted). 

The Court turns now to the APA and the Mandamus Act as possible grounds for

jurisdiction. For either the APA or the Mandamus Act to apply, the matter at issue must

be one that is not committed to agency discretion. The APA grants courts the power to

compel agency action unlawfully withheld or unreasonably delayed. 5 U.S.C. § 706. 

However, these provisions of the APA do not apply where the agency action is

committed to agency discretion by law. 5 U.S.C. § 701(a). Similarly, the Mandamus

Statute provides that a district court may “compel an officer or employee of the U.S. or

any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. A writ of

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 8 of 14 Pg ID 95
9

mandamus is an “extraordinary” remedy available only in the most compelling cases

where the plaintiff can show a clear and indisputable right to the relief sought. In re

Bendectin Prod. Liability Litigation, 749 F.2d 300, 303 (6th Cir. 1984) (citations omitted). 

Mandamus jurisdiction does not exist unless it is shown that the defendant owes the

plaintiff a clear nondiscretionary duty that he has failed to perform. See Your Home

Visiting Nurse Svcs., Inc. v. HHS, 132 F.3d 1135, 1141 (6th Cir. 1997) (citing Heckler v.

Ringer, 466 U.S. 602, 616 (1984)). Based on the above law, the determination of

whether subject matter jurisdiction exists based on the APA or the Mandamus Act

depends on whether or not status adjustment is a matter of agency discretion or a

nondiscretionary duty.

An immigrant’s status as a permanent resident is governed by 8 U.S.C. § 1255

which provides in relevant part:

(a) The status of an alien who was inspected and admitted or paroled into

the United States or the status of any other alien having an approved

petition . . . may be adjusted by the Attorney General, in his discretion,

and under such regulations as he may prescribe to that of an alien lawfully

admitted for permanent residence if (1) the alien makes an application for

such adjustment, (2) the alien is eligible to receive an immigrant visa and

is admissible to the United States for permanent residence, and (3) an

immigrant visa is available to him at the time his application is filed.

8 U.S.C. § 1255(a) (emphasis added). Section 1255(a) does not set forth any time limit

by which adjustment of status determinations must be made, nor does it suggest any

need for expedition. Shen v. Chertoff, 494 F. Supp. 2d 592, 596 (E.D. Mich. 2007)

(citations omitted). The government argues that the discretionary adjustment of an

alien’s immigration status does not fall within the scope of mandamus jurisdiction or

relief. Ma alleges that there has been unreasonable delay in the adjudication of her

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 9 of 14 Pg ID 96
10

adjustment of status application and she seeks mandamus in the form of this Court

ordering the USCIS to assign her an immigrant visa. 

This Court addressed the same issue presented here in Xu v. Chertoff, No. 06-

15398, 2007 WL 2221401 (E.D. Mich. July 31, 2007) (Steeh, J.). In that case, the

plaintiff had been awaiting a final adjudication of his I-485 application to adjust his

immigration status to that of permanent resident for two years. Id. at *1. As in this

case, plaintiff filed suit requesting that the Court order USCIS to complete the

adjudication of his application more quickly. Id. The government argued it could not

process his application until his FBI name check cleared. Id. This Court dismissed his

complaint for lack of subject matter jurisdiction finding that the adjustment of an alien’s

immigration status, including the time it takes to complete the adjustment, are matters

within the agency’s sound discretion. Id. at *3. Because adjustment of status is

discretionary, this Court ruled that it lacked jurisdiction under the APA or the Mandamus

Act to compel the USCIS to process an adjustment of status application more quickly. 

Id.

In its earlier case, this Court noted that district courts across the country have

split on the question of whether the government has a clear non-discretionary duty to

make a decision within a reasonable time. Id. at *2. Many courts have held that all

aspects of status adjustment, including their timing, are matters of discretion. Id.

(collecting cases). Some courts, however, have taken the opposite view and have

opined that the USCIS has a nondiscretionary duty to complete status adjustments, and

other immigration matters, in a reasonable time. Id. (collecting cases). As far as this

Court is aware, no Court of Appeals has yet ruled on the issue.

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 10 of 14 Pg ID 97
11

The government points out in its brief here that the overwhelming majority of

judges in this district have held that the USCIS has discretion in matters pertaining to

the timing of the adjudication of applications for adjustment of status. See Shen v.

Chertoff, 494 F. Supp. 2d 592 (E.D. Mich. 2007) (Friedman, J.), Yazbek v. Chertoff, NO.

07-12566, 2007 WL 2875462 (E.D. Mich. Oct. 1, 2007) (Zatkoff, J.); Kiromi v. USCIS,

No. 07-10446, 2007 WL 2049521 (E.D. Mich. July 13, 2007) (Cook, J.); Azadegan v.

Chertoff, No. 07-11238, 2007 WL 2822783 (E.D. Mich. Sept. 27, 2007) (Borman, J.);

Kuchumov v. Chertoff, No. 07-12277, 2007 WL 2782045 (E. D. Mich. Sept. 24, 2007)

(Duggan, J.); Chehab v. Chertoff, No. 07-11068, 2007 WL 2372356 (E.D. Mich. Aug.

17, 2007) (O’Meara, J.); Korobkova v. Jenifer, No. 07-11335, 2007 WL 3245178 (E.D.

Mich. Nov. 2, 2007) (Gadola, J.); Maftoum v. Chavez, No. 07-12819, 2007 WL 3203850

(E. D. Mich. Oct. 31, 2007) (Cleland, J.); Carter v. Dep’t of Homeland Sec., NO. 07-

12953, 2008 WL 205248 (E.D. Mich. Jan. 24, 2008) (Edmunds, J). But see, Obeid v.

Chertoff, No. 07-10937, 2008 WL 795838 (E.D. Mich. 2008) (Tarnow, J.). Thus, these

courts have universally held that they lack subject matter jurisdiction over claims

seeking to compel the USCIS to process an application for adjustment of status.

There is no statute or regulation that imposes on the USCIS a time deadline for

the processing of I-485 applications. In its earlier order in Xu, this Court noted that it is

undisputed that the final decision of the Attorney General, who has delegated his

authority to the USCIS, and the process for arriving at that decision, have been

committed to the Attorney General’s (and thus, the USCIS’s) discretion by 8 U.S.C. §

1255. Thus, this Court ruled that the time period it takes to process an application must

also fall within the agency’s discretion so long as discretionary action is being taken to

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 11 of 14 Pg ID 98
3

But see Kashkool v. Chertoff,553 F. Supp. 2d 1131, 1147 (D. Ariz. 2008) (six-year

delay in processing alien’s application for adjustment of status to permanent resident

unreasonable); Zalmout v. Gonzalez, No. 07-12575, 2007 WL 3121532, *3 (E.D. Mich. Oct.

24, 2007) (Duggan, J.) (setting evidentiary hearing to determine if four year delay in

adjudication of plaintiff’s application might constitute abandonment). Many courts,

however, have found that a two-year delay does not constitute an abandonment. See e.g.

Maftoum v. Chavez, No. 07-12819, 2007 WL 3203850, *3 n.10 (E.D. Mich. Oct. 31, 2007);

Xu v. Chertoff, No. 06-15398, 2007 WL 2221401, *3 n.1 (E.D. Mich. July 31, 2007).

12

process the application. The policy reason behind this holding is that FBI background

checks are imperative to protecting the nation’s security in a post 9/11 world, and the

agency’s limited resources necessarily requires that there will be some delay in the

adjudication of applications to adjust status.

In Xu, this Court left open the possibility that mandamus review might

nonetheless be appropriate in exceptional circumstances, such as where some

deliberate inaction or bad faith cause the delay. This Court also opined that in the case

of excessive delay, that might prove bad faith and thus, might satisfy a plaintiff’s burden

of pleading that subject matter jurisdiction exists. Indeed, another district court noted

that it is possible that a delay might be so unreasonable as to amount to a refusal to

process the application, in which case jurisdiction might arise. Safadi v. Howard, 466 F.

Supp. 2d 696, 700 (E.D. Va. 2006). In Safadi, there was a four year delay in the

processing of plaintiff’s application to adjust status, and the court found that even this

significant delay was not tantamount to abandonment because national security

concerns require caution and thoroughness in FBI background checks which may not

be sacrificed for the purpose of expediency.3

 Id. at 701. There has been no showing of

deliberate inaction or bad faith in this case. In Ma’s case, the two year delay is

attributable solely to the FBI name check and fingerprint checks which are especially

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 12 of 14 Pg ID 99
13

critical background checks for protecting the nation’s security interests. While this Court

is sympathetic to Ma’s frustration to the time involved in deciding her request to adjust

status, this Court lacks jurisdiction to compel the USCIS to process her claim more

quickly than it is now doing. The government has stated that Ma’s claim is now

documentarily qualified for adjudication, as all her security and background checks are

complete, and thus, she will receive final adjustment of status as soon as a visa in her

preference category becomes available. It is the Court’s sincere hope that this will

happen soon.

CONCLUSION

This Court lacks subject matter jurisdiction because the time period for

adjustment of status is a matter committed to the government’s discretion. As no

subject matter jurisdiction exists, defendants’ 12(b)(6) motion and Ma’s motion for

preliminary injunction are moot and no further consideration is necessary. Defendants’

motion to dismiss (Doc. 9 in the 08-14009 case) hereby is GRANTED; plaintiff’s

complaint (Doc. 1 in the 08-14009 case) hereby is DISMISSED WITHOUT PREJUDICE,

and plaintiff’s motion for injunctive relief (Doc. 1 in the 08-14008 case) hereby is

DENIED AS MOOT.

SO ORDERED.

Dated: January 22, 2009

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 13 of 14 Pg ID 100
14

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

January 22, 2009, by electronic and/or ordinary mail.

s/Josephine Chaffee

Deputy Clerk

2:08-cv-14009-GCS-MJH Doc # 10 Filed 01/22/09 Pg 14 of 14 Pg ID 101