NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 :

QIAO ER WU, : CIVIL ACTION NO. 11-295 (MLC)

 :

Plaintiff, : MEMORANDUM OPINION

 :

v. :

 :

JANET NAPOLITANO, et al., :

 :

Defendants. :

 :

COOPER, District Judge

Plaintiff, Qiao Er Wu (“Wu”), brings this action seeking,

inter alia, to compel Defendants, Janet Napolitano, Secretary of

the Department of Homeland Security, and Alejandro Mayorkas,

Director of United States Citizenship and Immigration Services

(“USCIS”) (collectively, “Defendants”), to immediately adjudicate

and approve Wu’s USCIS applications for waiver of inadmissibility

and adjustment of immigration status (“Applications”). (Dkt.

entry no. 1, Compl., Request for Relief at ¶ I.) Wu asserts that

the Court has jurisdiction to compel the adjudication of her

Applications under the Mandamus Act, 28 U.S.C. § 1361 (“Section

1361”), and the Administrative Procedure Act, 5 U.S.C. § 701, et

seq. (“APA”). (Id. at ¶¶ 2-3.) Defendants move to dismiss the

Complaint for lack of subject matter jurisdiction pursuant to

Federal Rule of Civil Procedure (“Rule”) 12(b)(1). (Dkt. entry

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no. 10, Notice of Mot. & Def. Br. at 3-9.) Wu opposes 1

Defendants’ motion, asserting that the Court may enter an order

in her favor because Defendants have failed to satisfy their duty

to timely adjudicate her Applications. (Dkt. entry no. 11, Pl.

Opp.) The Court, pursuant to Local Civil Rule 78.1(b), decides 2

the motion on the papers and, for the reasons stated herein, will

grant Defendants’ motion.

BACKGROUND

Defendants do not dispute the following facts. (Def Br. at

1-2.) Wu, a citizen of the People’s Republic of China, legally

entered the United States in November of 1996 under a student

visa. (Compl. at ¶¶ 9-10.) She thereafter sought to adjust her

status to that of a lawful permanent resident, based upon a

USCIS-approved labor certification and an employment-based

immigration visa petition (“I-140 Petition”). (Id. at ¶ 11.) 

While awaiting a decision upon her I-140 Petition, Wu departed

 Defendants also contend that the Court should dismiss the 1

Complaint pursuant to Rule 12(b)(6), for failure to state a claim

upon which relief can be granted. The Court will not discuss

Defendants’ alternative argument under Rule 12(b)(6), however,

because the Court finds that disposition of the motion is

controlled by Rule 12(b)(1).

 Wu styled her opposition to Defendants’ motion as 2

“Plaintiff’s Cross-Motion for Summary Judgment And [sic]

Opposition to Defendants’ Motion to Dismiss.” (Dkt. entry no.

11.) The Court will not discuss the merits of the cross motion,

however, because the Court’s disposition of the motion to dismiss

renders such discussion moot.

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from and reentered the United States, after inspection. (Id. at

¶ 12.) Upon the grant of her I-140 Petition, Wu, on January 29,

2009, filed USCIS forms I-601 (waiver of inadmissibility) and 

I-485 (adjustment of status application). (Id. at ¶¶ 13-14; dkt.

entry no. 12, Decl. of Naboone J. Puripongs Jaeger (“Jaeger

Decl.”) at ¶ 5.) She also attended an adjustment of status

interview on December 1, 2009 at the USCIS office in Mount

Laurel, New Jersey. (Jaeger Decl. at ¶ 15.) To date, Wu’s

Applications have not been adjudicated. (Id. at ¶ 16.)

When an applicant seeks adjustment of status, the USCIS and

Federal Bureau of Investigation (“FBI”) conduct security and

background checks, including FBI fingerprint checks, FBI name

checks, checks against the Interagency Border Inspection System

(“IBIS”) maintained by the Department of Homeland Security, which

includes information from more than twenty federal law

enforcement and intelligence agencies. (Id. at ¶ 8.) Such

measures ensure that applicants do not pose a risk to either

public safety or national security. (Id.) They also ensure that

applicants are eligible for immigration benefits, i.e., the

status sought by application. (Id.) Here, Wu has submitted to

and USCIS has completed such fingerprint checks, name checks, and

IBIS checks. (Id.) 

Defendants nevertheless maintain that they cannot

immediately adjudicate Wu’s Applications because USCIS, as a

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predicate to such adjudication, must determine whether Wu is

otherwise eligible for the immigration benefits she seeks. (Dkt.

entry no. 12, Def. Reply Br. at 2.). Defendants specifically

contend that USCIS must complete two investigations. (Def. Br.

at 6; Def. Reply Br. at 2; Jaeger Decl. at ¶¶ 10-12.) First,

they contend that USCIS must complete its review of Wu’s

previously-approved I-140 Petition and, based upon that review,

determine whether it will now revoke that approval. As

Defendants correctly note, Section 205 of the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1255, grants USCIS the power

to revoke a previously-approved I-140 Petition “at any time” for

“good and sufficient cause.” (Jaeger Decl. at ¶¶ 10-11.) See 8

U.S.C. §§ 1254-1255. Because Wu’s Applications are premised upon

USCIS’s prior approval of the I-140 Petition, Defendants reason

that USCIS must determine whether it will revoke or uphold the

prior approval of that I-140 Petition before Wu’s Applications

are ripe for review. (Def. Reply Br. at 2; Jaeger Decl. at ¶¶

10-11.)

Defendants similarly contend that USCIS must determine

whether Wu has violated Section 212 of the INA by “seek[ing] to

procure . . . a visa, other documentation, or admission into the

United States or other [immigration] benefit” by committing

“fraud or willfully misrepresenting a material fact[.]” (Jaeger

Decl. at ¶ 13.) See 8 U.S.C. § 1182(a)(6)(C)(i). Because USCIS

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has identified some evidence suggesting that Wu violated Section

212 of the INA, and because such a violation would render Wu

otherwise ineligible for adjustment of status, Defendants

maintain that USCIS must complete such investigations before

adjudicating Wu’s Applications. (Jaeger Decl. at ¶ 12.)

DISCUSSION

Wu argues that the Court has jurisdiction to compel the

adjudication of her Applications under Section 1361 and the APA. 

(Compl. at ¶¶ 2-3.) Defendants, in contrast, argue that the

Court lacks jurisdiction under Section 1361 because Wu cannot

show that she is entitled to an immediate adjudication and,

therefore, cannot show that she is entitled to a writ of

mandamus. (Def. Br. at 5-6.) Defendants also argue that Wu’s

inability to demonstrate that she is entitled to an immediate

adjudication precludes judicial review of this case under the

APA. (Id. at 7-9.)

I. Standard of Review for a 12(b)(1) Motion to Dismiss

“Challenges to subject matter jurisdiction under Rule

12(b)(1) may be facial or factual. Facial attacks . . . contest

the sufficiency of the pleadings, and the trial court must accept

the complaint's allegations as true.” Common Cause of Pa. v.

Pa., 558 F.3d 249, 257 (3d Cir. 2009) (citation omitted). When

ruling upon a facial attack, the Court may dismiss the complaint

“only if it appears to a certainty that the plaintiff will not be 

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able to assert a colorable claim of subject matter jurisdiction.” 

Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 438 (D.N.J. 1999). 

Factual attacks differ greatly from their facial brethren. 

See Mortenson v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891

(3d Cir. 1977). 

Because at issue in a factual 12(b)(1) motion is the

trial court's jurisdiction . . . the trial court is

free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case. In short, no

presumptive truthfulness attaches to plaintiff's

allegations, and the existence of disputed material

facts will not preclude the trial court from evaluating

for itself the merits of jurisdictional claims. 

Moreover, the plaintiff will have the burden of proof

that jurisdiction does in fact exist.

Id. When considering a factual attack to subject matter

jurisdiction, the Court may make factual findings, beyond the

pleadings, to determine jurisdiction. CNA v. United States, 535

F.3d 132, 145 (3d Cir. 2008); Iwanowa, 67 F.Supp.2d at 438

(noting that the Court may “consider affidavits, depositions and

testimony to resolve factual issues bearing on jurisdiction.”). 

A Rule 12(b)(1) “factual evaluation may occur at any stage

of the proceedings, from the time the answer has been served

until after the trial has completed.” Mortenson, 549 F.2d at

891, 892 n.1 (explaining that “[a] factual jurisdictional

proceeding cannot occur until plaintiff’s allegations have been

controverted”). As Defendants have not filed an answer, the

Court has determined that they have not controverted Wu’s

allegations and, therefore, considers the motion a facial attack

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on subject matter jurisdiction. While resolving the motion, the

Court will accordingly only analyze the allegations contained in

the Complaint. Common Cause of Pa., 558 F.3d at 257.

II. The INA Precludes the Court’s Exercise of Jurisdiction

Section 1252 of the INA provides in pertinent part that:

Notwithstanding any other provision of law (statutory

or nonstatutory), including [mandamus actions under

Section 1361] . . . no court shall have jurisdiction to

review--

(i) any judgment regarding the granting of relief under

section . . . 1255 [adjustment of status] . . . or

(ii) any other decision or action of the Attorney

General or the Secretary of Homeland Security the

authority for which is specified under this subchapter

to be in the discretion of the Attorney General or the

Secretary of Homeland Security[.]

8 U.S.C. § 1252(a)(2)(B). 

The parties agree that the ultimate decision to grant or

deny Wu’s Applications rests with either the Attorney General or

the Secretary of Homeland Security. (Def. Br. at 6-9; Pl. Opp.

at 1-2.) Their dispute arises, however, from the timing of that

decision. Defendants argue that they have discretion with

respect to all aspects of adjudication of the Applications,

including the time taken to complete each stage of the

adjudication process. (Def. Br. at 8; Def. Reply Br. at 1-2.) 

Wu argues in response that Defendants have a non-discretionary

duty to decide an application for change of residency status in a 

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reasonable amount of time and that, here, they have failed to do

so. (Pl. Opp. at 1-2; dkt. entry no. 13, Pl. Reply Br. at 1.)

The regulation that speaks most directly to Defendants'

discretion to withhold adjudication is 8 C.F.R. § 103.2(b)(18),

which is entitled “Withholding adjudication.” Section

103.2(b)(18) confers discretion on immigration officers and

directors to withhold adjudication while applications are

investigated. It provides that an immigration officer or

director may withhold adjudication every six months if he or she

“determines it is necessary to continue to withhold adjudication

pending completion of the investigation.” 8 C.F.R. §

103.2(b)(18). Because 8 U.S.C. § 1252(a)(2)(ii) addresses the

Court’s lack of jurisdiction over matters within the discretion

of the Attorney General or the Secretary of Homeland Security,

and because 8 C.F.R. § 103.2(b)(18) seemingly establishes that

withholding adjudication is a matter of such discretion, the

Court has determined that there is a lack of subject matter

jurisdiction over this case. 

The United States District Court for the Eastern District of

Virginia addressed a factually similar case and reached the same

conclusion, albeit for different reasons. Safadi v. Howard, 466

F.Supp.2d 696 (E.D.Va. 2006). In Safadi, the plaintiff asked the

court to adjudicate his I-485 application after USCIS had

completed all of the usual security checks. Id. at 697. USCIS

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opposed the request and claimed that there were issues that

required further inquiry. Id. 

Although that court did not discuss the implications of 

8 C.F.R. § 103.2(b)(18), the reasoning employed in the Safadi

decision nonetheless supports the Court’s conclusion in this

case. The Safadi court noted that the term “action” in Section

1252 “encompasses any act or series of acts that are

discretionary within the adjustment of status process, including

the pace of [adjudication].” Id. at 698, 700 (citations omitted,

emphasis added). That court thus concluded that it lacked

subject matter jurisdiction to compel adjudication of the

plaintiff’s I-485 application. Id. at 700. That court further

held that there was no jurisdiction under Section 1361 or the APA

because the defendants had no clear, non-discretionary duty to

adjudicate an I-485 application within a particular time period. 

Id. at 700.

District courts within the District of New Jersey, in Qui v.

Chertoff and Serrano v. Quarantillo, followed the Safadi court’s

reasoning and similarly found that the lack of a

non-discretionary duty precluded jurisdiction under Section 1361

and the APA, and, furthermore, that Section 1252 prohibited

judicial review of the Attorney General’s actions or inactions

relating to the adjustment of a plaintiff’s immigration status. 

Qui, 486 F.Supp.2d. 412, 416-18 (D.N.J. 2007); Serrano, No.

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06-5221 (DRD), 2007 WL 1101434, at *2-*3 (D.N.J. Apr. 9, 2007). 

The plaintiffs in those cases, like Wu in this case, filed I-485

applications for change of residency status. Qui, 486 F.Supp.2d

at 414; Serrano, 2007 WL 1101434, at *1. Both plaintiffs, like

Wu, waited over two years before commencing actions seeking to

compel the Attorney General to act on their respective

applications. Qui, 486 F.Supp.2d at 414; Serrano, 2007 WL

1101434, at *1. In both cases, the district court denied the

respective plaintiff’s request for relief because it lacked

subject matter jurisdiction over the Complaint. Qui, 486

F.Supp.2d at 416-21; Serrano, 2007 WL 1101434, at *4. 

For the foregoing reasons, the Court accordingly concludes

that it lacks subject matter jurisdiction in this case, having

determined that Wu cannot “assert a colorable claim of subject

matter jurisdiction.” Iwanowa, 67 F.Supp.2d at 438. Section

1252 of the INA prohibits the Court from reviewing the

withholding of adjudication while USCIS reviews Wu’s

Applications. 8 U.S.C. § 1252(a)(2); 8 C.F.R. § 103.2(b)(18). 

The Court finds further support from the Safadi, Serrano, and Qui

courts and finds that 8 U.S.C. § 1252(a)(2) prohibits the Court,

generally, from reviewing the pace at which Defendants adjudicate

a particular I-485 application. See Qui, 486 F.Supp.2d at 416-19

(finding that Section 1252 prohibits judicial review of the

Attorney General’s inaction with respect to a request for

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adjustment of immigration status); Serrano, 2007 WL 1101434, at

*2-*3 (same); Safadi, 466 F.Supp.2d at 698 (noting that the term

“action” in Section 1252 includes the pace of adjudication). 

The Court notes, moreover, that it cannot exercise mandamus

jurisdiction here because the Attorney General has discretion

over whether to grant Wu’s Applications and the time necessary to

appropriately adjudicate them. See 8 U.S.C. § 1252(a)(2)(B)(ii). 

Section 1361 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

thereof to perform a duty owed to the plaintiff.” 28 U.S.C. §

1361. Mandamus relief under Section 1361 is an “extraordinary

remedy,” which should be utilized only to compel the performance

of “a clear non-discretionary duty.” Pittston Coal Group v.

Sebben, 488 U.S. 105, 121 (1988); United States ex rel. Vaso v.

Chertoff, 369 Fed.Appx 395, 400 (3d Cir. 2010) (“writs of

mandamus are only available to compel ‘a legal duty which is a

specific, plain ministerial act devoid of the exercise of

judgment or discretion.’”). “An act is ministerial only when its

performance is positively commanded and so plainly prescribed as

to be free from doubt.” Harmon Cove Condo. Ass’n, Inc. v. Marsh,

815 F.2d 949, 951 (3d Cir. 1987). Because Defendants’ actions in

adjudicating Wu’s Applications are not ministerial, the Court

cannot exercise mandamus jurisdiction in this case. See Vaso,

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369 Fed.Appx. at 400 (“The adjudication of Vaso’s [I-485

application] was not a ministerial act devoid of the exercise of

judgment or discretion, and thus was not relief available through

a writ of mandamus.”).

CONCLUSION

The Court, for the reasons set forth above, will grant the

motion to dismiss. The Court will issue an appropriate order and

judgment.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: September 29, 2011

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