Xiaohan Du v. Chertoff

Citations: 559 F. Supp. 2d 1049; 2008 U.S. Dist. LEXIS 43068; 2008 WL 2264558Docket: No. C 08-00902 WHA

Court: District Court, N.D. California; June 2, 2008; Federal District Court

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The court granted the defendants’ motion to dismiss the complaint filed by plaintiff Xiaohan Du, which sought a writ of mandamus related to delays in the adjudication of his naturalization application. Du, a lawful resident since December 2000, submitted his N-400 application on May 4, 2006, and completed his biometric processing by May 30, 2006. Despite the USCIS indicating that applications filed before June 19, 2007, would be processed, Du's application experienced delays due to an incomplete background investigation, as communicated by USCIS in a letter dated January 23, 2007. Du filed his complaint on February 12, 2008, claiming unlawful delay and asserting his eligibility for naturalization.

The court acknowledged jurisdiction under 28 U.S.C. 1331 (federal question), 28 U.S.C. 2201 (declaratory judgment), and 5 U.S.C. 701 (Administrative Procedures Act). Du sought a court order for the USCIS to adjudicate his application within 30 days and to cover reasonable costs. The defendants, however, moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and 12(b)(6) for failure to state a claim. The court accepted the complaint's well-pled allegations as true and outlined the basis for the dismissal, noting the distinction between facial and factual attacks on subject-matter jurisdiction.

A facial attack asserts that a complaint's allegations are insufficient to establish federal jurisdiction, while a factual attack contests the truth of those allegations. If the moving party shifts to a factual motion by presenting evidence, the opposing party must provide sufficient evidence to demonstrate subject matter jurisdiction. The defendants in this case are making a factual attack on jurisdiction related to a mandamus action. Under the Mandamus Act (28 U.S.C. § 1361), district courts have original jurisdiction to compel federal officers or agencies to perform duties owed to a plaintiff, but such writs are only appropriate when a clear, nondiscretionary duty exists. The Administrative Procedure Act (APA) and the Declaratory Judgment Act (DJA) do not provide independent jurisdictional bases. The APA does not offer implied jurisdiction for federal judicial review of agency actions, and the DJA is procedural, expanding remedies without extending jurisdiction. To proceed, Mr. Du must establish mandamus jurisdiction, demonstrating a clear right to relief, a defendant's clear duty to act, and the absence of other adequate remedies. This duty must be clearly defined and nondiscretionary. The court interprets the relevant statutes to assess the clarity of the duty. In this case, Mr. Du seeks a mandate for USCIS to adjudicate his application within 30 days, but the court finds the defendants argue correctly that the duty is unclear, noting that the authority to naturalize is with the Attorney General, now delegated to the Secretary of Homeland Security.

Before naturalization, an investigation by a designated employee of the Service or the Secretary of Homeland Security is required for applicants, per 6 U.S.C. 271(b) and 6 U.S.C. 551(d). This investigation, as outlined in 8 U.S.C. 1446(a) and 8 C.F.R. 335.1, includes a review of relevant records, police checks, and a neighborhood investigation for the five years preceding the application. The district director has discretion to waive the neighborhood investigation. Background checks mandated by USCIS and the FBI must be completed before adjudicating any naturalization application, as specified in various appropriations acts. Funds appropriated to the Immigration and Naturalization Service (INS) cannot be used for adjudication without confirmation of a completed criminal background check, with specific exemptions in place. USCIS has discretion regarding expedited FBI name checks, only requesting them under certain circumstances, such as military deployment or critical medical conditions. Mr. Du's inability to demonstrate that the defendants have a nondiscretionary duty to expedite the background check leads to a finding of no mandamus jurisdiction, paralleling the Ninth Circuit's decision in Stang, which dismissed a case for lack of such jurisdiction. Mr. Du's reliance on Ahmed v. Dept. of Homeland Security and Bell v. Hood does not support his argument for jurisdiction, as these cases address different aspects of mandamus relief rather than jurisdiction itself.

A judgment on the merits is warranted when a proper cause of action is not stated, rather than a dismissal due to lack of jurisdiction. In assessing jurisdiction for a mandamus action, the complaint's allegations are presumed true unless clearly frivolous, to prevent circumventing the merits under the guise of jurisdictional assessment. The court finds Mr. Du's reliance on the Bell decision incorrect; this ruling does not address the merits of mandamus relief but rather examines the district court's authority to adjudicate the motion. It concludes that no mandamus jurisdiction exists because USCIS lacks a nondiscretionary obligation to expedite FBI background checks. Consequently, the defendants' motion to dismiss is granted, and the scheduled hearing is vacated. Although there are provisions under Section 1447(b) for applicants facing delays in naturalization applications, this statute is inapplicable here since Mr. Du has not yet undergone his interview, and no other statute requires USCIS to expedite background checks prior to that interview.