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Al Jabari v. Chertoff: US District Court : IMMIGRATION | APA - discretion to grant or deny isn't to do neither; but inaction not action

1Pursuant to Fed. R. Civ. P. 25(d), Attorney General Michael Mukasey is substituted as a
defendant for his predecessor, Alberto Gonzales.
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FAHED AKRAM AL JABARI,
Plaintiff,
v.
MICHAEL CHERTOFF, Secretary,
Department of Homeland Security; ROBERT
MUELLER, Director, Federal Bureau of
Investigation; MARK CANGEMI, District
Director, U.S. Immigration and Customs
Enforcement; and MICHAEL MUKASEY,
United States Attorney General,
Defendants.
Civil No. 07-2591 (PJS/JJG)
ORDER GRANTING IN PART AND
DENYING IN PART
MOTION TO DISMISS OR FOR
SUMMARY JUDGMENT
Marc Prokosch, KARAM & ASSOCIATES, for plaintiff.
Robyn A. Millenacker, Assistant United States Attorney, UNITED STATES
ATTORNEY’S OFFICE, for defendants.
Plaintiff Fahed Al Jabari is attempting to become a legal permanent resident of the
United States. Before Al Jabari can be granted such status, the federal government must
complete certain security checks on him. Al Jabari waited about eighteen months for defendants
to complete those security checks and then, losing patience, he brought this action to compel
defendants to finish their work. This matter is before the Court on defendants’1 motion to
dismiss or for summary judgment. For the reasons set forth below, the Court grants the motion
with respect to Al Jabari’s claim under the Mandamus Act, 28 U.S.C. § 1361, and with respect to
2Unless otherwise noted, all statutory citations are to Title 8 of the United States Code.
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all claims against FBI Director Robert Mueller. The Court denies the motion in all other respects.
I. BACKGROUND
Al Jabari, a citizen of Jordan, first entered the United States in 1993 as a nonimmigrant
student. Al Jabari later married a citizen of the United States while in Jordan and, following his
marriage, returned to the United States as a conditional permanent resident in June 1999.
Administrative Record (“AR”) 1 [Docket No. 14]. Conditional permanent residency is the status
granted to an alien who is married to a United States citizen, but whose marriage is less than two
years old. See 8 U.S.C. § 1186a(a)(1), (g)(1).2 If the alien is to remain in the United States
indefinitely, the alien and his citizen-spouse must jointly petition to remove the conditional basis
of the alien’s permanent residency within a certain time period. § 1186a(c)(1), (d)(2). If no such
petition is timely filed, the alien’s permanent residency is terminated, and the alien is usually
removed from the United States. § 1186a(c)(2). The Attorney General, however, has the
discretion to grant a “hardship waiver” of the joint-petition requirement under various
circumstances, including if the alien demonstrates that his removal from the United States would
cause “extreme hardship.” § 1186a(c)(4).
Al Jabari and his wife became estranged shortly after they were married. They did not
file a joint petition under § 1186a(c)(1) — presumably because Al Jabari’s wife was unwilling to
join such a request — and their marriage ultimately ended in divorce in February 2002.
Meanwhile, in June 2001, Al Jabari asked the Attorney General to grant him a hardship waiver
of the joint-petition requirement. AR 7, 208-211. After reviewing the materials Al Jabari
submitted with his request, United States Citizenship and Immigration Services (“USCIS”)
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concluded that Al Jabari’s marriage was a sham — a marriage that Al Jabari entered solely to
obtain permanent residency in the United States. AR 210. In September 2004, USCIS denied Al
Jabari’s § 1186a(c)(4) petition for a hardship waiver, terminated his permanent residency, and
began removal proceedings against him. AR 3, 7. In the removal proceedings, Al Jabari
renewed his hardship petition and requested review of the termination of his permanent
residency in accordance with § 1186a(b)(2). Third Millenacker Decl. Ex. CC [Docket No. 21].
The evidentiary record on Al Jabari’s renewed hardship petition closed in April 2006.
Third Millenacker Decl. Ex. CC. The Immigration Judge (“IJ”) has not yet issued a decision,
however, because federal regulations preclude the lifting of conditions on permanent residency
before required security checks are completed. 8 C.F.R. § 1003.47(b)(4), (g). Although the
briefing is not entirely clear, it appears that the only remaining security check to be completed on
Al Jabari is a “name check.”
A name check is a multi-step process in which the FBI searches its files for information
linked to a particular name and other associated identification information, such as birthdate or
social security number. Cannon Decl. ¶¶ 11, 13, 21 [Docket No. 9]. If any unfavorable
information is found, the FBI forwards a summary of the information to USCIS. Cannon Decl.
¶ 17. The vast majority of name checks that the FBI conducts for USCIS yield no information at
all; less than one percent of name checks retrieve possible unfavorable information. Cannon
Decl. ¶¶ 13-14, 17.
Generally, the FBI processes name checks in the order in which requests are received, but
USCIS can direct that a particular name check be expedited, in which case it is moved to the
front of the queue. Cannon Decl. ¶ 18. The FBI has no statutory duty to conduct name checks
3At oral argument, Al Jabari conceded that because no statute or regulation imposes on
the FBI a duty to complete his name check, the Court cannot enter an order against the FBI. The
Court will therefore grant defendants’ motion to dismiss with respect to FBI Director Robert
Mueller.
4Shortly after briefing on defendants’ motion was complete, the IJ granted USCIS’s
request to reopen the record to consider additional evidence from Al Jabari’s ex-wife. Third
Millenacker Decl. Ex. CC. Defendants argue that, because the IJ may deny Al Jabari relief on
the basis of the new evidence without waiting for completion of the name check, this case could
become moot. This case is not moot now, however. Given that defendants’ motion has been
fully briefed and argued, and given that the motion mainly concerns the threshold issue of
jurisdiction, the Court will proceed to resolve it.
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for USCIS, but instead does so pursuant to a contract with the agency. See Konchitsky v.
Chertoff, No. 07-294, 2007 WL 2070325, at *5-6 (N.D. Cal. July 13, 2007). USCIS submitted a
name-check request for Al Jabari on January 10, 2006 — more than two years ago. Cannon
Decl. ¶ 39. The FBI has yet to complete the check. Cannon Decl. ¶ 39.
Frustrated with the wait, and believing that the IJ will grant his petition as soon as the
name check is completed, Al Jabari initiated this action in June 2007 seeking to compel the
completion of his security check.3 Al Jabari argues that he is entitled to relief under the
Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 551 et seq. Defendants move to dismiss or for summary judgment, arguing that the Court
lacks jurisdiction over Al Jabari’s claims and, on the merits, arguing that the delay in completing
his security check is reasonable.4
II. ANALYSIS
A. Mandamus Act
The Mandamus Act 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
-5-
any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. The Act does not
itself waive sovereign immunity. Essex v. Vinal, 499 F.2d 226, 231-32 (8th Cir. 1974). But
under what is known as the Larson-Dugan exception to sovereign immunity, see Larson v.
Domestic & Foreign Commerce Corp., 337 U.S. 682, 689 (1949); Dugan v. Rank, 372 U.S. 609,
621-22 (1963), no waiver of sovereign immunity is necessary when “a plaintiff seeks a writ of
mandamus to force a public official to perform a duty imposed upon him in his official
capacity . . . .” Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 901 (D.C. Cir.
1996). The rationale of the Larson-Dugan exception to sovereign immunity was described by
the Supreme Court as follows:
There may be, of course, suits for specific relief against officers of
the sovereign which are not suits against the sovereign. . . . .
[W]here the officer’s powers are limited by statute, his actions
beyond those limitations are considered individual and not
sovereign actions. The officer is not doing the business which the
sovereign has empowered him to do or he is doing it in a way
which the sovereign has forbidden. His actions are ultra vires his
authority and therefore may be made the object of specific relief.
Larson, 337 U.S. at 689.
For mandamus to issue under 28 U.S.C. § 1361, the plaintiff must have a clear and
indisputable right to the relief sought, the defendant must have a non-discretionary duty to honor
that right, and the plaintiff must have no other adequate remedy. Castillo v. Ridge, 445 F.3d
1057, 1060-61 (8th Cir. 2006). Al Jabari alleges that he has a clear and indisputable right to a
prompt security check — and that DHS has a non-discretionary duty to provide a prompt
security check — under 8 C.F.R. § 1003.47(e). That regulation provides:
DHS shall endeavor to initiate all relevant identity, law
enforcement, or security investigations or examinations concerning
the alien or beneficiaries promptly, to complete those
5Defendants resist even this conclusion, arguing that, because only the FBI can conduct a
name check, a writ of mandamus would not lie against DHS. But § 1003.47(e) imposes the duty
to initiate and complete security checks on DHS, not on the FBI, and DHS cannot, by entering
into a contract with the FBI, “shift responsibility for its breach of duty to the FBI . . . .”
Konchitsky, No. 07-294, 2007 WL 2070325, at *5.
-6-
investigations or examinations as promptly as is practicable
(considering, among other things, increased demands placed upon
such investigations), and to advise the immigration judge of the
results in a timely manner, on or before the date of a scheduled
hearing on any application for immigration relief filed in the
proceedings.
The Court agrees with Al Jabari that, under § 1003.47(e), DHS has a non-discretionary
duty to initiate and complete a security check. Thus, if DHS had refused to conduct any security
check on Al Jabari, he would be entitled to relief under the Mandamus Act.5 But the Court
cannot agree with Al Jabari that § 1003.47(e) imposes on DHS a non-discretionary duty to
complete a prompt security check. The regulation merely requires DHS to “endeavor . . . to
complete those investigations or examinations as promptly as is practicable (considering, among
other things, increased demands placed upon such investigations) . . . .” This is not the language
of prescription, but of aspiration.
If the regulation said something like “DHS shall complete all relevant security
investigations concerning the alien within 120 days,” then the regulation would impose a nondiscretionary
duty on DHS. But the regulation instead directs DHS to “endeavor” — that is, to
try — to complete the security check “as promptly as is practicable.” This standard, unlike
“within 120 days,” is both vague (what is “promptly”?) and inevitably requires the exercise of
judgment (how much promptness is “practicable”?). As if to emphasize the discretionary nature
of the duty, the regulation goes on to point out that multiple factors will inform the DHS’s
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decision about how much promptness is “practicable,” including “increased demands placed
upon such investigations.”
At bottom, the regulation simply says to DHS: “You should try to complete the security
check as quickly as is practicable, given all of the other demands on your resources.” This does
not impose the type of clear, indisputable, non-discretionary duty that can be enforced under the
Mandamus Act. Defendants’ motion to dismiss or for summary judgment is therefore granted
with respect to Al Jabari’s request for a writ of mandamus compelling defendants to complete
the security check “promptly.”
B. APA
The APA provides that “[a] person suffering 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. “Agency action” includes the failure of an
agency to act. 5 U.S.C. § 551(13); Kenney v. Glickman, 96 F.3d 1118, 1122 n.3 (8th Cir. 1996).
District courts have jurisdiction under 28 U.S.C. § 1331 to hear actions seeking relief under
5 U.S.C. § 702. Black Hills Inst. of Geo. Research v. S.D. Sch. of Mines & Tech., 12 F.3d 737,
740 (8th Cir. 1993). Moreover, 5 U.S.C. § 702 waives sovereign immunity for actions “seeking
relief other than money damages . . . .” 5 U.S.C. § 702; Black Hills Inst. of Geo. Research, 12
F.3d at 740.
The APA explicitly gives courts the authority to “compel agency action unlawfully
withheld or unreasonably delayed[.]” 5 U.S.C. § 706(1). To be entitled to such relief, a plaintiff
must establish that the agency has a non-discretionary duty to act. Norton v. S. Utah Wilderness
Alliance, 542 U.S. 55, 63-64 (2004). As noted, the Court agrees with Al Jabari that 8 C.F.R.
6Defendants also argue that the APA never applies to immigration proceedings, citing
Marcello v. Bonds, 349 U.S. 302 (1955). Marcello does not stand for such a broad principle. As
the Eighth Circuit recently noted, the APA in some instances empowers district courts to review
certain orders of the Board of Immigration Appeals. See Ikenokwalu-White v. Gonzales, 495
F.3d 919, 925-26 (8th Cir. 2007). More importantly, Al Jabari is not using the APA to gain
district-court review of the merits of a decision reached in an immigration proceeding; he is
instead using the APA to seek an order compelling defendants to complete a security check.
-8-
§ 1003.47(e) imposes a non-discretionary duty on DHS to do a security check on Al Jabari.
Defendants argue that § 1003.47(e) does not require DHS to complete the security check by a
particular date, but the APA itself imposes a duty on agencies to act within a reasonable time:
“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); see also Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094,
1099-1100 (D.C. Cir. 2003). In sum, § 1003.47(e) imposes on DHS the duty to complete Al
Jabari’s security check, and § 555(b) imposes on DHS the duty to complete Al Jabari’s security
check within a reasonable time. Thus, the question for the Court is whether DHS has, in fact,
unreasonably delayed Al Jabari’s security check.
Defendants contend that the Court cannot reach this question because, according to
defendants, the Court is divested of jurisdiction over Al Jabari’s APA claim by virtue of
§§ 1252(a)(2)(B), 1252(g), and 1252(b)(9). The Court considers each provision in turn.6
1. Section 1252(a)(2)(B)
Section 1252(a)(2)(B), which is entitled “Denials of discretionary relief,” states, in
relevant part:
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any other
habeas corpus provision, and sections 1361 and 1651 of such
-9-
title . . . and regardless of whether the judgment, decision, or
action is made in removal proceedings, no court shall have
jurisdiction to review —
(i) any judgment regarding the granting of relief
under section 1182(h), 1182(i), 1229b, 1229c, or
1255 of this title, 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 . . . .
The decision whether to grant or deny a hardship waiver to Al Jabari under § 1186a(c)(4)
is plainly within the discretion of the Attorney General. Because the decision itself is
discretionary, defendants argue, the manner in which the decision is made, including the timing
of the decision, is also discretionary. Thus, according to defendants, the timing of the decision is
itself an “action of the Attorney General . . . the authority for which is specified under this
subchapter to be in the discretion of the Attorney General,” making the timing of the decision
unreviewable under § 1252(a)(2)(B).
The Court disagrees. The Attorney General has discretion to grant or deny a request for a
hardship waiver. But the Attorney General does not have discretion to refuse to act on a request
for a hardship waiver. In other words, the Attorney General has discretion over what a decision
will be, but not over whether a decision will be made; the Attorney General does not have
discretion to refuse to exercise his discretion. See Saleem v. Keisler, No. 06-712, 2007 WL
3132233, at *6 (W.D. Wis. Oct. 26, 2007) (“a right to request relief inherently implies a
corresponding obligation to respond”); Asrani v. Chertoff, No. 07-1673, 2007 WL 3521366, at
*3 (D. Minn. Nov. 14, 2007) (explaining the difference between the discretion to grant or deny
-10-
relief and the non-discretionary duty to make a decision); Konchitsky, No. 07-294, 2007 WL
2070325, at *3 (same); Haidari v. Frazier, No. 06-3215, 2006 WL 3544922, at *4 (D. Minn.
Dec. 8, 2006) (same); see also S. Utah Wilderness Alliance, 542 U.S. at 65 (“when an agency is
compelled by law to act within a certain time period, but the manner of its action is left to the
agency’s discretion, a court can compel the agency to act, but has no power to specify what the
action must be”); Iddir v. INS, 301 F.3d 492 (7th Cir. 2002) (noting the distinction between a
discretionary action or decision and the failure to take an action or make a decision, and holding
that § 1252(a)(2)(B) did not bar review of the latter).
Moreover, as other courts have noted, § 1252(a)(2)(B) does not shield all discretionary
decisions from review, but instead quite specifically divests jurisdiction over decisions or actions
“the authority for which is specified under this subchapter to be in the discretion of the Attorney
General . . . .” (emphasis added). Defendants do not identify any provision of the relevant
subchapter that “specifie[s]” that the Attorney General has discretion over the pace of his
decision making. Cf. Han Cao v. Upchurch, 496 F. Supp. 2d 569, 573 (E.D. Pa. 2007) (because
statute under which plaintiffs sought adjustment of status was silent with respect to the pace of
adjudication, § 1252(a)(2)(B) did not divest the court of jurisdiction); Sawad v. Frazier, No. 07-
1721, 2007 WL 2973833, at *2 (D. Minn. Oct. 9, 2007) (same).
Finally, the title of § 1252(a)(2)(B), “Denials of discretionary relief,” confirms that the
provision was not intended to sweep as broadly as defendants contend. See Konchitsky, No. 07-
294, 2007 WL 2070325, at *3. The Court does indeed lack jurisdiction to review a denial of
discretionary relief. But failing to make a decision — any decision — is not the same as
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deciding to deny relief. The Court therefore concludes that § 1252(a)(2)(B) does not divest it of
jurisdiction over Al Jabari’s APA claim.
2. Section 1252(g)
Defendants next argue that the Court lacks jurisdiction under § 1252(g). That provision
states as follows:
Except as provided in this section and notwithstanding any other
provision of law (statutory or nonstatutory), including section 2241
of title 28, United States Code, or any other habeas corpus
provision, and sections 1361 and 1651 of such title, no court shall
have jurisdiction to hear any cause or claim by or on behalf of any
alien arising from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal
orders against any alien under this chapter.
The Supreme Court has explained that § 1252(g) deprives courts of jurisdiction only over
claims that arise from one of three discrete “decisions or actions” that the Attorney General may
take in the course of removal proceedings: the decision or action to (1) commence removal
proceedings, (2) adjudicate removal proceedings, or (3) execute removal orders. Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (“AAADC”). In the past,
the Attorney General sometimes exercised his or her discretion to abandon removal proceedings
at one of these junctures, whether for humanitarian or other reasons. Id. at 483-84. For example,
the Attorney General might decide not to execute an order of removal against an alien because
the alien was terminally ill. This practice gave rise to litigation in cases in which the Attorney
General did not abandon removal proceedings. Id. at 484-85. The purpose of § 1252(g), the
Supreme Court explained, was to shield this and similar exercises of discretion from judicial
7Defendants point out that § 1252(g) has been amended since AAADC was decided, but
the amendment, which was designed to overrule the result in INS v. St. Cyr, 533 U.S. 289 (2001),
is not relevant to the issues in this case. See Millenacker Supp. Decl. Ex. A (legislative history
of the REAL ID Act of 2005) [Docket No. 23].
8Defendants argue that this case is similar to Sharif ex rel. Sharif v. Ashcroft, 280 F.3d
786 (7th Cir. 2002), in which the Seventh Circuit held that the district court lacked jurisdiction to
stay removal. But that type of claim “aris[es] from the decision or action by the Attorney
General to . . . execute removal orders,” and thus jurisdiction was plainly precluded under
§ 1252(g). Unlike the plaintiffs in Sharif, Al Jabari is not seeking to interfere with any attempt
to execute a removal order.
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review — that is, to prevent courts from reviewing decisions of the Attorney General not to
abandon removal proceedings.7 Id. at 485.
Citing AAADC, the Eighth Circuit held in Sabhari v. Reno that § 1252(g) has no
application outside the removal context. 197 F.3d 938, 942 (8th Cir. 1999). Specifically, the
Eighth Circuit explained that, “because Sabhari’s petition for adjustment of status is separate and
distinct from any matter related to an order of deportation, § 1252(g) has nothing to do with the
present case.” Id. (citation and quotations omitted). Precisely the same can be said of Al
Jabari’s case. Thus, under Sabhari, § 1252(g) does not apply to Al Jabari’s attempt to gain an
adjustment of status from conditional permanent residency to unconditional permanent
residency.8
It is true, of course, that consideration of Al Jabari’s hardship petition and review of the
termination of his permanent-resident status are taking place in the context of a removal
proceeding. See § 1186a(b)(2) (permitting an alien whose marriage is determined to be a sham
to obtain review of that determination in removal proceedings); see also 8 C.F.R. § 216.5(f) (no
right to seek review of denial of § 1186a(c)(4) hardship petition except in removal proceedings).
9Although the Eighth Circuit made no mention of the fact in its opinion in Sabhari, the
alien spouse in that case was, like Al Jabari, placed in removal proceedings after his marriage to
a United States citizen was determined to be a sham. See Brief of Appellees at 11, Sabhari v.
Reno, 197 F.3d 938 (8th Cir. 1999) (No. 98-3843; brief filed Mar. 22, 1999). Yet the Eighth
Circuit squarely held that because that spouse’s “petition for adjustment of status is separate and
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But as the Supreme Court made clear in AAADC, § 1252(g) does not apply to every decision or
action that has some connection to a removal proceeding:
[§ 1252(g)] applies only to three discrete actions that the Attorney
General may take: her “decision or action” to “commence
proceedings, adjudicate cases, or execute removal orders.”
(Emphasis added.) There are of course many other decisions or
actions that may be part of the deportation process — such as the
decisions to open an investigation, to surveil the suspected
violator, to reschedule the deportation hearing, to include various
provisions in the final order that is the product of the adjudication,
and to refuse reconsideration of that order.
It is implausible that the mention of three discrete events
along the road to deportation was a shorthand way of referring to
all claims arising from deportation proceedings.
AAADC, 525 U.S. at 482.
Al Jabari’s claim in this case — that DHS has unreasonably delayed his security
check — did not “aris[e] from” the “decision or action” of the Attorney General to commence
removal proceedings against Al Jabari, to adjudicate Al Jabari’s removal case, or to execute an
order of removal against Al Jabari. Long before removal proceedings were commenced against
him, Al Jabari filed a § 1186a(c)(4) petition for a hardship waiver. Thus, whether or not removal
proceedings were ever commenced against Al Jabari, DHS would have had the duty to complete
a security check on him under 8 C.F.R. § 1003.47(e). Obviously, then, the claim in this case,
like the claim in Sabhari, arose from the original hardship petition and not from removal
proceedings.9 As a result, § 1252(g) does not bar judicial review.
distinct from any matter related to an order of deportation, § 1252(g) has nothing to do with the
present case.” Sabhari, 197 F.3d at 942.
-14-
Even if § 1252(g) could be read to apply to claims arising from adjustment-of-status
petitions — rather than just to claims arising from removal proceedings — Al Jabari’s claim in
this case still would not fall within § 1252(g)’s jurisdictional prohibition. Section 1252(g)
applies only to causes or claims arising out of a “decision or action.” But, as discussed above,
Al Jabari is not seeking review of a decision or action; to the contrary, he is asking that DHS be
ordered to make a decision or take an action. Although some statutes (such as the APA)
expressly define “action” to include the failure to act, the normal understanding of the word
“action” does not encompass inaction. See Saleem, No. 06-712, 2007 WL 3132233, at *4 (“no
matter how narrowly a court defines ‘action,’ it would be an Orwellian twisting of the word to
conclude that it means a failure to adjudicate”).
As a general rule, there is a strong presumption in favor of judicial review of
administrative action. Ismailov v. Reno, 263 F.3d 851, 854 (8th Cir. 2001). Moreover,
ambiguities in removal statutes are normally construed in favor of the alien. See Naderpour v.
INS, 52 F.3d 731, 733 (8th Cir. 1995) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 449
(1987)). In light of these principles, the Court concludes that § 1252(g)’s preclusion of judicial
review of the Attorney General’s “decision or action” to grant or deny Al Jabari’s hardship
waiver does not preclude review of DHS’s failure to make a decision or take an action that is a
prerequisite to the grant of such a waiver. Specifically, the Court concludes that § 1252(g) does
not divest it of jurisdiction over Al Jabari’s claim under the APA that DHS has “unlawfully
withheld or unreasonably delayed” his security check. 5 U.S.C. § 706(1).
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3. Section 1252(b)(9)
Finally, citing § 1252(b)(9), defendants contend that the overall “statutory scheme” of
§ 1252 precludes piecemeal review of immigration proceedings in district courts and instead
consolidates review of all such proceedings in the courts of appeals. Section 1252(b)(9)
provides that “[j]udicial review of all questions of law and fact . . . arising from any action taken
or proceeding brought to remove an alien from the United States under this subchapter shall be
available only in judicial review of a final order under this section.” § 1252(b)(9).
Unfortunately for defendants, § 1252 is entitled “Judicial review of orders of removal,”
and no such judicial review is being sought in this case. Moreover, the claim that Al Jabari
makes here — that DHS should be ordered to complete the security check without unreasonable
delay — can by definition never be made on review of a final order of removal. As Al Jabari
points out, he is not in any way collaterally attacking or circumventing the administrative
process; he is trying to get DHS to complete the process. Finally, the Court has already
concluded that the questions of law and fact in this case are separate from Al Jabari’s removal
proceeding and thus do not “aris[e] from any action taken or proceeding brought to remove an
alien . . . .” For these reasons, § 1252(b)(9) does not bar Al Jabari’s APA claim.
4. Unlawfully Withheld or Unreasonably Delayed
Turning to the merits of Al Jabari’s APA claim, defendants argue that summary judgment
is appropriate because the two-year (and counting) delay in completing Al Jabari’s name check
is reasonable for purposes of the APA. 5 U.S.C. § 706(1). Al Jabari, of course, argues that the
delay is unreasonable.
-16-
The Court has no idea who is correct. As many courts have emphasized, determining
whether an agency action has been unreasonably delayed within the meaning of the APA is factintensive
inquiry. See Sawad, No. 07-1721, 2007 WL 2973833, at *4-5; Haidari, No. 06-3215,
2006 WL 3544922, at *5. The Court cannot assess whether the delay in this case is
unreasonable without considering a number of factors, including the length of the delay, the
complexity of the investigation, the relative fault of the parties in causing the delay, the number
and nature of the other demands on DHS and the FBI, the effect that compelling action will have
on the parties and others, and the nature and extent of the interests prejudiced by delay. See
Sawad, No. 07-1721, 2007 WL 2973833, at *5; Saleem, No. 06-712, 2007 WL 3132233, at *11.
The record does not contain nearly enough evidence to permit the Court to weigh these factors,
and thus the Court will not enter judgment for either party on the issue of the reasonableness of
the delay.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1. Defendants’ motion to dismiss or for summary judgment [Docket No. 5] is
GRANTED IN PART and DENIED IN PART.
a. Defendants’ motion is GRANTED with respect to plaintiff’s claims under
the Mandamus Act and plaintiff’s claims against FBI Director Robert
Mueller. Those claims are DISMISSED WITH PREJUDICE AND ON
THE MERITS.
b. Defendants’ motion is DENIED in all other respects.
-17-
2. Pursuant to Fed. R. Civ. P. 25(d), Attorney General Michael Mukasey is
substituted as a defendant for his predecessor Alberto Gonzales.
Dated: January 15 , 2008 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
 

 
 
 

  What day were you injured?

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Work-Related Injury
Wrongful Death
Dog Bite
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