                        REVISED April 30, 2010

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                           United States Court of Appeals
                                                                    Fifth Circuit

                                                                FILED
                                 No. 09-10568                  April 27, 2010
                                      c/w
                                 No. 09-10742                 Lyle W. Cayce
                                                                   Clerk

FEI BIAN,

                                           Plaintiff - Appellant

v.

HILLARY CLINTON, Secretary of the United States Department of State;
JANET A NAPOLITANO, Secretary, Department of Homeland Security;
JONATHAN SCHARFEN, Acting Director of the United States Citizenship and
Immigration Services; DAVID ROARK, Director of the USCIS Texas Service
Center; ERIC H HOLDER, JR, U S Attorney General

                                           Defendants - Appellees


                 Appeal from the United States District Court
                      for the Northern District of Texas


Before KING, WIENER, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
      Appellant Fei Bian (“Bian”), a Chinese national residing lawfully in the
United States since 1999, appeals the district court’s dismissal of her complaint
seeking to compel the United States Department of Homeland Security,
Citizenship and Immigration Services (“USCIS”) to adjudicate her I-485
application for adjustment of immigration status. Agreeing with the appellees
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that, under these facts, we lack jurisdiction to review the pace of the USCIS’s
adjudication process, we affirm.
                      I. FACTS AND PROCEEDINGS
      Bian holds a Ph.D. in chemical engineering and is employed as a senior
environmental consultant in Dallas. In September 2005, she filed an I-485
application with USCIS seeking adjustment of immigration status. Her visa
priority date is September 29, 2005, and her visa category is Employment-Based
Category 2 (EB-2) with Chinese chargeability. Bian alleges that she had
complied with all I-485 application requirements, but that her application was
still pending in September 2008, more than three years after she had submitted
it to the USCIS. After making numerous unsuccessful inquiries into the status
of her application, Bian, proceeding pro se, filed suit seeking declaratory and
injunctive relief to compel the USCIS to adjudicate her application.
      The defendants concede that Bian is eligible for an adjustment of status,
but they urge that they were unable to approve her application because there
have been no visa numbers available to assign to her. As the defendants
explain, at any given time, the USCIS is able to issue only a limited number of
visas in each category. The USCIS determines the number of available visas in
a category based on several variables, including past number use, estimates of
future number use and return dates, and estimates of USCIS demand and
pending USCIS number requests. If the number of eligible applicants in a
category is less than the number of visas available for that category, then the
category is considered “current,” and the USCIS is able to issue visas to every
eligible applicant. If, on the other hand, the number of eligible applicants in a
category is greater than the number of visas available for that particular

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category, the USCIS must set a visa availability cut-off date. In such instances,
the USCIS will award visas to all eligible applicants who filed I-485 applications
prior to the cut-off date, but will withhold any final decision on applications filed
after the cut-off date. As the defendants explain, the current cut-off date for
applicants in Bian’s category (EB-2 with Chinese chargeability) is June 1, 2004
— more than a year before Bian’s visa priority date. Thus, the defendants
argue, even if Bian were entitled to relief, they would be unable to grant her an
adjustment of status because there is no visa number currently available to her.
The defendants contend that, if forced to rule on Bian’s application, they would
have no choice but to deny her request for an adjustment of status.
      In addition to explaining that they were statutorily unable to grant Bian
an adjustment of status, the defendants also filed a Rule 12(b)(1) motion urging
the district court to dismiss Bian’s action for lack of jurisdiction. According to
the defendants, federal courts lack jurisdiction to compel the USCIS to
adjudicate an I-485 application, as Congress has left the agency’s decision-
making process — including the pace of the adjudication process — entirely to
agency discretion. When Bian failed to file any response to the defendants’ Rule
12(b)(1) motion, the district court dismissed the suit for lack of jurisdiction.
      Bian appealed the dismissal and filed a motion with the district court
seeking reconsideration of its ruling. The district court granted Bian’s motion
in part, reversing its earlier holding and concluding that it did in fact have
jurisdiction to review the pace of the USCIS’s adjudication. In reaching that
conclusion, the district court distinguished the USCIS’s ultimate decision —
which the district court acknowledged to be discretionary and not subject to
judicial review — from the agency’s decision-making process — which, according

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to the district court, includes a nondiscretionary duty to adjudicate all
applications for adjustment of status within a reasonable time. The district
court nevertheless agreed with the USCIS that, even if Bian were entitled to
relief, there were no visa numbers available for her, so the court dismissed
Bian’s complaint for failure to state a claim on which relief could be granted.
Bian now appeals both the earlier dismissal for lack of subject matter
jurisdiction and the subsequent dismissal for failure to state a claim.
                               II. LAW AND ANALYSIS
A.     Standard of review
       We review a dismissal for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) de novo.1 A district court properly dismisses a case for lack of
subject matter jurisdiction “when the court lacks the statutory or constitutional
power to adjudicate the case.”2
B.     Discussion
       Bian contends that federal courts have jurisdiction to review the USCIS’s
decision-making process pursuant to the Administrative Procedure Act (“APA”)
in conjunction with the Mandamus Act. In response, the defendants urge that
the USCIS’s pace of adjudication is not subject to judicial review, as Congress
has left the process entirely to the agency’s discretion. Although several district
courts have addressed the issue, no circuit court has yet ruled on it.3


       1
           Lundeen v. Mineta, 291 F.3d 300, 303 (5th Cir. 2002).
       2
         Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998) (internal quotation marks and citation omitted).
       3
          See Abanov v. Gonzales, No. 06-3725, 2007 WL 2872765 (S.D. Tex. Sept. 28, 2007)
(collecting cases). District courts that have considered this issue have divided sharply as to

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       1.       The Immigration and Nationality Act
       In general, an immigrant who is lawfully present in this country may
request permanent resident status by filing an I-485 application with the
USCIS.4 The Immigration and Nationality Act (“INA”) specifies that
       The status of an alien who was admitted or paroled into the United
       States ... 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




whether federal courts have jurisdiction to review the USCIS’s pace of adjudication for
resolving I-485 applications. Compare, e.g., Bugulu v. Gonzalez, 490 F. Supp. 2d 965, 967
(W.D. Wis. 2007) (holding that federal courts lack “subject matter jurisdiction ... concerning
the delay in processing ... adjustment status application[s] because it is a discretionary action
by the [USCIS] pursuant to [Section 1252]”); Abanov, 2007 WL 2872765 at *5 (explaining that
“Congress has made it clear that [federal courts are] without jurisdiction to hear” complaints
regarding the USCIS’s pace of adjudication); Safadi v. Howard, 466 F. Supp. 2d 696, 698-700
(E.D. Va. 2006) (concluding that any distinction between the USCIS’s decision and its decision-
making process is “untenable” and that federal courts lack jurisdiction to review the USCIS’s
discretionary pace of adjudication) with Dae Hyun Kim v. Ashcroft, 340 F. Supp. 2d 384, 393
(S.D.N.Y. 2004) (reasoning the USCIS has a nondiscretionary duty to adjudicate adjustment-
of-status applications within “a reasonable time” and therefore federal courts have jurisdiction
to review the pace of the agency’s adjudication). As the court in Abanov thoroughly noted, even
district courts within this circuit have reached divergent conclusions on the issue. Compare,
e.g., Osake v. Dep’t of Homeland Sec., 07-308, 2008 WL 151073, *5 (S.D. Tex. Jan. 14, 2008)
(reviewing Section 1252 and concluding that federal courts lack jurisdiction to consider
complaints regarding the USCIS’s pace of adjudication, as “Congress justifiably gave security
concerns precedence over an accelerated decision-making process when it immunized that
process from judicial review”) with Landry v. Chertoff, 2007 WL 2007996, *2-3 (E.D. La. July
5, 2007) (holding that Section 1252's jurisdiction-stripping provision applies only to orders of
removal and therefore federal courts do have jurisdiction to consider complaints regarding the
USCIS’s pace of adjudication).
       4
           8 U.S.C. § 1255(a).

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       permanent residence, and (3) an immigrant visa is immediately
       available to him at the time his application is filed.5

Importantly, 8 U.S.C. § 1255 does not specify a deadline or even a time frame for
adjudication of applications, instead committing not only the USCIS’s decision
but also any “regulations” necessary for making such a decision to agency
discretion.
       In addition, 8 U.S.C. § 1252, the INA’s jurisdiction-stripping provision,
specifies that
       [n]otwithstanding any other provision of law (statutory or
       nonstatutory) ... and [28 U.S.C.] sections 1361 and 1651 ... 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....6

It is noteworthy that Section 1252 applies not only to the USCIS’s grant or
denial of an application for adjustment of status, but also to “any other decision




       5
         Id. (emphasis added). The Attorney General’s authority under this section has since
been transferred, in part, to the Secretary of Homeland Security and the USCIS. 6 U.S.C. §
271(b)(5).
       6
         8 U.S.C. § 1252(a)(2)(B) (emphasis added); see Safadi, 466 F. Supp. 2d at 698 (“As
courts have recognized, this statute’s meaning is refreshingly free from ambiguity and its
terms are pellucidly clear: It means that courts are precluded from reviewing any discretionary
decision or action of [the] USCIS.” (emphasis in original)).

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or action” within the USCIS’s discretion.7 If Congress had intended for only the
USCIS’s ultimate decision to grant or deny an application to be discretionary —
as distinguished from its interim decisions made during the adjudicative process
— then the word “action” would be superfluous.8 Instead, Section 1252 expressly
exempts from judicial review any “action” that is within the USCIS’s discretion
and is necessary to carry out the agency’s statutory grant of authority. This
includes establishing “such regulations as [the agency] may prescribe” to carry
out its statutory duty, such as 8 C.F.R. § 245.2(a)(5)(ii), which specifies that “[a]n
application for adjustment of status, as a preference alien, shall not be approved
until an immigrant visa number has been allocated by the Department of
State....”9 As Bian contests the USCIS’s decision to adjudicate her application



       7
           8 U.S.C. § 1252(a)(2)(B) (emphasis added).
       8
           We agree with the analysis of the statute in Abanov v. Gonzalez:

       The court is unpersuaded that there is any meaningful distinction between the
       adjustment status decision, which all agree is unreviewable, and the process of
       reaching that decision. Were the term “action” limited only to the final decision
       regarding an adjustment of status, then the term “action” in “decision or action”
       would be superfluous, a result which violates basic principles of statutory
       interpretation. Thus, “action” must contemplate more than merely the ultimate
       decision made by the USCIS on an applicant’s I-485 application.

2007 WL 2872765 at *5; see Safadi, 466 F. Supp. 2d at 700 (“In effect, plaintiff argues that the
phrase ‘decision or action’ encompasses only the results of the adjudications, i.e., the decision,
and not the process. Plaintiff’s argument fails as it would impermissibly render the word
‘action’ superfluous.”).
       9
          See 8 C.F.R. § 245.2(a)(5)(ii). Examples of comparable USCIS regulations include,
e.g., the requirement that applicants be examined by a civil surgeon, 8 C.F.R. § 245.5, the
requirement that applicants be interviewed by an immigration officer, 8 C.F.R. § 245.6, and
the requirement that certain background checks be performed and fingerprints taken before
any application for permanent residence may be granted.

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in compliance with regulations that are clearly within the agency’s discretion to
establish, the federal courts are without jurisdiction to entertain her claim.
       2.         The Mandamus Act
       Undeterred by the language of the INA, Bian asserts that federal courts
have jurisdiction to consider the pace of the USCIS’s adjudicative process under
the Mandamus Act, which provides that “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.”10 To establish jurisdiction under the Mandamus Act, the plaintiff’s
claim must be “clear and certain and the duty of the officer [must be] ministerial
and so plainly prescribed as to be free from doubt.”11 As we have previously
explained, “mandamus is not available to review the discretionary acts of
officials.”12
       As an initial matter, we note that Section 1252's jurisdiction-stripping
provision expressly states that it applies “[n]otwithstanding any other provision
of law (statutory or nonstatutory), including ... Title 28 ... section[ ] 1361 [the
Mandamus Act].”13 This alone is dispositive of the issue. Nevertheless, we also
note as significant the complete absence of any time limit in Section 1255's grant
of statutory authority to the USCIS. In fact, the statute specifies that it is


       10
            28 U.S.C. § 1361.
       11
            Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir. 1992).
       12
            Id.
       13
         8 U.S.C. § 1252(a)(2)(B); see Abanov, 2007 WL 2872765 at * 5 (“Finally, the court
notes that section 1252 expressly precludes judicial review notwithstanding section 1361
(Mandamus Act) or any other provision of law.”).

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within the USCIS’s discretion to adjudicate I-485 applications “under such
regulations as [the agency] may prescribe.”14 As the USCIS has discretion to
adjudicate applications under regulations that it deems necessary to carry out
its statutory grant of authority, e.g., by not granting adjustments of status until
visa numbers become available, we conclude that the Mandamus Act is
unavailable to Bian in requesting us to compel adjudication of her application
in violation of the USCIS’s established regulations.
      Bian nevertheless contends that the USCIS has a “plainly prescribed” duty
to adjudicate her application promptly under 8 U.S.C. § 1571, which states 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.”15 We do not agree that this statue, which merely expresses
Congress’s sense of the adjudicative process, establishes that Bian has a “clear
and certain” right to have her I-485 application adjudicated within 180 days of
its filing — or that the USCIS has a “plainly prescribed” duty to process the
application within that time frame.16 Moreover, even if the statute could be used
as a baseline for judging whether the USCIS’s pace of adjudication is reasonable,
our review is precluded by Section 1252, which bars review of the pace of the
USCIS’s decision-making process, “[n]otwithstanding any other provision of law
(statutory or nonstatutory).”
      3.       The Administrative Procedure Act

      14
           8 U.S.C. § 1255(a).
      15
           8 U.S.C. § 1571.
      16
           See Yang v. Cal. Dept. of Social Services, 183 F.3d 953, 961 (9th Cir. 1999)
(describing a similar “sense of Congress provision” as “non-binding, legislative dicta”).

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       Finally, Bian urges that the Administrative Procedure Act (“APA”) too
supports the presence of federal jurisdiction over her action seeking to compel
the USCIS to adjudicate her application for adjustment of status. We disagree.
The APA specifies 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.”17 The APA provides
for judicial review of government action “only where a plaintiff asserts that an
agency failed to take a discrete agency action that it is required to take.”18
Importantly, the APA does not apply to the extent that other “statutes preclude
judicial review” or “agency action is committed to agency discretion by law.”19
Here, not only does Section 1252 expressly preclude judicial review
“[n]otwithstanding any other provision of law (statutory or nonstatutory),” but
the USCIS undeniably has discretion to adjudicate applications “under such
regulations as [the agency] may prescribe,” providing yet another barrier to the
exercise of federal jurisdiction under the APA.
                                         III. CONCLUSION
       We conclude that the district court lacked jurisdiction to consider Bian’s
claim, as Congress has expressly precluded judicial review of the USCIS’s pace
of adjudication when the agency acts within its discretion and pursuant to the




       17
             5 U.S.C. § 702.
       18
             Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64-65 (2004) (emphasis in
original).
       19
             5 U.S.C. § 701(a)(1)-(2).

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regulations that the agency deems necessary for carrying out its statutory grant
of authority. For the reasons stated above, the dismissal of Bian’s claim is
AFFIRMED.




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