
(2008)
Mohamoud ABDI, Plaintiff,
v.
Michael CHERTOFF, et al., Defendants.
Civil Action No. 08-11302-JLT.
United States District Court, D. Massachusetts.
December 17, 2008.

MEMORANDUM & ORDER
TAURO, District Judge.
On July 30, 2008, Plaintiff Mohamoud Abdi filed this mandamus action seeking to compel Defendants (collectively "the Government") to adjudicate Plaintiff's I-485 Application to Adjust Status.[1] Plaintiff, a Somalian asylee, filed the application on December 13, 2004,[2] but the Government has failed to adjudicate the application for over four years. Importantly, Plaintiff does not now ask this court to compel a favorable decision with respect to the application but merely seeks a court order requiring Defendants to process the application.[3] For the following reasons, this court hereby orders that: (1) Defendants' Motion to Dismiss [# 10] is DENIED; (2) Plaintiffs Motion for Summary Judgment [# 12] is ALLOWED; and (3) Defendants' Motion to Defer Consideration of Plaintiffs Motion for Summary Judgment [# 17] is DENIED.
The Government brings the Motion to Dismiss pursuant to Rule 12(b)(1) and (6) on the grounds that this court lacks subject matter jurisdiction and that Plaintiff has failed to state a claim. Plaintiff contends that this court has jurisdiction pursuant to the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., federal question jurisdiction, 28 U.S.C. § 1331; the Administrative Procedure Act ("APA"), 5 U.S.C. § 701; and the mandamus statute, 28 U.S.C. §§ 1331 and 1361, et seq. The Government argues that the pace of processing and adjudicating applications for adjustment of status is a discretionary decision barred from judicial review.[4]
Courts are divided over whether a federal court has jurisdiction to review the Government's time frame for processing applications for adjustment of status, but this court finds the reasoning in Tang v. Chertoff to be persuasive.[5] There, Judge Gertner held that the jurisdiction-stripping language in the INA only bars review of the "substance of an adjustment of status decision," leaving the "pacing of such a decision" subject to judicial review.[6] "Further, courts have noted that to defer to agencies on pace of adjudication would be effectively to lift the duty to adjudicate applications altogether."[7] The APA requires courts to "compel agency action unlawfully withheld or unreasonably delayed"[8] where the delayed agency action is "legally required."[9] "A grant of adjustment of status is not `legally required,' but adjudication of the application one way or the other certainly is."[10] Accordingly, the APA imposes a duty on the Government to adjudicate adjustment of status applications within a reasonable time.[11]
While it would be difficult to identify with any precision a "boundary between reasonable and unreasonable time for adjudication of permanent residency applications,"[12] the four-year delay here is clearly not reasonable.[13] Accordingly, Defendants are hereby ordered to adjudicate Plaintiffs application for adjustment of status and render a decision by February 17, 2009. Parties shall notify this court of the Government's decision with respect to the application by February 20, 2009.
IT IS SO ORDERED.
NOTES
[1]  Compl. ¶ 1.
[2]  Id. ¶ 8.
[3]  See id. 5.
[4]  Def.'s Mem. Supp. Mot. Dismiss 5.
[5]  493 F.Supp.2d 148 (D.Mass.2007).
[6]  See id. at 151.
[7]  Id. at 156 (citing Salehian v. Novak, No. 3:06-cv-459, 2006 WL 3041109, at *2 (D.Conn. Oct. 23, 2006); Agbemaple v. INS, No. 97-C-8547, 1998 WL 292441, at *2 (N.D.Ill. May 18, 1998)).
[8]  5 U.S.C.A. § 706(1) (West 2008).
[9]  Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004).
[10]  Tang, 493 F.Supp.2d at 155.
[11]  Id. at 154.
[12]  Id. at 157.
[13]  See id. at 157-58 (finding a four year delay unreasonable); Salehian, 2006 WL 3041109, at *1 (two years); Hu v. Reno, No. 3-99-C1136-BD, 2000 WL 425174, at *4 (N.D.Tex. 2000) (two-and-a-half years); Paunescu v. INS, 76 F.Supp.2d 896, 902 (N.D.Ill.1999) (two years); Yu v. Brown, 36 F.Supp.2d 922, 935 (D.N.M.1999) (two-and-a-half years); Agbemaple, 1998 WL 292441, at *2 (twenty months).
