1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KELLY CHUNG LEE, Case No.: 22-CV-176 TWR (AHG)

12 Plaintiff,

ORDER (1) GRANTING

13 v. UNOPPOSED MOTION TO

DISMISS, AND (2) DISMISSING

14 MERRICK GARLAND, Attorney

WITHOUT PREJUDICE

General, U.S. Department of Justice; et 15 PLAINTIFF’S COMPLAINT al.,

16 Defendants. (ECF No. 9) 17

18 Presently before the Court is the Motion to Dismiss (“Mot.,” ECF No. 9) Plaintiff 19 Kelly Chung Lee’s Complaint for lack of subject-matter jurisdiction pursuant to Federal 20 Rule of Civil Procedure 12(b)(1) filed by Defendants Merrick Garland, Attorney General, 21 U.S. Department of Justice (“DOJ”); Alejandro Mayorkas, Secretary, U.S. Department of 22 Homeland Security (“DHS”); Ur Mendoza Jaddou, Director, U.S. Citizenship & 23 Immigration Services (“USCIS”); and Madeline Kristoff, Director, San Diego Field Office, 24 USCIS. Plaintiff did not file an opposition to the Motion, (see generally Docket); however, 25 Defendants filed a Reply (ECF No. 10). The Court vacated the hearing and took the Motion 26 under submission on the papers without oral argument pursuant to Civil Local Rule 27 7.1(d)(1). (See ECF No. 11.) Plaintiff’s “failure timely to file an opposition to 28 [Defendant’s] motion may be construed as consent to the granting of the motion pursuant 1 to Civil Local Rule 7.1(f)(3)(c)” and Section III.A.2 of the undersigned’s Standing Order 2 for Civil Cases. Even reviewing the Motion and Plaintiff’s Complaint (“Compl.,” ECF 3 No. 1) on the merits, however, the Court GRANTS the Motion and DISMISSES 4 WITHOUT PREJUDICE Plaintiff’s Complaint. 5 BACKGROUND 6 On February 7, 2022, Plaintiff Kelly Chung Lee filed a Complaint against 7 Defendants pursuant to the Mandamus Act, 28 U.S.C. § 1361, and the Administrative 8 Procedure Act (“APA”), 5 U.S.C. §§ 701, et seq. (See generally Compl.) 9 Plaintiff is a citizen and national of South Korea and has been a lawful permanent 10 resident of the United States since her admission on November 20, 1981. (See Compl. ¶ 2, 11 14–15.) Pursuant to the Immigration and Nationality Act (“INA”), Plaintiff filed her 12 Application for Naturalization (“N-400 Application”) with USCIS on February 19, 2020. 13 (See id. ¶¶ 1–2, 16.) After filing, Plaintiff contacted USCIS numerous times to inquire 14 about the status of her N-400 Application and was informed that her case remained under 15 review. (See id. ¶ 17.) 16 At the time the Complaint was filed, USCIS had not yet scheduled Plaintiff for an 17 interview regarding her N-400 Application. (See id. ¶¶ 2, 17.) At that same time—when 18 Plaintiff’s N-400 Application had been pending for more than twenty-three months, (see 19 id. ¶¶ 17–18)—the USCIS website also indicated that the processing period for applications 20 for naturalization fell between 10.5 and 15.5 months. (See id. ¶ 18.) Thus, the Complaint 21 asked this Court to order Defendants to adjudicate Plaintiff’s application for naturalization 22 within sixty days or a reasonable time and to retain jurisdiction during Plaintiff’s 23 application process. (See id. ¶¶ 27–28.) 24 After Plaintiff filed her Complaint, Defendants sent her a USCIS Interview Notice 25 dated May 10, 2022 (the “Notice”). (See ECF No. 9-1 (“Ex. A”).) The Notice indicated 26 that the USCIS San Diego Field Office had scheduled Plaintiff for an interview on July 6, 27 2022, to address her N-400 Application and I-485 Application. (See id.) The Notice also 28 / / / 1 stated that “[a]dditional information is needed to complete [Plaintiff’s] Form N-400 2 application.” (Id.) 3 On July 5, 2022, Defendants filed the instant Motion to Dismiss pursuant to Federal 4 Rule of Civil Procedure 12(b)(1). (See generally Mot.) The Court set the Motion for a 5 hearing on September 29, 2022. Pursuant to the undersigned’s Standing Order for Civil 6 Cases, Plaintiff was required to file an opposition on or before September 8, 2022. See 7 Standing Order for Civil Cases § III.B.2 (“[A]ny opposition (or statement or [sic] non- 8 opposition) must be filed and served no later than twenty-eight (28) days prior to the 9 noticed hearing date.”). Plaintiff has not done so. (See generally Docket.) 10 LEGAL STANDARD 11 Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may move to 12 dismiss a complaint if the court lacks subject matter jurisdiction. See Fed. R. Civ. P. 13 12(b)(1); see also White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Because federal 14 courts are courts of limited jurisdiction, they are presumed to lack jurisdiction unless the 15 contrary affirmatively appears. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 16 375, 377 (1994); Stevedoring Servs. of Am., Inc. v. Eggert, 953 F.2d 552, 554 (9th Cir. 17 1992), as amended (Apr. 20, 1992). Consequently, the plaintiff bears the burden of 18 establishing subject matter jurisdiction. See, e.g., Hexom v. Or. Dept. of Transp., 177 F.3d 19 1134, 1135 (9th Cir. 1999). 20 A Rule 12(b)(1) motion can challenge the court’s subject matter jurisdiction on 21 either facial or factual grounds. See White, 227 F.2d at 1242; see also Safe Air for Everyone 22 v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial challenge accepts the truth of the 23 plaintiff’s allegations but asserts that they are insufficient to establish jurisdiction. See 24 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014); Safe Air for Everyone, 373 F.3d 25 at 1039. In contrast, a factual challenge disputes the truth of the plaintiff’s allegations but 26 accepts that, if true, such allegations would establish jurisdiction. See White, 227 F.2d at 27 1242; Safe Air for Everyone, 373 F.3d at 1039. 28 1 When the defendant brings a facial challenge, the court must accept the plaintiff’s 2 allegations as true and draw all reasonable inferences in the plaintiff’s favor. See White, 3 227 F.2d at 1242; Safe Air for Everyone, 373 F.3d at 1039. When the defendant brings a 4 factual challenge, however, the court may consider evidence outside the pleadings, 5 including affidavits or other evidence properly before the court. See St. Clair v. City of 6 Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also Leite, 749 F.3d at 1121. There is one 7 limitation: the court may not resolve a material factual dispute if subject matter jurisdiction 8 is intertwined with the merits of the plaintiff’s claim. See Safe Air for Everyone, 373 F.3d 9 at 1039–40. 10 ANALYSIS 11 Plaintiff invokes this Court’s jurisdiction under both the Mandamus Act, 28 U.S.C. 12 § 1361, and the APA, 5 U.S.C. §§ 701, et seq. (See Compl. ¶ 1.) Defendants contest the 13 Court’s jurisdiction under either statute. (See generally Mot.) The Court therefore 14 addresses each in turn. 15 I. Mandamus 16 Plaintiff first asserts jurisdiction under the Mandamus Act, (see Compl. ¶ 1), which 17 provides that “district courts shall have original jurisdiction of any action in the nature of 18 mandamus to compel an officer or employee of the United States or any agency thereof to 19 perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Mandamus relief is an 20 extraordinary remedy and can only be utilized to compel a federal official to perform a 21 duty if “(1) the individual’s claim is clear and certain; (2) the official’s duty is 22 nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt; and (3) no 23 other adequate remedy is available.” Kildare v. Saenz, 325 F.3d 1078, 1084 (9th Cir. 2003) 24 (quoting Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997)). 25 Defendants assert that Plaintiff cannot meet the requirements for mandamus 26 jurisdiction because Plaintiff does not have a clear and certain claim and Defendants did 27 not violate a plainly nondiscretionary or ministerial duty. (See Mot. at 5.) A claim is “clear 28 and certain” if the plaintiff has a legal entitlement to the relief sought, see Lowry v. 1 Barnhart, 329 F.3d 1019, 1021 (9th Cir. 2003), and a duty is nondiscretionary or ministerial 2 if “the duty in a particular situation is so plainly prescribed as to be free from doubt and 3 equivalent to a positive command,” see Wilbur v. United States ex rel. Kadrie, 281 U.S. 4 206, 218–19 (1930). The INA vests the United States with a duty to investigate and decide 5 all applications for naturalization. See 8 U.S.C. § 1446(a) (directing that the United States 6 “shall conduct a personal investigation of the person applying for naturalization”); 8 U.S.C. 7 § 1446(d) (directing that the United States “shall make a determination as to whether the 8 application shall be granted or denied”). The ultimate decision whether to approve or deny 9 a naturalization application, however, is clearly discretionary. C.f., Dong v. Chertoff, 513 10 F. Supp. 2d 1158, 1165 (N.D. Cal. 2007) (finding the same for applications for adjustment 11 of immigration status). 12 While USCIS has a non-discretionary duty to render decisions on applications for 13 naturalization, the pace at which it examines these applications is discretionary. The INA 14 requires USCIS to decide on naturalization applications within 120 days of completing an 15 examination. See 8 U.S.C. 1447(b). Yet, no statute or regulation establishes any time 16 limitation for the examination period, and Plaintiff’s examination process is ongoing. (See 17 Compl. ¶ 2 (asserting that Plaintiff has not yet received an examination); Ex. A (indicating 18 that Plaintiff’s naturalization application is not yet complete).) 19 The APA restricts USCIS’s discretion, however, by requiring all administrative 20 agencies to conclude matters presented to them within a “reasonable time.” 5 U.S.C. § 21 555(b). Courts are typically deferential to agencies when evaluating such inaction, as 22 agencies must balance administrative efficiency with a “legitimate need to set policy 23 through the allocation of scarce budgetary and enforcement resources.” Heckler v. Chaney, 24 470 U.S. 821, 855 (1985) (Marshall, J., concurring). Only in the case of an extreme delay 25 has this Circuit determined that agency inaction constituted a violation of a 26 nondiscretionary duty. See e.g., Patel, 134 F.3d at 933 (determining that an eight-year 27 delay in the adjudication of a Visa petition constituted a failure to act in accordance with a 28 duty under the Mandamus Act). 1 At the time this Complaint was filed, Plaintiff’s N-400 Application had been pending 2 for less than two years. (See Compl. ¶¶ 1–2, 16–18.) Further, the USCIS Interview Notice 3 demonstrates that Defendants are actively investigating and adjudicating Plaintiff’s N-400 4 Application. (See Ex. A.) Finally, Defendants require further information from Plaintiff 5 before they can consider her N-400 Application complete. (See id.) Consequently, 6 Plaintiff has not asserted a clear and certain claim that she has been denied a legal 7 entitlement nor has she alleged a violation of a nondiscretionary duty. Accordingly, 8 Plaintiff has failed to demonstrate that the Court has subject-matter jurisdiction under the 9 Mandamus Act. 10 II. Administrative Procedure Act 11 Plaintiff also asserts jurisdiction under the Administrative Procedure Act (“APA”), 12 5 U.S.C. §§ 555, 701, et seq. (See Compl. ¶ 4.) The APA alone, however, does not provide 13 federal district courts with subject-matter jurisdiction. See Califano v. Sanders, 430 U.S. 14 99, 107 (1977); Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645 (9th Cir. 15 1998). Nonetheless, 28 U.S.C. § 1331 confers federal subject matter jurisdiction for “all 16 civil actions arising under the Constitution, laws or treaties of the United States.” 28 U.S.C. 17 § 1331. Because the APA is a federal statute, “if review is proper under the APA, [there 18 is] jurisdiction under 28 U.S.C. § 1331.” See, e.g., Bowen v. Massachusetts, 487 U.S. 879, 19 891 n. 16 (1988); Perez v. Wolf, 943 F.3d 853, 860 (9th Cir. 2019). 20 Review is proper under the APA when an individual is “adversely affected or 21 aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. 22 Furthermore, the APA provides courts with jurisdiction to “compel agency action 23 unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1); see also Norton v. S. 24 Utah Wilderness All., 542 U.S. 55, 62 (2004) (“[A] claim under § 706(1) can proceed only 25 where a plaintiff asserts that an agency failed to take a discrete agency action that it is 26 required to take.”) (emphasis in original). There is a basic presumption in favor of review 27 of final agency action. See Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 28 U.S. ___, 140 S. Ct. 1891, 1905 (2020); Abbott Lab’ys v. Gardner, 387 U.S. 136, 140 1 (1967), abrogated by Califano v. Sanders, 430 U.S. 99 (1977). This presumption can be 2 overcome in two narrow instances: (1) when a statute precludes review, and (2) when 3 agency action is committed to agency discretion by law. 5 U.S.C. § 701(a); see also 4 Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011).

5 No statute precludes review of the type of claim brought by Plaintiff. The INA 6 explicitly provides for district court review of naturalization applications in two scenarios: 7 (1) when no decision is reached within 120 days of an examination, 8 U.S.C. § 1447(b), 8 and (2) when an application is denied after a hearing before an immigration officer, 8 9 U.S.C. § 1421(c). Plaintiff seeks review of USCIS’s failure to conduct its examination 10 process in a timely fashion. (Compl. ¶ 2.) Although the INA does not explicitly provide 11 for review of this type of claim, “[t]he mere fact that some acts are made reviewable should 12 not suffice to support an implication of exclusion as to others.” Abbott Lab’ys, 387 U.S. at 13 141 (quoting Jaffe, Judicial Control of Administrative Action 357 (1965)); see also Rusk 14 v. Cort, 369 U.S. 367, 379–80 (1962) (“[T]he Court will not hold that the broadly remedial 15 provisions of the Administrative Procedure Act are unavailable . . . in the absence of clear 16 and convincing evidence that Congress so intended.”), abrogated by Califano v. Sanders, 17 430 U.S. 99 (1977). Thus, jurisdiction is not explicitly precluded by any statute. 18 However, this Court does not have jurisdiction to review APA claims when an 19 agency action is committed by law to the agency’s discretion. An action is committed to 20 agency discretion by law “if the statute in question is drawn so that a court would have no 21 meaningful standard against which to judge the agency’s exercise of discretion.” See 22 Heckler, 470 U.S. at 830. Here, neither of the relevant statutes (8 U.S.C. §1446 and §1447) 23 nor any USCIS regulations provide a time limitation for completing examinations of 24 naturalization applications. Although the USCIS website provides an estimated processing 25 time for naturalization applications, (see Compl. ¶ 18), this alone does not establish a 26 meaningful standard against which to judge the agency’s discretion. See Mendez-Gutierrez 27 v. Ashcroft, 340 F.3d 865, 868 (9th Cir. 2003) (looking to statutes, regulations, established 28 agency policy, and judicial decisions for a meaningful standard); see also I.N.S. v. Yueh- 1 || Shaio Yang, 519 U.S. 26, 32 (1996) (defining established agency policy as a “rule” or 2 ||“settled course of adjudication” by which an agency’s “exercise of discretion will be 3 || governed”). 4 Because there 1s no standard against which this Court can measure whether the 5 agency has acted “within a reasonable time” or has “unreasonably delayed,” see 5 U.S.C. 6 555(b), 706(1), the Court does not have subject-matter jurisdiction to review □□□□□□□□□□□ 7 claim under the APA. 8 CONCLUSION 9 For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss 10 || (ECF No. 9) and DISMISSES WITHOUT PREJUDICE Plaintiff's Complaint (ECF No. 11 Plaintiff MAY FILE an amended complaint curing the deficiencies identified in this 12 || Order within twenty-eight (28) days of the electronic docketing of this Order. Should 13 || Plaintiff fail timely to file an amended complaint, this action will be dismissed without 14 || prejudice without further Order of the Court. 15 IT IS SO ORDERED. 16 Dated: October 25, 2022 —— 17 dd) (2 D (oe 18 Honorable Todd W. Robinson 19 United States District Judge 20 21 22 23 24 25 26 27 28