Some Immigration Decisions Are Discretionary, But Timely Processing Is A Right! (Video)

The Government loves to conflate discretion to approve or deny with discretion to timely adjudicate. This is a sleight of hand argument the Government is fond of when defending their indefensible delays from mandamus lawsuits. Unquestionably, the granting of some immigration benefits such as Asylum or Adjustment of Status are discretionary. However, that’s very different than saying adjudication at all is discretionary. Lots of district courts have addressed this issue. Some have gone in the favor of the Government, but most favor the plaintiffs. The Northern District of California got this right 9 years ago and it is still correct today. According to the decision:

Here, Islam seeks a writ of mandamus to compel the government to adjudicate his pending petition for an adjustment of immigration status. Although the ultimate decision to grant or deny Islam’s petition is “unquestionably discretionary” and therefore insulated from judicial review, see Dong v. Chertoff, 513 F.Supp.2d 1158, 1165 (N.D.Cal.2007), Islam contends that § 1252(a)(2)(B)(ii) does not similarly preclude him from challenging the speed with which defendants process his application. Although the Ninth Circuit has not addressed the issue, several decisions out of this district have held that § 1252(a)(2)(B)(ii) does not deprive federal courts of subject matter jurisdiction over claims alleging unreasonable delay in processing applications for adjustment of immigration status. See Islam v. Heinauer, C 10–04222 JSW, 2011 WL 2066661 (N.D.Cal. May 25, 2011) (“Islam I ”) (citing cases). Indeed, the government has a non-discretionary duty to adjudicate such a petition “within a reasonable period of time.” Beyene v. Napolitano, C 12–01149 WHA, 2012 WL 2911838 (N.D.Cal. July 13, 2012). “To hold otherwise would be to sanction the perpetual delay of governmental obligations that are clearly mandated by law.” Liu v. Chertoff, C 07–00734 CRB, 2007 WL 2119427 (N.D.Cal. July 23, 2007). Defendants’ entreaties to deviate from this trend are unavailing. Accordingly, their motion to dismiss pursuant to Rule 12(b)(1) is denied.

Islam v. Heinauer, 32 F. Supp. 3d 1063, 1069 (N.D. Cal. 2014).