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Keywords

plaintiffmotionsummary judgmentvisamotion for summary judgment
plaintiffjurisdictionmotionsummary judgmentvisacitizenshipmotion for summary judgment

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Saleem v. Keisler

Facts

Plaintiff Mohammed Saleem, an Indian citizen, applied for permanent residency after receiving an 'H-1B' visa and approval for his I-140 petition. He filed for adjustment of status using Form I-485 but did not receive a decision on his application despite multiple inquiries over several years. The immigration officials had five years to conduct necessary background checks but failed to adjudicate his application.

Plaintiff Mohammed Saleem is a citizen of India. In 1999, plaintiff applied for and received an 'H-1B' visa, which is a nonimmigrant visa that authorizes a temporary stay in the United States 'to perform services . . . in a specialty occupation.' In November 2002, after plaintiff received approval for his I-140 petition ('Immigrant Petition for Alien Worker'), he applied for status as a permanent resident under 8 U.S.C. 1255, using Form I-485. Plaintiff has not received a decision on his application. In June 2006, December 2006 and April 2007, plaintiff made inquiries at the United States Citizenship and Immigration Services regarding the status of his application. Each time plaintiff made an inquiry, he was told either nothing at all or that his application had not yet been decided.

Issue

Whether a remedy in district court exists for the failure of immigration officials to decide a noncitizen's application for adjustment of status from nonimmigrant to permanent resident.

The question in this case is whether a remedy in federal district court exists for the failure of immigration officials to decide a noncitizen's application for adjustment of status from nonimmigrant to permanent resident.

Rule

The court concluded that a failure to adjudicate an application was not a decision or action within the meaning of 8 U.S.C.S. 1252(a)(2)(B)(ii), and that 5 U.S.C.S. 706(1) gives courts authority to compel agency action unlawfully withheld or unreasonably delayed.

The court's conclusion that a failure to adjudicate an application was not a decision or action within the meaning of 1252(a)(2)(B)(ii) was sufficient to reject the officials' argument that the court lacked jurisdiction. 5 U.S.C.S. 706(1) gave courts authority to compel agency action unlawfully withheld or unreasonably delayed.

Analysis

The court determined that the immigration officials' failure to act on Saleem's application constituted an unreasonable delay, as they had five years to complete the necessary background checks without providing any explanation for their inaction. This delay was deemed unreasonable under the standards set forth in the APA.

Thus, the question was whether the officials' delay was in fact unreasonable under 706. The facts showed that the officials had five years to perform three background checks on the alien before adjudicating his application. Without any explanation from the officials for their failure to reach a decision on the alien's application, the court concluded that the officials' five-year delay was not reasonable.

Conclusion

The court granted the alien's motion for summary judgment, ordering the immigration officials to adjudicate his application by December 24, 2007.

The alien's motion for summary judgment was granted. The officials had until December 24, 2007 within which to adjudicate the alien's application for an adjustment of status.

Who won?

The alien prevailed in the case because the court found that the immigration officials had unreasonably delayed their decision on his application for permanent residency.

The alien prevailed in the case because the court found that the immigration officials had unreasonably delayed their decision on his application for permanent residency.

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