United States District Court, S.D. West Virginia, Huntington Division
PROPOSED FINDINGS AND RECOMMENDATIONS
A. EIFERT, UNITED STATES MAGISTRATE JUDGE.
April 2019, Plaintiffs Xiu Jin Lin, Wen Hui Lin, Xu Lin, and
Hao Lin, (“hereinafter Plaintiffs”), proceeding
pro se, filed a civil complaint against Defendants.
(ECF No. 1). Currently pending before the court is
Defendants' Motion to Stay Civil Action, or in the
Alternative, to Extend Responsive Pleading Deadline. (ECF No.
7). This matter is assigned to the Honorable Robert C.
Chambers, United States District Judge, and by standing order
is referred to the undersigned United States Magistrate Judge
for the submission of proposed findings of fact and
recommendations for disposition pursuant to 28 U.S.C. Â§
reasons that follow, the undersigned
RECOMMENDS that Defendants' Motion to
Stay be GRANTED; and that the complaint,
(ECF No. 1), be STAYED, until
December 27, 2019.
Relevant Facts and Procedural History
4, 2012, Plaintiff Xiu Jin Lin was granted asylum status in
the United States by an Immigration Judge. (ECF No. 7-1 at
4). In May 2013, Xiu Jin Lin filed petitions for asylum on
behalf of his spouse, Wen Hui Lin, and his two children, Xu
Lin and Hao Lin. (Id.). Based on Xiu Jin Lin's
asylum status, these petitions were likewise approved, and
the applicants were granted asylum in the United States.
(Id.). On June 17, 2013, Xiu Jin Lin filed an I-485
Application to Register Permanent Residence or Adjust Status,
seeking a green card (i.e. lawful permanent resident status).
His family members followed suit, submitting their I-485
applications on June 15, 2015. (Id.)
this time period, multiple law enforcement agencies were
cooperating in Operation Fiction Writer (“OFW”),
a criminal investigation into immigration fraud.
(Id. at 2). OFW uncovered a large-scale asylum fraud
conspiracy, which led to the indictment of thirty individuals
employed at multiple law firms. These individuals were
charged with various crimes, including filing false asylum
applications, preparing false immigration documents, and
committing other types of immigration benefit fraud.
(Id.). Between 2013 and 2014, all thirty individuals
were convicted. (Id.). On September 24, 2014 and
February 5, 2015, the United States Citizenship and
Immigration Services (“USCIS”) issued memoranda
initiating an agency-wide “hold” on all
applications and petitions associated with the OFW
investigation until an appropriate framework for reviewing
the affected applications could be established. (Id.
course of the investigation, agents identified Xiu Jin
Lin's case as being one of 2, 800 cases connected to the
OFW fraud scheme. (Id. at 4). Apparently, Xiu Jin
Lin had retained the Feng Ling Liu Law Firm to represent him
in his quest for asylum in the United States, and the
employees of that law firm were among the thirty individuals
ultimately convicted of immigration fraud. Feng Ling Liu, the
founder of the law firm, was herself convicted in 2014 and
sentenced to five years in prison for her role in the
conspiracy. The evidence from Liu's criminal case
revealed that between the years of 2007 and 2012, Liu and her
associates coached immigration applicants to lie to
immigration officers and assisted applicants in creating
fabricated petitions by filing thousands of fraudulent asylum
applications. (ECF No. 7-1 at 4 n.1). As a result of
Plaintiffs' association with the Feng Ling Lui Law Firm,
their I-485 applications were tagged for intensive review and
have remained unresolved. (Id. at 4).
filed their complaint on April 16, 2019, seeking an order
from this Court compelling Defendants to adjudicate
Plaintiffs' immigration applications. (ECF No. 1 at 4).
Plaintiffs argue that their applications have been pending
for an unreasonable amount of time given that I-485 requests
typically take 6.5 to 27.5 months to adjudicate. In contrast,
their applications have been pending in excess of four years.
(ECF No. 10).
28, 2019, Defendants filed a Motion requesting a stay of the
civil action and an accompanying memorandum in support. (ECF
Nos. 7, 8). Defendants also submitted the affidavit of
Gregory A. Richardson. (ECF No. 7-1). Mr. Richardson states
that he is the Director of the USCIS's Texas Service
Center (“TSC”), which is located in Dallas,
Texas. (Id.). Mr. Richardson asserts that on October
31, 2016, the USCIS issued a memorandum releasing the hold on
applications identified as being associated with the OFW
investigation and permitting them to be individually reviewed
and adjudicated. (Id. at 2). The TSC's Fraud
Detection and National Security (“FDNS”) unit,
which has 28 employees assigned to work on fraud
investigations, was instructed to individually review and
investigate each of the approximately 2, 800 affected
applications and prepare a written Statement of Facts
(“SOF”) report, detailing the results of each
investigation. (Id. at 2-3). According to Mr.
Richardson, after the SOF is issued, it is reviewed by an
adjudication officer, who determines the appropriate action
to take. The fraud investigation process is time-consuming
and resource-intensive, and the TSC is currently experiencing
a backlog of OFW-related cases. (Id. at 3). He
stated that for cases where there is “strong indicia of
fraud, ” the application is sent to the National
Records Center for review by the Office of the Principal
Legal Advisor (“OPLA”), which is a division of
the United States Immigration and Customs Enforcement
(“ICE”). (Id.). ICE OPLA then reviews
the case to determine if a Motion to Reopen
(“MTR”) is warranted. The filing of a MTR results
in the initiation of removal proceedings before the
Immigration Judge who granted the underlying asylum claim.
(Id.). If ICE OPLA determines a MTR is warranted,
the TSC puts a hold on all related petitions and applications
until the conclusion of the removal process. If ICE OPLA
declines to initiate removal proceedings based on the
referral, then the related applications and petitions are
returned to the TSC for adjudication. (ECF No. 7-1 at 3).
Richardson states that Plaintiff Xiu Jin Lin's case has
proceeded through an initial review stage performed by the
FDNS, and is currently pending review by ICE OPLA for
consideration of whether to file a MTR. (Id. at 4).
Accordingly, Plaintiffs' pending I-485 applications are
on hold until ICE OPLA makes a recommendation regarding the
initiation of removal proceedings. (Id.). If a MTR
is approved by the Immigration Judge, jurisdiction over
Plaintiffs' immigration status will be removed from USCIS
and vested in the Immigration Court. If Plaintiffs'
underlying asylum status is revoked, they will be unable to
proceed with the adjustment of status applications.
memorandum in support of their motion for a stay, Defendants
request that this Court “[i]n the interest of judicial
economy and efficiency, ” stay the instant action until
a decision is reached by ICE OPLA as to whether to file a MTR
and initiate removal proceedings. (ECF No. 8 at 7-8).
Defendants request a stay until December 27, 2019. If a
determination has not been reached by that date, Defendants
state they will file a status report and continue to do so
every 90 days until a determination is reached by ICE OPLA.
(Id. at 8). If this Court declines to grant the
requested stay, Defendants ask to be given an additional 30
days to file a responsive pleading. (Id.).
26, 2019, Plaintiffs submitted a Response to Defendants'
request in which they object to a stay of this case. (ECF No.
10). Plaintiffs argue that the length of time it has taken
the USCIS to adjudicate their I-485 applications has resulted
in “unreasonable delay.” (Id. at 1).
Plaintiffs state that while they object to the stay motion,
they do not object to Defendants being granted 30 additional
days to file a responsive pleading. (Id. at 2).
Plaintiffs attach a printed page taken from the USCIS website
corroborating that the estimated processing time for an I-485
application filed in 2017 is 6.5 to 27.5 months.
(Id. at 3-4).
matter jurisdiction is a threshold question that addresses
the power of the court to hear a case and must be resolved
before a court considers the merits of a case. See
Constantine v. Rectors & Visitors of George Mason
Univ., 411 F.3d 474, 479-80 (4th Cir.2005).
“Subject-matter jurisdiction ... is an [Article] III as
well as a statutory requirement; it functions as a
restriction on federal power, and contributes to the
characterization of the federal sovereign.”
Id. (quoting Insurance Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
(1982)). Consequently, courts have an independent obligation
to assess whether subject matter jurisdiction exists,
irrespective of whether it is raised by the parties. See
Wye Oak Tech., Inc. v. Republic of Iraq, 666 F.3d 205,
218 (4th Cir.2011). The burden of proving subject matter
jurisdiction rests with the plaintiff, the party asserting
that jurisdiction exists. See Adams v. Bain, 697
F.2d 1213, 1219 (4th Cir.1982). Although neither party has
raised the issue, the undersigned will consider the issue of
subject matter jurisdiction as there is some question
regarding its existence.
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute, which is
not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted). Plaintiffs request that this Court order
the USCIS, a federal agency and component of the DHS, to
adjudicate their I-485 applications, but have not
specifically identified any constitutional or statutory basis
for this Court's jurisdiction. There are two potential
statutory candidates which may confer jurisdiction for this
type of claim. One is the Mandamus Act, which grants federal
courts authority over “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.” See 28 U.S.C. § 1361. The
other is the Administrative Procedures Act
(“APA”) which requires “each agency [to]
proceed to conclude a matter presented to it ... within a
reasonable time.” 5 U.S.C. § 555(b). The APA
further permits judicial review and authorizes district
courts to “compel agency action unlawfully withheld or
unreasonably delayed.” See 5 U.S.C. §
706(1). As the APA specifically speaks to agency action that
is “unreasonably delayed, ” and Plaintiffs
complain that their applications have been subjected to
“unreasonable delay, ” (ECF No. 10 at 1), the
undersigned will consider if the APA grants subject matter
jurisdiction over Plaintiff's claims.
§ 245 of the Immigration and Nationality Act
(“INA”), the Attorney General has the discretion
to adjust the status of certain aliens to allow permanent
residence in the United States. The Attorney General may
adjust an alien to permanent resident status 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 permanent residence, and
(3) an immigrant visa is immediately available to him at the
time his application is filed.
8 U.S.C. § 1255(a). In this case, Plaintiffs filed
applications requesting the adjustment of their status to
permanent residents relying on their eligibility under 8
U.S.C. § 1159(a). That portion of the INA authorizes the
Secretary of the DHS, or the Attorney General, acting within
their “discretion, ” to adjust the status of any
alien granted asylum to that of a permanent resident if the
(1) applies for such adjustment,
(2) has been physically present in the United States for at
least one year after being granted asylum,
(3) continues to be a refugee within the meaning of section
1101(a)(42)(A) of this title or a spouse or child ...