Beshir v. Holder (2014)

“To consider a claim under the Declaratory Judgment Act, a federal court must have jurisdiction under another federal statute.” Beshir v. Holder, 10 F. Supp. 3d 165, 171 (D.D.C. 2014) (citing Schilling, 363 U.S. at 678 ).

Cal. 2014) (collecting and discussing cases); Beshir v. Holder, 10 F.Supp.3d 165, 172, 173-74 (D.D.C. 2014) (same); Singh, 909 F.Supp.2d at 1169-70 (same).

Accord Ferriero, 60 F.4th at 713 ; Beshir v. Holder, 10 F. Supp. 3d 165, 171 (D.D.C. 2014); Uranga v. USCIS, 490 F. Supp. 3d 86 , 98–101 (D.D.C. 2020). 1.

Cir. 4 The Defendants extensively rely on Beshir v. Holder, in which a court in this District relied in part on Section 1252(a)(2)(B)(ii) to hold that it lacked jurisdiction to hear a claim that USCIS unreasonably delayed acting on an application for adjustment of immigration status. 10 F. Supp. 3d 165, 172 (D.D.C. 2014).

Corp., 511 U.S. 531, 537 (1994) (“It is generally presumed that Congress acts intentionally and pur- posely when it includes particular language in one section of a statute but omits it in another.”); see also Beshir, 10 F. Supp. 3d at 176 (“The absence of a congressionally-imposed deadline or timeframe to complete the adjudication of adjustment applications also supports the conclusion that the pace of adjudication is discretionary and thus not reviewable.”).

To the contrary, Congress itself treated the sub-categories as different and authorized DOS to use its discretion in estimating the number of available visas and establishing cut-off dates for each. 4 See 8 U.S.C. § 1153 (g) (“the Secretary of State may make reasonable estimates of the anticipated numbers of visas to be issued during any quarter of any fiscal year within each of the categories.”); Beshir v. Holder, No. 10-CV-652, 10 F.Supp.3d 165, 173 , 2014 WL 284886, at *6…

To this end, “both the APA and INA divest courts of ‘jurisdiction over discretionary agency action,’ including those of USCIS.” See id. (quoting Beshir v. Holder, 10 F. Supp. 3d 165, 171 (D.D.C. 2014)). 539 (1959)).

Ga. 2021) (quoting Beshir v. Holder, 10 F. Supp. 3d 165, 176 (D.D.C. 2014)).

Beshir v. Holder, 10 F. Supp. 3d 165, 171 (D.D.C. 2014).

See Beshir v. Holder, 10 F. Supp. 3d 165, 176 (D.D.C. 2014) (“The absence of a congressionally-imposed deadline or timeframe . . . supports the conclusion that the pace of adjudication is discretionary . . . .”); Salka, 246 F. Supp. 3d at 153–54 (“Congress has given the agencies wide discretion in the area of immigration processing.”).

Beshir v. Holder, 10 F. Supp. 3d 165, 174 (D.D.C. 2014).

Pa. 2007), while others have determined that judicial review is foreclosed by 1” Section 1252(a)(2)(B)(ii), see, e.g., Beshir v. Holder, 10 F. Supp. 3d 165, 176 (D.D.C. 2014); Namarra v. Mayorkas, 924 F. Supp. 2d 1058, 1064 (D.

June 3, 2021) (granting a motion to dismiss for lack of subject matter jurisdiction, finding the pace at which the Secretary of Homeland Security must adjudicate U visas is discretionary); Beshir v. Holder, 10 F. Supp. 3d 165, 177 (D.D.C. 2014) (“The absence of an applicable timeframe for the adjudication of adjustment applications supports the conclusion that the pace of adjudication is discretionary and that the Court lacks jurisdiction to hear [Plaintiff's] claim of unrea…

The Court finds that this provision, which states that adjudicators “should” rather than “must” issue RFEs or NOIDs, is insufficient to create a binding policy which could serve as the basis for an APA violation. 0 See Beshir v. Holder, 10 F. Supp. 3d 165, 180 (D.D.C. 2014) (finding a USCIS memorandum was a “nonbinding policy statement” rather than a “binding rule or regulation,” in part because “the text [did] not use mandatory language, ‘such as “will” and “must,”’ but ins…

By not imposing a deadline for adjudication of U-Visa petitions, “Congress has left to... administrative discretion the time in which [to] complete [the] review of such applications.” Hasan, 2021 WL 33601338 , at *4 (quoting Beshir v. Holder, 10 F. Supp. 3d 165, 174 (D.D.C. 2014)).

Mich. 2020) (holding that because there is no set timeline or deadline in the relevant statute, the USCIS has discretion over the pace by which U Visas are adjudicated), and Beshir v. Holder, 10 F. Supp. 3d 165, 177 (D.D.C. 2014) (“The absence of an applicable timeframe for the adjudication of adjustment applications supports the conclusion that the pace of adjudication is discretionary and that the Court lacks jurisdiction to hear [Plaintiff’s] claim of unreasonable delay”).

Security, other than the granting of [asylum].” Defendants contend that because the Secretary of Homeland Security has broad discretion to determine the conditions of nonimmigrant admission, see 8 U.S.C. § 1184 (a)(1) and 6 U.S.C. §§ 202 , 557, a court cannot review the U-visa decision process, including the pace of the adjudication, see, e.g., Beshir v. Holder, 10 F. Supp. 3d 165, 174 (D.D.C. 2014) (“Granting the Attorney General and the Secretary the discretion to promulga…

Some courts have concluded, in the context of an application to adjust an immigrant’s status to lawful permanent resident under 8 U.S.C. § 1255 (a), that, in the absence of a statute or regulation that prescribes the time within which an agency must reach a decision, the agency’s “pace of adjudication is discretionary and thus not reviewable.” Beshir v. Holder, 10 F. Supp. 3d 165, 174 (D.D.C. 2014).

See 8 U.S.C. § 1159 (b) (“The Secretary of Homeland Security or the Attorney General, in the Secretary's or the Attorney General's discretion and under such regulations as the Secretary or the Attorney General may prescribe, may adjust to the status of an alien lawfully admitted for permanent resi- dence the status of any alien granted asylum” who applies, is present in the United States, and meets other basic criteria); 8 U.S.C. § 1255 (a) (“The status of an alien who was i…

See, e.g., Beshir v. Holder, 10 F. Supp. 3d 165, 176 (D.D.C. 2014) (“The absence of a congressionally-imposed deadline or timeframe to complete the adjudication of adjustment applications [pursuant to Form I-485] also supports the conclusion that the pace of adjudication is discretionary and thus not reviewable.”).

Plaintiffs also cite Bian v. Clinton, 605 F.3d 249 (5th Cir. 2010), vacated as moot, 2010 WL 3633770 (5th Cir. Sept. 16, 2010), and Beshir v. Holder, 10 F. Supp. 3d 165, 173 (D.D.C. 2014).

Beshir, 10 F.Supp.3d at 174 (holding that “the pace of adjudication is discretionary”).

Beshir, 10 F. Supp. 3d at 174 (holding that "the pace of adjudication is discretionary").

See Beshir v. Holder, 10 F. Supp. 3d 165, 173 (D.D.C. 2014).

The APA does not apply where “agency 8 action is committed to agency discretion by law.” 5 U.S.C. § 701 (a)(2); see also Beshir v. Holder, 10 F. Supp. 3d 165, 171 (D.D.C. 2014); Zhu v. Gonzales, 411 F.3d 292, 295 (D.C.

See also Beshir v. Holder, 10 F. Supp. 3d 165, 174 (D.D.C. 2014) (similarly concluding that “[t]he term ‘action’ must encompass the discretionary pace at which the adjustment process proceeds because it encompasses the various other discretionary acts that constitute the process as a whole and that direct the pace of the process.”); Namarra v. Mayorkas, 924 F. Supp. 2d 1058, 1064 (D.

See Beshir v. Holder, 10 F. Supp. 3d 165, 177 (D.D.C. 2014) (holding 8 C.F.R. § 103.2 (b)(18) does not apply to general processing delays where neither party “alleged that there is an ongoing criminal investigation or that confidential informants, witnesses, or undercover agents are in any way involved”).

See Beshir v. Holder, 10 F. Supp. 3d 165, 172 (D.D.C. 2014) (standards under APA and Mandamus are similar), citing Viet.

See, e.g., Beshir v. Holder, 10 F.Supp.3d 165, 172-73 (D.D.C.2014) (acknowledging a split among courts and concluding that the pace of adjudication was discretionary as to preclude review); Namarra v. Mayorkas, 924 F.Supp.2d 1058, 1065-66 (D.Minn.2013); Bayolo v. Swacina, No. 09-21202, 2009 WL 1307957 , at *1 (S.D.Fla.