Jurisdictional Mandamus Victory, TRIG AOS Delay: Assadi v. Beers

Jurisdictional Mandamus Victory, TRIG AOS Delay: Assadi v. Beers

"In this action, plaintiff Mortezza Assadi ("plaintiff or "Assadi") seeks an order mandating that the defendants finally adjudicate his application for permanent resident status, which has been pending for over 14 years.  Now before the Court is defendants' Motion to Dismiss [Doc. No. 4] (the "Motion") pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6) on the grounds that this Court lacks subject matter jurisdiction and that the complaint fails to state a claim.  Alternatively, defendants request that the Court grant summary judgment in their favor.  The Court held a hearing on the Motion on January 17, 2014, following which it took the matter under advisement.  For the reasons stated herein, the Motion is DENIED. ... Given the agency's affirmative obligation to act within a reasonable period of time pursuant to 5 U.S.C. §§ 555(b), 706(1), and the long-recognized presumption of judicial review of agency administrative action, see McNary v. Haitian Refugee Or., Inc., 498 U.S. 479, 496 (1991), for the reasons set forth in Aslam v. Mukasey, 531 F. Supp. 2d 736 (E.D. Va. 2008), as supplemented herein, the Court now aligns itself with those courts that have found that Section 1252(a)(2)(B) does not eliminate subject matter jurisdiction for the purpose of reviewing whether an agency has discharged its duty to timely adjudicate a claim." - Assadi v. Beers, Feb. 12, 2014.

See related news article here.  Hats way off to Parastoo G. Zahedi!