
    Paramjit Singh SAINI, Plaintiff, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES; Eduardo Aguirre, Director, U.S. Citizenship and Immigration Services, Gerard Heinauer, Director, Uscis Nebraska Service Center; Evelyn Upchurch, Director, Uscis Texas Service Center; Michael Chertoff, Secretary, Department of Homeland Security; Robert S. Mueller, Director, Federal Bureau of Investigations; Alberto Gonzales, U.S. Attorney General, Defendants.
    No. 2:07-cv-00601-MCE-KJM.
    United States District Court, E.D. California.
    March 27, 2008.
    
      Robert Bradford Jobe, Law Office of Robert B. Jobe, San Francisco, CA, for Plaintiff.
    Audrey Benison Hemesath, United States Attorney’s Office, Sacramento, CA, Ada E. Bosque, United States Department of Justice, Washington, DC, for Defendants. '
   MEMORANDUM AND ORDER

MORRISON C. ENGLAND, JR., District Judge.

Through the present Complaint for Writ of Mandamus, Plaintiff Paramjit Singh Sai-ni (“Plaintiff’) seeks to compel Defendants to adjudicate his 1-485 Application to Register Permanent Resident or Adjust Status, which Plaintiff filed with the United States Citizenship and Immigration Services (“USCIS”) almost six years ago, on June 10, 2002. Defendants now seek to dismiss Plaintiffs Complaint on grounds that this Court lacks subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b) (l), or alternatively that the Complaint fails to state a claim upon which relief can be granted in accordance with Rule 12(b)(6). For the reasons set forth below, Defendants’ Motion will be denied.

BACKGROUND

Plaintiff is a native and citizen of India who was granted asylum in the United States on June 1, 2001. Complaint, ¶ 5. As indicated above, Plaintiff filed his Form I-485, pursuant to 8 U.S.C. § 1159(b), for adjustment of his residence status on June 10, 2002. Id. The USCIS, an agency within the Department of Homeland Security, has been entrusted with the responsibility for adjudicating applications like Plaintiffs by the Attorney General.

Although Plaintiffs Form 1-485 was initially filed in Nebraska, the application was subsequently transferred to the Texas Service Center, which issued a request for information on September 21, 2005. Id. at ¶ 18. Plaintiff responded to the request a week later, on September 28, 2005.

To date, the USCIS has still not adjudicated Plaintiffs application. According to Defendants’ moving papers, Plaintiffs application was referred in March of 2006, nearly four years after it was initially submitted, to the Fraud Detection Unit of the Texas Service Center. Prusinowki Deck, ¶ 10. Defendants maintain that Plaintiffs file will be referred to the Immigration and Customs Enforcement Agency if this investigation, which apparently is ongoing, shows any fraud. Id.

Plaintiff has brought the instant action on grounds that the USCIS has unreasonably delayed the adjudication of his status application in contravention of the Administrative Procedures Act (“APA”) at 5 U.S.C. §§ 505(b) and 702. Plaintiff alternatively claims he is accordingly entitled to a writ of mandamus to compel the USCIS to adjudicate his application under the Mandamus and Venue Act (“MVA”), 28 U.S.C. § 1361.

Defendants request dismissal of Plaintiffs Complaint on grounds that Congress has divested the courts of jurisdiction over suits like Plaintiffs because they concern decisions or actions that are committed to agency discretion. Defendants therefore contend that the Court lacks subject-matter jurisdiction over Plaintiffs claims and urge dismissal under Federal Rule of Civil Procedure 12(b)(1). Defendants further contend that even in the absence of a jurisdictional bar, Plaintiff still cannot avail himself of mandamus relief either under the APA or the MVA because he cannot show that the USCIS has a clear, ministerial duty to adjudicate his application on a timely basis. Therefore, Defendants alternatively assert that Plaintiffs suit should also be dismissed for failing to meet the prerequisites for jurisdiction under Rule 12(b)(1), and for failure to state a claim under Rule 12(b)(6).

STANDARD

A. Rule 12(b)(1)

Federal Courts are presumptively without jurisdiction over civil actions, and the burden of establishing the contrary rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Lack of subject-matter jurisdiction is never waived and may be raised by either party or the court at any time. Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir.1996). Lack of subject-matter jurisdiction may be raised by the district court sua sponte: “Nothing is to be more jealously guarded by a court than its jurisdiction.” In re Mooney, 841 F.2d 1003, 1006 (9th Cir.1988).

In a motion to dismiss for lack of subject-matter jurisdiction, “no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed materials facts will not preclude the court from evaluating for itself the merits of jurisdictional claims.” Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). The court may properly review evidence outside the pleadings to resolve factual disputes concerning the existence of jurisdiction. Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947). Consideration of material outside the pleadings does not convert a Rule 12(b)(1) motion into one for summary judgment. Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir.1983).

B. Rule 12(b)(6)

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the “grounds” of his “entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, — U.S. —, —, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Id. at 1965 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)) (“The pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”).

If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. The court should “freely give[ ]” leave to amend when there is no “undue delay, bad faith[,] dilatory motive on the part of the movant, ... undue prejudice to the opposing party by virtue of ... the amendment, [or] futility of the amendment....” Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir.1992).

ANALYSIS

A. 8 U.S.C. § 1252(a)(2)(B)(ii)

Plaintiffs objective in this case is to expedite adjudication of the 1-485 Application for Status Change he submitted to the USCIS. 8 U.S.C. § 1159(b)(1) provides that either the Secretary of Homeland Security or the Attorney General, may, under such regulations as they prescribe, “adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum who (1) applies for such adjustment....”

Section 1252(a) (2)(B)(ii), however, prevents a court from adjudicating questions pertaining either to a “decision or action” of the Attorney General or Secretary of Homeland Security, stating as follows:

(B) Denials of discretionary relief

Notwithstanding any other provision law (statutory or nonstatutory) .... no court shall have jurisdiction to review—

(i) any judgment regarding the granting of relief under section 1182(h), 1182®, 1129b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this sub-chapter to be in the discretion of the Attorney General or the Secretary of Homeland Security....

(emphasis in original).

Defendants claim that the language of subdivision (ii) divests this Court of subject-matter jurisdiction. They assert that Plaintiffs claims necessarily relate to a “decision or action” subject to the discretion of the Attorney General. Defendants claim that any judicial intervention in the USCIS’ adjudicative process is therefore prohibited by the statute.

Although no circuit court in the country has yet spoken to this issue, and while district courts are split, this Court is persuaded that the USCIS has a ministerial duty to take some action on immigration applications like that presented by Plaintiff here. In Soneji v. Dep’t of Homeland Security, 525 F.Supp.2d 1151 (N.D.Cal.2007), the defendants claimed that § 1252(a)(2)(B)(ii) strips the court of jurisdiction to review either action or inaction in this context. In rejecting that contention, the Northern District stated as follows:

“Defendants argue that by seeking to compel adjudication of their 1-485 Applications, Plaintiffs seek federal judicial review of a discretionary action, which is precluded by § 1252.” Defendants, however, misunderstand the scope of § 1252. By its own language, the statute applies to “judgment[s], decision[s] or action[s].... 8 U.S.C. § 1252(a)(2)(B). Plaintiffs are not seeking judicial review of a judgment, decision, or action. Instead, Plaintiffs are seeking to compel the government to take some action on a decision that has been languishing for more than three years.”

Id. at 1153.

The Soneji court therefore concluded:

In the present case, there has been “no action taken by USCIS, Thus, as there has been no ‘judgment, decision, or action’ by the government, § 1252 is inapplicable and is therefore not a bar to jurisdiction.”

Id. at 1154.

The Court agrees that the jurisdictional bar of § 1252(a)(2)(B) (ii) is simply inapplicable to the circumstances presented by this case. As the court in Fu v. Gonzalez, 2007 WL 1742376 at *4 (N.D.Cal.2007) explains: “The plain language of [§ 1252] addresses ‘decision or action’ on immigrant matters, not inaction, which is the subject of [this] Complaint.” The distinction between action and inaction is further underscored by another Northern District decision, Dong v. Chertoff, which reasoned as follows:

“The phrase ‘decision or action’ connotes some affirmative conduct by the Attorney General. Black’s Law Dictionary defines ‘action’ as ‘The process of doing something; conduct or behavior.’ (eitation omitted). The ‘action’ of the statute should therefore not be equated with ‘inaction’ and ‘indefinite inaction’ should not be construed as falling under the rubric of the discretion accorded the Attorney General.”

Dong v. Chertoff, 513 F.Supp.2d 1158, 1165-66 (N.D.Cal.2007).

Permitting inaction to fall outside the parameters of judicial review in nonsensical, since to hold otherwise would “render toothless all timing restraints ... [and] would amount to a grant of permission for inaction.” Fu v. Gonzales, 2007 WL 1742376 at *4, citing Duan v. Zamberry, 2007 WL 626116 at *3 (W.D.Pa.2007); see also Dong v. Chertoff, 513 F.Supp.2d at 1163, citing Cao v. Upchurch 496 F.Supp.2d 569, 573 (E.D.Pa.2007) (the discretion afforded to the Attorney General in adjusting alien status does not confer discretion to let a petition languish indefinitely). A “duty to decide becomes no duty at all if it is accompanied by unchecked power to decide when to decide.” Razaq v. Poulos, 2007 WL 61884 at *3 (N.D.Cal.2007). As Dong notes, “[w]hile the ultimate decision to grant or deny an application for adjustment of status is unequivocally discretionary, there exists a non-discretionary duty to act on and process the application.” Dong v. Chertoff, 513 F.Supp.2d at 1165.

Rules of statutory construction also militate against the inferences Defendants wish to draw from the statute. To the extent that § 1252(a)(2)(B) creates an exception to judicial review, such exception must be narrowly construed. Fu v. Gonzales, 2007 WL 1742376 at *5, citing Yu v. Brown, 36 F.Supp.2d 922, 933-34 (D.N.M.1999). A narrow construction of a jurisdiction-stripping provision is favored over a broad one, and a jurisdictional bar is not to be expanded beyond its precise language. See ANA Int’l Inc. v. Way, 393 F.3d 886, 891 (9th Cir.2004). By not addressing inaction, as opposed to an affirmative decision or action, the statute does not specifically divest the courts from jurisdiction to consider the propriety of a failure to act altogether, as Plaintiff alleges here. Dong v. Chertoff, 513 F.Supp.2d at 1163.

Finally, the weight of authority supports a finding that Defendants have a non-discretionary duty to process or adjudicate an adjustment application, like that submitted by Plaintiff herein. See Yu v. Brown, 36 F.Supp.2d at 931-32; Singh v. Still, 470 F.Supp.2d 1064, 1067 (N.D.Cal.2007); Gelfer v. Chertoff, 2007 WL 902382 at *2 (N.D.Cal.2007); Aboushaban v. Mueller, 2006 WL 3041086 at *2 (N.D.Cal.2006). This is underscored by the governing regulations applicable to § 1159(b), which provide that an applicant for adjustment of status under that section “shall be notified of the decision, and, and if the application is denied, of the reasons for denial.” 8 C.F.R. § 209.2(f) (emphasis added).

In sum, the Court concludes that 8 U.S.C. § 1252(a)(2)(B)(ii) does not divest the Court of jurisdiction over Plaintiffs claim that Defendants must be compelled to take some action on his 1-485 Application. Hence Defendant’s 12(b)(1) Motion to Dismiss on that ground is rejected.

Even in the absence of a jurisdictional bar, Defendants still claim that Plaintiff cannot establish subject-matter jurisdiction over this matter because he cannot demonstrate that USCIS has a clear, ministerial duty, as opposed to discretionary authority, to a timely adjudication of his I-485 Application. Because Defendants assert that this failure dooms Plaintiffs attempt to invoke jurisdiction under either the APA or the MVA, they claim to be entitled to a Rule 12(b)(1) adjudication in their favor on that basis. Alternatively, Defendants claim that Plaintiff cannot meet the prerequisites for a claim under either statutory scheme, and that therefore- relief under Rule 12(b)(6) for failure to state a claim upon which relief can be granted is also warranted. The Court will first address Plaintiffs claims in the context of the APA.

B. Jurisdiction Under the Administrative Procedures Act

While the APA’s judicial review provisions do not provide an independent basis for subject-matter jurisdiction (Califano v. Sanders, 430 U.S. 99, 104, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)), when combined with the Court’s federal question jurisdiction under 28 U.S.C. § 1331, the APA vests the Court with jurisdiction to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1); Yu v. Brown, 36 F.Supp.2d at 928 (D.N.M.1999). Relief under the APA is limited to instances where an agency is alleged to have failed to take “a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (emphasis in original). The APA explicitly exempts from judicial review those actions ’“committed to agency discretion by law.” 5 U.S.C. § 701(a). With respect to required ministerial action, however, the APA requires administrative agencies, at 5 U.S.C. § 555(b), to act upon such matters “within a reasonable time.” See Aboushaban v. Mueller, 2006 WL 3041086 at *2. In addition, by using the term “shall” in requiring that the courts compel action unlawfully withheld or unreasonably delayed, Congress imposed a mandatory duty in that regard. Forest Guardians v. Babbitt, 164 F.3d 1261, 1269 (10th Cir.1998); see also Pierce v. Underwood, 487 U.S. 552, 569-70, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (Congress’ use of “shall” constitutes mandatory language).

As already discussed, the Court concludes that the duty to act on an application, as opposed to what action will be taken, is not discretionary on the part of the USCIS. Therefore the salient point, in considering the availability here of relief under the APA, is whether or not there has been an unreasonable delay entitling Plaintiff to judicial intervention. The absence of a specified deadline within which action must be taken does not change the nature of USCIS’ obligation from one that is ministerial to a matter within the agency’s discretion. Razaq v. Poulos, 2007 WL 61884 at *4 (N.D.Cal.2007). Although neither the APA or MVA specifies the time within which a decision on an application like Plaintiffs should be made, “by necessary implication the adjudication must occur within a reasonable period of time,” since “[a] contrary position would permit the [USCIS] to delay indefinitely, a result Congress could not have intended.” Liang v. Attorney General, 2007 WL 3225441 at *5, citing Yu v. Brown, 36 F.Supp.2d at 932. Consequently, in assessing the merit of Plaintiffs Motion to Dismiss, the Court must determine whether the pace of Defendants’ action on Plaintiffs 1-485 Application has been reasonable.

In order to grant Defendant’s Motion to Dismiss, then, the Court must determine as a matter of law that Defendants’ delay in processing Plaintiffs 1-485 Application has been reasonable. That question cannot be determined in the context of a motion to dismiss. Fu v. Gonzalez, 2007 WL 1742376 at *4. “What constitutes an unreasonable delay in the context of immigration applications depends to a great extent on the facts of the particular case.” Yu v. Brown, 36 F.Supp.2d at 934. Even though an agency’s determination as to what time period is reasonable must be given “wide berth” (Gelfer v. Chertoff, 2007 WL 902382 at *2, citing Yu, 36 F.Supp.2d at 932), such a determination necessarily involves factual inquiry going beyond the permissible parameters of this motion to dismiss, which is directed primarily to the sufficiency of Plaintiffs pleadings as opposed to the ultimate merits of his claim once the pertinent facts have been fully developed.

The Court recognizes that the question of whether the timing of application decisions can be subject to judicial review is far from settled. Other Courts have found that the relevant statutory framework in fact precludes judicial review of the pace at which the government reviews change of status applications. See, e.g., Grinberg v. Swacina, 478 F.Supp.2d 1350, 1353 (S.D.Fla.2007) (holding that 8 U.S.C. § 1252(a)(2)(B)(ii) preclude judicial review of not only the USCIS’ ultimate decision on a status application but also the time parameters within which the decision is made); Safadi v. Howard, 466 F.Supp.2d 696, 698 (E.D.Va.2006) (same).

This District is in fact split over the issue. In Jiaru Hu v. Chertoff, U.S. Dist. LEXIS 40489 at *12 (E.D.Cal.2002), Judge Shubb held that the processing speed for 1-485 applications is a matter within the discretion of the USCIS. Moreover, in Chen v. Chertoff, 2007 WL 2581895 (E.D.Cal.2007), Judge Burrell adopted findings and recommendations relying on the Jiaru Hu decision. On the other hand, in Liu v. Chertoff, 2007 WL 2433337 (E.D.Cal.2007), Judge Beistline reasoned that judicial review of unreasonably delayed petitions is permissible, “because without mandamus relief, USCIS could withhold a decision indefinitely in contravention of its non-discretionary duty to process such petitions.” Id. at *4.

Significantly, even Jiuru Hu recognized that under certain circumstances agency inaction might, if extreme enough in nature, be considered non-discretionary in nature. 2007 WL 1515067 at *4. In that event, according to Judge Shubb, “[t]he agency would then not be operating within its statutory discretion but rather abdicating its statutory duty to adjudicate applications, and under those circumstances this court could have jurisdiction to review the agency’s actions.” Id.

Here, Plaintiffs application has been pending since June of 2002, nearly six years ago. There is no evidence that anything was done to process the application until September of 2005, when the Texas Service Center requested additional information from Plaintiff. Although Defendants, in opposition to this Motion, now claim that Plaintiffs claim was referred to the Fraud Detection Unit nearly two years ago, there is no indication that any information has otherwise been transmitted to Plaintiff on the pendency of his application. This Court agrees with Judge Beistline that the specific time frame of delay must necessarily be assessed, since “[w]hat constitutes a reasonable time for adjudicating an immigration application depends on the facts of each case.” 2007 WL 2433337 at *4.

In both Liu and Chen, the delays found by Judges Shubb and Burrell to be not unreasonable were less than three years. Here, the delay in question is nearly twice that long, and beyond a conclusory allegation that the matter was referred to the Fraud Detection Unit after it had been pending over three years, there is no explanation whatsoever for the delay. Those circumstances do not permit the Court to find that the USCIS acted reasonably in processing Plaintiffs 1-485 Application.

Significantly, no information has been presented to suggest that the USCIS’ processing delay was attributable to Plaintiff. Moreover, as discussed above, there is no evidence explaining the reasons for the lengthy delay encountered by Plaintiff. The fact that Defendants can be compelled to process Plaintiffs Application expeditiously demonstrate that the Court is not bereft of jurisdiction under the Mandamus Act. Defendants’ Motion to Dismiss on that basis must accordingly be DENIED.

C. Jurisdiction Pursuant to the Mandamus and Venue Act

The MVA provides districts courts with original jurisdiction in “any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perforin a duty owed to the plaintiff.” 28 U.S.C. § 1361.

Because mandamus is deemed a drastic remedy to be invoked only in extraordinary situations Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980), it is “available to compel a federal official to perform a duty only if: (1) the individual’s claim is clear and certain; (2) the official’s duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other adequate remedy is available.” Kildare v. Saenz, 325 F.3d 1078, 1084 (9th Cir.2003) (quoting Patel v. Reno, 134 F.3d 929, 931 (9th Cir.1997)). Mandamus cannot be used to compel or review discretionary, as opposed to ministerial, acts of government officials. Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir.1983).

Judicial action under the MVA and the APA then, both require a non-discretionary or ministerial duty. In addition, like the APA, the MVA also requires that the requisite ministerial action be performed in a timely manner. Courts have consequently recognized that “relief under [the MVA] and the APA are virtually equivalent when a petitioner seeks to compel an agency to act on a nondiscretionary duty.” Gelfer, 2007 WL 902382 at *3, citing Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir.1997) (finding relief sought essentially the same under the MVA and the APA). If the Court has jurisdiction over either the APA or the MVA, “it need not address jurisdiction with respect to the other.” Dong v. Chertoff, 513 F.Supp.2d at 1162.

Because of the similarity between the two statutory schemes, the fact that Defendants’ Motion to Dismiss under the APA fails also dooms its corresponding request under the MVA.

CONCLUSION

For all the foregoing reasons, Defendants’ Motion to Dismiss is hereby DENIED.

IT IS SO ORDERED. 
      
      . Unless otherwise noted, all further references to "Rule” or "Rules” are to the Federal Rules of Civil Procedure.
     
      
      . Because oral argument will not be of material assistance, the Court ordered this matter submitted on the briefing. E.D. Cal. Local Rule 78-230(h).
     
      
      . The term "this subchapter” refers to Sub-chapter II of Chapter 12 of the United States Code, which is comprised of 8 U.S.C. §§ 1151 to 1381 and hence includes § 1159.
     
      
      . See Dong v. Chertoff, 513 F.Supp.2d 1158, 1160 (N.D.Cal.2007) (while the questions "has come before numerous district courts across the county in recent years[,][t]here is of yet no appellate guidance, and the district courts are split”); see also Camerena v. Cher-toff, 2008 WL 161481 (N.D.Ill.2008) ("no circuit court has spoken on this issue, and district courts around the country are divided”)
     
      
      . Moreover, as noted in Konchitsky v. Chertoff, 2007 WL 2070325 at *3 (N.D.Cal.2007), § 1252(a)(2)(B) is entitled "Denials of discretionary relief”, and therefore does not apply lo Plaintiff's situation, as he has neither been granted nor denied relief. Instead, Defendants have simply failed to make a decision on his application.
     
      
      . While the Court recognizes that other cases have held that the USCIS’ discretion extends to the pace at which immigration decisions are made as well as the substance of the decisions themselves, the Court rejects the reasoning employed by those cases. See, e.g., Grinberg v. Swacina, 478 F.Supp.2d 1350, 1352 (S.D.Fla.2007); Safadi v. Howard, 466 F.Supp.2d 696, 698-700 (E.D.Va. 2006).
     
      
      . As indicated above, while a court can compel an agency to act, it has no power to specify what the action must be. Norton v. S. Utah. Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004).
     
      
      . While extrinsic evidence may also be considered in a Rule 12(b) (1) Motion to Dismiss for lack of subject matter jurisdiction, the only such evidence provided by Defendants to bolster their claims is the Declaration of Thomas G. Prusinowski, which contains a single paragraph (No. 10) directed to the particulars of Plaintiffs claim and says little besides the apparent fact that Plaintiff's 1-485 Application was sent to Prusinowski’s unit in Texas in March of 2006, nearly four years after it was submitted. The Prusinowski Declaration makes no attempt whatsoever to justify the initial delay before the file was sent to Texas, and while it indicates that 7,500 files are pending review for fraud at the Texas Fraud Detection Unit, it makes no case for the assertion that Plaintiff’s claim was particularly complex or time-consuming.
     