A Manhattan federal judge has ruled that the FBI can be sued for a six-year delay in completing a background check needed to process a woman's application to become a lawful permanent resident of the United States.

Taking sides in an issue that has split the courts in the Southern District and across the nation, Judge Colleen McMahon said she has jurisdiction to entertain a case that seeks to compel the FBI and the U.S. Citizenship and Immigration Services to act.

In October 2001, U.S. citizen Azat Nigmadzhanov married Maryam Ibragimova, a citizen of Uzbekistan, and then filed a form to classify his new wife as an "immediate relative" so she could apply for permanent residence.

Ms. Ibragimova also submitted an I-485 application with Citizen and Immigration Services to adjust her status to "lawful permanent resident," an application that requires a mandatory name check by the FBI.

More than five years later, Ms. Ibragimova filed Nigmadzhanov v. Mueller, 07 Civ. 1279, asking the court to order the FBI to complete the background check within 30 days and Citizen and Immigration Services to act on her application within 30 days of receiving the FBI report.

The decision will be published Monday.

Judge McMahon said the case presented a number of questions that have divided courts.

The first was whether immigration services has a "nondiscretionary duty to adjudicate adjustment of status applications."

The judge answered in the affirmative, saying such a duty was implied because of the explicit delegation of power from Congress to process I-485 applications and from the general requirement in the Administrative Procedure Act "that an agency complete its delegated tasks within a reasonable time."

"Of course, the Attorney General has unfettered (and hence, unreviewable) discretion whether to grant or deny an application," she said. "However, one cannot infer from that the existence of discretion never to decide it at all."

And even those courts that find no jurisdiction, she said, still concede, either explicitly or implicitly, that Citizen and Immigration Services "has some duty to adjudicate applications for adjustment of status."

Second, Judge McMahon said courts are split on the issue of whether the Administrative Procedure Act requires that an agency act within a "reasonable time," but she was siding with those judges who believed that "a duty to decide that is unconstrained by a reasonableness requirement makes little sense."

Judge McMahon said she need not decide what is reasonable at this point as Ms. Ibragimova's allegation that "a five (now six and a half) year delay is unreasonable is not without merit."

Third, Judge McMahon said she was joining those courts that have found that the jurisdiction-barring provision of the Immigration and Nationality Act, §1252(a)(2)(B), does not preclude her review of the matter.

That section bars review of "(i) any judgment regarding the grant of relief under section . . . 245 or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security" that is discretionary.

"As I have already decided that there is a nondiscretionary duty to decide on an application for adjustment of status within a reasonable amount of time, the inapplicability of these sections is manifest," the judge said.

There has been no judgment granting or denying relief in the case, she said, and "no statutory provision in the relevant subchapters expressly gives the power not to adjudicate an adjustment of status application."

Judge McMahon rejected an argument by Ms. Ibragimova that she find as a matter of law that the delay of 6 1/2 years was unreasonable as a matter of law, "although other courts have done so."

She said that was a matter for summary judgment, but added, "I confess I will be very interested to see how the government justifies the reasonableness of a delay of this length for a simple name check."

Alexander Viktor Bibicheff of Bibicheff & Associates in Brooklyn represented Ms. Ibragimova and Mr. Nigmadzhanov.

Mr. Bibicheff said yesterday that "without jurisdiction, the alien will be deprived of any access to justice. They can be here forever as a kind of second-class citizen if the government delays adjudication."

The government was represented by Assistant U.S. Attorney Frank James Loprest Jr.

- Mark Hamblett can be reached at mhamblett@alm.com.

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