Hawkins

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DANA HAWKINS, ET AL. CIVIL ACTION

VERSUS NO. 25-1665

UNITED STATES CITIZENSHIP AND SECTION: “G”(5)

IMMIGRATION SERVICES

ORDER AND REASONS

Before the Court is Defendant the United States Citizenship and Immigration Services’

(the “USCIS”) Motion to Dismiss.1 In this litigation, Plaintiffs Dana Hawkins (“Hawkins”) and

Diab Diab (“Diab”) (collectively, “Plaintiffs”) bring claims against the USCIS seeking injunctive

relief related to the USCIS’s “unlawful and unreasonably long delay in the adjudication” of

Plaintiffs’ pending Petition of Alien Relative (“Form I-130”)2 and Application to Register

Permanent Residence or Adjust Status (“Form I-485”).3 In the instant motion, the USCIS moves

the Court to dismiss Plaintiffs’ claims because it alleges that this Court lacks subject matter

jurisdiction over this case and Plaintiffs fail to state a claim for which relief can be granted.4

Plaintiffs oppose the motion.5 Considering the motion, the memoranda in support and in

opposition, the record, and applicable law, the Court grants the motion and dismisses Plaintiffs’

claims without prejudice for lack of jurisdiction.

1 Rec. Doc. 9.

2 In conjunction with an adjustment of status requested through a Form I-485, an alien seeking a family-based

visa must have their qualifying relative, who is a U.S. citizen or lawful permanent resident, file a Form I-130

petitioning for the alien’s visa. See Kerry v. Din, 576 U.S. 86, 89 (2015) (citing 8 .U.S.C. §§ 1153(f), 1154(a)(1)).

3 Rec. Doc. 1 at 1. Adjustment of status is a mechanism by which an alien’s status may be changed to that of

lawful permanent resident without requiring the alien to leave the United States. See Marques v. Lynch, 834 F.3d 549,

554 (5th Cir. 2016).

4 Rec. Doc. 9.

5 Rec. Doc. 10.

I. Background

Plaintiffs filed the Complaint against the USCIS in this Court on August 13, 2025.6

According to the Complaint, on March 24, 2017, Hawkins, who is a United States citizen, married

“her immigrant spouse,” Diab.7 On June 10, 2024, Hawkins filed a Form I-130 with the USCIS.8

On that same day, Diab filed a Form I-485 with the USCIS.9 The Complaint alleges that to date,

the USCIS has refused to adjudicate the Form I-130 or Form I-485 (collectively, the “Petitions”).10

The Complaint further alleges that Plaintiffs have made multiple requests for updates to

the USCIS regarding the status of the Petitions, “but USCIS has continued to refuse to adjudicate”

the Petitions.11 Plaintiffs assert that they have provided all of the required evidence necessary to

adjudicate the Petitions to the USCIS, and that they are prejudiced by the USCIS’s “unreasonable

and unlawful delay” in the adjudication of the Petitions.12 Moreover, the Complaint asserts that

the USCIS has acted in bad faith by refusing to adjudicate the Petitions.13 Therefore, Plaintiffs

bring claims against the USCIS for alleged violations of the Administrative Procedures Act (the

6 Rec. Doc. 1.

7 Id. at 3.

8 Id.

9 Id.

10 Id. at 3–4.

11 Id.

12 Id.

13 Id.

“APA”),14 the Immigration and Nationality Act (the “INA”),15 and the Fifth Amendment.16

Plaintiffs request that the Court order the USCIS to adjudicate the Petitions within a reasonable

amount of time, and grant attorney’s fees, court costs, and expenses to Plaintiffs.17

The USCIS filed the instant Motion to Dismiss on December 9, 2025.18 Plaintiffs filed an

opposition to the motion on December 28, 2025.19 The USCIS filed a reply in further support of

the motion on January 12, 2026.20

II. Parties’ Arguments

A. The USCIS’s Arguments in Support of the Motion to Dismiss

The USCIS focuses its argument on the Form I-130, as it is a pre-requisite to adjudicating

the Form I-485.21 The USCIS asserts that Plaintiffs’ claim of unreasonable delay in the

adjudication of Hawkins’s Form I-130 is inappropriate for judicial review, because adjustments of

status decisions are expressly removed from “the orbit of judicial review” by statute.22 Further, the

USCIS avers that there are multiple court opinions dismissing similar claims for lack of

14 5 U.S.C. §§ 706(1) and 555(b). Plaintiffs also allege that the Mandamus Act, “authorizes this Honorable

Court to order a remedy when the Plaintiff demonstrates that (1) Plaintiff has a clear right to the relief requested; (2)

Defendant has a clear duty to perform the act in question; and (3) no other adequate remedy is available.” Rec. Doc.

1 at 5 (citing 28 U.S.C. § 1361). Further, Plaintiffs claim that this Court has jurisdiction under the Declaratory

Judgment Act. Id. at 3 (citing 28 U.S.C. § 2201, et seq.).

15 8 U.S.C. §§ 1101–1537.

16 Id. at 7.

17 Id. at 8.

18 Rec. Doc. 9.

19 Rec. Doc. 10.

20 Rec. Doc. 13.

21 Rec. Doc. 9-1 at 1, n.1.

22 Id. at 2.

jurisdiction including the recent Fifth Circuit decision in Cheejati v. Blinken.23 Moreover, the

USCIS contends that it posts the median processing time for a Form I-130 by particular field

offices.24 The USCIS asserts that the median processing time for a Form I-130 on behalf of

immediate relatives was 65 months for the New Orleans Field Office at the time the instant motion

was filed.25 Additionally, the USCIS acknowledges that while it has a duty to adjudicate a Form

I-130 at some point, it is not required to make its determination within an established timeframe.26

Focusing on its argument that this Court lacks subject matter jurisdiction, the USCIS

contends that it is “well established that neither the APA nor the Mandamus Act independently

confer subject matter jurisdiction on an Article III court.”27 The USCIS asserts that the APA does

not create a cause of action in this case where the agency action is committed to agency discretion

by law.28 Hence, the USCIS argues that the Court lacks jurisdiction under the APA where, as here,

“(1) a statute precludes judicial review and (2) the agency action at issue is committed to agency

discretion by law.”29 Similarly, the USCIS contends that this Court does not have jurisdiction

under the Mandamus Act because Plaintiffs have not established that the USCIS owes them a duty

to adjudicate the Petitions on a specific timeline.30 The USCIS avers that “[t]his makes little

23 Id. (citing Cheejati v. Blinken, 97 F.4th 988 (5th Cir. 2024)).

24 Id. (citing “Check Case Processing Times,” USCIS, at https://egov.uscis.gov/processing-times/home (last

visited December 2, 2025)).

25 Id.

26 Id. at 4.

27 Id. at 6 (citing Califano v. Sanders, 430 U.S. 99, 104–07 (1977); Stern v. S. Chester Tube Co., 390 U.S.

606, 608 (1968); Cambranis v. Blinken, 994 F.3d 457, 466 (5th Cir. 2021); Hinojosa v. Horn, 896 F.3d 305, 313 (5th

Cir. 2018)).

28 Id. at 7 (citing 5 U.S.C. § 701(a)(2)).

29 Id.

30 Id. at 8.

practical difference—Plaintiff[s’] APA claim is essentially in the nature of mandamus relief—but

as a formal matter, the Court is barred from exercising jurisdiction under the Mandamus Act.”31

The USCIS also argues that Plaintiffs have failed to state “an APA Claim of Unreasonable

Delay or of Unlawful Withholding of Agency Action.”32 The USCIS contends that Hawkins’s

Form I-130 “is within normal processing times and is slated for normal processing according to

factors affecting filings in the same category and processing center[.]”33 Further, the USCIS asserts

that Plaintiffs have failed to identify a “discrete agency action” that the USCIS is “legally required

to take,” which is a requirement for an APA claim.34

Regarding Plaintiffs Fifth Amendment violation of due process claim, the USCIS contends

that Plaintiffs have failed to state a claim for which relief can be granted.35 Specifically, the USCIS

asserts that “courts have long held that there is no constitutional right to receive a visa for a spouse

to remain in the United States.”36 Accordingly, the USCIS moves the Court to dismiss the

Complaint.37

B. Plaintiffs’ Arguments in Opposition to the Motion to Dismiss

In opposition, Plaintiffs contend that the USCIS is unlawfully withholding agency action,

in violation of the APA, by refusing to issue an order on the Petitions.38 Plaintiffs also assert that

31 Id. at 10 (citing Ahmadi v. Chertoff, 522 F. Supp. 2d 816, 818 n.3 (N.D. Tex. 2007) (internal quotations

omitted)).

32 Id. at 11.

33 Id.

34 Id. (citing Fort Bend Cnty. v. U.S. Army Corps of Engineers, 59 F.4th 180, 197 (5th Cir. 2023)).

35 Id. at 13.

36 Id. (citing Bright v. Parra, 919 F.2d 31, 33 (5th Cir. 1990)).

37 Id. at 14.

38 Rec. Doc. 10-2 at 1.

contract law demands that USCIS perform its contracted duty to issue an order on the properly

filed Petitions within a reasonable amount of time.39 Plaintiffs aver that the USCIS is conducting

an unlawful “pocket denial” on the Petitions by refusing to approve them, but also refusing to

formally deny them.40 Plaintiffs assert that there is no statute that precludes judicial review of the

USCIS’s “refusal to issue an order” on the Petitions.41

Plaintiffs go on to list various statutory terms and definitions under the APA to assert that

Plaintiffs’ situation clearly falls within scope of the Court’s jurisdiction under the APA.42

Moreover, Plaintiffs aver that the Court has subject matter jurisdiction over this action pursuant to

28 U.S.C. § 1331, as this is a civil action arising under the Immigration and Nationality Act.43

Therefore, Plaintiffs argue that this Court has jurisdiction over their claims and that the Complaint

states a claim to relief that is plausible on its face.44

C. The USCIS’s Arguments in Further Support of the Motion to Dismiss

In reply, the USCIS asserts that the Court lacks jurisdiction over Plaintiffs’ “pace of

adjudication” claim under either the APA, the Mandamus Act, or the Declaratory Judgment Act

“due to the INA’s broad ‘jurisdiction stripping’ provisions which divest district courts of any

review over green card and change of status petitions (respectively Forms I-130 and I-485) like

those filed by [] Plaintiffs and pending with USCIS.”45 Further, the USCIS points out Plaintiffs

39 Id. at 1–2 (citing Gentry v. Smith, 487 F.2d 571, at 575-76 (5th. Cir. 1973)).

40 Id. at 3.

41 Id.

42 Id. at 3–6.

43 Id. at 9.

44 Id. at 7–10.

45 Rec. Doc. 13 at 1–2 (citing Bian v. Clinton, 605 F.3d 249, 253 (5th Cir. 2010); Cheejati,97 F.4th at 992).

only mention the Declaratory Judgment Act and Mandamus Act once in the Complaint, but not at

all in their opposition.46 Therefore, the USCIS asserts that Plaintiffs have abandoned those

claims.47 Moreover, the USCIS submits that Plaintiffs fail to address the Fifth Circuit precedent in

Bian or Cheejati in their opposition.48

The USCIS also contends that Plaintiffs’ assertion that an implied contract exists between

the two parties is incorrect.49 The USCIS asserts that other courts have dismissed similar claims

of a contract by implication with the federal government based on a statute or regulation.50 In

particular, the USCIS cites Vargas v. U.S. Dept. of Homeland Security, where a Texas district

court dismissed similar claims holding that the plaintiff must demonstrate that “the Government

has waived its sovereign immunity for his purported contract claim.”51 The USCIS submits that

this Court should reach the same conclusion.52

As to Plaintiffs’ claims under the APA, the USCIS asserts that the APA contains self-

limiting statutes which allow judicial review of an agency only where a plaintiff asserts that an

agency failed to take a discrete agency action that it is required to take, except to the extent that

46 Id. at 1, n. 2.

47 Id. (citing Black v. N. Panola School Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006)).

48 Id. at 2.

49 Id.

50 Id. 2–3. (citing Vargas v. U.S. Dept. of Homeland Security, No. B:13-21, 2014 WL 12673693 (S.D. Tex.

Jan. 7, 2014); Xilong Zhu v. Dept. of Homeland Security, No. 2:18-cv-00489-RAJ, 2019 WL 4261167 at *4 (W.D.

Wash. Sept. 9, 2019); Isleem v. Peacock, CA No. 24-559, 2024 WL 3887511, at *7 n. 7 (E.D. La. Aug. 21, 2024)).

51 Id. at 3 (citing 2014 WL 12673693, at * 12 (citing F.D.I.C. v. Meyer, 510 U.S. 471, 474–75 (1994)).

52 Id.

statutes preclude judicial review.53 The USCIS contends that the INA expressly precludes the

review of the Petitions.54 Therefore, the USCIS argues that this case should be dismissed.55

III. Legal Standard

“Federal courts are courts of limited jurisdiction,” and “possess only that power authorized

by the Constitution and statute.”56 Thus, under Rule 12(b)(1), “[a] case is properly dismissed for

lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to

adjudicate the case.”57 In ruling on a Rule 12(b)(1) motion to dismiss, the Court may rely on: (1)

the complaint alone, presuming the allegations to be true; (2) the complaint supplemented by

undisputed facts; or (3) the complaint supplemented by undisputed facts and the court’s resolution

of disputed facts.58 The plaintiff, as the party asserting jurisdiction, has the burden of proving

subject matter jurisdiction by a preponderance of the evidence.59

IV. Analysis

The USCIS argues that the Complaint should be dismissed because this Court does not

have jurisdiction over Plaintiffs’ claims, or alternatively because Plaintiffs fail to state a claim for

which relief can be granted. A motion to dismiss for lack of subject matter jurisdiction must be

53 Id. at 4.

54 Id. (citing Bian, 605 F.3d at 255).

55 Id. at 5.

56 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted).

57 Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (internal

citation omitted).

58 Den Norske Stats Ojeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001). See also Williamson

v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981).

59 See Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009) (internal citations omitted).

considered before determining the validity of a claim.60 Therefore, the Court begins with the

USCIS’s challenge to subject matter jurisdiction.

Plaintiffs assert that this Court has jurisdiction over this dispute under the APA, because

the USCIS is allegedly unlawfully withholding agency action, by refusing to issue an order on the

Petitions. The APA authorizes suit by “[a] person suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action within the meaning of a relevant statute.”61

“[A]gency action” is defined to include “the whole or a part of an agency rule, order, license,

sanction, relief, or the equivalent or denial thereof, or failure to act.”62 “The APA provides relief

for a failure to act in § 706(1): ‘The reviewing court shall . . . compel agency action unlawfully

withheld or unreasonably delayed.’”63 A central point is that the only agency actions that can be

compelled under the APA are actions that are legally required.64 “This limitation appears in §

706(1)’s authorization for courts to ‘compel agency action unlawfully withheld.’”65 “Thus, a claim

under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete

agency action that it is required to take.”66 Moreover, the APA’s self-limiting language states that

the statute may apply, “except to the extent that . . . statutes preclude judicial review.”67

60 Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994).

61 Norton v. S. Utah Wilderness All., 542 U.S. 55, 61 (2004) (quoting 5 U.S.C. § 702).

62 Id. at 61–62 (quoting 5 U.S.C. § 551(13) (emphasis in original)).

63 Id. at 62.

64 Id. at 63.

65 Id. (emphasis in original). “Of course § 706(1) also authorizes courts to ‘compel agency action ...

unreasonably delayed’—but a delay cannot be unreasonable with respect to action that is not required.” Id. at 63, n.

1.

66 Id. at 64.

67 Vargas, 2014 WL 12673693, at *10 (citing 5 U.S.C. § 701(a)(1)).

Turning to such a statute precluding judicial review, “[t]he Immigration and Nationality

Act (INA) governs visa allocation for foreign nationals[,]”68 which is the process that Plaintiffs

seek to have the USCIS adjudicate for Diab. In the INA, Congress conferred upon the Attorney

General the discretion to adjust the status of an alien to lawful permanent resident.69 The Attorney

General’s authority under this provision has been delegated in relevant part to the USCIS.70 “The

INA strips federal courts of jurisdiction to address many challenges brought in the context of

immigration proceedings.”71 The relevant section of the INA states:

Notwithstanding any other provision of law (statutory or nonstatutory), including

section 2241 of Title 28, or any other habeas corpus provision, and sections 1361

and 1651 of such title, and except as provided in subparagraph (D), and regardless

of whether the judgment, decision, or action is made in removal proceedings, no

court shall have jurisdiction to review—

(i) any judgment regarding the granting of relief under section

1182(h), 1182(i), 1229b, 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 subchapter to be in the discretion of the Attorney General

or the Secretary of Homeland Security[.]72

Subparagraph (D) contains an exception for review of “constitutional claims or questions of law

raised upon a petition for review filed with an appropriate court of appeals.”73 Subparagraph (D)

68 Cheejati, 106 F. 4th at 391.

69 Id.

70 See, e.g., 6 U.S.C. §§ 271(b)(5), 455(c).

71 Cheejati, 106 F. 4th at 393.

72 8 U.S.C. § 1252(a)(2)(B) (emphasis added).

73 8 U.S.C. § 1252(a)(2)(D); see also Mendoza v. Mayorkas, No. 23-20043, 2023 WL 6518152, at *2 & n.1

(5th Cir. Oct. 5, 2023) (quoting Easwarankudyil v. Hazuda, No. 13-4166, 2014 WL 11498059, at *3 (N.D. Tex. May

19, 2014), aff’d, 600 Fed. App’x 254 (5th Cir. 2015)) (the district court “is not the proper place to raise a review of

constitutional claims or questions of law. Rather, § 1252(a)(2)(D) provides that constitutional claims or questions of

law may be reviewed upon a ‘petition for review filed with an appropriate court of appeals.’”).

has been interpreted as applying only when a petition for review is filed directly in the appropriate

court of appeals.74

As such, the INA expressly precludes judicial review of the adjustment of status of an alien.

Plaintiffs’ claims under the APA are solely based upon the USCIS’s allegedly unlawful or

unreasonable delay in adjudicating the Petitions related to Diab’s change in status. Thus, this Court

lacks subject matter jurisdiction to review Plaintiffs’ claims under the APA, because the INA bars

judicial review.

Plaintiff also asserts that this Court has jurisdiction pursuant to the Mandamus Act, the

Declaratory Judgment Act, and the Fifth Amendment. However, “[m]andamus is not available to

review discretionary acts of agency officials.”75 Therefore, mandamus jurisdiction is not

appropriate here, where the INA gives the USCIS discretion in adjustment of status decisions.76

Further, the Declaratory Judgment Act does not create an independent cause of action.77 Therefore,

the Declaratory Judgment Act does not extend the jurisdiction of the federal courts, and there must

be an independent basis for jurisdiction to support its application.78

Plaintiffs allege that the USCIS has denied “Plaintiffs’ Right to Due Process and Right to

Equal Protection of the Laws guaranteed by the Fifth Amendment.”79 The USCIS asserts that

“there is no constitutional right to receive a visa for a spouse to remain in the United States.”80

74 See Mendoza v. Mayorkas, No. 23-20043, 2023 WL 6518152, at *2 & n.1 (5th Cir. Oct. 5, 2023).

75 Green v. Heckler, 742 F.2d 237, 241 (5th Cir. 1984).

76 See Bian, 605 F.3d at 254 (appeal dismissed and opinion vacated as moot No. 09-10568, 2010 WL 3633770

(5th Cir. Sept. 16, 2010)).

77 Braidwood Mgmt., Inc. v. Equal Emp. Opportunity Comm’n, 70 F.4th 914, 932 (5th Cir. 2023).

78 Medtronic, Inc. v. Mirowski Family Ventures, LLC, 571 U.S. 191, 197 (2014).

79 Rec. Doc. 1 at 2.

80 Rec. Doc. 9-1 at 13 (citing Bright, 919 F.2d at 33).

However, the Court does not reach the merits of Plaintiffs’ constitutional claims, because although

the INA permits judicial review of “constitutional claims or questions of law[,]” such claims may

only be filed “with an appropriate court of appeals.”81 Accordingly, the plain language of the statue

makes it clear that district courts have been divested of jurisdiction to hear even constitutional

claims regarding adjustment of status applications.82 Therefore, this Court does not have

jurisdiction over Plaintiffs’ constitutional claims.

Plaintiffs also contend that the USCIS entered into binding contracts with them for USCIS

to adjudicate and issue an order on the Petitions.83 Plaintiffs aver that the filing fees of $675 for

the Form I-130 and $1,440 for the Form I-485, served as consideration to consummate the

contracts.84 The USCIS asserts that such contentions of an implied contract have been rejected by

courts before, most recently in Vargas v. United States Department of Homeland Security.85

Plaintiffs do not raise the implied contract theory in the Complaint, instead raising it for the first

time in their opposition to the instant motion.86 A new claim cannot be raised in opposition to a

motion to dismiss. However, the Fifth Circuit has held that “[g]enerally, a new claim or legal

theory raised in response to a dispositive motion should be construed as a request for leave to

amend the complaint, and the district court should determine whether leave should be granted.”87

81 Vargas v. United States Dept’ of Homeland Sec., No. B: 13-21, 2014 WL 12673693, at *8 (S.D. Tex. Jan

7, 2014) (citing Odero v. Holder, 338 Fed. App’x 432, 433 (2009)).

82 Id.

83 Rec. Doc. 10-1 at 2.

84 Id. at 3–4.

85 Rec. Doc. 13 at 2 (citing Vargas v. United States Dept’ of Homeland Sec., No. B: 13-21, 2014 WL

12673693 (S.D. Tex. Jan 7, 2014)).

86 Rec. Doc. 13.

87 Pierce v. Hearne Ind. Sch. Dist., 600 Fed. App’x. 194, 200 (5th Cir. 2015) (citing Stover v. Hattiesburg

Pub. Sch. Dist., 549 F.3d 985, 989 n. 2 (5th Cir. 2008)).

In Vargas, the plaintiffs sought an adjustment of status for plaintiff Mejia Vargas, after his

Form I-485 was denied by the USCIS.88 Among other claims, Vargas asserted that the USCIS

“breached an implied contract when they accepted his filing fees and did not properly adjudicate

his application.”89 The district court reasoned that while the United States has waived sovereign

immunity against contract claims against it through the Tucker Act and Little Tucker Act, this

waiver does not extend to contracts “implied in law.”90 Therefore, the district court dismissed the

purported contract claim for lack of jurisdiction.91

If sovereign immunity has not been waived, the Court lacks subject matter jurisdiction to

adjudicate the contract claim.92 “The Tucker Act confers upon the court jurisdiction to hear and

determine, inter alia, claims against the United States founded upon any ‘express or implied’

contract with the United States.”93 Likewise the Little Tucker Act, vests the district courts with

jurisdiction over contract claims “not exceeding $10,000 in amount.”94 However, the Supreme

Court has held that “this jurisdiction extends only to contracts either express or implied in fact,

and not to claims on contracts implied in law.”95

“The distinction between ‘implied in fact’ and ‘implied in law,’ and the consequent

88 Vargas, 2014 WL 12673693 at *4.

89 Id. at *11.

90 Id. at *12.

91 Id.

92 F.D.I.C. v. Meyer, 510 U.S. 471, 474–75 (1994).

93 Hercules, Inc. v. U.S., 516 U.S. 417, 423 (1996) (citing 28 U.S.C. § 1491(a)).

94 Vargas, 2014 WL 12673693 at *11.

95 Hercules, Inc., 516 U.S. at 423.

limitation, is well established.”96 An agreement implied in fact is “founded upon a meeting of

minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of

the parties showing, in the light of the surrounding circumstances, their tacit understanding.”97 By

contrast, an agreement implied in law is a “fiction of law” where “a promise is imputed to perform

a legal duty[.]”98 In other words to establish a contract implied in fact Plaintiffs must show that

there was a meeting of minds,99 and “actual authority on the part of the government’s

representative to bind the government.”100

Plaintiffs have not shown that there was a meeting of minds as to the allegedly implied

contracts for the USCIS to adjudicate the Petitions, nor that the USCIS has the authority to waive

the government’s sovereign immunity. Rather, Plaintiffs merely assert that a promise for USCIS

to adjudicate the Petitions should be imputed from Plaintiffs submission of the Petitions and

payment of the requisite filing fees. Therefore, this Court construes Plaintiffs’ purported breach of

contract claim as a claim under an implied contract in law. Accordingly, Plaintiffs have not

demonstrated that the United States waived sovereign immunity on the purported breach of

contract claim, and it would be futile to allow Plaintiffs’ an opportunity to amend the Complaint

to bring such a claim.

As discussed above, this Court lacks subject matter jurisdiction over Plaintiffs’ claims.

However, as to the core APA claim, even if the INA did not expressly preclude judicial review

here, Plaintiffs have offered no authority to suggest that the USCIS is bound to adjudicate the

96 Id.

97 Id. at 424 (quoting Baltimore & Ohio R. Co. v. United States, 261 U.S. 592, 597 (1923)).

98 Id. (quoting Baltimore & Ohio R. Co., 261 U.S. at 597).

99 Russell v. United States, 182 U.S. 516, 530 (1901).

100 Schism v. U.S., 316 F.3d 1259, 1278 (Fed. Cir. 2002)

Petitions on a particular timeline. In fact, the Fifth Circuit has held that “[a]lthough Congress

enacted an aspirational goal of six months, 8 U.S.C. § 1571(b) (‘180 days’)” to rule on I-485

petitions, “there is no clear mandate here such that we can say the USCIS was required to act

within” a specific amount of time.101 Moreover, the USCIS has shown that the median processing

time for adjudicating a Form I-130 is approximately 65 months. At the time the Complaint was

filed the Petitions had been pending for approximately 14 months. Therefore, the USCIS’s

handling of the Petitions clearly does not amount to unreasonable delay, when compared to the

standard processing time. Thus, even if this Court had jurisdiction over the APA claim Plaintiffs

fail to state a claim for which relief can be granted.

V. Conclusion

For the reasons stated herein, the Court does not have jurisdiction over Plaintiff’s claims

under the APA, the Mandamus Act, the Declaratory Judgment Act, or the Fifth Amendment.

Plaintiffs also have not demonstrated that the United States waived sovereign immunity on the

purported breach of contract claim, and it would be futile to allow Plaintiffs’ an opportunity to

amend the Complaint to bring such a claim. Therefore, this Court lacks subject matter jurisdiction

over all of Plaintiffs’ claims and dismisses this matter without prejudice.

Accordingly,

101 Li v. Jaddou, No. 22-50756, 2023 WL 3431237, at *1 (5th Cir. May 12, 2023) (emphasis in original). The

Petitions here have been pending for longer that those in Li, but the Court adopts the reasoning in Li finding that the

USCIS is not required to adjudicate a Form I-485 or Form I-130 within a set timeframe.

IT IS HEREBY ORDERED that the USCIS’s Motion to Dismiss!” is GRANTED.

Plaintiffs’ claims are DISMISSED WITHOUT PREJUDICE for lack of jurisdiction.

NEW ORLEANS, LOUISIANA, this 21st day of July, 2026.

NANNETTE JOLIVETTE BROWN

UNITED STATES DISTRICT JUDGE

12 Rec. Doe. 9.

16