I-485 delay and 8 U.S.C. § 1252(a)(2)(B)(ii): the jurisdiction question before the Ninth Circuit

Last updated 2026-10-15 · General information, not legal advice

A federal court in California threw out a suit over a stalled Form I-485 without reaching the length of the wait. Its reason was jurisdiction: 8 U.S.C. § 1252(a)(2)(B)(ii) strips courts of power to review certain discretionary decisions, and the court read that to cover a claim that USCIS has not adjudicated an adjustment application. The appeal is No. 26-4124 in the Ninth Circuit, and on 1 October 2026 the American Immigration Lawyers Association and the American Immigration Council filed an amicus brief urging reversal. The threshold for filing has not moved. What this fight decides is which complaints survive the government's first motion.

The filing, and what is in it

The American Immigration Council posted the brief on its litigation page on 13 October 2026; the PDF carries a court header dated 1 October 2026 at DktEntry 14.1.

The caption is Subadra Butchi Raju Pinnamaraju, et al. v. Carrie M. Selby, et al., Selby being sued in her official capacity as Director of the USCIS California Service Center. The appeal comes from the U.S. District Court for the Central District of California, No. 8:25-cv-02721-KES, before Magistrate Judge Karen E. Scott. AILA and the Council appear as amici in support of the plaintiffs-appellants and ask for reversal of the dismissal as to the I-485s.

Two rulings below are what the brief attacks. The district court held that § 1252(a)(2)(B)(ii) reaches a suit challenging USCIS's failure to adjudicate an adjustment application; its order spoke of "agency prioritization of adjustment applications" and cited Khachutorov v. Britten, 792 F. Supp. 3d 1106, 1114 (C.D. Cal. 2025) for the proposition that government decisions about the pace of reviewing an application are generally discretionary and so insulated from review. It also treated the APA claim and the mandamus claim as "in essence" the same request and analysed only the first.

Two things this page cannot tell you. How long the plaintiffs' applications had been pending is not stated in the brief. Where the appeal stands today, and whether the Ninth Circuit has ruled, we have no court record of our own to cite, so we do not say.

What the provision actually says

Read 8 U.S.C. § 1252(a)(2)(B) in three pieces.

• Its opening clause names the mandamus statute. The bar applies "[n]otwithstanding 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." Section 1361 is the Mandamus Act.
• Clause (i) is about granting relief. It covers "any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title." Section 1255 is adjustment of status, the statute behind every I-485. Clause (i) is aimed at a judgment on whether relief is granted, and an application nobody has decided produces no such judgment.
• Clause (ii) is the one the government invokes in delay cases. It covers "any other decision or action" whose authority "is specified under this subchapter to be in the discretion of" the Attorney General or the Secretary. To use it, the government has to point at the words in the statute that commit the matter to discretion.

Those words sit in 8 U.S.C. § 1255(a): an eligible person's status "may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe." From there the government's reasoning runs on to the pace of the adjudication, as discretionary too. That second step is the one on appeal.

What the brief argues

Start with a presumption, not a silence. The brief leads on the strong presumption favouring judicial review of agency action, citing Mach Mining, LLC v. E.E.O.C., 575 U.S. 480, 486 (2015), Kucana v. Holder, 558 U.S. 233, 251 (2010), and Guerrero-Lasprilla v. Barr, 589 U.S. 221, 229 (2020). An agency claiming Congress barred all review carries a heavy burden.

Then read the words as ordinary English. On the brief's account, doing nothing is outside the ordinary meaning of "decision" and of "action". The Administrative Procedure Act defines "agency action" to include a "failure to act" at 5 U.S.C. § 551(13), and the brief treats that definition as peculiar to the APA, written precisely so that inaction could be litigated, and as support for the ordinary reading of § 1252 rather than a reason to widen it. The brief also objects to the vocabulary of "pace": it credits USCIS with ordering a queue, when the plaintiffs' complaint is that their files are not being worked at all.

Treat mandamus as a command. 28 U.S.C. § 1361 gives district courts original jurisdiction over "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Quoting Blackstone through Marbury v. Madison, 5 U.S. (1 Cranch) 137, 168 (1803), the brief says an order to decide is not a review of a decision, and that there is no decision here to review. The opening clause quoted above is what that argument has to get past, since it names § 1361 expressly. How the Ninth Circuit resolves it we will not predict.

The relief sought is a remand so that the district court weighs the delay under the TRAC factors, citing Vaz v. Neal, 33 F.4th 1131, 1137 (9th Cir. 2022), which draws them from Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984).

District courts in the same state have gone both ways

One passage in the brief is worth the attention of anyone about to file. It sets two lines of district-court rulings side by side.

Dismissals, in cases where (as the brief describes them) the complaint pleaded no fact about the delay beyond its length: Monick v. Su, No. 2:24-cv-03052-AB-AGR, 2024 WL 4206115 (C.D. Cal. Sept. 6, 2024); Baizakova v. Jaddou, No. SA CV 24-201-JFW (DFMx), 2024 WL 3063227 (C.D. Cal. June 14, 2024); Varzaghani v. Mayorkas, No. CV-23-1876-DMG (KESx), 2024 WL 2952141 (C.D. Cal. June 5, 2024).

Refusals to apply TRAC before the facts are in: Vemula v. Tarango, No. 2-26-cv-00652-ODW (SKx), 2026 WL 2227811 (C.D. Cal. July 30, 2026); Alekperov v. U.S. Dep't of Homeland Sec., No. 2:24-cv-02704-SPG-KS, 2024 WL 5441943 (C.D. Cal. Dec. 12, 2024); Niyomwungere v. Mayorkas, No. CV-24-02809-PHX-DJH, 2025 WL 1865810 (D. Ariz. July 7, 2025); and from another circuit, Gonzalez v. Cuccinelli, 985 F.3d 357, 375 (4th Cir. 2021).

We have not read those orders ourselves. Every citation and characterisation above comes from the amicus brief, which is why it is attributed to the brief; the docket numbers and Westlaw cites are reproduced so you can check them.

What this means for a mandamus case

Our threshold for an I-485 is still 12 months, and this appeal does not touch it (see I-485 pending too long). Three things about it do matter to you.

It will bind the courts where a large share of these cases are filed. Under 28 U.S.C. § 41 the Ninth Circuit covers Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, Hawaii and Guam. District courts there follow what it decides, so if you live in one of them this is your case law, not news from elsewhere.

A complaint that says only "I have waited N months" is the weakest one to be holding. The brief quotes paragraph 48 of the plaintiffs' complaint: the agency's failure to act is tied to no resource constraint and no identifiable queue, similarly situated applicants keep receiving action, and nothing suggests that working these files would divert attention from higher-priority matters. Allegations of that kind are what the jurisdiction and plausibility arguments are fought over. Your elapsed months still matter, measured against the published figures on our processing times page; they are half of the showing, not all of it.

Plead the APA claim and the mandamus claim separately. The court below collapsed them. The APA claim runs on 5 U.S.C. § 706(1), under which a reviewing court "shall compel agency action unlawfully withheld or unreasonably delayed", together with 5 U.S.C. § 555(b), under which "each agency shall proceed to conclude a matter presented to it" and must do so "within a reasonable time". The mandamus claim runs on 28 U.S.C. § 1361. Pleading both is longstanding advice rather than a lesson from this appeal: the practice advisory Mandamus and APA Delay Cases: Avoiding Dismissal and Proving the Case, issued on 19 February 2021 by the National Immigration Litigation Alliance and the American Immigration Council, states that it is advisable to plead both an APA and a mandamus cause of action, and adds the caution that mandamus relief is unavailable where there is an adequate remedy at law, which some courts hold APA relief to be. That advisory says of itself that it is written for lawyers and is no substitute for advice on a particular case.

None of this is new as a practical matter. Mistake 7 on our list of ten mandamus mistakes is having no plan for the motion to dismiss, whose first ground is usually that the pace of adjudication is discretionary and unreviewable. The appeal will tell us whether that ground holds in this circuit.

The published numbers explain why the question is worth this much. For employment-based I-485s adjudicated at the service centers, USCIS publishes 42.5 months as the 80% figure and 48.5 months as the case-inquiry line, which on our snapshot of 10 October 2026 corresponded to receipt dates before 28 September 2022; USCIS marks the data as published on 17 September 2026 (see our data notes). Someone three or four years into that wait has little left to try except a court, which is what makes the jurisdiction question concrete.

We will not guess the outcome of the appeal. Whichever way it goes, a mandamus order compels a decision and never an approval.

What to do

1. Date the wait from your Received Date. It is on the Form I-797C receipt notice. Run the 60-second check, then read the threshold on our I-485 page.
2. Separate a visa backlog from an adjudication delay. If your priority date is not current you are waiting for a visa number rather than a decision, and no court shortens that (see EB-1, EB-2 and EB-3 adjustment).
3. Collect the facts that are not months. Filing and notice dates, screenshots of a status that has not changed, the concrete harm the wait is doing, cases filed alongside yours that have been decided. That is the material a plausibility fight runs on.
4. Ask your lawyer to plead both claims, with the defendants named in full. Our six questions to ask a mandamus lawyer covers how to tell whether they have done this work before.
5. Keep the free routes running in parallel. A case inquiry and a congressional inquiry cost nothing, and neither is a precondition to suing.
6. If a case of yours has already been dismissed on jurisdiction, do not work out the deadlines yourself. An appeal and a fresh complaint run on different clocks, and that is a conversation for your own counsel. This page decides nothing about any particular case.

Not sure whether your wait is long enough to act on, run the 60-second check against your receipt date; for what makes a case worth a closer look, see when it is worth suing.