here have some case samples

Page 1
32 of 38 DOCUMENTS
Plaintiff, vs. BCIS DISTRICT DIRECTOR, et al.,
Defendants.
NO. 3:06--CV--427 PS
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
INDIANA, SOUTH BEND DIVISION
2006 U.S. Dist. LEXIS 50949
July 21, 2006, Decided
July 21, 2006, Filed
COUNSEL: [*1] Khaled Abdelkhaleq, Plaintiff, Pro se,
South Bend, IN.
JUDGES: PHILIP P. SIMON, JUDGE.
OPINIONBY: PHILIP P. SIMON
OPINION:
OPINION AND ORDER
Plaintiff Khaled Abdelkhaleq, a Kuwaiti national, is
an applicant for naturalization who, apparently, is frustrated
with the amount of time that his application has
been pending and, therefore, brought his Petition for
Writ of Mandamus against the BCIS District Director,
the BCIS Director, the USCIS Director, and the DHS
Secretary (hereinafter, collectively, "USCIS") [Doc. 1].
n1 In his application, the Plaintiff asks this Court to assume
jurisdiction over his application, compel the defendant
to perform its duty to act upon his application, and
immediately grant him an oath ceremony date.
n1 The Court recognizes the acronym "USCIS"
to refer to the United States Citizenship and
Immigration Service and the acronym "DHS" to
refer to the Department of Homeland Security. The
Court is unfamiliar with, and the Plaintiff does not
define, the acronym "BCIS."
Together with his application [*2] for mandamus,
the Plaintiff filed an Application to Proceed Without
Prepayment of Fees [Doc. 2]. Because we find that the
Plaintiff's Petition for Mandamus does not state a claim
upon which relief may be granted, his Application to
ProceedWithout Prepayment of Fees is DENIED and his
Petition for Writ of Mandamus is DISMISSED.
BACKGROUND
In his application for a writ of mandamus, the Plaintiff
alleges that he is eligible for naturalization and that he
filed the N--(400) Application for Naturalization with
the Chicago District Office, located in Chicago, Illinois
within the allotted time period. (Cmp. at PP 7--8). A review
of the Plaintiff's exhibits demonstrates that USCIS
received his application on November 5, 2004. (See Plank
Letter of March 1, 2006). Since the time of his application,
the Plaintiff has been diligently following up with the
Immigration and Naturalization Service regarding the application
and alleges that although USCIS had sufficient
information to determine his eligibility requirements for
naturalization, USCIS nevertheless failed to adjudicate
the Plaintiff's naturalization application in a timely fashion.
(Id. at P 10).
The Plaintiff [*3] also sought to determine the status
of his application for naturalization through Congressman
Chris Chocola's office, but received a response that
demonstrated that the USCIS had not issued any decision
on the application. (Id. at 10). Specifically Congressman
Chocola contacted USCIS on the Plaintiff's behalf and
received the following response:
the FBI "name check" . . . has not yet been
completed.We may not proceed with the adjudication
of the application or petition until
the FBI completes their process and our
records are updated with the results.
(See Plank Letter of August 2, 2005). Subsequent monthly
inquiries by Congressman Chocola's staff on the Plaintiff's
behalf revealed that as of June 12, 2006, the FBI name
check still had not cleared. (See Plank Letter of June 15,
2006).
The Plaintiff also alleges that he inquired about the
status of his application through the internet using "info
pass" and in person at the Chicago office and still did
Page 2
2006 U.S. Dist. LEXIS 50949, *3
not receive a response to the application. (Cmp. at P 11).
Finally, the Plaintiff alleges that he has exhausted all administrative
remedies available and has determined that
no adequate remedies exist. ( [*4] Id. at P 12).
We note, however, that USCIS responses received
by Congressman Chocola (and passed through to the
Plaintiff) state that the FBI may consider a request for expedition
of a background check provided that the request
is made in writing with an explanation for consideration
accompanied by supporting evidence. There are limited
circumstances in which the FBI will consider such an expedited
process, but one of those reasons includes "for
compelling circumstances." (See Plank Letter of June 15,
2006). There is no allegation in the Plaintiff's complaint
that he made a written request for expedited background
check and/or that the FBI denied any such request.
DISCUSSION
In addition to the relief requested in his mandamus
petition, the Plaintiff requests leave to proceed without
prepayment of fees pursuant to 28 U.S.C. § 1915 which
provides for waiver of these fees under certain circumstances.
However 28 U.S.C. § 1915 also provides that:
(2) Notwithstanding any filing fee, or any
portion thereof, that may have been paid, the
court shall dismiss the case at any time if the
court determines that ----
* * *
(B) [*5] the action or appeal ----
* * *
(ii) fails to state a claim on which relief may
be granted . . .
28 U.S.C. § 1915(e)(2)(B)(ii). In this case, we must deny
the Plaintiff's Application to ProceedWithout Prepayment
of Fees and dismiss his Petition for Writ of Mandamus
because it fails to state a claim on which relief may be
granted because, at this time, the USCIS does not owe the
Plaintiff a duty to act on his application.
District courts have original jurisdiction in the nature
of mandamus over any action which seeks "to compel
an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff."
28 U.S.C. § 1361. However, the Supreme Court consistently
cautions that "[a] judicial readiness to issue the
writ of mandamus in anything less than an extraordinary
situation would run the real risk of defeating the
very policies sought to be furthered by that judgment of
Congress." Fuks v. Divine, No. 05 C 5666, 2006 WL
1005094, at *2 (N.D.Ill., Apr. 14, 2006) quoting Kerr v.
United States Dist. Ct. N. Dist. Cal., 426 U.S. 394, 403,
(1976). Consequently, [*6] courts only grant mandamus
relief where the plaintiff demonstrates "(1) a clear right
to the relief sought; (2) that the defendant has a duty to
do the act in question; and (3) no other adequate remedy
is available." Fuks v. Divine, No. 05 C 5666, 2006 WL
1005094, at *2 (N.D.Ill., Apr. 14, 2006) quoting Iddir v.
INS, 301 F.3d 492, 499 (7th Cir.2002).
The Plaintiff seeks mandamus relief for USCIS's delay
in acting on his Naturalization Application. He asks the
court to assume jurisdiction over his application, compel
the defendant to perform its duty to act upon his application,
and immediately grant him an oath ceremony date.
However, because USCIS's hands are currently tied by
the bureaucratic process, the defendant does not owe the
Plaintiff any duty to act at this time.
8 U.S.C. § 1446 governs USCIS's investigation of individuals
who have applied for naturalization. This statute
sets out a process that the agency follows to gather information
about the applicant. The process varies from individual
to individual and may contain such steps as issuing
subpoenas to compel the attendance and testimony of witnesses
and the production [*7] of relevant papers, books
and documents and the taking of testimony concerning
any matter touching or affecting the admissibility of any
applicant for naturalization. Danilov v. Aguirre, 370 F.
Supp. 2d 441, 443 (E.D. Va. 2005). However, in all cases
since 1998, an FBI background check is required as part
of the examination process and the USCIS cannot schedule
its personal interviews with an applicant until after the
background check is complete. 8 C.F.R. § 335.2 ("Service
will notify applicants for naturalization to appear . . . for
initial examination on the naturalization application only
after the Service has received a definitive response from
the Federal Bureau of Investigation that a full criminal
background check of an applicant has been completed.").
In this case, the Plaintiff's own submissions establish
that he has been notified, as many as seven times and as
recently as June 15, 2006, that the USCIS verified that
the FBI background investigation had not yet been completed.
Thus, the USCIS is barred by law from proceeding
on the Plaintiff's application by scheduling the Plaintiff's
interview and USCIS, therefore, did not owe the [*8]
Plaintiff a duty to move forward on the application. See
Davilo, 370 F. Supp. 2d at 445 (finding that mandamus
relief was not available to the plaintiff because "CIS did
not owe plaintiff a duty to act on his application for naturalization
prior to completion and receipt of the required
FBI criminal background check.").
We recognize that the Plaintiff is frustrated with length
Page 3
2006 U.S. Dist. LEXIS 50949, *8
of time that USCIS is taking to respond to his application.
At the same time, however, we note that it does not appear
that he has requested an expedited review from the FBI.
n2 We further note that the amount of time that the FBI
has taken to complete the Plaintiff's background check
has not yet begun to approach what we would consider
an unreasonable amount of time. In so concluding, we
take guidance from Judge Ellis in the Eastern District of
Virginia who addressed an FBI--related delay in Danilov,
the only other opinion on this issue that this Court could
locate. In that case, the plaintiff filed his petition for naturalization
in February 2003, but his FBI background was
not completed until March 23, 2005 ---- over two years
from the date of his application. Danilov, 370 F. Supp.
at 442. [*9] In that case, the Court found that not only
was the 2--year FBI delay acceptable, but that the USCIS
had an additional 120 days after the receipt of the FBI
background check to render a decision. Id. at 444; see
also, 8 U.S.C. § 1447(b) (allowing USCIS 120 days after
the completion of its investigation to render a decision before
the District Courts have jurisdiction over "delayed"
naturalization decisions).
n2 We do not suggest that expedited review
is required (or even appropriate) in this case.
However, to the extent that the Plaintiff complains
about the length of time that the FBI has taken to
complete his application, it would behoove him to
explore every available avenue to speed his request.
In this case, the Plaintiff has experienced a delay of
one year and eight months. We cannot say this is an
unreasonable amount of time. Further, responses from
Congressman Chocola's office indicate that it is difficult
to predict with accuracy when the clearance will be updated
[*10] in their records, but that the case is checked
weekly for results. From these responses, it is clear that
the defendants are moving towards completing the process
in which Abdelkhaleq seeks the court's intervention.
CONCLUSION
Because we find that USCIS does not owe Plaintiff
Khaled Abdelkahleq a duty to move forward on the
Plaintiff's application for naturalization until such time as
the FBI has completed the background check, his Petition
for Writ of Mandamus does not state a claim for relief.
Accordingly, this case is DISMISSED pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
SO ORDERED.
ENTERED: July 21, 2006.
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT




ORDER - PAGE 1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

§
Plaintiff, §
§
v. § Civil Action No. 3:06-CV-0993-N
§
MICHAEL CHERTOFF, Secretary §
DEPARTMENT OF HOMELAND §
SECURITY, et al., §
§
Defendants. §
ORDER
Before the Court is Defendants Michael Chertoff, Secretary of the Department of
Homeland Security, Eduardo Aguirre, Director of the United States Citizenship and
Immigration Services of the Department of Homeland Security ("USCIS"), Angela Bowers,
District Director of the Dallas Regional Office of the United States Citizenship and
Immigration Services, and Robert S. Muller's, Director of the Federal Bureau of
Investigation ("FBI") (collectively, "Defendants") Motion to Dismiss pursuant Federal Rule
of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction, and Rule 12(b)(6) for
failure to state a claim upon which relief can be granted [21]. Because investigating and
adjudicating Sozanski's application for adjustment of status to lawful permanent resident ("I-
485 Application") is committed to Defendants' discretion, the Court dismisses Sozanski's
claims.
Case 3:06-cv-00993 Document 32 Filed 12/11/2006 Page 1 of 3
ORDER - PAGE 2
"Jurisdiction is, of necessity, the first issue for an Article III court," for without
jurisdiction, a Court is without legal authority to decide a case. DSMC, Inc., v. Convera
Corp., 349 F.3d 679, 682 (D.C. Cir. 2003) (quotation omitted). Whenever it appears by
suggestion of the parties or otherwise that a court lacks jurisdiction over an action's subject
matter, the court must dismiss the action. FED. R. CIV. P. 12(h)(3). The court should not
grant dismissal unless it appears certain that there is no set of circumstances that would
entitle the plaintiff to relief. Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992).
Sozanski seeks to compel the adjudication of his pending I-485 Application. Sozanski
filed his I-485 Application on May 27, 2005 and claims no action has been taken to date.
Sozanski contends the FBI has unduly delayed completing a background investigation, or
"name check," which has, in turn, resulted in a delay in the USCIS's adjudication of his
application. Pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et seq.,
and the Mandamus Act, 28 U.S.C. § 1361, Sozanski asks the Court to order Defendants to
perform the FBI name check and complete the adjudication of his application.
Neither the mandamus statute nor the APA bestows jurisdiction upon the Court to
adjudicate Sozanski's claim. "The extraordinary remedy of mandamus under 28 U.S.C. §
1361 will issue only to compel the performance of a clear nondiscretionary duty." Pittston
Coal Group v. Sebben, 488 U.S. 105, 121 (1988) (quotation omitted, emphasis added).
Similarly, judicial review under the APA does not extend to "agency action that is committed
to agency discretion by law." Here, the conduct of Sozanski's name check and the
adjudication of his I-485 Application "are matters solely within [the FBI's and USCIS's]
Case 3:06-cv-00993 Document 32 Filed 12/11/2006 Page 2 of 3
ORDER - PAGE 3
discretion . . . and hence are not reviewable under the Administrative Procedures Act or 28
U.S.C. § 1361." Wan Shih Hsieh v. Kiley, 569 F.2d 1179, 1182 (2d Cir. 1978); see also 8
U.S.C. § 1255(a) ("The status of an alien . . . may be adjusted by the Attorney General, in his
discretion, and under such regulations as he may prescribe . . . ."). The Immigration and
Nationality Act section 242(g) bolsters this conclusion, stating that "notwithstanding any
other provision of law, no court shall have jurisdiction to hear any cause or claim by or on
behalf of an alien arising from the decision or action of the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against any alien under this Act."
8 U.S.C. § 1252(g). Accordingly, the Court dismisses Sozanski's claim pursuant to Rule
12(b)(1) for want of jurisdiction.
Signed December 11, 2006.
_________________________________
David C. Godbey
United States District Judge
Case 3:06-cv-00993 Document 32 Filed 12/11/2006 Page 3 of 3



IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON, DIVISION

§
§
Plaintiff §
§ CIVIL ACTION NO.
§
v. §
§
Michael Chertoff, Secretary of the §
Department of Homeland Security §
§
Emilio Gonzalez, Director of the United States §
Citizenship and Immigration Services(USCIS §
§
Robert S. Mueller, Director of the Federal §
Bureau of Investigation(FBI)

Defendants


DEFENDANTS' MOTION TO DISMISS
Defendants move pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss this action for lack of subject matter jurisdiction.

I. MOTION TO DISMISS STANDARD

Rule 12(b)(1) militates the dismissal of an action over which the court lacks subject matter jurisdiction. A motion under Rule 12(b)(1) may be decided on any of three bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996); Fleischer v. United States Department of Veterans Affairs, 955 F. Supp. 731, 733-34 (S.D. Tex. 1997).
A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case. Krim v. pcOrder.Com,Inc., 402 F.3d 489,494(5th Cir.2005). Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss.,143 F.3d 1006 (5th Cir.1998). The burden of establishing subject matter jurisdiction rests with the plaintiff. See F.R.Civ.Proc, Rule 8(a). Metropolitan Life Ins. Co. v.. Taylor,481 U.S. 58,63(1987) St. Paul Reinsurance Co., Ltd., v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); Rodriguez v. Texas Comm'n on the Arts, 199 F.3d 279 (5th Cir. 2000).

II. STATEMENT OF FACTS

For the purposes of this motion, the non-argumentative factual statements made in the plaintiff in her complaint are accepted as true. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).However , her legal statements purportedly establishing subject matter jurisdiction are matters of law which are for the Court to decide.
Williamson v. Tucker, 645 F.2d 404,413(5th Cir. 1981). At item 6 of her complaint, plaintiff contends that this Court has jurisdiction pursuant to 28 U.S.C. Sections 1361(Mandamus Act),2201(Declaratory Judgment Act) as well as 5 U.S.C. Section 701, et.seq.(Adminisrative Procedure Act)(APA). This motion will examine these three purported bases seriatim.


III. LEGAL ANALYSIS
A. Plaintiff's Claims under 28 USC Section 1361(Mandamus)


Mandamus is an extraordinary remedy which will not be entertained absent extraordinary circumstances. Allied Chemical v Daiflan , 449 U.S. 33, 101 S.Ct. 188(1980) . A party must demonstrate that he lacks an adequate alternative means to obtain relief and that his right to the issuance of the writ (of mandamus) is clear and indisputable. Ozec v.. American Council , Inc. 110 F. 3d 1082(5th Cir 1997). Furthermore , by its very terms, the mandamus statute cannot be used to compel a "discretionary" action. Einhorn v. DeWitt, 618 F.2d 347(5th Cir. 1980) Blaney v. U.S. 34 F.3d 509(7th Cir. 1994).
The adjustment of status of persons seeking admission to the United States is governed by Section 1255 of Title 8, U.S.C.That section by its terms is discretionary , allowing for the adjustment of status "in his discretion and under such regulations as he may prescribe..." The exhibits attached to plaintiff's complaint demonstrate that this Court is not presented with a situation in which DHS has failed to act, but rather one in which it is proceeding in a manner with which the plaintiff is dissatisfied. The plaintiff's complaint( see items 9 through 19 pages 3 and 4 of her complaint) evinces close attention to the progress of her pending application. It is being handled like all the many others which are pending before the DHS. The FBI works diligently to complete its required work on backgound checks of the many applicants on a first-in first-out basis, just as it does in FOIA cases. See Eastern Carpet, 430 F.Supp. 2d at p.676. Plaintiff cannot cite any cases in which a court has held that mandamus will lie against the government in such a circumstance. When the FBI completes its investigation , the DHS will adjudicate plaintiff's I-485 application.

In a non DHS/INS context , the recent case of Newsome v. EEOC, 301 F.3d 227,231(5thCir.2002) cert. denied 537 U.S. 1049,123 S.Ct. 660 (2003),underlines that mandamus is not available to review discretionary acts of agency officials(as has earlier been established is the case here). The court held that the nature and extent of the EEOC's investigation into a claim " is a matter within the discretion of that agency". 301 F.3d at 231.
As the action complained of by the plaintiff(the denial of the visa) is by its nature "discretionary" , mandamus will not lie against the government in this case.
This Court has recently so ruled in Ayanbadejo v. Chertoff, ___F.Supp.2d _______, (S.D.Tx. Sept. 21, 2006)(2006 U.S. Dist. LEXIS 67940) (Fed Supp. 2d publication pending). (No subject matter juridsdiction in case where DHS denied visa after sham marriage by petitioner)See also, Mustafa v. Pasquerell, No. Civ. 05-658, 2006 WL 488399, (W.D.Tx. Jan. 10,2006).( The district court acquired no subject matter jurisdiction to order the DHS to adjudicate applicant's case where he was complaining about the duration of time involved).
The Northern District Court has just ruled consistently with this position in Sozanski v. Chertoff, (decision attached as Exhibit 1, issued 12-1-06).


B. Plaintiff's Claims under 28 USC Sections 2201 and 2202(declaratory judgment)

The Declaratory Judgment Act does not serve as an independent basis for the establishment of subject matter jurisdiction . Skelly Oil Co. v. Phillips Petroleum Co. , 339 U.S. 667,671-72(1950). As the other basis for subject matter jurisdiction which plaintiff has asserted as establishing it has been shown to be unavailing in this case, the referenced sections are likewise unavailing pursuant to Skelly.

C. Plaintiff's Claims under 5 USC Section 701 et.seq. (APA)
The APA, like the Declaratory Judgment Act, does not provide an independent basis for subject matter jurisdiction. Califano v. Sanders , 430 U.S. 99, 105,107(1977). Your Home Visiting Nurses v. Shalala, 525 U.S. 449,458,119 S.Ct. 930,935(1999), Saavedra-Bruno v. Albright, 197 F.3d 1153,1157(1999). It bars judicial review if review is "precluded by law", or if the "agency action is committed to agency discretion by law."Id. See 5 U.S.C. Section 701(a)(1) and (2). As before stated, DHS is processing plaintiff's I-485 application as expiditiously as possible. The fact that it is not operating on a schedule to the liking of the plaintiff is unfortunate and even understandable, but it does not establish her right to relief under this section . The DHS will continue to work on plaintiff's application and will adjudicate it once the FBI's background investigation is done. DHS is, in fact precluded by law from operating in any other way.


In Saavedra-Bruno,supra, an alien unsatisfied with agency action sought judicial review of an INS denial of a visa, citing the APA along with the statutory bases cited by the plaintiff in this case. The Court affirmed a District Court which had dismissed for lack of subject matter jurisdiction . The Saavedra Bruno decision also contains an explicative histiory of immigration law which places lawsuits of this type in context. 197 F.3d at pp .1155-57.
Finally, in Your Home Visiting Nurses, supra, dissatisfied home health care providers sought judicial review of HHS denials of their claims. The Court affirmed the lower Courts in ruling that there was no subject matter jurisdiction because plaintiffs had not demonstrated a "clear non-discretionary duty" on the part of the agency which would vest the Court with jurisdiction whether under the mandamus statute or the APA. Norton v. South Utah Wilderness Alliance , 542 U.S. 55, 61,64(2004)






IV. CONCLUSION

The cases cited herein uniformly support the contention that in a case as plaintiff presents here, in which her complaint establishes that DHS's processing of her application to adjust status is a "discretionary" act which, though she be dissatisfied with the pace at which DHS is operating , that this court can have no subject matter jurisdiction. Plaintiffs' complaint should