this is a lawsuit case....

XXXX
Orlando, FL 32828
USA


THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION



XXXX, )
)
Plaintiff )
)
-v- ) CIVIL ACTION
)
ALBERTO R. GONZALES, Attorney General of ) NO._____________
the United States; MICHAEL CHERTOFF, )
Secretary of the Department of the Homeland )
Security; EMILIO T GONZALEZ, Director of )
U.S. Citizen and Immigration Services (“USCIS”); )
ROBERT S. MULLER, Director of Federal )
Bureau of Investigation (“FBI”); )
)
Defendants )
___________________________________________)


PLAINTIFF’S ORIGINAL COMPLAINT
FOR WRIT IN THE NATURE OF
MANDAMUS & DECLARATORY JUDGEMENT


INTRODUCTION

NOW come the Plaintiff, XXXX, by and through Pro Se, in the above-captioned matter, and hereby states as follows:

1. This is a civil action brought by the Plaintiff, XXXX, to compel Defendants and those acting under them to take action on the clearly delayed processing of a pending I-485, Application for Register Permanent Resident or Adjustment of Status, filed by the Plaintiff. The I-485 Application was filed on or around April 14, 2005 with the United States Citizenship and Immigration Services (USCIS)

The Plaintiff’s first and second fingerprints were taken by the USCIS in July, 2005 and December, 2006, respectively, to allow for necessary criminal and security clearances. The Plaintiff XXXX sent several inquiries to the USCIS and the Federal Bureau of Investigation (FBI) through the Plaintiff herself, the Plaintiff’s immigration attorney, a congressman and a senator in Orlando division. The Plaintiff was advised that the security clearance was the only remaining obstacle to granting the Plaintiff U. S. permanent residence.

The government’s inaction has caused the Plaintiff profound injuries in denying her a final decision on her application to become a United States permanent residence including but not limited to the right to travel and work without restriction and accrue time to be eligible for Naturalization as a citizen of the United States and apply fellowships and grants without restriction, which is very important for a scientist.

The Plaintiff XXXX resides in Orange County, Florida, USA

Defendant Alberto R. Gonzales’ mailing address is, Attorney General of the
United States, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, Washington, DC 20530-0001.

Defendant Emilio T. Gonzalez’ mailing address is Director, USCIS, 425 Street NW, Washington, DC 20536

Defendant Michael Chertoff, according to regulation is to be served at Office of General Counsel, USDHS, Washington, DC 20528

Defendant Robert S. Mueller, III’s mailing address is Director, Federal Bureau of
Investigations, J. Edgar Hoover Building, 935 Pennsylvania Avenue, NW, Washington, DC 20535-0001

I. JURISDICTION

2. This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331 (federal question jurisdiction) because Plaintiff’s claim arises under the laws of the United. This Court also has jurisdiction under 28 U.S.C. §§ 1361 (Mandamus Act) and 2201 (Declaratory Judgment Act), and 5 U.S.C. § 555(b) et seq. (Administrative Procedure Act ("APA")). This Court may grant relief pursuant to 28 U.S.C. §§ 1361, 2202, and 5 U.S.C. § 555(b) et seq.

3. Under 28 USC § 1361. “(t)he district courts shall have original jurisdiction of 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 plaintiff.”

4. The APA requires USCIS to carry out its duties within a reasonable time. The APA provides, at 5 USC § 555(b), “(w)ith due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it.” USCIS is subject to 5 USC § 555(b). Plaintiff, XXXX contends that the delay in processing her application for Register to United States citizenship is unreasonable and well beyond the normal processing time frame as posted on the official USCIS web site.

5. There are no administrative remedies available to Plaintiff to redress the grievances described herein. This action challenges the failure of Defendants to complete action on the application and issue the decision due Plaintiff and does not challenge any discretionary act by Defendants. The action does not challenge the granting or denial of individual applications. Therefore, the jurisdictional limitations of INA § 242, 8 U.S.C. § 1252, do not apply.

II. VENUE

6. Venue lies in this Court under 28 U.S.C. § 1391(e), the venue statute applicable to civil actions in which Defendants are officers of the United States acting in official capacities. Venue is proper under 28 U.S.C. § 1391(e)(3) because Plaintiff, XXXX resides in this district.


III. PARTIES

7. Plaintiff, XXXX, resides in Orange County, Florida, alien number: A00000000, is the applicant and beneficiary of an I-485, Application to Adjust Status to Permanent Resident, filed with the USCIS on April 14, 2005.

8. Alberto Gonzales is the Attorney General of the United States. He is charged with administering certain background checks currently required by administrative practice in connection with an application for adjustment of status to permanent resident under §245 of the INA.

9. Michael Chertoff is the U.S. Secretary for Homeland Security. He is charged with, among other things, "[a]ll authorities and functions of the Department of Homeland Security to administer and enforce the immigration laws." 8 C.F.R. § 2.1; 8 U.S.C. § 1103(a). He is sued in his official capacity.

10. The USCIS is a division of the Department of Homeland Security and is an agency of the U.S. government. The USCIS has assumed the immigration benefits and services functions of the Immigration and Naturalization Service ("INS"), which was eliminated effective March 1, 2003. The USCIS accordingly has responsibility for administering the immigration laws, including the INA and applicable regulations.

11. Emilio T. Gonzalez is Director of the USCIS and is the senior official at USCIS In his capacity Dr. Gonzalez administers the immigration laws on behalf of the Secretary for Homeland Security and the DHS throughout the United States. He is sued in his official capacity.

12. Robert S. Mueller is Director of the Federal Bureau of Investigations (“FBI”), an agency charged with processing security checks for the Plaintiff. He is sued in his official capacity


IV. EXHAUSTION OF REMEDIES

13. The Plaintiff has exhausted her administrative remedies. The Plaintiff has supplied the USCIS and FBI documents that clearly establish her eligibility to Register Permanent Resident or Adjust Status. By making multiple inquiries concerning the status of the application, Plaintiff has exhausted all administrative remedies that may exist. No other remedy exists to resolve Defendants’ delay and lack of ability or willingness to adjudicate Plaintiff’s application for naturalization.

V. CAUSE OF ACTION

14. In August, 2004, Plaintiff, Ms. XXXX properly filed an application for immigration petition on Form I-140 under the Outstanding Researcher and Professor category (EB-1B) with the supporting documentation. In March, 2005, Plaintiff’s immigration petition I-140 was approved. Attached hereto as Exhibit A.

15. Plaintiff properly filed an application I-485, Application to Adjust Status to Permanent Resident, along with the approved I-140 and supporting documentation in April, 2005. At that time, the immigration visa bulletin is current for people born in Mainland of China base on EB-1B category. Attached hereto as Exhibit B in an acknowledgement document by the USCIS.

16. Plaintiff, XXXX, had the required fingerprints taken for the security clearances in July, 2005. Attached hereto as Exhibit C in an acknowledgement document by the USCIS.

17. In Oct, 2005, the visa bulletin had a retrogression. However, An immigrant visa has been available to the Petitioner since June, 2006.

18. On June 2, 2006, Plaintiff requested her immigration attorney to send an inquiry to USCIS about her pending I-485, and the attorney sent a letter to USCIS in June, 2006. Neither Plaintiff nor her attorney received any reply. Attached hereto as Exhibit D.

19. On June 14, 2006, Plaintiff called USCIS to inquiry about her pending I-485, and was told that her case has been delayed because the background check is still pending. Moreover, the Plaintiff’s name was wrongly written as Wuhua Huang, instead of XXXX. Attached hereto as Exhibit E.

20. On July 1, 2006, plaintiff wrote a letter to Congressman: Feeney, Tom, asking for his help on this matter. Attached hereto as Exhibit F.

21. On August 17, 2006, FBI replied to the request of Congressman Feeney, Tom’s assistance, Lovejoy, Adam, stating that the Plaintiff’s name check request was received from the USCIS and processed on April 23, 2005, and is currently still pending. Attached hereto as Exhibit G.

22. On Oct. 22, 2006, Plaintiff asked Congressman Feeney, Tom’s assistance, Lovejoy, Adam, to send another inquiry on the name check and so far has not got response from the FBI.

23. On Nov 14, 2006, plaintiff wrote a letter to Senator: Nelson, Bill, asking for his help on this matter. Attached hereto as Exhibit H.

24. On Nov. 28, 2006, Plaintiff ted her second set of fingerprints to the USCIS. This was done due to her excessively delayed Name Check, her first fingerprints ted in July 2005 have expired. Attached hereto as Exhibit I.

25. On December 6, 2006, Plaintiff received an email from USCIS, stating that they mailed out the document they manufactured based on their earlier approval of the case on December 5, 2006. On December 7, 2006, Plaintiff sent an email to ask her immigration attorney about the exact meaning of the email from the USCIS and was told that no one know what it means, and many of his customers received the same email but their cases are still a mystery. Attached hereto as Exhibit J. So far, Plaintiff has not received any document or letter from the USCIS.

26. On December 12, 2006, Plaintiff went to Orlando local USCIS office for the INFOPASS and was told that the name check is still pending. On December 18,2006, Plaintiff went to Tampa local USCIS office for the INFOPASS again to confirm whether the name check is clear or not, and was told that the name is not clear yet.

27. The current processing time for completion of Adjust status to U.S. permanent resident applications, posted on the official USCIS web site is June 1, 2006 for the Texas Service Center, which indicates the USCIS Texas Service Center is currently deciding applications for employment based Register to Permanent Resident or Adjust Status in less than 6 months.

28. Plaintiff’s application has now been pending over one and half years and more than seventeen months after her first fingerprint. An immigrant visa has been available to the Petitioner for more than 6 months from the time of filing this Complaint.

29. Plaintiff, XXXX has complied with all of the requirements for Adjust Status to U.S. Permanent Resident

30. The Defendants have willfully and unreasonably delayed and have refused to adjudicate the application in violation of provisions of the INA an APA.

31. The delay in adjudicating the application is not attributable to plaintiff, XXXX.

32. The Defendants owe a duty to complete processing of the application and render a decision which duty Defendants have failed to perform. This duty is owed under the INA. APA and regulations as well as by charging a filing fee, which was properly paid, the USCIS created an obligation to process and adjudicate the application.

33. The delay is unreasonable in light of USCIS published processing times and press releases which claim improved processing times and increased efficiency and indicate applications like the ones at issue are currently being processed in less than one year.

34. The Plaintiff has been greatly damaged by the failure of Defendants to act in accord with their duties under the law.

a. Specifically, Plaintiff XXXX has been unable to obtain legal permanent residence, travel and work without restriction and accrue time to be eligible for Naturalization as a citizen of the United States.
b. Plaintiff XXXX, currently employed by College of Optics and Photonics, University of Central Florida, has been unable to apply fellowships and grants without restriction, which is very important for a scientist.

35. The delay is unreasonable in view of the reasons given for the delay.

36. By making multiple inquiries concerning the status of the application, Plaintiff has exhausted all administrative remedies that may exist. No other remedy exists to resolve Defendants’ delay and lack of ability or willingness to adjudicate Plaintiff’s application for naturalization.

37. Plaintiff learned that it is notorious for USCIS to delay granting of I-485 due to a delayed FBI name check. And one of the only ways an FBI Name Check would be expedited was through a Writ of Mandamus. Attached hereto as Exhibit L.

PRAYER FOR RELIEF

WHEREFORE, in view of the arguments and authority noted herein, Plaintiff respectfully prays this Honorable Court to:

a) Assume jurisdiction over this matter;
b) Grant U.S. permanent resident to Plaintiff or, in the alternative,
c) Compel the Defendants and those acting under them to perform their duty and complete processing of background check in 30 days and render a final decision on the application for Register Permanent Resident or Adjustment of Status for Plaintiff immediately.
d) Grant such other and further relief as may be just and proper.






Respectfully ted,




______________________
XXXX, Ph.D.
PRO SE





Don’t include this but here are the names of people to serve

Alberto R. Gonzales, United States Attorney General
US Department of Justice
950 Pensylvania Ave., NW
Washington, DC 20530-0001

Michael Chertoff, Secretary of the Department of Homeland Security
US Department of Homeland Security
Washington, DC 20528

Emilio T. Gonzalez, Director of USCIS
Department of Homeland Security
U.S. Citizenship and Immigration Services
Washington, DC 20529

Robert S. Mueller, III, Director of FBI
Federal Bureau of Investigation
J. Edgar Hoover Building
935 Pensylvania Ave., NW
Washington, DC 20535-0001


To become a U.S. citizen, you must:
Live as a legal resident in the country for five years (three if married to a U.S. citizen) with no absence of more than one year and at least 30 months of total presence, including three months in one state or district.
Be at least 18 and of good moral character, meaning not a criminal or habitual drunkard or person who has refused to support dependents or lied under oath.
Pass English-language and civics tests and an interview with a federal adjudicator.
Swear to support the Constitution and obey laws, renounce any foreign allegiance, and bear arms or perform other government services when required by law.
Give fingerprints for submission to the FBI.
Receive FBI clearance after a background check is completed.
Average wait time for all applicants: eight months after filing application.

Immigration Security Checks—How and Why the Process Works

April 25, 2006









IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO



































PLAINTIFF’S ORIGINAL COMPLAINT FOR WRIT IN THE NATURE OF MANDAMUS JUDGMENT

NOW come the Plaintiff, My Name, in the above-captioned matter, and hereby states as follow:

1- This action is brought against Defendants to compel action on the clearly delayed decision of the Plaintiff’s naturalization application due to Defendants’ failure to adjudicate the application within 120 days after the interview and examinations in violation of the Immigration and Nationality Act (“INA”) § 336(b) and 8 U.S.C. §1447 (b).

PARTIES
2- Plaintiff, My Name is a lawful permanent resident of the United States since July 15, 2000, (Alien Registration Number #########), and a resident of Trumbull County, Ohio. Plaintiff applied for naturalization to the United States and was interviewed for her application on November 14, 2005 and passed all the required examinations. Defendants have failed to make a decision on the application within 120 days after the interview.





3- Defendant, Michael Chertoff is the Secretary of the Department of Homeland Security (DHS), and this action is brought against him in his official capacity. He is generally charged with the enforcement of the Immigration and Nationality Act, and further authorized to delegate such powers and authority to subordinate employees of the DHS. 8 U.S.C. §1103(a); 8 C.F.R. § 2.1.

4- Defendant, Emilio Gonzalez is the Acting Director of the United States Citizenship and Immigration Services (USCIS), an agency within the DHS to whom the Secretary’s authority has in part been delegated and is subject to the Secretary’s supervision. Defendant Director is generally charged with overall administration of the benefits and immigration services. 8 C.F.R. § 100.2(a).

5- Defendant, Cleveland District Director is an official of the USCIS generally charged with supervisory authority over all operations of the USCIS within his District with certain specific exceptions not relevant here.

JURISDICTION
6- Jurisdiction in this case is proper under 28 U.S.C. § 1361, 5 U.S.C. § 551 et seq., 8 U.S.C. §1447 (b) and 28 U.S.C. § 1331. Relief is requested pursuant to the said statutes.

VENUE
7- Venue is proper in this court, pursuant to 28 U.S.C. § 1391(e), in that this is an action against officers and agencies of the United States in their official capacities, brought in the District where the Plaintiff resides and where the Defendant is located and performs his official duties.

EXHAUSTION OF REMEDIES
8- Plaintiff has exhausted his administrative remedies. The Plaintiff has supplied USCIS with all requested documents, successfully passed the naturalization examinations and had her fingerprints re-taken at the USCIS office on time. The Plaintiff pursued her application by many phone calls to the USCIS customer service and by using the “Info Pass” service to speak to an immigration officer in person and inquire about his application.

CAUSE OF ACTION
9- Plaintiff is a lawful resident of the United States since July 15, 2000. Plaintiff filled the N-400 application for Naturalization with the U.S. Citizenship and Immigration Services and was interview by a USCIS official and passed all the required examinations on November 14, 2005 as Exhibit (1) indicates.



10- Based on Exhibits (2 & 3) the Plaintiff has inquired about her application in person at the Cleveland District office and was told by an immigration official that the application is still pending for the completion of all necessary background checks.

11- Based on Exhibit (4) the Plaintiff had her fingerprints re-taken by USCIS for the second time in August 25, 2006 to avoid delays in her application.

12- Defendants have sufficient information to determine Plaintiff’s eligibility pursuant to applicable requirements. Plaintiff’s application for naturalization has now remained unadjudicated for more than a year from the date of the interview in violation of the Immigration and Nationality Act (“INA”) § 336(b) and 8 U.S.C. §1447 (b).

13- The Defendants have failed to properly adjudicate the Plaintiff’s application for naturalization. They have failed to adhere to their own regulations and have unreasonably delayed the processing of the Plaintiff’s application after the Plaintiff has ted a properly executed application and successfully passed all naturalization examinations.




14- Defendants’ delay in this case, as a matter of law, arbitrary and not in accordance with the law. Defendants unreasonably, have failed to adjudicate the Plaintiff’s application within 120 days after the interview, thereby depriving her of the rights to which the Plaintiff is entitled.

15- The Defendants, in violation of the Administration Procedures Act, 5 U.S.C. § 551 et seq., are unlawfully withholding action of Plaintiff’s application and have failed to carry out the adjudicative functions delegated to them by law with regard to the Plaintiff’s case.

PRAYER
16- WHEREFORE, in view of the arguments and authority noted herein, Plaintiff respectfully prays that the Defendants be cited to appear herein and that, upon due consideration, the Court enter an order adjudicating the naturalization application of the Plaintiff. In the alternative, the Court may remand requiring the Defendants to immediately adjudicate Plaintiff’s naturalization application and provide the Plaintiff with a Notice of Approval.

Dated: December 12, 2006 Respectfully ted,

My name
My Address


LIST OF ATTACHEMENTS
Exhibit Deion
1 Form N-652, Naturalization Interview Results dated November 14, 2005
2 Info Pass Appointment Letter dated April 21, 2006
3 Info Pass Appointment Letter dated August 25, 2006
4 Verification of Fingerprints processing dated August 25, 2006




Background
All applicants for a U.S. immigration benefit are subject to criminal and national security background checks to ensure they are eligible for that benefit. U.S. Citizenship and Immigration Services (USCIS), the Federal agency that oversees immigration benefits, performs checks on every applicant, regardless of ethnicity, national origin or religion.
Since 2002, USCIS has increased the number and scope of relevant background checks, processing millions of security checks without incident. However, in some cases, USCIS customers and immigrant advocates have expressed frustration over delays in processing applications, noting that individual customers have waited a year or longer for the completion of their adjudication pending the outcome of security checks. While the percentage of applicants who find their cases delayed by pending background checks is relatively small, USCIS recognizes that for those affected individuals, the additional delay and uncertainty can cause great anxiety. Although USCIS cannot guarantee the prompt resolution of every case, we can assure the public that applicants are not singled out based on race, ethnicity, religion, or national origin.
USCIS strives to balance the need for timely, fair and accurate service with the need to ensure a high level of integrity in the decision-making process. This fact sheet outlines the framework of the immigration security check process, explaining its necessity, as well as factors contributing to delays in resolving pending cases.
Why USCIS Conducts Security Checks
USCIS conducts security checks for all cases involving a petition or application for an immigration service or benefit. This is done both to enhance national security and ensure the integrity of the immigration process. USCIS is responsible for ensuring that our immigration system is not used as a vehicle to harm our nation or its citizens by screening out people who seek immigration benefits improperly or fraudulently. These security checks have yielded information about applicants involved in violent crimes, sex crimes, crimes against children, drug trafficking and individuals with known links to terrorism. These investigations require time, resources, and patience and USCIS recognizes that the process is slower for some customers than they would like. Because of that, USCIS is working closely with the FBI and other agencies to speed the background check process. However, USCIS will never grant an immigration service or benefit before the required security checks are completed regardless of how long those checks take.
1 Immigration Security Checks—How and Why the Process Works
How Immigration Security Checks Work
To ensure that immigration benefits are given only to eligible applicants, USCIS adopted background security check procedures that address a wide range of possible risk factors. Different kinds of applications undergo different levels of scrutiny. USCIS normally uses the following three background check mechanisms but maintains the authority to conduct other background investigations as necessary:
• The Interagency Border Inspection System (IBIS) Name Check— IBIS is a multi-agency effort with a central system that combines information from multiple agencies, databases and system interfaces to compile data relating to national security risks, public safety issues and other law enforcement concerns. USCIS can quickly check information from these multiple government agencies to determine if the information in the system affects the adjudication of the case. Results of an IBIS check are usually available immediately. In some cases, information found during an IBIS check will require further investigation. The IBIS check is not deemed completed until all eligibility issues arising from the initial system response are resolved.

• FBI Fingerprint Check—FBI fingerprint checks are conducted for many applications. The FBI fingerprint check provides information relating to criminal background within the United States. Generally, the FBI forwards responses to USCIS within 24-48 hours. If there is a record match, the FBI forwards an electronic copy of the criminal history (RAP sheet) to USCIS. At that point, a USCIS adjudicator reviews the information to determine what effects it may have on eligibility for the benefit. Although the vast majority of inquiries yield no record or match, about 10 percent do uncover criminal history (including immigration violations). In cases involving arrests or charges without disposition, USCIS requires the applicant to provide court certified evidence of the disposition. Customers with prior arrests should provide complete information and certified disposition records at the time of filing to avoid adjudication delays or denial resulting from misrepresentation about criminal history. Even expunged or vacated convictions must be reported for immigration purposes.

• FBI Name Checks—FBI name checks are also required for many applications. The FBI name check is totally different from the FBI fingerprint check. The records maintained in the FBI name check process consist of administrative, applicant, criminal, personnel and other files compiled by law enforcement. Initial responses to this check generally take about two weeks. In about 80 percent of the cases, no match is found. Of the remaining 20 percent, most are resolved within six months. Less than one percent of cases subject to an FBI name check remain pending longer than six months. Some of these cases involve complex, highly sensitive information and cannot be resolved quickly. Even after FBI has provided an initial response to USCIS concerning a match, the name check is not complete until full information is obtained and eligibility issues arising from it are resolved.

For most applicants, the process outlined above allows USCIS to quickly determine if there are criminal or security related issues in the applicant’s background that affect eligibility for immigration benefits. Most cases proceed forward without incident. However, due to both the sheer volume of security checks USCIS conducts, and the need to ensure that each applicant is thoroughly screened, some delays on individual applications are inevitable. Background checks may still be considered pending when either the FBI or relevant agency has not provided the final response to the background check or when the FBI or agency has provided a response, but the response requires further investigation or review by the agency or USCIS. Resolving pending cases is time-consuming and labor-intensive; some cases legitimately take months or even
Immigration Security Checks—How and Why the Process Works
several years to resolve. Every USCIS District Office performs regular reviews of the pending caseload to determine when cases have cleared and are ready to be decided. USCIS does not share information about the records match or the nature or status of any investigation with applicants or their representatives.