UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
*****************, )
)
Plaintiff )
)
-v- ) CIVIL ACTION
) NO._____________
Michael Chertoff, as Secretary of the Department )
of Homeland Security; )
Emilio T Gonzalez, Director of U.S. Citizen and )
Immigration Services; )
Robert S. Muller, Director of Federal Bureau of )
Investigation )
)
Defendants )
)
____________________________________________)
PLAINTIFF’S ORIGINAL COMPLAINT
FOR WRIT IN THE NATURE OF
MANDAMUS & DECLARATORY JUDGEMENT
NOW come the Plaintiff, *******, by and through Pro Se, in the above-captioned matter, and hereby states as follows:
1. This action is brought against the Defendants to compel action on the clearly delayed processing of an I-485 Application filed by the Plaintiff, ******. The application was filed and remains within the jurisdiction of the Defendants, who have improperly handled and delayed processing the application to Plaintiff’s detriment.
PARTIES
2. Plaintiff, ***, resides at ****, Los Angeles, CA, 90036, alien number: A***, is the applicant and beneficiary of an I-485, Application to Register Permanent Resident or Adjustment of Status, filed with the USCIS on September, 9 2005.
3. Defendant Michael Chertoff is the Secretary of the Department of Homeland Security, and this action is brought against him in his official capacity. He is generally charged with enforcement of the Immigration and Nationality Act, and is further authorized to delegate such powers and authority to subordinate employees of the Department of Homeland Security. 8 USC § 1103(a). More specifically, the Secretary of the Department of Homeland Security is responsible for the adjudication of applications for nonimmigrant visas filed pursuant to the Immigration and Nationality Act (INA). The U.S. Citizenship & Immigration Services is an agency within the Department of Homeland Security to whom the Secretary of the Department of Homeland Security’s authority has in part been delegated, and is subject to the Secretary of the Department of Homeland Security’s supervision.
4. Defendant Emilio T Gonzalez is the Director of the U.S Citizenship & Immigration Services (USCIS) and an official generally charged with supervisory authority over all operations of the USCIS with certain specific exceptions not relevant here. 8 CFR § 103.1(g)(2)(ii)(B).
5. Defendant Robert S. Mueller, III, Director of Federal Bureau of Investigations (FBI), the law enforcement agency that conducts security clearances for other U.S. government agencies, such as the Department of State. As will be shown, Defendant has failed to complete the security clearances of Plaintiff’s cases.
JURISDICTION
6. Jurisdiction in this case is proper under 28 USC §§ 1391 and 1361, 5 USC §701 et seq., and 28 USC §2201 et seq. Relief is requested pursuant to said statutes.
VENUE
7. Venue is proper in this court, pursuant to 28 USC §1391(e), in that Plaintiff may request a hearing on the matter in the District where Plaintiff resides.
EXHAUSTION OF REMEDIES
8. The Plaintiff has exhausted his administrative remedies. The Plaintiff has supplied the USCIS and FBI documents that clearly establish his eligibility to Register Permanent Resident or Adjust Status.
CAUSE OF ACTION
9. Plaintiff properly filed and applied by himself for I-485, Application to Register Permanent Resident or Adjust Status September 9, 2005. Attached hereto as Exhibit A in an acknowledgement document by the USCIS.
10. This petition along with I-140 (NIW) and supporting documentation was filed by the plaintiff himself on or about September 9, 2005. At that time, the immigration visa bulletin is current for people born in Mainland of China base on NIW category.
11. On Oct, 2005, the visa bulletin had a retrogression. Plaintiff then ed another I-140 in EB1A (Aliens of Extraordinary Ability) category on or about March 31, 2006, which is also granted in July 28, 2006. Attached hereto as Exhibit B in an acknowledgement document by the USCIS.
12. Plaintiff wrote a letter to USCIS to ask for a grant of I-485 based on EB1A (Aliens of Extraordinary Ability) category, in which the visa bulletin is current since July 1, 2006. Attached hereto as Exhibit C.
13. Plaintiff called USCIS in August 7, 2006, and was told that the name check is still pending after submission of I-485 for about 11 month.
14. On August 7, 2006, plaintiff wrote a letter to Senator: Boxer, Barbara, asking for her help on this matter. Attached hereto as Exhibit D.
15. On August 7, 2006, plaintiff wrote a letter to Senator: Feinstein, Dianne, asking for her help on this matter. Attached hereto as Exhibit E.
16. 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 F.
17. An immigrant visa is immediately available to the Petitioner at the time of filing this Complaint.
18. The Plaintiff has been greatly damaged by the failure of Defendants to act in accord with their duties under the law.
a. Specifically, Plaintiff *** 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 ****, currently employed by******, UCLA, has been unable to apply fellowships and grants without restriction, which is very important for a scientist.
19. The Defendants, in violation of the Administrative Procedures Act, 5 USC §701 et seq., are unlawfully withholding action on the Plaintiff’s application and have failed to carry out the adjudicative functions delegated to them by law with regards to the Plaintiff’s case. Defendants have not even setup an interview with the Plaintiff since filing the I-485 on September 09, 2005.
20. Though the role of Defendants is pivotal in securing the civilians of the United States of America from people planning to do harm on American soil, the Defendants actions in adjudicating the Plaintiff’s case have clearly gone beyond the expected 120 days to 1 year processing time and have failed to adhere to their own regulations.
21. The defendants have failed to properly adjudicate this petition. They have failed to adhere to their own regulations and have improperly delayed the processing of the Plaintiff’s I-485 Application after the Plaintiff had ted a properly executed application. It has been 12 months since the Plaintiff has filed his I-485 application.
22. Defendants have clearly not adjudicated or enquired on behalf of the Plaintiff since September 9, 2005. If the Defendants would have even checked the Name Check inquiry a year later they would have found out that the Plaintiff has had “No Record” or “Hit” in the CRS system. 12 months for a FBI Name Check Clearance when the Plaintiff has “No Record” or “Hit” is not right.
23. Defendants have sufficient information to determine Plaintiff’s eligibility pursuant to applicable requirements and complete the processing procedures. The Plaintiff has done everything to get his case Adjudicated but the Defendants have clearly not given the Plaintiff any form of relief.
24. Defendants’ delay in this case is, as a matter of law, arbitrary and not in accordance with the law. Defendants willfully, and unreasonably, have inappropriately refused to adjudicate the petition, thereby depriving them of the rights to which the Plaintiff and derivative beneficiary are entitled.
PRAYER
25. WHEREFORE, in view of the arguments and authority noted herein, the Plaintiff respectfully prays that the Defendants be cited to appear herein and that, upon due consideration, the Court enter an order:
(a) requiring Defendants to properly adjudicate Plaintiff’s application for action on an approved petition;
(b) requiring Defendants to provide the Plaintiff with a Notice of Approval;
(c) granting such other relief at law and in equity as justice may require.
Respectfully ted,
______________________
***, Ph.D.
PRO SE
****,
Los Angeles, CA 90036
Tel ****
Fax ****
Email: ****@gmail.com
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
Date: August 7, 2006
From: *****
Address: *****, Los Angeles, CA, 900***
To: Congressman ******
Address
Dear Congressman ********,
I am writing to request your assistance in getting more information and possibly a decision on my application for US permanent residency with the USCIS.
My application to register permanent residence I-485 was filed on Sep 9, 2005 with the California Service Center. It was tranfered to the Texas Service Center in June 30, 2006. On Aug 7, the USCIS web site indicated that the Texas service center was processing applications filed nearly 5 months beyond my receipt date.
After waiting for about one year, I contacted the USCIS to inquire about the status of my case. The service representative told me that my name check was still pending. And I was that told that there is nothing she could do because it is the FBI in the process of doing my background check.
I would like to respectfully request your assistance in inquiring with the FBI and USCIS the exact reason for the delay of my case and when I might expect a decision. Details of my case are as below:
Case Type: I-485
Receipt Number: WAC-*****
A-#: A*****
Thank you in advance for your time and help in assisting me with this matter.
Please contact me if you need any information not provided in this letter and the attachments.
Sincerely Yours,
******, Ph.D.
*******, Los Angeles, CA 900****
Cell: ******, Fax: *********, Email: *******@gmail.com
USCIS/Texas Service Center
P.O. Box 851488- Dept.A,
Mesquite, Texas 75185-1488
Re: Application for Change of Status (Employment base)
Form number: I485
Applicant: Dr. ***** (Alien#****)
Receipt Number: WAC****
Dear Sir/Madam
This is to request for expedites the above captioned cases. The application was filed on ****, 2005 concurrently with Dr. ****’s immigration petition I-140 under the category of National Interest Waiver. Since the application’s Nationality is P.R. China, his application is still in pending waiting for the quotas availabe. Dr. **** ted his second immigration petition I-140 under the category of Extraordinary Ability (Sec. 203(b) (1) (A)) on March 31, 2006, which was also granted. According to the visa Bulleting for August 2006, the visa for the First priority of Employment Base for applicant from China mainland has become “Current”.
Thus, please kindly adjust the status under the category of Sec. 203 (b) (1) (A) at your earliest convenience. Enclosed please find
1. A copy of the Notice of Action of the filed form I-485.
2. A copy of I-485 transfer notice.
3. A copy of the approval notice of filed Form I-140 (section: Alien of Extraordinary Ability, Sec. 203(b)(1)(A)) for your reference.
If there is any question regarding this application, please do not hesitate to contact me. Thank you for your assistance in this matter, which I really appreciate.
Sincerely yours,
****, Ph.D.
*****, Los Angeles
CA, 900***
INTEND TO SUE
Dear Sir,
It is a letter of intend to sue because of your delayed adjudication over my I485.
My application to register permanent residence I-485 was filed on Sep 9, 2005 with the California Service Center. It was tranfered to the Texas Service Center in June 30, 2006. On Aug 7, the USCIS web site indicated that the Texas service center was processing applications filed nearly 5 months beyond my receipt date.
After waiting for about one year since the submission of I-485, I contacted the USCIS to inquire about the status of my case. The service representative told me that my name check was still pending. And I was that told that there is nothing she could do because it is the FBI in the process of doing my background check.
I would like to respectfully request your assistance in inquiring with the FBI and USCIS to adjudicate my case. Details of my case are as below:
Case Type: I-485
Receipt Number: WAC-*****
A-#: A*****
Otherwise, I will have to take legal action and attached please find a copy of my
PLAINTIFF’S ORIGINAL COMPLAINT
FOR WRIT IN THE NATURE OF
MANDAMUS & DECLARATORY JUDGEMENT
Best regards.
******, Ph.D.
****, Los Angeles, CA 900**
Cell phone: *******
