UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
********* *********
*******************
*******************
Plaintiff,
v. Case No.:
Michael Chertoff
U. S. Department of Homeland Security Judge:
Office of the General Counsel
U. S. Department of Homeland Security
Washington, D.C. 20258
Robert Divine, acting Deputy Director
U. S. Citizenship and Immigration Services
425 Eye St. NW
Washington D.C. 20536
Paul Novak, Director
Vermont Service Center
U. S. Citizenship and Immigration Services
75 Lower Welden Street
St. Albans, VT 05479-0001
Alberto Gonzales,
Attorney General
U. S. Department of Justice
950 Pennsylvania Ave, NW
Washington, DC 20530-0001
Defendants.
COMPLAINT FOR MANDAMUS AND INJUNCTIVE RELIEF
Petitioner / Plaintiff, Dr. **** ******, Pro Se, presents instant Complaint before this Honorable Court requesting relief against the Defendants for their actions and for their failure to act on the Petitioner’s application for permanent residence in accordance with law.
I. INTRODUCTION
1. This is a petition for a statutory relief pursuant to law including US Constitution, Mandamus Act (28 U.S.C. § 1361), Declaratory Judgment Act (28 U.S.C. § 2201), and the Administrative Procedures Act (5 U.S.C. § 551 et seq.) This action challenges the unreasonable delay in adjudicating of Plaintiff’s employment-based Adjustment Of Status (AOS) Application (I-485 form) pending before Vermont Service Center of the United States Citizenship and Immigration Services (USCIS) since March 19, 2003.
II. JURISDICTION
2. This Court has subject matter jurisdiction over this petition under 28 U.S.C. § 1331 (Federal question statute) since this is a civil action arising under the Constitution and the laws of the United states, including the Fifth Amendment to the U.S. Constitution, provisions of Title 8 U.S.C. § 1101 et seq. (Immigration and Nationality Act, INA) and applicable regulations, policies and procedures arising thereunder. This Court may grant relief in this action under 28 U.S.C. § 1361 (Mandamus Act); 28 U.S.C. § 1651 (All Writs Act); 28 U.S.C. § 2201 (Declaratory Judgment Act); and under 5 U.S.C. § 701 et seq. (Administrative Procedures Act).
3. There are no administrative remedies available to Petitioner to redress the grievances described herein. This action challenges only the Respondents’ timeliness in adjudication of AOS petition, not the granting or denial of petition, therefore the jurisdictional limitations of 8 U.S.C. § 1252 do not apply.
III. VENUE
4. Pursuant to 28 U.S.C. § 1391(e) venue is proper in this judicial district, because Defendants operate within this district and plaintiff resides in this district.
IV. PARTIES
5. Petitioner Dr. **** ******* is a native and citizen of ******. Dr. ***** is a ********* by profession working for ******* located in **** NC. Petitioner originally entered the United States as a graduate student in June 1994 to attend the University of Texas at Austin. After graduating from the University of Texas at Austin with a Ph. D. degree in Electrical Engineering in 1999, Dr. ***** worked as a post-doctoral research associate for the University of Southern California, Los Angeles California. After that Dr. ***** obtained an H-1B professional visa enabling him to take up employment with *******, PA in 2001. On March 19, 2003 **** filed an immigrant visa petition on Dr. ****** behalf which was approved in 2004. At the same time, on March 19, 2003 Dr. ****** filed an application for Adjustment Of Status (AOS) to become a permanent resident of the United States with the Vermont Service Center of USCIS. This application is still pending. Dr. ****** appears before this honorable court in his own behalf as an individual, and on behalf of his derivative beneficiary – his wife *********.
6. Respondent Robert Divine is the acting Deputy Director of the U. S. Citizenship and Immigration Services. Pursuant inter alia, to 8 U.S.C. § 1103, he is charged with, among other matters, administering the USCIS by implementing and enforcing the Immigration and Nationality Act. As such, he is ultimate decision-making authority over the matters alleged in this Complaint.
7. Respondent Paul Novak is the Director of the Vermont Service Center of USCIS of the DHS. In his capacity as the Director of the Vermont Service Center, USCIS, Mr. Novak is responsible for the administration of immigration benefits and services including the processing of employment-based immigration petitions. As such, he has decision-making authority over the matters alleged in this Complaint.
8. Respondent Alberto Gonzales is the Attorney General of the United States. Pursuant, inter alia, to 8 U.S.C. § 1103, he is charged with controlling determination of all issues of law pertaining to immigration and with representing the United States of America in various legal matters.
V. STATEMENT OF FACTS
9. Petitioner, Dr. ****** and his wife, ******, submitted AOS applications to become permanent residents of the United States with Vermont Service Center of USCIS on March 19, 2003. USCIS acknowledgement documents are attached hereto as Exhibit A.
10. Petitioner is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.
11. Petitioner’s employment-based AOS application was filed along with immigrant petition for alien worker under INA 8 U.S.C. § 1153(b) highest priority category – outstanding professor and researcher which was approved in December 2004. Approval notice is provided in Exhibit A.
12. An immigrant visa was immediately available to the Petitioner at the time of AOS application was filed.
13. An immigrant visa is immediately available to the Petitioner at the time of filing this Complaint.
14. Following the submission of AOS application, Petitioner was requested to provide and actually provided fingerprints for security checks on May 13, 2003 and September 30, 2004.
15. USCIS publishes processing dates every month online at: https://egov.immigration.gov/cris/jsps/Processtimes.jsp?SeviceCenter=Vermont. Vermont Service Center is currently processing AOS applications (form I-485) filed on December 01, 2004 (Exhibit A) while Petitioner submitted his application in March 2003, 21 months earlier than current published processing time.
16. Concerned about his application, On December 02, 2004, 624 days after submitting all required documents to USCIS, Petitioner made an official “Status Inquiry” with USCIS. USCIS replied: “Our records show that both I-485 cases are currently in review stage as of 12/08/2004. Please allow a minimum of 45 to 60 days for the review process to be completed at this time.” (Exhibit B).
17. Three months later, on April 26, 2005, 769 days after submitting all documents to USCIS, Petitioner made an official “Expedite Request” with USCIS since adjudication of his petition was delayed past the published USCIS processing dates. USCIS denied this request.
18. Additional “Status Inquiries” with USCIS were made by Petitioner on March 03, April 11, 2005, June 24, 2005 and July 29, 2005. The last one was done 863 days after submitting all documents to USCIS. USCIS reply was the same for all of them: “The processing of your petition/application has been delayed. All petitions/applications received by this Service are required to have routine security checks that are resulting in delays of the adjudication of petitions/applications.” (Exhibit B).
19. Petitioner made further efforts to get a status of his application and find out a reason for a delay in adjudication of his application. Specifically, Petitioner contacted the Office of his Congresswoman Virginia Foxx of the 5th District of North Carolina. Her response dated June 24, 2005 stated that “… both of your I-485 applications are still pending. They are waiting for both of your security checks to come back. Hopefully it will not be too much longer before you will be contacted.” (Exhibit C).
20. After two months of no progress, on August 19, 2005, 884 days after submitting all documents to USCIS, Petitioner contacted the office of his Senator Richard Burr of North Carolina. His reply stated that “… the name check / date of birth for the principal applicant in your family is still pending clearance with the Federal Bureau of Investigation (FBI).” (Exhibit C).
21. Dr. ****** has always complied with immigration and civil laws, has never been arrested or convicted of a crime and has never presented a security risk to the United States. Dr. ****** has been lawfully present in the United States for over 11 years since June 1994.
22. Concerned about the status of his security checks, Petitioner made an official Freedom of Information–Privacy Acts (FOIPA) request with the Federal Bureau of Investigations of the U. S. Department of Justice. FBI reply dated May 13, 2005 stated that FBI has no records pertaining to Dr. ******: “A search of the automated indices to the central records system files at FBI Headquarters located no records responsive to your FOIPA request.” (Exhibit D).
23. Between April 2005 and September 2005 Petitioner made efforts to contact FBI Record/Information Dissemination Section directly via e-mail and certified letters in order to find out the status of his security checks and a reason for a delay in excess of two years (Exhibit D). There were no replies to these inquires.
24. Further to clarify security checks issue, Petitioner sought help of his Congresswoman Virginia Foxx of the 5th District of North Carolina to make an inquiry with FBI. Her reply dated September 19th, 2005 cites an e-mail response from Michael Cannon, Section Chief of National Name Check Program Section of FBI which states that: “A review of the Federal Bureau of Investigation’s (FBI’s) Name Check Program database concerning these individuals revealed that their requests were received from the United States Citizenship and Immigration Services (USCIS) on February 9, 2005. Mrs. ******* submission was processed and finalized on the same day, February 9, 2005. … Mr. ***** request is currently in a pending status.” (Exhibit D).
25. From FBI reply it became clear that USCIS requested Petitioner’s name and date of birth check to be done almost two years later - in February 2005 rather than in March 2003, right after the immigration petition was received. The normal practice of USCIS is to initiate security checks at the very start of application for permanent residency process.
26. As soon as Petitioner became aware of apparent USCIS error in initiating FBI name/date of birth check two years past the due date, Petitioner has filed an official “Expedite Request” with the USCIS explaining the error that service center made and requesting to expedite handling of his name check process with FBI and expedite adjudication of Petitioner’s case. On September 27, 2005 USCIS replied to that request with the following: “An expedite has already been requested and was previously denied. Please do not send another request. Future requests for the same case will not be responded to.” (Exhibit E).
27. Since no resolution on Petitioner’s application has been reached, Petitioner wrote an official Complaint Letter explaining Petitioner’s situation and noting that if case is not resolved within 30 days, a civil suit will be filed in the Federal Court. Several copies of that Complaint Letter were sent via certified mail from July 26, 2005 to August 11, 2005 to the following parties (Exhibit F):
a. USCIS Vermont Service Center,
b. Todd Reader, Assistant Center Director, Adjudication Division of USCIS Vermont Service Center
c. Office of the General Counsel, U. S. Department of Homeland Security
d. Citizenship and Immigration Services Ombudsman, U. S. Department of Homeland Security
e. Anna Mills S. Wagoner, US Attorney, North Carolina Middle District
28. As of October 20, 2005, 946 days (2 years 7 months) after submitting all documents to USCIS, no resolution on Dr. ****** application has been reached so he is filing present Complaint with the North Carolina Middle District Court. This action challenges only the Defendants’ timeliness in adjudication of Petitioner’s application, not the granting or denial of that application.
29. Section 202 (8 U.S.C. § 1571) of the Title II of the American Competitiveness in Twenty-first Century Act of 2000 (AC21) clearly lays down the parameters of reasonableness in immigration adjudication, stating: “…It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.”
30. Defendants are also required by 5 U.S.C. § 551 “within a reasonable time … to conclude a matter presented… .”
31. Other District Courts have concluded in similar cases that petitioners have a clear right to have his or her application for lawful permanent residency status adjudicated within a reasonable period of time. (Yu v. Brown, 36F. Supp. 2d 922, 925 (D.N.M. 1999); Agbemaple v. INS, No. 97 C 8457, 1988 WL 292441 (N.D. Ill. May 18, 1988)). For instance, in Yu, where petitioner sought a writ of mandamus to force INS to act on her application for lawful permanent residence two and one half years after she applied, the court concluded that Yu’s petition properly stated a claim for mandamus. Also in Elkhatib v. Bulger, No. 04-22407-CIV-SEITZ/MCALILEY (S.D.F.2004) court found that Respondents have a non-discretionary duty to process Petitioner’s application within a reasonable period of time.
VI. INJURY TO PETITIONER
32. The Petitioner’s application to become permanent resident of the United States is pending before USCIS for over 946 days.
33. Petitioner is waiting and will continue to wait for a significant amount of time for a decision on his AOS application. His status in the United States has been and will continue to be uncertain. Petitioner could not plan ahead because he has not known and does not know when he becomes a permanent resident.
34. Petitioner is unable to visit his ailing grandmother, ****** (DOB: April 23, 1925), who was recently admitted to the hospital in *****. Petitioner informed USCIS of the family emergency on September 15, 2005 and requested an expedite handling of his AOS case in order to be able to visit his grandmother in **** and make arrangements for her treatment. USCIS replied that “The documents that you submitted failed to establish a level of extreme concern that would meet … (Humanitarian) …criteria.” (Exhibit G).
35. Petitioner has lost a significant work time while pursuing his adjustment of status application, making inquiries with USCIS, meeting with lawyers, applying for yearly work authorization renewals, reporting for fingerprinting, and otherwise pursuing his delayed permanent residency.
36. Petitioner has to obtain yearly work authorization permits while his AOS application is pending. This results in significant out-of-pocket expenses (EAD renewal cost is $175/year and Petitioner has already applied for three of them), including attorneys’ fees, inconvenience, and loss of wages.
37. Some universities and colleges consider a person without a permanent residency to be an out-of-state resident and hence charge him or her out-of-state tuition. Due to that Petitioner’s wife could not proceed with her educational plans.
38. Due to delays in adjudication of Petitioner’s permanent residency application, Petitioner’s naturalization (to become a U.S. Citizen) has been delayed. Therefore Respondents’ unreasonable delay in adjudicating AOS application deprived Petitioner for longer time of citizenship benefits like a right to vote and fully participate in our democracy; receive a United States passport; travel freely into and out of the United States; hold a job that is restricted to United States citizens; run for public office. Also Petitioner has been and will continue to be unable to petition for his family members to immigrate to the United States as immediate relatives.
39. Petitioner rights to due process of law and equal protection under the Fifth Amendment to the United States Constitution have been and are being violated and will continue to be violated by Defendants’ failures as described herein.
VII. GROUNDS FOR RELIEF
40. Defendants, despite having a duty to act within reasonable time, have failed to process and adjudicate Petitioner’s application for permanent residency in a timely manner.
41. Defendant USCIS’ duty to process and adjudicate Petitioner’s application “within a reasonable time” (within 946 days) is a non-discretionary duty mandated by federal and judicial precedent.
42. Defendant USCIS’ conduct in failing to process Petitioner’s application and adjudicate his case in a reasonably timely manner has caused unnecessary and injurious delays to Petitioner, in violation of his rights.
43. Petitioner has exhausted all administrative remedies available and has determined that no adequate remedy exists.
Count I.
Mandamus Action
28 U.S.C. § 1651
44. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
45. Defendants are charged with the mandatory responsibility of administering and implementing the Immigration and Nationality Act.
46. Defendants bear sole responsibility for timely adjudication of AOS application and for orderly attendant procedures.
47. Defendants have failed to discharge their mandated duties.
48. As a result, Petitioner has suffered and continues to suffer irreparable harm and damages entitling him to declaratory, injunctive and other relief.
49. Petitioner has exhausted all possible administrative remedies and there exists no other adequate remedy.
50. Strong humanitarian factors favor granting of Mandamus relief.
Count II.
Administrative Procedures Act
5 U.S.C. § 555 and 5 U.S.C. § 702 et seq.
51. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
52. By failing to render timely decision on Petitioner’s application, Defendants have violated the Administrative Procedures Act and this constitutes agency action that is arbitrary and capricious, and not in accordance with law. 5 U.S.C. § 701 et seq., 702, 706 (“agency action unlawfully withheld or unreasonably delayed” under § 706(1)) and 5 U.S.C. § 555.
53. Defendants have failed to discharge their mandated official duties.
54. As a result, Petitioner has suffered and continues to suffer irreparable harm and damages entitling him to declaratory, injunctive and other relief.
Count III.
Declaratory Judgment Act
28 U.S.C. § 2201
55. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
56. Petitioner contend that Defendants’ actions and decisions relating to delays in AOS adjudication and attendant procedures are unconstitutional, violate the INA, and are arbitrary and capricious and seek a declaration to that effect under 28 U.S.C. § 2201.
57. Defendants have failed to discharge their mandated official duties.
58. As a result, Petitioner has suffered and continues to suffer irreparable harm and damages entitling him to declaratory, injunctive and other relief.
Count IV.
Equal Access to Justice Act
5 U.S.C. § 504 and 28 U.S.C. § 2412
59. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
60. If prevails, Petitioner will seek attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412.
VIII PRAYER FOR RELIEF
WHEREFORE, Petitioner respectfully prays that the honorable Court grant the following relief:
i. Assume jurisdiction over this cause;
ii. Declare that the Defendants’ failure to act is illegal, arbitrary, capricious and abuse of discretion;
iii. Compel Defendants and those acting under them to perform their duty to act upon the Petitioner’s application for permanent residency;
iv. Grant attorneys fees and costs of court;
v. Grant such other and further relief as this Court deems just and appropriate.
Dated: October 20, 2005
RESPECTFULLY SUBMITTED,
_____________________________
******************
Petitioner, Pro Se
*******************
******************
Phone: **********
Cell: ************
E-mail: ************
IX EXHIBITS
EXHIBIT A USCIS Receipt Notices. USCIS Vermont Service Center Processing dates posted October 05, 2005
EXHIBIT B USCIS Letters regarding case status inquiries
EXHIBIT C Letters from Congresswoman and Senator regarding case status
EXHIBIT D Correspondence with Congresswoman and FBI regarding pending security checks
EXHIBIT E Expedite Request with USCIS (due to service center error) and USCIS reply with denial of that request
EXHIBIT F Complaint Letter and postal service receipts
EXHIBIT G Expedite Request with USCIS (due to family emergency) and USCIS reply denying it
EXHIBIT A
USCIS Receipt Notices
USCIS Vermont Service Center Processing dates
posted October 05, 2005
EXHIBIT B
USCIS Letters regarding case status inquiries
EXHIBIT C
Letters from Congresswoman and Senator
regarding case status
EXHIBIT D
Correspondence with Congresswoman and FBI regarding pending security checks
EXHIBIT E
Expedite Request with USCIS (due to service center error)
and USCIS reply with denial of that request
EXHIBIT F
Complaint Letter and postal service receipts
EXHIBIT G
Expedite Request with USCIS (due to family emergency)
and USCIS reply denying it
DISTRICT OF RHODE ISLAND
********* *********
*******************
*******************
Plaintiff,
v. Case No.:
Michael Chertoff
U. S. Department of Homeland Security Judge:
Office of the General Counsel
U. S. Department of Homeland Security
Washington, D.C. 20258
Robert Divine, acting Deputy Director
U. S. Citizenship and Immigration Services
425 Eye St. NW
Washington D.C. 20536
Paul Novak, Director
Vermont Service Center
U. S. Citizenship and Immigration Services
75 Lower Welden Street
St. Albans, VT 05479-0001
Alberto Gonzales,
Attorney General
U. S. Department of Justice
950 Pennsylvania Ave, NW
Washington, DC 20530-0001
Defendants.
COMPLAINT FOR MANDAMUS AND INJUNCTIVE RELIEF
Petitioner / Plaintiff, Dr. **** ******, Pro Se, presents instant Complaint before this Honorable Court requesting relief against the Defendants for their actions and for their failure to act on the Petitioner’s application for permanent residence in accordance with law.
I. INTRODUCTION
1. This is a petition for a statutory relief pursuant to law including US Constitution, Mandamus Act (28 U.S.C. § 1361), Declaratory Judgment Act (28 U.S.C. § 2201), and the Administrative Procedures Act (5 U.S.C. § 551 et seq.) This action challenges the unreasonable delay in adjudicating of Plaintiff’s employment-based Adjustment Of Status (AOS) Application (I-485 form) pending before Vermont Service Center of the United States Citizenship and Immigration Services (USCIS) since March 19, 2003.
II. JURISDICTION
2. This Court has subject matter jurisdiction over this petition under 28 U.S.C. § 1331 (Federal question statute) since this is a civil action arising under the Constitution and the laws of the United states, including the Fifth Amendment to the U.S. Constitution, provisions of Title 8 U.S.C. § 1101 et seq. (Immigration and Nationality Act, INA) and applicable regulations, policies and procedures arising thereunder. This Court may grant relief in this action under 28 U.S.C. § 1361 (Mandamus Act); 28 U.S.C. § 1651 (All Writs Act); 28 U.S.C. § 2201 (Declaratory Judgment Act); and under 5 U.S.C. § 701 et seq. (Administrative Procedures Act).
3. There are no administrative remedies available to Petitioner to redress the grievances described herein. This action challenges only the Respondents’ timeliness in adjudication of AOS petition, not the granting or denial of petition, therefore the jurisdictional limitations of 8 U.S.C. § 1252 do not apply.
III. VENUE
4. Pursuant to 28 U.S.C. § 1391(e) venue is proper in this judicial district, because Defendants operate within this district and plaintiff resides in this district.
IV. PARTIES
5. Petitioner Dr. **** ******* is a native and citizen of ******. Dr. ***** is a ********* by profession working for ******* located in **** NC. Petitioner originally entered the United States as a graduate student in June 1994 to attend the University of Texas at Austin. After graduating from the University of Texas at Austin with a Ph. D. degree in Electrical Engineering in 1999, Dr. ***** worked as a post-doctoral research associate for the University of Southern California, Los Angeles California. After that Dr. ***** obtained an H-1B professional visa enabling him to take up employment with *******, PA in 2001. On March 19, 2003 **** filed an immigrant visa petition on Dr. ****** behalf which was approved in 2004. At the same time, on March 19, 2003 Dr. ****** filed an application for Adjustment Of Status (AOS) to become a permanent resident of the United States with the Vermont Service Center of USCIS. This application is still pending. Dr. ****** appears before this honorable court in his own behalf as an individual, and on behalf of his derivative beneficiary – his wife *********.
6. Respondent Robert Divine is the acting Deputy Director of the U. S. Citizenship and Immigration Services. Pursuant inter alia, to 8 U.S.C. § 1103, he is charged with, among other matters, administering the USCIS by implementing and enforcing the Immigration and Nationality Act. As such, he is ultimate decision-making authority over the matters alleged in this Complaint.
7. Respondent Paul Novak is the Director of the Vermont Service Center of USCIS of the DHS. In his capacity as the Director of the Vermont Service Center, USCIS, Mr. Novak is responsible for the administration of immigration benefits and services including the processing of employment-based immigration petitions. As such, he has decision-making authority over the matters alleged in this Complaint.
8. Respondent Alberto Gonzales is the Attorney General of the United States. Pursuant, inter alia, to 8 U.S.C. § 1103, he is charged with controlling determination of all issues of law pertaining to immigration and with representing the United States of America in various legal matters.
V. STATEMENT OF FACTS
9. Petitioner, Dr. ****** and his wife, ******, submitted AOS applications to become permanent residents of the United States with Vermont Service Center of USCIS on March 19, 2003. USCIS acknowledgement documents are attached hereto as Exhibit A.
10. Petitioner is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.
11. Petitioner’s employment-based AOS application was filed along with immigrant petition for alien worker under INA 8 U.S.C. § 1153(b) highest priority category – outstanding professor and researcher which was approved in December 2004. Approval notice is provided in Exhibit A.
12. An immigrant visa was immediately available to the Petitioner at the time of AOS application was filed.
13. An immigrant visa is immediately available to the Petitioner at the time of filing this Complaint.
14. Following the submission of AOS application, Petitioner was requested to provide and actually provided fingerprints for security checks on May 13, 2003 and September 30, 2004.
15. USCIS publishes processing dates every month online at: https://egov.immigration.gov/cris/jsps/Processtimes.jsp?SeviceCenter=Vermont. Vermont Service Center is currently processing AOS applications (form I-485) filed on December 01, 2004 (Exhibit A) while Petitioner submitted his application in March 2003, 21 months earlier than current published processing time.
16. Concerned about his application, On December 02, 2004, 624 days after submitting all required documents to USCIS, Petitioner made an official “Status Inquiry” with USCIS. USCIS replied: “Our records show that both I-485 cases are currently in review stage as of 12/08/2004. Please allow a minimum of 45 to 60 days for the review process to be completed at this time.” (Exhibit B).
17. Three months later, on April 26, 2005, 769 days after submitting all documents to USCIS, Petitioner made an official “Expedite Request” with USCIS since adjudication of his petition was delayed past the published USCIS processing dates. USCIS denied this request.
18. Additional “Status Inquiries” with USCIS were made by Petitioner on March 03, April 11, 2005, June 24, 2005 and July 29, 2005. The last one was done 863 days after submitting all documents to USCIS. USCIS reply was the same for all of them: “The processing of your petition/application has been delayed. All petitions/applications received by this Service are required to have routine security checks that are resulting in delays of the adjudication of petitions/applications.” (Exhibit B).
19. Petitioner made further efforts to get a status of his application and find out a reason for a delay in adjudication of his application. Specifically, Petitioner contacted the Office of his Congresswoman Virginia Foxx of the 5th District of North Carolina. Her response dated June 24, 2005 stated that “… both of your I-485 applications are still pending. They are waiting for both of your security checks to come back. Hopefully it will not be too much longer before you will be contacted.” (Exhibit C).
20. After two months of no progress, on August 19, 2005, 884 days after submitting all documents to USCIS, Petitioner contacted the office of his Senator Richard Burr of North Carolina. His reply stated that “… the name check / date of birth for the principal applicant in your family is still pending clearance with the Federal Bureau of Investigation (FBI).” (Exhibit C).
21. Dr. ****** has always complied with immigration and civil laws, has never been arrested or convicted of a crime and has never presented a security risk to the United States. Dr. ****** has been lawfully present in the United States for over 11 years since June 1994.
22. Concerned about the status of his security checks, Petitioner made an official Freedom of Information–Privacy Acts (FOIPA) request with the Federal Bureau of Investigations of the U. S. Department of Justice. FBI reply dated May 13, 2005 stated that FBI has no records pertaining to Dr. ******: “A search of the automated indices to the central records system files at FBI Headquarters located no records responsive to your FOIPA request.” (Exhibit D).
23. Between April 2005 and September 2005 Petitioner made efforts to contact FBI Record/Information Dissemination Section directly via e-mail and certified letters in order to find out the status of his security checks and a reason for a delay in excess of two years (Exhibit D). There were no replies to these inquires.
24. Further to clarify security checks issue, Petitioner sought help of his Congresswoman Virginia Foxx of the 5th District of North Carolina to make an inquiry with FBI. Her reply dated September 19th, 2005 cites an e-mail response from Michael Cannon, Section Chief of National Name Check Program Section of FBI which states that: “A review of the Federal Bureau of Investigation’s (FBI’s) Name Check Program database concerning these individuals revealed that their requests were received from the United States Citizenship and Immigration Services (USCIS) on February 9, 2005. Mrs. ******* submission was processed and finalized on the same day, February 9, 2005. … Mr. ***** request is currently in a pending status.” (Exhibit D).
25. From FBI reply it became clear that USCIS requested Petitioner’s name and date of birth check to be done almost two years later - in February 2005 rather than in March 2003, right after the immigration petition was received. The normal practice of USCIS is to initiate security checks at the very start of application for permanent residency process.
26. As soon as Petitioner became aware of apparent USCIS error in initiating FBI name/date of birth check two years past the due date, Petitioner has filed an official “Expedite Request” with the USCIS explaining the error that service center made and requesting to expedite handling of his name check process with FBI and expedite adjudication of Petitioner’s case. On September 27, 2005 USCIS replied to that request with the following: “An expedite has already been requested and was previously denied. Please do not send another request. Future requests for the same case will not be responded to.” (Exhibit E).
27. Since no resolution on Petitioner’s application has been reached, Petitioner wrote an official Complaint Letter explaining Petitioner’s situation and noting that if case is not resolved within 30 days, a civil suit will be filed in the Federal Court. Several copies of that Complaint Letter were sent via certified mail from July 26, 2005 to August 11, 2005 to the following parties (Exhibit F):
a. USCIS Vermont Service Center,
b. Todd Reader, Assistant Center Director, Adjudication Division of USCIS Vermont Service Center
c. Office of the General Counsel, U. S. Department of Homeland Security
d. Citizenship and Immigration Services Ombudsman, U. S. Department of Homeland Security
e. Anna Mills S. Wagoner, US Attorney, North Carolina Middle District
28. As of October 20, 2005, 946 days (2 years 7 months) after submitting all documents to USCIS, no resolution on Dr. ****** application has been reached so he is filing present Complaint with the North Carolina Middle District Court. This action challenges only the Defendants’ timeliness in adjudication of Petitioner’s application, not the granting or denial of that application.
29. Section 202 (8 U.S.C. § 1571) of the Title II of the American Competitiveness in Twenty-first Century Act of 2000 (AC21) clearly lays down the parameters of reasonableness in immigration adjudication, stating: “…It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.”
30. Defendants are also required by 5 U.S.C. § 551 “within a reasonable time … to conclude a matter presented… .”
31. Other District Courts have concluded in similar cases that petitioners have a clear right to have his or her application for lawful permanent residency status adjudicated within a reasonable period of time. (Yu v. Brown, 36F. Supp. 2d 922, 925 (D.N.M. 1999); Agbemaple v. INS, No. 97 C 8457, 1988 WL 292441 (N.D. Ill. May 18, 1988)). For instance, in Yu, where petitioner sought a writ of mandamus to force INS to act on her application for lawful permanent residence two and one half years after she applied, the court concluded that Yu’s petition properly stated a claim for mandamus. Also in Elkhatib v. Bulger, No. 04-22407-CIV-SEITZ/MCALILEY (S.D.F.2004) court found that Respondents have a non-discretionary duty to process Petitioner’s application within a reasonable period of time.
VI. INJURY TO PETITIONER
32. The Petitioner’s application to become permanent resident of the United States is pending before USCIS for over 946 days.
33. Petitioner is waiting and will continue to wait for a significant amount of time for a decision on his AOS application. His status in the United States has been and will continue to be uncertain. Petitioner could not plan ahead because he has not known and does not know when he becomes a permanent resident.
34. Petitioner is unable to visit his ailing grandmother, ****** (DOB: April 23, 1925), who was recently admitted to the hospital in *****. Petitioner informed USCIS of the family emergency on September 15, 2005 and requested an expedite handling of his AOS case in order to be able to visit his grandmother in **** and make arrangements for her treatment. USCIS replied that “The documents that you submitted failed to establish a level of extreme concern that would meet … (Humanitarian) …criteria.” (Exhibit G).
35. Petitioner has lost a significant work time while pursuing his adjustment of status application, making inquiries with USCIS, meeting with lawyers, applying for yearly work authorization renewals, reporting for fingerprinting, and otherwise pursuing his delayed permanent residency.
36. Petitioner has to obtain yearly work authorization permits while his AOS application is pending. This results in significant out-of-pocket expenses (EAD renewal cost is $175/year and Petitioner has already applied for three of them), including attorneys’ fees, inconvenience, and loss of wages.
37. Some universities and colleges consider a person without a permanent residency to be an out-of-state resident and hence charge him or her out-of-state tuition. Due to that Petitioner’s wife could not proceed with her educational plans.
38. Due to delays in adjudication of Petitioner’s permanent residency application, Petitioner’s naturalization (to become a U.S. Citizen) has been delayed. Therefore Respondents’ unreasonable delay in adjudicating AOS application deprived Petitioner for longer time of citizenship benefits like a right to vote and fully participate in our democracy; receive a United States passport; travel freely into and out of the United States; hold a job that is restricted to United States citizens; run for public office. Also Petitioner has been and will continue to be unable to petition for his family members to immigrate to the United States as immediate relatives.
39. Petitioner rights to due process of law and equal protection under the Fifth Amendment to the United States Constitution have been and are being violated and will continue to be violated by Defendants’ failures as described herein.
VII. GROUNDS FOR RELIEF
40. Defendants, despite having a duty to act within reasonable time, have failed to process and adjudicate Petitioner’s application for permanent residency in a timely manner.
41. Defendant USCIS’ duty to process and adjudicate Petitioner’s application “within a reasonable time” (within 946 days) is a non-discretionary duty mandated by federal and judicial precedent.
42. Defendant USCIS’ conduct in failing to process Petitioner’s application and adjudicate his case in a reasonably timely manner has caused unnecessary and injurious delays to Petitioner, in violation of his rights.
43. Petitioner has exhausted all administrative remedies available and has determined that no adequate remedy exists.
Count I.
Mandamus Action
28 U.S.C. § 1651
44. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
45. Defendants are charged with the mandatory responsibility of administering and implementing the Immigration and Nationality Act.
46. Defendants bear sole responsibility for timely adjudication of AOS application and for orderly attendant procedures.
47. Defendants have failed to discharge their mandated duties.
48. As a result, Petitioner has suffered and continues to suffer irreparable harm and damages entitling him to declaratory, injunctive and other relief.
49. Petitioner has exhausted all possible administrative remedies and there exists no other adequate remedy.
50. Strong humanitarian factors favor granting of Mandamus relief.
Count II.
Administrative Procedures Act
5 U.S.C. § 555 and 5 U.S.C. § 702 et seq.
51. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
52. By failing to render timely decision on Petitioner’s application, Defendants have violated the Administrative Procedures Act and this constitutes agency action that is arbitrary and capricious, and not in accordance with law. 5 U.S.C. § 701 et seq., 702, 706 (“agency action unlawfully withheld or unreasonably delayed” under § 706(1)) and 5 U.S.C. § 555.
53. Defendants have failed to discharge their mandated official duties.
54. As a result, Petitioner has suffered and continues to suffer irreparable harm and damages entitling him to declaratory, injunctive and other relief.
Count III.
Declaratory Judgment Act
28 U.S.C. § 2201
55. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
56. Petitioner contend that Defendants’ actions and decisions relating to delays in AOS adjudication and attendant procedures are unconstitutional, violate the INA, and are arbitrary and capricious and seek a declaration to that effect under 28 U.S.C. § 2201.
57. Defendants have failed to discharge their mandated official duties.
58. As a result, Petitioner has suffered and continues to suffer irreparable harm and damages entitling him to declaratory, injunctive and other relief.
Count IV.
Equal Access to Justice Act
5 U.S.C. § 504 and 28 U.S.C. § 2412
59. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
60. If prevails, Petitioner will seek attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412.
VIII PRAYER FOR RELIEF
WHEREFORE, Petitioner respectfully prays that the honorable Court grant the following relief:
i. Assume jurisdiction over this cause;
ii. Declare that the Defendants’ failure to act is illegal, arbitrary, capricious and abuse of discretion;
iii. Compel Defendants and those acting under them to perform their duty to act upon the Petitioner’s application for permanent residency;
iv. Grant attorneys fees and costs of court;
v. Grant such other and further relief as this Court deems just and appropriate.
Dated: October 20, 2005
RESPECTFULLY SUBMITTED,
_____________________________
******************
Petitioner, Pro Se
*******************
******************
Phone: **********
Cell: ************
E-mail: ************
IX EXHIBITS
EXHIBIT A USCIS Receipt Notices. USCIS Vermont Service Center Processing dates posted October 05, 2005
EXHIBIT B USCIS Letters regarding case status inquiries
EXHIBIT C Letters from Congresswoman and Senator regarding case status
EXHIBIT D Correspondence with Congresswoman and FBI regarding pending security checks
EXHIBIT E Expedite Request with USCIS (due to service center error) and USCIS reply with denial of that request
EXHIBIT F Complaint Letter and postal service receipts
EXHIBIT G Expedite Request with USCIS (due to family emergency) and USCIS reply denying it
EXHIBIT A
USCIS Receipt Notices
USCIS Vermont Service Center Processing dates
posted October 05, 2005
EXHIBIT B
USCIS Letters regarding case status inquiries
EXHIBIT C
Letters from Congresswoman and Senator
regarding case status
EXHIBIT D
Correspondence with Congresswoman and FBI regarding pending security checks
EXHIBIT E
Expedite Request with USCIS (due to service center error)
and USCIS reply with denial of that request
EXHIBIT F
Complaint Letter and postal service receipts
EXHIBIT G
Expedite Request with USCIS (due to family emergency)
and USCIS reply denying it
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