Free Complaint - District Court of Delaware - Delaware

Case 1:08-cv-00041-JJF

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DAOMING ZHANG, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILMINGTON, DELAWARE ) ) Plaintiff, ) ) v.. ) ) MICHAEL CHERTOFF, ) Secretary of the Department of Homeland Security, ) Washington, D.C., ) In His Official Capacity ) ) EMILIO GONZALEZ, Director of the ) U.S. Citizenship and Naturalization Services, ) Department of Homeland Security ) In His Official Capacity ) ) PAUL E. NOVAK, JR., Service Center Director, ) Vermont Service Center of the Department of ) Homeland Security's U.S. Citizenship and ) Immigration Services, St. Albans, Vermont, ) In His Official Capacity ) ) DAVID L. ROARK, Service Center Director, ) Texas Service Center of the Department of ) Homeland Security's U.S. Citizenship and ) Immigration Services, Dallas, Texas, ) In His Official Capacity ) ) Defendants ) __________________________________________)

Case No. A # 099-428-654, EAC-06-008-52139 COMPLAINT FOR MANDAMUS AND DECLARATORY RELIEF

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COMPLAINT FOR MANDAMUS AND DECLARATORY RELIEF I. INTRODUCTION This is a civil action brought to compel Defendants and those acting under the

Defendants' direction to adjudicate the application for adjustment of status filed pursuant to §245 of the Immigration and Nationality Act, 8 U.S.C. §1255, by Plaintiff on September 28, 2005. II. JURISDICTION AND VENUE The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1361 and §1331. This

action is filed in response to unreasonable agency delay and failure to act on Plaintiff's application for adjustment of status in violation of the Administrative Procedures Act ("APA") under 5 U.S.C.A. §702, as well as the failure to perform the mandatory duty to adjudicate the application. Venue is properly with this Court because Plaintiff resides in the State of Delaware. 3. The Plaintiff, Daoming Zhang, is an adult individual who is a national of China and resides

lawfully in the United States. He resides at 1231 Riverside Drive, Wilmington, Delaware 19809. 4. Paul Novak, sued in his official capacity, as well as his successors and assigns, is the

Director of the Vermont Service Center of the U.S. Citizenship and Immigration Service (USCIS), a Branch of the Department of Homeland Security. Plaintiff has filed his application for adjustment of status with that office and the office retains jurisdiction over the application. The USCIS, through the Vermont Service Center, has a mandatory duty to act on the application for adjustment of status within a reasonable period of time.

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5.

David L. Roark, in his official capacity, as well as his successors and assigns, is joined in

this suit as Director of the Texas Service Center of the USCIS, because for some unexplained reason the case was sent to that Service Center for remote adjudication in March 2007. 6. Emilio Gonzalez is the Director of the USCIS who is also sued in his official capacity, as

well as his successors and assigns. The USCIS is headquartered at 20 Massachusetts Avenue, N.W., Washington, DC 20529. The USCIS is assigned the adjudication of immigrant visa petitions as well as applications for permanent residence status under §245 of the Immigration and Nationality Act (INA), 8 U.S.C. §1255. 7. Defendant Michael Chertoff is the Secretary of the Department of Homeland Security

("DHS"). As of March 1, 2003, DHS is the agency responsible for implementing the Immigration and Nationality Act ("INA"). Within DHS, the USCIS, formerly part of the Immigration and Naturalization Service (INS), is now responsible for implementing the provisions under which cases involving applications for adjustment of status to lawful permanent residents are adjudicated. III. BACKGROUND 8. Plaintiff is eligible for adjustment of status because he is a derivative beneficiary of an

approved Immigrant Petition for Alien Worker and an Application for Adjustment of Status, filed by his spouse, Chendi Zhang, concurrently with Plaintiff's application, on September 28, 2005. The Application for Adjustment of Status of Plaintiff's spouse was approved by the USCIS on March 28, 2006. Under §203(d) of the INA, 8 U.S.C. §1153(d), the Plaintiff is entitled to the same status as the principal applicant based on marriage to the principal applicant.

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9.

On said application filing date, at which time the Plaintiff sought permanent residency

pursuant to §245 of the INA, 8 U.S.C. §1255, he was in lawful immigration status, holding a visa pursuant to the H-4 category. See, §101(a)(15)(H), 8 U.S.C. §1101(a)(15)(H), as well 8 C.F.R. §214.2(h). He was, at the time of filing, and remains, fully eligible for adjustment of status to permanent residence. 10. The adjudication procedure involves the applicant's submission of the Application for

Adjustment of Status. At the time of the filing of the application by the Plaintiff, that application was properly filed with the Vermont Service Center. It is the duty of the Vermont Service Center to timely adjudicate the application. 11. The Plaintiff has complied with all requests made by the USCIS to complete all of the

necessary biometrics appointments required by the USCIS. He has provided all of the information requested by the agency and has applied with all of the appointment notices. 12. The Plaintiff has made repeated inquiries regarding the status of the Application for

Adjustment of Status, through the USCIS's Customer Service telephone line, in writing to the Directors of the Vermont Service Center and the Texas Service Center where his application was inexplicably transferred, made in-person inquiries at the local District Offices in Washington, D.C., and Philadelphia, within which local jurisdiction he has resided during the past twenty-seven months, and has even sought inquiry assistance by the United States Senators for the two States, Virginia and Delaware, wherein he has been residing. See Affidavit of Daoming Zhang, attached. The Plaintiff only received one response to his correspondence with the Service Center Directors, and no response in writing from his many

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Customer Service inquiries, although he did obtain an oral response from the Customer Service Officers who checked the computers, and at each turn, the response was a stock answer that the case was "pending." These numerous inquiries have continued throughout the more than 790 days of elapsed time since filing, as late as October 2007, and by counsel, Robert M. Foley, in November 2007. 13. It is the stated goal of the USCIS to complete all adjudication within six months of filing

of the application. Further, the current listed processing time for the Vermont Service Center for applications of this type is approximately 18 months, and for the Texas Service Center, where the application currently resides, six months. In this regard, it is noted that the application was filed in 2005, over 27 months ago. IV. STATUTORY AND REGULATORY FRAMEWORK 14. The APA provides a remedy to "compel agency action unlawfully withheld or

unreasonably delayed." 5 U.S.C. §706(1). 15. Mandamus is a remedy available for extreme agency delay where the agency has not

performed a mandatory action. 28 U.S.C. §1361. V. CLAIM FOR RELIEF 16. Defendants have unreasonably delayed and failed to perform a mandatory action in

adjudicating the application for adjustment of status filed over two years ago thereby depriving Plaintiff of his right to lawful permanent residence status and benefits conferred there.

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17.

In addition, Plaintiff avers that this long delay has caused him great emotional distress, as

well as money in adjudicating extensions and filing this suit, and has cost him career advancement and the accrual of time towards that most precious of privileges, the filing for U.S. citizenship. 18. Defendants owe Plaintiff the duty to act upon his application for adjustment of status

and have unreasonably failed to perform that duty. 19. Plaintiff has exhausted any administrative remedies that may exist. No other remedy

exists for Plaintiff to resolve Defendants' delay. WHEREFORE, Plaintiff prays that the Court: (1) Compel Defendants and those acting under them to perform their duty to adjudicate the application for adjustment of status owed to Plaintiff; (2) Grant such other and further relief as this Court deems proper under the circumstances; and (3) Grant attorney's fees and costs of court.

By, __/s/______________________________________ Kevin Grubb, Esquire Attorney I.D. No. 4409 Hogan & Vandenberg 4 East 8th Street, #302 Wilmington, DE 19801 (302) 225-2734

By,

___/s/__________________________ Robert M. Foley, By Motion Pro Hac Vice, D.C. Bar No. 165233 Marks Holmes Foley & Morales, P.S. SAFECO PLAZA

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Date: January _17__, 2008

1001 4th Ave., Suite 3801 Seattle, WA 98154 (206) 621-2635 Attorneys for Petitioner

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 By, ______________________________ Kevin Grubb, Esq. Hogan & Vandenberg LLC 4 East 8th Street, #302 Wilmington, DE 19801 (302) 225 2734 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a copy of the foregoing Complaint for Mandamus and Declaratory Relief by first-class mail, certified return receipt, postage prepaid, this _____ day of January, 2008 on: Paul E. Novak, Jr., Center Director Vermont Service Center DHS-USCIS 75 Lower Welden Street St. Albans, VT 05479 Michael Chertoff, Secretary Department of Homeland Security U.S. Citizenship and Naturalization Services Washington, D.C. 20528 United States District Attorney District of Delaware 1007 Orange Street Suite 700 Wilmington, DE 19801 David L. Roark, Center Director Texas Service Center DHS-USCIS 4141 N. St. Augustine Road Dallas, TX 75227 Emilio Gonzalez Department of Homeland Security U.S. Citizenship and Naturalization Services Washington, D.C. 20529

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