Free Petition for Writ of Mandamus - District Court of California - California

Case 3:08-cv-03976-JCS

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Kip Evan Steinberg (SBN 096084) LAW OFFICES OF KIP EVAN STEINBERG Courthouse Square 1000 Fourth Street, Suite 600 San Rafael, CA 94901 Telephone: 415-453-2855 Facsimile: 415-456-1921 [email protected] Attorney for Plaintiff MOHAMED ALI

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

MOHAMED ALI

) ) Plaintiff, ) ) v. ) ) MICHAEL B. MUKASEY, Attorney General, ) ROBERT S. MUELLER, Director ) Federal Bureau of Investigation, ) MICHAEL CHERTOFF, Secretary ) Department of Homeland Security ) ) Defendants ) ________________________________________________) I. INTRODUCTION

Civil Action No.

COMPLAINT FOR MANDAMUS AND DECLARATORY AND INJUNCTIVE RELIEF IMMIGRATION MANDAMUS CASE

This action is brought by Plaintiff to compel Defendants to process the necessary background checks, schedule his naturalization interview, and adjudicate his application for Application for Naturalization (Form N-400) under 8 U.S.C. §1427. Plaintiff's application was filed on August 16, 2006 with the California Service Center of the United States Citizenship and Immigration Services "USCIS", an agency within the Department of Homeland Security. Plaintiff has made several inquiries concerning this application.
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Defendants have failed to complete his background check, failed to schedule his interview, and failed to adjudicate the application.

II. PARTIES 1. Plaintiff, Mohamed Ali, is a lawful permanent resident of the United States. He resides in San Francisco, California with his U.S. citizen wife and three U.S. citizen children. 2. Defendant Michael B. Mukasey is sued in his official capacity as the Attorney General of the United States. He is charged with the authority and duty to direct, manage, and supervise all employees and all files and records of the Department of Justice including the security checks required to obtain an immigration benefit such as naturalization. He oversees the FBI which is responsible for conducting both criminal record checks and the National Name Check Program ("NNCP"). The NNCP disseminates information from the FBI's Central Records System in response to requests submitted by federal agencies, including USCIS. 3. Defendant Robert S. Mueller is sued in his official capacity as the Director of the Federal Bureau of Investigation ("FBI"). He is responsible for conducting both criminal record checks and the NNCP. The NNCP disseminates information from the FBI's Central Records System in response to requests submitted by federal agencies, including USCIS. 4. Defendant Michael Chertoff is sued in his official capacity as the

Secretary of the Department of Homeland Security. In this capacity he has responsibility for the administration and enforcement of the immigration laws pursuant to 8 U.S.C. §1103(a) including the accurate, efficient and secure processing of immigration benefits.
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III. JURISDICTION 5. This is a civil action brought pursuant to 28 USC §§ 1331 and

1361 to redress the deprivation of rights, privileges and immunities secured to Plaintiff, by which jurisdiction is conferred, to compel Defendants to perform duties owed to Plaintiff. 6. Jurisdiction is also conferred by 5 USC § 704. Plaintiffs are

aggrieved by adverse agency action in this case, as the Administrative Procedure Act requires in order to confer jurisdiction on the District Courts. 5 USC § 702 et seq. 7. The aid of the Court is invoked under 28 USC §§ 2201 and 2202,

authorizing a declaratory judgment. 8. Costs and attorneys fees will be sought pursuant to the Equal

Access to Justice Act, 5 USC § 504, and 28 USC §2412(d), et seq.

IV. VENUE 9. Venue is proper in the Northern District of California since Plaintiff resides in San Francisco, California.

V. EXHAUSTION OF REMEDIES 10. Plaintiff has exhausted his administrative remedies. Plaintiff has

made several inquiries concerning the status of his N-400 application to no avail. Plaintiff has no other adequate remedy available for the harm he seeks to redress - the failure of Defendants to process his background checks, schedule his interview, and process his application for naturalization in a timely manner.

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VI. REMEDY SOUGHT 11. Plaintiff seeks to have the Court compel Defendants to take whatever steps are necessary to adjudicate his pending N-400 application, including the completion of all necessary background checks, the scheduling of his naturalization interview, and adjudication of his naturalization application within 120 days of his interview. Plaintiff also seeks a declaration from this Court that the Defendants' requirement of an FBI name check is ultra vires and injunctive relief enjoining Defendants from using the FBI name check program.

VII. STATEMENT OF FACTS 12. Plaintiff is a native of Iran. He has been a lawful permanent resident since August 6, 2001. Plaintiff's alien registration number is A072 857 125. (See Attachment A) 13. On August 16, 2006 Plaintiff applied for naturalization under 8 U.S.C. §1427 with the California Service Center of USCIS. 14. Defendants took Plaintiff's fingerprints on September 19, 2006. (See Attachment B) 15. Defendants have scheduled a second fingerprint appointment for Plaintiff on August 26, 2008. (See Attachment C) 16. Plaintiff seeks to have his interview scheduled to demonstrate that meets all the eligibility requirements for citizenship, including residence, physical presence, good moral character, ability to read and write English, and knowledge of U.S. history and government as required under 8 U.S.C. §1427. 17. Plaintiff is a law abiding and responsible individual. He has no criminal record. (See Attachment D) 18. Plaintiff holds doctorate dental degrees from the Aleppo School of

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Dentistry and the Loma Linda School of Dentistry. He has held teaching positions within the Oral and Maxillofacial Surgery Departments of the Loma Linda University School of Dentistry, San Bernardino Country Medical Center and Riverside General Hospital. He currently has his own dental office in San Francisco, California in which he is engaged in general, implant, and cosmetic dentistry. See www.malidds.com. He employs five U.S. citizens and one lawful permanent resident. 19. Plaintiff wishes to become a U.S. citizen as soon as possible and

enjoy all the liberties and freedoms attendant thereto, including the right to vote, sit on a jury, and travel abroad with a U.S. passport. He also wishes to vote in the upcoming presidential election in November, 2008. 20. According to Defendants' website, the USCIS District Office in San Francisco is currently processing N-400 applications filed as of July 29, 2007.1 See List of San Francisco District Office Processing Dates as of July 15, 2008 found at https://egov.uscis.gov/cris/jsps/ptimes.jsp. (Attachment E) 21. Since Plaintiff's N-400 application was filed on August 16, 2006, it is significantly past the current processing time. 22. On April 25, 2006, USCIS directed its officials not to schedule interviews of naturalization applicants until it had received the results of their FBI name checks, in an effort to avoid judicial review of unadjudicated applications pursuant to 8 U.S.C. §1447(b). (See Attachment G)

23. On August 9, 2007, Defendants sent Plaintiff a letter replying to

According to a "News Release" issued by Defendants on August 11, 2008, USCIS projects that the average time it will take to complete a naturalization case in San Francisco as of the end of September, 2008 is 5.5 months. (See Attachment F)

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Plaintiff's inquiry about the status of his case. This letter stated: "The processing of your case has been delayed. A check of our records establishes that your case is not ready for decision, as the required investigation into your name check remains open. Until the background investigation is completed, we cannot move forward on your case..." (See Attachment H) 24. 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. 8 U.S.C. § 1571.

VIII. CAUSE OF ACTION 25. Plaintiff alleges that Defendants have a non-discretionary duty to complete the processing of his background checks, conduct a naturalization interview, and adjudicate his application for naturalization in a reasonable time. 8 C.F.R. §§ 335.1; 335.2; 335.3. Despite the fact that Plaintiff's application has been pending since August 16, 2006, Defendants have failed to complete his background checks and failed to schedule his naturalization interview. 26. Plaintiff asserts that his application has been pending for a period of time which is unreasonable and that Defendants have no lawful basis for failing to proceed with the case. 27. The Defendants, in violation of the Administrative Procedure Act, 5 U.S.C. §§555(b) and 701 et seq., 706 (1), 706(2)(A), 707(2)(C), 706 (2)(D) are unlawfully withholding or unreasonably delaying action on Plaintiff's application, including the completion of the FBI name check, and have failed to carry out the adjudicative functions delegated to them by law.
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28. Defendants' failure to timely process Plaintiff's naturalization application, including the FBI name check, has caused and will continue to cause irreparable injury to Plaintiff as it has prevented Plaintiff from participating in U.S. society as a U.S. citizen, including the right to vote in local, state, and national elections, particularly the upcoming election for President. 29. Plaintiff alleges that Defendants' requirement of an FBI name check in the naturalization process is ultra vires in that no statute nor any regulation mandates that a name check be part of the background investigation. 30. Defendants' failure to provide a general notice of proposed rule making and public comment period prior to adding the name check to the

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required criminal background check violated the Administrative Procedure Act, 5 U.S.C. §553. IX. PRAYER 31. 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: (a) requiring Defendants to complete Plaintiff's background checks within 30 days. (b) requiring Defendants to schedule Plaintiff's naturalization interview within 30 days of completion of the necessary background checks.

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(c) requiring Defendants to adjudicate Plaintiff's naturalization application within 120 days of his interview as required by 8 U.S.C. §1447(b). (d) declaring Defendants' policy of withholding the scheduling of a naturalization interview until receipt of the FBI name check to be ultra vires in that no law or regulation authorizes this policy. (e) declaring that the current name check policy constitutes a substantive rule that departed from prior policy and practice. (f) enjoining Defendants' current policy of delaying the scheduling of naturalization interviews until Defendants' name check policy is published in the Federal Register as a proposed regulation and subject to

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a period of public notice and comment. (g) awarding Plaintiff reasonable attorney's fees and costs of court and (h) granting such other relief at law and in equity as justice may require.

DATED: August 19, 2008

_ ____________ Kip Evan Steinberg Attorney for Plaintiff MOHAMED ALI

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LIST OF ATTACHMENTS (pp. 1-13)

Copy of Permanent Residence Card Notice of fingerprint appointment September 19, 2006 Notice of fingerprint appointment August 26, 2008 FBI Identification Record showing "No Arrest Record" San Francisco District Office Processing Dates Posted July 15, 2008 USCIS News Release August 15, 2008 (Projected Naturalization Processing Times)

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G

USCIS Memo April 25, 2006 "Background Checks and Naturalization Interview Scheduling"

H

USCIS response to status inquiry dated August 9, 2007

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