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

Case 3:08-cv-03446-JSW

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Shah Peerally (CA Bar No: 230818) Erich Keefe (CA Bar No: 226746) LAW OFFICES OF SHAH PEERALLY 4510 Peralta Blvd, Suite 25 Fremont, CA 94536 Telephone: (510) 742-5887 Fax: (510) 742-5877 Attorneys for Plaintiff

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

) ) Plaintiff, ) ) vs. ) ) Michael Mukasey, Attorney General of the ) United States; Michael Chertoff, Secretary of the ) Department of Homeland Security; Jonathan ) Sharfen, Acting Director of United States ) Citizenship & Immigration Services; ) Robin Barrett, USCIS District ) Director, Christina Poulos, Director of the ) California Service, et al; ) ) ) Defendants ) __________________________________________)

Kaid K. Mohamed,

Case No. IMMIGRATION MANDAMUS CASE TO COMPEL DEFENDANTS TO COMPLETE ADJUDICATION OF IMMIGRANT PETITION

A 34-977-436 WAC-04-073-53754

PLAINTIFF'S ORIGINAL COMPLAINT FOR WRIT IN THE NATURE OF IMMIGRATION MANDAMUS COMES NOW Kaid K. Mohamed, Plaintiff in the above-styled and numbered cause, and for cause of action would show unto the Court the following: 1. This action is brought against the Defendants to compel further action on a four and onehalf year delayed I-130 petition for classification of Mr. Mohamed's son as an immediate relative. The petition was properly filed by Mr. Mohamed on or about January 15, 2004,
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when his son was ten years old. His son is now fifteen years old. 2. Approving the petition and forwarding it to the National Visa Center is the first step in the process of granting lawful permanent resident status to Mr. Mohamed's son who continues to reside in Yemen, pending the completed processing of Mr. Mohamed's application. 3. The petition was filed and remains within the jurisdiction of the Defendants, who have improperly and without any explanation withheld final action on the petition to the detriment of Mr. Mohamed and his family. 4. Mr. Mohamed was informed by USCIS that they approved the petition on March 30, 2006, more than two years after he had filed the petition. The approval of the petition was itself unreasonably delayed. However, the issue that Mr. Mohamed has faced since that date is that no further action has been taken by the Defendants since the March 30, 2006 approval. Mr. Mohamed's attempt to reunify his family has fallen into a bureaucratic black hole. 5. This action seeks to compel USCIS to now forward the approved petition to the State Department's National Visa Center for the next step in processing towards lawful permanent residence. PARTIES 6. Plaintiff, Kaid K. Mohamed, is a sixty-eight year old, naturalized United States citizen originally from Yemen. Four and one-half years have passed since Mr. Mohamed began the process of bringing his son to the United States as a lawful permanent resident. Defendants, USCIS' website continues to state that the case is pending the scheduling of
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a standard interview in the San Francisco office. Such an interview is inapplicable to this kind of case in which the beneficiary is outside of the United States. If there is to be an interview prior to the granting of lawful permanent resident status to the Plaintiff's son, that interview must occur in Yemen. However, the case cannot move forward and such an immigrant visa interview cannot be scheduled until the National Visa Center receives the file from USCIS. 7. Defendant, Michael Mukasey, is Attorney General of the United States, 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 Justice. 8 U.S.C. §1103(a). The United States Citizenship and Immigration Service is an agency within the Department of Justice to whom the Attorney General's authority has in part been delegated, and is subject to the Attorney General's supervision. 8. Defendant, Michael Chertoff, is Secretary of the Department of Homeland Security, and this action is brought against him in his official capacity. He is charged with supervisory authority over all operations within the Department of Homeland Security. The United States Citizenship and Immigration Service is an agency within the Department of Homeland Security to whom the Secretary of Homeland Security's authority has in part been delegated, and is subject to his supervision. 9. Defendant, Jonathan Sharfen, is Acting Director of USCIS, and this action is brought against him in his official capacity. He is charged with supervisory authority over all operations of USCIS and is responsible for timely processing of Plaintiff's petition.
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10.

Defendant, Robin Barrett is San Francisco District Director of the USCIS, and this action is brought against her in his official capacity. She is charged with supervisory authority over all operations of the San Francisco office and is responsible for the proper processing Mr. Mohamed's petition.

11.

Christina Poulos is the Director of the California Service Center, and this action is brought against her in her official capacity. She is charged with supervisory authority over all operations of the California Service Center. She is responsible for the proper and timely processing of Mr. Mohamed's petition. JURISDICTION

12.

Jurisdiction in this case is proper under 28 U.S.C. §§1331 and 1361, 5 U.S.C. §701 et seq., and 28 U.S.C. §2201 et seq. Relief is requested pursuant to said statutes.

13.

The Mandamus act provides that "[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 the plaintiff." Defendants have a clear non-discretionary duty to process Mr. Mohamed's petition and he has a clear right to have Defendants' delay tested for reasonableness.

14.

The Declaratory Judgment Act provides, "In a case of actual controversy within its jurisdiction ... any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a).

15.

The Administrative Procedures Act permits reviewing courts to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1).
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VENUE 16. 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 Mr. Mohamed resides. EXHAUSTION OF REMEDIES 17. Mr. Mohamed has exhausted his administrative remedies. He has made numerous inquiries concerning the status of his application, to no avail. Defendants have responded to the effect that the application remains pending at the San Francisco office, where it will be scheduled for a standard interview. There are no administrative remedies remaining for Mr. Mohamed to exhaust, because there is no administrative body to which he can appeal the refusal of the Defendants to perform their non-discretionary ministerial duties. CAUSE OF ACTION 18. Mr. Mohamed submitted an I-130 immigrant petition for relative in order to bring his son from Yemen to the United States as a lawful permanent resident. His son was ten years old at the time that the petition was filed. He is now fifteen years old. 19. 20. Mr. Mohamed's petition has now been delayed for four and one-half years. Defendants' refusal to act in this case is, as a matter of law, arbitrary and not in accordance with the law. Defendants have unreasonably delayed in and have refused to process Mr. Mohamed's petition for four and one-half years, thereby depriving him of the right to a decision on his son's status and the peace of mind to which he is entitled. 21. The Defendants, in violation of the Administrative Procedures Act, 5 U.S.C. §701 et seq.,
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are unlawfully withholding or unreasonably delaying action on Mr. Mohamed's petition and have failed to carry out the adminisrative functions delegated to them by law with regard to Mr. Mohamed's case. An Agency has a duty to conclude a matter presented to it within a "reasonable time." Id. § 555(b). In their December 10, 2007 letter, Defendant, USCIS stated that Mr. Mohamed's petition had been forwarded to the National Visa Center. However, the National Visa Center has no record of receiving the file and cannot take action on the case. 22. The relevant immigration regulations are drafted on the assumption that the Defendants will make a decision on each application. 8 C.F.R. §245.6. ("Each applicant for adjustment of status under this part shall be interviewed by an immigration officer."); 8 C.F.R. § 245.2 ("the applicant shall be notified of the decision of the director, and, if the application is denied, the reasons for the denial.") Id. As was stated recently by this Court "there is a difference between the [USCIS's] discretion over how to resolve an application, and the [USCIS's] discretion over whether it resolves an application." Singh v. Still, 470 F. Supp. 2d 1064, 1068 (N.D. Cal. 2007) (emphasis in original). The resolving of the instant petition requires forwarding it for further processing by the National Visa Center. 23. Mr. Mohamed has made numerous in-person, written and telephonic status inquiries in an attempt to secure processing of his petition, to no avail. Accordingly, Mr. Mohamed has been forced to retain the services of an attorney to pursue the instant action. PRAYER 24. WHEREFORE, in view of the arguments and authority noted herein, Mr. Mohamed
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respectfully prays that the Defendants be cited to appear herein and that, upon due consideration, the Court enter an order: (a) Requiring Defendants to forward Mr. Mohamed's petition to the National Visa Center within 30 days; (b) Awarding Mr. Mohamed reasonable attorney's fees; and

(c).

Granting such other relief at law and in equity as justice may require.

Dated:

Respectfully submitted,

Shah Peerally, Esq. Attorney for Plaintiff

Erich Keefe, Esq. Attorney for Plaintiff LIST OF EXHIBITS 1. 2. 3. 4. 5. 6. January 21, 2004 Receipt Notice for filing of I-130 Petition; Case status search stating that the case remains in the San Francisco location; December 10, 2007 USCIS notice stating that the file has been forwarded to the NVC; Notice of Approval of Relative Visa Petition dated March 30, 2006; May 5, 2008 Letter to USCIS written by attorney Christine Stouffer on behalf of Mr. Mohamed; March 28, 2008 Letter to USCIS written by attorney Christine Stouffer on behalf of Mr. Mohamed;
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7. 8. 9. 10. 11. 12.

March 17, 2008 Letter to USCIS written by attorney Christine Stouffer on behalf of Mr. Mohamed; January 31, 2008 email from The National Visa Center stating that they have searched their records and no information was found regarding Mr. Mohamed's petition; January 24, 2008 email to The national Visa Center from Attorney Christine Stouffer; December 5, 2007 Letter to USCIS written by attorney Christine Stouffer on behalf of Mr. Mohamed; October 30, 2007 email from Mr. Mohamed to the consulate in Sanaa, Yemen; October 22, 2007 Letter to USCIS written by attorney Christine Stouffer on behalf of Mr. Mohamed.

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