Free Answer to Amended Complaint - District Court of California - California

Case 5:07-cv-03011-RS

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Filed 08/20/2007

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1 SCOTT N. SCHOOLS, SC SBN 9990 United States Attorney 2 JOANN M. SWANSON, CSBN 88143 Assistant United States Attorney 3 Chief, Civil Division ILA C. DEISS, NY SBN 3052909 4 Assistant United States Attorney 5 6 7 Attorneys for Defendants 8 9 10 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) No. C 07-3011 RS Plaintiffs, ) ) v. ) ANSWER ) MICHAEL CHERTOFF, as Secretary of the ) Department of Homeland Security; ) EMILIO T. GONZALEZ, Director of the U.S. ) Citizenship and Immigration Services; ) DAVID N. STILL, District Director of the U.S. ) Citizenship and Immigration Services for ) San Francisco and San Jose Sub Office; ) FRANCIS D. SICILIANO, Officer-in-Charge ) of the U.S. Citizenship and Immigration Service ) Sub Office for San Jose; ) ROBERT S. MUELLER, III, Director of the ) Federal Bureau of Investigation, ) ) Defendants. ) ) Defendants hereby submit their answer to Plaintiffs' Complaint. JURISDICTION 1. Paragraph One consists of Plaintiffs' allegation regarding jurisdiction, to which no 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7124 FAX: (415) 436-7169

12 RICK G. BREWSTER and DAOMIN YANG, 13 14 15 16 17 18 19 20 21 22 23 24 25

26 responsive pleading is required; however, to the extent a responsive pleading is deemed necessary, 27 Defendants deny the allegations in this paragraph. 28 ANSWER C07-3011 RS 1

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VENUE 2. Paragraph Two consists of Plaintiffs' allegations regarding venue, to which no responsive

3 pleading is required; however, to the extent a responsive pleading is deemed necessary, 4 Defendants deny the allegations in this paragraph. 5 6 INTRADISTRICT ASSIGNMENT 3. Paragraph Three consists of Plaintiffs' allegations regarding intradistrict assignment, to

7 which no responsive pleading is required; however, to the extent a responsive pleading is deemed 8 necessary, Defendants deny the allegations in this paragraph. 9 10 11 12 13 PARTIES 4. Defendants admit the allegations in Paragraph Four. 5. Defendants admit the allegations in Paragraph Five. 6. Defendants admit the allegations in Paragraph Six. 7. Defendants admit the allegations in Paragraph Seven with the exception that Rosemary

14 Melville is the District Director. 15 8. Defendants admit the allegations in Paragraph Eight with the exception that Francis D.

16 Siciliano is the Field Director of San Jose Field Office, and Robin Barrett is the Field Office 17 Director for San Francisco Field Office. 18 19 20 9. Defendants admit the allegations in Paragraph Nine. COMPLAINT 10. Paragraph Ten consists of Plaintiffs' characterizations of the lawsuit for which no answer

21 is necessary; however, to the extent a response is deemed to be required, the Defendants deny that 22 they have improperly withheld action on Plaintiffs' application to their detriment. 23 24 25 EXHAUSTION OF REMEDIES 11. Defendants deny the allegations in Paragraph Eleven. 12. Defendants are without sufficient information to admit or deny the allegations in

26 Paragraph Twelve. 27 28 CAUSE OF ACTION 13. Defendants admit the allegations in Paragraph Thirteen. ANSWER C07-3011 RS 2

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14. Defendants admit the allegations in Paragraph Fourteen. 15. Defendants admit the Plaintiffs were interviewed on March 3, 2004. 16. Defendants are without sufficient information to admit or deny the allegations in

4 Paragraph Sixteen. 5 6 7 17. Defendants admit the allegations in Paragraph Seventeen. 18. Defendants admit the allegations in Paragraph Eighteen. 19. The first two sentences in Paragraph Nineteen consists of Plaintiff's conclusions of law for

8 which no answer is necessary. Defendants admit the it has been 3 years and 7 months since 9 Plaintiffs filed their I-130 and I-485 applications. 10 20. Paragraph Eighteen consists of Plaintiffs' conclusions of law for which no answer is

11 necessary; however, to the extent a response is deemed necessary, the Defendants deny the 12 allegations in Paragraph Twenty. 13 21. The allegations contained in Paragraph Twenty-One consist solely of Plaintiffs'

14 conclusions of law for which no answer is necessary, but insofar as answers may be deemed 15 necessary, the allegations in Paragraph Twenty-One are denied. 16 22. The allegations contained in Paragraph Twenty-Two consist solely of Plaintiffs'

17 conclusions of law for which no answer is necessary. 18 19 PRAYER FOR RELIEF 23. Paragraph Twenty-Three consists of Plaintiffs' prayer for relief, to which no admission or

20 denial is required; to the extent a responsive pleading is deemed to be required, Defendants deny 21 this paragraph. 22 23 24 25 26 27 FIRST AFFIRMATIVE DEFENSE The Court lacks jurisdiction over the subject matter of this action. SECOND AFFIRMATIVE DEFENSE The Complaint fails to state a claim against the Defendants upon which relief can be granted. THIRD AFFIRMATIVE DEFENSE No acts or omissions by the United States or its employees were the proximate cause of any

28 injury or damages to the Plaintiff. ANSWER C07-3011 RS 3

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FOURTH AFFIRMATIVE DEFENSE At all times alleged in the complaint, Defendants were acting with good faith, with

3 justification, and pursuant to authority. 4 5 FIFTH AFFIRMATIVE DEFENSE Defendants are processing the applications referred to in the Complaint to the extent possible

6 at this time. Accordingly, no relief as prayed for is warranted. 7 8 9 10 SIXTH AFFIRMATIVE DEFENSE Defendants' delay is not unreasonable as a matter of law. WHEREFORE, Defendants pray for relief as follows: That judgment be entered for Defendants and against Plaintiffs, dismissing Plaintiffs'

11 Complaint with prejudice; that Plaintiffs take nothing; and that the Court grant such further relief 12 as it deems just and proper under the circumstances. 13 Dated: August 20, 2007 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANSWER C07-3011 RS 4 /s/ ILA C. DEISS Assistant United States Attorney Attorneys for Defendants Respectfully submitted, SCOTT N. SCHOOLS United States Attorney