Free Answer to Complaint - District Court of California - California

Case 3:07-cv-02947-MEJ

Document 4

Filed 08/10/2007

Page 1 of 3

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 12 JIAN JIN, 13 14 15 16 17 18 19 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) No. C 07-2947 SC Plaintiff, ) ) v. ) ANSWER ) ALBERTO GONZALES, United States Attorney ) General; et al., ) ) Defendants. ) ) Defendants hereby submit their answer to Plaintiff's Petition for Writ of Mandamus. 1. Defendants admit the allegations in Paragraph One with the exception that they deny that 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7124 FAX: (415) 436-7169

20 they have improperly withheld action on Plaintiff's application to his detriment. 21 22 23 24 25 26 27 PARTIES 2. Defendants admit the allegations in Paragraph Two. 3. Defendants admit the allegations in Paragraph Three. 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 deny that the USCIS district office in San Francisco is responsible for timely

28 processing of Plaintiff's application. F. Gerard Heinauer, Nebraska Service Center Director, is the Answer C07-2947 SC

1

Case 3:07-cv-02947-MEJ

Document 4

Filed 08/10/2007

Page 2 of 3

1 agency official before whom Plaintiff's employment-based Form I-485 adjustment of status 2 application is pending. 3 4 JURISDICTION 8. Paragraph Eight consists of Plaintiff's allegation regarding jurisdiction, to which no

5 responsive pleading is required; however, to the extent a responsive pleading is deemed necessary, 6 Defendants deny the allegations in this paragraph. 7 8 9 10 11 12 13 14 VENUE 9. Defendants admit the allegations in Paragraph Nine. INTRADISTRICT ASSIGNMENT 10. Defendants admit the allegations in Paragraph Ten. EXHAUSTION OF REMEDIES 11. Defendants deny the allegations in Paragraph Eleven. CAUSE OF ACTION 12. Defendants are without sufficient information to admit or deny the allegations in Paragraph

15 Twelve. 16 17 18 13. Defendants admit that Siebel Systems Inc filed an I-140 on Plaintiff's behalf. 14. Defendants admit that Plaintiff filed his Form I-485 on July 29, 2005. 15. Defendants are without sufficient information to admit or deny the allegations in Paragraph

19 Fifteen. 20 16. Defendants are without sufficient information to admit or deny the allegations in Paragraph

21 Sixteen. 22 23 24 25 17. Defendants admit the allegations in Paragraph Seventeen. 18. Defendants admit the allegations in Paragraph Eighteen. 19. Defendants deny the allegations in Paragraph Nineteen. 20. Defendants deny the first two sentences in Paragraph Twenty; however, Defendants admit

26 the last sentence. 27 28 Answer C07-2947 SC 21. Defendants deny the allegations in Paragraph Twenty-One.

2

Case 3:07-cv-02947-MEJ

Document 4

Filed 08/10/2007

Page 3 of 3

1 2

PRAYER 22. Paragraph Twenty-Two under the heading "Prayer", consists of Plaintiff's prayer for relief,

3 to which no admission or denial is required; to the extent a responsive pleading is deemed to be 4 required, Defendants deny this paragraph. 5 6 7 8 FIRST AFFIRMATIVE DEFENSE Plaintiff's petition fails to state a claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE The court should dismiss the complaint under Fed. R. Civ. P. 12(b)(6) because Plaintiff cannot

9 establish that Defendants' duty to act is ministerial, that no other adequate remedy is available, or 10 that Plaintiff has a clear right to the relief sought. See 28 U.S.C. § 1361. 11 12 WHEREFORE, Defendants pray for relief as follows: That judgment be entered for Defendants and against Plaintiff, dismissing Plaintiff's petition

13 with prejudice; that Plaintiff take nothing; and that the Court grant such further relief as it deems 14 just and proper under the circumstances. 15 Dated: August 10, 2007 16 17 18 19 20 21 22 23 24 25 26 27 28 Answer C07-2947 SC /s/ ILA C. DEISS Assistant United States Attorney Attorneys for Defendants Respectfully submitted, SCOTT N. SCHOOLS United States Attorney

3