Free Answer to Complaint - District Court of California - California

Case 5:07-cv-02754-JF

Document 7

Filed 07/30/2007

Page 1 of 4

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 ZHONG ZHANG, JIE MA, 13 14 15 16 17 18 19 20 21 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) No. C 07-2754 RS ) Plaintiffs, ) ) v. ) ANSWER ) EMILIO T. GONZALEZ, Director of the U.S. ) Citizenship and Immigration Services; ) ALBERTO R. GONZALES, as Attorney General ) of the United States; ) MICHAEL CHERTOFF, in his Official Capacity, ) Secretary, United States Department of Homeland) Security, ) ) Defendants. ) ) Defendants hereby submit their answer to Plaintiff's Complaint for Declaratory Relief in the 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-7124 FAX: (415) 436-7169

22 Nature of Mandamus. 23 24 25 26 27 INTRODUCTION 1. Defendants admit the allegations in Paragraph One. 2. Defendants admit the allegations in Paragraph Two. JURISDICTION AND VENUE 3. Paragraph Three consists of Plaintiff's allegation regarding jurisdiction, to which no

28 responsive pleading is required; however, to the extent a responsive pleading is deemed necessary, Answer C07-2754 RS 1

Case 5:07-cv-02754-JF

Document 7

Filed 07/30/2007

Page 2 of 4

1 Defendants deny the allegations in this paragraph. 2 3 4 5 6 7 8 9 10 4. Defendants admit the allegations in Paragraph Four. 5. Defendants admit the allegations in Paragraph Five. PARTIES 6. Defendants admit the allegations in Paragraph Six. 7. Defendants admit the allegations in Paragraph Seven. 8. Defendants admit the allegations in Paragraph Eight. 9. Defendants admit the allegations in Paragraph Nine. FACTUAL ALLEGATIONS 10. Defendants are without sufficient information to admit or deny the allegations in

11 Paragraph Ten. 12 13 14 15 11. Defendants admit the allegations in Paragraph Eleven. 12. Defendants admit the allegations in Paragraph Twelve. 13. Defendants admit the allegations in Paragraph Thirteen. 14. Defendants admit the first sentence in Paragraph Fourteen; however, Defendants are

16 without sufficient information to admit or deny the remaining allegations in Paragraph Fourteen. 17 15. Defendants are without sufficient information to admit or deny the allegations in

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

20 Paragraph Sixteen. 21 17. Defendants are without sufficient information to admit or deny the allegations in

22 Paragraph Seventeen. 23 18. Defendants are without sufficient information to admit deny the allegations in Paragraph

24 Eighteen. 25 19. Defendants are without sufficient information to admit deny the allegations in Paragraph

26 Nineteen. 27 28 20. Defendants admit the allegations in Paragraph Twenty. 21. Defendants admit the allegations in the first and second sentences in Paragraph TwentyAnswer C07-2754 RS 2

Case 5:07-cv-02754-JF

Document 7

Filed 07/30/2007

Page 3 of 4

1 One; however, the Defendants are without sufficient information to admit or deny the remaining 2 allegations. 3 4 5 6 7 22. Defendants admit the allegations in the second sentence of Paragraph Twenty-Two. 23. Defendants deny the allegations in Paragraph Twenty-Three. 24. Defendants deny the allegations in Paragraph Twenty-Four. CAUSES OF ACTION 25. Defendants incorporate their responses to Paragraph One through Twenty-Four as if set

8 forth fully herein. 9 10 11 12 26. Defendants admit the allegations in Paragraph Twenty-Six. 27. Defendants deny the allegations in Paragraph Twenty-Seven. 28. Defendants deny the allegations in Paragraph Twenty-Eight. 29. Defendants admit the first sentence in Paragraph Twenty-Nine; however, Defendants deny

13 the remaining allegations. 14 15 16 17 30. Defendants deny the allegations in Paragraph Thirty. 31. Defendants deny the allegations in Paragraph Thirty-One. PRAYER 32. Paragraph Thirty-Two consists of Plaintiff's prayer for relief, to which no admission or

18 denial is required; to the extent a responsive pleading is deemed to be required, Defendants deny 19 this paragraph. 20 21 22 23 FIRST AFFIRMATIVE DEFENSE Plaintiffs' complaint 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 Plaintiffs

24 cannot establish that Defendants' duty to act is ministerial, that no other adequate remedy is 25 available, or that Plaintiffs have a clear right to the relief sought. See 28 U.S.C. § 1361. 26 27 WHEREFORE, Defendants pray for relief as follows: That judgment be entered for Defendants and against Plaintiffs, dismissing Plaintiffs'

28 complaint with prejudice; that Plaintiffs take nothing; and that the Court grant such further relief Answer C07-2754 RS 3

Case 5:07-cv-02754-JF

Document 7

Filed 07/30/2007

Page 4 of 4

1 as it deems just and proper under the circumstances. 2 Dated: July 30, 2007 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Answer C07-2754 RS 4 /s/ ILA C. DEISS Assistant United States Attorney Attorneys for Defendantss Respectfully submitted, SCOTT N. SCHOOLS United States Attorney