Free MEMORANDUM in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE HE LI, CHANGAI ZHUO, and ZEHAO LI : : Plaintiffs, : : v. : : MICHAEL CHERTOFF, Secretary of the : Department of Homeland Security, EMILIO : T. GONZALEZ, Director of U.S. : Citizenship & Immigration Services : (USCIS); PAUL E. NOVAK, JR., Vermont : Service Center Director, U.S. Citizenship & : Immigration Services; ROBERT S. : MUELLER, Director of Federal Bureau of : Investigation, : : Defendants. :

C.A. No. 06-733-JJF

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' AMENDED MOTION TO DISMISS

COLM F. CONNOLLY United States Attorney By: Seth M. Beausang (I.D. No. #4071) Assistant United States Attorney 1007 N. Orange Street, Suite 700 Wilmington, Delaware 19801 (302) 573-6277

Dated: May 8, 2007.

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1.

On April 10, 2004, Plaintiffs He Li, Changai Zhuo, and Zehao Li filed a I-485

application (the "Application") asking the United States Attorney General to adjust their immigration status to that of permanent residents. (Compl. ¶ 12.) On December 4, 2006, Plaintiffs appeared pro se and filed the present action seeking a writ of mandaums to compel Defendants1 to "properly adjudicate Plaintiffs' [I-485] application," "provide Plaintiffs with Notice of Approval" of that application, and asking the Court to grant such other relief "as justice may require." (Id. ¶ 29.) 2. On April 11, 2007, Defendants filed a Motion to Dismiss Plaintiffs' Complaint

and a Memorandum in Support Thereof. (Doc. Nos. 6, 7.) The Memorandum stated that the I485 Applications for Plaintiffs He Li and Changai Zhuo had been approved and that those approvals were attached as exhibits. (Doc. No. 7 at 4.) Apparently those exhibits were not docketed, but they are attached hereto as Exhibits A and B. 3. The Defendants' Memorandum also stated that the I-485 Application for Plaintiff

Zehao Li had not yet been approved. On April 30, 2007, the I-485 Application for Plaintiff Zehao Li was approved, and a copy of that approval is attached hereto as Exhibit C. 4. Plaintiffs' Complaint should therefore be dismissed for lack of subject matter

jurisdiction. Because Plaintiffs have obtained the relief they seek, Plaintiffs' Complaint should be dismissed as moot. See, e.g., Shi v. Chertoff, No. 06-CV-0470-CVE-FHM, 2006 WL 3253107, at *1 (N.D. Okla. Nov. 8, 2006) ("Plaintiff filed her I-485 and applied for permanent residence on October 2, 2002. She filed this action on September 11, 2006 on the ground that

The Defendants are Michael Chertoff, Secretary of the Department of Homeland Security; Emilio T. Gonzalez, Director of U.S. Citizenship & Immigration Services ("USCIS"); Paul E. Novak, Jr., Vermont Service Center Director, USCIS; and Robert S. Mueller, Director of Federal Bureau of Investigation.

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defendants improperly delayed the processing of her application. However, the United States Citizenship and Immigration Services ("CIS") has approved her application. See Dkt. # 13, Ex. A. Since there is no further substantive relief sought by plaintiff, this action is moot, and the Court dismisses the action for lack of subject matter jurisdiction."). 5. For the foregoing reasons, and as further explained in the Government's Motion

to Dismiss (Doc. Nos. 6, 7), the Government respectfully requests that the Court dismiss Plaintiffs' Complaint. DATED: May 8, 2007. Respectfully Submitted, COLM F. CONNOLLY United States Attorney By: /s/ Seth M. Beausang Seth M. Beausang (I.D. No. 4071) Assistant United States Attorney The Nemours Building 1007 Orange Street, Suit 700 Wilmington, DE 19801 (302) 573-6277

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CERTIFICATE OF SERVICE I, Seth M. Beausang, hereby attest under penalty of perjury that on this 8th day of May, 2007, I caused two copies of Defendants' Amended Motion to Dismiss, Memorandum of Points and Authorities in Support Thereof and Proposed Order to be served on the Plaintiffs by First Class Mail at the following address: He Li Changai Zhuo Zehao Li 403 King Rail Court Middletown, DE 19709 (302)378-8256 PRO SE

/s/ Seth M. Beausang Seth M. Beausang (DE I.D. No. 4071)

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EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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