Free Answer to Complaint - District Court of California - California

Case 4:07-cv-02188-WDB

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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 EDWARD A. OLSEN, CSBN 214150 4 Assistant United States Attorney 5 6 7 Attorneys for Respondents 8 9 10 11 12 QIN CHEN, 13 14 v. Petitioner, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) No. C 07-2188 JSW ) ) ) ) ) ANSWER ) ) ) ) ) ) ) ) ) 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102 Telephone: (415) 436-6915 FAX: (415) 436-6927

15 MICHAEL CHERTOFF, Secretary of Department of Homeland Security; 16 EMILIO T. GONZALEZ, Director of the U.S. Citizenship and Immigration Services; 17 CHRISTINA POULOS, Acting Director of USCIS, California Service Center; and 18 ROBERT S. MULLER, Director of Federal Bureau of Investigation, 19 Respondents. 20 21

The Respondents hereby submit their answer to Petitioner's Petition for a Writ of Mandamus

22 to Compel Administrative Action. 23 1. Paragraph One consists of petitioner's description of his action, to which no response is

24 required. 25 26 27 2. Respondents admit the allegations in Paragraph Two. JURISDICTION AND VENUE 3. Paragraph Three consists of petitioner's allegation regarding jurisdiction, to which no

28 responsive pleading is required; however, to the extent a responsive pleading is deemed necessary,
ANSWER C 07-2188 JSW

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1 respondents deny that this Court has jurisdiction under any of the provisions cited in Paragraph 2 Three. 3 4 5 6 7 8 9 10 11 4. Respondents admit the allegations in Paragraph Four. PARTIES 5. Respondents admit the allegations in Paragraph Five. 6. Respondents admit the allegations in Paragraph Six. 7. Respondents admit the allegations in Paragraph Seven. 8. Respondents admit the allegations in Paragraph Eight. 9. Respondents admit the allegations in Paragraph Nine. EXHAUSTION OF ADMINISTRATIVE REMEDIES 10. Respondents deny the allegations in the first sentence of Paragraph Ten; the respondents

12 lack sufficient information or knowledge to either admit or deny the allegations in the second 13 sentence of Paragraph Ten. 14 15 16 17 18 FACTUAL ALLEGATIONS 11. Respondents admit the allegations in Paragraph Eleven. 12. Respondents admit the allegations in Paragraph Twelve. 13. Respondents admit the allegations in Paragraph Thirteen. 14. Respondents are without sufficient information to admit or deny the allegations in

19 Paragraph Fourteen as USCIS generally does not track or interfile status inquiry information in the 20 alien registration file. 21 15. Respondents are without sufficient information to admit or deny the allegations in

22 Paragraph Fifteen as USCIS generally does not track or interfile status inquiry information in the 23 alien registration file. 24 16. Respondents are without sufficient information to admit or deny the allegations in

25 Paragraph Sixteen. 26 17. Respondents are without sufficient information to admit or deny the allegations in

27 Paragraph Seventeen as USCIS generally does not track or interfile status inquiry information in 28 the alien registration file.
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18. Respondents are without sufficient information to admit or deny the allegations in

2 Paragraph Eighteen as USCIS generally does not track or interfile status inquiry information in the 3 alien registration file. 4 19. Respondents admit the allegations in Paragraph Nineteen, with the exception of

5 petitioner's characterization of the application's transfer to the Nebraska Service Center as "even 6 worse." 7 20. Respondents are without sufficient information to admit or deny the allegations in

8 Paragraph Twenty. 9 10 11 12 13 21. Respondents deny the allegations in Paragraph Twenty-One. 22. Respondents deny the allegations in Paragraph Twenty-Two. 23. Respondents deny the allegations in Paragraph Twenty-Three. CAUSE OF ACTION 24. Respondents incorporate its responses to Paragraph One through Twenty-Three as if set

14 forth fully herein. 15 25. Respondents deny the allegations in Paragraph Twenty-Five. On May 11, 2007, a Request

16 for Evidence (RFE) was mailed to petitioner's attorney of record because of insufficient evidence 17 to support a favorable adjudication. Petitioner has eighty-seven days to respond to the RFE. As of 18 today's date, the Nebraska Service Center has not received a response from petitioner to its RFE. 19 Furthermore, petitioner has a pending a background and security check. 20 21 22 23 24 25 26. Respondents deny the allegations in Paragraph Twenty-Six. 27. Respondents deny the allegations in Paragraph Twenty-Seven. 28. Respondents deny the allegations in Paragraph Twenty-Eight. 29. Respondents deny the allegations in Paragraph Twenty-Nine. PRAYER FOR RELIEF The remaining paragraph under the heading "prayer for relief" consists of petitioner's prayer

26 for relief, to which no admission or denial is required; to the extent a responsive pleading is 27 deemed to be required, respondents deny this paragraph. 28
ANSWER C 07-2188 JSW

FIRST AFFIRMATIVE DEFENSE

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Petitioner's complaint fails to state a claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE The court should dismiss the Petition for Writ of Mandamus for lack for subject matter

4 jurisdiction. 5 6 7 WHEREFORE, Respondents pray for relief as follows: That judgment be entered for respondents and against petitioner, dismissing petitioner's

8 Petition for Writ of Mandamus with prejudice; that petitioner takes nothing; and that the Court 9 grant such further relief as it deems just and proper under the circumstances. 10 Dated: June 29, 2007 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ANSWER C 07-2188 JSW

Respectfully submitted, SCOTT N. SCHOOLS United States Attorney /s/ EDWARD A. OLSEN Assistant United States Attorney Attorneys for Respondents