Free Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00732-JJF

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UNITED STATES DISTRICT COURT FOR THE DISTRICT COURT OF DELAWARE
Abu Mohammed Rakib Hadier, Plaintiff v. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

PAUL NOVAK, DIRECTOR U.S. Department of Homeland Security U.S. Citizenship and Immigration Service, Vermont Service Center, in his official capacity, as well as his successors and assigns, and EMILIO GONZÁLEZ, Director of U.S. Citizenship & Immigration Services, in his Official capacity, as well as his successors and assigns and ROBERT S. MUELLER, III Director of the Federal Bureau of Investigation, in his official capacity, as well as his successors and assigns and Mr. Colm F. Connolly, Esq. U.S. Attorney, District of Delaware, in his official capacity, as well as his successors and assigns Defendants.

COMPLAINT FOR MANDAMUS UNDER 28 U.S.C. §1361 NO. A 047 674 340

I. INTRODUCTION 1. This is a civil action brought to compel Defendants and those acting under the Defendants' direction to adjudicate the application for Naturalization filed pursuant to §310 of the Immigration and Nationality Act, 8 U.S.C. §1421, by Plaintiff on January 30, 2004. II. JURISDICTION AND VENUE 2. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1361 and §1331. This action is filed in response to unreasonable agency delay and failure to act on Plaintiff's

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Naturalization in violation of the Administrative Procedures Act ("APA") under 5 U.S.C.A. §702, as well as the failure to perform the mandatory duty to adjudicate the application. Venue is properly with this Court because Plaintiff resides in the State of Delaware. 3. The Plaintiff, Abu Mohammed Rakib Hadier, is an adult individual who is a Permanent Resident of the United States (A 046 764 340) and is a citizen of Bangladesh He resides lawfully in the United States. 4. Paul Novak is the District Director of the Vermont Service Center of the U.S. Citizenship and Immigration Service (USCIS). Plaintiff has filed his application for adjustment of status with that office and the office retains jurisdiction over the application. The USCIS, through the Vermont Service Center, has a mandatory duty to act on the application for adjustment of status within a reasonable period of time. 5. Emilio Gonzalez is the Director of the U.S. Citizenship and Immigration Services (USCIS) who is also sued only his official capacity, as well as his successors and assigns. The USCIS is headquartered at 20 Massachusetts Avenue, N.W., Washington, DC 20529. The USCIS is assigned the adjudication of Naturalization. 6. Robert S. Mueller, III is Director of the Federal Bureau of Investigation (FBI) who is also sued in his official capacity as well as his successor and assigns. The FBI is headquartered 935 Pennsylvania Ave Washington, D.C. 20535. The FBI conducts background checks for the USCIS. III. BACKGROUND 7. Plaintiff is eligible for Naturalization because he successfully applied and passed the examination required for Naturalization on December 27, 2005. Plaintiff was entitled to apply for Naturalization because he had been a U.S. Permanent Resident for five years prior to applying. 8. Plaintiff has made more than a dozen inquires to United States Citizenship and Immigration Services in attempts to resolve his pending case. The government has responded by informing Plaintiff simply that his background checks have not been completed. 9. The Plaintiff has complied with all requests made by the USCIS to complete all necessary biometrics appointments. He has provided all of the information requested by the agency and has applied with all of the appointment notices. 10. It is the stated goal of the USCIS to complete all adjudication within six months of filing of the application. Further, the current listed processing time for the Vermont Service Center for applications of this type is approximately 11 months. IV. STATUTORY AND REGULATORY FRAMEWORK 11. The APA provides a remedy to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. §706(1). 12. Mandamus is a remedy available for extreme agency delay where the agency has not performed a mandatory action. 28 U.S.C. §1361.

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V. CLAIM FOR RELIEF 13. Defendants have unreasonably delayed and failed to perform a mandatory action in adjudicating the application for Naturalization filed and approved four years ago thereby depriving Plaintiff of his lawful request to become a United States Citizen. INA Sec 336 (b), 8 USC Sec. 1447(b) requires USCIS to act within 120 days after a naturalization examination is conducted under part 335 or the applicant may apply to the U.S. District Court where the applicant resides 8 CVFR Secs. 310.5, 336.9;Nagahi v. INS, 219 F.3d 1166 (10th Cir. 2000); 14. Defendants owe Plaintiff the duty to act upon his application for naturalization and have unreasonably failed to perform that duty. 15. Plaintiff has exhausted any administrative remedies that may exist. No other remedy exists for Plaintiff to resolve Defendants' delay. WHEREFORE, Plaintiff prays that the Court: (1) Compel Defendants and those acting under them to perform their duty to adjudicate the Naturalization of status owed to Plaintiff; (2) Grant such other and further relief as this Court deems proper under the circumstances; and (3) Grant attorney's fees and costs of court.

/s/ Kevin Grubb _____________________________ Kevin Grubb, Esquire Attorney I.D. No. 4409 Hogan & Vandenberg LLC 4 East 8th Street, #302 Wilmington, DE 19801 (302) 225 2734

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CERTIFICATE OF SERVICE

THIS IS TO CERTIFY THAT I HAVE SERVED:

PAUL NOVAK, DIRECTOR U.S. Department of Homeland Security U.S. Citizenship and Immigration Vermont Service Center 75 Lower Weldon Street St. Albans VT EMILIO GONZÁLEZ, Director of U.S. Citizenship & Immigration Services U.S. Department of Homeland Security 20 Massachusetts Ave Washington, D.C. 20529 ROBERT S. MUELLER, III Director of the Federal Bureau of Investigation J. Edgar Hoover Building 935 Pennsylvania Ave NW Washington, D.C. 20535-0001 Mr. Colm F. Connolly, Esq. U.S. Attorney, District of Delaware The Nemours Building 1007 Orange Street #700 Wilmington DE 19801

in the foregoing matter with a copy of this Complaint for Mandamus by depositing in the United State's mail a copy of same in a properly address envelope with adequate postage thereon, in the manner prescribed by Rule 5 of the Federal Rules of Procedure. This 16th day of November 2007 ____/s/ Kevin Grubb____ Kevin Grubb, Esquire Attorney I.D. No. DE 4409 Hogan & Vandenberg LLC 4 East 8th Street, #302 Wilmington, DE 19801 Attorney for Plaintiffs (302) 225 2734

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CERTIFICATE OF SERVICE

THIS IS TO CERTIFY THAT I HAVE SERVED:

PAUL NOVAK, DIRECTOR U.S. Department of Homeland Security U.S. Citizenship and Immigration Vermont Service Center 75 Lower Weldon Street St. Albans VT EMILIO GONZÁLEZ, Director of U.S. Citizenship & Immigration Services U.S. Department of Homeland Security 20 Massachusetts Ave Washington, D.C. 20529 ROBERT S. MUELLER, III Director of the Federal Bureau of Investigation J. Edgar Hoover Building 935 Pennsylvania Ave NW Washington, D.C. 20535-0001 Mr. Colm F. Connolly, Esq. U.S. Attorney, District of Delaware The Nemours Building 1007 Orange Street #700 Wilmington DE 19801

in the foregoing matter with a copy of this Complaint for Mandamus by depositing in the United State's mail a copy of same in a properly address envelope with adequate postage thereon, in the manner prescribed by Rule 5 of the Federal Rules of Procedure. This 16th day of November 2007 ____/s/ Kevin Grubb____ Kevin Grubb, Esquire Attorney I.D. No. DE 4409 Hogan & Vandenberg LLC 4 East 8th Street, #302 Wilmington, DE 19801 Attorney for Plaintiffs (302) 225 2734

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