Free Complaint - District Court of Delaware - Delaware

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UNITED STATES DISTRICT COURT FOR THE DISTRICT COURT OF DELAWARE Mohammed Mostafa, 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 43 403 798

1.

I. INTRODUCTION This is a civil action brought to compel Defendants and those acting under

the Defendants' direction to adjudicate the application for adjustment of status filed

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pursuant to §245 of the Immigration and Nationality Act, 8 U.S.C. §1255, by Plaintiff on December 9 1999. 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 application for adjustment of status 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, Mohammed Mostafa, is an adult individual who is a national

of Bangladesh and resides lawfully in the United States at 2708 Doris Dr. Wilmington, DE 19803. 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 immigrant visa . 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

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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 May 8, 2003. 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. Most recently (June 21, 2007) USCIS provided a report indicating that Plaintiff's case was pending background checks 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

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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. 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.
th INS, 219 F.3d 1166 (10 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 application for adjustment 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.

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/s/ Kevin Grubb _____________________________ Kevin Grubb, Esquire Attorney I.D. No. Hogan & Vandenberg LLC 4 East 8th Street, #302 Wilmington, DE 19801 (302) 345-9383 Date: September 11, 2007

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UNITED STATES DISTRICT COURT FOR THE DISTRICT COURT OF DELAWARE Mohammed Mustafa, 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 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

COMPLAINT FOR MANDAMUS UNDER 28 U.S.C. §1361 NO. A 43 403 798

Defendants.

Index of Evidence Documents The Plaintiff, by and through undersigned counsel, offers the following documents into evidence in the above-referenced proceedings:

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1. 2. 3. 4. 5.

June 21, 2007 Response from USCIS Naturalization Interview Results Letter to Sen. Tom Carper from Ms. Jill Shute on behalf Plaintiff Response from Senator Carper Identification (Delaware Driver's License and Permanent Resident Card)

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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 11th day of September 2007 ____/s/ Kevin Grubb____ Kevin Grubb, Esquire Attorney I.D. No. DE 4409 Hogan & Vandenberg LLC th 4 East 8 Street, #302 Wilmington, DE 19801 Attorney for Plaintiffs

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(302) 225 2734

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