Thursday, April 29, 2010

Mandamus Lawsuit against USCIS for Naturalization - Sample pleadings

2006 WL 4031578 (N.D.Ill.) (Trial Pleading)
For docket see 1:06cv06999


United States District Court, N.D. Illinois.
Shuojun LI, Plaintiff,
v.
Michael CHERTOFF, Secretary of the Department of Homeland Security; Emilio Gonzalez, Director of US Citizenship and Immigration Services; Robert S. Mueller, III Director of Federal Bureau of Investigation; Ruth A. Dorochoff, Director of Chicago District Office, US Citizenship and Immigration Services Alberto Gonzales, US Attorney General, US Department of Justice, Defendants.

No. 06CV6999.

December 19, 2006.


Petition For Hearing on Naturalization Application Under 8 U.S.C. § 1447 (b)

Respectfully submitted, Shuojun Li, Petitioner, Pro Se, 390 Churchill Lane, Gurnee, IL 60031, (847) 571-3104.



Judge Zagel.
Mag. Judge Ashman.

1. Shuojun Li, Plaintiff, Pro Se, a lawful permanent resident of the United States, and for cause of action would show unto the court the following:

2. This action is brought for a hearing to decide Plaintiff's naturalization application due to Defendants' failure to adjudicate the application within 120 days after the first examination in violation of the Immigration and Nationality Act (“INA”) § 336 (b) and 8 U.S.C. § 1447 (b).



PARTIES


3. Plaintiff Shuojun Li is a lawful permanent resident of the United States. Plaintiff filed the N-400 application (Application for Naturalization) on November 14, 2005. Plaintiff applied naturalization to the United States and was interviewed for naturalization application on March 28, 2006. Plaintiff has passed the tests of English and U.S. history and government in the naturalization interview. Defendants have failed to make a decision on application within 120 days after the examination.

4. Defendant Michael Chertoff is the secretary of the Department of Homeland Security (DHS), and this action is brought against him in his official capacity. He is generally charged with enforcement of the Immigration of Nationality Act, and is further authorized to delegate such powers and authority to subordinate employees of the DHS. 8 U.S.C. § 1103(a); 8 C.F.R. § 2.1.

5. Defendant Emilio Gonzalez is the Director of US Citizenship and Immigration Service (USCIS), an agency within the DHS to whom the Secretary's authority has in part been delegated and is subject to the Secretary's Supervision. Defendant Director is generally charged with the overall administration of benefits and immigration services. 8 C.F.R. § 100.2 (a).

6. Defendant Ruth A. Dorochoff, Chicago District Director, is an official of the USCIS generally charged with supervisory authority over all operation of the USCIS with his district with certain specific exception not relevant here. 8 C.F.R. § 100.2 (d)(2)(ii). As will be shown, Defendant Director is the official with whom Plaintiff's authorization application remains pending.

7. Defendant Robert S. Mueller, III, is the Director of the Federal Bureau of Investigations (FBI), the law enforcement agency the conducts security clearance for other U.S. government agencies, such as USCIS. As will be shown, Defendant has failed to complete the security clearances on Plaintiff's cases.

8. Defendant Alberto Gonzales, is the Attorney General of the US Department of Justice. Pursuant to 8 U.S.C. § 1103, he is charged with controlling determination of all issues of law pertaining to immigration and with representing the United States of America in various legal matters before this court.



JURISDICTION


9. Jurisdiction in this case proper under INA § 336 (b) and 8 U.S.C. § 1447 (b). Relief is requested pursuant to said statutes.



VENUE


10. Venue is proper in this court, pursuant to 8 U.S.C. § 1447 (b), in that plaintiff may request a hearing on the matter in the District where Plaintiff resides.



CAUSE OF ACTION


11. Plaintiff is a lawful permanent resident (#A 077 856 969) of the United States. Plaintiff filed an N-400, Application of Naturalization with the U.S. Citizenship and Immigration Services on November 14, 2005 and was interviewed by USCIS's Chicago District Office on March 28, 2006. (Exhibit 1)

12. Plaintiff has passed the tests of English and U.S. history and government in the naturalization interview on March 28, 2006. Plaintiff has also submitted additional documents (i.e., photographs in the correct format) in time according to form N-14 and satisfied the process requirement. (Exhibit 3)

13. Based on N-652, Naturalization Interview Results dated March 28, 2006 and INFOPASS application status inquiry dated December 13, 2006, Plaintiff was informed that his application of Naturalization is still pending for the completion of all necessary background checks. (Exhibit 2 and 4)

14. Plaintiff's application for naturalization has now remained un-adjudicated for more than 120 days from the date of interview.

15. Defendants have sufficient information to determine Plaintiff's eligibility pursuant to applicable requirements.

16. Defendants, in violation of 8 U.S.C. § 1447 (b), have failed to make a determination on plaintiff's naturalization application within the 120 days after the date of examination.

17. 8 U.S.C. § 1447 (b) provides as follows: “If there is a failure to make a determination under section 335 [8 U.S.C. 1446] before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.” 8 U.S.C. § 1447 (b) starts the accrual of the 120-day period “after the date on which the examination is conducted.” There is no suggestion or intimation in this language the accrual period commences only when USCIS has completed its investigation. 8 C.F.R. 335.2 details the conduct of examination. It does not include the acquisition of national security checks or background information as part of the examination.



PRAYER


18. WHEREFORE, in view of the arguments and authority noted herein, Plaintiff respectfully prays the Defendants be cited to appear herein and that, upon due consideration, the Court enter an order adjudicating the naturalization application. In the alternative, the Court may remand requiring Defendants to immediately adjudicate Plaintiff's naturalization application.

Dated: December 19, 2006

Respectfully submitted,

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Shuojun Li, Petitioner, Pro Se

390 Churchill Lane

Gurnee, IL 60031

(847) 571-3104

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