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Anjum v. Hansen

March 28, 2007

GHULAM ANJUM PLAINTIFF,
v.
MARK HANSEN ET AL., DEFENDANTS.



The opinion of the court was delivered by: George C. Smith, Judge United States District Court

Magistrate Judge Kemp

OPINION AND ORDER

Plaintiff, a lawful permanent resident, brings this complaint seeking for this Court to compel the adjudication of his immigration proceedings to remove the conditions on his residency and apply for naturalization. Defendants move to dismiss for lack of subject matter jurisdiction and failure to state a valid claim under Federal Rules of Civil Procedure (FRCP) 12(b)(1) and 12(b)(6) respectively; in the alternative, Defendants move to remand for administrative adjudication of Plaintiff's applications. For the reasons below, this Court determines that it has jurisdiction and DENIES Defendants' Motions to Dismiss (Doc. 9).

I. FACTS

In considering Defendants' Motions to Dismiss, the Court accepts as true the well-pleaded factual allegations set forth in the Complaint.

Plaintiff Ghulam Anjum is a forty-eight-year-old citizen of Pakistan and has been living in the United States since October 2000. Since October 2001, he has been a conditional lawful permanent resident, courtesy of his marriage to an American citizen April 23, 2001 (Compl. at 3).

Plaintiff has commenced the proper procedures with the United States Citizenship and Immigration Service (CIS), formerly the Immigration and Naturalization Service (INS), to adjust his immigration status. Namely, Plaintiff filed (1) an I-751 form, received July 10, 2003, to remove the conditions on his residency status; and (2) an N-400 naturalization form, received Oct. 26, 2004, to apply for citizenship (Compl. at 3--4). The Lincoln, Nebraska CIS Service Center (NSC) received and transferred these proceedings to the Columbus, Ohio CIS office (Compl. at 4).

Thus far, the CIS has failed to process Plaintiff's applications (Compl. at 3--4). More than forty-four months have passed since Plaintiff filed the I-751 Petition; twenty-nine months have passed since the filing of the N-400 Application for Naturalization. CIS has failed to schedule an interview or adjudicate the I-751; meanwhile, CIS cancelled both interviews scheduled for the N-400 Application (Compl. at 4; see also Pl. Ex. C).

Defendants, representatives of CIS and the U.S. Department of Homeland Security (DHS), assert that practical and security reasons have slowed the adjudication process of these forms (See Def.'s Mot. to Dis. at 2--5). They claim that Plaintiff's I-751 "is pending at NSC," awaiting the completion of background security checks. (Def.'s Mot. to Dis. at 2). Likewise, they claim the N-400, which entails more extensive background checks and a mandatory interview of the applicant, awaits completion of the statutory background security checks before the mandatory interview can be scheduled and the adjudication process can proceed (Def.'s Mot. to Dis. at 2--3). As of the time of the Complaint, Defendants claim that more than 70,000 I-751 petitions and 500,000 N-400 applications pend final CIS adjudication (Def.'s Mot. to Dis. at 2--3).

Claiming an "unreasonable delay" of nearly three years for the I-751 and more than 18 months for the N-400 (Compl. at 4), Plaintiff filed a complaint May 1, 2006 seeking declaratory relief from this Court compelling CIS officials to complete review and adjudication of Plaintiff's residency and naturalization applications (Compl. at 6). The Complaint asserted this Court had jurisdiction to provide the relief sought under 28 U.S.C. §§ 1331, 1361 (the latter provision from the Mandamus and Venue Act of 1962), 5 U.S.C. § 701 et. seq. (Administrative Procedures Act), and 28 U.S.C. § 2201 et seq. (Declaratory Judgment Act) (Compl. at 3).

Defendants move to dismiss the claim for lack of subject matter jurisdiction pursuant to FRCP 12(b)(1) and failure to state a valid claim under FRCP 12(b)(6). In the alternative, Defendants ask this Court to remand the proceedings pending adjudication of the applications by CIS (Def.'s Mot. to Dis. at 1).

II. DISCUSSION

Plaintiff seeks declaratory relief "in the nature of mandamus" compelling CIS adjudication of his immigration proceedings to remove the conditions on his permanent residence status and apply for citizenship (Compl. at 1, 6).

Defendants have moved to dismiss for lack of subject matter jurisdiction and failure to state a valid claim. In the alternative, Defendants seek remand to CIS to continue processing Plaintiff's claims in the manner heretofore applied.

This case comes as a matter of first impression in this Circuit. One District Court in the Southern District of Ohio entertained a similar request for mandamus relief on the delayed adjudication of a post-interview N-400 application, but the plaintiff sought a different form of statutory relief. See Affaneh v. Hansen, No. C-3-06-267, 2007 WL 295474 *4--5 (S.D. Ohio, Jan. 29, 2007) (finding subject matter jurisdiction pursuant to 8 U.S.C. ยง 1446(b), but remanding to CIS). However, relying on the persuasive authority of the majority of District Courts to have handled such ...


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