ISHTIAQ SANAULLAH v. JOHNSON et al., (E.D. NY April 7, 2015) Complaint I-485 Mandamus

1 Nicklaus Misiti 2 Attorney for Plaintiff 3 Law Offices of Nicklaus Misiti 4 40 Wall St. 28th Fl 5 New York, NY 10005 6 P: 212 537 4407 7 F: 212 537 4027 8 E: [email protected] 9

10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF NEW YORK 12

__________________________________________________________________ 13 14

ISHTIAQ SANAULLAH, ) 15 ) 16

Plaintiff ) 17 ) COMPLAINT FOR 18 ) MANDAMUS RELIEF 19 ) 20

-against- ) 21 ) 22

JEH JOHNSON, Secretary, ) 23 Department of Homeland Security; ) 24 and ) Civ. No._________ 25

) 26 LEON RODRIGUEZ, ) 27 Director, U.S. Citizenship and ) 28 Immigration Services; and ) 29

) 30 ANDREA QUARANTILLO, ) 31 Director NY Field Office, ) 32 US Citizenship and ) 33 Immigration Services ) 34

) 35 Defendants. ) 36

__________________________________________________________________ 37 38

1

15-1899

Case 1:15-cv-01899-MKB Document 1 Filed 04/07/15 of 7 PageID #: 1

Plaintiff, Ishtiaq Sanaullah1, through undersigned counsel, alleges as 39

follows: 40

INTRODUCTION 41

1. This is an individual action for mandamus seeking to compel Defendants, 42

Department of Homeland Security (“DHS”) Secretary Jeh Johnson, US 43

Citizenship and Immigration Services (“USCIS”) Director Leon Rodriguez, 44

USCIS NY Field Office Director Andrea Quarantillo to adjudicate an I-485, 45

Application to Adjust Status (“I-485”) filed by Plaintiff on December 14, 46

2010. 47

JURISDICTION 48

2. This Court has jurisdiction under 28 U.S.C. § 1331 (federal question 49

jurisdiction), 5 U.S.C. §§ 555(b) & 706(1), of the Administrative Procedures 50

Act (“APA”); 8 U.S.C. § 1329, Immigration & Nationality Act (“INA”), and 51

28 U.S.C. § 1361, regarding an action to compel an officer of the United 52

States to perform his or her duty. Further this Court has authority to grant 53

declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-2202. 54

3. Costs and attorney fees will be sought pursuant to the Equal Access to Justice 55

Act, 5 U.S.C. § 504, and 28 U.S.C. § 2412(d), et. seq. 56

VENUE 57

1 His name is Sanaullah Ishtiaq but on his immigration documents the names are reversed.

2


4. Venue is properly in this court pursuant to 28 U.S.C. §1391(e) as Plaintiff 58

resides within the district under the jurisdiction of this court, the defendants 59

are officers and employees of the United States of America and no real 60

property is involved in this action. 61

PARTIES 62

5. Plaintiff Ishtiaq Sanaullah properly filed an I-485 on his behalf on December 63

14, 2010. 64

6. Defendant Jeh Johnson is the Secretary of DHS, and this action is brought 65

against her in him official capacity. He is generally charged with 66

enforcement of the INA, and is further authorized to delegate such powers 67

and authority to subordinate employees of DHS. More specifically, the 68

Secretary is responsible for delegating authority in the adjudication of the 69

petition described above. 70

7. Defendant Leon Rodriguez is Director of USCIS, the agency charged with 71

adjudicating asylum applications. This action is brought against Mr. 72

Rodriguez in his official capacity. 73

8. Defendant Andrea Quarantillo is the Director of the New York USCIS Field 74

office. The New York Field Office is the USCIS office charged with 75

adjudicating Plaintiff’s I-485 application. This action is brought against her 76

in her official capacity. 77

3


STATEMENT OF FACTS 78

A. BACKGROUND 79

9. Plaintiff is a citizen and national of Pakistan. 80

10. On December 14, 2010 he filed Form I-485 requesting the US 81

government, specifically defendants’ adjudicate and grant his request for 82

Lawful Permanent Residence (“LPR”). See Exhibit A - Plaintiff’s I-485 83

Receipt Notice. 84

11. Here, respondent has patiently waited more than four years without 85

receiving a decision. 86

12. Plaintiff has made numerous attempts to follow up with defendants to 87

further their adjudication. See Exhibit B – Plaintiff’s Follow Up 88

correspondence. 89

CAUSES OF ACTION 90

Mandamus & APA 91

13. Plaintiff brings this action under the Mandamus Act, 28 U.S.C. §1361, 92

which allows for a writ of mandamus to be issued if the plaintiff has 93

exhausted all other avenues of relief and the defendant owes him a clear, 94

nondiscretionary duty. Heckler v. Ringer, 466 US 602, 616, (1984). The duty 95

owed by the government must be “a legal duty which is a specific, plain 96

4


ministerial act ‘devoid of the exercise of judgment or discretion.’ An act is 97

ministerial only when its performance is positively commanded and so 98

plainly prescribed as to be free from doubt.” Harmon Cove Condo Assoc. v. 99

Marsh, 815 F.2d 949, 951 (3rd Cir 1987). 100

14. Defendants have a non-discretionary duty to act on applications within a 101

reasonable time. Haidari v. Frazier, No. 06-3215, 2006 US Dist. LEXIS 102

89177 (D. Minn. Dec. 8,2006) (noting that while “the decision of whether to 103

grant of deny an adjustment application is discretionary… Plaintiffs are only 104

asking [the] Court to compel Defendants to make any decision.” 105

15. In the instant case, Defendants have a clear, nondiscretionary duty to 106

adjudicate cases before them in a timely manner. Defendants have 107

manifestly been derelict in this duty. 108

16. Plaintiff also brings this action under the APA, which governs judicial 109

review of agency decisions. The APA states that “[a] person suffering legal 110

wrong because of agency action, or adversely affected or aggrieved by 111

agency action within the meaning of a relevant statute, is entitled to judicial 112

review thereof.” 5 U.S.C. §702. “Agency action” includes the failure to act. 113

5 U.S.C. § 551(13). The APA also requires that “[w]ith due regard for the 114

convenience and necessity of the parties or their representatives and within a 115

reasonable time, each agency shall proceed to conclude a matter presented to 116

5


it.” 5 U.S.C. §555(b). The reviewing court has the power to “compel agency 117

action unlawfully withheld or unreasonably delayed.” 5 U.S.C. §706(1). 118

17. Plaintiff has been injured in the failure of defendants to adjudicate his 119

application and hear his interview. He is a Pakistani National and his family 120

currently resides in Pakistan. Until his application is approved he cannot 121

petition to bring his family here and it is difficult to travel to see them. 122

18. Defendants have unreasonably and without substantial justification failed 123

to perform their duty of considering this application in a timely fashion. 124

Defendants have unreasonably, arbitrarily, and capriciously failed to perform 125

their duty and a writ of mandamus is appropriate. 126

19. Plaintiff has exhausted any administrative remedies which may exist. 127

WHEREFORE, the Plaintiff respectfully prays that defendants be cited to 128

appear herein, and the Court: 129

A. Assume jurisdiction of this case; 130

B. Compel the Defendants to adjudicate Plaintiff’s I-485 in a timely manner; 131

C. Grant Plaintiff’s reasonable attorney fees; 132

D. Grant Plaintiff such other relief at law and in equity as this Court deems just 133

and proper. 134

135

6


136

137

Dated:___________ 138

Respectfully submitted, 139 140 141

___________________ 142 Nicklaus Misiti 143

Attorney for Plaintiff 144 Law Offices of Nicklaus Misiti 145

40 Wall St. 28th Fl 146 New York, NY 10005 147

P: 212 537 4407 148 F: 212 537 4027 149

E: [email protected] 150

7

4.7.2015


JS 44 (Rev. 1/2013) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4

of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 400 State Reapportionment’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 ’ 410 Antitrust’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 430 Banks and Banking’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 450 Commerce

& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 460 Deportation’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 470 Racketeer Influenced and’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 840 Trademark Corrupt Organizations

Student Loans ’ 340 Marine Injury Product ’ 480 Consumer Credit (Excludes Veterans) ’ 345 Marine Product Liability LABOR SOCIAL SECURITY ’ 490 Cable/Sat TV

’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 850 Securities/Commodities/ of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud Act ’ 862 Black Lung (923) Exchange

’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 890 Other Statutory Actions’ 190 Other Contract Product Liability ’ 380 Other Personal Relations ’ 864 SSID Title XVI ’ 891 Agricultural Acts’ 195 Contract Product Liability ’ 360 Other Personal Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 893 Environmental Matters’ 196 Franchise Injury ’ 385 Property Damage ’ 751 Family and Medical ’ 895 Freedom of Information

’ 362 Personal Injury - Product Liability Leave Act Act Medical Malpractice ’ 790 Other Labor Litigation ’ 896 Arbitration

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 791 Employee Retirement FEDERAL TAX SUITS ’ 899 Administrative Procedure’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: Income Security Act ’ 870 Taxes (U.S. Plaintiff Act/Review or Appeal of ’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee or Defendant) Agency Decision’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party ’ 950 Constitutionality of’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 State Statutes’ 245 Tort Product Liability Accommodations ’ 530 General’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION

Employment Other: ’ 462 Naturalization Application’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration

Other ’ 550 Civil Rights Actions’ 448 Education ’ 555 Prison Condition

’ 560 Civil Detainee - Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)

’ 1 OriginalProceeding

’ 2 Removed fromState Court

’ 3 Remanded fromAppellate Court

’ 4 Reinstated orReopened

’ 5 Transferred fromAnother District(specify)

’ 6 MultidistrictLitigation

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED INCOMPLAINT:

’ CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)IF ANY (See instructions):

JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Ishtiaq Sanaullah

Kings

Nicklaus Misiti 40 Wall St. Fl 28 New York, NY 10005 P: 212 537 4407

Jeh Johnson, Leon Rodriguez, Andrea Quarantillo, in their official capacities

US GOVT

28 USC 1361

action to compel a decision on an adjustment of status application

Case 1:15-cv-01899-MKB Document 1-1 Filed 04/07/15 Page 1 of 2 PageID #: 8

Nicklaus Misiti

Typewritten Text

4.7.15

Local Arbitration Rule 83.10 provides that with certain exceptions, actions seeking money damages only in an amount not in excess of $150,000,exclusive of interest and costs, are eligible for compulsory arbitration. The amount of damages is presumed to be below the threshold amount unless acertification to the contrary is filed.

I, ______________________, counsel for __________________, do hereby certify that the above captioned civil action isineligible for compulsory arbitration for the following reason(s):

monetary damages sought are in excess of $150,000, exclusive of interest and costs,

the complaint seeks injunctive relief,

the matter is otherwise ineligible for the following reason

DISCLOSURE STATEMENT - FEDERAL RULES CIVIL PROCEDURE 7.1

Identify any parent corporation and any publicly held corporation that owns 10% or more or its stocks:

RELATED CASE STATEMENT (Section VIII on the Front of this Form)

Please list all cases that are arguably related pursuant to Division of Business Rule 50.3.1 in Section VIII on the front of this form. Rule 50.3.1 (a)provides that “A civil case is “related” to another civil case for purposes of this guideline when, because of the similarity of facts and legal issues orbecause the cases arise from the same transactions or events, a substantial saving of judicial resources is likely to result from assigning both cases to thesame judge and magistrate judge.” Rule 50.3.1 (b) provides that “ A civil case shall not be deemed “related” to another civil case merely because the civilcase: (A) involves identical legal issues, or (B) involves the same parties.” Rule 50.3.1 (c) further provides that “Presumptively, and subject to the powerof a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to be “related” unless both cases are still pending before thecourt.”

NY-E DIVISION OF BUSINESS RULE 50.1(d)(2)

1.) Is the civil action being filed in the Eastern District removed from a New York State Court located in Nassau or SuffolkCounty:_________________________

2.) If you answered “no” above:a) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in Nassau or SuffolkCounty?_________________________

b) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in the EasternDistrict?_________________________

If your answer to question 2 (b) is “No,” does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau orSuffolk County, or, in an interpleader action, does the claimant (or a majority of the claimants, if there is more than one) reside in Nassauor Suffolk County?______________________

(Note: A corporation shall be considered a resident of the County in which it has the most significant contacts).

BAR ADMISSION

I am currently admitted in the Eastern District of New York and currently a member in good standing of the bar of this court.Yes No

Are you currently the subject of any disciplinary action (s) in this or any other state or federal court?Yes (If yes, please explain) No

I certify the accuracy of all information provided above.

Signature:____________________________________________

CERTIFICATION OF ARBITRATION ELIGIBILITY

Nicklaus Misiti Plaintiff

none

No

No

Yes


TABLE OF CONTENTS

EXHIBIT A – PLAINTIFF’S I-485 RECEIPT NOTICE

EXHIBIT B - PLAINTIFF’S FOLLOW UP CORRESPONDENCE


EXHIBIT A


EXHIBIT B


AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

))))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk

DOUGLAS C. PALMER


AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

’ I personally served the summons on the individual at (place)

on (date) ; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

’ I returned the summons unexecuted because ; or

’ Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:




__________ District of __________

))))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)






CLERK OF COURT


DOUGLAS C. PALMER



Civil Action No.

PROOF OF SERVICE





on (date) ; or






on (date) ; or



.





Server’s address





__________ District of __________

))))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)






CLERK OF COURT


DOUGLAS C. PALMER



Civil Action No.

PROOF OF SERVICE





on (date) ; or






on (date) ; or



.





Server’s address



ISHTIAQ SANAULLAH v. JOHNSON et al., (E.D. NY April 7, 2015) Complaint I-485 Mandamus

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