Gromova v. USCIS I-360 VAWA MANDAMUS 11-10-15

Case 1:15-cv-06443-RJD Document 1 Filed 11/10/15 Page 1 of 13 PageID #: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

EKATERINA GROMOVA ) )

Plaintiff, ) ) )

-against- ) )

LORETTA LYNCH, U.S. ATTORNEY GENERA L; ) JEH JOHNSON, SECRETARY, DEPARTMENT OF ) HOMELAND SECURlTY; ) LEON RODRlGUEZ, DIRECTOR, USCIS; ) JEAN THARPE, DIRECTOR, VERMONT SERVICE ) CENTER, USCIS; ) PHYLLI S COVEN, DISTRICT ) DIRECTOR, NEW YORK DISTRICT OFFICE, USCIS ; ) USCIS; ) JAMES B. COMEY, DIRECTOR, FEDERAL ) BUREAU OF INVESTIGATION , )

) Defendants. )

_________________________________ )

Docket No.

Immigration File No.: A 205 882 404

COMPLAINT FOR MANDAMUS

Comes now the Plaintiffs, Ekaterina Gromova ("Plaintiff') and by and through

the undersigned attorney, pleads as follows:

INTRODUCTION

This is a civil action brought in the nature of mandamus and for declaratory and

injunctive relief to compel final agency action that has been unlawfully withheld and

unreasonably delayed for more than two and a half years with respect to the adjudication

of I-360 self-petition Under Violence Against Women Act and the 1-485 application for

Lawful Permanent Resident status.

I. JURISDICTION

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1. The action arises under the Immigration and Nationality Act and brought pursuant to

28 U .S.C. § 1361 ("The district courts shall have original jurisdiction of any action

in the nature of mandamus to compel an officer or employee of the United States or

any agency thereof to perform a duty owed to the plaintiff."). Jurisdiction is further

conferred by 8 U.S.C. § 1329 Uurisdiction of the district courts) and 28 U .S.C. §

1331 (federal subject matter jurisdiction).

2. Jurisdiction is also conferred pursuant to 5 U.S.C. §§ 555(b) and 702, the

Administrative Procedure Act ("APA"). The APA requires USCIS to carry out its

duties within a reasonable time. 5 U.S.C. § 555(b) provides that "[w]ith due regard

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

reasonable time, each agency shall proceed to conclude a matter presented to it."

See also Kim v. Ashcroft, 340 F.Supp.2d 384, 393 (SDNY 2004) ("failure to take any

action runs afoul of section 555(b)"). (Emphasis added).

3. Section 242 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252, does

not deprive this Court of jurisdiction. INA § 242(a)(5) provides that "a petition for

review filed with an appropriate court of appeals in accordance with this section,

shall be the sole and exclusive means for judicial review of an order of removal

entered or issued under any provision of this Act[.]" As the present action does not

seek review of a removal order, but is simply an action to compel users to

adjudicate the Plaintiffs unreasonably delayed application, this Court retains

original mandamus jurisdiction under 28 U.S.C. § 1361.

4. Furthennore, INA § 242(a)(2)(B) provides that no court shall have jurisdiction to

review either (i) "any judgment regarding the granting of' various forms of relief

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from removal, or (ii) "any other decision or action of the Attorney General or the

Secretary of Homeland Security the authority for which is specified ... to be in the

discretion of the Attorney General or the Secretary of Homeland Security[.]"

Because adjudication of a properly filed immigration petition and adjustment of

status application is neither a judgment regarding the granting of relief from removal

nor a decision or action that is specified to be in the discretion of the Attorney

General or the Secretary of Homeland Security, the Court retains original mandamus

jurisdiction over this claim. See Arar v. Ashcroft, 414 F.Supp.2d 250, 267-73

(E.D.N. Y. 2006) (citing, inter alia, Sepulveda v. Gonzales, 407 F. 3d 59 (2d Cir.

2005).

5. Indeed, numerous courts have found that immigration authorities have a non

discretionary duty to adjudicate applications. See American Academy of Religion v.

Chertofl 06 CV 588,2006 WL 1751254, *16 (S.D.N.Y. June 23, 2006) (holding that

the regulation stating that consular officials either "issue or refuse" a completed visa

creates a duty to adjudicate); Dabone v. Thornburgh, 734 F.Supp. 195, 200 (E.D.PA.

1990) (holding the Board of Immigration Appeals owed plaintiff a duty to adjudicate

his motion to reopen an exclusion proceeding); Yu v. Brown,36 F.Supp.2d 922, 931-

32 (D.N.M 1999) (holding that the INS owed plaintiff a duty to process her

application for a change of status to permanent resident); Nigmadzhanov v. Mueller,

550 F. Supp. 2d 540 (S.D.N. Y. 2008)("[t]his duty can be implied from Congress'

explicit delegation of the power. .. to process form 1-485 applications, in conjunction

with the general § 555(b) requirement that an agency complete its delegated tasks

with a reasonable time) .... The absence of a duty to adjudicate at all defies logic.")

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6. Furthermore, the FBI has a mandatory duty, by implication, to complete the

background check in connection with adjustment of status application. See Kaplan v.

Cherto(f: 481 F Supp. 2d 370, 400-01 (E.D. Pa. April 16, 2007), Obeid v. ChertofL

2008 U.S Dist. LEXIS 23748 (E.D. Mich. Mar. 26, 2008)

7. Both the regulations and the INA provide numerous examples of duties owed by

USCIS in the adjustment of status process. 8 U.S.C. § 1103 provides that "[t]he

Secretary of Homeland Security shall be charged with the administration and

enforcement of this Act and all other laws relating to the immigration and

naturalization of aliens[.]" (Emphasis added). 8 U.S. Code § 1154 (a)(l )(J) states

with regard to self-petitions that "[i]n acting on petitions ... the Attorney General

shall consider any credible evidence relevant to the petition."

8. The Code of Federal Regulations provides that "[u]pon receipt of a self-petition ...

the Service shall make a determination as to whether the petition and the supporting

documentation establish a "prima facie case"" 8 C.F.R. § 204.2(c)(6)(i) (emphasis

added). The Code further provides that "[i]f the Service determines that a petitioner

has made a "prima facie case," the Service shall issue a Notice of Prima Facie Case

to the petitioner. Such Notice shall be valid until the Service either grants or denies

the petition." 8 C.F.R. § 204.2(c)(6)(iii) (emphasis added). The INA provides that

"[i]n acting on petitions . . . the Attorney General shall consider any credible

evidence relevant to the petition." INA § 204(a)(l)(J). Section 204(b) of the INA

provides that "[a ]fter an investigation of the facts in each case the Attorney General

shall, if he determines that the facts stated in the petition are true and that the alien in

behalf of whom the petition is made is an immediate relative specified in section

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20l(b) of this Act. .. approve the petition". Moreover when an "officer denies an

application or petition ... the officer shall explain in writing the specific reasons for

denial". 8 C.F.R. § 103.3(a)(l)(i).

9. Thus statute uses the term "shall" expressly requiring the agency to adjudicate a self

petition, where the conditions, prescribed by the law have been satisfied. Congress

clearly contemplates that an investigation will be conducted and a decision rendered.

I 0. Moreover, the Congressional intent is implicitly acknowledged in the language of

pertinent regulations by the use of a term "will". Specifically 8 CFR § 204.2 (c)(2)

states that "[t]he Service will consider. .. any credible evidence relevant to the

petition." 8 C.F.R. § 204.2(c)(3)(i) states that "[i]f the self-petitioning spouse will

apply for adjustment of status ... the approved petition will be retained by the

Service" and "[i]f the self-petitioner will apply for an immigrant visa abroad, the

approved self-petition will be forwarded to the Department of State's National Visa

Center." The regulations further provide that "[i]f the self-petition is denied, the self

petitioner will be notified in writing of the reasons for the denial and of the right to

appeal the decision. 8 C.F.R. § 204.2(c)(3)(ii)." (emphasis added).

11. Thus, the INA and the regulations issued pursuant to it impose on the executive

branch a clear duty to either grant or deny self-petition. The agency is not authorized

to hold onto the petition and make no decision.

12. The regulations further provide that "[ e )ach applicant for adjustment of status ...

shall be interviewed by an immigration officer." 8 C.F.R. § 245.6 (emphasis added) .

The regulations further provide that "the applicant shall be notified of the decision of

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the director and, if the application is denied, the reasons for the denial." 8 C.F.R. §

245.2(a)(5)(i) (emphasis added).

13. The language of the statute and the above-cited regulations is mandatory, not

discretionary, and the Defendants owe a "clear nondiscretionary duty" to the

Plaintiffs to adjudicate I-485 application. Hoo Lao v. Ridge. No. 04 CV 5553. 200 7

U.S. Dist. LEXIS 17822. 2007 WL 813000. at * 3 (E.D.N. Y Mar. 14. 2007).·

14. As set forth below, the delay in processing of the Plaintiffs properly filed self

petition and application for adjustment of status is unreasonable.

II. VENUE

15. Venue is proper in this Court because the Plaintiff resides within the jurisdiction of

this Court. 28 U.S.C. § 139l(e).

III. PARTIES

16. Plaintiff Ekaterina Gromova is a citizen of Russia, resides in the United States in

Brooklyn, NY, within the Eastern District ofNew York.

17. Defendant Loretta Lynch is Attorney General of the United States and this action is

brought against her in her official capacity. She is charged with enforcement of the

Immigration and Nationality Act, and is further authorized to delegate such powers

and authority to subordinate employees of the Department of Justice 8 U.S.C.

§ 11 03(a). Department of Homeland Security, formerly the Immigration and

Naturalization Services, is an agency within the Department of Justice to whom the

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Attorney General's authority has m part been delegated and IS subject to the

Attorney General ' s supervision.

18. Defendant Jeh Johnson is the Secretary of the Department of Homeland Security and

this action is brought against him in his official capacity. In his capacity he has

responsibility for the administration of the immigration laws pursuant to 8 U.S .C.

§ 1103.

19. Defendant Leon Rodriguez is the Director of the United States Citizenship and

Immigration Services ("USCIS") within DHS and this action is brought against him

in his official capacity. In this capacity he has responsibility for the administration of

the immigration laws pursuant to 8 U.S.C. § 1103.

20. Defendant Jean Tharpe is the Director of Vermont Service Center within DHS and

this action is brought against him in his official capacity. In this capacity he is

responsible for the administration of immigration benefits and services including the

processing of family-based immigration petitions.

2 1. Defendant Phyllis Coven is the District Director ofthe New York District Office of

the USCIS and this action is brought against her in her official capacity. In that

capacity, she has responsibility for the adjudication of immigration applications filed

with the New York District Office or transferred to the New York District Office.

22. Defendant James B. Corney is the Director of Federal Bureau of Investigation and

this action is brought against him in his official capacity. In this capacity he has

responsibility for providing information regarding security clearances to CIS in

connection with applications under the immigration laws.

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IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES

23. No exhaustion requirements apply to the Plaintiffs complaint for a Writ of

Mandamus. The Plaintiff is owed a duty - the adjudication of the properly filed self

petition and application to adjust status, which have been duly filed with USCIS.

Defendants have unreasonably delayed and failed to adjudicate the Plaintiffs self

petition and the application for adjustment of status for more than two and a half

years. The Plaintiff has no administrative remedies, as there are no administrative

remedies provided for neglect and failure to comply with agency regulations.

V. APPLICABLE PERMENANT RESIDENCE PROCEDURES

24. In general, the Act allocates immigrant visas based upon preferences grounded in

family or employment relationships, as described in Section 201 and 203 of the Act,

8 U.S .C. §§ 1151 , 1153. An alien spouse of abusive citizen of the United States may

file self-petition for classification as an immediate relative under section 201 (b) of

the Act. For all practical purposes this preference is not subject to quota limitations.

To obtain lawful permanent residence through abusive United State citizen, an I-360

preference self-petition is filed with USCIS under Section 204 and 245 of the Act.

Pursuant to the Section 204.2 of the Act a self-petitioning alien must submit

evidence of residence in the United States, evidence of good-faith marriage to an

abusive U. S. citizen, evidence that the alien has been battered by, or has been the

subject of extreme cruelty perpetrated by the U.S. citizen during the marriage and

evidence of good moral character. Upon receipt of a self-petition the Service makes

a determination as to whether the petition and the supporting documentation

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establish a "prima facie case". If the Service determines that a self-petitioner has

made a "prima facie case," the Service issues a Notice of Prima Facie Case to the

petitioner. Such Notice is valid until the Service either grants or denies the self

petition. I-485 application for adjustment of status to that of a permanent resident

may be filed concurrently with the I-360 self-petition or at a later time based on the

pending I-360 self-petition. If the self-petition is approved petition will be retained

by the Service. If the self-petitioner will apply for an immigrant visa abroad, the

approved self-petition will be forwarded to the Department of State's National Visa

Center. After approval of 1-360 self-petition, an applicant for adjustment of status is

interview to determine eligibility for adjustment of status.

VI. CAUSE OF ACTION

25. Plaintiff is entitled to adjust her status to that of a lawful permanent resident under

Section 245 of the INA based on her I-360 self-petition. The Plaintiff was born in

Russia, and came to the United States on May 20, 2010, on a J-1 student-exchange

visa. The Plaintiff is not inadmissible on any ground.

26. Plaintiff entered a marriage with a U.S. citizen William Walker Watson on April 29,

2011. The Plaintiff suffered physical and emotional abuse at the hands of her U.S.

citizen spouse. On March 27, 2013, the Plaintiff filed an 1-360 self-petition. (Please

see Exhibit A). On July 12, 2013, the Plaintiff filed an 1-485 application for

adjustment of status to that of a permanent resident based on the pending I-360 self

petition. (Please see Exhibit B). The Plaintiff duly appeared for biometric

appointment in connection with the I-485 application.

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27. According to the USCIS's published case adjudication Processing Time Information

for the Vermont Service Center (VSC), which has jurisdiction over all I-360 self

petitions based on domestic abuse, the agency's current processing time for 1-360

self-petitions is 5 months. The current procession times for 1-485 by the New York

City Field office, which has jurisdiction over family-based 1-485 applications is 10

months. The Plaintiffs 1-360 self-petition and the I-485 have been pending for more

than two and a half years. The adjudication of the Plaintiffs 1-360 self-petition and

1-485 application clearly extends far beyond the USCIS's normal processing

timeframe. (Please see Exhibit C)

28. Plaintiff has made number of inquiries with the USeiS regarding her case. However

no final action was taken on the case.

29. Specifically, on October 28, 2014, the Plaintiff through the undersigned submitted a

written request for decision to VSC. VSC neither acknowledged the request nor

acted on the case. (Please see Exhibit D).

30. On January 14, 2015, the Plaintiff through the undersigned submitted a written

request for decision to VSC by certified mail. VSC neither acknowledged the request

nor acted on the case. (Please see Exhibit E).

31. On July 15, 2015, the Plaintiff made an in-person inquiry with the USeiS and was

advised to make a written inquiry to VSC through her attorney. However we

submitted two prior written inquiries and received no information. (Please see

Exhibit F)

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32. On September 3, 2015 , the Plaintiff through the undersigned submitted an inquiry

via email to VSC. No action was taken regarding the inquiry by the VCS. (Please see

Exhibit G)

33. The lengthy delay by the Defendants in adjudication takes great toll on the Plaintiff.

The Plaintiff suffered domestic violence at the hands of her U.S. citizen spouse. She

escaped the abuse and began healing process. However the uncertainty of her current

status and the lengthy delay not only prevents her from recovery but also exacerbates

her condition. The Plaintiff didn' t see her mother for many years. Plaintiffs

grandfather and uncle passed away in 2014 and she could not travel for the funeral.

The Plaintiff suffers from the separation with her family and inability to be around

during hard times. The Plaintiff is prevented from obtaining a better employment

because of lack of permanent resident status in the United States since prospective

employers are looking for people for a long term commitment. The uncertainty of

her situation also prevents her from obtaining a mortgage and improving her living

conditions. The Plaintiff wants to go to school and study marketing. However she

cannot afford it because she would have to pay twice more in tuition as a non

resident student.

34. The Defendants have sufficient information to determine the Plaintiff s eligibility for

requested immigration benefits. Moreover the USCIS never requested any additional

evidence to show eligibility. Notwithstanding, the Defendant USCIS has

unreasonably delayed and refused to adjudicate the Plaintiffs I-360 self-petition and

1-485 application to adjust status. The Defendants' inaction in the Plaintiffs case has

caused inordinate and unfair amounts of stress, expense, and hassle for the Plaintiff,

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who is entitled to a decision on her self-petition and application to adjust status

without further unreasonable delay.

35. The Defendants have unreasonably failed to issue a decision on Plaintiff's

immigration case. Since more than two and a half years elapsed since the Plaintiff

filed her 1-360 self-petition and the 1-485 application, she respectfully requests that

this Court instruct USCIS to adjudicate the case without further delay.

VII. CLAIMS

36. The Plaintiff has fully complied with all of the statutory and regulatory requirements

for seeking adjustment of status based on 1-360 self-petition, including submission of

all necessary forms and supporting documents.

37. The Defendants have unreasonably failed to adjudicate the Plaintiffs l-360 self

petition and 1-485 application for adjustment of status for more than two and a half

years, thereby depriving the Plaintiff of her right to a decision under the IN A.

38. The continued failure of the Defendants to adjudicate the Plaintiffs 1-360 self

petition and I-485 application for adjustment of status violates the Act and the APA,

5 U.S.C. § 555(b), which requires federal agencies to conclude matters with

reasonable promptness. Under the APA, U.S.C. § 706(1), this Court has the power to

compel agency action unlawfully withheld or unreasonably. The continuing failure

of the Defendants to take action required by law is subject to correction by

mandamus under 28 U.S.C. § 1361.

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39. Defendants owe Plaintiff the duty to act upon her 1-360 self-petition and 1-485

application for adjustment of status pursuant to the INA and have unreasonably

failed to perform that duty.

40. The Plaintiff has no alternative means to obtain adjudication of her 1-360 self-

petition and 1-485 adjustment application and she has the right to issuance of the writ

of mandamus.

41. Defendants' delay is without justification and has forced the Plaintiff to resort to this

Court for relief, and the Plaintiff is entitled to attorney's fees pursuant to the Equal

Access to Justice Act ("EAJA"), 28 U.S .C. § 2412(d)(2).

VIII. PRAYER

WHEREFORE, Plaintiff prays that the Court:

( 1) Compel the Defendants and those acting under him to perform their

duty to adjudicate the Plaintiffs 1-360 self-petition and I-485 application without further

delay;

(2) Grant such other and further relief as this Court deems proper under

the circumstance; and

(3) Award the Plaintiff their attorney's fees and costs of court pursuant to

the Equal Access to Justice Act (EAJA) or other applicable law.

Dated : Brooklyn, New York November 9, 2015

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Gromova v. USCIS I-360 VAWA MANDAMUS 11-10-15