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Kamal v. Gonzales

March 3, 2008

AMER FAROUQ ADIB KAMAL, PLAINTIFF,
v.
ALBERTO R. GONZALES, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Marvin E. Aspen, District Judge

MEMORANDUM ORDER AND OPINION

Plaintiff Amer Kamal ("Kamal") filed a complaint seeking to compel Defendants Michael Mukasey, Attorney General of the United States; Michael Chertoff, Secretary of the Department of Homeland Security; Emilio Gonzales, Director of the United States Bureau of Citizenship and Immigration Services ("USCIS"); Ruth Dorochoff, Chicago District Director of the USCIS; and Robert Mueller, Director of the Federal Bureau of Investigation ("FBI") (collectively, the "Defendants"), "to complete the processing of [his] properly filed and approvable application for adjustment of status based on his 2002 marriage to a United States citizen." (Compl. at 1). Kamal seeks mandamus relief under 28 U.S.C. § 1361, and relief under 5 U.S.C. § 551 et seq., the Administrative Procedure Act ("APA"). (Id. ¶ 1). Presently before us is Defendants' motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim. For the reasons set forth below, we deny Defendants' motion to dismiss.

BACKGROUND

Kamal, a national and citizen of Jordan, entered the United States in 2000 as an international student. (Id. ¶ 4). In 2002, Kamal received a Master's degree from the University of Idaho, and in May of that year, married Lynn Anne Kamal, a U.S. citizen. (Id. ¶¶ 4, 10). Shortly thereafter, on August 6, 2002, Kamal applied for legal permanent resident status based on his marriage to a U.S. citizen with the Immigration and Naturalization Service ("INS").*fn1 (Id. ¶ 10). In December 2002, Kamal and his wife were interviewed for the first time regarding Kamal's "adjustment of status" application and "were told that they could expect to receive [his] permanent resident status and 'green card' within six months." (Id. ¶ 10).

Approximately seven months later, in July 2003, Kamal inquired with the USCIS regarding his case and was told that his application was pending an FBI background check. (Id. ¶ 12). In February 2004, the Kamals moved to Columbus, Ohio from Spokane, Washington, and on August 2, 2004, both were re-interviewed on Kamal's adjustment of status application in Columbus. (Id. ¶¶ 13-14). At that time, USCIS again informed Kamal that the FBI background check was still pending, but that he could expect approval of the application and his green card within one year. (Id. ¶ 14). Since this second interview, Kamal has regularly inquired on the status of his application with the USCIS: in February 2005, every four to six weeks between April 2005 and January 2006, in July 2006, in September 2006, and in June 2007. (Id. ¶¶ 16, 18, 20, 22, 25). Each time, USCIS has told Kamal that his application was still pending the background check. (Id. ¶¶ 16, 18, 20, 22).

In addition to inquiring with the USCIS directly, Kamal has requested assistance from several members of Congress regarding his application. While residing in Ohio, Kamal corresponded with aides from the Office of Congresswoman Deborah Price in April 2005 and the Office of Senator George Voinavich in October 2006. (Id. ¶¶ 17, 23). After Kamal relocated to Chicago, Illinois in May 2007, he again reached out to his Congressional representatives, Senator Barack Obama and Congresswoman Jan Schakowsky. (Id. ¶ 28).

While Kamal has been employed since 2002 with various companies, and currently with Microsoft, he has had to re-apply for an employment authorization annually because of his alien status. (Id. ¶¶ 12, 13, 15, 19, 24). Though USCIS granted these employment authorizations between 2003 and 2007, delays in processing the renewal in both 2004 and 2007 required Kamal's employers to place him on an unpaid leave of absence in each instance. (Id. ¶¶ 15, 25, 27). In addition to applying for annual employment authorizations, Kamal has complied with other USCIS requirements, including providing fingerprints on at least three separate occasions. (Id. ¶¶ 13, 20, 24). Indeed, USCIS has had to re-fingerprint Kamal twice because, given the delay in processing Kamal's application, each preceding set expired. (Id. ¶¶ 20, 24).

On August 28, 2007, more than five years after initially filing his adjustment of status application, Kamal brought a claim seeking to compel Defendants to adjudicate that application under the Mandamus Act, 28 U.S.C. § 1361, and the APA, 5 U.S.C. § 551 et seq. Kamal alleges that the Defendants' failure to process and adjudicate his application has created "ongoing hardships," including having to reapply for extensions of employment authorization, having to pay filing fees repeatedly, and "being deprived of the benefits of lawful permanent resident status." (Id. ¶ 29).

STANDARD OF REVIEW

The purpose of a motion to dismiss under either Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). Rule 12(b)(1) requires dismissal of claims over which the federal court lacks subject matter jurisdiction. Jurisdiction is the "power to decide," and must be conferred upon the federal courts. In re Chi., Rock Island & Pacific R.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). The plaintiff faced with a 12(b)(1) motion to dismiss bears the burden of proving that the jurisdictional requirements have been met. Kontos v. U.S. Dep't. of Labor, 826 F.2d 573, 576 (7th Cir. 1987).

A court may grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007); see Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618-19 (7th Cir. 2007); EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007). A sufficient complaint need not give "detailed factual allegations," but it must provide more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 127 S.Ct. at 1964-65 (2007); Killingsworth, 507 F.3d at 618-19. These requirements ensure that the defendant receives "fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 127 S.Ct. at 1964 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102 (1957)); see also Fed. R. Civ. P. 8(a). In evaluating a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Thompson v. Ill. Dep't. of Prof'l Reg., 300 F.3d 750, 753 (7th Cir. 2002).

ANALYSIS

Kamal argues that we have mandamus jurisdiction over his claim pursuant to 28 U.S.C. § 1361, and jurisdiction under § 706 of the APA, which authorizes a reviewing court to "compel agency action unlawfully withheld or unreasonably delayed." Defendants have filed a Rule 12(b)(1) motion to dismiss Kamal's complaint for lack of subject matter jurisdiction and, alternatively, a Rule 12(b)(6) motion to dismiss. We will first address the issue of whether we have jurisdiction to ...


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