Taking on the big guys

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No.          
     1:06-CV-01023     


          , Plaintiff,
Zuhair     T.     Mahd
v.          
Department Of Homeland Security Director     CHERTOFF, MICHAEL,     ,
          
US Citizenship And Immigration Services Director     GONZALEZ, EMILIO T.     ,

Federal Bureau Of Investigation (FBI) Director     MUELLER, ROBERT S.     ,
          
USCIS Denver District Office director       ORTIZ, MARIO       ,
          
          ,
          
          ,
          
          , Defendant(s).

(List each named defendant on a separate line.)



COMPLAINT

Petition for a hearing on naturalization under 8 U.S.C. §1447(b).‎

Yes my dear reader, the above is the cover sheet for my law suit filed in the tenth circuit federal district court in Colorado on May 30, 2006 against the United States Of America.  Specifically, I am suing the United States Department Of Homeland Security (DHS), The United States Citizenship And Immigration Service (USCIS), and the Federal Bureau Of Investigation (FBI).  The story even got local TV coverage, where there is an article on the web site of the TV station as well as a video of the actual TV story.

Reading the web article and watching the news story above will give you an idea as to why I’m filing my grievance, but to summarize, I have applied for my US citizenship after fulfilling all the necessary requirements, was interviewed and passed all necessary tests including a criminal background check, but was told that my application couldn’t be approved because of further security checks.  This was in December of 2004, almost a year and a half ago.

According to section 8 U.S.C. 1447(b) of the United States Code, USCIS has to make a ruling on an application no later than 120 days from the date of the interview.  Since more than 120 days have passed since my interview was conducted, USCIS is in breach of Federal law, the law which governs the whole United States and which applies equally to individuals as well as the government.

Looking at the list of defendants above, I must admit I was scared at first.  Here I am, a blind foreign immigrant, someone who grew up in a poor country and slept on the floor with seven other brothers and sisters, filing a case and summoning the directors of DHS, USCIS and the FBI to court, to appear before a judge through their attorney (the US Attorney General, acting through the US District Attorney in Colorado) to address my grievance!  I couldn’t believe myself as I was writing the summons, but it is really true, I am doing that.  I’m not the first to have done that either – many immigrants, and in fact many people through out the history of this country have done that, are doing that right now, and will hopefully continue to do that!

It is not unreasonable to say that the foreign policy and the actions of many western countries around the world over the past couple of hundred years gave democracy a bad name.  Any Iraqi will tell you what they think of Democracy right now, after they finish burying a relative that is, and so will any Palestinian, and almost anyone who comes from Africa.  To them, Democracy has been a slogan advanced by an occupying power to justify its own presence in their lives in order to take away their natural resources or to achieve some kind of a strategic goal.

It is a shame that these people never get to experience the true meaning of Democracy and the rule of law.  The fact of the matter is, no matter how misguided and unjust the foreign policy of this country is, it is still a country subject to the rule of law.  Even though politicians and lawyers are getting ever so smart at figuring out loopholes in the law, they are still nevertheless subject to it, and if they are caught breaking it, they are, in most cases, held accountable.

Naturally, I have never filed a law suit against anyone before, let alone the United States, so my experience with court procedures is quite limited.  There are lots of complicated procedures to follow, and things have to be done according to a certain set of processes.  Fortunately, everything is on the Internet – the laws, the procedures, the rules, the forms and everything you would ever need!  As if that wasn’t enough, as I was filing my case, I found the court clerks to be extremely friendly and more than helpful.  They had no trouble accommodating my special requirements by granting me the ability to file electronically, they patiently and promptly answered (and continue to answer) all my questions, and have made it clear to me that they will do all they can to give me equal access to the justice system.  They have made it clear, as they should (in order to maintain the integrity of the legal system), that they will not offer me any legal assistance, for it is my responsibility to argue my case, but in so far as the processes and procedures are concerned, I have yet to find any other outfit to be as accommodating and helpful.  When I mentioned that to a friend of mine, his question was “So, the government is so helpful to you even though you are suing them”?  My answer to him, which is a matter of fact in a democracy is that the judicial branch of the government is totally separate from the executive branch.  In fact, it is the job of the judicial branch to keep the executive branch in check by overseeing their enforcement of the laws passed by the legislative branch.  If you never lived in a democracy however, government is simply government, and everyone is in cahoots with one another!

I do not know what the outcome of this law suit will be, but I am optimistic that I will at least be given a chance to argue my case in front of a neutral judge, who, I am hoping, will weigh the evidence, and who will have no problem granting me the relief I’m asking for if my argument is indeed legally sound.  Quite honestly, what more can I ask for?

I’ll certainly keep this blog up to date (as much as I can) about what’s happening.  As it stands right now, I am in the process of serving the summons to the defendants ordering them to appear in court within 60 days of service of the summons upon them.  United States law requires anyone suing (usually called the plaintiff) to notify those he/she is suing (usually called the defendant) that they are being sued by serving them with a summons.  The summons is sent to the defendant as well as their attorney, which in the case of a United States government agency is the U.S Attorney General (equivalent to the minister of justice in many countries) and the US district attorney.  Furthermore, the plaintiff has to prove to the judge that he/she has actually notified the defendants in a way which cannot be disputed.  I have therefore sent the summons to everyone via certified mail with a return receipt requested, and upon confirming their receipt of my summons, each defendant has 60 days to respond.

Since, unless sealed, all court records in the United States are public record, here is the text of my complaint against the United States government with all identifying information and exhibits (other than my name) removed.  If you live in the United States, you can look at the entire case through PACER, the federal court record system.

COME NOW Zuhair T. Mahd, Plaintiff in the above-styled and numbered cause, and for cause of action would show unto the Court the following:

1. 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).

2. Plaintiff Zuhair T. Mahd became a lawful permanent resident of the United States on November 10, 1999. Plaintiff filed the N-400 application by the name of Zuhair T.A Mahmoud at the Nebraska Service Center (NSC) on September 7, 2004 after having met the requirements in the Immigration and Nationality Act ("INA") § 334(a), § 316(a) and 8 U.S.C. §1445(a) and § 1427(a).  Application was received by the NSC on September 11, 2004.  Plaintiff was interviewed for his naturalization application and passed the required tests on Friday, December 10, 2004. Defendants have failed to make a decision on the application within 120 days after the examination.

3.     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 and Nationality Act, and is further authorized to delegate such powers and authority to subordinate employees of the DES. 8 U.S.C. §1103(a); 8 C.F.R. § 2.1.

4.     Defendant Emilio T. Gonzalez is the Acting Director of the United States 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. 12 § 100.2(a)

5.     Defendant Mario Ortiz, Denver District Director, is an official of the USCIS generally charged with supervisory authority over all operations of the USCIS within his District with certain specific exceptions 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 naturalization application remains pending.

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

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

8.     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
9.     Plaintiff is a lawful permanent resident (XXXXXXXXX) of the United States. Plaintiff filed a N-400, Application for Naturalization with the U.S. Citizenship and Immigration Services and was interviewed by officer X of USCIS Denver sub-office on December 10, 2004. (Exhibit 1).

10.     Based on the letter dated on December 10, 2004 from the USCIS Denver office, Plaintiff was informed that his Application for Naturalization is still pending for the completion of all necessary background checks. (Exhibit 2)

11. Plaintiff’s application for naturalization has now remained unadjudicated for more than a year and a half from the date of interview, despite the fact that Defendants have sufficient information to determine Plaintiffs eligibility pursuant to applicable requirements.

12.     On April 20, 2006, plaintiff contacted USCIS through a personal appointment with an USCIS officer (officer X) who informed him that the results of his criminal background check cleared on October 5, 2004, five days after he was finger printed at the USCIS local support center in Denver, but that his name check was still pending.  He was further told that his file was mistakenly shipped to the national records center in Missouri.  The officer could not offer an explanation and promised to communicate with plaintiff in writing.  A communication from officer X or anyone at USCIS has yet to be received.

13.     As seen in exhibit 1, plaintiff was examined under Sec. 335(b) and 335.2 of the Immigration and Nationality Act and under 8 U.S.C. 1446(b), and was deemed to have passed the examination.  Plaintiff passed the civics exam (exhibit 3), and a waver of the English language reading and writing tests was deemed by USCIS as appropriate after a request for accommodations under the ADA was sent to USCIS due to plaintiff’s blindness (exhibit 4).

14.     Defendants, in violation of 8 U.S.C. § 1446, have failed to make a determination on Plaintiffs naturalization application within the 120-day period after the date of examination.

15.     WHEREFORE, in view of the arguments and authority noted herein, Plaintiff respectfully prays that 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 Plaintiffs naturalization application.