On November 12, 2013, the plaintiff, a long-time legal resident of the United States and an Army veteran, filed a lawsuit in the United States District Court for the District of Connecticut. The lawsuit, filed against the Department of Homeland Security, its component agency, U.S. Citizenship and ...
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On November 12, 2013, the plaintiff, a long-time legal resident of the United States and an Army veteran, filed a lawsuit in the United States District Court for the District of Connecticut. The lawsuit, filed against the Department of Homeland Security, its component agency, U.S. Citizenship and Immigration Services, and the FBI, alleged violations of the Administrative Procedure Act and sought relief under the Mandamus Act.
The plaintiff's complaint states that he was brought to the United States from Italy in 1960 by his parents as a lawful permanent resident, enlisted in the Army in 1976, and after being honorably discharged, joined the National Guard and served from 1980-83. He filed a naturalization petition in 1982, which was delayed due to a pending criminal charge against him that was eventually dropped by the prosecutor. The plaintiff never received a letter requesting a copy of the certified disposition relating to the dropped charges, despite the fact that the Immigration and Naturalization Services (INS) records indicate such a letter was drafted. The FBI contacted the INS, saying that it could find no record of the disposition of the 1981 charges. There was no contact between the plaintiff and INS after 1982 and INS never completed adjudication of the plaintiff's naturalization petition. The plaintiff served short sentences in 1997 and 1999 for shoplifting and was convicted of other minor, non-violent offenses. On May 14, 2011, he was arrested by ICE agents, detained, and eventually deported in November 2012.
The plaintiff, represented by counsel from Yale Law School's clinic, Jerome N. Frank Legal Services, asked the Court to order U.S. Citizenship and Immigration Services (USCIS), which succeeded INS, to adjudicate the plaintiff's naturalization application, direct the FBI to complete all required background checks, and award attorneys' fees and costs. Specifically, the plaintiff claims that USCIS has a clear, nondiscretionary duty to timely adjudicate naturalization petitions and to notify petitioners of the disposition of their applications, and the failure to do so was a violation of the Administrative Procedure Act. Similarly, the plaintiff claimed that the FBI has a clear, non-discretionary duty to perform background checks on naturalization applicants.
On September 17, 2014, Judge Vanessa L. Bryant issued an order sua sponte dismissing the plaintiff's complaint for lack of subject matter jurisdiction. The dismissal was based on the court's interpretation of the plaintiff's complaint as a challenge to an order of removal and the Second Circuit ruling in Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011), that District Courts are precluded from hearing direct and indirect challenges to removal orders (based on the REAL ID Act of 1995). The complaint was dismissed without prejudice and the court advised the plaintiff that he could file a motion to vacate the dismissal supported by a memorandum establishing that the District Court has jurisdiction.
On October 8, 2014, the plaintiff filed the Motion to Vacate invited by the district court, and on November 13, 2014, also filed an appeal to the United States Court of Appeals for the Second Circuit (docket number 14-4362).
As of April 17, 2015, the appeal is being held in abeyance pending the District Court's adjudication of the Motion to Vacate.Claire Lally - 04/17/2015