BACKGROUNDER: GÜLEN'S CASE

"Kurdish leaders should close the Gülen’s Turkish hospitals and schools in the region and seek other options for supplies and contracts because Gülen’s prodigies Prime Minister Erdogan and President Gul are calling the shots, literally, for the military action in the Kurdistan region."
~ Aland Mizell.

Here's a little backgrounder on the Gülen immigration case, plucked from the docket of the US District Court for the Eastern District of Pennsylvania. This document was originally filed on 25 May 2007. Basically, the Department of Homeland Security (DHS) has been screwing with Gülen's change of status since October 2002 and, let me add, it couldn't happen to a nicer guy. Gülen charges DHS defendants with acting "beyond powers" and petitions the court to order them to do their jobs vis-a-vis his change of status. What strikes me as odd is the refusal of the FBI to release the results of the criminal background check and/or names check--I guess that's a references thing--on Gülen. I wonder why that would be?

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Fetullah GULEN (A95-910-376) Plaintiff

v.

Michael CHERTOFF, Secretary, U.S. Dept. of Homeland Security, Emilio T. GONZALEZ, Director, U.S. Citizenship & Immigration Services, Paul E. NOVAK, Jr., Director, USCIS Vermont Service Center, Evelyn UPCHURCH, Director, USCIS Texas Service Center, Donald MONICA, Director, USCIS Philadelphia District Office and Robert S. MUELLER, III, Director Federal Bureau of Investigation, in their official capacities, Defendants


Civil No. ____________
COMPLAINT CHALLENGING
AGENCY ACTION AS
ULTRA VIRES AND TO COMPEL
AGENCY ACTION; PETITION
FOR WRIT OF MANDAMUS

PRELIMINARY STATEMENT

1. This is a civil action challenging federal administrative agencies policies, procedures and interpretations of law as ultra vires, and seeking to compel agency action unreasonably delayed, pursuant to 5 U.S.C. § 555(b) and § 706(1), with an alternative petition for mandamus relief, pursuant to 28 U.S.C. § 1361.

2. Plaintiff Gulen is the foremost religious leader in Turkey, as well as one of the leading religious and educational advocates of religious tolerance and interfaith dialogue in the world. Plaintiff has published and spoken extensively on the importance of religious tolerance and his work has been the subject of numerous books and articles in the academic literature and the popular press. Plaintiff has also received several major awards, including an award for Contribution to Tolerance and Dialogue from the United Nations Educational, Scientific and Cultural Organization (UNESCOS) and the Peace Heroes Award.

3. Plaintiff has filed an Application for Adjustment of Status to become a Lawful Permanent Resident, but the Defendants have refused or willfully failed to process or adjudicate Plaintiff’s Application for several years. Plaintiff has also filed applications for employment authorization and travel permission, but the Defendants have refused or willfully failed to process or adjudicate Plaintiff’s applications for several years.

4. Plaintiff has filed a Petition to be classified as an employment-based, first preference immigrant through the Defendants’ premium processing program, which provides, pursuant to Defendants’ own regulations, for adjudication of Petitions within fifteen (15) calendar days. Defendants have failed or willfully refused to adjudicate Plaintiff’s Petition for several months. Defendants have refused to refund the Plaintiff’s premium processing payment, which is required to be refunded under the Defendants’ own regulations.

5. Plaintiff has made several attempts to have Defendants adjudicate his Applications and Petition. Plaintiff has no other administrative remedy available to compel Defendants to act. Defendants’ willful failure to adjudicate Plaintiff’s Applications and Petition causes irreparable harm to Plaintiff by depriving him of the ability to establish permanent residency in the United States and to seek employment and travel permission during the time that his Application for Adjustment of Status is pending final determination.

6. Defendants have continually refused or failed to perform statutory and regulatory duties owed to the Plaintiff. Accordingly, Plaintiff is seeking injunctive and mandamus relief arising out of the unlawful and unreasonably delayed actions of the Defendants.

JURISDICTION

7. This Court has federal question jurisdiction over this action pursuant to 28 U.S.C. § 1331, as Plaintiff’s claims arise under the laws of the United States, particularly The Homeland Security Act of 2002, Pub. Law No. 107-296 (Nov. 25, 2002), as amended by Pub. Law No. 108-7, § 105 (Feb. 20, 2003), 8 U.S.C. §§ 1103, 1105, 1255, 28 U.S.C. § 534(a)(4), and related agency regulations.

8. This Court also has jurisdiction to issue a writ of mandamus to compel agency action under 28 U.S.C. § 1361, as the Plaintiff’s claims are against officers and employees of the United States and agencies thereof.

9. There are no administrative remedies available to Plaintiff to redress his grievances described in this Complaint. This action challenges the Defendants’ procedural policies, practices, interpretations of law and their failures to act, not the discretionary granting or denial of individual petitions or applications. Therefore, the jurisdictional limitations under 5 U.S.C. § 701(a)(2) and 8 U.S.C. § 1252 do not apply.

VENUE

10. Venue lies in the Eastern District of Pennsylvania under 28 U.S.C. § 1391(e)(1), as this is an action against officers and employees of the United States acting in their official capacities, brought in the district where one of the Defendants resides. Defendant Monica performs a significant amount of his official duties and maintains his office in Philadelphia.

11. Venue also properly lies within the Eastern District of Pennsylvania, pursuant to 28 U.S.C. § 1391(e)(2), as a substantial part of the events giving rise to the Plaintiff’s claims occurred in this district, i.e., at Defendant Monica’s office in Philadelphia.

PARTIES

12. Plaintiff Gulen is a religious leader and scholar and a citizen of Turkey. He is an applicant for adjustment of status, residing in Saylorsburg, Monroe County, Pennsylvania.

13. Defendant Chertoff is the Secretary of the Department of Homeland Security (DHS), whose office address is DHS, 245 Murray Lane, Building 410, SW, Washington, D.C. 20528.

14. Defendant Gonzalez is the Director of the U.S. Citizenship and Immigration Services (USCIS), a subdivision of DHS, whose office address is USCIS, 20 Massachusetts Ave., NW, Washington, D.C. 20529.

15. Defendant Novak is the Director of the USCIS Vermont Service Center, whose office address is USCIS Vermont Service Center, 75 Lower Welden Street, St. Albans, VT 05479.

16. Defendant Upchurch is the Director of the USCIS Texas Service Center, whose office address is USCIS Texas Service Center, 4141 North St. Augustine Road, Dallas, TX 75227.

17. Defendant Monica is the District Director of the USCIS Philadelphia District Office, whose office address is 1600 Callowhill Street, Philadelphia, PA 19130.

18. Defendant Mueller is the Director of the Federal Bureau of Investigation (FBI), whose office address is FBI, J. Edgar Hoover Building, 935 Pennsylvania Avenue, NW, Washington, D.C. 20535.

19. Each Defendant is sued in his or her official capacity. Defendants Chertoff, Gonzalez and Upchurch are responsible for the adjudication, grant and denial of Employment-based Immigrant Visa Petitions, pursuant to The Homeland Security Act of 2002, Pub. Law No. 107-296 (Nov. 25, 2002), as amended by Pub. Law No. 108-7, § 105 (Feb. 20, 2003), 8 U.S.C. § 1103, 8 U.S.C. § 203(b)(1), 8 U.S.C. § 204(b), 8 C.F.R. § 2.1, 8 C.F.R. § 103.1(a) and 8 C.F.R. Part 204.

20. Defendants Chertoff, Gonzalez, Novak and Monica are responsible for the adjudication, grant and denial of Applications for Adjustment of Status, pursuant to The Homeland Security Act of 2002, Pub. Law No. 107-296 (Nov. 25, 2002), as amended by Pub. Law No. 108-7, § 105 (Feb. 20, 2003), 8 U.S.C. § 1103, 8 U.S.C. § 1255, 8 C.F.R. § 2.1, 8 C.F.R. § 103.1(a) and 8 C.F.R. Part 245.

21. Defendants Chertoff, Gonzalez, Novak and Monica are responsible for the adjudication, grant and denial of Applications for Employment Authorization, pursuant to The Homeland Security Act of 2002, Pub. Law No. 107-296 (Nov. 25, 2002), as amended by Pub. Law No. 108-7, § 105 (Feb. 20, 2003), 8 U.S.C. § 1103, 8 U.S.C. § 1324a, 8 C.F.R. § 2.1, 8 C.F.R. § 103.1(a) and 8 C.F.R. Part 274a.

22. Defendants Chertoff, Gonzalez, Novak and Monica are responsible for the adjudication, grant and denial of Applications for Travel Documents, pursuant to The Homeland Security Act of 2002, Pub. Law No. 107-296 (Nov. 25, 2002), as amended by Pub. Law No. 108-7, § 105 (Feb. 20, 2003), 8 U.S.C. § 1103, 8 C.F.R. § 2.1, 8 C.F.R. § 103.1(a) and 8 C.F.R. § 245.2(a)(4)(ii)(B).

23. Defendant Mueller is responsible for providing criminal background information, if any, and name verification records relating to aliens within the United States, including applicants for Adjustment of Status, pursuant to 28 U.S.C. § 534(a)(4), 8 U.S.C. § 1105(b), 8 U.S.C. § 1182(a)(2), 8 U.S.C. § 1227(a)(2) and 28 C.F.R. §§ 20.31 and 28 C.F.R. § 20.33(a)(2).

STATEMENT OF THE CASE

24. On or about April 30, 2001, Golden Generation Worship and Retreat Center, Inc., (formerly Golden Generation Students Association) (“Golden Generation”) completed and filed an appropriate Form I-360 with legacy INS, the predecessor agency of USCIS, seeking to classify Plaintiff Gulen as a “special immigrant religious worker,” under 8 U.S.C. § 1101(a)(27)(ii). On or about August 7, 2002, legacy INS issued Form I-797 indicating that Golden Generation’s I-360 petition was approved and that Plaintiff Gulen was accordingly classified as a “special immigrant religious worker.” The case approval number is EAC-01-172-54504.

25. On or about October 18, 2002, Plaintiff completed and filed an Application for Adjustment of Status on an appropriate Form I-485 with the legacy INS Vermont Service Center along with the proper filing fee of $305, applying to become a permanent resident of the United States. On or about October 29, 2002, the Vermont Service Center issued Form I-797 to Plaintiff, indicating receipt of Plaintiff’s Form I-485. The case identification number is EAC-03-022-51250. Plaintiff’s alien identification number is A95-910-376.

26. On or about October 27, 2004, Plaintiff completed and filed an appropriate Form I-131, Application for Travel Document, with USCIS Vermont Service Center along with the proper filing fee, requesting the issuance of an “advance parole” allowing Plaintiff to travel outside the United States while his I-485 Application is pending. The case identification number is NSC-05-026-14087. To date, Defendants have failed or illfully refused to process or otherwise adjudicate Plaintiff’s I-131 Application.

27. On or about August 14, 2006, Plaintiff completed and filed an appropriate Form I-765, Application for Employment Authorization, with USCIS Vermont Service Center along with the proper filing fee, requesting the issuance of an employment authorization document allowing Plaintiff to seek employment in the United States while his I-485 Application is pending. The case identification number is EAC-06-234-51771. To date, Defendants have failed or willfully refused to process or otherwise adjudicate Plaintiff’s I-765 Application.

28. On or about February 21, 2006, Defendant Monica issued a request for additional documentation from Plaintiff concerning Plaintiff’s I-485 Application. On or about May 16, 2006, Plaintiff caused to be hand delivered to Defendant Monica all of the documents requested by Defendant Monica.

29. On or about September 13, 2006, Defendant Novak issued a Notice of Intent to Revoke the approved I-360 petition filed by Golden Generation on behalf of Plaintiff Gulen. Somewhat inconsistently, the Notice of Intent to Revoke provided Golden Generation thirty days and sixty days to respond to the Notice.

30. On October 13, 2006, Golden Generation delivered in two separate envelopes by private couriers duplicate documents and legal arguments in response to Defendant Novak’s Notice of Intent to Revoke the I-360 petition. Again on November 13, 2006, Golden Generation delivered by private courier a second set of documents and legal arguments in response to Defendant Novak’s Notice of Intent to Revoke the I-360 petition.

31. On November 14, 2006, Defendant Novak revoked Golden Generation’s I-360 petition without considering any of the evidence or legal arguments presented by Golden Generation in response to Defendant Novak’s Notice of Intent to Revoke.

32. On November 28, 2006, Golden Generation filed a timely motion to reopen Defendant Novak’s decision to revoke the I-360 petition on a proper Form I-290B with the USCIS Vermont Service Center.

33. On November 29, 2006, Golden Generation filed a timely appeal to the USCIS Administrative Appeals Office of Defendant Novak’s decision to revoke the I-360 petition on a proper Form I-290B with the USCIS Vermont Service Center.

34. On April 25, 2007, the USCIS Administrative Appeals Office (AAO) withdrew Defendant Novak’s decision to revoke Golden Generation’s I-360 petition.

35. On or about November 20, 2006, Plaintiff completed and filed an appropriate Form I-140, Immigrant Visa Petition, seeking classification as an alien of extraordinary ability, under 8 U.S.C. § 1153(b)(1)(A), with the USCIS Texas Service Center premium processing unit, including a premium processing fee of $1,000. On or about November 22, 2006, the USCIS Texas Service Center premium processing unit issued to Plaintiff Gulen Form I-797C indicating receipt of Plaintiff’s Form I-140 and the $1,000 premium processing fee. The case identification number is SRC-07-035-53075. Filing a petition with the premium processing unit guarantees a decision on the petition within 15 calendar days. See 8 C.F.R. § 103.2(f)(1). To date, Defendant Upchurch has failed or willfully refused to process or adjudicate Plaintiff’s I-140 petition.

36. On or about December 14, 2006, pursuant to 8 C.F.R. § 103.2(f), Plaintiff requested a refund of the $1,000 premium process fee, based on Defendant Upchurch’s failure to process or adjudicate Plaintiff’s Form I-140 with 15 calendar days. To date, Defendant Upchurch has failed or willfully refused to return or refund Plaintiff’s payment of the $1,000 premium processing fee.

37. On or about November 28, 2006, Plaintiff Gulen requested in writing to both Defendant Novak and Defendant Upchurch that Plaintiff Gulen’s I-485, Application for Adjustment of Status, be transferred to, or otherwise adjudicated in conjunction with, Plaintiff’s pending I-140 Petition. To date, neither Defendant Novak nor Defendant Upchurch have responded to or otherwise acted upon Plaintiff’s request for a transfer of his I-485 Application.

38. Plaintiff has been unable to move Defendants to adjudicate his I-485 Application. Attempts by Plaintiff to have his Application adjudicated through status inquiries have failed to move the Defendants to act. Plaintiff has exhausted his administrative remedies.

39. Defendants have failed or willfully refused to adjudicate or otherwise process Plaintiff’s I-485 Application for four years and seven months. The USCIS published processing time for I-485 Applications is just over seven months, 72 Fed. Reg. 4888, 4893 (USCIS) (Proposed Rule) (Feb. 1, 2007), which leaves the processing of Plaintiff’s Application four years behind the processing schedule for similar Applications.

40. Defendants have failed or willfully refused to adjudicate or otherwise process Plaintiff’s I-765 Application for over nine months. The current processing date for I-765 Applications at the Vermont Service Center is February 27, 2007. egov.immigration.gov/cris/jsps/Processtimes.jsp?SeviceCenter=VSC (posted May 18, 2007). As Plaintiff’s I-765 Application was filed on August 14, 2006, his Application is over five months beyond the current adjudication schedule for similar Applications.

41. Defendants have failed or willfully refused to adjudicate or otherwise process Plaintiff’s I-131 Application for over two years and six months. The current processing date for I-131 Applications at the Vermont Service Center is February 12, 2007. egov.immigration.gov/cris/jsps/Processtimes.jsp?SeviceCenter=VSC (posted May 18, 2007). As Plaintiff’s I-131 Application was filed on October 27, 2004, his Application is over two years and two months beyond the current adjudication schedule for similar Applications.

42. The Defendants’ failure to adjudicate Plaintiff’s I-485 Application for over four years and seven months prevents and delays Plaintiff’s ability to seek naturalization to become a United States citizen, as naturalization applicants must reside continuously in the United States as permanent residents for five years prior to filing a naturalization application, pursuant to 8 U.S.C. § 1427(a).

43. Defendants’ failure to adjudicate Plaintiff’s I-765 and I-131 Applications prevents and delays Plaintiff’s ability to seek employment in the United States and to travel outside the United States while Plaintiff’s I-485 Application is pending.

44. Upon information and belief, the FBI has failed to issue to USCIS the results of criminal background checks and/or name checks relating to the Plaintiffs in connection with the Plaintiff’s Applications and Petition.

CAUSES OF ACTION

Count I
(Non-statutory Action for Non-monetary Relief)

45. Plaintiff incorporates paragraphs 1 through 44 as if fully stated in this count.

46. The policies, procedures and interpretations of law that have caused or given rise to Defendants’ failure to adjudicate Plaintiff’s Applications and Petition are ultra vires.

47. Defendants have disregarded specific and unambiguous statutory and regulatory directives to adjudicate Plaintiff’s Applications and Petition.

48. Defendants have disregarded specific and unambiguous regulatory directives to transfer Plaintiff’s I-485 Application to Plaintiff’s I-140 Petition.

49. Defendants have disregarded specific and unambiguous regulatory directives to process Plaintiff’s I-140 Petition within 15 calendar days.

Count II
(Violation of Administrative Procedure Act)

50. Plaintiffs incorporate paragraphs 1 through 44 as if fully stated in this Count.

51. Defendants’ practices, policies, interpretations of law, conduct and failures to act violate the Administrative Procedure Act, as the alleged agency action is:

(a) “unlawfully withheld or unreasonably delayed,” under 5 U.S.C. § 706(1);

(b) not concluded “[w]ith due regard for the convenience and necessity of the parties . . . and within a reasonable time,” under 5 U.S.C. § 555(b);

(c) “arbitrary, capricious and an abuse of discretion or otherwise not in accordance with law,” under 5 U.S.C. § 706(2)(A); and

(d) “without observance of procedures required by law,” under 5 U.S.C. § 706(2)(D).

52. As a result, Plaintiff has suffered irreparable harm entitling him to injunctive and other relief.

Count III
(Petition for Writ of Mandamus)

53. Plaintiffs incorporate paragraphs 1 through 44 as if fully stated in this Count.

54. Defendants are charged with a duty to administer and enforce the Immigration and Nationality Act, as amended by The Homeland Security Act of 2002, Pub. Law No. 107-296 (Nov. 25, 2002), as amended by Pub. Law No. 108-7, § 105 (Feb. 20, 2003).

55. Defendants Chertoff, Gonzalez, Novak and Monica have sole responsibility for the adjudication of Applications for Adjustment of Status filed under 8 U.S.C. § 1255.

56. Defendants Chertoff, Gonzalez and Upchurch have sole responsibility for the adjudication of Employment-based Petitions filed under 8 U.S.C. §§ 1153(b) and 1154(b).

57. Defendants Chertoff, Gonzalez, Novak and Upchurch have sole responsibility for the adjudication of Applications for Employment Authorization filed under 8 U.S.C. § 1324a and 8 C.F.R. Part 274.

58. Defendants Chertoff, Gonzalez, Novak and Upchurch have sole responsibility for the adjudication of Applications for Travel Documents filed under 8 C.F.R. Part 245.

59. Defendant Mueller has sole responsibility to provide criminal background and name verification records to USCIS officials, pursuant to 8 U.S.C. § 1105(b) and 28 U.S.C. § 534(a)(4).

60. Defendants have willfully and unreasonably delayed and refused to perform their clear, non-discretionary duties.

61. Plaintiff has a clear right to have his Applications and Petitions adjudicated pursuant to the Immigration and Nationality Act, as amended.
62. Plaintiff has no administrative remedies available to compel Defendants to perform their statutory and regulatory duties.

63. Pursuant to 28 U.S.C. § 1361, Defendants must be compelled to discharge their statutory duties owed to Plaintiff so that Plaintiff may be promptly informed of the outcome of his Applications and Petition.

Count IV
(Equal Access to Justice Act)

64. Plaintiff incorporates paragraphs 1 through 63 as if fully stated in this count.

65. If Plaintiff prevails, he will seek attorney’s fees and costs, pursuant to 5 U.S.C. § 504 and 28 U.S.C. § 2412.

RELIEF REQUESTED

66. WHEREFORE, Plaintiff prays that this Court:

(a) Preliminarily and permanently enjoin Defendants from failing to perform a timely adjudication of Plaintiff’s Applications and Petition;

(b) Order Defendants Chertoff, Gonzalez, Novak, Upchurch and Monica to perform their duties and immediately adjudicate Plaintiff’s Applications and Petitions;

(c) Order Defendants Chertoff, Gonzalez and Upchurch to refund immediately Plaintiff’s premium processing fee payment of $1,000.

(d) Order Defendant Mueller to perform his duty and immediately issue the results of criminal background checks and/or name checks to USCIS relating to Plaintiff;

(e) Award the Plaintiff attorney’s fees and costs under the Equal Access to Justice Act; and

(f) Grant such other relief as the Court deems just, equitable and proper.

Respectfully Submitted this 25th day of May, 2007.


H. Ronald Klasko
Klasko, Rulon, Stock & Seltzer, LLP
1800 J.F. Kennedy Blvd., Suite 1700
Philadelphia, PA 19103
215-825-8600
PA Attorney No. 20384


Geoffrey Forney
Klasko, Rulon, Stock & Seltzer, LLP
1800 J.F. Kennedy Blvd., Suite 1700
Philadelphia, PA 19103
215-825-8615
PA Attorney No. 202870