Khan v. Gonzalez

Filing 45

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLANTIFF'S MOTION FOR SUMMARY JUDGMENT. Signed by Judge Maxine M. Chesney on April 6, 2009. (mmclc2, COURT STAFF) (Filed on 4/6/2009)

1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court are the motion for summary judgment, filed November 14, 2008 by defendant Jonathan Scharfen, acting in his official capacity as Acting Director, United States Citizenship and Immigration Services ("USCIS"), and the opposition/cross-motion for summary judgment, filed November 18, 2008 by plaintiff. On November 28, 2008, defendant filed a reply to plaintiff's opposition and an opposition to plaintiff's cross-motion. On December 2, 2008, plaintiff filed a sur-reply. On December 17, 2008, the Court afforded the parties an opportunity to supplement the record. Thereafter, the parties filed additional declarations in support of their respective motions. On February 6, 2009, the Court conducted a hearing on the motions, at which hearing Paul M. Kaplan and Jonathan M. Kaufman appeared on behalf of plaintiff and Christopher W. Hollis appeared on behalf of defendant. At the conclusion of the hearing, the Court afforded each party an opportunity to submit further briefing, and each party subsequently filed a supplemental memorandum. Having read and considered the papers filed in support of and in opposition to the motions, as well as the arguments of counsel at the February 6, 2009 hearing, the Court, v. JONATHAN SCHARFEN, Acting Director, United States Citizenship and Immigration Services, Defendant. / United States District Court NOORULLAH KHAN Plaintiff, No. C-08-1679 MMC ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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for the reasons stated on the record at the hearing and as set forth below, finds plaintiff has failed to show there has been an unreasonable delay in the adjudication of his application for adjustment of status. First, as discussed on the record at the time of the hearing, plaintiff has failed to show any unreasonable delay on the part of the USCIS in connection with the handling of plaintiff's application in the approximately 11 months that have elapsed subsequent to the re-opening of such application on April 23, 2008. Second, plaintiff has failed to show the time period relevant to the instant analysis should be deemed to begin at the time plaintiff first filed his application for adjustment of status approximately seven years ago. In particular, plaintiff has not demonstrated any procedural irregularity pertained in connection with the USCIS's denial of his application, such that said determination should be deemed, in essence, not to have been made. In that regard, plaintiff has failed to show an interview with such an asylee applicant is required in every case. See 63 Fed. Reg. 30105, 30107 (June 3, 1998) (explaining Immigration and Naturalization Service amended 8 C.F.R. § 209.2(e) "to allow the Service to review an application for asylum-based permanent residence and determine if a final decision on the application can be made without an interview"). Nor has plaintiff shown the "Exemption Worksheet" had been adopted, let alone was required to be completed, at the time USCIS denied plaintiff's application on February 22, 2008. (See Pl.'s Supp. Mem. Ex. A at 7 (Memorandum from Michael L. Aytes, Acting Deputy Director, dated July 28, 2008, notifying associate directors of agency's issuance of "[n]ew" worksheet).) Further, plaintiff has failed to identify any "[d]erogatory information" on which USCIS based its determination and which was "unknown" to plaintiff. See 8 C.F.R. § 103.2(b)(16)(i). Accordingly, defendant's motion for summary judgment is hereby GRANTED, and plaintiff's motion for summary judgment is hereby DENIED. IT IS SO ORDERED. Dated: April 6, 2009 MAXINE M. CHESNEY United States District Judge 2