Zhang v. Gonzales et al

Filing 4

ORDER TO SHOW CAUSE. Signed by Judge Jeremy Fogel on 3/20/2006. (jflc1, COURT STAFF) (Filed on 3/20/2006)

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Zhang v. Gonzales et al Doc. 4 Case 5:06-cv-01524-JF Document 4 Filed 03/20/2006 Page 1 of 4 1 2 3 4 5 6 7 NOT FOR CITATION 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 **E-Filed 3/20/06** ZHANXIANG ZHANG, Plaintiff, v. ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES, et al., Defendants. Case Number C 06-01524 JF (RS) ORDER1 TO SHOW CAUSE [Docket No. 1] On February 27, 2006, Plaintiff Zhanxiang Zhang filed a complaint against Defendants Alberto Gonzales, Attorney General of the United States, Michael Chertoff, Secretary of the Department of Homeland Security, Emilio Gonzalez, Director of United States Citizenship and Immigration Services, Robert Mueller, Director of the Federal Bureau of Investigation, and Christina Poulos, Acting Director of the California Service Center, requesting that this Court issue a writ of mandamus in order to compel action on his application for naturalization. Plaintiff alleges the following. He has been a lawful permanent resident of the United This disposition is not designated for publication and may not be cited. Case No. C 06-1524 JF (RS) O R D E R TO SHO W CAUSE (JFLC1) Dockets.Justia.com Case 5:06-cv-01524-JF Document 4 Filed 03/20/2006 Page 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 States since June 19, 2000, having been granted a greencard as an "Outstanding Researcher." On March 23, 2005, he applied for citizenship, and he was fingerprinted on May 12, 2005. He had his naturalization interview on August 15, 2005. He made follow-up phone inquiries in January and February of 2006, but he has not yet received a determination of his application for citizenship. Plaintiff alleges two claims for relief. First, he alleges that Defendants have violated 8 U.S.C. 1447(b), which provides: If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter. Second, he alleges that Defendants have violated the Administrative Procedure Act, 5 U.S.C. 701 et seq., because "they have unlawfully delayed agency action to which Plaintiff is entitled" and "they have taken action that is arbitrary and capricious, an abuse of discretion and not in accordance with law, by failing to make a determination on the naturalization application of the Plaintiff at the time of initial examination or within 120 days thereafter." Plaintiff requests that this Court issue a writ of mandamus, pursuant to 28 U.S.C. 1361 and 5 U.S.C. 706(1), "compelling Defendants and their agents to make a determination of the naturalization application of the Plaintiff, to notify the Plaintiff that his application has been granted or denied, and if granted, of the procedures to be followed for the administration of the oath of allegiance, within 20 days of the issuance of such writ." Good cause therefore appearing, IT IS HEREBY ORDERED as follows: (1) The Clerk of the Court shall serve by certified mail a copy of the petition and a copy of this Order upon counsel for Defendants, the Attorney General of the United States of America. A copy of this Order will be served electronically upon counsel for Plaintiff, Tricia Wang. (2) Defendants shall, within thirty (30) days after receiving this order, file and serve upon Plaintiff an answer, showing cause why a writ of mandamus should not issue. At the time 2 Case No. C 06-1524 JF (RS) O R D E R TO SHO W CAUSE (JFLC1) Case 5:06-cv-01524-JF Document 4 Filed 03/20/2006 Page 3 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the answer is filed, Defendants shall lodge with the Court all records relevant to a determination of the issues presented by the complaint. If Defendants contend that Plaintiff has failed to exhaust administrative remedies as to any ground for relief asserted in the complaint, Defendants shall specify what administrative remedy remains available to Plaintiff. If Defendants waive or concede the issue of exhaustion, Defendants shall so state in their answer. (3) Plaintiff may file a response to the matters raised in the answer within thirty (30) days after receiving the answer. (4) Unless otherwise ordered by the Court, the matter will be deemed submitted upon the filing of the response or upon the expiration of time to file a response. DATED: March 20, 2006 JEREMY FOGEL Unit ed States District Judge 3 Case No. C 06-1524 JF (RS) O R D E R TO SHO W CAUSE (JFLC1) Case 5:06-cv-01524-JF Document 4 Filed 03/20/2006 Page 4 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Order has been served upon the following persons: Trici a Xiaoxia Wang tricia@wangslaw.com 4 Case No. C 06-1524 JF (RS) O R D E R TO SHO W CAUSE (JFLC1)

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