The opinion of the court was delivered by: BATTS
DEBORAH A. BATTS, United States District Judge.
On February 17, 1993, Kalim Ahmed, the Plaintiff, brought suit seeking a writ of mandamus compelling the Defendant, ("INS") to present him with a work authorization card in connection with his alleged application for temporary resident status as a Special Agricultural Worker.
Defendant has moved for dismissal of the Complaint for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to prosecute under Fed. R. Civ. P. 41(b), and in the alternative for summary judgment under Rule 56(c). The Plaintiff has failed to respond to the Defendant's Requests for Admissions and has failed to respond to this motion, return date September 12, 1995. In fact, Plaintiff has filed nothing in this action since filing his Complaint. For the stated reasons below the Court grants the Defendant's motion.
Kalim Ahmed is an alien present in the United States without legal authority.
Plaintiff brought suit to compel the Defendant to issue him an employment authorization card, pursuant to 8 C.F.R. § 210.4(b)(2). (Compl. P 8.) Regulations promulgated by the Attorney General to administer the Special Agricultural Worker program authorize an otherwise undocumented alien to work in the country "after an interview has been conducted in connection with [his or her] nonfrivolous application [for temporary resident status, filed] at an INS legalization office." 8 C.F.R. § 210.4(b)(2). Plaintiff claims that he filed an application for temporary resident status as a Special Agricultural Worker at the INS's New York legalization office approximately four and one half years prior to his request for an employment authorization card. (Compl. PP 1, 5.) Plaintiff has a copy of what he claims is a receipt given to him by an INS official in New York.
Defendant has no record of Plaintiff's application. (Loprest Dec. P 2.) The INS has not assigned Plaintiff an INS alien registration number and has no file regarding him. (Loprest Dec. P 3.) Plaintiff has not produced an original receipt for the filing of his temporary resident status application.
A. Plaintiff's Complaint is Dismissed for Lack of Mandamus Jurisdiction
A writ of mandamus is an extraordinary measure which should be granted "sparingly, to redress a 'clear abuse of discretion,'" see In re Repetitive Stress Injury Litigation, 11 F.3d 368, 373 (2d Cir. 1993) (quoting Richardson Greenshields Securities, Inc. v. Lau, 825 F.2d 647, 652 (2d Cir. 1987), "or 'to confine an inferior court to a lawful exercise of its prescribed authority. . . .'" Id. (quoting Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 18, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983)). The facts the Plaintiff describes to support his request do not fit within the parameters of the grounds under which a Writ of Mandamus may be granted.
Mandamus is inappropriate unless a plaintiff has a clear right to the relief requested, there is a plainly defined and peremptory duty on the defendant's part to do the act in question, and no other adequate remedy is available. Heckler v. Ringer, 466 U.S. 602, 616-17, 80 L. Ed. 2d 622, 104 S. Ct. 2013 (1984); Billiteri v. United States Bd. of Parole, 541 F.2d 938, 946 (2d Cir. 1976); Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir. 1972), cert. denied, 411 U.S. 918, 36 L. Ed. 2d 310, 93 S. Ct. 1555 (1973); Fifth Ave. Peace Parade Committee V. Hoover, 327 F. Supp. 238, 242 (S.D.N.Y. 1971).
Plaintiff has not demonstrated that he ever filed the appropriate application, nor has he demonstrated that he filed a nonfrivolous application. Before the INS awards him the interview at which he can qualify for the Special Agricultural Worker program, he must demonstrate he filed the appropriate application. Rahim v. McNary, 24 F.3d 440, 441 (2d Cir. 1994). Plaintiff has failed to do this. Therefore, Plaintiff does not have a clear right to the relief that he seeks.
Plaintiff's Complaint is hereby dismissed for lack of mandamus jurisdiction. Hence, it is not necessary to consider ...