Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hussain v. United States

August 3, 2009

CHUDURY AKHTAR HUSSAIN, PLAINTIFF,
v.
THE UNITED STATES OF AMERICA; ERIC HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES; AND THE BUREAU OF CUSTOMS AND IMMIGRATION SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge

MEMORANDUM OPINION AND ORDER

SIFTON, Senior Judge.

On March 2, 2009, petitioner Chudury Akhtar Hussain commenced this action against defendants United States of America; Eric Holder, Jr., Attorney General of the United States; and the Bureau of Customs and Immigration Services. Petitioner claims that the Administrative Appeals Office ("AAO") of the United States Citizenship and Immigration Service ("USCIS") abused its discretion when it dismissed his appeal of USCIS's decision to deny his application for adjustment of status pursuant to § 245A of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255a. Petitioner seeks a writ of mandamus directing USCIS to re-open his application for adjustment of status, to accept the affidavits and other materials submitted by petitioner in connection with his application as credible and sufficient to establish petitioner's continuous residence in the United States from January 1, 1982 to May 4, 1988, and to adjust his status to that of a lawful temporary resident. Presently before this Court are the parties' submissions in response to my Order dated March 11, 2009, directing them to show cause why the relief requested in the petition should not be granted. For the reasons set forth below, petitioner's request for a writ of mandamus is denied.

BACKGROUND

The following undisputed facts are drawn from the petition and supporting exhibits*fn1 as well as the parties' submissions in response to my Order to Show Cause dated March 11, 2009.

The Immigration Reform and Control Act of 1986 ("IRCA"), Pub. L. 99-603, 100 Stat. 3359, established an amnesty program which provided aliens who had resided unlawfully in the United States continuously since prior to January 1, 1982, the opportunity to legalize their immigration status. See Perez v. I.N.S., 72 F.3d 256 (2d Cir. 1995); see also INA § 245A, 8 U.S.C. § 1255a. In general, INA § 245A(a) permits an alien to adjust his status to that of a lawful temporary resident if he: (1) timely files his application; (2) maintained continuous unlawful residence in the United States since January 1, 1982; (3) demonstrated continuous physical presence in the United States since November 6, 1986; and (4) is admissible as an immigrant. See INA § 245A(a)(1)-(4); 8 U.S.C. § 1255a(a)(1)-(4).

As a result of various court decisions in three class actions which arose out of manner in which the IRCA program was conducted by the former Immigration and Naturalization Service ("INS"), the Legal Immigration Family Equity Act ("LIFE Act") amendments pertaining to legalization were enacted on December 21, 2000. See Pub. L. 106-554, 114 Stat. 2763 (2000) (codified as amended at 8 U.S.C. § 1255). On June 1, 2001, regulations implementing the LIFE Act and LIFE Act Amendments were promulgated which established procedures for certain class action participants to become residents. See Adjustment of Status Under Life Act Legalization Provisions, 66 Fed. Reg. 29661 (Jun. 1, 2001) (codified in part at 8 C.F.R. § 245a). As explained in the commentary to these regulations, persons eligible to apply for adjustment of status under section 1104 of the LIFE Act are aliens who filed for class membership with the Attorney General before October 1, 2000, in one of three legalization lawsuits: (1) Catholic Social Services, Inc. v. Meese, vacated sub nom., Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993) ("CSS"); (2) League of United Latin American Citizens v. INS, vacated sub nom., Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993) ("LULAC"); or (3) Zambrano v. INS, vacated, 509 U.S. 918 (1993) ("Zambrano"). Id. In order to be eligible for legalization under the LIFE Act, applicants must, inter alia, have entered the United States before January 1, 1982, and from then until May 4, 1988, resided here continuously and unlawfully. Id.; 8 C.F.R. 245a.15; see also LIFE Act § 1104(c)(2)(B)(i) and Zambrano v. INS, 282 F.3d 1145, 1152 (9th Cir. 2002) (discussing LIFE Act amendments).

On December 6, 2001, petitioner filed an application to adjust his status pursuant to § 1104 of the Life Act. See Pet. at 1, 23. On September 30, 2007, the New York District Director for USCIS issued a Notice of Intent to Deny ("NOID") on the ground that petitioner had not established the requisite continuous residence in the United States from January 1, 1982 to May 4, 1988. See id. at 9-11 (copy of NOID). In particular, the NOID explained that USCIS found the affidavits submitted in support of petitioner's application to be insufficient, on their own, to establish that petitioner had continuously resided in the United States for the requisite period of time.*fn2 Id. at 10. The NOID afforded petitioner 30 days to submit additional evidence for USCIS's consideration. Id. at 11.

Petitioner, through counsel, drafted a letter dated October 24, 2007, see id. at 34-37, and attached various documents, id. at 39-59, in response to the NOID. Those documents included: computerized records of income tax payments by Khalid Mahmood,*fn3 id. at 41-45; a copy of Popular Construction, Inc.'s corporate filing with the New York Department of State, id. at 46; a copy of Shafa Chaudry's credit card and driver's permit, id. at 47-48; Khalid Mahmood's Social Security Benefit Statement, id. at 55-57; and an affidavit dated August 8, 2004, by Khurshid A. Butt, id. at 58-59.

On November 5, 2007, the New York District Director for USCIS denied petitioner's application on the ground that petitioner had not submitted a response to the NOID.*fn4 Id. at 6 (copy of Notice of Decision). On or about November 30, 2007, Hussain filed a Notice of Appeal (Form I-290B) from USCIS's November 5, 2007, decision. See id. at 28 (copy of Form I-290B). Attached to the Notice of Appeal was a brief, see id. at 30-33 (first four pages of brief), and a copy of Hussain's response to the NOID, id. at 34-59.

On January 30, 2009, USCIS's Administrative Appeals Office ("AAO") dismissed petitioner's appeal. Id. at 21-26 (copy of AAO decision). In its decision, the AAO explained that it had considered petitioner's application de novo. Id. at 23. The decision included an examination of each piece of evidence submitted in support of petitioner's application, including petitioner's response to the NOID.*fn5 See id. at 24-25. Among other findings, the AAO noted as follows with regard to petitioner's evidence:

The documentation provided by the applicant consists solely of third-party affidavits ("other relevant documentation"). These documents lack specific details as to how the affiants knew the applicant -- how often and under what circumstances they had contact with the applicant -- during the requisite time period from prior to January 1, 1982 through May 4, 1988.

Id. Based on its review, the AAO concluded that petitioner had failed to establish by a preponderance of the evidence that he had entered the United States before January 1, 1982, and maintained continuous unlawful ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.