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Ali v. Holder

January 15, 2010

ASKAR SALEH AMER ALI, PLAINTIFF,
v.
ERIC HOLDER, ATTORNEY GENERAL OF THE UNITED STATES, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Siragusa, J.

DECISION & ORDER

INTRODUCTION

This immigration case is before the Court on Plaintiff's motion (Docket No. 3) for an entry of default against the Attorney General, and Defendants' motion (Docket No. 4) to dismiss for lack of proper service. For the reasons stated below, Plaintiff's motion is denied, and Defendants' motion is granted.

BACKGROUND

On May 26, 2009, Plaintiff filed a complaint for judicial review and a de novo hearing on his application for naturalization with this Court. Thereafter, Plaintiff's counsel made a number of mailings of the complaint using the United States Postal Service and requested delivery confirmation for each mailing. (Docket No. 2.) Using the Postal Services Track & Confirm service, Plaintiff's counsel obtained delivery notifications for each of the mailings, which were to the following entities or individuals on the dates indicated for each:

1. Office of U.S. Attorney General, U.S. Dept. of Justice, 950 Pennsylvania Ave NW, Washington DC 20530; 06/23/2009

2. Office of Immigration Litigation, U.S. Dept. of Justice, Civil Div, 1331 Pennsylvania Ave NW, Washington DC 20004 06/23/2009

3. Office of General Counsel, U.S. Dept. of Homeland Security, Mail Stop 3650. Washington DC 20528-0001; 06/23/2009

4. District Director, BCIS, Vermont Service Center, 75 Lower Welden Street, Saint Albans, VT 05479; 06/22/2009

5. Office of U.S. Attorney, 100 State Street, Rochester, NY 14614-1350; 06/22/2009

6. Commissioner, BCIS, 425 Eye Street NW, Washington DC 20536 06/23/2009

7. Francis Holmes, District Director, BCIS, 130 Delaware Avenue, Buffalo, NY 14202. 06/23/2009 (Docket No. 2, at 1; Docket No. 3 ¶ IV.) Plaintiff's counsel then moved for entry of a default on December 14, 2009. (Docket No. 3.) The following day, Defendants moved to dismiss. (Docket No. 4.) Defendants contend that,

Neither plaintiff nor his counsel claim that plaintiff served any of these entities by registered or certified mail, and there is no evidence of such service in the docket or in the records of the United States Attorney or the Attorney General. See Mitchell Aff., ¶¶ 5-8. In addition, there is no claim that the summons and complaint were delivered to the Office of the United States Attorney. (Docket No. 4, at 3.)

On December 18, 2009, the Court issued a motion scheduling order setting December 30, 2009, as a return date for both motions. (Docket No. 6.) To date, Plaintiff has not ...


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