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McKAY v. DEPARTMENT OF HOMELAND SECURITY

United States District Court, S.D. California


September 30, 2005.

JEF KWAKU YEBOA McKAY, Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY; and J. SMITH, DISTRICT DIRECTOR OF THE BUREAU IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants.

The opinion of the court was delivered by: WILLIAM HAYES, District Judge

ORDER DENYING RELIEF

On February 7, 2005, Plaintiff, a native and citizen of Ghana, filed a Complaint for Mandamus, Declaratory and Injunctive Relief to Compel the Defendant to Adjudicate and Approve his Application. Plaintiff is currently in federal custody at the CCA Otay Mesa detention facility subject to an order of deportation. Plaintiff seeks an order of this court requiring the Immigration Service to accept and adjudicate his application for adjustment of status, and to immediately restore his legal permanent resident status and grant him permission to travel.

On May 24, 2005, this court issued an Amended Order to Show Cause why the Petition for Relief should not be granted. Defendant filed a Return to Petition asserting 1) that the relief requested by Plaintiff should be denied on the grounds that Plaintiff has repeatedly raised the same challenges to his imminent deportation; and 2) that Plaintiff does not have an application for adjustment of status pending.

  FACTUAL BACKGROUND

  Plaintiff was ordered deported to Ghana by an Immigration Judge in Los Angeles, California on March 16, 1987. The Board of Immigration Appeals upheld the decision of the Immigration Judge on December 11, 1992. Plaintiff was not deported and remained in the United States.

  On January 23, 2004, immigration officials interviewed Plaintiff at Calpatria State Prison where he was serving a six year sentence for insurance fraud. After it was discovered that Plaintiff was subject to a deportation order, he was transferred to the custody of the Department of Homeland Security. Removal proceedings were commenced. On September 23, 2004, the Immigration Judge determined that the removal proceedings were not necessary because the Plaintiff was subject to the 1987 deportation order upheld in 1992 by the Board of Immigration Appeals. On February 4, 2005, the Board of Immigration Appeals upheld this decision of the Immigration Judge.

  On August 24, 2004, Plaintiff filed his first federal habeas petition pursuant to 28 U.S.C. § 2254. On October 24, 2004, the Honorable Barry T. Moskowitz dismissed the petition without prejudice in Case No. 04cv1716-BTM(RBB).

  On November 22, 2004, Plaintiff filed another federal habeas petition pursuant to 28 U.S.C. § 2241 which was assigned to the Honorable Napoleon A. Jones, Jr. in Case No. 04cv2332-J(LSP). On November 30, 2004, Judge Jones dismissed the petition for failure to pay the filing fee.

  On January 19, 2005, Plaintiff filed another federal habeas petition pursuant to 28 U.S.C. § 2241 which was assigned to the Honorable Dana M. Sabraw in Case No. 05cv0107-DMS(LSP). On May 12, 2005, Judge Sabraw issued an Order Denying Petition for a Writ of Habeas Corpus. Judge Sabraw set forth in detail Plaintiff's state criminal proceedings, Plaintiff's federal immigration proceedings, Plaintiff's federal habeas proceedings in the Southern District of California, and Plaintiff's federal habeas proceedings in the Central District of California. Judge Sabraw examined Plaintiff's claim challenging the validity of the 1992 decision of the Board of Immigration Appeals ordering his deportation and Plaintiff's claim that he was subject to indefinite detention in violation of his due process rights as set forth in the decision of the United States Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001). Judge Sabraw concluded that Plaintiff did not present any specific claims of constitutional or statutory error with respect to the 1992 decision of the Board of Immigration Appeals and that Plaintiff's attempt to challenge to this 1992 decision was not timely. Judge Sabraw further concluded that there was a significant likelihood of Plaintiff's removal in the reasonably forseeable future and, therefore, no violation of due process as in Zadvydas.

  On February 7, 2005, prior to the decision of Judge Sabraw dismissing the petition in Case No. 05cv0107-DMS(LSP), Plaintiff filed the Complaint for Mandamus, Declaratory and Injunctive Relief in this proceeding. Plaintiff relies upon the mandamus jurisdiction of the court set forth in 28 U.S.C. § 1361 and attaches to the Complaint a "Statement of Facts for Writ of Habeas Corpus."

  ANALYSIS

  28 U.S.C. § 1361 states that "[t]he district court shall have original jurisdiction of any action in the nature of a mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."

  Plaintiff alleges in his Complaint that "[i]n June 1992, and again on October 12, 2003, Mr. Yeboa MACKAY filed an application for LPR status, by filing INS Form 1-485 (Application for Adjustment of Status) with the Southern District Office of the INS . . . the Immigration Service has lost or misplaced the Plaintiff's file and no action has been taken to adjudicate the application filed by Plaintiff." Complaint Paragraphs 10 and 11. Plaintiff seeks an order of this court that Immigration Service adjudicate and approve his application for adjustment of status.

  Defendant submits the Declaration of Jack McCarthy, a District Adjudications Officer at the San Diego District Office of Citizenship and Immigrations Services in the United States Department of Homeland Security, whose responsibilities include the processing and adjudication of applications for immigration benefits. McCarthy states:

In connection with the above-captioned matter, I have performed a page-by-page review of the entire voluminous file of Petitioner, Jef Kwaku Yeboa Mackay, alien registration number A-91610549/A-24169409. I also conducted queries of the Central Index System (CIS) and the Computer Linked Applications Management System (CLAIMS). CIS and CLAIMS are Service-wide computer databases that contain information pertaining to the status and histories of all aliens registered with the Immigration Service, and track the receipt and processing of all applications for immigration benefits filed with the Immigration Service. During my review, I found no evidence of the existence of any pending Form I-485, Application for Adjustment of Status. I did find that such an application was filed on October 17, 1985, but was denied on May 16, 1986.
My review also indicated that Petitioner is presently subject to a 1992 Order of Deportation and that he is currently in custody at the Otay Mesa CCA Detention Facility. I have also contacted Immigration Enforcement Deportation Officer Andy Padilla and learned that Petitioner's deportation is currently pending receipt of travel documents from Ghana, and execution of the deportation order is being held in abeyance due to pending habeas proceedings in Federal Court.
Exhibit 3 to the Return to Petition.

  In his Reply Brief, Plaintiff asserts that the decision of the Board of Immigration Appeals on December 11, 1992 reinstated by the Immigration Judge on September 23, 2004 violated his constitutional rights to fair and equitable treatment and due process. Plaintiff does not refer to the application for adjustment of status in the Reply Brief. While Plaintiff attaches a number of exhibits to the Reply Brief, there is no evidence that Plaintiff "filed an application for LPR status, by filing INS Form 1-485 (Application for Adjustment of Status) with the Southern District Office of the INS" in June 1992 or in October 2003 or that any such application was lost or misplaced or remains pending. Complaint paragraph 10.

  To the extent that Plaintiff challenges the legality of his custody, Judge Sabraw fully addressed the validity of the 1992 decision of the Board of Immigration Appeal decision and denied Plaintiff's claim for habeas corpus relief. To the extent that Plaintiff seeks an order of this court compelling the adjudication and approval of an application for adjustment of status, the record establishes that no such application is pending before the agency and that Plaintiff is not entitled to such relief.

  CONCLUSION

  IT IS HEREBY ORDERED that Plaintiff's Complaint for Mandamus, Declaratory and Injunctive Relief to Compel the Defendant to Adjudicate and Approve his Application is dismissed. The Clerk of the Court is directed to enter judgment with prejudice in favor of Defendant and against Plaintiff.

20050930

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