United States District Court, S.D. California
September 30, 2005.
JEF KWAKU YEBOA McKAY, Plaintiff,
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
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
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
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
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
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
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.
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