The U.S. District Court for the District of Massachusetts recently questioned whether a denial of a plaintiff’s application by defendant United States Citizenship and Immigration Service ("USCIS") was warranted.  In Osunsanya v. USCIS, the court held that the Defendant’s motion to dismiss is denied, as well as their motion so quash plaintiff’s subpoena.  

Plaintiff Olutosin Osunsanya and his wife filed the required forms for an application for adjustment of status with USCIS on January 28, 2004.  They were told by USCIS that the application could not be approved until an FBI background check was completed.  The plaintiff stated that he contacted USCIS at least seven times over the course of a year, and made multiple attempts to contact the FBI to get a resolution, with no response.   

Plaintiff then filed the complaint on April 6, 2006, claiming exhaustion of administrative remedies.  Defendant USCIS moved to dismiss the complaint, stating that plaintiff’s visa petition filed was withdrawn.  The "withdrawal" put forth by USCIS came from a May 12, 2006 visit by two federal officers to the residence of Osunsanya’s wife.  According to her, they questioned the validity of the marriage to her husband, without her attorney present.  When she stated that they were living apart, she alleges the officers misled her into withdrawing her Form I-130 by threatening a charge of marriage fraud.  Plaintiff asserts that the denial of his application came about only due to the withdrawal of his wife’s petition, which he alleges was unlawfully obtained.  

Plaintiff’s complaint asks the court, under 28 § U.S.C. § 1361, to compel USCIS to properly adjudicate his original application under the common law writ of mandamus "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361 (2000).  This writ is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief.  When Osunsanya filed the complaint, he had waited nearly two years for the FBI check he assured was necessary.   

Osunanya contended his complaint was valid because his wife was coerced into withdrawing her petition in violation of agency regulations.  The Court cited Boukhris v. Perryman (N.D. Ill. Feb. 7, 2002), a case which had facts nearly identical to Osunsanya.  The Boukhris court affirmed the plaintiff’s complaint, affirming that declaring wife’s "withdrawal of her visa petition for her husband a nullity" if it was coerced in violation of her constitutional rights.

Plaintiff also alleged violation of agency regulations because his wife was denied legal representation in violation of 8 C.F.R. § 103.2(a)(3).  However, USCIS regulations do not prohibit contact with an applicant represented by counsel without her lawyer present.  This Court thus found that portion of the complaint to be without merit.  

However, the Osunsanya court does accept the complaint that threats or coercion by agency representatives constitutes a violation of USCIS regulations, and that this court has authority to determine the validity of the denial.