Sheridan Green (SBN: 24083103)
Gonzalez Olivieri LLC
2200 Southwest Freeway, Suite 550
Houston, Texas 77098
Tel: (713) 481-3040
Fax: (713) 588-8683
Counsel of Record for Petitioner
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
JEH JOHNSON, SECRETARY OF UNITED
OF HOMELAND SECURITY;
LEÓN RODRÍGUEZ, DIRECTOR
OF UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES;
DAVID ROARK, DIRECTOR OF
TEXAS SERVICE CENTER,
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES; U.S.
DEPARTMENT OF HOMELAND
SECURITY; and UNITED STATES
CITIZENSHIP AND IMMIGRATION
PLAINTIFF’S PETITION FOR WRIT OF
1. This mandamus action is brought by Cesar Felizzola (“Plaintiff” or “Petitioner”)—a citizen of
Venezuela—to compel Defendants to complete the adjudication of Plaintiff’s Form I-140
National Interest Waiver petition (“Form I-140” or “I-140 petition”), which has been pending
with Defendants since October 11, 2013, despite the latter’s clear duty to render a decision
within a reasonable time.
2. Plaintiff, a Senior Lead Electrical Engineer for Brunel Energy, Inc., in Houston Texas, is a
leader with 35 years of experience and a renowned expert in his field of power engineering
and designing electrical systems. His work benefits the U.S. economy, benefits the lives and
health of U.S. workers, and protects the environment from potential catastrophes.
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3. Plaintiff, Mr. Felizzola, has been described as “among the most brilliant electrical reliability
and engineering experts in the petroleum industry” and has been “appointed to lead the most
important power systems projects ever made.”1
Moreover, the national interest waiver petition
cited numerous sources as to the severe shortage of experienced power engineers in the United
States. Finally, multiple authorities noted that Plaintiff’s continued expertise could very well
prevent future economic and environmental disasters like the infamous Deepwater Horizon rig
explosion and subsequent oil spill of 2010.
4. For nearly 2 years, Plaintiff has waited patiently for Defendant United States Citizenship and
Immigration Services (hereafter “CIS”) to render a decision or a request for evidence on his
National Interest Waiver immigrant visa petition.
5. CIS has a non-discretionary duty to adjudicate all immigrant visa petitions, including
Plaintiff’s petition. Moreover, CIS has a duty to perform the adjudication in a reasonable time.
To date, CIS has not adjudicated Plaintiff’s petition in a reasonable time.
6. Current processing times for Form I-140, Petition for Alien Worker based on a national interest
waiver, indicate that cases filed before December 2, 2014 should have been adjudicated and a
determination rendered. Plaintiff’s application was filed with CIS on October 11th, 2013, and
is still pending without decision or request for additional evidence.
7. CIS has acted in bad faith in refusing to adjudicate Plaintiff’s I-140 petition within a reasonable
time. CIS knows that because of its failure to adjudicate the I-140 petition in a reasonable
time, Plaintiff and his employer may be forced to endure economic burdens attached to
unnecessarily drawn out immigration procedures and left questioning his ability to work and
contribute his exceptional abilities to the U.S. workforce and U.S. national interest. Plaintiff
and his employer are also injured by the continuing expense and burden of maintaining non-
immigrant status in the United States which requires complicated and expensive H-1B
renewals and difficulty and costly delays in travelling internationally.
8. Plaintiff therefore files this action in order to ensure that his I-140 petition is promptly
9. Plaintiff Cesar Felizzola (hereafter “Felizzola”) is a dual citizen of Venezuela and Italy and a
power engineer currently on an H-1B visa in Houston, Texas. Due to his incomparable
education, training, experience, and abilities as a power engineer, he filed Form I-140 to obtain
immigrant status as an individual with an advanced degree and exceptional ability in the
national interest of the United States.
Letters from leading engineers containing these statements were submitted with the National
Interest Waiver application and have not been reproduced here; nevertheless, both parties to this
suit have these letters in their possession.
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10. Defendant Jeh Johnson is the Secretary of the United States Department of Homeland Security
(hereafter “DHS”) and is sued in his official capacity only. He is charged with the
administration of the United States Citizenship and Immigration Services (hereafter “CIS”)
and implementing the Immigration and Nationality Act (hereafter “INA”). 8 C.F.R. § 2.1.
11. Defendant León Rodríguez is the Director of CIS and is sued in his official capacity only. CIS
is the component of DHS that is responsible for adjudicating Plaintiff’s I-140 petition.
12. Defendant David Roark is the Director of the Texas Service Center and is sued in his official
capacity only. The Texas Service Center is charged with the administration of the INA and
the adjudication of I-140 petitions. Plaintiff’s I-140 petition has been pending at the Texas
Service Center since October 11, 2013.
13. Defendant DHS is the department within which the CIS adjudicates immigrant based petitions.
DHS operates within this district, with headquarters in Washington, D.C.
14. Defendant CIS is the component of DHS that adjudicates I-140 petitions. CIS operates within
this district, with headquarters in Washington, D.C.
JURISDICTION AND VENUE
15. Jurisdiction of the Court is predicated upon 28 U.S.C. §§ 1331 in that the matter in controversy
arises under the Constitution and laws of the United States. This Court also has jurisdiction
over the present action pursuant to 5 U.S.C. § 702, the Administrative Procedures Act; and 28
U.S.C. § 1361, regarding an action to compel an officer of the United States to perform his or
16. Venue is proper in this District under 28 U.S.C. § 1391(e) because a substantial part of the
events and omissions giving rise to the claim occurred in this District, and because Defendants
operate within this District.
FACTS AND BACKGROUND
17. On October 9, 2013, Plaintiff, through counsel, filed Form I-140, Immigrant Petition for Alien
Worker requesting a National Interest Waiver under 8 U.S.C. § 203(b)(2)(B)(i), with the Texas
Service Center of CIS.
18. On October 11, 2013, CIS received Plaintiff’s Form I-140.
19. On October 14, 2013, CIS sent Plaintiff a receipt notice for his Form I-140 filing with receipt
20. To this date, CIS has never approved or denied Plaintiff’s properly filed I-140 petition. This
petition has been pending for nearly 2 years.
21. In the meantime, Plaintiff has successfully filed other non-immigrant applications with CIS,
including a nearly three-year extension of his H-1B status to recapture time Felizzola spent
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1. working abroad as a contractor for Exxon Mobil in South Korea, Russia, and Qatar. CIS has
granted Plaintiff approval, without issue, for these applications.
2. Plaintiff has also diligently tracked the status of his Form I-140 adjudication by requesting
numerous inquiries to CIS regarding adjudication of the Form. See Exhibit A, Log and
Responses to CIS Status Inquiries.
3. For each request, Plaintiff received a generic response from CIS, only acknowledging that his
application is under extended review. Id. Plaintiff did not receive any further explanation for
the delays. Some of Plaintiff’s status requests never received a response.
4. CIS processing times for Form I-140, Petition for Alien Worker, based on a national interest
waiver, indicates that all cases filed before December 2, 2014 have been adjudicated and a
determination rendered. Plaintiff’s application has been pending with CIS since October 11th,
2013. A nearly two-year delay in the adjudication of Plaintiff’s form is an unreasonable delay.
5. CIS has a nondiscretionary duty to adjudicate all immigration applications, and in reasonable
time. CIS has failed to adjudicate Plaintiff’s I-140 application in a reasonable time.
6. Subsequently filed petition approvals, including a 3-year H-1B extension to recapture time
spent abroad, show that Plaintiff is not suspect nor deemed a security threat by CIS, but rather
meets or exceeds all the criteria to have his I-140 petition approved. Therefore, with little to
no explanation for the extended review of his I-140 application, CIS has acted in bad faith by
not rendering a decision in reasonable time.
7. Moreover, Plaintiff and his employer have suffered significant real damages as a result of the
delay. Plaintiff travels across the globe to provide his expertise on numerous power
development projects. During the course of one such recent trip, Plaintiff was required to
renew his H-1B visa at the U.S. consulate in Milan before he could return to seek entry into
the U.S. He was subjected to a nearly three-week delay when his H-1B visa was held in
extended administrative processing. Such delays cost his employer and contractor thousands
of dollars. If his national interest waiver had been adjudicated timely, he would likely be able
to seek permanent residency in the U.S. and would no longer be subject to such burdens.
8. Plaintiff has a clear right to the relief requested. The INA and its regulations impose a duty to
issue a decision in reasonable time.
9. Plaintiff has exhausted all administrative remedies and there are no further administrative acts
Plaintiff can take to obtain the benefits to which he is entitled.
10. Plaintiff is not seeking that the Court compel the agency to render a specific decision, Rather,
because the Immigration and Nationality Act imposes a nondiscretionary duty to adjudicate
immigration applications, we respectfully request the Court to compel Defendants to do exactly
what the law orders them to do: 1) adjudicate Plaintiff’s I-140 petition, and 2) adjudicate
Plaintiff’s I-140 petition in a reasonable time.
DEFENDANTS HAVE FAILED TO CARRY OUT THEIR NON-DISCRETIONARY,
STATUTORY DUTY TO PLAINTIFF
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31. The duty to make a decision on all applications is implicit in the regulations. See, e.g., 8 C.F.R.
§ 103.2(b)(19); 8 C.F.R. § 245.2(a)(5). Additionally, the instructions from CIS inform an
applicant that he or she will be notified in writing of a decision on the application. The
instructions are incorporated into the regulations, with the same effect. See, e.g., 8 C.F.R. §
103.2(a)(1). This non-discretionary, ministerial duty of notifying an applicant of a decision
cannot be carried out unless the application is decided. Thus, the duty to make a decision and
notify the applicant carries with it a duty to adjudicate the application.
32. Furthermore, CIS’ imposition of a mandatory adjudication fee creates a duty to actually decide
the application. Congress intended that CIS would charge a fee to cover the cost of adjudicating
benefit applications such as those for adjustment. See 8 U.S.C. §1356(m). Specifically, CIS is
authorized by 8 U.S.C. §1356(m) to set “fees for providing adjudication and naturalization
services…at a level that will ensure recovery of the full costs of providing all such services.”
Id. (emphasis added). The regulations mandate that a non-refundable adjudication fee be paid
in advance. See 8 C.F.R. §§ 103.2(a)(1) and (a)(7). As such, because Plaintiff has already paid
the fees associated with Form I-140, CIS’ failure to provide adjudication of this form runs
afoul of the very purpose for which Congress imposed the statutory provision for the
disposition of moneys collected, as the sole purpose of collecting these fees is to “provide all
33. The remaining regulatory structure demonstrates that CIS has a duty to adjudicate the
application, as it is clear that the regulations presume that a decision must be made on all
EXHAUSTION OF REMEDIES
34. Plaintiff has exhausted all administrative remedies and acts and there are no further
administrative acts Plaintiff can take to obtain the benefits to which he is entitled. There is no
other adequate remedy available other than to compel Defendants to render a determination on
Plaintiff’s Form I-140. Plaintiff has repeatedly attempted to ascertain the status of his I-140
petition and to compel Defendants to make a decision on that application. See Exhibit A.
Despite these efforts, it has become apparent that no remedy is forthcoming due to the agency’s
disregard for reasonable adjudication of applications under the Immigration and Nationality
FIRST CAUSE OF ACTION:
MANDAMUS PURSUANT TO 28 U.S.C. § 1361
35. Plaintiff re-alleges and incorporate by reference, as if fully set forth herein, the allegations in
paragraphs 1-34 above.
36. The Mandamus Act, codified at 28 U.S.C. § 1361, says, in its entirety:
1361. Action to compel an officer of the United States to perform his duty.
The district courts shall have original jurisdiction of any action in
the nature of mandamus to compel an officer or employee of the
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United States or any agency thereof to perform a duty owed to the
37. A mandamus plaintiff must demonstrate that: (1) he or she has a clear right to the relief
requested; (2) the defendant has a clear duty to perform the act in question; and (3) no other
adequate remedy is available. Newsome v. E.E.O.C., 301 F.3d 227, 231 (5th Cir. 2002).
38. For a mandamus plaintiff to have standing under the Mandamus Act, he must satisfy not only
the constitutional requirements of injury, causation, and redressability, but must also establish
that such duty is owed to him. Giddings v. Chandler, 979 F.2d 1104, 1108 (5th Cir. 1992). Any
duty owed to the plaintiff must arise from another statute—or from the United States
Constitution. Id. When the right alleged stems from a statute, a duty is owed to the plaintiff
for the purpose of the Mandamus Act if, but only if, the plaintiff falls within the “zone of
interest” of the underlying statute. Id. The “zone of interest” test requires that the interests
sought to be protected by the complainant be “within the zone of interests to be protected or
regulated by the statute or constitutional guarantee in question.” Id. at 1108-09. Only then may
the Court compel the government to take action under the Mandamus Act.
39. First, Plaintiff has a clear right to have CIS adjudicate his Form I-140. His right stems from 8
U.S.C. § 1153(b)(2)(A) and (B). He falls within the “zone of interest” of this statute. Compare
Razik v. Perryman, No. 02-5189, 2003 U.S. Dist. LEXIS 13818, *6-07 (N.D. Ill. Aug. 6, 2003)
(courts have consistently held that 8 U.S.C. § 1255 provides a right to have an application for
an adjustment of status adjudicated). Similarly, Plaintiff has met or exceeded all the necessary
requirements to obtain a decision on his immigrant visa petition. Moreover, he has paid the
required, non-refundable CIS filing fee to facilitate CIS in adjudication of his petition.
40. Second, Defendants owe Plaintiff the duty to process his Form I-140 and to provide him with
an answer as to whether he may apply for an immigrant visa, in reasonable time. Courts have
held that mandamus actions can be used to compel the government to exercise its discretion in
a case where the government has failed to take any action. See Iddir v. INS, 301 F.3d 492, 500
(7th Cir. 2002) (duty to adjudicate applications under the diversity lottery program). A two-
year delay is an unreasonable amount of time to await an adjudication. See Alkenani v.
Barrows , 356 F. Supp. 2d 652, 657, n.6 (N.D. Tex. 2005) (finding 15-month delay was not
unreasonable, but noting that decisions from other jurisdictions suggest that delays
approximating two years may be unreasonable).
41. Third, no other adequate remedy is available to Plaintiff.
42. Therefore, because the Plaintiff possess a clear right sufficient to bring him within INA
203(b)(2)(B)’s zone of interest, he has standing to invoke the Mandamus Act to compel the
government Defendants to discharge the statutory duties owed to Plaintiff.
SECOND CAUSE OF ACTION:
VIOLATION OF ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. §§ 555, 706, et seq.
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43. Plaintiff re-alleges and incorporates by reference, as if fully set forth herein, the allegations in
paragraphs 1-42 above.
44. The Administrative Procedure Act (“APA”), codified at 5 U.S.C. § 706 states, in pertinent part:
The reviewing court shall--
(1) compel agency action unlawfully withheld or unreasonably
(2) hold unlawful and set aside agency action, findings, and
conclusions found to be--
(A) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law;
(B) contrary to constitutional right, power, privilege, or
(C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed on
the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court. (emphasis
45. Additionally, the APA at 5 U.S.C. § 555 states, “With due regard for the convenience and
necessity of the parties or their representatives and within a reasonable time, each agency shall
proceed to conclude a matter presented to it.” § 555(b) (emphasis added). See, e.g., Pedrozo v.
Clinton, 610 F. Supp. 2d 730, 738 (S.D. Tex. 2009) (holding that an eleven-month delay of a
non-immigrant visa was not unreasonable only as a result of CIS’ prior intent to revoke and
petitioner’s contributed delays). Additionally, “although there appears to be no statutory or
regulatory deadlines by which an [I-140] petition for [immigrant] status must be processed, at
some point failure to take action runs afoul of the APA.” Id.
46. “Prompt notice shall be given of the denial in whole or in part of a written application, petition,
or other request of an interested person made in connection with any agency proceeding.” §
555(e) (emphasis added).
47. Courts have consistently held that policies or practices of federal agencies—including INS
(now CIS)—which fail to follow statutory or regulatory requirements violate the APA. See,
e.g., Nader v. F.C.C., 520 F.2d 182, 206 (1st Cir. 1975) (holding that administrative agencies
have a duty to decide issues presented to them within a reasonable time, and reviewing courts
have a duty to compel agency action unlawfully withheld or unreasonably delayed); Silverman
v. N.L.R.B., 543 F.2d 428, 429-30 (2d Cir. 1976) (holding that inaction by Labor Board for
five years after judgment violated mandate of APA providing for prompt disposition of agency
proceedings); In re American Rivers and Idaho Rivers United, 372 F.3d 413, 420 (D.C. Cir.
2004) (six-year delay by Federal Energy Regulatory Commission in answering environmental
group's petition was plainly unreasonable and warranted mandamus relief for prompt answer).
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48. As such, Plaintiff has four viable claims under the APA.
49. First, pursuant to § 706(2)(A), Defendants have acted in a way that is “arbitrary, capricious…or
otherwise not in accordance with law” when they disregarded 8 U.S.C. § 1153(b)(2)(B) by
causing Plaintiff to wait nearly 2 years for a determination on Form I-140. Thus, judicial review
is warranted under § 706(1) to “compel agency action unlawfully withheld or unreasonably
50. Second, pursuant to § 706(2)(C), Defendants’ failure to adjudicate Plaintiff’s Form I-140 was
“short of [Plaintiff’s] statutory right” to have his Form I-140 adjudicated, as determined by
INA 203(b)(2)(B). Thus, judicial review is warranted under § 706(1) to “compel agency action
unlawfully withheld or unreasonably delayed.”
51. Third, pursuant to § 706(2)(D), Defendants failed to observe the clear non-discretionary
“procedure required by law” that specifically set out a time frame for adjudicating I-140
petitions, i.e. in reasonable time. Thus, judicial review is warranted under § 706(1) to “compel
agency action unlawfully withheld or unreasonably delayed.”
52. Finally, pursuant to § 555(b) and (e), Defendants failed to conclude the matter of Form I-140
presented to it nearly 2 years ago within a “reasonable time,” and they have failed to provide
“prompt notice” of such determination to Plaintiff. Plaintiff provided a timely application and
has exercised the utmost diligence in pursuing the processing of his application. In turn, CIS
has provided Plaintiff inaction and little to no explanation for the ongoing delay in
adjudication, thus causing undue inconvenience to Plaintiff.
53. As a result of Defendants’ practices, policies, conduct, and failures to act which have directly
violated 5 U.S.C. §§ 555 and 706, Plaintiff has been unduly prejudiced.
PRAYER FOR RELIEF
54. Plaintiff requests the Court to grant the following relief:
A. Accept and retain jurisdiction during the adjudication of the I-140 petition in order to
ensure compliance with the Court’s orders;
B. Issue a writ in the nature of mandamus, pursuant to 8 U.S.C. § 1153(b)(2)(B)
compelling defendants to perform non-discretionary adjudication of Plaintiff’s I-140
petition and perform adjudication of the petition in a reasonable time;
C. Order Defendants to undertake the actions dictated in Paragraph B above on or before
60 days from the filing of this complaint, or within a reasonable period of time
determined by this Court;
D. Award reasonable costs and attorneys’ fees under the Equal Access to Justice Act, 5
U.S.C. § 504 and 28 U.S.C. § 2412; and
E. Grant such other relief as the Court may deem just and proper.
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MANDAMUS PETITION--INDEX OF EXHIBITS
Log of and Responses to CIS Status Inquiries A
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