IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELIZABETH DRIDI, et al. : CIVIL ACTION

:

v. :

:

MICHAEL CHERTOFF, SECRETARY :

OF THE DEPARTMENT OF HOMELAND :

SECURITY, et al. : NO. 05-1547

MEMORANDUM AND ORDER

McLaughlin, J. August 17, 2005

Elizabeth and Mourad Dridi filed this complaint and

petition for mandamus to force the defendants to adjudicate the

petition for alien fiancé filed by Elizabeth Dridi on behalf of

Mourad Dridi on May 29, 2003. Mr. Dridi was deported from this

country to Tunisia on or about August 1, 2001. Since the filing

of the complaint and petition, the United States Citizenship and

Immigration Services (“USCIS”) has acted upon the petition for

alien fiancé and the plaintiffs have at least two avenues of

relief they may pursue with the USCIS. For that reason, this

complaint and petition is premature and the Court will dismiss

it.

I. Facts

Mourad Dridi, a native and citizen of Tunisia, entered

the United States in December of 1982 on a tourist visa. Mr.

Dridi applied to have his tourist visa changed to a student visa,

Case 2:05-cv-01547-MAM Document 14 Filed 08/17/05 Page 1 of 8
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but that request was denied. His permission to stay in the

United States expired in May 1984.

In September of 1984, Mr. Dridi married Lee Schaible, a

United States citizen. Because of his marriage, his status was

adjusted to that of a lawful permanent resident on April 26,

1986. As part of the process of adjusting his status, i.e.,

obtaining his “green card,” Mr. Dridi certified to immigration

officials that he and his wife, Ms. Schaible, were living

together at the same residence. Sometime in 1987, immigration

officials initiated an investigation into the facts surrounding

Mr. Dridi’s marriage to Ms. Schaible and allegations that Mr.

Dridi had arranged a false marriage between his friend, Hani

Alayan, and Mr. Dridi’s girlfriend, Louise Norman. 

In May of 1988, Mourad Dridi, along with Hani Alayan,

was presented with an eleven count criminal indictment that he

had violated the immigration laws by entering into a marriage

with Ms. Schaible whose sole purpose was to obtain lawful

permanent residence for himself, and also for arranging the false

marriage of Ms. Norman to Mr. Alayan for the sole purpose of

obtaining a green card for Mr. Alayan. Mr. Dridi pled guilty to

four counts in the indictment in August of 1988. He was

sentenced to two years in federal prison.

Upon his release from prison, Mr. Dridi was served with

a Detainer and an Order to Show Cause by the Immigration and

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Naturalization Service. The Order to Show Cause set forth the

INS’s charge that Mr. Dridi was deportable from the United States

pursuant to Section 241(a)(4) of the Immigration and Nationality

Act, 8 U.S.C. § 1251 (a)(4), on the grounds that he had been

convicted of two crimes involving moral turpitude not arising out

of a single scheme of criminal misconduct, i.e., making false

statements about living with his wife Ms. Schaible, and arranging

the fraudulent marriage between Mr. Alayan and Ms. Norman. After

a hearing before an Immigration Judge, on September 22, 1989, Mr.

Dridi was ordered deported from the United States. His appeal to

the Board of Immigration Appeals (BIA) was subsequently

dismissed. Mr. Dridi continued to remain in the United States.

Mr. Dridi married Elizabeth Delaney Dridi in November

of 1999. In January of the following year, 2000, the Dridis had

a son. In July of 2000, Mr. Dridi was taken into custody by

immigration officials for the purpose of carrying out his removal

from the United States. Following petitioner’s detention by

immigration authorities, Ms. Dridi filed an I-130 Petition for

Alien Relative in September of 2000, in order to adjust Mr.

Dridi’s status, which would allow him to remain lawfully in the

United States.

While the I-130 Petition for Alien Relative was

pending, Mr. Dridi was released on bond (in February, 2001), but

on June 1, 2001, he was again detained by immigration

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authorities. Counsel for Ms. Dridi filed a petition for Stay of

Removal on June 29, 2001, citing the extreme hardship that would

befall Mrs. Dridi and her infant son if Mr. Dridi was removed

from the United States. The District Director of ICE denied the

request for a stay, and Mr. Dridi was removed to Tunisia on July

31, 2001. Shortly before he left the country, Mr. Dridi’s

divorce from Ms. Schaible was finalized, on July 23, 2001.

At the time the petitioner was removed to Tunisia, Mrs.

Dridi was pregnant with their second child. Ms. Dridi traveled

to Tunisia to be with Mourad Dridi from September through

December, 2001, returning to the United States prior to giving

birth to the couple’s second son in January, 2002. Ms. Dridi

also visited her husband in Tunisia from May 29 to October 4,

2002.

In May of 2003, Ms. Dridi’s I-130 Petition for Alien

Relative was denied because there had been no response received

to a request from the U.S. Citizenship and Immigration Services

(USCIS) for proof of a valid divorce of Mourad Dridi from Lee

Schaible. Following the denial of the I-130 on May 9, 2003, Ms.

Dridi then sought to refile a Petition for Alien Fiancé, Form I129F, that would allow Mr. Dridi to seek a visa for entry into

this country. This I-129F Petition was filed on or about May 29,

2003.

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Prior to the filing of this Complaint and Petition for

Writ of Mandamus, the plaintiffs’ I-129F Petition had not been

processed (either approved or denied) by USCIS. Subsequent to

the filing of the Complaint, USCIS approved the I-129F Petition

on April 13, 2005. USCIS, however, is now of the view that the

petition was improvidently granted, because the plaintiffs are in

fact married under Pennsylvania law, and an I-129F Petition was

not properly issued for an alien spouse (vs. an alien fiance). 

Counsel for USCIS and the Assistant United States Attorney

assigned to this case have spoken with Mr. Hohenstein, counsel

for the plaintiffs, about this matter. USCIS counsel explained

to Mr. Hohenstein that there was a problem with the issuance of

the I-129F, because the law and facts indicated that the

petitioners are married, and offered a resolution of the matter

that would involve withdrawal of the I-129F, and having Ms. Dridi

file an I-130F for an Alien Spouse. By letter dated April 25,

2005, Mr. Hohenstein declined to withdraw the I-129F and file an

I-130 and a new I-129F.

Based on Mr. Hohenstein’s position, USCIS notified Mr.

Hohenstein that the approved I-129F was under review, and would

not be forwarded to the National Visa Center. By letter dated

June 9, 2005, Mr. Hohenstein was notified that the USCIS was

moving to reopen and reconsider its approval of the I-129F for

the reasons set forth in USCIS’s counsel’s telephone call with

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Mr. Hohenstein, i.e., that the Dridis are legally married, and

that in order for the I-129F for a spouse to be granted, there

needs to be an I-130 pending.

II. Discussion

The plaintiffs have brought their complaint and

petition pursuant to 5 U.S.C. § 706(2) of the Administrative

Procedures Act (“APA”), which allows an action by a person

suffering a legal wrong because of a final agency action, and

pursuant to 28 U.S.C. § 1361, which provides for writs of

mandamus to compel an officer or employee of the United States to

perform a duty owed to the plaintiff. The agency action

complained of is the failure of the USCIS to adjudicate the I129F Petition for Alien Fiancé for a period of almost two years,

which is alleged to amount to a constructive denial of the

petition. 

The APA allows for judicial review of agency

action or inaction if it is a “final agency action for which

there is no other adequate remedy in a court.” 5 U.S.C. § 704. 

The APA review procedures are inapplicable here because there has

been no final agency action and no exhaustion of administrative

remedies. There has been no final determination with respect to

the I-129F.

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Since the filing of the complaint and petition, the I129F Petition was granted and then that decision was reversed. 

The plaintiffs currently have two options before the USCIS. They

can prove that they are not married and that the I-129F Petition

was properly granted, or they can withdraw the I-129F Petition

and refile it with an I-130. Under these circumstances, the case

is premature.

Nor does this situation present the extraordinary

circumstances that would be necessary for a writ of mandamus to

issue. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34

(1980). To the extent that the plaintiffs are seeking action on

the I-129F Petition, that action has been taken. Moreover, there

does not appear to be a particular time frame for ruling on the

I-129F petition that could support a finding that there is or was

a failure to perform a duty owed to the plaintiffs. Courts that

have ruled on similar questions have consistently held that the

actions of immigration authorities with respect to the timeliness

of decisions on immigration petitions are discretionary not

mandatory, and, therefore, not subject to a mandamus petition. 

See, e.g., Aguirre v. Rios, 276 F. Supp. 2d 1995 (D. Kan. 2003);

Asare v. Ferro, 999 F.Supp. 657 (D. Md. 1998); Robertson v.

Attorney General of the United States, 957 F. Supp. 1035 (N.D.

Ill. 1997); Rahman v. McElroy, 884 F. Supp. 782 (S.D.N.Y. 1995).

An appropriate order follows.

Case 2:05-cv-01547-MAM Document 14 Filed 08/17/05 Page 7 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ELIZABETH DRIDI, et al. : CIVIL ACTION

:

v. :

:

MICHAEL CHERTOFF, SECRETARY :

OF THE DEPARTMENT OF HOMELAND :

SECURITY, et al. : NO. 05-1547

ORDER

AND NOW, this 17th day of August, 2005, upon

consideration of plaintiffs’ Complaint and Petition for Writ of

Mandamus (Docket No. 1), Federal defendants' Response/Answer to

Complaint and Petition for Writ of Mandamus, plaintiffs’ Reply

and Request for Conference, plaintiffs’ Supplemental Submission,

Federal defendants’ response to plaintiff’s Supplemental

Submission, and hearing on July 1, 2005, IT IS HEREBY ORDERED

that the Complaint and Petition is dismissed for the reasons

stated in a memorandum of today’s date.

BY THE COURT:

/s/ Mary A. McLaughlin____

MARY A. McLAUGHLIN, J.

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