Deng v. Mayorkas

Background

Ke Deng, appearing without a lawyer, brought an action under 28 U.S.C. § 1361, a statute that allows a court to order a federal official to perform a required duty. Deng sought an order concerning the United States Citizenship and Immigration Services’ alleged failure to decide his appeal of the denial of his application to adjust his immigration status. The opinion states that the court had previously allowed Deng to proceed without paying filing fees.

Service of the Lawsuit

Because Deng was allowed to proceed without paying filing fees, the court said he could rely on the court and the U.S. Marshals Service to serve the defendants. The court extended the time for service until 90 days after the summonses were issued, explaining that Deng could not serve the defendants before the court reviewed the complaint and ordered summonses issued. The court stated that Deng should ask for more time if service was not completed within that period.

The court directed the clerk to prepare service forms for Alejandro Mayorkas, Timothy Houghton, and Scott Velez; identify service on the United States; issue summonses; and provide the necessary documents to the U.S. Marshals Service. The clerk was also directed to ensure that copies were served on the Office of the United States Attorney for the Southern District of New York. Deng was required to notify the court in writing of any address change, and the court stated that the action could be dismissed if he failed to do so.

Ruling

The court ordered the clerk to issue the summonses, complete the service forms, and deliver the required documents to the U.S. Marshals Service. It also directed that a copy of the order and an information package be mailed to Deng. The court did not decide whether Deng was entitled to an order requiring an immigration decision. Judge Vernon S. Broderick certified that an appeal from this order would not be taken in good faith and denied permission to appeal without paying fees.