I agree with lotechguy.
Here is a sample complaint
Check the first page of this forum and this page as a starting point
I decided to share my pleading with this forum after removing all personal info from it, so that it can benefit others too, in addition to you. I expect there will be quite a number of N-400 NO INTERVIEW cases now, as since April 2006, USCIS stopped interviewing N-400 applicants whose name check is not complete.
Please note that it was my "First Amended" pleading, so I removed the first couple of lines, so that you can simply use it as "Original" pleading.
Please feel free to contact me via PM if you need any help. I am hoping my case will resolve soon, but I will still be around in the forum after my case is resolved. Until this point, USCIS has caused too much damage for me, and I hope they schedule my interview soon and don't cause any more delay in approving my naturalization. If any of you can, do pray for me. This is not over till I take my oath.
How to request it ?
Just like how you filed the complaint. The caption should be REQUEST FOR DOCUMENTS. and you can list all the documents you want. But be very specific. My queries were dismissed by USCIS as being too vague. I wanted statistical information which they said would be too difficult to compute.
Here's sample documents request.
Here we go. MTD Denied in VT.
I am also preparing my opposition for MTD. The AUSA I am against had recently persuaded several judges to dismiss WOM cases due to "no subject matter jurisdiction" Here are the main arguements from AUSA:
"The court lacks subject matter jurisdiction to grant mandamus because 8 U.S.C & 1252(a)(2)(B)(ii), divests courts of jurisdiction to review discretionary action of USCIS. ...pursuant to 28 U.S.C.&1367, plaintiff has no clear right to immediate adjudiction...pursuant to 5 U.S. C. $701(a((2), APA precludes the Court from reviewing Plaintiff's claim"
I see examples how to argue about discretionary action. However, the court decided that "USCIS has submitted that it will continue to perform any outstanding background and security checks as expeditiously as possible"..the Court simply cannot find nor conclude on these factos that the delay or slow pace is ...a failure to adjudicate or process". Apparently, they dont consider FBI is the main reason for dealy and USCIS is doing whatever they can. What should I argue about that? Do you have good examples against APA and immediate adjudiction arguments?
I do not have a sample for an opposition to motion for enlargement of time, but it should be pretty simple. Mention that 1) one extension for 60 days has been already granted; 2) the nature of the case is time-sensitive (agency delay) and that you are sufferring unrepairable injury because of the delay; 3) you will need to pay for EAD/AP extension which will cost you such and such amount if the case is not resolved by such a date.
Thank you AGC4ME.
She is offering to file a joint motion if I want, but advises against it,
saying that my case is being treated as if there was court litigation anyway.
She sent me a USCIS fax where a request to expedite my namecheck was
approved on July 16th. It is unbelievable that 3 months is not enough
to complete an expedited namecheck but I guess that is the case.
The reason I am still thinking about it, is if namecheck was to complete
soon, and I had the case reopened, USCIS won't be able adjudicate my
case, because it would be in court's jurisdiction. So then I'd have to
withdraw it again to let USCIS adjudicate it, or wait for judge ruling?
I think I read somewhere that there are limits as to how many times a
complaint can be reopened or withdrawn. I may be wrong, but I'm trying
to consider all the possible paths this can take carefully.
Yes, I was carried away and impressed when AUSA called me and trusted
her. I was being an idiot. It would have been a much better option to
have her file a promise to adjudicate with the court.
Here is what I put in voluntary dismissal:
COME NOW XXX Plaintiff, PRO SE, hereby voluntary dismisses this cause of action, without prejudice, pursuant to Rule 41 of FRCP. Plaintiff was informed by XXX, AUSA, that USCIS received the results of background checks, and is prepared to proceed with adjudication. Thus Plaintiff no longer wishes to pursue his claims as set forth in the compliant.
Since yours is a nat. case, even the courts could nat. you. So once you file the case the jurisdiction goes to the court. It can order FBI to complete the name check expeditiously and nat. you. Read Al-Kudsi opinion. The Court even offered the Plaintiff to set a date convenient for him to be naturalized. This country right now runs because of efficient judiciary not because of efficient bureaucracy. So if the court has jurisdiction over your case, I would rather do it ASAP. Remember the court has to deal with your case only and may be a few other nat. cases whereas USCIS handles hundreds of thousands. Which one would you think would be more responsive and efficient.
I'm thinking about writing a letter to Ombudsman regarding excessive nc delay, mine has been pending 46 months, he's been talking about some immediate resolution for cases pending 33+ months, don't know how much effect it will have. My WOM still waiting judge rule on MTD for 5 months now. I'm too stressed out, need do whatever possible to resolve the case. How do you guys think? Paz, Lotechguy, Lazycis, GC4ME and other active members, what should I do?
ATTISHA v. JENIFER, 2007 U.S. Dist. LEXIS 65761 (E.D. Mich., Sep 6, 2007)
"[N]ame check request has been pending now, by the court's calculation, for 815 days. While the court understands that defendants and the FBI have an enormous and difficult case load, the extreme delay that has occurred in this case is intolerable by any standard.
Remanding the case "for completion of the examination" would do nothing to ensure that defendants will, in fact, complete the examination and make a decision. Defendants offer no guarantee that they will not delay the
matter for additional months or years, if not indefinitely."
My company's attorney (a litigation attorney, not an immigration attorney) mentioned to me once that I can write a letter to the judge's chambers; explain the hardship you go through and ask him/her to look into the case expeditiously. He also said the judges also have clerks (in addition to the the court's clerk who serve the district court) and these clerks handle just the cases assigned to that particular judge. So you may talk to your judge's clerk and try to get some more info about your case.
You haven't provided any details on what type of case you have, but your email implies you have a AOS case. If this is the case, then you need to file the standard mandamus case like others have filed, and name USCIS as well as FBI as defendants.
If you have filed AOS based on your marriage to a U.S. citizen, then you don't need to worry about your B2 visa overstay. Your B2 visa does not matter any more. You are in legal status as your AOS is pending.
Write to the Ombudsman, it won't hurt your case. You should put pressure on your attorney to expedite the resolution of your case. What is the point in waiting? If the judge is pro-government, it will not help your case. If AUSA has already asked USCIS to expedite your case, who cares if your case is dismissed in district court? The AOS processing will continue regardless of court proceedings. To me, having a decision (good or bad) is better then wait indefinitely. 5 month wait for a judge decision is ridiculous. If anything, file MSJ.
How much does it cost to get a Lawyer to expedite my Name check. I applied in March 2005 and I am still waiting. I have gone through interview. Only thing pending is my name check.
Also USCIS is asking me to fingerprints (on Sep 22 2007) a second time. Is that becuase my name check has come through. I really am tired of this wait. I want to pay my lawyer to prepare for a lawsuit (had been apprehensive but after reading this forum, it may be my only hope) . He is charging me $2500 to begin with and $10000 if I go to court. Is the cost appropriate?
thank you lazycis, thanks you verymuch.
i wanted to share a letter received from USCIS today...
as per the service request raised by me on jul 13th..
i received a letter prepared and mailed on aug 3oth.
the status of this service request is:
based on your request we researched the status of this case.we are actively processing this thime.however, we have to perform additional review on this case and has caused longer processing time.if you do not receive a decision or other notice of action from us with in 60 days of this letter,please call customer sevice at the number provided below.158"
after reading this i have plenty of question because according to infopass and senators enquiry i am stuck in name check? since jan 2005.
i understand from this letter may i am gonna get another letter with in 60 days.. saying that i stuck under name check??
CAN YOU GUYS PLAESE COMMENT/SUGGEST ..on this
I-140 AD MAY-2005
I-485 RD JAN-15 2005
NC cleared on nov16th 2007 as
per INFO PASS
NOW waiting for priority date
Our case is somehow different from the majority of cases in the forum, but maybe somebody have heard about similar situations or perhaps some nearly professionals, like Lazycis, could just read our complaint and advise how to improve it.
FYI, our second I140 was approved, I485 denied. The Nebraska center states that the main applicant "accrued 224 days of unlawful presence", which is not true as we filed for the first I140 and I485 when we in legal status. When those petitions were denied we left the country before accruing 180 days and got a new H1b and H4s respectfully.
Please read the attached draft of the complaint (it was written using many materials from this forum) and send your suggestions.
Thanks a lot.
Let me understand the case here. You applied for your second I-485 which was denied because USCIS believes you accrued 224 days of unlawful presence when your first I-485 was denied. if your second I-485 has been denied you'll have to first use the administrative procedures. Did you appeal to BIA ? Have you gone through the Immigration Judge ? Only after this can you file a suit in the court.
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