Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)

[Mohakem]

i am not sure why your lawyer wanted to take 5 months to sue. My lawyer filed the lawsuit the day after we agreed to go ahead. The complaint took a day to be compiled and served. it is a very simple process as long as you have all the documents and necessary stuff in order. I felt I was being a sucker to pay $2500 for this simple effort until USCIS started messing with me and lawyer set them straight.

Please stay away from the lawyers that want to dance by sending "intent to lawsuit' letters. Those do not work anymore. You are hiring a "hit man' when you are hiring a lawyer. You want the job done quick and fast. By the way, the filing fee is $350 at a federal court for any type of complaint.

I talked to one lawyer before deciding go pro se 1447(b).

The lawyer quoted 2500$ plus 455$ law suit fee, but she will need 5 months to do the job.

I thought pro se will be faster since we are only working on one case, while the lawyer might be looking at multiple cases at the same time.

Btw, OK_Boy, here is the complaint I filed. Let me know if you have any ideas.

 

[Mohakem]

Do you know anyone getting any benefit out of the following: http://www.uscis.gov/portal/site/us...nnel=098daca797e63110VgnVCM1000004718190aRCRD

I am yet to meet one. i know 4 cases where nothing happened.

 

[waitforsolong]

One question about my case

In the end of my complaint, I put:
In the alternative, the Court may remand requiring Defendants to immediately adjudicate Plaintiff's naturalization application.


Does that mean that I allowed the court to let USCIS to adjudicate my case and I have to continue to suffer from USCIS's slow motion?

Our last call to DA have already shown that USCIS is still in pending mode, "since they have a lot lawsuit before me to deal with".

Does it help that I file an amendment on court to take out this last sense? How can I ask the court to adjudicate my case directly instead of continue to wait for USCIS local office forever?


Thanks,

 

[lazycis]

I wonder if a pro se plaintiff can still hire a lawyer after he/she files the lawsuit. If things don't go well for the pro se plaintiff, and he/she can't handle it, can the lawyer takes over the case?

Thanks

You can hire a lawyer to take over a case at any stage. Use 28 USC 1331, 5 USC 555(b), 5 USC 702,706, 8 CFR 335.3, 8 USC 1447(b), 8 USC 1571-1573, 28 USC 1361, Fifth Amendment due process clause in the Constitution to assert jurisdiction in your complaint.

 

[lazycis]

In the end of my complaint, I put:
In the alternative, the Court may remand requiring Defendants to immediately adjudicate Plaintiff's naturalization application.


Does that mean that I allowed the court to let USCIS to adjudicate my case and I have to continue to suffer from USCIS's slow motion?

Our last call to DA have already shown that USCIS is still in pending mode, "since they have a lot lawsuit before me to deal with".

Does it help that I file an amendment on court to take out this last sense? How can I ask the court to adjudicate my case directly instead of continue to wait for USCIS local office forever?


Thanks,

Because you said "to immediately adjudicate", I do not see a need for amending complaint.

 

[OK-Boy]

Waitforsolong,

WHEREFORE, Petitioner prays that this Court grant the following relief:

(1) Assume jurisdiction over this matter;

(2) Provide a de novo hearing on Petitioner’s application for
naturalization and grant his naturalization;

(3) Award reasonable costs and attorneys’ fees; and

(4) Grant such further relief as the Court deems just and proper.

Your suit needs to be edited a lot as it should be more descriptive to get the Judge understand the whole situation. My actual complaint (1447(b)) consiste of 17 pages and I'm still working on it.

OK-Boy

In the end of my complaint, I put:
In the alternative, the Court may remand requiring Defendants to immediately adjudicate Plaintiff's naturalization application.


Does that mean that I allowed the court to let USCIS to adjudicate my case and I have to continue to suffer from USCIS's slow motion?

Our last call to DA have already shown that USCIS is still in pending mode, "since they have a lot lawsuit before me to deal with".

Does it help that I file an amendment on court to take out this last sense? How can I ask the court to adjudicate my case directly instead of continue to wait for USCIS local office forever?


Thanks,

 

[sweetapple]

Mohakem:

Thanks for the reply. I appreciate your help. I probably will file my lawsuit in DC instead of MD. I look forward to see your WOM complaint.

sweetapple,
I used the following exhibits:
- N400 receipt
- Interview Result given after the interview
- FOIA response from FBI
- Response from Local USCIS
- Response from USCIS
- Email response from FBI stating name check is in progress (No longer available via email)
- Response from Congressman
- Copy of the Green Card

I will post the WOM complaint once i get a chance to scan it.

 

[sweetapple]

Recent ruling on N-400 WOM case in DC

I downloaded a recent opinion from DC district court on N-400 WOM case (please see the attached image). The judge granted the defendants' MTD. So, it's not a favorable district either.
Maybe cases for 1447b are more favorable.

Any opinions on this???

Thanks !

 

[waitforsolong]

OK_Boy

Thanks for comments.

Could you share your complaint when you finish it?

Also, what do you think I can do now since I have filed it on court?

Thanks,

 

[lazycis]

I downloaded a recent opinion from DC district court on N-400 WOM case (please see the attached image). The judge granted the defendants' MTD. So, it's not a favorable district either.
Maybe cases for 1447b are more favorable.

Any opinions on this???

Thanks !

If you read the opinion, it's actually favorable to Plaintiff. The court denied MTD as to the USCIS and DHS, but granted it as to FBI. It's a victory for the plaintiff as the court recognized that the USCIS has the duty to adjudicate N400 within a reasonable time. I actually agree with the court that the FBI has no mandatory duty to perform name check as it's not authorized by laws and regulations!

 

[sweetapple]

Hi Lazycis:

Thanks for the response. It seems that only FBI was excused from the lawsuit but not other defendants. I need to read the opinion more carefully. Also, it mentions that Mandamus relief is available only if ... "(3) there is no other adequate remedy available to the plaintiff".

So perhaps I shouldn't use the MOM if I file a pro se 1447 b case in DC?

As I searched the court opinions for both MD and DC on its web site, I can only find one opinion on immigration issue in DC. I guess I have to use PACER to check out the relevant cases.

If you read the opinion, it's actually favorable to Plaintiff. The court denied MTD as to the USCIS and DHS, but granted it as to FBI. It's a victory for the plaintiff as the court recognized that the USCIS has the duty to adjudicate N400 within a reasonable time. I actually agree with the court that the FBI has no mandatory duty to perform name check as it's not authorized by laws and regulations!

 

[lazycis]

Hi Lazycis:

Thanks for the response. It seems that only FBI was excused from the lawsuit but not other defendants. I need to read the opinion more carefully. Also, it mentions that Mandamus relief is available only if ... "(3) there is no other adequate remedy available to the plaintiff".

So perhaps I shouldn't use the MOM if I file a pro se 1447 b case in DC?

As I searched the court opinions for both MD and DC on its web site, I can only find one opinion on immigration issue in DC. I guess I have to use PACER to check out the relevant cases.

Yes, mandamus statute is not applicable when you use 1447b. However you can still use APA statutes if you want to. If you have access to Lexis, you can search for opinions there. I am not aware of any favorable opinions in MD. In fact, I am not aware of any opinion regarding N-400 in MD. I know another favorable opinion in DC (I-485 WOM): Liu v. Novak, 2007-0263
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2007cv0263-13

 

[Derek]

Anybody has the same experience?

I had my N-400 application adjudicated and approved on 04-23-2008, but until today I still not receive the oath letter yet, is there anybody know usually how long will it take?

Basic information:
N-400 Filing on 03/23/2006
Fingerprint taken on 04/27/2006
Passed interview on 07/10/2006
waiting for the oath letter because of the name check...
Lawsuit(Pro Se) Filed on 01/02/2008
AUSA asked 2 weeks extension to answer on 03/04/2008
AUSA second motion for extension of time to answer on 03/13/2008
AUSA filed ANSWER to Complaint on 04/01/2008
Judge Order that Proposed discovery plan and scheduling order shall be filed by April 25, 2008
Filed MSJ on 04/09/2008
AUSA asked 2 weeks extension to respond MSJ
Fingerprint re-taken on 04/21/2008
Application was adjudicated and approved on 04/23/2008
AUSA filed Motion to dismiss plaintiff's lawsuit as moot on 04/28/2008
Filed unopposed motion for extension of time to respond to Defendant's
Motion To Dismiss Plaintiff's Lawsuit As Moot on May 6,2008

Waiting for the oath letter...

Civil No. 08-0003-CV-W-FJG
THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION[/QUOTE]

 

[madiba]

Is anyone here who is filing a lawsuit also asking to have the approval backdated so that we can credit for the time name check was going on. I have also been stuck in name check for more than 2 years now and am getting ready to file WOM. I think it would be good though if the GC can be backdated so that we can immediately apply for removal of conditional status.

 

[N400-Misery]

Lazycis

Lazycis, just a reminder that I just emailed you what you asked for.

Many thanks

 

[wommei]

Lazycis

Hey, Lazycis,

The following are some arguments from the reply of the defendants. I don't know what "misrepresentation" is. Do you think it is better to retreat and give in on the estoppel claim?
The way I understand this visa number situation is:
We have 3 paralell arguments and if the court accept one of the arguments, we will win the case and get I485 adjudicated:
1) The visa number is unavailable due to unreasonable delay by the defendants, and should not be used as an excuse to deprive the relief that the plaintiff otherwise entitled. Xia v. Muller, March 31, 2008
2) Estoppel Claim
3) Visa number is assigned when an application is filed, not when it is adjudicated. The EB visa number doesn't expire at the end of fisical year.
Thanks a lot!

"Plaintiffs fail, however, to establish the elements of their estoppel argument; namely, any misrepresentation by the government, and their reasonable reliance on any alleged misrepresentation. Heckler v. Community Health Services, 467 U.S. 51 (1984).
........
Because there was no misrepresentation, or affirmative misconduct, plaintiffs cannot prove the reliance prong on their estoppel argument. And certainly, any such reliance, if present, would not be reasonable. Plaintiffs have no constitutionally protected interest in immigrant visas or the procedures by which such visas are obtained. Amoakowaa v. Reno, 94 F. Supp. 2d 903 (N.D. Ill. 2000)(citing, DeAvilia v. Civiletti, 643 F.2d 471, 477 (7th Cir. 1981)(“Visa applicants have no vested right in the issuance of visas.”). See also Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321 (1982)(“This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional right regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.”)

Hey, lazycis and other members,

Attached is the reply i got today. It basically says that I cannot establish the elements for estoppel. And the dates that my priority date was current was "a brief window" (from June 2007 to November 2007). Maybe it is a brief window in the planet where USCIS lives--their minimum time counting units appear to be months or years.
Also I don't understand about all the "lies". In this reply, she says that I filed first amended complaint AFTER MTD, which is not true, again.
I will think more about it during weekends. Maybe I should wait to file something after I get the answer ( it is due on May 22nd).
Thanks for any inputs or opinions!

 

[wommei]

Arguments about "brief window"

Hey, lazycis and other members,

The defendants argued that my priority date was current for "a brief window", which is 6 months. The following are the rebuttal that I prepared. Any comments or suggesions are welcome!

Defendants claimed that Plaintiffs’ visa priority date retrogressed on December 2007, “after a brief window in which all visa priority dates were declared current”. However, the fact is that the plaintiffs’ visa priority date was current from June 2007 to November 2007, which cannot be considered as a brief window within the context. The defendants concede that USCIS has a mandatory duty to utilize 140,000 visas plus any family based visas which have been unused in the previous fiscal year on Employment based (EB) visa applicants annually. Therefore, at least 70,000 employment-based I485 cases have been or should have been adjudicated during this so-called “brief window”. Additionally, the facts here are two-fold: The priority date for EB2 preference category for Chinese nationals have undergone serious retrogression twice within last 3 years; while thousands of EB visa number have been wasted because USCIS don’t process enough pending applications in a timely manner. “In FY 06, over 10,000 employment-based visas were lost, even though USCIS had an estimated 100,000 to 150,000 pending applications for employment-based green cards.” (see Ombudsman report for 2007 at page 33-34). The slow and random movement of the visa priority date, and the subsequent generation of this so-called “brief window” are in clear violation of congressional intent because USCIS has a mandatory duty to utilize visa numbers to the fullest extent possible. See Galvez v. Howerton, 503 F. Supp. 35, 38-39 (C.D. Cal. 1980).

 

[wom_ri]

I hope the attached cases will help your reply.
Sorry.. I am slowly getting outdated from current developments.

Hey, Lazycis,

The following are some arguments from the reply of the defendants. I don't know what "misrepresentation" is. Do you think it is better to retreat and give in on the estoppel claim?
The way I understand this visa number situation is:
We have 3 paralell arguments and if the court accept one of the arguments, we will win the case and get I485 adjudicated:
1) The visa number is unavailable due to unreasonable delay by the defendants, and should not be used as an excuse to deprive the relief that the plaintiff otherwise entitled. Xia v. Muller, March 31, 2008
2) Estoppel Claim
3) Visa number is assigned when an application is filed, not when it is adjudicated. The EB visa number doesn't expire at the end of fisical year.
Thanks a lot!

"Plaintiffs fail, however, to establish the elements of their estoppel argument; namely, any misrepresentation by the government, and their reasonable reliance on any alleged misrepresentation. Heckler v. Community Health Services, 467 U.S. 51 (1984).
........
Because there was no misrepresentation, or affirmative misconduct, plaintiffs cannot prove the reliance prong on their estoppel argument. And certainly, any such reliance, if present, would not be reasonable. Plaintiffs have no constitutionally protected interest in immigrant visas or the procedures by which such visas are obtained. Amoakowaa v. Reno, 94 F. Supp. 2d 903 (N.D. Ill. 2000)(citing, DeAvilia v. Civiletti, 643 F.2d 471, 477 (7th Cir. 1981)(“Visa applicants have no vested right in the issuance of visas.”). See also Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321 (1982)(“This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional right regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.”)

 

[wom_ri]

good luck..
if you have access to LEXISNexis or other database, research more with keywords:
a) INS & Estoppel
b) USCIS & Estoppel
c) Estoppel & Govt

One more new victory:
AZAT NIGMADZHANOV and MARYAM IBRAGIMOVA, Plaintiffs, - against - ROBERT S. MUELLER, Director, Federal Bureau of Investigation; ALBERTO GONZALES, Attorney General of the United States; MICHAEL CHERTOFF, Secretary, the United States Department of Homeland Security; EMILIO T. GONZALES, Director of the United States Citizenship and Immigration Services; ANDREA J. QUARANTILLO, District Director, USCIS New York Field Office, Defendants.

07 Civ. 1279 (CM)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2008 U.S. Dist. LEXIS 35915


May 1, 2008, Decided
May 1, 2008, Filed
C. Ibragimova has stated a claim

To state a claim for relief under the APA, Plaintiff must allege (1) a clear duty owed to her under by the agency, (2) a duty which is mandatory and not [*20] discretionary, and (3) a clear right to relief. See Yu v. Brown, 36 F. Supp. 2d 922, 930 (D.N.M. 1999). As Plaintiff has sufficiently alleged that CIS had a nondiscretionary duty to adjudicate her application for adjustment within a reasonable amount of time, and has alleged a breach of that duty by pointing to a delay that is long enough, she has stated a clear claim for relief.

Plaintiff urges the court to find the delay unreasonable as a matter of law, and to compel the government to complete her application. While I am tempted to do what Plaintiff asks, I decline to find a five--or six and one half--year delay reasonable (or unreasonable) as a matter of law at this stage of the litigation, although other courts have done so, see, e.g., Huang v. Chertoff, 2007 U.S. Dist. LEXIS 48330, 2007 WL 1831105, at *2 (N.D. Cal. Jan. 25, 2007) (denying defendant's Rule 12 motion, and holding "On the instant record, which lacks a particular explanation as to the cause of the delay, the Court concludes that a delay of more than two years is unreasonable under the APA."); see also Kashkool v. Chertoff, 2008 U.S. Dist. LEXIS 28292, 2008 WL 942566, at *14 (D. Ariz. Apr. 7, 2008) (collecting cases). That issue is better reached on a motion for summary judgment. [*21] Defendants must submit their motion for summary judgment on or before June 9, 2008. Plaintiff shall file her cross-motion and opposition on or before June 30, 2008. Defendants' reply to Plaintiff's opposition and cross-motion is due on or before July 14, 2008. I confess that I will be very interested to see how the Government justifies the reasonableness of a delay of this length for a simple name check.

Finally, any claim by Plaintiff Nigmadzhanov must be dismissed, as the court's jurisdiction is limited to hearing Ibragimova's request that it compel CIS to adjudicate her application. I decline to dismiss Plaintiff's claim against the FBI Defendants. See Obeid v. Chertoff, 2008 U.S. Dist. LEXIS 23748, 2008 WL 795838, at *1 (E.D. Mich. Mar. 26, 2008) (FBI has duty to complete background checks by implication).

This is the decision and order of the Court.

Hey, lazycis and other members,

The defendants argued that my priority date was current for "a brief window", which is 6 months. The following are the rebuttal that I prepared. Any comments or suggesions are welcome!

Defendants claimed that Plaintiffs’ visa priority date retrogressed on December 2007, “after a brief window in which all visa priority dates were declared current”. However, the fact is that the plaintiffs’ visa priority date was current from June 2007 to November 2007, which cannot be considered as a brief window within the context. The defendants concede that USCIS has a mandatory duty to utilize 140,000 visas plus any family based visas which have been unused in the previous fiscal year on Employment based (EB) visa applicants annually. Therefore, at least 70,000 employment-based I485 cases have been or should have been adjudicated during this so-called “brief window”. Additionally, the facts here are two-fold: The priority date for EB2 preference category for Chinese nationals have undergone serious retrogression twice within last 3 years; while thousands of EB visa number have been wasted because USCIS don’t process enough pending applications in a timely manner. “In FY 06, over 10,000 employment-based visas were lost, even though USCIS had an estimated 100,000 to 150,000 pending applications for employment-based green cards.” (see Ombudsman report for 2007 at page 33-34). The slow and random movement of the visa priority date, and the subsequent generation of this so-called “brief window” are in clear violation of congressional intent because USCIS has a mandatory duty to utilize visa numbers to the fullest extent possible. See Galvez v. Howerton, 503 F. Supp. 35, 38-39 (C.D. Cal. 1980).

 

[wommei]

Thanks, wom_ri

Wom_ri,

Thanks for uploading those cases. I will read them carefully. I do have one question for LEXISNexis access. If I do find a university in the area has access to LEXISNexis, do I have to go to the library in that university? Or I can ask a friend who works there to set up an account for me, then I can access it from home?
I found a county law library that has Westlaw, but it only opens during weekdays.

good luck..
if you have access to LEXISNexis or other database, research more with keywords:
a) INS & Estoppel
b) USCIS & Estoppel
c) Estoppel & Govt

One more new victory:
AZAT NIGMADZHANOV and MARYAM IBRAGIMOVA, Plaintiffs, - against - ROBERT S. MUELLER, Director, Federal Bureau of Investigation; ALBERTO GONZALES, Attorney General of the United States; MICHAEL CHERTOFF, Secretary, the United States Department of Homeland Security; EMILIO T. GONZALES, Director of the United States Citizenship and Immigration Services; ANDREA J. QUARANTILLO, District Director, USCIS New York Field Office, Defendants.

07 Civ. 1279 (CM)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

2008 U.S. Dist. LEXIS 35915


May 1, 2008, Decided
May 1, 2008, Filed
C. Ibragimova has stated a claim

To state a claim for relief under the APA, Plaintiff must allege (1) a clear duty owed to her under by the agency, (2) a duty which is mandatory and not [*20] discretionary, and (3) a clear right to relief. See Yu v. Brown, 36 F. Supp. 2d 922, 930 (D.N.M. 1999). As Plaintiff has sufficiently alleged that CIS had a nondiscretionary duty to adjudicate her application for adjustment within a reasonable amount of time, and has alleged a breach of that duty by pointing to a delay that is long enough, she has stated a clear claim for relief.

Plaintiff urges the court to find the delay unreasonable as a matter of law, and to compel the government to complete her application. While I am tempted to do what Plaintiff asks, I decline to find a five--or six and one half--year delay reasonable (or unreasonable) as a matter of law at this stage of the litigation, although other courts have done so, see, e.g., Huang v. Chertoff, 2007 U.S. Dist. LEXIS 48330, 2007 WL 1831105, at *2 (N.D. Cal. Jan. 25, 2007) (denying defendant's Rule 12 motion, and holding "On the instant record, which lacks a particular explanation as to the cause of the delay, the Court concludes that a delay of more than two years is unreasonable under the APA."); see also Kashkool v. Chertoff, 2008 U.S. Dist. LEXIS 28292, 2008 WL 942566, at *14 (D. Ariz. Apr. 7, 2008) (collecting cases). That issue is better reached on a motion for summary judgment. [*21] Defendants must submit their motion for summary judgment on or before June 9, 2008. Plaintiff shall file her cross-motion and opposition on or before June 30, 2008. Defendants' reply to Plaintiff's opposition and cross-motion is due on or before July 14, 2008. I confess that I will be very interested to see how the Government justifies the reasonableness of a delay of this length for a simple name check.

Finally, any claim by Plaintiff Nigmadzhanov must be dismissed, as the court's jurisdiction is limited to hearing Ibragimova's request that it compel CIS to adjudicate her application. I decline to dismiss Plaintiff's claim against the FBI Defendants. See Obeid v. Chertoff, 2008 U.S. Dist. LEXIS 23748, 2008 WL 795838, at *1 (E.D. Mich. Mar. 26, 2008) (FBI has duty to complete background checks by implication).

This is the decision and order of the Court.