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

Which city are you in?

The lawyer fees generally range in 2.5- 10K. 5-6K is in general too high.

Try calling different lawyers and ask the questions that have been mentioned in another post. You should be able to find a good one for 2.5 - 3.5K.

1995 said:
I am trying to hire a lawyer to do WOM. They ask me for $6000 plus form fee. Is it too much? How do you guys think? Thanks.
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Very good case to claim your money back

This is a very interesting case where the court granted attorney fees even though a case was remanded back to USCIS and plaintiff was naturalized before court-set date.
 
More delay-not-unreasonable/cut-in-line counter arguements

Hi shvili,

Thanks for the valuable comments. I am sure my opposition will continue to evolve as new ideas are incorporated and as I discover better ways to organize the logic.

I will incorporate your "processing duty is nondiscretionary" and "cut in line" argument in my opposition. If you have more examples/cases/argumensts, I would appreciate it.

Attached is my MTD. Most of it is cliche. But it can still be quite a formidable task to counter their arguements, which are summarized below:

1) 8 USC 1252(a)(2)(B)(ii) and 8 USC 1255 strip the court of jurisdiction because AOS is committed to agency discretion, including the pace of AOS.

2) Plaintiffs have no clear right to immediate adjudication and Defendants have no clear duty to provide it. No statutory guidelines exist to establish wait is unreasonable.

3) APA precludes Court from reviewing Plaintiffs' claim because it concerns action committed to agency discretion.

Thanks.

shvili said:
Missingpa,

I used the word "contend" in our 1447+WOM petition, when I argued a little that the delay was unreasonable, so I think it's ok. I don't have experience yet with Opposing MTD because we're on earlier stage, but my opinion is you state that "processing" your application is non-discreationary, only the aproval is, and then quote as many cases as you can get (better from your Circuit or state) to support your claim.
You have WOM AOS, as I understand.

Also, I have a comment on the order posted yesterday to grant MTD. (New Jersey, Li case). The judge there said that all cases that denied MTDs in similar cases ignored the section on "witholding adjudication", which gives increments of 6 months for continued consideration to CIS. Then he (again!) uses "jump in front of the line" argument. I think "withholding adjudication" statue can be used in our defence, as it specifically talks about "reasonable time" i.e., six months increments, to continue checks. Also, the fact it says in detail how these extra 6 mo. are added shows that Congress means that CIS has to be held accountable for the time it spends on the process. So we can argue that this statue itself indicates the accountability for the time alloted to CIS and means CIS has no right to withold adjudication indefinitely without any explanation to applicants. Also, as I mentioned here before, I think it's appropriate to say something like:

"this indefinite waithing, also caled an "in limbo state" by several judges ruling on this issue can not be the purpose of congress when it passed the statues in hand. There is another, totally different process which in fact provides no accountablility for agencies to return an answer to applicants for immigration status. That process is the "green card lottery", which provides no duty or a binding contract on the part of the processing center to notify applicants whether they "won" or "lost". But Plaintiff hopes this court can see the very clear difference between a Lottery process and AOS process. Unlike Lottery, AOS is a binding contract between applicant, who paid a fee so that CIS would process his application, and CIS. And just like in any fee-requiring contract, the agency has a duty to notify applicants of their decision, and in case their application is denied, for the reasons for the denial (Here quote the statue). This duty to notify applicants of CIS decision falls under APA laws which prescribe to process applications within "reasoanble time" and Plaintiff requests this court to compel CIS to act on his application."

ALso, on jump "in front of the line" argument: FBI has never said that there is a separate "line" for delayed cases, but on the opposite claimed that "all cases a processed in the order received". Had there been in fact a separate line for the delayed cases, in which as defendants claim, applicant tried to "jump to the front", Plaintif requests the information on how many cases in this line are delayed longer than his, so indeed he would be notifyed of his place in this "Line". Plaintiff doesn't want to jump in front of someone else who has been delayed longer than he. But according to the FBI testiomony, the situation is totally reversed: since there is only one line where all cases are processed "in order they are received", FBI in fact allows all those current applicants to jump in front of him and other delayed applications because he is unjustly pulled out of this line and delayed indefinitely. So please let's clarify if indeed there is a separate line of delayed cases, and if so, is FBI processing it in "order of delay"? If yes, FBI should notify Plaintiff of his place in this line.

Good luck!
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lazycis,

Thanks for the good suggestion! Yes, the combination of APA, INA and CFR is more compelling! And thanks for pointing out the OPP+SJ issue as well. I will see how much I can do. Right now my minimum goal is a good solid OPP so that they wont throw my case out.


lazycis said:
Not bad. I would only replace "Immigration and Nationality Act" with Federal laws and Federal rules and regulations and mention that USCIS is required by regulations to notify applicants about the decision.

8 CRF 245. Section 245.2(5)(i) of the Code of Federal Regulations provides:

“The applicant shall be notified of the decision of the director and, if the application is denied, the reasons for the denial.”

One more thing - you will ask to grant the relief sought in your complaint. Does it mean you will combine opposition with motion for summary judgment? That's what I would do, even though it means more work for you, it will lead to quicker resolution.
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hopeforall2 said:
Paz, please help

In anticipation to any law change affecting our ability to peruse court help in expediting our cases, can I tell my lawyer to talk to the court to change the agreed adjournment with the AUSA to include a wording that " If AUSA wants to adjourn the case then he must agree to the court jurisdiction regardless of any changes expected to be passed by congress affecting the case process ”

The Judge already ordered the adjournment to Mid July 2007.

My concern is that, if any amendment is passed, then I will be stuck for good.

Thanks.
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1. I don't believe that the planned immigration reform will be voted and signed in law by mid July.
2. I don't believe that a change of law will act retroactively, i.e., the already pending cases in courts probably will not be affected.
3. You have a lawyer. You should not try to tell him/her what to do, let him/her do his/her job. If you don't trust him/her why did you hire him/her?
4. A judge will change his/her order only in exceptional cases, very rarely and you really have to have a very strong reason why to ask that in a motion.
 
missingpa said:
Hi shvili,

Thanks for the valuable comments. I am sure my opposition will continue to evolve as new ideas are incorporated and as I discover better ways to organize the logic.

I will incorporate your "processing duty is nondiscretionary" and "cut in line" argument in my opposition. If you have more examples/cases/argumensts, I would appreciate it.

Attached is my MTD. Most of it is cliche. But it can still be quite a formidable task to counter their arguements, which are summarized below:

1) 8 USC 1252(a)(2)(B)(ii) and 8 USC 1255 strip the court of jurisdiction because AOS is committed to agency discretion, including the pace of AOS.

2) Plaintiffs have no clear right to immediate adjudication and Defendants have no clear duty to provide it. No statutory guidelines exist to establish wait is unreasonable.

3) APA precludes Court from reviewing Plaintiffs' claim because it concerns action committed to agency discretion.

Thanks.
Click to expand...

I would focus on proving that USCIS has a non-discretional duty to process I-485 and FBI has non-discretional duty to process name check. If they do (which is obvious to me) then all 3 arguments are dead as 1) prohibits review of only discretional actions or decisions, 2) and 3) fail obviously as well. Below are a couple of points from my brief:

The Supreme Court and Appellate Courts affirmed that an alien has a statutory right to have an application for discretionary relief considered (see Accardi, 347 U.S. at 268; Goncalves v Reno, 144 F.3d at 125 (1st Cir. 1998)).

The US Supreme Court and Appellate Courts distinguished between the discretion in the Attorney General as to the ultimate decision to grant relief and the underlying process (see Cardoza-Fonseca, 480 U.S. at 443-44), see also Subhan v. Ashcroft, 383 F.3d 591, 594 (7th Cir. 2004) (interpreting 8 U.S.C. § 1252(a)(2)(B) as preserving jurisdiction when the decision (or action) is not "a judgment denying a request for adjustment of status" under 8 U.S.C. § 1255) and Succar v. Ashcroft, 394 F.3d 8, 26 (1st. Cir. 2005) (holding that the authority of the Attorney General to act is "not a matter of discretion" and is subject to judicial review).
 
Hi guys,

I filed my Opposition to MTD on 5/4/2007. Today I received AUSA's Reply to Response to Motion. It has no new message, just repeated their argument in MTD which states "the Court does not have jurisdiction to address the timing of the adjudication, which is within the discretion of CIS. And in light of the time consuming nature of the name check process, together with the volume of those checks, the delay in this case has not been unreasonable."

Do I need to file an answer to this reply? What is my next step?

Thanks
 
bobsunzi said:
Hi guys,

I filed my Opposition to MTD on 5/4/2007. Today I received AUSA's Reply to Response to Motion. It has no new message, just repeated their argument in MTD which states "the Court does not have jurisdiction to address the timing of the adjudication, which is within the discretion of CIS. And in light of the time consuming nature of the name check process, together with the volume of those checks, the delay in this case has not been unreasonable."

Do I need to file an answer to this reply? What is my next step?

Thanks
Click to expand...

Hey Bob,
No need to reply to it. Wait for court ruling. If all they can say is that delay is reasonable, you are in a good position.
 
missingpa said:
Hi shvili,

Thanks for the valuable comments. I am sure my opposition will continue to evolve as new ideas are incorporated and as I discover better ways to organize the logic.

I will incorporate your "processing duty is nondiscretionary" and "cut in line" argument in my opposition. If you have more examples/cases/argumensts, I would appreciate it.

Attached is my MTD. Most of it is cliche. But it can still be quite a formidable task to counter their arguements, which are summarized below:

1) 8 USC 1252(a)(2)(B)(ii) and 8 USC 1255 strip the court of jurisdiction because AOS is committed to agency discretion, including the pace of AOS.

2) Plaintiffs have no clear right to immediate adjudication and Defendants have no clear duty to provide it. No statutory guidelines exist to establish wait is unreasonable.

3) APA precludes Court from reviewing Plaintiffs' claim because it concerns action committed to agency discretion.

Thanks.
Click to expand...


Missingpa,

in addition to the very good points Lazycis had, after reading your MTD I wanted to add:
1. Defendants quote (on p 4-5) the sec. 1252 (a) (2)(B): "...and regardless of whether the judgement, decision or action is made in the removal proceedings, no court shall have jurisdiction..." As it was successfully argued in several cases before, (read cases posted, also see the great legal advisory comments on the same-I attach below), the RIDA doesn't strip jurisdiction of many non-removal cases. Also, I attach an argument used by another member of this forum.
2. after that, it's pretty much vanilla arguments used before. Their twisted logic is best argued using Lazycis advise. When they talk about no discretion, I would also mention a Green Card Lottery comparison to bring this twisted logic to light. Finally, "jumping in front of the line"-see my comments above. Also, if an average nc takes about a week to finish, how long do they need to resolve any hits? A year? Two years? Three years? if they say, your case is so serious that extra effort is required, how could they allow to a potential terrorist to stay within the US all this time???

Good Luck on writing your Opp! With luck, you may have a great time in court with a reasonably friendly judge.
 
paz1960 said:
1. I don't believe that the planned immigration reform will be voted and signed in law by mid July.
2. I don't believe that a change of law will act retroactively, i.e., the already pending cases in courts probably will not be affected.
3. You have a lawyer. You should not try to tell him/her what to do, let him/her do his/her job. If you don't trust him/her why did you hire him/her?
4. A judge will change his/her order only in exceptional cases, very rarely and you really have to have a very strong reason why to ask that in a motion.
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Paz,

this is a very optimistic view! But being an optimist, I really want to agree with you :) . (Otherwise it also worries me, as our case is pending.)

Please keep posting on the forum, your advice is really valuable!

Shvili
 
Here is what Supreme Court said regarding discretion excuse in ACCARDI v. SHAUGHNESSY, 347 U.S. 260 (1954):

"And if the word "discretion" means anything in a statutory or administrative grant of power, it means that the recipient must exercise his authority according to his own understanding and conscience. This applies with equal force to the Board and the Attorney General."
 
paz1960 said:
1. I don't believe that the planned immigration reform will be voted and signed in law by mid July.
2. I don't believe that a change of law will act retroactively, i.e., the already pending cases in courts probably will not be affected.
3. You have a lawyer. You should not try to tell him/her what to do, let him/her do his/her job. If you don't trust him/her why did you hire him/her?
4. A judge will change his/her order only in exceptional cases, very rarely and you really have to have a very strong reason why to ask that in a motion.
Click to expand...

Thanks paz, It's just that this whole ordeal , believe me when I say , is " consuming " me , day in day out...

I am sorry , but this is a fact.
 
hopeforall2 said:
Thanks paz, It's just that this whole ordeal , believe me when I say , is " consuming " me , day in day out...

I am sorry , but this is a fact.
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That's exactly how I feel, hopeforall. Try not to think about it, keep your mind busy with something else.
As for your question regarding a proposed bill, it depends. Very rarely a new law is retroactive. Unless bill specifically says that it will affect pending cases, I would not worry about it.
 
This bill is good for us, read May 24 review, search for "streamlining".
The bad part went away
http://www.aila.org/Content/default.aspx?docid=22422
Where do u see bad there?

lazycis said:
That's exactly how I feel, hopeforall. Try not to think about it, keep your mind busy with something else.
As for your question regarding a proposed bill, it depends. Very rarely a new law is retroactive. Unless bill specifically says that it will affect pending cases, I would not worry about it.
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hopeforall2 said:
Paz, no doubt I will include your suggestions in the discovery request.

Thank you.
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When you file discovery request here is my recommendation.

Do not ask AUSA about discovery documents. (You can ask but he will always resist and deny).

Get court subpeona for local USCIS office and FBI office and serve them disposition via process server. This will put immense pressure on them trust me it works. It puts them in bad position either they will resist hard if they believe they have some thing negative about you or your name check will clear before disposition due date. With court subpeona they have to respond to that.

I know few indivituals who have done it and it certainly worked for them. But remember if you have some thing bad in your background it can come back and hurt you too.
 
One Step Closer to the end

Just an update of my case.

Filed AOS (pending for 3 years+) WOM in Jan, 07 in ND CA;
Got an Answer/[MTD] in March, 07,
Filed my Reply in April, 07.

After two months' wait, In June 07, the judge ordered and rejected the Defendants' Answer (similar to MTD), and asked for the below.

" ...... It appears, however, that the issues raised in the complaint [WOM] likely are amenable to a resolution on summary judgment. The parties are directe, therefore, to file cross-motions for summary judgment as promptly as practicable".

So yet another case to have defeated MTD. I'll file my summary judgment as soon as I can. Case looks more promising now.

BTW, anyone has any good summary judgment as reference? I actually filed a "Proposed order ......", I may just change its title and use the similar content.

Anyway, cheers !
 
I have been reading through this thread and educate myself before i file wom.

I have a pending I-485 for 3.5 years(family based), I am located in chicago area. Did anyone know how good the court is in this area, do i have a very good chance to win? I tried to look for some WOM complaint samples, but most of them are employment based. I would highly appriate if anyone can provide a family based similar case complaint. I also tried to search in pacer account, but if i just put the name 'chertoff' on closed case, it will give me all the cases, will that be a lot? Can anyone give me some tips on how to search in pacer. I noticed, if i search by name, i can not put in a date range. Any advice is appreciated!

Thanks,

Vicky
 
wenlock said:
When you file discovery request here is my recommendation.

Do not ask AUSA about discovery documents. (You can ask but he will always resist and deny).

Get court subpeona for local USCIS office and FBI office and serve them disposition via process server. This will put immense pressure on them trust me it works. It puts them in bad position either they will resist hard if they believe they have some thing negative about you or your name check will clear before disposition due date. With court subpeona they have to respond to that.

I know few indivituals who have done it and it certainly worked for them. But remember if you have some thing bad in your background it can come back and hurt you too.
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wenlock, thanks for the advise ,

When the AUSA requested to adjourn the conference/discovery date he added following lines in the request:-

Quote

" I have been advised that government officers are taking action to resolve the security check issue that is preventing adjudication of Plaintiff’s Application.

Unquote

1) What do you make of this kind of answer.

2) I noticed you also have a discovery initiated , Can you please tell me in what format you received the order of discovery.

The reason I am asking is , because I am kind of confused between whether the order my judge orderd is a conference or a discovery , here is what the order says :

Quote

UNITED STATES DISTRICT COURT
--------------------------------------------------------------X
My Name ,
Individually,
--------------------- -----ORDER
Plaintiff,
ALBERTO GONZALES,
Officially as United States Attorney
General, et al.,
Defendants.
---------------------------------------------------------------X

An initial conference will be held in this case on July 18, 2007 at 3:00 p.m. before Magistrate Judge. All participants are directed to report to Court.

All counsel must be present.

All requests for adjournments must be made in writing on notice to all parties and no request will be considered unless made at least forty-eight (48) hours before the scheduled conference. Requests must disclose whether or not all parties consent to the adjournment.

The parties are reminded of their obligations under Rule 26(f) of the Federal Rules of Civil Procedure, and all parties are directed to make the disclosures required by Rule 26(a)(1) of the Federal Rules of Civil Procedure no later than five days before the above scheduled conference.

Failure to make the required disclosures may result in the imposition of sanctions pursuant to Rule 37(b) of the Federal Rules of Civil Procedure.

SO ORDERED.

Judge Name
United States Magistrate Judge
May 17, 2007


NOTE: PLAINTIFF’S COUNSEL IS DIRECTED TO CONFIRM WITH ALL
OTHER COUNSEL THAT ALL NECESSARY PARTIES ARE AWARE OF
THIS CONFERENCE.

Unquote



Thanks.
 
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I filed WOM with the Southern District of Florida on May 2nd 2007 and I have the following 3 questions.

1) The judge issued an order requiring joint scheduling and discovery report. I called the US attorney and spoke with the USA on my case and asked her about the joint scheduling and discovery report. She told me that she will file a motion to dismiss because of discretion action. What should I do? Should I wait until she files motion to dismiss and respond or should I inform the judge of her intend to file a motion to dismiss instead of joint scheduling and discovery report? (I had posted a question related to this one before, but could not retrieve the old post, I am sorry)

2) My wife and I are moving to Tennessee where my wife will attend dental school. Since my WOM is pending, can I transfer my WOM to Tennessee? Or Should I stay Florida until my case is resolved?
Note: I do not have a work permit nor an interim work permit, so I am not working at all and I am 100% supported by my wife. USCIS refused to issue me work permit or interim work permit until my I-485 is adjudicated. So, knowing this information, what should I do?

3) How to transfer a WOM from one District to another one?

Thank you in advance for your help!

Sincerely,
KBLI
 
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