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

[jefkorn]

Update on my case

Yesterday I received Card Production Ordered email on my (primary) I-485 online. Seems surreal No update on CIS website on my wife's I-485. I haven't asked for adjudication of my wife's I-485 in my original Complaint although I did mention that she was derivative beneficiary and hers couldn't be approved because my I-485 was pending. I hope hers gets adjudicated as well. I and AUSA haven't spoken to each other yet. I was planning to give her a call after one month of the filing.

On a separate note, I don't know if the order of email matters. I never received Approval Notice sent email on my case.

Sitting tight until I receive the card and approval for my wife as well.

 

[pang2008]

congratulations!!

congratulations!! congratulations!! congratulations!! congratulations!!

I couldn't believe how fast it went! I will pray they will adjudicate your wife's case asap as well. Finally, your patience, knowledge and kindness pays off!!

Now please stay with us for a while

Yesterday I received Card Production Ordered email on my (primary) I-485 online. Seems surreal No update on CIS website on my wife's I-485. I haven't asked for adjudication of my wife's I-485 in my original Complaint although I did mention that she was derivative beneficiary and hers couldn't be approved because my I-485 was pending. I hope hers gets adjudicated as well. I and AUSA haven't spoken to each other yet. I was planning to give her a call after one month of the filing.

On a separate note, I don't know if the order of email matters. I never received Approval Notice sent email on my case.

Sitting tight until I receive the card and approval for my wife as well.

 

[jefkorn]

Thanks for your kind words and I'm not going anywhere for now. I'm keeping my fingers crossed until the whole ordeal is over. Kinda gotten little skeptic so as they say "it ain't over until the fat lady sings!!"

congratulations!! congratulations!! congratulations!! congratulations!!

I couldn't believe how fast it went! I will pray they will adjudicate your wife's case asap as well. Finally, your patience, knowledge and kindness pays off!!

Now please stay with us for a while

 

[jefkorn]

From what I understand, here's what I need to do
1) prep my lawsuitpackage as Publicus described

The instructions are valid except you may want to check the wiki page for updated version.

2) Send a Demand Letter to show them that you're serious

From anecdotal evidence on the forum, this hasn't worked but doesn't hurt and should definitely become another proof of you trying to resolve the issue before going to the court.

3) If #2 fails, then actually go ahead with the lawsuit.

Mostly probably #2 won;t work although I sincerely hope it does. I would suggest start working on the docs, collect proof(letters, InfoPass, phone call logs etc) which you are going to use as proof of exhausting all remedies.

Here's some questions I have (Publicus and Rahul, I would love to get your feedbacks).

Kudos to Publicus for pioneering the thread but he is long gone from the forum, not sure about Rahul. But there are other mambers that are active and can provide their feedback.

1) What do I need to do to clear my name so that I can get an interview? Will doing this lawsuit help me?

Lawsuit can compel FBI to provide results of name check to USCIS. After that USCIS should be able to schedule your interview. The Prayer section in the lawsuit document(technically called Complaint) is where you are going to ask what you want court to do. See sample prayer from wiki page, N-400 no interview pleading.

2) Even if #1 goes thru, would I submit this lawsuit AGAIN in case it gets "stuck"?

No, one lawsuit will cover both issues, NC completion and final Natz. In the Prayer of the Complaint, you will be asking court to adjudicate your N-400 and compel FBI to complete Name Check before than if CIS requires it as per the current policy. Also as a side note, NC has come under fire lately and there's been litigation about if it is is even required for Natz. You can read about it in landmark case Mocanu v. Mueller here.

3) Who are these people and which letters do I need to send to whom?

DHS/ USCIS
Office of the Chief Counsel
20 Massachusetts Ave. N.W.
Suite 4025, Fourth Floor
Washington, D.C. 20529

VS.

Phyllis Howard
Director, Washington District
USCIS
2675 Prosperity Avenue
Fairfax, Virginia 22031

Office of Chielf Counsel is central place where copies of all lawsuits filed anywhere in the country against CIS go. See here for address for DHS.
Phyllis Howard is the Distrcit Director for Washington distrcit, is that where you M-400 is pending? Local distrcit director where your N-400 is pending can be included in the Defendants list.

4) THere is this wiki page that basically has the same set of instructions plus detailed links to other resources. IN there, it says that if I did NOT get an interview because of the name clearance issue, that I need to use this template... which, if you open, is a mandasmus... which according to Publicus is not as good. Is this wiki page written by people in this forum? Who's correct?

It's updated by people in this forum but of course it's open to anyone outside the forum as well(as is wikipedia in general). wiki page is pretty accurate and members here try to update it whenever they can but it may not be up to the minute with everything. It has most important things covered but specific questions are usually answered here in the forum. Mandamus is for Natz. applications who didn't have interview and 1447(b) is another type of civil action(lawsuit) that is specifically for Natz. applicatns who had their interview and have not received a decision for more than 120 days after the interview. Relatively speaking Plaintiff's chances of 1447(b) are better than WOM only when Defendants fight it. If AUSA(Assistant US Attorney) tries to settle than it doesn't really matter. But in your case, you can't use 1447(b) and only choice would be WOM.

5) This maybe a stretch but does anyone have all the contact info relevant for doing the lawsuit in N. California? I am in San Jose area.

You can go to N. CA district court's web site : http://www.cand.uscourts.gov/ for pro se information. As far as who to name as defendant if your case is pending in N.CA CIS local office, you just need the name of the district director. See if you can find in the attached pdf here

6) It seems that getting a lawyer for this matter seems kinda pointless from all the posts. Does anyone know a N. California lawyer who's aggressive and has done this before that he/she can recommend?

You can try Ronald Gotcher

 

[wommei]

Jefkorn

Hey, jefkorn,

Congratulations! And I hope you can get the real cards for your and your wife soon. If not, you should file first amended complaint and add your wife as co-plaintiff and modify your Prayer part as well.

Yesterday I received Card Production Ordered email on my (primary) I-485 online. Seems surreal No update on CIS website on my wife's I-485. I haven't asked for adjudication of my wife's I-485 in my original Complaint although I did mention that she was derivative beneficiary and hers couldn't be approved because my I-485 was pending. I hope hers gets adjudicated as well. I and AUSA haven't spoken to each other yet. I was planning to give her a call after one month of the filing.

On a separate note, I don't know if the order of email matters. I never received Approval Notice sent email on my case.

Sitting tight until I receive the card and approval for my wife as well.

 

[yourfirstname]

Hey,

I was just looking around to find out that how the name check program was initiated. FBI name check website states that it was created in result of Executive Order 10450 but this order does not refer to naturalization and green card applications. Am I missing something? Has anyone gone through this executive order?

 

[waitwait96]

Sounds like a mixup which is not very uncommon. I'd say go to the 8/12 interview anyway. Howver call the AUSA and ask if she knows anything about what the correct date is and when you should go to the interview. Also take an info pass and see ehat they say. Generally the lawsuit is different from interview scheduling so it must be a mixup. also look up motion to suspend proceedings (also called stay) lookup your court website to find out how to initiate this motion, you may be able to do this yourself even if the AUSA does not respond ie AUSA does not want an extension. Remember that AUSAs are going according to a pre-dteremined scrript and they dont really care about what happens in the end, they just need to do their job so they may not be very interested in your overtures. BUT once USCIS has started action, its a path in itself that leads to the oath and often the AUSAs will not know what USCIS is doing and vice versa. So you need to understand that communication between AUSA and USCIS is not always tight. Given your situation I would say you will get an oath in early Sept.

I called the AUSA and left her a massege to ask her about the two interview letters but i havn't heard from her yet !!! and i also got her MTD that she filed and it's the same like the others MTD , however i will go to 08/12/08 interview and hoping my name check will be clear by then and the same time i will get my responds to MTD ready just in case i need it , but here is the question , there two ways to respond to MTD about name check (1) trying to prove to the court it's been too long and delayed for no reasons and i found alot of cases like that and i could use some to guide me through (2) the other way try to prove that name check it's not reuglated by congers and CIS dosen't have to do FBI back ground check .
Does any one knows about cases that arrgument was use it for ? and what was the outcome of it ??

 

[wommei]

waitwait96

Hey, waitwait96,

I would argue for both points that you listed to be on the safe side. I think you can find some arguments in one of my posts. I posted my motion for sumary judgment at the end of May or early June. You can search the posts under my name and find that one. good luck.

I called the AUSA and left her a massege to ask her about the two interview letters but i havn't heard from her yet !!! and i also got her MTD that she filed and it's the same like the others MTD , however i will go to 08/12/08 interview and hoping my name check will be clear by then and the same time i will get my responds to MTD ready just in case i need it , but here is the question , there two ways to respond to MTD about name check (1) trying to prove to the court it's been too long and delayed for no reasons and i found alot of cases like that and i could use some to guide me through (2) the other way try to prove that name check it's not reuglated by congers and CIS dosen't have to do FBI back ground check .
Does any one knows about cases that arrgument was use it for ? and what was the outcome of it ??

 

[jefkorn]

Thanks wommei! CIS has sent me RFE for my wife I-485, haven't received it yet. Hopefully it would be benign. The reason I didn't add my spouse in my original Complaint, was because she applied couple months after my application and I didn't want give court a reason that her was not an unreasonable delay so just to keep things simple I only added myself as the plaintiff and assuming that hers would be adjudicated as result of adjudication on primary's AOS.

Hey, jefkorn,

Congratulations! And I hope you can get the real cards for your and your wife soon. If not, you should file first amended complaint and add your wife as co-plaintiff and modify your Prayer part as well.

 

[jefkorn]

I haven't gone through the Executive Order but I would think that it just authorized the creation of NNCP. Use of NNCP was expanded to include Natz and AOS applications without Congressional authorization. From wiki page, see these docs for reference.

Here and
Testimony of Michael Cannon (01/30/2006) the Section Chief of the National Name Check Program Section (NNCPS)

Hey,

I was just looking around to find out that how the name check program was initiated. FBI name check website states that it was created in result of Executive Order 10450 but this order does not refer to naturalization and green card applications. Am I missing something? Has anyone gone through this executive order?

 

[jefkorn]

I agree with wommei that argue on both.

Mocanu v. Mueller was the major case that declared Name Check is not required for Natz. applications and read about Natz delay at http://www.ailf.org/lac/natz_delay0806.shtml.


I'm assuming your is a Natz. case, right?

Some cases that point to NC not authorized:

1. Ma v. Gonzales, 07-122, 2007 WL 1655188 at *6 (W.D. Wa. June 5, 2007) (no statutory requirement for name checks)
   Denying Def. MTD and Order on Def. Cross Motion for summary Judgment
2. Mocanu v. Mueller, 2008 WL 372459 (E.D .Pa. Feb. 8, 2008) at 15 (If Congress had intended the requirement of an FBI name check, “Congress presumably would have used this term because the ‘name check’ program had been in place for many years, and Congress could have directly referenced a ‘name check’ but did not do so”)
   
3. Dayisty v. Chertoff, 07-10180 (D. Mass., Oct. 9, 2007) (granting oath of citizenship despite still-pending name checks)

Name Check for AOS v Natz.

USCIS permits AOS app adjudication where FBI name check pending more than 180 days. Michael Aytes Memorandum, dated Feb. 4, 2008; unreasonable for USCIS to argue that security concerns no longer justify a delay in AOS processing but continue to justify delays in natz app processing.

USCIS's February 2008 policy directly contradicts the arguments it has been making since December 2006 (http://www.ailf.org/lac/chdocs/lac_mandamus_aytesmemo.pdf) that national security demands completion of the checks before application adjudication by directing officials to go forth with not only adjudication but actual approval of applications without a completed name check

Following is another way of citing the Feb. 04, 2008 NC memo:

"On February 8, 2008, USCIS released a memorandum to the field revising adjudication guidance concerning adjustment of status applications. The memorandum directs the field to continue to initiate FBI name checks, but revises prior guidance by directing that where the application is otherwise approvable and the name check request has been pending for more than 180 days, the adjudicator is to approve the I-485 application and proceed with card issuance." Interpreter Releases, Vol. 85, No. 7, February 11, 2008.


8 C.F.R. § 335.2(b), 8 C.F.R. § 335.1 (requiring completion of a "criminal background check" before a naturalization interview is scheduled (emphasis added) or "an investigation" which includes "police department checks" subsequent to the filing of a naturalization application" no mention of an FBI "name check")

You can further argue that fingerprint check equates to criminal background check. See lazycis's post


USCIS/FBI Joint Plan to eliminate name check backlog, are your time lines covered by this plan? If so, you can certainly cite this to argue why is your NC still pending?

I called the AUSA and left her a massege to ask her about the two interview letters but i havn't heard from her yet !!! and i also got her MTD that she filed and it's the same like the others MTD , however i will go to 08/12/08 interview and hoping my name check will be clear by then and the same time i will get my responds to MTD ready just in case i need it , but here is the question , there two ways to respond to MTD about name check (1) trying to prove to the court it's been too long and delayed for no reasons and i found alot of cases like that and i could use some to guide me through (2) the other way try to prove that name check it's not reuglated by congers and CIS dosen't have to do FBI back ground check .
Does any one knows about cases that arrgument was use it for ? and what was the outcome of it ??

 

[yourfirstname]

Has anyone filed a case in norther california district court location? is there any pro se clerk at this location? When ever I ask any question from the clerk on the main phone line or front desk, she simply asks me to read Pro Se handbook. To me it looks like clerks are restricted to answer even procedural questions. Is it same in other districts or division offices?

Thanks

 

[jefkorn]

In MA, there's someone designated as Pro Se clerk. Not sure if N.CA has only a general Court Clerk and no special Pro Se clerk.
Clerk will not give you legal advice and neither should you ask them for it. They should give you procedural guidance and yes they may just point you to Pro Se handbook most of the times. I would suggest that before asking question from Clerk, see if this is a general type of question that doesn't pertain to SJ court. To get answers to general questions you may want to check this forum. I thought N.CA. pro se handbook was very well written but of course one could always have questions not covered in the guide.

Has anyone filed a case in San Jose district court location? is there any pro se clerk at this location? When ever I ask any question from the clerk on the main phone line or front desk, she simply asks me to read Pro Se handbook. To me it looks like clerks, in SJ, are restricted to answer even procedural questions. Is it same in other districts or division offices?

Thanks

 

[Larka-m]

I have an update - I just received my 2nd fingerprint appointment notice. Now I wonder if this has anything to do with my WOM.

Would anyone care to speculate?

 

[OK-Boy]

Dude, you need to share your time-line with us so that we could correctly speculate. I got my second FP before 2 months of my IV. If you filed WOM about 2-3 months ago then the chances are very strong that it has triggered the process. Hopefully you will get the IV letter with 1-2 months. Just hang in there and don't voluntarily dismiss the suit until you get the OL...

I have an update - I just received my 2nd fingerprint appointment notice. Now I wonder if this has anything to do with my WOM.

Would anyone care to speculate?

 

[waitwait96]

I agree with wommei that argue on both.

Mocanu v. Mueller was the major case that declared Name Check is not required for Natz. applications and read about Natz delay at http://www.ailf.org/lac/natz_delay0806.shtml.


I'm assuming your is a Natz. case, right?

Some cases that point to NC not authorized:

1. Ma v. Gonzales, 07-122, 2007 WL 1655188 at *6 (W.D. Wa. June 5, 2007) (no statutory requirement for name checks) [I couldn't find the ruling, someone who has it please post?)
   
2. Mocanu v. Mueller, 2008 WL 372459 (E.D .Pa. Feb. 8, 2008) at 15 (If Congress had intended the requirement of an FBI name check, “Congress presumably would have used this term because the ‘name check’ program had been in place for many years, and Congress could have directly referenced a ‘name check’ but did not do so”)
   
3. Dayisty v. Chertoff, 07-10180 (D. Mass., Oct. 9, 2007) (granting oath of citizenship despite still-pending name checks)

Name Check for AOS v Natz.

USCIS permits AOS app adjudication where FBI name check pending more than 180 days. Michael Aytes Memorandum, dated Feb. 4, 2008; unreasonable for USCIS to argue that security concerns no longer justify a delay in AOS processing but continue to justify delays in natz app processing.

USCIS's February 2008 policy directly contradicts the arguments it has been making since December 2006 (http://www.ailf.org/lac/chdocs/lac_mandamus_aytesmemo.pdf) that national security demands completion of the checks before application adjudication by directing officials to go forth with not only adjudication but actual approval of applications without a completed name check

Following is another way of citing the Feb. 04, 2008 NC memo:

"On February 8, 2008, USCIS released a memorandum to the field revising adjudication guidance concerning adjustment of status applications. The memorandum directs the field to continue to initiate FBI name checks, but revises prior guidance by directing that where the application is otherwise approvable and the name check request has been pending for more than 180 days, the adjudicator is to approve the I-485 application and proceed with card issuance." Interpreter Releases, Vol. 85, No. 7, February 11, 2008.


8 C.F.R. § 335.2(b), 8 C.F.R. § 335.1 (requiring completion of a "criminal background check" before a naturalization interview is scheduled (emphasis added) or "an investigation" which includes "police department checks" subsequent to the filing of a naturalization application" no mention of an FBI "name check")

You can further argue that fingerprint check equates to criminal background check. See lazycis's post


USCIS/FBI Joint Plan to eliminate name check backlog, are your time lines covered by this plan? If so, you can certainly cite this to argue why is your NC still pending?

Hi wommei,jefkorn
Thank you for a fast responde , here is what the AUSA said in her MTD :
NAT process is 5 steps (1) application (2) three -tiered background check (3) interview (4) deny or grant the application (5) oath , now AUSA did say the court should dissmis the case because i didn't go through the interview yet and i cann't sue until 120 days of expired from the interview date , she didn't say any thing about background check is pending at all and of course i didn't exhaust my administrative remedies , mean while i submit in my original complaint the letters that i got from CIS about the background check still pending , info pass , letters from the senator and so on .
so now should i attack the background check in my resopnds even she didn't talk about it or just go after the jurisdication and unresonable delay ??
thanks guys very much

 

[waitforsolong]

Has anyone filed a case in norther california district court location? is there any pro se clerk at this location? When ever I ask any question from the clerk on the main phone line or front desk, she simply asks me to read Pro Se handbook. To me it looks like clerks are restricted to answer even procedural questions. Is it same in other districts or division offices?

Thanks

Are you in San Jose or San Francisco? We filed at San Jose. The clerk there was pretty nice. We read the Pro Se beforehand and only asked pretty specific questions.

 

[Larka-m]

Dude, you need to share your time-line with us so that we could correctly speculate. I got my second FP before 2 months of my IV. If you filed WOM about 2-3 months ago then the chances are very strong that it has triggered the process. Hopefully you will get the IV letter with 1-2 months. Just hang in there and don't voluntarily dismiss the suit until you get the OL...

I filed the WOM in June 08 - here's my timeline:

 

[lazycis]

Hi wommei,jefkorn
Thank you for a fast responde , here is what the AUSA said in her MTD :
NAT process is 5 steps (1) application (2) three -tiered background check (3) interview (4) deny or grant the application (5) oath , now AUSA did say the court should dissmis the case because i didn't go through the interview yet and i cann't sue until 120 days of expired from the interview date , she didn't say any thing about background check is pending at all and of course i didn't exhaust my administrative remedies , mean while i submit in my original complaint the letters that i got from CIS about the background check still pending , info pass , letters from the senator and so on .
so now should i attack the background check in my resopnds even she didn't talk about it or just go after the jurisdication and unresonable delay ??
thanks guys very much

waitwait,
you may want to check this post
http://boards.immigration.com/showpost.php?p=1909671&postcount=16563

 

[wommei]

Our I485 applications are approved!

Hey, Lazycis and others,

Our I485 applications are approved this morning and I am so glad that I will get the green card soon. When I started the lawsuit in September 2007, I knew little about the caselaws, federal statues and regulations. I have learned so much from lazycis, wom_ri and other Womers since then. I am very grateful for your generous help during this process and I know that I cannot do this without your help, guidance and encouragement. Although I am a little dispointed that aliens who file lawsuit after me won't be able to cite a written opinion on my case, I think I can live with that.



Current Status: Card production ordered.

On August 5, 2008, we ordered production of your new card. Please allow 30 days for your card to be mailed to you. If we need something from you we will contact you. If you move before you receive the card, call customer service. You can also receive automatic e-mail updates as we process your case. Just follow the link below to register.