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

vic_m said:
May 17, 2006. Do you believe FBI eliminated 90% of the backlog in 5 months?

http://www.dhs.gov/xlibrary/assets/CISOmbudsman_AnnualReport_2006_II-F-Name_Checks.pdf
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Of course, I don't believe this. I just stated, what my congressman wrote me also in May, 2006, i.e., 8900 cases pending at FBI. In the CIS Ombudsman report you provided, this number also from May 2006 is about 10 times bigger. My point was that even if we believe what the two congressmen wrote at two different times and we do the math, it is still a very long predictable waiting time. Unfortunately, looks that the only way to make them to act is to file a complaint in a Federal Court.
 
RE:legal issues

PendingN400 said:
In the ACLU petition, look at item no. 30 onwards under the section titled "Legal Framework", where the ACLU attorney is stating that name checks are conducted without promulgating any regulations (my read is that this implies a congressional mandate/order). If you find a good attorney for a class action (such as this ACLU case) - and it goes through the process of discovery and litigation, the administrative powers exercised by CIS (my suspicion is that they will cite these administrative powers) will be subject to question.
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Hi PendingN400,

I think, you are probably right about invoking administrative powers when somebody will question the legal basis of this extended name check, part of the "full criminal background check".

Reading further I found this in 8 U.S.C.
Sec. 1443. Administration

(a) Rules and regulations governing examination of applicants
The Attorney General shall make such rules and regulations as may
be necessary to carry into effect the provisions of this part and
is authorized to prescribe the scope and nature of the examination
of applicants for naturalization as to their admissibility to
citizenship. Such examination shall be limited to inquiry
concerning the applicant's residence, physical presence in the
United States, good moral character, understanding of and
attachment to the fundamental principles of the Constitution of the
United States, ability to read, write, and speak English, and other
qualifications to become a naturalized citizen as required by law,
and shall be uniform throughout the United States.

Looks that they can claim that the statue provides the possibility to make as many rules as the Attorney General wants. Changing the rules and regulations as reflected in the 8 C.F.R. 335 was still not done, in my opinion. But i'll keep reading, maybe I'll find something more.
 
firebird123 said:
My Summons to FBI has not been accepted. USPS tries twice but still can not deliver today. If eventually it can not be delivered, USPS will return it back to me. Will that mean that my serve process is not successfull ?
I'm sure the address is correct.
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Hi firebird123,

I mailed my summons to FBI (and the other defendants) on October 24 and today (as October 30) I got an e-mail notification from USPS Tracking service that the mail was delivered to the FBI (and similar e-mails for the other Washington-based defendants). I already filled the second copies of the summonses, printed out the delivery confirmations from the USPS web site and I'm going to file with the Court the Proof of Service tomorrow.
 
A possible explanation

Well, it is good to read back my notes I took when reading earlier posts. One of the 'forefathers' of this forum, bashar82 posted, I didn't write down his post #:

"As my petition is currently pending before this court, I have spent sometime developing an argument to convince the court that the interview is the examination and that the 120-day period starts immediately after the examination.

My first point is the name check is authorized under 8 CFR 335.1 which requires an “investigation of the applicant”. All “pertinent records” may be investigated for this purpose. This section, in my opinion, authorizes the FBI name check. Thus, it is not part of the “examination” in 8 CFR 335.2. The investigation of the applicant is not the examination of the applicant.

My second point is the criminal background check mentioned in 8 CFR 335.2(b) is the only check required by statute or codified regulation. The wording of 8 CFR 335.2(b)(3) clearly shows that the criminal background check refers to the check conducted using the applicants fingerprints. This check is completed prior to the initial examination. My criminal background check was completed on 19 January 2005 according to the lady I spoke with at the FBI.

My third point is that 8 CFR 335, and more specifically 335.2(c) describe the “examination” as single a event and not a process of events. Furthermore, 335.2(e) states that “at the conclusion of the examination….the affidavit [(N-400, Page 10, Part 13)] must then be subscribed and sworn to, or affirmed, by the applicant and signed by the Service officer.” This clearly states when the “conclusion of the examination” occurs and regardless of any unresolved issues, a decision on the application must be made within a 120-day period. I signed part 13 of the application at the request of the officer. Thus my “examination” concluded on 8 June 2005 at roughly 10:15AM EST. A decision on my application was due by the end of 6 October 2005.

I’d appreciate any opinions."

Somebody later commented:
"Reading you post in a rush (I have to do some errands now) I've noticed that you pointed the key words in the process: EXAMINATION AND INVESTIGATIONS.
EXAMINATION is the one which triggers the 120 days. The aditional investigations (i.e. Name Check) are things who should be taken care of, before or within the 120 days after the EXAMINATION, and is the responsibility of CIS to make sure that happens timely. Their incompetence and the lack of cooperation from them (not willing to follow-up with FBI NNCP) is not a reasonable excuse in most of the Federal District Courts, including in the Superior Courts of Appeal (i.e. 9th Circuit Court in San Francisco). Maybe Virgina needs a well prepared Plantiff, like yourself, to explain them the right interpretation of the Law"


So if this interpretation is correct, USCIS is authorized to do the name checks part of the investigation and not part of the examination, as the majority of the courts accepted the restrictive interpretation of the word "examination" as the interview, a single event, not a process.

I can buy this reasoning. At least this makes sense. If they want to investigate us, looking to "all pertinent records" (including the name check), so be it. But if they interviewed us, this is the "examination" which triggered the 120 day clock, they are mandated by 8 U.S.C. 1447(b) to complete all necessary investigations by the expiration of this period and adjudicate your application.

It is not correct when some of the Plaintiffs or courts or even DOJ in the "Memorandum for WIC" argue that USCIS violates their own regulation when they issue interview notices before the background check is complete. As bashar82 pointed out, that is part of the general investigation, not part of the full criminal background check, which is performed based on the fingerprints and is mandated by Congress in the 1998 Appropiation Act to be completed before the case can be adjudicated. If the background check would be completed not later than 120 days after the interview, they could adjudicate the application without violating any of their own regulations.

So, in my interpretation, as soon as the fingerprints are cleared, this means that FBI completed the criminal background check and USCIS can interview the applicant. The investigation (one part of it the name check) begun before the interview and can run even after the interview, BUT NOT LONGER THAN 120 DAYS AFTER THE INTERVIEW.

I don't know if this makes sense to the other forum members, but at least, I have now a theory, a possible explanation.

I would be interested who else buys this.
 
WOW， I feel dizzy while reading it. :) But it make sense to me. It explains why USCIS won't interview people unless their the NC are cleared. Good Post

Jack

paz1960 said:
Well, it is good to read back my notes I took when reading earlier posts. One of the 'forefathers' of this forum, bashar82 posted, I didn't write down his post #:

"As my petition is currently pending before this court, I have spent sometime developing an argument to convince the court that the interview is the examination and that the 120-day period starts immediately after the examination.

My first point is the name check is authorized under 8 CFR 335.1 which requires an “investigation of the applicant”. All “pertinent records” may be investigated for this purpose. This section, in my opinion, authorizes the FBI name check. Thus, it is not part of the “examination” in 8 CFR 335.2. The investigation of the applicant is not the examination of the applicant.

My second point is the criminal background check mentioned in 8 CFR 335.2(b) is the only check required by statute or codified regulation. The wording of 8 CFR 335.2(b)(3) clearly shows that the criminal background check refers to the check conducted using the applicants fingerprints. This check is completed prior to the initial examination. My criminal background check was completed on 19 January 2005 according to the lady I spoke with at the FBI.

My third point is that 8 CFR 335, and more specifically 335.2(c) describe the “examination” as single a event and not a process of events. Furthermore, 335.2(e) states that “at the conclusion of the examination….the affidavit [(N-400, Page 10, Part 13)] must then be subscribed and sworn to, or affirmed, by the applicant and signed by the Service officer.” This clearly states when the “conclusion of the examination” occurs and regardless of any unresolved issues, a decision on the application must be made within a 120-day period. I signed part 13 of the application at the request of the officer. Thus my “examination” concluded on 8 June 2005 at roughly 10:15AM EST. A decision on my application was due by the end of 6 October 2005.

I’d appreciate any opinions."

Somebody later commented:
"Reading you post in a rush (I have to do some errands now) I've noticed that you pointed the key words in the process: EXAMINATION AND INVESTIGATIONS.
EXAMINATION is the one which triggers the 120 days. The aditional investigations (i.e. Name Check) are things who should be taken care of, before or within the 120 days after the EXAMINATION, and is the responsibility of CIS to make sure that happens timely. Their incompetence and the lack of cooperation from them (not willing to follow-up with FBI NNCP) is not a reasonable excuse in most of the Federal District Courts, including in the Superior Courts of Appeal (i.e. 9th Circuit Court in San Francisco). Maybe Virgina needs a well prepared Plantiff, like yourself, to explain them the right interpretation of the Law"


So if this interpretation is correct, USCIS is authorized to do the name checks part of the investigation and not part of the examination, as the majority of the courts accepted the restrictive interpretation of the word "examination" as the interview, a single event, not a process.

I can buy this reasoning. At least this makes sense. If they want to investigate us, looking to "all pertinent records" (including the name check), so be it. But if they interviewed us, this is the "examination" which triggered the 120 day clock, they are mandated by 8 U.S.C. 1447(b) to complete all necessary investigations by the expiration of this period and adjudicate your application.

It is not correct when some of the Plaintiffs or courts or even DOJ in the "Memorandum for WIC" argue that USCIS violates their own regulation when they issue interview notices before the background check is complete. As bashar82 pointed out, that is part of the general investigation, not part of the full criminal background check, which is performed based on the fingerprints and is mandated by Congress in the 1998 Appropiation Act to be completed before the case can be adjudicated. If the background check would be completed not later than 120 days after the interview, they could adjudicate the application without violating any of their own regulations.

So, in my interpretation, as soon as the fingerprints are cleared, this means that FBI completed the criminal background check and USCIS can interview the applicant. The investigation (one part of it the name check) begun before the interview and can run even after the interview, BUT NOT LONGER THAN 120 DAYS AFTER THE INTERVIEW.

I don't know if this makes sense to the other forum members, but at least, I have now a theory, a possible explanation.

I would be interested who else buys this.
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:) :) :)
 
Sample letter to USCIS

Hi olegius,
Please find the attached sample letter to USCIS. It was posted someone in earlier pages on this thread. You can make chages to it and add your stuff.
Thank you.

olegius said:
Can anyone post here a sample letter to Service Center Director or to FBI asking to expedite the namecheck. I want to file WOM lawsuit. As I understand I need to go through all USCIS and FBI steps before going to court.
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Cases Pending

Not true. Here is a definitive answer from the latest newsletter and a quote from Emilio Gonzales himself. I believe these numbers are meant for naturalization alone and does not count any other type of pending applications (such as 485 AOS).
Cases pending other agency action (136,783)
This includes 4,905 cases where USCIS has requested full investigations by other federal agencies, and is awaiting the results of these investigations; and 130,091 cases where USCIS has interviewed the applicant and completed all processing, but is still awaiting the final results of the FBI’s name check record search. USCIS will not approve a case until all background checks, including the FBI name check, are complete.

http://www.uscis.gov/graphics/publicaffairs/USCISToday_Oct_06.pdf
khan4nwfp said:
I wonder if any one in this forum has heard this before. I called my congressman to see what, if anything they can do for my name check pending for N-400. This is what she told me and maybe if anyone can verify whether how much of it is true or not.
The person incharge of dealing with immigration issues told me that since 9/11 FBI was doing manual checks on people (like me and other's) which created a backlog. At this point the FBI has reduced that backlog to about 6500 candidates that are still stuck in the name check. She said they have a lot of candidates on her list (congressman's office) for the name check process and they keep an eye on this and contact the candidate when thier FBI check is done.
6500 doesnt seem a lot and I got to thinking if that is the case then I and a lot of others should get thier names clear soon or should have been already cleared.
I am not really sure who to believe anymore. :mad: Any thoughts or comments.??
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Paz...

I believe the issue of legality of name checks is not one can raise in a sole petition, but will require a class action with experienced attorneys (this can only happen in pockets such as NY city where huge number of applications remain pending and collectively applicants can have political clout for action). Also, where is the financial motivation for any attorney to pursue this? There is no tobacco with deep pockets involved!

The separation of investigative phase with the examination phase has been well laid out in numerous lawsuits. My worry is that a conservative judge will seek to retain jurisdiction, but remand the case back to CIS with absolutely no instruction as to timely completion. There hasn't been a single case where a judge has naturalized an petition. If this were to happen, it will be ground-breaking for the rest of us.
 
PendingN400 said:
Paz...

I believe the issue of legality of name checks is not one can raise in a sole petition, but will require a class action with experienced attorneys (this can only happen in pockets such as NY city where huge number of applications remain pending and collectively applicants can have political clout for action). Also, where is the financial motivation for any attorney to pursue this? There is no tobacco with deep pockets involved!

The separation of investigative phase with the examination phase has been well laid out in numerous lawsuits. My worry is that a conservative judge will seek to retain jurisdiction, but remand the case back to CIS with absolutely no instruction as to timely completion. There hasn't been a single case where a judge has naturalized an petition. If this were to happen, it will be ground-breaking for the rest of us.
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Do you an idea of how many pending name checks are in NYC?
I am in NY and I was thinking of contacting ACLU and CAIR to explore a class action option.
 
PendingN400 said:
If you find a good attorney for a class action (such as this ACLU case) - and it goes through the process of discovery and litigation, the administrative powers exercised by CIS (my suspicion is that they will cite these administrative powers) will be subject to question.
Click to expand...


PendingN400, for a class action suit, I am required to find other people who are in the same situation? Or can I hire a lawyer and do it myself? I could only hire a lawyer if it is more than likely that I will be granted EAJA and get my lawyer paid. Even 5 to 10 K I might be able to provide with loans and stuff but I read these cases go up to 30K, that I can not do. ACLU in my area also suggests that if there is urgency in my case, don't bother with them, hire private counsel, and there is urgency in my case.

I really want to hand it to CIS and let the people of the United States know that CIS is abusing legal residents of this country with this crap while politicians are trying to fetch more illegals in.
 
Bushmaster said:
PendingN400, for a class action suit, I am required to find other people who are in the same situation? Or can I hire a lawyer and do it myself? I could only hire a lawyer if it is more than likely that I will be granted EAJA and get my lawyer paid. Even 5 to 10 K I might be able to provide with loans and stuff but I read these cases go up to 30K, that I can not do. ACLU in my area also suggests that if there is urgency in my case, don't bother with them, hire private counsel, and there is urgency in my case.

I really want to hand it to CIS and let the people of the United States know that CIS is abusing legal residents of this country with this crap while politicians are trying to fetch more illegals in.
Click to expand...

My recommendation to you is file Pro Se first (if your case is straight forward; i.e. no convections ETC) and see how the AUSA response. If you get a challenging answer, then hire a counsel to take on your case. This way you can save a lot of money. I had my lawyer handle it from the beginning because I travel frequently overseas and I don’t have the time to baby sit the USCIS. This was very expensive, a lot more than 30 k.

I am attaching a recent court order I just got from my attorney that is a great way to reference in your case. This order is the toughest one to date against the USCIS.

P.S. Don’t look for ASUS to get a legal advice as they are your opponent.

Good luck
 
Question on Section 1447(b) lawsuit

Hi
Can some experienced folks here help me in clarifying my doubt on filing lawsuit under Section 1447(b).
I understand that when a lawsuit is filed under 1447(b) and the AUSA served, the AUSA comes back saying CIS is ready to adjudicate but for that we have to withdraw the case. To avoid being in a situation where CIS goes back on their words, can we ask the Court to put the case in Pending (temporarily suspend action) for 30 days so that if we dont get naturalized in that 30 day period, we can continue the lawsuit. What is the legal terms/procedures to ask the court to temporarily suspend action on a lawsuit.

Thanks.
 
Publicus mentioned he would create a website with more information about this process. Does anyone know if he created one?

Has anyone else created a website for guidance? This thread is very useful but it's also getting hard to navigate because of its length.

I would like to thank everyone who has posted useful information on this thread.

-Chris
 
I started it today

Guys,

I filed my complaint today with Court. They took all the information and copies for defendents. She said that you will get some response back from court about summons.

Does that mean I will get some thing in mail for summons or should I follow up with court in a week or so about summons that I should sent out to dependants?

Thanks
 
Judicial Decisions

I have been collecting numerous 1447(b) related cases and documents over this past one year. I have to say that this case of Said in Seattle, Washington is by far the boldest judicial opinion in favour of petitioners that I have seen. This is good news and should be cited in case US attorney files jurisdiction/examination issue.

SHAFFI said:
My recommendation to you is file Pro Se first (if your case is straight forward; i.e. no convections ETC) and see how the AUSA response. If you get a challenging answer, then hire a counsel to take on your case. This way you can save a lot of money. I had my lawyer handle it from the beginning because I travel frequently overseas and I don’t have the time to baby sit the USCIS. This was very expensive, a lot more than 30 k.

I am attaching a recent court order I just got from my attorney that is a great way to reference in your case. This order is the toughest one to date against the USCIS.

P.S. Don’t look for ASUS to get a legal advice as they are your opponent.

Good luck
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The fact that the judge issued a forcecul opinion by twisting CIS bureaucracy to complete task by October 18th or else it will itself issue an oath of naturalization to the 4 petitioners is amazing! I don't know what happened on or prior to the 18th, but I am sure CIS had to bite the bullet and issue oath to the 4 petitioners.
 
I-130 and I-129F

Well, I become US citizen after filling 1447(b). Also Gopod Luck to all who filed or planning to file. Anyway I can help, please do contact me.

My question to you all is, i did filed I-130 and I-129F, I filed I-130 when i had green card now i did sent out request letter along with documents to upgrade I-130 to US citizen.

If I-130 approved before I-129F then what should I do? should I wait for I-129F so my wife can apply for K-3? or she can apply for K-3 even if only I-130 approved before I-129F.

Need your help and real time experience.

Thanks ALL
 
MR LA:

Havn't heard from you lately. How is your case? Any updates?

Wish you good luck,

Jack
Mr LA said:
Hello Olegb, and all

I been calling the U.S Attorney once a week, and still nothing, he is still waiting for the USCIS and the FBI. I have decided to stop calling him and do everything by Emails to have record for it. Now I am doing and preparing my self to meet with the judge on Nov 20th, you may say I am ready for it too.

I wish you all and my self the best….

Ps,
If someone like a criminal, get out of jail yesterday, and walk to FedEx today, or any store that is doing business with the airports, their name get clear between 2-5 days ….. Isn’t that funny ……..
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