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

[STUCKAGAIN2006]

MY VICTORY & MY STORY FOR THOSE WHO ARE NOT DONE YET

This is my first time posting here, but I'm reading this site for quite some time, since the site won't allow me to post in the past. But I have learnt alot alot from this website. I wouldn't make it without you guys. Many many "Blessings and thanks to Rijiv Khanna and the first guy who did it, Those who thought about this site and you guys who share their thoughts on every single question anyone have.

Anyhow, today I wrote to the webmaster to activiate my reg. so I can be able to post my story and it may help others.

Here is my story.
I have filed my N-400 application at the DC District office in the first week of December 2005. 2nd week of Jan. 2006, I was fingerprinted.
My Intrview was scheduled on last week of April, 2006. I have passed the test etc., and was told the same thing that every one is told and will be told " Sorry, I can not make a decision on your application because your name check has not been completed."

Since that day and on I had wrote to our State two Senators but they did not even bother to answer my phone calls or emails.

Senator John Warner office, one day returned my call and told me, Be patient: there are people waiting since 2002. Well, I was so discourged and I thought it may never happen. "BUT I DID NOT GIVE UP."

I was reading the sucess stories on this site... and I decided to file the 1447 (b) as soon the 120 days are up. In the last week of Aug, 2006, I filed the 1447 (b) lawsuit in Alexandria Eastern Distric Court. I did my home work and prepared to the best of my knowledge a lawsuit. The clerk told me, that they are seeing these lawsuites quite of few these days.

I sent all the summons to the defendants and did not wait for the green return receipt to come and made an affiviadate based on USPS tracking numbers and mailed it to the court. The next week I call the US attorney and introduced myself. He said, I have received your complaint and I will submit your name to the FBI to expedite your case and hopefully will be done before the 60 days are up.

Since then I would call every week to see if anything he heard but same answer each time, NO news yet. On October 26th he told me, he will file a motion to dismiss since he has not heard anything from FBI, and my AUSA, last day to response was October 30th 2006. I said why don't you file for extension, he said well Ok I will do file an extension for 30 days.

Once I hang up, I thought to myself, what if they have not completed by then. He will file the motion to dismiss then and it will take another 30 days to do the same thing. So I call him back and said, I have change my mind, You go ahead and file the motion to dismiss and mail me, a copy. I will answer with response to motion to dismiss. He said Ok as you wish.

He filed his motion to dismiss on October 26th 2006 and mailed me a copy, also court give me 20 days to response to his motion to dismiss.
I did my home work again and preapred a 13 pages response to his motion to dismiss. I mailed it on Nov, 09, 2006. He received it on Nov. 13th 2006. I called him on the 13th Nov, to see what he think he said I don't have any news for you. But he said I will call before thanksgiving day, if they have processed.

This morning I got a call from USCIS that my oath is scheduleed for Friday Nov. 17th if I can make it. She fax the oath letter to me. I still have to hear from the US attorney. My court hearing date is December 01, 2006. I will call us attorney on Monady to dismiss the case. THanks GOD the ordeal is over.

For those who has not done yet my advise is get on it ASAP. Because, the 120 days law may change or one thing is damn sure, they are not going to complete this name check until you sue.
Anyone has a question please do ask. I have learnet alot from this site, I thing I owe it to these people whatever help I can.
I will post the oath info once i am done.........

 

[wenlock]

Congratulations

I am so happy to hear another success story. I agree with you those who are just waiting to file law suit should not wait and file ASAP I am sure USCIS will try best to close this loop hole of 1447b.

 

[paz1960]

I have finally filed my petition in the Sixth Circuit. I will keep you guys posted on the developments. My worst fear is that the court will simply remand the matter back without specific instructions. Has any one compiled a good list of cases where judge has issued time restrictions while remanding the case back to USCIS? I have seen one or two cases where 6-7 such cases are cited, but I am looking for a comprehensive list. The Al-Kudsy case seems to be the most judicially bold opinion issued so far of any case I have seen.

Hi PendingN400,
I think that you are perfectly right. This is the biggest danger, that the case is remanded without any specific timetable, i.e., we would be back at square one, exactly where we begun before the lawsuit. So I also think that everybody in our situation should put most of the effort to work on that part of the "Opposition to Defendants Motion to Dismiss or Remand", which tries to convince the judge to put a timetable in his/her remand decision.

So far I found 8 cases where the judges remanded the case with specific timetable. Unfortunately, I don't have yet all the correct citations, I know only the case numbers for some cases. It would be important that forum members who have a lawyer or access to Westlaw or LEXIS try to find the correct, court-accepted citation for the following cases:

1) Al Saidi v. Jenifer, No. 05-71832, (E.D. Mich. Dec. 23, 2005) (ordering Defendants to adjudicate Plaintiff’s N-400 application in 80 days from the date of the order);
2) Al-Kudsi v. Gonzales, 2006 WL 752556, at *2 (D. Or. Mar. 22, 2006) (ordering Defendant Alberto Gonzales to instruct FBI to complete the name check of the Plaintiff in 90 days from the date of the order and deliver it to the District Director of USCIS; It was further ordered that if a completed name check on the application of Plaintiff is not received by the District Director of USCIS, within said ninety day period, the District Director shall treat that failure as if he had received a completed name check from the FBI containing no information that would lead to a denial of the application and within a thirty day period thereafter shall grant the application of Plaintiff and forward a certificate of naturalization to the court);
3) Mohamed v. Frazier (Case 0:06-cv-00377-RHK-JSM, D. Minn. May 18, 2006) Slip Copy, 2006 WL 1424619 (D. Minn.) (ordering USCIS to resolve Plaintiff’s N-400 application within 30 days from the date of the order);
4) Elshorbagi v. Melville, No. 1 :05-cv-1926 (N.D. Georgia May 19, 2006) (“Upon remand, defendants are ORDERED to complete any further investigation deemed necessary by defendants in order to satisfy the background check requirements of the naturalization process within NINETY (90) DAYS from the date of this order”);
5) Aslam v. USCIS, No. CV 05-985 GAF (C.D. Calif. June 6, 2005) (ordering the Government to complete Plaintiff’s name check in 30 days);
6) Khelifa v. Chertoff, No. 06-10147 (E.D. Mich. Jun. 9, 2006) (instructing USCIS to promptly determine Plaintiff’s N-400 application in 90 days from the date of the order);
7) Eng v. Chertoff, slip copy, 2006 WL 2442894 (S.D. Tex, Sept. 7, 2006) (instructing Defendant Alberto Gonzales to direct FBI to complete Plaintiff’s name check within 120 days from the date of the order and deliver it to USCIS, which in turn will promptly adjudicate Plaintiff’s N-400 application);
8) Ismail v. Jones, No. 2:06-cv-13320-PJD-RSW (E.D. Mich. Oct. 11, 2006) (ordered Defendants to complete in 3 months the necessary security background checks needed to decide the naturalization application).

 

[cajack]

Congratulations!!! Happy for you.

This is my first time posting here, but I'm reading this site for quite some time, since the site won't allow me to post in the past. But I have learnt alot alot from this website. I wouldn't make it without you guys. Many many "Blessings and thanks to Rijiv Khanna and the first guy who did it, Those who thought about this site and you guys who share their thoughts on every single question anyone have.

Anyhow, today I wrote to the webmaster to activiate my reg. so I can be able to post my story and it may help others.

Here is my story.
I have filed my N-400 application at the DC District office in the first week of December 2005. 2nd week of Jan. 2006, I was fingerprinted.
My Intrview was scheduled on last week of April, 2006. I have passed the test etc., and was told the same thing that every one is told and will be told " Sorry, I can not make a decision on your application because your name check has not been completed."

Since that day and on I had wrote to our State two Senators but they did not even bother to answer my phone calls or emails.

Senator John Warner office, one day returned my call and told me, Be patient: there are people waiting since 2002. Well, I was so discourged and I thought it may never happen. "BUT I DID NOT GIVE UP."

I was reading the sucess stories on this site... and I decided to file the 1447 (b) as soon the 120 days are up. In the last week of Aug, 2006, I filed the 1447 (b) lawsuit in Alexandria Eastern Distric Court. I did my home work and prepared to the best of my knowledge a lawsuit. The clerk told me, that they are seeing these lawsuites quite of few these days.

I sent all the summons to the defendants and did not wait for the green return receipt to come and made an affiviadate based on USPS tracking numbers and mailed it to the court. The next week I call the US attorney and introduced myself. He said, I have received your complaint and I will submit your name to the FBI to expedite your case and hopefully will be done before the 60 days are up.

Since then I would call every week to see if anything he heard but same answer each time, NO news yet. On October 26th he told me, he will file a motion to dismiss since he has not heard anything from FBI, and my AUSA, last day to response was October 30th 2006. I said why don't you file for extension, he said well Ok I will do file an extension for 30 days.

Once I hang up, I thought to myself, what if they have not completed by then. He will file the motion to dismiss then and it will take another 30 days to do the same thing. So I call him back and said, I have change my mind, You go ahead and file the motion to dismiss and mail me, a copy. I will answer with response to motion to dismiss. He said Ok as you wish.

He filed his motion to dismiss on October 26th 2006 and mailed me a copy, also court give me 20 days to response to his motion to dismiss.
I did my home work again and preapred a 13 pages response to his motion to dismiss. I mailed it on Nov, 09, 2006. He received it on Nov. 13th 2006. I called him on the 13th Nov, to see what he think he said I don't have any news for you. But he said I will call before thanksgiving day, if they have processed.

This morning I got a call from USCIS that my oath is scheduleed for Friday Nov. 17th if I can make it. She fax the oath letter to me. I still have to hear from the US attorney. My court hearing date is December 01, 2006. I will call us attorney on Monady to dismiss the case. THanks GOD the ordeal is over.

For those who has not done yet my advise is get on it ASAP. Because, the 120 days law may change or one thing is damn sure, they are not going to complete this name check until you sue.
Anyone has a question please do ask. I have learnet alot from this site, I thing I owe it to these people whatever help I can.
I will post the oath info once i am done.........

 

[khalafah2000]

Hi Khalafah,
What kind of retaliation you mean?

they can deny your case on some ultra trivial issue. Remember they are govt. agency and no *indiviual* get punished if they make a mistake knowingly or unknowingly.

 

[khalafah2000]

Oath ceremony - what to take with me.

Hi,
some members of the this forum graciously responded before as part of my earlier post about it. Just to double check what I should take with me on the oath day.

I have ONLY one 3 week trip outside of USA after my interview. During which, I went to my home country to see my family and Malaysia for visit in the same trip. I don't have any traffic ticket or parking ticket. So apart from my green card, passport, expired re-entry permit and dates of my trip, is there anything else, I should take with me? Any originals or anything else?

 

[cajack]

I agree 100%. Once you file lawsuit such as 1447b, USCIS lose jurisdiction. Therefore, it can not deny you without notifing the court. Also, it will make USCIS's decision of denying your application over some kind of very small issues look unjustify on the court. The lawsuit leave USCIS no choice but adjucate your case, if you have a pretty clean background. Of course, it will be a though fight for someone who has criminal background. On the other hand, intent to sue letter does not take the jurisdiction away from USCIS. It can do whatever it wants.

Jack

they can deny your case on some ultra trivial issue. Remember they are govt. agency and no *indiviual* get punished if they make a mistake knowingly or unknowingly.

 

[Mr LA]

I agree 100%. Once you file lawsuit such as 1447b, USCIS lose jurisdiction. Therefore, it can not deny you without notifing the court. Also, it will make USCIS's decision of denying your application over some kind of very small issues look unjustify on the court. The lawsuit leave USCIS no choice but adjucate your case, if you have a pretty clean background. Of course, it will be a though fight for someone who has criminal background. On the other hand, intent to sue letter does not take the jurisdiction away from USCIS. It can do whatever it wants.

Jack

Hello Jack,
Congratulations man, i just saw that you got your oath letter ....

 

[skyhigh7]

Congradulations. You did it.

Can you please post your response to AUSA's motion to dismiss? so we can learn from it. thx.

Sky

This is my first time posting here, but I'm reading this site for quite some time, since the site won't allow me to post in the past. But I have learnt alot alot from this website. I wouldn't make it without you guys. Many many "Blessings and thanks to Rijiv Khanna and the first guy who did it, Those who thought about this site and you guys who share their thoughts on every single question anyone have.

Anyhow, today I wrote to the webmaster to activiate my reg. so I can be able to post my story and it may help others.

Here is my story.
I have filed my N-400 application at the DC District office in the first week of December 2005. 2nd week of Jan. 2006, I was fingerprinted.
My Intrview was scheduled on last week of April, 2006. I have passed the test etc., and was told the same thing that every one is told and will be told " Sorry, I can not make a decision on your application because your name check has not been completed."

Since that day and on I had wrote to our State two Senators but they did not even bother to answer my phone calls or emails.

Senator John Warner office, one day returned my call and told me, Be patient: there are people waiting since 2002. Well, I was so discourged and I thought it may never happen. "BUT I DID NOT GIVE UP."

I was reading the sucess stories on this site... and I decided to file the 1447 (b) as soon the 120 days are up. In the last week of Aug, 2006, I filed the 1447 (b) lawsuit in Alexandria Eastern Distric Court. I did my home work and prepared to the best of my knowledge a lawsuit. The clerk told me, that they are seeing these lawsuites quite of few these days.

I sent all the summons to the defendants and did not wait for the green return receipt to come and made an affiviadate based on USPS tracking numbers and mailed it to the court. The next week I call the US attorney and introduced myself. He said, I have received your complaint and I will submit your name to the FBI to expedite your case and hopefully will be done before the 60 days are up.

Since then I would call every week to see if anything he heard but same answer each time, NO news yet. On October 26th he told me, he will file a motion to dismiss since he has not heard anything from FBI, and my AUSA, last day to response was October 30th 2006. I said why don't you file for extension, he said well Ok I will do file an extension for 30 days.

Once I hang up, I thought to myself, what if they have not completed by then. He will file the motion to dismiss then and it will take another 30 days to do the same thing. So I call him back and said, I have change my mind, You go ahead and file the motion to dismiss and mail me, a copy. I will answer with response to motion to dismiss. He said Ok as you wish.

He filed his motion to dismiss on October 26th 2006 and mailed me a copy, also court give me 20 days to response to his motion to dismiss.
I did my home work again and preapred a 13 pages response to his motion to dismiss. I mailed it on Nov, 09, 2006. He received it on Nov. 13th 2006. I called him on the 13th Nov, to see what he think he said I don't have any news for you. But he said I will call before thanksgiving day, if they have processed.

This morning I got a call from USCIS that my oath is scheduleed for Friday Nov. 17th if I can make it. She fax the oath letter to me. I still have to hear from the US attorney. My court hearing date is December 01, 2006. I will call us attorney on Monady to dismiss the case. THanks GOD the ordeal is over.

For those who has not done yet my advise is get on it ASAP. Because, the 120 days law may change or one thing is damn sure, they are not going to complete this name check until you sue.
Anyone has a question please do ask. I have learnet alot from this site, I thing I owe it to these people whatever help I can.
I will post the oath info once i am done.........

 

[paz1960]

Hi,
some members of the this forum graciously responded before as part of my earlier post about it. Just to double check what I should take with me on the oath day.

I have ONLY one 3 week trip outside of USA after my interview. During which, I went to my home country to see my family and Malaysia for visit in the same trip. I don't have any traffic ticket or parking ticket. So apart from my green card, passport, expired re-entry permit and dates of my trip, is there anything else, I should take with me? Any originals or anything else?

Don't forget the oath letter

 

[cajack]

Mr. LA:

Thank you very much and hope you will hear the good news soon. Wish you the best.

Jack

Hello Jack,
Congratulations man, i just saw that you got your oath letter ....

 

[khalafah2000]

I agree 100%. Once you file lawsuit such as 1447b, USCIS lose jurisdiction. Therefore, it can not deny you without notifing the court. Also, it will make USCIS's decision of denying your application over some kind of very small issues look unjustify on the court. The lawsuit leave USCIS no choice but adjucate your case, if you have a pretty clean background. Of course, it will be a though fight for someone who has criminal background. On the other hand, intent to sue letter does not take the jurisdiction away from USCIS. It can do whatever it wants.

Jack

There is something called lack of good moral character and USCIS can invent anything for it like filing taxes late etc. Certainly, as per our understanding of 1447b, they lose the jurisdiction, but I have seen cases where USCIS denied the case after the lawsuit.

 

[paz1960]

There is something called lack of good moral character and USCIS can invent anything for it like filing taxes late etc. Certainly, as per our understanding of 1447b, they lose the jurisdiction, but I have seen cases where USCIS denied the case after the lawsuit.

Unfortunately, even if the District Court assumes jurisdiction and vacates USCIS denial after the Plaintiff filed his complaint, but decides to remand the case to USCIS, the agency can deny Plaintiff's application as soon as the remand order is signed. Remember, the Court will remand most likely the case with the instruction to determine the matter (which means 'adjudicate', not encessary 'approve'). In such case applicant has to appeal USCIS and wait for an administrative review and file a complaint with the District Court only after the USCIS supervisor reviewed the denial and agreed with the original decision.

 

[pearlgal]

usps lost tracking on my certified mail

hi, all:

i need your kind advice again. it seems that usps has screw up one of my certified priority mail + return receipt to san francisco USCIS office, when i track online, it only show the status of "acceptance" at the local office that i mail the package, it has been 5 days, when i visit the post office, they said it probably due to whoever delivered it forgot to scan it so there will be no update what so ever. they will inquire it, but it will be no official track+confirm show the delivery status.

not knowing whether it has been delivered or not make me nervous since this is very important delivery to local USCIS office, what should i do? usually how long take the return receipt from local USCIS, espically san francisco does anyone know? or should i resent the whole package again to USCIS and hopefully someone do their job right to scan so i can make sure it was delivered?

for those people who filed certified of service, if i did not collect all can i file some certificate of service first like US attorney, DHS, USCIS first, then file rest later to the court?

thanks so much,

pearlgal

 

[Madison04]

I agree 100%. Once you file lawsuit such as 1447b, USCIS lose jurisdiction. Therefore, it can not deny you without notifing the court. Also, it will make USCIS's decision of denying your application over some kind of very small issues look unjustify on the court. The lawsuit leave USCIS no choice but adjucate your case, if you have a pretty clean background. Of course, it will be a though fight for someone who has criminal background. On the other hand, intent to sue letter does not take the jurisdiction away from USCIS. It can do whatever it wants.

Jack

Does USCIS lose jurisdiction over WOM cases, too?

Also, I found some similar cases on PACER, but it's only a "docket" with few information. So, how can I find more details regarding a particular case, such as text of the complaints? Is it possible?

 

[cajack]

I am sorry that I don't know too much about the WOM case. Personally, I believe that court does not have the exclusive jurisdiction on WOM cases. I may be wrong. Hope someone else on this forum can answer this question. Good luck,

Jack

Does USCIS lose jurisdiction over WOM cases, too?

Also, I found some similar cases on PACER, but it's only a "docket" with few information. So, how can I find more details regarding a particular case, such as text of the complaints? Is it possible?

 

[paz1960]

Does USCIS lose jurisdiction over WOM cases, too?

Also, I found some similar cases on PACER, but it's only a "docket" with few information. So, how can I find more details regarding a particular case, such as text of the complaints? Is it possible?

I didn't study the WOM cases to the same extent like the 1447(b) cases (mine is N-400 stalled application, lawsuit based on 1447(b)). But the statue doesn't provide any timelimit to adjudicate petitions for adjustment of status. Here is a citation from a 6th Circuit Court order: “where a statute both requires the agency to act within a certain time period and specifies a consequence if that requirement is not met, the agency will lose jurisdiction to act.” See Friends of the Crystal River v. EPA, 35 F.3d 1073, 1080 (6th Cir. 1994). If I interpret the negation of this, i.e., when the statue doesn't requires the agency to act within a certain period of time, the agency will not lose jurisdiction when a lawsuit is filed. Somewhere I saw a case when the statue required an agency to act in a certain time but didn't specify a consequence if the timelimit was exceeded and the agency didn't lose jurisdiction.

Your question with PACER: if in the docket the documents are not clickable, most likely this case is an older one where they didn't scan in the individual documents and you can't simply download them. I found this in couple of courts with cases older than couple of years.

 

[ZUR]

How to add an attorney to your lawsuit?

Does any one know how to add an attorney to the pending lawsuit? I have filed Pro Se, already have granted one 30 day extension. The deadline to that is also approaching for the 30 day extension. I just want to prepare myself for the worst and want to have an attorney in case if the case goes to trial or even pre-trial conference.

Thanks.

 

[paz1960]

Does any one know how to add an attorney to the pending lawsuit? I have filed Pro Se, already have granted one 30 day extension. The deadline to that is also approaching for the 30 day extension. I just want to prepare myself for the worst and want to have an attorney in case if the case goes to trial or even pre-trial conference.

Thanks.

Hello ZUR,

Go with PACER to the Southern District of California District Court and look to the case 3:06-cv-01675. Plaintiff filed Pro Se, when things got complicated he hired an attorney to represent him (and his wife). Seems that it is relatively simple to add an attorney, or essentially replace the Pro Se plaintiff with a counsel. In the mentioned case Plaintiffs through their newly hired attorney asked an extension to oppose defendants motion to dismiss, arguing that newly hired counsel needs some time to prepare the opposition.

 

[PendingN400]

Remand with Instructions

Paz-

Thanks very much for your response. I intend to use these cases and as many other from a cross-section of the country that have remand with time instructions incase I ever need to file a response against US Att motions. As I did this, I initially thought that the load will off, but not so! I have many doubts on the legal front, but following are key to such cases.

1. The issue of jurisdiction - this can range from most negative "no jurisdiction" to "concurrent jurisdiction" to "exclusive jurisdiction" by the court. I suppose in our case we need the middle one since we want the CIS to go ahead and process our checks and adjudicate while a case is pending. In the exclusive jurisdiction scenario, unless the judge is willing to exercise judicial powers to twist few arms, it is no good.
2. Expediting name checks - this is simply the most desired outcome for all cases. I am yet to see a case where this is by-passed. Arguments have been presented as to legality of name checks, but there is yet a court that has bought this. This will need a dream team of lawyers fighting on behalf of 130,000 or so naturalization applicatants stuck in name checks.
3. Remand with Instructions - unless time factors are involved, remand is useless. You will be back to square one with no resolution.

As a side note, I had talked to one attorney who said that unless there are increasing number of suits with attorney fees awarded under EAJA, CIS has no incentive to resolve name check black hole. Since most individuals are simply interested in resolving their own specific case, this does not happen and puts no special pressure on CIS.