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

Motion to dismiss response

I filed my summons and I am starting preparing for US attorney motion to dismiss.

Can some one refer me to few cases in response to motion to dismiss in reference to WOM not 1447b.

I am looking for specifically WOM related motions. I believe the argument is that time more then one or two years is unresonable.

Can some one cite any good cases please.
Thanks
 
While the Danilov decision has been over turned by numerous other courts, there is no guarantee even within the same district court for any case to set a precedence. Also, I don't believe there is any particular advantage in hiring a expensive lawyer if you are willing to do the homework yourself. One advantage in hiring a lawyer might be figuring out when to file a case, because of judicial predisposition.
 
wenlock said:
I filed my summons and I am starting preparing for US attorney motion to dismiss.

Can some one refer me to few cases in response to motion to dismiss in reference to WOM not 1447b.

I am looking for specifically WOM related motions. I believe the argument is that time more then one or two years is unresonable.

Can some one cite any good cases please.
Thanks
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I haven't seen very many of these posted here within this forum, but I would recommend searching within your district court by obtaining a PACER account. You can look for documents subsequent to defense's motion to dismiss. The two things critical to such a response would be one of exhaustion of administrative appeals that you would have gone through and the delays beyond normal processing times. In addition, I have heard of arguments pertaining to feduciary responsibility that gets established when CIS accepts your applications with processing fees paid and accepted.
 
paz1960 said:
... we still can end up exactly where we started before the lawsuit if the judge decides to remand the matter to USCIS with the instruction to adjudicate the application after the name check is complete. ....
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I have always felt that this issue of courts retaining jurisdiction, but opting to remand the matter back to CIS as legally flawed. What is the point of court retaining jurisdiction, but not opt to de novo adjudicate? It makes no sense to remand when the law states "remand with instructions" and then go on to issue an opinion to "adjudicate when name check is complete". CIS does not need to be reminded of that! The whole problem is that this aspect has not been litigated in front of a jury.
 
good news and bad news

My AUSA called yesterday from her home (because of the big snow here) told me both good news and bad news. Good-my background check was completed by FBI on 11/13, she didn't tell me the result though, she said the FBI never tells the result, only tells if it is done or not done. Bad-USCIS is not returning her calls about my case. She has been helpful with my case. I see some hope on my case, but I will never be relaxed until I have the real card in my hands.
 
I think you are very close to be done with your case. Once the bc check is done, USCIS has to adjustcate your case or the court will do. I believe your case will be resolved within a few weeks if it is not days. Congradulations.

Jack

jzdc said:
My AUSA called yesterday from her home (because of the big snow here) told me both good news and bad news. Good-my background check was completed by FBI on 11/13, she didn't tell me the result though, she said the FBI never tells the result, only tells if it is done or not done. Bad-USCIS is not returning her calls about my case. She has been helpful with my case. I see some hope on my case, but I will never be relaxed until I have the real card in my hands.
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cajack said:
I think you are very close to be done with your case. Once the bc check is done, USCIS has to adjustcate your case or the court will do. I believe your case will be resolved within a few weeks if it is not days. Congradulations.

Jack
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Thank you, Jack. I will see what happens next. As I metioned in the post that FBI didn't tell the AUSA the result of the background check, as the AUSA said "unless it is abnormal" my case should be resolved soon if she can ever get a return call from USCIS.

Jing
 
PendingN400 said:
I have always felt that this issue of courts retaining jurisdiction, but opting to remand the matter back to CIS as legally flawed. What is the point of court retaining jurisdiction, but not opt to de novo adjudicate? It makes no sense to remand when the law states "remand with instructions" and then go on to issue an opinion to "adjudicate when name check is complete". CIS does not need to be reminded of that! The whole problem is that this aspect has not been litigated in front of a jury.
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I had the exact same thoughts about this remand with no precise timeline. Such a decision is certainly frustrating the intent of Congress, who wanted to provide a way to get a stalled application moving if the Service is not doing their job. By sending back to them without specifically instructing them how and under what timeline to proceed, the whole lawsuit is like Shakespeare's play: Much ado about nothing.

On the other hand, care should be taken that the 'specific instructions' should not contain a deadline only for USICS to adjudicate the application; if FBI is left out of the judge's order, USCIS can deny the application at the end of the 'grace period', arguing that they can't approve an application without the completed name check and because they are bound by the court order, the only option left for them is to deny the application. Rather, the prayer for relief should ask the judge to order:
1. USCIS should immediately ask FBI to expedite the name check (if they didn't do already);
2. FBI should complete the name check as soon as possible but not later than XX days after the order;
3. USCIS should adjudicate the application as soon as possible but not later than YY days after receiving from FBI the result of the name check;
4. If the decision is to grant the application, USCIS should schedule the oath ceremony as soon as possible but not later than ZZ days after adjudicating the application.

(I put XX=30, YY=15, ZZ=15, rather optimistic :) )
 
jzdc said:
Thank you, Jack. I will see what happens next. As I metioned in the post that FBI didn't tell the AUSA the result of the background check, as the AUSA said "unless it is abnormal" my case should be resolved soon if she can ever get a return call from USCIS.

Jing
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Hello Jing,
Although seems a little early, I still feel that we can congratulate you for your victory. You are almost there, AUSA is right: FBI will never tell what was the result of the name check, they just send whatever they found (or didn't find) to the agency who ordered the name check and it is the responsability of the agency (in our cases USCIS) to decide how they are using the info resulted from the name check process. The second statement of AUSa is also reasonable: if the name check didn't produce anything "abnormal" it is also USCIS' interest to terminate your case, which is pending in court.

Just a tougth: if your AUSA could not reach her office because the big snow, maybe the lawyer in USCIS is not returning her call for the same reason...
But the fact that AUSA called you with the good news even from her home, tells me that she is really nice and eager to help. I'm sure that ultimately she will get a hold on her contact person from USCIS.
 
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I don't think I'm a winner yet as I have totally lost my faith to the gorventment. Who knows what will come up next! I am just preparing the worst-I have some "opposition" ready to use if I have to.

I found out why my AUSA is so helpful. She adopted a girl from China and had some similar experience with USCIS. She knows exactly what we are suffering. She said she will try to call the boss of USCIS to get things work.


paz1960 said:
Hello Jing,
Although seems a little early, I still feel that we can congratulate you for your victory. You are almost there, AUSA is right: FBI will never tell what was the result of the name check, they just send whatever they found (or didn't find) to the agency who ordered the name check and it is the responsability of the agency (in our cases USCIS) to decide how they are using the info resulted from the name check process. The second statement of AUSa is also reasonable: if the name check didn't produce anything "abnormal" it is also USCIS' interest to terminate your case, which is pending in court.

Just a tougth: if your AUSA could not reach her office because the big snow, maybe the lawyer in USCIS is not returning her call for the same reason...
But the fact that AUSA called you with the good news even from her home, tells me that she is really nice and eager to help. I'm sure that ultimately she will get a hold on her contact person from USCIS.
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DelightFish said:
Hi Madison04,

I am very sorry to hear this. It's sad. This is not what we expected. But somtimes, this is life.

Before you leave this forum, I would like to express my best wishes to you. Good luck! Be a man! Devote yourself into the fight, you will get more than what you want!

Best wishes.
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Thank you very much for your good wishes, Delightfish! I remember you, 'cause we filed the lawsuit pretty much at the same time. I'm very glad to see that you've succeeded in getting the card without any problem. Enjoy!
 
jzdc said:
I don't think I'm a winner yet as I have totally lost my faith to the gorventment. Who knows what will come up next! I am just preparing the worst-I have some "opposition" ready to use if I have to.

I found out why my AUSA is so helpful. She adopted a girl from China and had some similar experience with USCIS. She knows exactly what we are suffering. She said she will try to call the boss of USCIS to get things work.
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I think you're very close to the end of the tunnel. But I agree that you should always be prepared, because you never know what the government will throw at you. Just look at my wife's experience... Anyway, it's a good sign for you now and hopefully you'll have the issue resolved soon!
 
Here is my update. On the 60th day, the AUSA filed 30 days extension. At the same time, she told me I would have 2nd FP in Dec although my name check is still pending in FBI.

netmn
-----------------------------------
EB1-b, CSC
I-140 RD: Apr 2005. Approved in Aug 2005.
I-485 RD: May 23, 2005
NC: pending since June 1st, 2005
1st FP: Sep 20, 2005
WOM Lawsuit filed: September 26, 2006
Summon served: September 27, 2006
Case transferred to the local office San Jose: Oct 12, 2006
30 days extension filed by the AUSA: Oct 27, 2006
2nd FP: Dec 4, 2006
Name check is still pending................
 
s66v said:
Guys, I would appreciate your help here:

-- Are there any people here from Northern VA area (under USCIS fairfax office), who filed their 1447(b) and won in the court after case went to trial ?

-- I found out through a prominent lawyer, that in VA, a case was rejected by the judge who claimed that 120 days start only after name check has been cleared. This could be a precedent for all cases under 1447(b) waiting on name check, and would be denied if case goes to trial. Would you agree ?

-- Please suggest me some good lawyers in this area who have had success with 1447(b).

-- Is it better to go with a famous lawyer, or do it pro-se ? Since 1447(b) seems to help only in pre-trial phase, and going to trial may reject the case based on the judgement precedence in VA, so I thought that the backing of a famous lawyer may help by putting pressure on USCIS pre-trial to work on the case actively. Would you agree ?

thanks in advance !
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Since that decision was made, I know of three cases in Eastern VA that have been approved during the pre-trial phase. One applicant was naturalized within 3 weeks. Another applicant was naturalized just before the 60-day period ended. And mine was approved within 90 days, after going back and forth with the AUSA. My namecheck, according to the AUSA was completed sometime in March.

If they went by the Danilov decision, they wouldn't have requested a expedited namechecks for us. I think what they do is they put an expedite request in and if it hasn't been cleared by the time they have to respond, they start arguing Danilov.
 
case status

Finally, my WOM shows in PACER now. I did a query, a lot of cases in my state are still in the open state, they are filed like even back in May. Does that mean my state (Oregon) has problems approving cases? Or they are dismissed but the status is not updated? Mine is filed in Nov. 20th, so, my guess is that it will take forever. :-(
 
wenlock said:
I filed my summons and I am starting preparing for US attorney motion to dismiss.

Can some one refer me to few cases in response to motion to dismiss in reference to WOM not 1447b.

I am looking for specifically WOM related motions. I believe the argument is that time more then one or two years is unresonable.

Can some one cite any good cases please.
Thanks
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wenlock, I sent you a PM.
 
lenscrafterslen said:
do i have to wait till 6o days after filing the suit? thanks!
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No you don't have to wait till the 60 days are over, I called USA's Office after about 3 weeks filing my lawsuit. In some cases there is no AUSA assigned to your case if you call too early, but the sooner is better to establish a good working relationship with him/her.
 
bashar62, are you aware of some good lawyers for 1447b in Northern VA region ?

thanks in advance !


bashar82 said:
Since that decision was made, I know of three cases in Eastern VA that have been approved during the pre-trial phase. One applicant was naturalized within 3 weeks. Another applicant was naturalized just before the 60-day period ended. And mine was approved within 90 days, after going back and forth with the AUSA. My namecheck, according to the AUSA was completed sometime in March.

If they went by the Danilov decision, they wouldn't have requested a expedited namechecks for us. I think what they do is they put an expedite request in and if it hasn't been cleared by the time they have to respond, they start arguing Danilov.
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