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

[paz1960]

I haven't had the interview yet. Only chance I am having is filing writ of mandamus. Is there any successful outcome that you are aware of with filing writ of mandamus in Houston TX.

Thank you for taking the time to answer all of these questions. Your help greatly appreciated.

PS I am going to read the messages posted by milena.

Sorry, that I didn't read careful enough your previous post and I overlooked that you didn't have your interview yet. Obviously, the option of 1447(b) is out of question.

I don't have knowledge about WOM cases in Houston, but it is fairly easy to search for these cases using PACER.

In my opinion your case will not qualify yet for writ of mandamus. Here is a citation from an opinion in a mandamus case (Elkhatib_v_Bulter case# 04-22407-civ S.D. Florida, Jun 6, 2005):

"[M]andamus is an extraordinary remedy which should be utilized only in the clearest and most compelling of cases ." Carter v. Seamans, 411 F.2d 767, 773 (5th Cir . 1969). Mandamus relief is warranted if a petitioner demonstrates (1) a clear right to the relief sought ; (2) the respondents have a clear, non-discretionary duty to act ; and (3) no other remedy is available . Nyaga v. Ashcroft, 323 F .3d 906, 911 (11th Cir . 2003) (citing Heckler v. Ringer, 466 U .S . 602, 617 (1984))."

I attached two Practice Advisories written by the American Immigration Law Foundation about Mandamus actions. Here you will find a good description of this type of cases. The following citation is from the first document:

"Even if the government has a nondiscretionary duty to adjudicate an application, mandamus is appropriate only if the government fails to act within a reasonable amount of time." (emphasis added)

I think that here is where you will have problems to demonstrate that USCIS failed to act within a reasonable amount of time, considering that there are many cases several years old. However, because there is no prescribed timeline in the statute within USICS has to schedule your interview, you certainly can try to argue that the average processing time posted on the web page of your District Office is less than the time passed since your priority date, so your case was unreasonably delayed. But in my opinion, at this moment, your chances are not so good.

 

[springbranch]

"Reasonable amount of time"

Sorry, that I didn't read careful enough your previous post and I overlooked that you didn't have your interview yet. Obviously, the option of 1447(b) is out of question.

I don't have knowledge about WOM cases in Houston, but it is fairly easy to search for these cases using PACER.

In my opinion your case will not qualify yet for writ of mandamus. Here is a citation from an opinion in a mandamus case (Elkhatib_v_Bulter case# 04-22407-civ S.D. Florida, Jun 6, 2005):

"[M]andamus is an extraordinary remedy which should be utilized only in the clearest and most compelling of cases ." Carter v. Seamans, 411 F.2d 767, 773 (5th Cir . 1969). Mandamus relief is warranted if a petitioner demonstrates (1) a clear right to the relief sought ; (2) the respondents have a clear, non-discretionary duty to act ; and (3) no other remedy is available . Nyaga v. Ashcroft, 323 F .3d 906, 911 (11th Cir . 2003) (citing Heckler v. Ringer, 466 U .S . 602, 617 (1984))."

I attached two Practice Advisories written by the American Immigration Law Foundation about Mandamus actions. Here you will find a good description of this type of cases. The following citation is from the first document:

"Even if the government has a nondiscretionary duty to adjudicate an application, mandamus is appropriate only if the government fails to act within a reasonable amount of time." (emphasis added)

I think that here is where you will have problems to demonstrate that USCIS failed to act within a reasonable amount of time, considering that there are many cases several years old. However, because there is no prescribed timeline in the statute within USICS has to schedule your interview, you certainly can try to argue that the average processing time posted on the web page of your District Office is less than the time passed since your priority date, so your case was unreasonably delayed. But in my opinion, at this moment, your chances are not so good.

In your opinion, 1.5 year seems like reasonable amount of time or should one wait for 2 years before filing writ of mandamus?

Thanks for the informative posts. You are teaching us law terminology, we just need to take some time off our schdule and study this jargon in order to fight effectively against USCIS.

I have read the Milena's posts. Watching the judges' turn seems logical but moving (?) to another parts of the US will be the last resort!

 

[s66v]

district

Which district did you file your 1447b in ? Did you get a proven lawyer ?

Hi Guys,
I am an unfortunante person with a very common name. Furthermore my forst name and last name is the same. So needless to say I have been harassed since 9/11 from airports to mortgage refinancing. When I filed for my citizenship I got stuck in this name check ordeal. My wife Got hers.

I filed through a lawyer a 1447b. 60 days for the govt to reply was this week.
They actually responded. They are asking the judge to dismiss the case.
Their argument is the USCIS is the only agency with jurisdiction over this case. It is a long response, but I am giving what I got out of it.

Can anyone tell me, if this case is lost?
The scenario I expected and read on this board was they usually process your oath so you dont go to court. It seems in my case they actually took the time to fight it. My lawyer said he will respond to their response.
BUt I am concerned since his view was they would settle and not fight it.
Has there been a shift in their strategy??

Any thoughts on this will be appreciated.

 

[namestuck]

I filed in Detroit I think that is district 6. Does that make a difference?

 

[paz1960]

In your opinion, 1.5 year seems like reasonable amount of time or should one wait for 2 years before filing writ of mandamus?

Thanks for the informative posts. You are teaching us law terminology, we just need to take some time off our schdule and study this jargon in order to fight effectively against USCIS.

I have read the Milena's posts. Watching the judges' turn seems logical but moving (?) to another parts of the US will be the last resort!

I certainly would wait at least one year, but from many other WOM cases judges found unreasonable waiting for more than 2 years. Because there is no prescription in the statute, unfortunately, there is no single correct answer to your question.

This law terminology seems overhelming, but believe me, 3 months ago I didn't even know about this possiblility that an applicant can sue the government to try to force them to adjudicate the application. I never had any previous knowledge about any sort of judiciar matter, I am a physicist who deals with the laws of Nature, not the laws made by Congress. Sometimes I feel that it's a lot easier witht he laws of Nature...

Reading the posts on this forum from the beginning is very instructive (and time consuming) but if you consider seriously to file a lawsuit Pro Se against the government, you better do your homework.

 

[paz1960]

Hi Guys,
I am an unfortunante person with a very common name. Furthermore my forst name and last name is the same. So needless to say I have been harassed since 9/11 from airports to mortgage refinancing. When I filed for my citizenship I got stuck in this name check ordeal. My wife Got hers.

I filed through a lawyer a 1447b. 60 days for the govt to reply was this week.
They actually responded. They are asking the judge to dismiss the case.
Their argument is the USCIS is the only agency with jurisdiction over this case. It is a long response, but I am giving what I got out of it.

Can anyone tell me, if this case is lost?
The scenario I expected and read on this board was they usually process your oath so you dont go to court. It seems in my case they actually took the time to fight it. My lawyer said he will respond to their response.
BUt I am concerned since his view was they would settle and not fight it.
Has there been a shift in their strategy??

Any thoughts on this will be appreciated.

The fact that you have a very common last name is not necessary the cause of the name check delay. My wife, who has the same last name like me got her N-400 application approved right at the interview, mine is still pending, our last name is not common.

No, your case is far from being over, don't be descouraged. Answering the initial complaint and asking to dismiss the case lack of subject matter jurisdiction is rather standard in such cases. Of course, a large percentage of cases are adjudicated before the 60 days are up so AUSA never has to aswer the complaint or file a motion to dismiss.

Because your case is handled by an attorney, I don't want to enter in details what should be the next step. You should trust your attorney, hopefully s/he knows a lot more about such cases than anybody on this forum.

Actually nobody knows exactly what is the percentage of cases which are solved without further litigations; I read some estimations on this forum: 80% seems as a good guess. But there are 20% more which actually are litigated although very few actually reach the trial stage. The good news is that your lawsuit most probably triggered an expedite request for your name check and this is which holds up your case. Considering the time necessary for the response by your attorney and all the further steps, there is a good chance in my opinion that your name check will be completed and your case adjudicated before the whole lawsuit goes too far down on the road.

 

[sfdurrani]

You can get a copy of the green slip from your local USPS office as long as you have a receipt indicating that you paid for the proof of delivery. If you do not have the receipt, you can still show the web printout at your local USPS, pay something like $3.25 and get a copy of that green slip.

Best of luck!
snorlax

Hi Snorlax
Can you please elaborate further on this? It has been more than a week now and I have not yet received the green return slips. If I understand it correctly, I can go the local USPS and get a copy of the green slip. My question is would it have the receiver's signature at Washington DC? Also would it be acceptable to the court. I appreciate your input. I am concerned as I was thinking of going ahead and contacting my AUSA but I have not received the slips yet.
thanks
Shakeel

 

[wenlock]

Resonable time

In your opinion, 1.5 year seems like reasonable amount of time or should one wait for 2 years before filing writ of mandamus?

Thanks for the informative posts. You are teaching us law terminology, we just need to take some time off our schdule and study this jargon in order to fight effectively against USCIS.

I have read the Milena's posts. Watching the judges' turn seems logical but moving (?) to another parts of the US will be the last resort!

OK i contacted many lawyers about what is the resonable time before attempting WOM here is info I received from different lawyers.

Resonable time is some times more then two years
Resonable time can be three times the current processing time.
Resonable time is that is double the processing time of DO you live in and you have some thing in your personal life that kind of makes you eligible for expedited processing but USCIS does not consider it emergency but you think that you have enough argument to convince Judge that it is very critical.

"Resonable Time" is all dependent on how you put together complaint. How you gather all facts. How you present them to Judge and make your case important. REMEBER WRIT OF MANDAMUS is some thing that Judges DO NOT like to deal with until it is very clear that

Indivitual have clear right to relief asked
Duty owed to indivitual is non-descretionary
No administrative remedy available
Exchaust all available avenues to solve matter out of court
Delay is UNRESONABLE or Intentional DELAY ( Must present some sort of proof in case of intentional delay in immigration matter it is almost imposible to convince that delay is intentional )

These are all my facts findings. Lawyers in California said that any thing more then one year is unreasonable. I know some lawyers in east coast who say 1.5 year is border line for unreasonable others say 2 year. NO HARD AND FAST RULE for what is unresonable.

My personable advice is wait for one year send all letters and inquiries to congressman and District directors KEEP PROOF of every piece of mail.
GET CALL reference number when you inquire via USCIS Help line WRITE IT note DATE AND TIME get agent NUMBER or NAME.

GET FOIPA from FBI.
Send letters to white house
First lady
Senate Joint commitee for immigration
Write letters to local US attorney.
Make Infopass and keep records of Officer you talked to and info collected
Document whole process.
Draft complaint with all information and sent it to local DO director and US attorney give them 30 days to respond.
If no response from US attorney or USCIS DO Director add this information your complaint.

After one year file complaint. Now you have enough information to convince Judge that you tried every thing possible short of filling complaint. You will have more sympathey from Judge.

I hope this helps in making your decision for WOM.

 

[aka808]

The Fight Continues Part X..II

Had my first Pre-trial conference last week. I arrived a few minutes early and finally met the AUSA (we have had a few email and phone correspondances before). He re-affirmed that the name check was sent by in Sept and that if i agree he would ask the judge for a 2 - 3 week extension to resolve the issue (get an oath letter) and showed me the danilov case print-out, to which i said i know who followed and who did not (thanks to this forum and pacer) Neither did i agree nor disagree...i listened to him that how he has a problem calling USCIS and they respond slowly. (imagine what happens to us when we get a damn INFOPASS)...Nevertheless, we went to the hearing...

The Judge listened to the Governement first, she then asked me if i had any objections to the extension. My response: "As long as the honorable court sets a definitine timeline, i agree". The judge responded:" Setting Jan 19th as the time for the defendants to respond with the case status," she then added that since by Jan 19th it would be 120days since the name check has been received by the USCIS, the def's cannot use the Danilov defense, she stated that since this will be outside of all processing times, she will lean towards granting a Summary Judgement in favor of the plantiff, and DISMISS the motion for the defendants.

With that said, a little relieved, that since this case was filed, they have recieved the name check in sept and are still sitting on it. After the hearing the AUSA informed me that, he will try to get this done within the next 2 - 3 weeks, to whcih i responded that i have been hearing that since the time this whole thing began, it is about time it gets done. I also added that i have yet to see a defense where the 120 days have passed, after the name check has been recieved, since he stated that in court and in his answer..so no where to run for the defendants now.

He did state, that there were no issues since he last spoke to USCIS before thanksigiving and that they were going to resolve this...(smoking mirrors) but what can i do..but fight. The court is leaning towards granting a summary judgement, since the governemnet has no defense...lets see what happens.

Next update hopefully soon.....

_____________________________
Timeline:
N-400 Filing: 09/01/05
FP: 09/22/05
Int: 02/01/06 (name check pending)
1447b: 08/01/06
First PTC : 12/07/06
Oath: ?????? Who knows

 

[namestuck]

Thanks for you reply.

 

[milena]

As far as I know there is only one judge in Houston (S. D. Texas) who will not let even to begin such cases and immediately remands them to USCIS. I know several other cases, which were successful in that district court.

If you reside in that district, I'm afraid that you don't have an option. 1447(b) states clearly that you can file a complaint in the district court where you reside. There was a member of this forum with a different opinion (milena), she actually suggested an alternative, but because I don't agree with the suggestion, I'm not going to repost it here. You can do a search for her postings and decide yourself.

Paz stop misquoting the context of the alternative residency, get the facts straight. I gave the alternative address suggestion b/c the judge had already ruled against the plaintiffs w/out a hearing. They were at the end of their ropes and appealing their case may had been more difficult so they had nothing to lose but to refile elsewhere as a last resort. They needed to sponsor relatives from another country and needed their citizenship right away.

As to S. District Houston TX. you can win but be careful who will be your judge. You can find this out on Pacer early in the month which judges are
intaking cases. Avoid Judge Horton at all costs. A little research about the
judges and these case can be found on Pacer and ask anyone in this forum
if they have filed in S. Texas who their judge were.

Your filing fee will only be $35 and the county court clerk will serve all your
summons electronically to all the defendants and AUSA. No need to certified
returns of summon, it is faster and stream lined which this forum does not cover.
Good luck.

 

[hayyyoot]

Pacer Technical Question

Guys;
I know you all use Pacer often, for the last couple of days, I started seeing new symbols right above my Pacer login, these symbols change everytime I sign in, they look like res4, 1sm6, or something like that, they just started appearing two or three days ago, does anybody know what does that mean??

 

[springbranch]

WOW! Long and tedious!!

OK i contacted many lawyers about what is the resonable time before attempting WOM here is info I received from different lawyers.

Resonable time is some times more then two years
Resonable time can be three times the current processing time.
Resonable time is that is double the processing time of DO you live in and you have some thing in your personal life that kind of makes you eligible for expedited processing but USCIS does not consider it emergency but you think that you have enough argument to convince Judge that it is very critical.

"Resonable Time" is all dependent on how you put together complaint. How you gather all facts. How you present them to Judge and make your case important. REMEBER WRIT OF MANDAMUS is some thing that Judges DO NOT like to deal with until it is very clear that

Indivitual have clear right to relief asked
Duty owed to indivitual is non-descretionary
No administrative remedy available
Exchaust all available avenues to solve matter out of court
Delay is UNRESONABLE or Intentional DELAY ( Must present some sort of proof in case of intentional delay in immigration matter it is almost imposible to convince that delay is intentional )

These are all my facts findings. Lawyers in California said that any thing more then one year is unreasonable. I know some lawyers in east coast who say 1.5 year is border line for unreasonable others say 2 year. NO HARD AND FAST RULE for what is unresonable.

My personable advice is wait for one year send all letters and inquiries to congressman and District directors KEEP PROOF of every piece of mail.
GET CALL reference number when you inquire via USCIS Help line WRITE IT note DATE AND TIME get agent NUMBER or NAME.

GET FOIPA from FBI.
Send letters to white house
First lady
Senate Joint commitee for immigration
Write letters to local US attorney.
Make Infopass and keep records of Officer you talked to and info collected
Document whole process.
Draft complaint with all information and sent it to local DO director and US attorney give them 30 days to respond.
If no response from US attorney or USCIS DO Director add this information your complaint.

After one year file complaint. Now you have enough information to convince Judge that you tried every thing possible short of filling complaint. You will have more sympathey from Judge.

I hope this helps in making your decision for WOM.

You get up in the morning and find out you are stuck in the name check hell and all the plans you've had for future turns upside down. Seems like a long and tedious process. I do have a lawyer but the items that you mentioned must be done by me.

I am going to go ahead and start correspondence as soon as my case is 30 days older than posted processing dates. Right now posted processing date is 4/14/2006 in Houston DO which is my PD date.

Thanks for you all's post. I need them.

 

[Madison04]

Hi Snorlax
Can you please elaborate further on this? It has been more than a week now and I have not yet received the green return slips. If I understand it correctly, I can go the local USPS and get a copy of the green slip. My question is would it have the receiver's signature at Washington DC? Also would it be acceptable to the court. I appreciate your input. I am concerned as I was thinking of going ahead and contacting my AUSA but I have not received the slips yet.
thanks
Shakeel

Don't worry about the green return slips right now. It's too early. It takes about 2 weeks to receive them back from USCIS, Attorney General, etc. But FBI will probably never return the receipt. I served them two months ago and yet I still haven't received anything back. Many other members on this forum experienced the same thing with FBI. If you just want to talk to your AUSA, then it's definitely not necessary to wait for the return slips. However, I do feel that it's a bit too early (only 1 week) for you to contact them. The case might not even have been assigned to an AUSA yet.

 

[Madison04]

This is an excellent post. Very informative and should be a great guideline for people who're considering lawsuits.

OK i contacted many lawyers about what is the resonable time before attempting WOM here is info I received from different lawyers.

Resonable time is some times more then two years
Resonable time can be three times the current processing time.
Resonable time is that is double the processing time of DO you live in and you have some thing in your personal life that kind of makes you eligible for expedited processing but USCIS does not consider it emergency but you think that you have enough argument to convince Judge that it is very critical.

"Resonable Time" is all dependent on how you put together complaint. How you gather all facts. How you present them to Judge and make your case important. REMEBER WRIT OF MANDAMUS is some thing that Judges DO NOT like to deal with until it is very clear that

Indivitual have clear right to relief asked
Duty owed to indivitual is non-descretionary
No administrative remedy available
Exchaust all available avenues to solve matter out of court
Delay is UNRESONABLE or Intentional DELAY ( Must present some sort of proof in case of intentional delay in immigration matter it is almost imposible to convince that delay is intentional )

These are all my facts findings. Lawyers in California said that any thing more then one year is unreasonable. I know some lawyers in east coast who say 1.5 year is border line for unreasonable others say 2 year. NO HARD AND FAST RULE for what is unresonable.

My personable advice is wait for one year send all letters and inquiries to congressman and District directors KEEP PROOF of every piece of mail.
GET CALL reference number when you inquire via USCIS Help line WRITE IT note DATE AND TIME get agent NUMBER or NAME.

GET FOIPA from FBI.
Send letters to white house
First lady
Senate Joint commitee for immigration
Write letters to local US attorney.
Make Infopass and keep records of Officer you talked to and info collected
Document whole process.
Draft complaint with all information and sent it to local DO director and US attorney give them 30 days to respond.
If no response from US attorney or USCIS DO Director add this information your complaint.

After one year file complaint. Now you have enough information to convince Judge that you tried every thing possible short of filling complaint. You will have more sympathey from Judge.

I hope this helps in making your decision for WOM.

 

[tomshen99a]

Questions about Certificate of Services -- green slip

All,

As read from this forum, it does not seem necessary to have green return slips when you file Cert of Servcies.

I have sent all summons via registered mails. And I got all track records from web that indicates all defendants received summons. IS THIS ENOUGH TO FILE cert of services. IS green return slip necessary. I know FBI probably never return green slip.

Any thoughts ?

 

[paz1960]

All,

As read from this forum, it does not seem necessary to have green return slips when you file Cert of Servcies.

I have sent all summons via registered mails. And I got all track records from web that indicates all defendants received summons. IS THIS ENOUGH TO FILE cert of services. IS green return slip necessary. I know FBI probably never return green slip.

Any thoughts ?

This really depends on the local rules of your district. Many of the districts accept the web printouts with the original receipts you received when you mailed the complaints+summonses. Some members of this forum reported that their court requires the signed return receipts as proof of delivery.

The FBI still didn't return to me the green card (return receipt). I mailed them on Oct. 24.

Here is what I would try to do: write a Cerificate of Service similar to one I posted as a model couple of days ago and attach to this the USPS tracking web printouts with the copies of the USPS certified mail receipts (the green slips you received from the post office when you mailed the letters to the defendants). Send these with certified mail to the clerk of the district court. This may be or may be not enough. If they accept it, in couple of days it will apear on PACER. If they don't (so they are requesting the return receipts) you can go to the local post office to get copies of the return receipts and try again. If this still doesn't work, you should find a different way to deliver your complaint and summons to the FBI (if you want to maintain them on the list of your defendants).

 

[tomshen99a]

Thanks so much again ! Paz1960

Thanks so much again to Paz1960 !

After filing cert of services, will court send me the court hearing date and other info ? Or I have to call them to find out. Bascially what should I expect from court after filing civil case ?

Thanks

This really depends on the local rules of your district. Many of the districts accept the web printouts with the original receipts you received when you mailed the complaints+summonses. Some members of this forum reported that their court requires the signed return receipts as proof of delivery.

The FBI still didn't return to me the green card (return receipt). I mailed them on Oct. 24.

Here is what I would try to do: write a Cerificate of Service similar to one I posted as a model couple of days ago and attach to this the USPS tracking web printouts with the copies of the USPS certified mail receipts (the green slips you received from the post office when you mailed the letters to the defendants). Send these with certified mail to the clerk of the district court. This may be or may be not enough. If they accept it, in couple of days it will apear on PACER. If they don't (so they are requesting the return receipts) you can go to the local post office to get copies of the return receipts and try again. If this still doesn't work, you should find a different way to deliver your complaint and summons to the FBI (if you want to maintain them on the list of your defendants).

 

[paz1960]

Thanks so much again to Paz1960 !

After filing cert of services, will court send me the court hearing date and other info ? Or I have to call them to find out. Bascially what should I expect from court after filing civil case ?

Thanks

Again, this depends on the local rules. In many cases nothing happens till the 60 days are up (the deadline for defendants to answer the complaint, assuming that your case is not solved before that deadline). If the court sets a date for pre-trial conference (it happens in some courts), they will send you by mail that order and most likely you will need to mail to the defendants a copy of that order. Because all the defendants are represented by the same counsel (AUSA), I believe that you would need to mail a single copy to AUSA and not to all the defendants, but I'm not sure on this. It is probably a good idea to monitor your case on PACER and you will see if any new document was entered in the system either by the court or by AUSA.

Bottom line: after you served your defendants + the US Attorney's Office + the US Attorney General (not necessary to send him a separate copy+summons if you included him in the list of defendants and already mailed him a round of papers like to the other defendants), you will need to file a Certificate of Service with the court after you have proof of delivery. I mailed a copy of the Certificate of Service also to the US Attorney's Office, although this may not be necessary. But I used the rule of thumb that I send a copy of everything I file with the district court to the US Attorney's Office.

The next move will come either from the court or from AUSA. However, don't just sit back and wait; study and prepare your Opposition to the Motion to dismiss or remand, which can come from AUSA if your case is not solved before the 60 days are up.

 

[tomshen99a]

Thanks, I will check pacer regularly after filing cert of services

Thanks..I will check pacer regularly after filing cert of services

Hopefully my AUSA won't be an As*hole.

Again, this depends on the local rules. In many cases nothing happens till the 60 days are up (the deadline for defendants to answer the complaint, assuming that your case is not solved before that deadline). If the court sets a date for pre-trial conference (it happens in some courts), they will send you by mail that order and most likely you will need to mail to the defendants a copy of that order. Because all the defendants are represented by the same counsel (AUSA), I believe that you would need to mail a single copy to AUSA and not to all the defendants, but I'm not sure on this. It is probably a good idea to monitor your case on PACER and you will see if any new document was entered in the system either by the court or by AUSA.

Bottom line: after you served your defendants + the US Attorney's Office + the US Attorney General (not necessary to send him a separate copy+summons if you included him in the list of defendants and already mailed him a round of papers like to the other defendants), you will need to file a Certificate of Service with the court after you have proof of delivery. I mailed a copy of the Certificate of Service also to the US Attorney's Office, although this may not be necessary. But I used the rule of thumb that I send a copy of everything I file with the district court to the US Attorney's Office.