olegb said:
Hello forum users,
I would like to share some of my experience with my law suit under 1447b. I have filed my case back at the end of October, so defendants answer was due. Today I have received an answer to my complaint which stated that: "defendants admit the allegations in Paragraph Two; however, defendants deny that plaintiff passed the examination for naturalization." Therefore, "The court should dismiss the complaint under Fed. R. Civ. P. 12(b)(6) because plaintiff fail to state a claim upon relief may be granted."
This is not a request for an extention in my understanding, right?
I am really discouraged at this point, dissapointed, and totaly frastrated and don't even know what to do.
Does this mean that there is something wrong with my name check and why they just didn't ask for an extention?
Any advice, help, and ideas on what to do next would be highly appreciated.
Thank you all.
Hello olegb,
As several members already stated, the answer filed by the Defendants is quite usual. They challenge the definition of the term "examination" and they try to interpret it in a broader sense, like the Government did successfully in Danilov v. Aguirre, i.e., examination is not only your interview, but contains also the background check. Because the background check is not done yet, the examination is not complete, so the 120 day clock didn't even start, so you are not entitled to file a lawsuit. However, even following this reasoning, I am surprised why are they referring to FRCP 12(b)6, i.e., plaintiff fail to state a claim upon relief may be granted. More adequate would be to challenge the subject matter jurisdiction, which would be FRCP 12(b)1.
Anyway, most of the courts didn't buy this Danilov argument, i.e., they interpret the examination=interview and without including the background check, so they assume jurisdiction in such cases. The problem is what comes after this. 1447(b) provides two actions for the court to chose from: 1. to determine the matter, or 2. to remand the matter to the Service, with appropriate instructions. Because courts are not equipped to perform background checks, and in a November 26, 1997 Appropriations Act for the Department of Justice and other federal departments and agencies, Congress mandated that:
“During fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the Immigration and Naturalization Service has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed.” Pub.L. No. 105-119, Title I, 111 Stat. 2440, 2448-49 (1997).
No judge in this country will approve a naturalization application without this background check completed. These cases will be invariantly remanded to USCIS. Plaintiff will need to make all the efforts to convince the judge to include in the remand order "appropriate instructions", i.e., a strict timetable to complete the background check and after that to adjudicate the application.
Returning to your particular case: defendants had to file something by the 60 day deadline. This could be a motion or the answer to your complaint. There is a big difference between an answer or a motion to dismiss (which is the other typical document AUSA files in many such cases).
Here is what says about this the Northern California District Pro Se handbook (I posted this already couple of times):
Once the answer is filed, does the plaintiff have to file a response to it?
There is no such thing under the Federal Rules of Civil Procedure as a “Response to an Answer.” Even if you strongly disagree with the statements in the answer, there is no need to file a response. Under Rule 8(d) of the Federal Rules of Civil Procedure, all statements in an
answer are automatically denied by the other parties to the lawsuit.
Actually I saw a case in the Western District of Washington (Aslam v. Gonzales) where Plaintiff filed a Memorandum in Response to Defendants Answer. The judge ordered:
"
The Court is in receipt of Plaintiff’s Memorandum in Response to Defendants’ Answer (Dkt. No. 8). Plaintiff is advised that Defendants have not filed a motion against him and no motion is currently pending in this case. For this reason, the Plaintiff’s memorandum is STRICKEN from the record. Plaintiff is further advised that any motion filed and any Response filed to a motion must be in conformance with the provisions of Local Rule 7."
Later, Defendants filed a Motion to Dismiss and Plaintiff was able to recycle his Memorandum and re-use in Opposing this Motion. Last time I checked, this case was still not closed, so for privacy reasons, I didn't want to post any documents related to this case. But study this case, I believe that Plaintiff covered well all the relevant issues and you can use his Opposition as a model to write one if you will need to.
