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

Translation from Chinese by a Chinese and for ... all

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To be fair to all petitioners, CIS changed their policy as of 12/21. For N400 and I485 petitioners with cases delayed by FBI background checks, CIS won't request FBI to expedite the background check when the petitioners file cases against the CIS. Only under one of the following conditions the CIS will do so:

1. The petitioner is joining the military.
2. Age-out petitioners: the petitioner will reach 21, and not protected by child-protection laws.
3. If the petitioner doesn't get Greencard in time, he'll lose the green card (sounds silly?)
4. The petitioner will lose Social Security benefits or other welfare if greencard is delayed
5. Other special reasons, such as petition require medical treatments

CIS also stated that, even if a petitioner falls under one of the above cases, CIS neither requires nor suggests the petitioner file an Mandamus action against them. (what a surprise!)

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*** thank you for reading this article. Please provide a reference to this site if you need to post this elsewhere. For related news please visit http://www.lianglaw.com/

icare
 
Thanks for the clarification icare. its indeed a sad news. what I don't understand however is that if you still go ahead and file a lawsuit against them, its the court who decides what to do (i.e expedite or not) and not the USCIS and others...unless and until it has become a law which prohibits a person to file a lawsuit against the US agencies...which I highly doubt would be the case....comments/thoughts ??
 
about the new policy. take it easy!

about the new policy. take it easy!

http://www.jclawoffice.com/en/data/news_view.asp?newsid=435

"... While this interim rule will eventually come into effect, it is by no means imminent. The actual language of this rule has not even been published yet. In fact, this particular RIN has appeared in the Unified Agenda since March 2003, with no concrete movement towards final publication in the past three years. From our conversations with the USCIS attorney's office in Washington D.C., it appears that this particular rule is still being debated with no solid date of publication yet. "
 
icare said:
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To be fair to all petitioners, CIS changed their policy as of 12/21. For N400 and I485 petitioners with cases delayed by FBI background checks, CIS won't request FBI to expedite the background check when the petitioners file cases against the CIS. Only under one of the following conditions the CIS will do so:

1. The petitioner is joining the military.
2. Age-out petitioners: the petitioner will reach 21, and not protected by child-protection laws.
3. If the petitioner doesn't get Greencard in time, he'll lose the green card (sounds silly?)
4. The petitioner will lose Social Security benefits or other welfare if greencard is delayed
5. Other special reasons, such as petition require medical treatments

CIS also stated that, even if a petitioner falls under one of the above cases, CIS neither requires nor suggests the petitioner file an Mandamus action against them. (what a surprise!)

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*** thank you for reading this article. Please provide a reference to this site if you need to post this elsewhere. For related news please visit http://www.lianglaw.com/

icare
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Can anybody having access to AILA find anything like this on the AILA site ? It should be under new expedite criteria etc. Could not find anything yet in that site
 
boondi said:
seems to me like some sort of misinformation or rumor. Cause the wording from this website stating this 2005 policy seems awfully identical...

http://www.cohenlaw.com/news-bulletins-14.html
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No the wording is very different. The article from lianglaw.com, if correct, takes out 'WOM' as a condition under which CIS requests expedite service of FBI name check... That's what's important for people on this thread!

I filed in October and last call with AUSA was on 12/22 but she didn't say anything about this...

icare
 
icare said:
No the wording is very different. The article from lianglaw.com, if correct, takes out 'WOM' as a condition under which CIS requests expedite service of FBI name check... That's what's important for people on this thread!

I filed in October and last call with AUSA was on 12/22 but she didn't say anything about this...

icare
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I believe you are right. The WOM is taken out of their internal policy on the conditions for expedite name checks.

But it doesn't have the effect of killing a mandamus cause of action, which originated from LAW, which beats any administrative policy.

However, this policy does have deterrant effect I believe. On the face, without an automatic speed up, the plaintiff must pursue their cases to a fuller stage, namely to go on trial to have a writ issued in his/her behalf. This will prolong the process, impose financial restraint on the plaintiffs and deter plaintiffs from proceeding Pro Se. Especially in a hostile district where negative precedents had been set up, it would be extremely hard for the plaintiffs. But in a liberal district, where judges are inclined to protect the plaintiffs, it would be still effective to file a WOM. And in those districts, I guess, CIS would still expedite the name check without a final court order, because they would fear that positive precedents (regarding the plaintiffs) would be likely to set up in those districts.
 
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What is the reasonable expedite criteria for name check

I agree with your comments, it is a dilima situation for USCIS. If they keep expedite every name check after WOM filed, there is already a backlog for expedite name check waiting list, they can't handle it anymore, but if they said no more any expedite name check. Some of very strong case will win or nice judges will roll out some order which against them. Some of positive precedents will make them lose throusands of similar pending cases. It will also increase ton of works for AUSA, it will make those easy life AUSA very mad. I guess the new policy will set some filter to expedite name check. USCIS general consel office will make the call to some cases they will lose obviously. Some of weak case may waiting longer or force you to drop off. Definitely, it will scare some people didn't file WOM yet. I dont know you guys agree? I defimitely assume this is from some smart people of USCIS.
 
AUSA Filed an Answer Today

Do you guys know where I can get a copy of their answer? Is Pacer real time? I checked Pacer, it is not here yet. Pls help.
 
aaron13 said:
Do you guys know where I can get a copy of their answer? Is Pacer real time? I checked Pacer, it is not here yet. Pls help.
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I believe that PACER is not real time. A clerk is scanning in paper filed documents at each district, the electronically filed ones maybe appear sooner, but I noticed couple of days delay between the filing of the document and posting it on PACER (in my case). Theoretically, AUSA would have to send you a copy of anything (s)he files with the court. My AUSA didn't send me a copy of the motion to extend 30 days, but he asked my agreement before filing. I just got in the mail today the Order granting the 30 days extension.

I also talked on the phone to AUSA, he told me that he found out the name of the FBI agent who handles my case and he convened this information to his contact at USCIS, apparently expecting the USCIS lawyer to talk to this FBI agent. I'm somewhat disappointed, i was hoping that AUSA will talk to the FBI agent. AUSA promised that he will get back to me when he hears back from USCIS (I'm not very optimistic that this will happen). But he didn't tell me anything about a new policy with the expedite request (but I admit: I didn't ask him specifically).
 
My updated lawsuit info.

Thank you Paz for the quick reply.

Dont be disappointed, you are a lot of luckier than me. I filed WoM for I485 via a lawyer 90 days ago, the AUSA spent less than 5 mins with my lawyer and didnt go out any info. The AUSA filed an 30-day extension last month and we agreed to it, as the extension saying " we anticipate the matter will become moot before defendauts is required to appear in the court ". My lawyer said this is a very good sign, indicating the government wanted to settle. Today (the due day) we find out the AUSA filed an answer and the lawyer can even get a copy of the answer. Most likely the government wants to fight.

Any more thoughts?

Also, what is the fastest way to get a copy of answer? Thanks
 
myang1969 said:
PAZ1960

Thank you so much for your encouragment, it is so nice place for us to hold hands each other and face our so big so powerful goverment!!! I really appreciate your opinion, and I also like to ask you several question if you dont mind. My case is I-485 AOS, name check has been pending for three years due to USCIS mixed up A#. As I filed WOM in Dec. 2006, I started my first conversation with my AUSA.
(1)She said to me that she called USCIS and USCIS said that they did everthig they can, if name check was done, they can ......
(2) She said she agree it is USCIS error to cause this extra delay and she agree the point we made in the statement.
(3) She said USCIS dont want expedite the name check due to the new policy. she said some other thing she couldn't tell me but ask me to wait for USCIS's response.
My question are: (1) If she feel some wrongdoing of USCIS, is she going to put more pressure on USCIS and FBI?
(2) She is more lean on goverment side, if she feel we make a very strong case, do you think it will make more sense to Judge?
(3) Compare to force USCIS to expedite name check, or doing nothing, but write Motion to dismiss or remand case, and deal with Judge is also big burden, more likely, which one is easy out for them?
(4) Ultimately, AUSA will reprsent USCIS, FBI in court. but they are diffrent agent, if they dont agree each other, how they can solve issues between. Thanks a lot.
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I could not check this thread for several days. Today when I read your post, I just find that we are exactly in the same boat. My 485 is pending for 3 years. USCIS always claimed as name check pending. I filed WOM on 11/8/2006. On Dec. 18th, AUSA filed a motion to dismiss to my WOM. On Dec 21st, USCIS noticed me that they assigned a wrong A # to me three years ago (basically the A# assigned to me have been used by another person. I went to INFOpass. The officer basically told me that USCIS will send a new namecheck to FBI with new A#. I filed an opposition to motion to dismiss last week and so far no response yet. I am not very optimistic to my WOM now.

May I ask you a question? After USCIS found their error in your case, what did they do? Start a new name check from the beginning? How about your name check with the wrong A #?
 
aaron13 said:
Thank you Paz for the quick reply.

Dont be disappointed, you are a lot of luckier than me. I filed WoM for I485 via a lawyer 90 days ago, the AUSA spent less than 5 mins with my lawyer and didnt go out any info. The AUSA filed an 30-day extension last month and we agreed to it, as the extension saying " we anticipate the matter will become moot before defendauts is required to appear in the court ". My lawyer said this is a very good sign, indicating the government wanted to settle. Today (the due day) we find out the AUSA filed an answer and the lawyer can even get a copy of the answer. Most likely the government wants to fight.

Any more thoughts?

Also, what is the fastest way to get a copy of answer? Thanks
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I think it is not too bad if AUSA filed an answer. It will buy him more time without having to ask the judge to grant it again. It is not a sure sign that AUSA will fight, not as much as were a motion to dismiss filed.

In an answer, the AUSA will say they admit this, deny that, and/or having no knowledge of something else. Most likely, they will admit the facts you alleged, and deny the applications of law you argued.

I believe there are reasons for you to remain optmistic at this stage, especially when the AUSA had said they had reasons to believe your case might be moot, which was a sure sign they wanted to settle.

Good Luck!
 
A lot of to tell

Comfused,

After I found out the wrong A# was assigned, it already had been pending for one and half years; I fought very hard at that time, but USCIS only submitted a new name check inquire to FBI in August 2005, they refused to expedite. If you check current expedite criteria, (5) is USCIS error. I argued with USCIS with this (5) through Senator's office, but they deny its their fault. Finally, I filed WOM in Dec 18, 2006. I have all these evidences, I believe I have a strong case, but not sure what kind of judge I got.
 
Thank you LuckyPiggy

LuckyPiggy said:
I think it is not too bad if AUSA filed an answer. It will buy him more time without having to ask the judge to grant it again. It is not a sure sign that AUSA will fight, not as much as were a motion to dismiss filed.

In an answer, the AUSA will say they admit this, deny that, and/or having no knowledge of something else. Most likely, they will admit the facts you alleged, and deny the applications of law you argued.

I believe there are reasons for you to remain optmistic at this stage, especially when the AUSA had said they had reasons to believe your case might be moot, which was a sure sign they wanted to settle.

Good Luck!
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I am so down today after learning that the AUSA filed an answer to my case. I am feeling a bit encouraged by your note, thank you.

My lawyer can not even get a copy of the answer today, do you have any suggestion as to the fastest way to get a copy of it?

Also, is "motion to dismiss" categorized as an answer?

Thank you again.
 
aaron13 said:
Thank you Paz for the quick reply.

Dont be disappointed, you are a lot of luckier than me. I filed WoM for I485 via a lawyer 90 days ago, the AUSA spent less than 5 mins with my lawyer and didnt go out any info. The AUSA filed an 30-day extension last month and we agreed to it, as the extension saying " we anticipate the matter will become moot before defendauts is required to appear in the court ". My lawyer said this is a very good sign, indicating the government wanted to settle. Today (the due day) we find out the AUSA filed an answer and the lawyer can even get a copy of the answer. Most likely the government wants to fight.

Any more thoughts?

Also, what is the fastest way to get a copy of answer? Thanks
Click to expand...
I believe that in two-three days max. AUSA's answer will be posted on PACER. Most likely that the copy of the answer is sent to your lawyer, so (s)he should be able to rpovide you a copy as soon as (s)he receives it. But my guess is that PACER will be faster.

Because the deadline came, defendants had to file something. With the answer, they probably will have more time to solve the case than filing a motion to dismiss. Although I don't really know how the timeline would be in either case. If defendants file an answer, I believe that the next move will come from the judge, who will order an initial status conference or something like this.

If defendants would file a motion to dismiss, Plaintiff has a possibility to oppose it, after that the moving party has one more chance to reply to the Opposition and after that the judge will rule on the motion.
 
aaron13 said:
I am so down today after learning that the AUSA filed an answer to my case. I am feeling a bit encouraged by your note, thank you.

My lawyer can not even get a copy of the answer today, do you have any suggestion as to the fastest way to get a copy of it?

Also, is "motion to dismiss" categorized as an answer?

Thank you again.
Click to expand...
Under Rule 12 of the Federal Rules of Civil Procedure, once Defendants have been served with a complaint, they must, within the required amount of time, either file an answer to the complaint, or file a motion challenging some aspect of the complaint. If Defendants choose to file a motion, they still must file an answer, but they do not have to file the answer until after the court rules on their motion.

Somehow I thought that it is better to have a motion filed by Defendants, because the Plaintiff can file an Opposition to the Motion to dismiss and can present all the case law, which was not included in the complaint. If Defendants file an answer, there is no such thing that "response to an answer", so I don't know how can the Plaintiff present all the case law and other arguments, which would go in the Opposition to the Motion to Dismiss or Remand.

Does anybody have an idea about the advantages/disadvantages of Defendants' answer vs. Defendants' Motion to Dismiss or Remand?
 
Motion to Dismiss versus Answer

paz1960 said:
Under Rule 12 of the Federal Rules of Civil Procedure, once Defendants have been served with a complaint, they must, within the required amount of time, either file an answer to the complaint, or file a motion challenging some aspect of the complaint. If Defendants choose to file a motion, they still must file an answer, but they do not have to file the answer until after the court rules on their motion.

Somehow I thought that it is better to have a motion filed by Defendants, because the Plaintiff can file an Opposition to the Motion to dismiss and can present all the case law, which was not included in the complaint. If Defendants file an answer, there is no such thing that "response to an answer", so I don't know how can the Plaintiff present all the case law and other arguments, which would go in the Opposition to the Motion to Dismiss or Remand.

Does anybody have an idea about the advantages/disadvantages of Defendants' answer vs. Defendants' Motion to Dismiss or Remand?
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This is interesting. Paz and LuckyPiggy have a different view on what is better for plaintiff when AUSA files a Motion to Dismiss or an Answer. Anyone with experience on this subject please advice.

Thank you again Paz and good luck to your case.
 
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