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

[LuckyPiggy]

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.

A motion to dismiss force the court to make a decision immediately. The defendant is asking the judge to kick the plaintiff out of the court. It is very adverse and offensive weapon of the defendnat to be used against the plaintiff. A judge must rule after the opposition was filed whether he will kick the plaintiff out of the court at pleading stage. Plaintiff bears the risk to be sent home with nothing, while the defendant has nothing to lose.

But an answer doesn't require a ruling at all. After the answer, the parties go on conference, discovery if any. After that they set up a a trial date. Only until after the trial date, a decision will be made. In the meanwhile, the game goes on. It will take much longer time and parties have more time to negotiate.

In addition, I admire the efforts and dedication Paz is contributing here. I only beg to differ. Thanks

 

[paz1960]

A motion to dismiss force the court to make a decision immediately. The defendant is asking the judge to kick the plaintiff out of the court. It is very adverse and offensive weapon of the defendnat to be used against the plaintiff. A judge must rule after the opposition was filed whether he will kick the plaintiff out of the court at pleading stage. Plaintiff bears the risk to be sent home with nothing, while the defendant has nothing to lose.

But an answer doesn't require a ruling at all. After the answer, the parties go on conference, discovery if any. After that they set up a a trial date. Only until after the trial date, a decision will be made. In the meanwhile, the game goes on. It will take much longer time and parties have more time to negotiate.

BTW, the equivalent weapon of a plaintiff to be used against the defendant is motion for summary judgment. So it is all fair.

In addition, I admire the efforts and dedication Paz is contributing here. I only beg to differ. Thanks

Thanks for the appreciative words and for the explanation of the difference between the two scenarios (i.e., Defendants file an answer or a Motion to Dismiss or Remand).

I would like to ask some further questions related to this issue.

Let's suppose, that defendants filed an answer, denying that more than 120 days passed since the examination, because they consider that the background check is part of the examination. Further, they argue that the case should be either dismissed (lack of subject matter jurisdiction) or simply remanded without any timetable.

My question: when can I present and under which form all the case law, statutory context, Congress intent, etc., which would show that the court has subject matter jurisdiction because the examination=interview, so more than 120 days passed, 1447(b) kicks in?

And when and how can I persuade the judge to instruct FBI/USCIS to complete the background check in XX days and to adjudicate the application in YY days after the background check is complete?

Do you have any estimate, knowledge, how long can take a full length process (i.e., reaching trial) till a judge actually makes a decision (again, only answer filed by defendants, no motions to dismiss or motion for summary judgement)?

 

[LuckyPiggy]

Thanks for the appreciative words and for the explanation of the difference between the two scenarios (i.e., Defendants file an answer or a Motion to Dismiss or Remand).

I would like to ask some further questions related to this issue.

Let's suppose, that defendants filed an answer, denying that more than 120 days passed since the examination, because they consider that the background check is part of the examination. Further, they argue that the case should be either dismissed (lack of subject matter jurisdiction) or simply remanded without any timetable.

My question: when can I present and under which form all the case law, statutory context, Congress intent, etc., which would show that the court has subject matter jurisdiction because the examination=interview, so more than 120 days passed, 1447(b) kicks in?

And when and how can I persuade the judge to instruct FBI/USCIS to complete the background check in XX days and to adjudicate the application in YY days after the background check is complete?

Do you have any estimate, knowledge, how long can take a full length process (i.e., reaching trial) till a judge actually makes a decision (again, only answer filed by defendants, no motions to dismiss or motion for summary judgement)?

When you have your "day in the court", namely on trial, you will be asked to present your side of story. you might have pretrail hearings, the judge might ask you to present a memo of law. How soon you can be heard depends on many factors, you need to consult the judge's cleark for those questions.
Anyway, if the AUSA says he wants to settle and later files an answer, you can't tell from that fact alone that he breaks his promise. But if he files a motion to dismiss, you can stop expecting a bipartisan result will come along, i.e. your AUSA will fight you.

 

[stucknamecheck]

Can we file memorandum to oppose AUSA's answr?

Can we file something like memorandum in oppsition to defendant's answer?

When you have your "day in the court", namely on trial, you will be asked to present your side of story. you might have pretrail hearings, the judge might ask you to present a memo of law. How soon you can be heard depends on many factors, you need to consult the judge's cleark for those questions.
Anyway, if the AUSA says he wants to settle and later files an answer, you can't tell from that fact alone that he breaks his promise. But if he files a motion to dismiss, you can stop expecting a bipartisan result will come along, i.e. your AUSA will fight you.

 

[paz1960]

When you have your "day in the court", namely on trial, you will be asked to present your side of story. you might have pretrail hearings, the judge might ask you to present a memo of law. How soon you can be heard depends on many factors, you need to consult the judge's cleark for those questions.
Anyway, if the AUSA says he wants to settle and later files an answer, you can't tell from that fact alone that he breaks his promise. But if he files a motion to dismiss, you can stop expecting a bipartisan result will come along, i.e. your AUSA will fight you.

All what you said agrees what I imagined or read in Pro Se handbooks, FRCP and local rules. Unfortunately, very little info is available on this forum about cases, which actually reached this stage. Most of the cases either end with a settlement (case adjudicated after background check complete due to the lawsuit) or the case is remanded to USCIS with or without any timetable (and of course, the infamous dismissed case: in Danilov v. Aguirre, an another case in N. Ohio district and a couple of cases with the same judge in Houston).

In your opinion, can I ask the judge in the discovery phase to instruct Defendants to produce, besides the Alien file, the completed full criminal background check results with the USCIS interpretation and raise any concern during the hearing (trial) if they have any why my application would be denied?

 

[paz1960]

Can we file something like memorandum in oppsition to defendant's answer?

Unfortunately, not. I posted at least three times in the past 2 months what is the regulation about this.

"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."
(from the N.Cal. District Pro Se handbook)

 

[pearlgal]

answer due this Friday, need advice

hi, all:

i finally get hold of my AUSA this morning, and it seems that he did not do anything about my case, i called and asked about status of my case, he told me that he need to check then call me back, 4 mins later, he returned my call said that my case is still pending background check, i then asked him whether there's expedite request was sent to FBI, he said he need to check about it, then he told me to call him again on this Friday cause it's the due day that he need to file a response to my case.

my question is:

what kind of senario it gonna to be on Friday when i call him? what should i response to different choice if he offers? what is best case for me? what is the worst?

he seems polite, but not very helpful. i filed in North california district which from this forum should be a very friendly district for the plaintiff...

thanks a lot for your kind advice in advance, i feel so down now...

pearl

 

[paz1960]

hi, all:

i finally get hold of my AUSA this morning, and it seems that he did not do anything about my case, i called and asked about status of my case, he told me that he need to check then call me back, 4 mins later, he returned my call said that my case is still pending background check, i then asked him whether there's expedite request was sent to FBI, he said he need to check about it, then he told me to call him again on this Friday cause it's the due day that he need to file a response to my case.

my question is:

what kind of senario it gonna to be on Friday when i call him? what should i response to different choice if he offers? what is best case for me? what is the worst?

he seems polite, but not very helpful. i filed in North california district which from this forum should be a very friendly district for the plaintiff...

thanks a lot for your kind advice in advance, i feel so down now...

pearl

Because the name check is still pending, USCIS can't adjudicate your application. Because the deadline to answer your complaint is the coming Friday, AUSA will need to file something. Usually, this can be one of the following three things:
1. An answer to your complaint
2. A motion to extend (usually by 30 days)
3. A motion to dismiss

If AUSA has info that they are working on your case and there is a good chance that the case can be solved soon, (s)he would go for an extension.

Usually, the judge grants the first (and in many cases, even the second extension) even if Plaintiff opposes it, so the best you can do is to agree with the extension if AUSA asks for your agreement (probably this will happen Friday).

If AUSA files a motion to dismiss, you will need to come up with a strong Opposition to the Defendants Motion to dismiss. You will need to file that in certain number of days after AUSA filed the Motion to dismiss. The exact number of days and format is regulated by the local rules, i.e., can be different in each district. In mine is 28 days.

If AUSA files an answer, you don't have to file a reply to that. In this case the judge will schedule an initial case management conference, or something like this. However, you still need to prepare your case, because it is more likely that you can end up in an oral hearing, trial, and you will need to be able to defend your case, i.e., to oppose the jurisdiction challenge, etc.

N. Cal. district court is known that it is one of the most liberal districts, so your chances are good if you reach a judge. But the US Attorney's Office is a separate entity, is not part of the district court, they are representing the government and by such, they are acting more in line with the general, nationally valid policy. Usually the AUSA does whatever the DHS (or USCIS) General Counsel instructs him/her. And this is not necessary friendly...

 

[tomshen99a]

Oath Today

Finally I went to Oath today. Everything went well. It totally took about 2 hours. And I registered to vote after oath ceremony.

I want to thank this forum again for information and support while I filed the law suit. Big thanks to paz1960. Without this forum, I was not able to complete law suit by myself.

Good Luck to everyone here. Keep up your spirit, you are not far from getting your US citizenship.

Tom

 

[DUDE12190]

please read it!!

Hi hayyyoot,
Attached is the case in which judge remand the case to CIS without any specific instruction and plaintiff’s attorney filed a motion to reconsider. As I said before in Michigan, almost all of the cases have been remanded without any specific instruction. So, you do not have to worry about much, you do your part well. Again the purpose of theses law suite is to force the CIS to complete background check, if the background check is complete, it means case is very near to be adjuration.

hi Dear!
Are you in Virginia? I am asking this because there was a very good thread from 2005 and they were discussing that in virginia, it is better to file WOM than 1447b because almost all the cases of wom were cleared. I am going to find that thread and send it to you. Thank you!!! And by the way, I am pllaning to file 1447b in new york city area, if you or anyone have any helpful information, please share. I applied in 2004 and was interviwed and passed everthing in May 2005. Still waiting for the stupid security clearnce!
Thanks again!! Bye

 

[DUDE12190]

I'm planning to file a "PETITION FOR HEARING ON NATURALIZATION APPLICATION". My citizenship application has been pending on name check since interview in June 2006. I have been living in San Jose area but recently moved to Oakland area. Should I file at Oakland or San Jose court in the northern district of California?

hi, have u fileed out the form AR-11 and mail it to KY address which is on that form. If u have not done that, do it immediately. also called the 800 number and change the address there. they will send u a letter. best of luck!!!!!!

 

[olegb]

Hi pearlgal,

I think I am in the same Nor Cal District as you are. I was trying to contact US Attorney for some time now, but with no luck and no return of phone calls either. Could you please share information on how you've been able to succeed? Thanks

hi, all:

i finally get hold of my AUSA this morning, and it seems that he did not do anything about my case, i called and asked about status of my case, he told me that he need to check then call me back, 4 mins later, he returned my call said that my case is still pending background check, i then asked him whether there's expedite request was sent to FBI, he said he need to check about it, then he told me to call him again on this Friday cause it's the due day that he need to file a response to my case.

my question is:

what kind of senario it gonna to be on Friday when i call him? what should i response to different choice if he offers? what is best case for me? what is the worst?

he seems polite, but not very helpful. i filed in North california district which from this forum should be a very friendly district for the plaintiff...

thanks a lot for your kind advice in advance, i feel so down now...

pearl

 

[LuckyPiggy]

All what you said agrees what I imagined or read in Pro Se handbooks, FRCP and local rules. Unfortunately, very little info is available on this forum about cases, which actually reached this stage. Most of the cases either end with a settlement (case adjudicated after background check complete due to the lawsuit) or the case is remanded to USCIS with or without any timetable (and of course, the infamous dismissed case: in Danilov v. Aguirre, an another case in N. Ohio district and a couple of cases with the same judge in Houston).

In your opinion, can I ask the judge in the discovery phase to instruct Defendants to produce, besides the Alien file, the completed full criminal background check results with the USCIS interpretation and raise any concern during the hearing (trial) if they have any why my application would be denied?

It goes to the discovery rules of the FRCP and rule of evidence. I think most likely you woulnd't be able to get those for lacking relevance.

If they for any reason denied your application (god forbidden), this would not be the court you'd argue the decision with. If application denied, this case would be dismissed for mootness.

 

[LuckyPiggy]

Can we file something like memorandum in oppsition to defendant's answer?

No, you hold your fire until invited.

 

[paz1960]

It goes to the discovery rules of the FRCP and rule of evidence. I think most likely you woulnd't be able to get those for lacking relevance.

If they for any reason denied your application (god forbidden), this would not be the court you'd argue the decision with. If application denied, this case would be dismissed for mootness.

Well, I probably wasn't clear enough with my question. My case (as many others on this forum) is not adjudicated solely because the full criminal background check, as mandated by Congress in the FY98 Spending Bill, is not completed.

So why do you think, that asking defendants to produce any evidence, which would stop them to comply with 8 U.S.C. 1446 and adjudicate my application in max. 120 days after the examination would lack relevance? USCIS invariantly claims that due to the increased security threats they have to be really cautious and do a very careful investigation of any applicant. If the lack of this full criminal background check is the sole reason why an application was not adjudicated in the prescribed timeframe, I thought that requesting defendants to produce this document (the result of the background investigation) has absolute relevance to my complaint, to the case. If this document is produced and presented at the trial, USCIS would be left with no arguments why not to adjudicate the application. If nothing wrong, application approved, if something bad, application denied. But if courts would follow the US v. Hovsepian 9th circuit court decision, USCIS could not either deny or approve an application as soon as a 1447(b)-based lawsuit is filed with the district court, for the simple fact that the court gains exclusive jurisdiction and USCIS can adjudicate (i.e., approve or deny) the application only after the case is dismissed or remanded, so they regain jurisdiction. Some judges would follow this logic, some not. Of course, USCIS can deny the application as soon as the judge remands the case to them. After this would follow the administrative appeal and only after a definite decision is made, one could file an another complaint with the district court based this time on 8 U.S.C. 1421(c).

But I admit, I didn't study enough the rules related to discovery and evidence. It would be a great help if you can enlighten us, what is in your opinion, the best strategy in the discovery phase, what is relevant to such complaint and can be asked defendants to produce.

 

[zlin]

I filled MOW for 485 pending 2 years (family based) in mid Dec. I called my US Attorny office today, they forwarded me to an answer machine. I thought no hope... But she called me back in 3 hours and told me she recieved my complain and forwarded to CIS and FBI. And since there are so many complains, there's a policy change, fbi will not expedite name check which comfirmed the bad news. So she said let us wait. My MOW's answer is due in mid Feb. I asked her if I can call her up once a week for following up. She said she's not sure if she will get some news in a week plus she has lots of things to do but then she said sure call her anytime. She told me even if we don't get any answer from FBI CIS, she will fill "something" on deadline. I'll keep you guys updated and hope I'll get some good news in the end.

 

[Roomi1967]

Foia

How long does it takes for FOIA to complete? Do we have to do it before filing the petition (1447b), after the citizen interview?

Appreciate your response

thanks
Roomi

 

[paz1960]

How long does it takes for FOIA to complete? Do we have to do it before filing the petition (1447b), after the citizen interview?

Appreciate your response

thanks
Roomi

In my case (August 2006) FBI provided me a "no record" response to my FOIPA request in about three weeks.

You don't have to do this, it is not a prerequisite to file a complaint based on 1447(b). Some people (like me) think that would make the case somewhat stronger, showing to the judge that there is no "hit" in the main file system about Plaintiff, but USCIS will show in a declaration that the full criminal background check is a lot more than the fingerprint and the search of the "main" file system. The name check as how they are doing since 9/11, contains an extensive search also in the "reference" file system, with different combination of the applicant's first, last, middle name, different spellings, different DOB, so a lot of chance to get a false positive "hit". This has to be manually verified and here we go: at the bottom of a black hole.

What is really disturbing that the Government stores about an individual such informations, which can be used against the individual, without even letting him/her to know what is that info. And this is obviously what happens, because in thousands of cases FOIPA resulted no records, but the name check still got stuck, so they had something, what they didn't want to tell you.

 

[aka808]

Well, I probably wasn't clear enough with my question. My case (as many others on this forum) is not adjudicated solely because the full criminal background check, as mandated by Congress in the FY98 Spending Bill, is not completed.

So why do you think, that asking defendants to produce any evidence, which would stop them to comply with 8 U.S.C. 1446 and adjudicate my application in max. 120 days after the examination would lack relevance? USCIS invariantly claims that due to the increased security threats they have to be really cautious and do a very careful investigation of any applicant. If the lack of this full criminal background check is the sole reason why an application was not adjudicated in the prescribed timeframe, I thought that requesting defendants to produce this document (the result of the background investigation) has absolute relevance to my complaint, to the case. If this document is produced and presented at the trial, USCIS would be left with no arguments why not to adjudicate the application. If nothing wrong, application approved, if something bad, application denied. But if courts would follow the US v. Hovsepian 9th circuit court decision, USCIS could not either deny or approve an application as soon as a 1447(b)-based lawsuit is filed with the district court, for the simple fact that the court gains exclusive jurisdiction and USCIS can adjudicate (i.e., approve or deny) the application only after the case is dismissed or remanded, so they regain jurisdiction. Some judges would follow this logic, some not. Of course, USCIS can deny the application as soon as the judge remands the case to them. After this would follow the administrative appeal and only after a definite decision is made, one could file an another complaint with the district court based this time on 8 U.S.C. 1421(c).

But I admit, I didn't study enough the rules related to discovery and evidence. It would be a great help if you can enlighten us, what is in your opinion, the best strategy in the discovery phase, what is relevant to such complaint and can be asked defendants to produce.

Many steps in the process, the route a case takes is purely dependant on the state it is in during this nightmare. For example.

1. Case filed 60 day response required from defendants
2. Defendants "normally" DO NOT respond in the 60 day time-frame "History has it that the USA has never had a Default Judgement against them for failure to respond"
3. Judge issues a Pre-Trail hearing > defendants file an answer to the complaint. No response is required to the answer, since FCRP rules state that the it is assumed that plaintiff rejects all answers.
4. Either case is solved before pre-trial or Defendants request extension of the pre-trail conf or the next hearing date.
5. Plantiff during the course of this if pro-se has nothing to file unless the defendants have filed a "Motion to Dismiss".
6. If you are the few unlucky ones, do not sweat it, this is the time to File "An oppostion to the Motion"
7. If the judge denies the Motion the case then goes into Discovery Mode. Depending on the judge, pro-se status, some judges do not hear oral arguments from pro-se plaintiffs. Hope you do not make it to the discovery stage as it is very very long.."atleast one case in SD NY where the case has taken that route".

I know we pro-se plantiffs are irritated and want to answer to anything that the defendants file (yes they are wrong) but the judicial system is atleast to some extent better than the USCIS.
Best bet and i have done this is that if the defendants have not responded within 60 days, or if they failed to meet a deadline set by the judge, send a nice letter to the judge's chambers explaining the situation and send a copy of that letter to the AUSA.

In my case even after being told the case is approved and that after the second FP they will issue OATH, they just told me the case now needs Washington DC's approval since i filed a lawsuit...what a joke.

best of luck

 

[fadd2002]

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.

mayby you can call ausa to ask.