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

This is interesting, but no good for us. I searched cases filed in my district last Oct. Although both plaintiffs did get their GCs and cases didn’t go to the court, in one case, the ASUA did file a “motion to dismiss” at the end of 60 days because the plaintiff did nothing after their family got their GCs 48 days after filing.

The interesting things are the ASUA first stated the fact that “the plaintiffs have already gotten relief…” in the first 3 statements, and then she went further and attack the plaintiff with some other factors.

I am typing them here since more and more ASUS are probably going to do something like this because of the backlog of WOM (?) and change of expediate process policy (?). If experts here like Paz1960 could give some insights and we come up an attack-back strategy, it would be very beneficial for all of us if this kind of “motion to dismiss” becomes a “standard practice”

1) 2)3)…

4) Plaintiff’s complaint should also be dismissed for lake of subject matter jurisdiction because ”the party asserting jurisdiction bears the burden of showing the action is properly before the federal court,” Sikirica v. Nationwide Ins., 416F.3d 214,219 (3d Cir. 2005), and the possible jurisdiction beases that Plaintiff cites, 28U.S.C. § §1331,1361, and 2201, and 5 U.S.C. §701, do not apply. See, e.g., Chaudry v. Chertoff, No. 06-1303 (PAM/JSM), 2006 WL 2670051, at *3(D.Minn.Sept. 18, 2006); Zahani v. Neufeld, No. 6:05 CV 1875 ORl 18J, 2006 WL 2246211, at *3(M.D. Fla. June 26, 2006); Deen v. Chertoff, 05-CV-1341 (DMC), 2006 WL 319297, at *2-3 (D.N.J. Feb. 10, 2006); Mustafa v. Pasquerell, No. SA05CA-658-XR,2006 WL 488399, at *5 (W.D. Tex. Jan. 10, 2006).

5) Even if Plaintiff’s complaint were not dismissed for lack of jurisdiction, the complaint should still be dismissed for failure to state a claim. Plaintiff cannot show a “clear and undisputable right” to have his I485 applcation approved because approval of that application is left up to the Attorney General’s discretion. See, e.g., Saleh v. Ridge, 367 F. Supp. 2d 508, 514 n.4 (S.D.N.Y.2005). Moreover, Plaintiff has no right to have his I485 application approved until his FBI background check is completed. See, e.g., Jabr v. Chertoff, No.4:06CV00543 RWS, 2006 WL 3392504, at *2(E.D. Mo. Nov. 21, 2006) (“Background checks must be completed before a decision can be made and Plaintiffs do not have a right to forego the required background checks.”). Furthermore, Plaintiff’s application was delayed approximately seventeen months since he submitted his fingerprints on April 2005, and as a matter of law a seventeen-month delay is not unreasonable. See, e.g., Chaudry, 2006 WL 2670051, at *3(finding seventeen-month delay not unreasonable, “especially in light of the fact that the complaints alleges no particular inauspicious motives or unscrupulous action by Defendants”); Zahani, 2006 WL 2246211, at *3(finding a three-year delay not unreasonable because “Courts have routinely found delays caused by FBI background checks to be justifiable delays”); Alkenani v. Barrows, 356 F.Supp. 2d 652, 657 (N.D.Tex. 2005) (finding fifteen-month delay to be reasonable due to the pending FBI background check; noting that the immigration service does not “have authority to expediate the FBI investigation or give petitioner priority over background checkes requested by other agencies”; further noting that such delays are inevitable and becoming more frequent in the post-911 world).

6) For the foregoing reasons, the Government respectfully requests that the Court dismiss Plaintiff’s complaint.
 
huxf said:
sorry for these lazy B..S.
Sorry I forgot... did you get help from your Senator.
Somehow the senator didn't respond my mail, but I tried phone call today and this worked amazing. The nice lady got my A# and called me back in just about an hour.
She said she got good news for me and it is good. She confirmed (my infopass results) that my NC cleared Dec 12th, and my FP cleared 27th, the day after my FP. And now it is in adjuris. office and should hace a result in 60 days.

One fact I want to clear, as many of you may have awared that the D** NSC representatives are so stupid and they always give inaccurate/wrong information, which I believe is worse than "no information". I was told earlier this week that NC pending and that made me so worried. Those guys definitely are watser our taxpayer money and those jobs definitely worth outsourcing!

Ya I know never trust information from NSC period. I called them more then four times not and every time they gave me different and wrong information. Last time they told me they have six months to respond and I asked under what rule and he was like I don;t know that is what they told me. NEVER trust those idiots
 
Second FP

Ok fellows I am just coming back from my second FP and I also inquired about my name check. Dame same old news Stuck. But one new development is that my file moved to local DO. I am not sure what process initiated that.

I am going to call AUSA today and find out what is the deal now.
 
Hi all,
Update on my case: I went today to Newark for an infopass appt. this time I also asked to be transfered to the citizenship office, there I got to speak to the same lady I spoke with last time. She told me that both my N400s security checks are still pending... (well I wasn't surprised). I also told her that I sent a letter to Vermont to withdraw my second N400 based on her advice and havent receive an answer yet, she said that both N400 are still showing and that once the first one clears they will call me for the interview on the second one.
then I mentioned to her that some ppl are suing the immigration, she said she knows about this and that many ppl are doing it. then she almost went on encouraging me to do the same saying that the immigration will not take it personal if I sued them and that I will not be denied or be treated differently just because of a suit against them... (eventhough all of the lawyers I spoke with said differently, they said that uscis will dig your past to see if they can find a violation in your immigration files). I felt that she was so helpful that I even later asked her for a name of a lawyer for these kind of suits.
Now, I was planning after this infopass to start working on my suit but I'm reading negative posts about lawsuits these days because of new regulations in uscis.
What do you guys think? I feel I'm the unluckiest person in this forum so far: I filed my second N400 right after the new regulation (of not scheculing interviews if the name check is not cleared) was out and now there is these new regulations...this is frustrating.
 
for VCS don't worry

A lawyer be designed at your case in AUSA only be at almost the end to 60 days some time. So don't worry, when in my case that it is at 58 day ,the AUSA called me and tell me extention other 60 days because of CIS' reason .
Waiting up , they will give you a answer.
 
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I looked into pacer today for WOM cases in my district and found a pro-se mutual dissmisal filed today that read like:

"Plaintiff, pro se, and Defendants, by and through their undersigned attorneys, stipulate tothe entry of an order dismissing the above-captioned case with prejudice, with each party bearing his own costs and attorney fees."

Not sure what the outcome was, but this seems to be a mutual dissmisal but I find the wording "With Prejudice" disturbing. What do you guys think it means ?
 
lotechguy said:
I looked into pacer today for WOM cases in my district and found a pro-se mutual dissmisal filed today that read like:

"Plaintiff, pro se, and Defendants, by and through their undersigned attorneys, stipulate tothe entry of an order dismissing the above-captioned case with prejudice, with each party bearing his own costs and attorney fees."

Not sure what the outcome was, but this seems to be a mutual dissmisal but I find the wording "With Prejudice" disturbing. What do you guys think it means ?

If it is mutual prejudice then Plaintiff got the relief requested. They are trying to file this kind of motion so that no party can go and clain attorney fees.
 
LuckyPiggy, Paz and others, Pls Take a Look and Help

01/08/2004 I140&I485 concurrently filed
01/23/2004 Name Check request was sent to FBI
Nov. 2004 First FP
Dec. 2004 I140 approved
09/28/2006 WoM filed
10/08/2006 Defedents served
Nov. 2006 Second FP (requested by myself via Infopass)
12/08/2006 AUSA filed 30-day extension
01/08/2007 AUSA filed an Answer

Pls see the attached files for Extension and Answer

The AUSA is virtually not accessible to me, never picks up his phone or returns calls.

I have a few questions and would appreciate very much if someone can provide some clues:

1. What is the real intention for AUSA filing this Answer? Does he want to buy some time, or he wants to fight?

2. How do I find out whether the AUSA has asked the USCIS to send NC expedition request to the FBI and USCIS has sent it? Assuming that there is no information I can get from the AUSA.

3. The Extension Letter is very nicely worded (on page 2, it says "The parties anitcipate that this case will become moot before defendents are required to answer the Complaint and, therefore, do not anticipate needing to request an additional extension."). Does it mean anything?

4. Is this Answer a typical copy-and-paste type of answer? What indication/conclusion can I draw from it?

5. What is the next step from here? Is there a dealine for each of the next steps?

6. What is my chance of winning it and what is the best estimated timeline here?

7. I am in California Central District. The judge assigned to my case is George King. Does anyone know this judge? Is he liberal or pro-government?

Thank you all and good luck to your cases.
 
Got a call from AUSA

congratulating me with the 485 approval. She said she now has a 485 receipt with "APPROVED" stamp on it. I thanked her and asked what I should do, she suggested filing a voluntary dismissal. (the deadline for her to respond is Jan 17th.)

I then asked about my wife's case, she said she didn't know there was a dependant (can't blame her, my wife wasn't mentioned in the case.) Then I begged her to talk to the CIS contact she's been talking to about my case. She called me back quickly said that because the WOM was only for me, the CIS rep didn't expedite my wife's NC... She said she'll pass on my wife's information to the CIS rep but no promises...

I have to say this AUSA is a very gentle lady. She's understanding and very helpful. I am quite lucky to be assigned to her.

icare
 
wenlock said:
Ok fellows I am just coming back from my second FP and I also inquired about my name check. Dame same old news Stuck. But one new development is that my file moved to local DO. I am not sure what process initiated that.

I am going to call AUSA today and find out what is the deal now.
Moving your file to the local DO is good, because the interview will be conducted there and they probably need that file during the interview. My guess is that they try to do everything they can (second FP is also part of this) to be able to interview you and immediately adjudicate your application as soon as the name check is complete.
 
aaron13 said:
01/08/2004 I140&I485 concurrently filed
01/23/2004 Name Check request was sent to FBI
Nov. 2004 First FP
Dec. 2004 I140 approved
09/28/2006 WoM filed
10/08/2006 Defedents served
Nov. 2006 Second FP (requested by myself via Infopass)
12/08/2006 AUSA filed 30-day extension
01/08/2007 AUSA filed an Answer

Pls see the attached files for Extension and Answer

The AUSA is virtually not accessible to me, never picks up his phone or returns calls.

I have a few questions and would appreciate very much if someone can provide some clues:

1. What is the real intention for AUSA filing this Answer? Does he want to buy some time, or he wants to fight?

2. How do I find out whether the AUSA has asked the USCIS to send NC expedition request to the FBI and USCIS has sent it? Assuming that there is no information I can get from the AUSA.

3. The Extension Letter is very nicely worded (on page 2, it says "The parties anitcipate that this case will become moot before defendents are required to answer the Complaint and, therefore, do not anticipate needing to request an additional extension."). Does it mean anything?

4. Is this Answer a typical copy-and-paste type of answer? What indication/conclusion can I draw from it?

5. What is the next step from here? Is there a dealine for each of the next steps?

6. What is my chance of winning it and what is the best estimated timeline here?

7. I am in California Central District. The judge assigned to my case is George King. Does anyone know this judge? Is he liberal or pro-government?

Thank you all and good luck to your cases.
1. The AUSA had to file something by the end of the extension period. By filing this answer, he certainly bought some time, because it will require some time till the case reaches a further stage (initial case management conference, discovery, hearing etc.). I don't really believe that it is up to AUSA that he wants to fight or not. He does what his clients (USCIS/DHS and FBI) instruct him.
2. Assuming that you don't have communication with AUSA, you can try an Infopass, or later, you can ask this in the discovery phase.
3. In my reading the extension letter wording and the subsequent answer means that they started to work on your case, most likely submitted the expedited request to FBI but the name check still wasn't completed before the extension period ended. By filing an answer, not a motion to dismiss, probably they will have more time to complete the name check and hopefully, the case will become moot before the trial.
4. The answer is only one side of the story. Without posting your complaint, I could not make any sense of it. Usually, there are a lot of factual allegations what defendants admit, in this answer they denied almost everything.
5. The next step probably lies with the judge. Most likely (s)he will schedule an initial case management conference or something like that. There is no further time limit, this can drag for very long time or can happen in matter of days, depending on the case load of the judge and court.
6. To answer this, I would need to be able to see the future.
7. I'm in Michigan.
 
wenlock said:
If it is mutual prejudice then Plaintiff got the relief requested. They are trying to file this kind of motion so that no party can go and clain attorney fees.
I agree with this interpretation.
 
Hi, icare,

I just talked to my AUSA and she told me that they only requested NC expedition for myself because I am the only plaintiff.

In order to expediate the spouse's NC, you need either modify the complaint or file another WOM. But the bad news is that USCIS changed the policy and maybe a new WOM won't work from now on. She confirmed the new USCIS policy is in place and she don't know how it is working but she still suggest that I could file a WOM for my spouse.

I think the best thing is to modify the plaintiff list and that way we can still keep the old filing date and maybe still get the NC expedition.



icare said:
congratulating me with the 485 approval. She said she now has a 485 receipt with "APPROVED" stamp on it. I thanked her and asked what I should do, she suggested filing a voluntary dismissal. (the deadline for her to respond is Jan 17th.)

I then asked about my wife's case, she said she didn't know there was a dependant (can't blame her, my wife wasn't mentioned in the case.) Then I begged her to talk to the CIS contact she's been talking to about my case. She called me back quickly said that because the WOM was only for me, the CIS rep didn't expedite my wife's NC... She said she'll pass on my wife's information to the CIS rep but no promises...

I have to say this AUSA is a very gentle lady. She's understanding and very helpful. I am quite lucky to be assigned to her.

icare
 
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icare said:
congratulating me with the 485 approval. She said she now has a 485 receipt with "APPROVED" stamp on it. I thanked her and asked what I should do, she suggested filing a voluntary dismissal. (the deadline for her to respond is Jan 17th.)

I then asked about my wife's case, she said she didn't know there was a dependant (can't blame her, my wife wasn't mentioned in the case.) Then I begged her to talk to the CIS contact she's been talking to about my case. She called me back quickly said that because the WOM was only for me, the CIS rep didn't expedite my wife's NC... She said she'll pass on my wife's information to the CIS rep but no promises...

I have to say this AUSA is a very gentle lady. She's understanding and very helpful. I am quite lucky to be assigned to her.

icare
I join your AUSA in congratulating you for the good outcome of your lawsuit!
 
I believe a pro-se is just for one person... but I may be wrong. I do see a case in NJ with 2 plaintiffs. Case number: 06-4638, they both filed for voluntary dismissal on the 6th of December 07. Too bad I didn't try it...

Happyheart said:
Hi, icare,

I just talked to my AUSA and she told me that they only requested NC expedition for myself because I am the only plaintiff.

In order to expediate the spouse's NC, you need either modify the complain or file another WOM. But the bad news is that USCIS changed the policy and maybe a new WOM won't work from now on. She confirmed the new USCIS policy is in place and she don't how it is working and she still suggest that I could file a WOM for my spouse.

I think the best thing is to modify the plaintiff list and that way we can still keep the old filing date and maybe still get the NC expedition.
 
I called district court and they mentioned that you can have multiple plaintiff in the list even in PRO SE case.

So I want to add my spouse in the plaintiff list, does anyone know where I could find an amended complaint sample? Thanks.


icare said:
I believe a pro-se is just for one person... but I may be wrong. I do see a case in NJ with 2 plaintiffs. Case number: 06-4638, they both filed for voluntary dismissal on the 6th of December 07. Too bad I didn't try it...
 
I just talked to my US attorney. He said that he did received call from FBI attorney and they are working on it. He does not wants to go through Motions and dismissal because there office is low on staff. He said he will need 30 day extensions that I agreed.

He him self wants to get this thing over with. Once thing is for sure AUSa just do what FBI and USCIS counsel tell them to do. Even all fighting arguments are provided by USCIS and FBI counsel.

He completly understand it is just a Bureaucratic mess that is causing all the pain. I hoping for some good news I hope every thing works out fine.
 
paz1960 said:
1. The AUSA had to file something by the end of the extension period. By filing this answer, he certainly bought some time, because it will require some time till the case reaches a further stage (initial case management conference, discovery, hearing etc.). I don't really believe that it is up to AUSA that he wants to fight or not. He does what his clients (USCIS/DHS and FBI) instruct him.
2. Assuming that you don't have communication with AUSA, you can try an Infopass, or later, you can ask this in the discovery phase.
3. In my reading the extension letter wording and the subsequent answer means that they started to work on your case, most likely submitted the expedited request to FBI but the name check still wasn't completed before the extension period ended. By filing an answer, not a motion to dismiss, probably they will have more time to complete the name check and hopefully, the case will become moot before the trial.
4. The answer is only one side of the story. Without posting your complaint, I could not make any sense of it. Usually, there are a lot of factual allegations what defendants admit, in this answer they denied almost everything.
5. The next step probably lies with the judge. Most likely (s)he will schedule an initial case management conference or something like that. There is no further time limit, this can drag for very long time or can happen in matter of days, depending on the case load of the judge and court.
6. To answer this, I would need to be able to see the future.
7. I'm in Michigan.

Thank you Paz.

I have attached my Complain here, pls have a look.

Regarding No. 1, I thought AUSA is the most important people in a lawsuit. It is trun that utimately it depends on what AUSA's clients (USCIS and FBI) want to do, but they typically follows AUSA's recommandation, which is based on AUSA's assessment of the likelyhood of winning this case. Am I right on this?

Also, are you sure that these USCIS people at InfoPass will know whether USCIS has sent out a NC expedition request?

You mentioned that the case could be dragged for a long long time. To the best of your knowledge, how long is a long long time?

In this answer, the AUSA even denys No. 2, which is where I live. What does that mean?

BTW, I am EB2.

Thanks again.
 
wenlock said:
I just talked to my US attorney. He said that he did received call from FBI attorney and they are working on it. He does not wants to go through Motions and dismissal because there office is low on staff. He said he will need 30 day extensions that I agreed.

He him self wants to get this thing over with. Once thing is for sure AUSa just do what FBI and USCIS counsel tell them to do. Even all fighting arguments are provided by USCIS and FBI counsel.

He completly understand it is just a Bureaucratic mess that is causing all the pain. I hoping for some good news I hope every thing works out fine.
wenlock, you did the right thing, I believe. Even if you didn't agree with the extension, most likely the judge would grant it anyway. So why not show them some goodwill and cooperation? Your observation about what does the AUSA totally agrees with my impression from the discussions I had with my AUSA.
 
Case update from Senator's office

"On 12/12/2006, your name and D.O.B. check cleared.
On 12/27/2006, your fingerprints cleared.
As of 1/5/2007, your case is with an adjudicating officer. You should
receive something in the mail within 60 days of this date. "

So this means I will get the Card from the adjudicating officer within 60 days?
Can I sit back and relax?
 
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