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

[zlin]

Hi, Kefira, we have very similiar cases: family based 485, I filed in april, 2005. Where were your 2nd FP letter sent from? I found mine letter was sent from Vermont Service Center. Is that odd?

Same happened to me. After I filed a case (end of Oct), 2 weeks later I received a letter to do a FP. Unfortunately the case is still open, although I know that FP were cleared.

 

[paz1960]

hello everyone;
I need an advise on this. I filed my WOM last april 2006, after extensions granted by the judge to defendenats, they asked to dismiss the case sometime in August 2006. My filed my motion not to dismiss on Sept 10, 2006, and up to date, did not hear anything from the court. I have contacted the clerk several times, he said the case is still with the judge. Last week of December, I sent a written status check to the court to ping the judge, the judge replied noting my request and said we will let you know when the case is ruled in, really he did not tell a whole lot except that "Ok , we got your request". The judge was always so fast in replying as motions between me and the defendenats were exchanged. However, once I filed my last motion where the judge has to rule against one party over another, he is taking about 4 months now. I find that wierd, as if he is siding with them. I mean the reason I filed this case is because I am stuck in this background check forever and needed the court to put an end to it, now it seems the court is putting me in the limbo again. Any suggestions? is there a higher court I can seek to make this court rule?

Wenlock is right, I don't believe that you can turn to the Circuit Court to force the district court to act. There are lawsuits which linger in courts for several years, so at this stage you can't do anything than wait. At some point you can try to file a motion for a hearing, but is really up to the judge if (s)he grants it or not. And you certainly don't want to piss the judge, it's really not your best interest....

 

[wenlock]

hello everyone;
I need an advise on this. I filed my WOM last april 2006, after extensions granted by the judge to defendenats, they asked to dismiss the case sometime in August 2006. My filed my motion not to dismiss on Sept 10, 2006, and up to date, did not hear anything from the court. I have contacted the clerk several times, he said the case is still with the judge. Last week of December, I sent a written status check to the court to ping the judge, the judge replied noting my request and said we will let you know when the case is ruled in, really he did not tell a whole lot except that "Ok , we got your request". The judge was always so fast in replying as motions between me and the defendenats were exchanged. However, once I filed my last motion where the judge has to rule against one party over another, he is taking about 4 months now. I find that wierd, as if he is siding with them. I mean the reason I filed this case is because I am stuck in this background check forever and needed the court to put an end to it, now it seems the court is putting me in the limbo again. Any suggestions? is there a higher court I can seek to make this court rule?

I have seen in some instance if you talk to court clerk he can schedule in chamber call with Judge. you have to go though clerk for this and it is sort of off the record mean it does not get docked or any thing like this. you should have some good argument or some thing that you want to bring in front of judge that is valuable or kinf of emergency situation. I would recommend not to do it but you can certainly ask court clerk about possibility of talking to Judge. I know attorney do that some times but remember they deal with Judges on daily basis not like prose litigant.

Is it migistrat judge or district judge. Some times Migistrate judge handle all motions but they refer to district jugde for judgement ask court clerk about this too. You have right to choose District judge if you want.

 

[olegb]

Looks like a second FP notice doesn't necessarily mean that they are about to adjudicate the case, is that right? The FP invitation notice in my case came from the local USCIS office and under cc: section it has a hand written word "mandamus". Wenlock, what was the reason for inviting you for FP for the third time?

 

[Mapukadedja]

Today I am entering to 4th year of my citizenship application, August 2004 I passed interview and have been waiting for FBI clearance since than. Last year Omaha service center said there are around 780 people waiting 4 to 6 years for clearance. I bet these numbers are higher now. My dad got chirosisis 4 years ago and passed away last October. I am their only son and had to go 6 times and stayed less than 3 months each time. For his funeral I made it to last day, because they said I will pass 18 months in 3 years. Now my mom age of 78 is sick from all the sadness. Now I may have to lose my application if I have to go. I need for your advise for this life or death situation.

I am living legally in US since 1991, and lived all this time in a small college town in Nebraska; where I completed 2 bachelors and a master degree. I known my wife for 14 years and happily married for 8 years. No criminal records, same address and nothing to trigger delay. I found your website after watching Paula Zahn s dicriminations on citizenships. I feel humiliated. They even asked my wife if I had another wife in my country of origin. This must be their new tactic to destroy marriages and kick Middle easterns out I lost my dad and close to losing my mom and now I ll be maybe losing my only love and true friend because of their delays. But true love will prevail....

 

[wenlock]

Looks like a second FP notice doesn't necessarily mean that they are about to adjudicate the case, is that right? The FP invitation notice in my case came from the local USCIS office and under cc: section it has a hand written word "mandamus". Wenlock, what was the reason for inviting you for FP for the third time?

I don't know why they are asking me for third FP. My both interview letter came from TSC. My file is with local DO now. I called 1-800 number to inquire and as usual they are useless they said that it is normal process and I asked two FP in two weeks is normal and that hopeless lady on the phone said yes it is normal just go to FP appointment. I am planning to go for appointment any ways.

My FP notice does not say any thing about mandamus. It just says your FP on file expired and we can not process your file till we have current FP.

 

[wenlock]

Today I am entering to 4th year of my citizenship application, August 2004 I passed interview and have been waiting for FBI clearance since than..

Welcome to the club a lot of people here have stories like this so you are not alone. I do not want to go in details about personal stories but bottomline is you are perfect candidate for 1447b litigation against USCIS. Many courts around the country found 2 years as unreasonable delay for background check I am sure if you file suit you can get your citizenship.

If you have money to spare find good lawyer in your local area and sue uscis. If you do not trust lawyers you need many hours of study and you can do it your self.

Good luck. I will start reading starting 10 pages of this thread and get your self familiarize with process and sue them we are here to help you we are all in this together. many of the questions that you will ask are answered at the start of this thread so start preparing.

 

[kefira]

Hi, Kefira, we have very similiar cases: family based 485, I filed in april, 2005. Where were your 2nd FP letter sent from? I found mine letter was sent from Vermont Service Center. Is that odd?

San Francisco

 

[galfred]

SOS for sample of Summons

I filed complaint against USCIS the week before and I received a envelope from court said that I needed to resubmit summons because "summons must read as caption on complaint."

Can anybody show me a sample of served summons? Thanks

 

[msenior]

Need your advice

Folks,
Here is my case
==
Passed Interview 2/13/2006, pending on name check
1447(b) filed 11/7/2006
US Attorney served - 11/7/2006
Answer due - 1/7/2007
1/8/2007 - receive Mail from US Attorney for Montion to Dismiss

They think name check same as Interview is part of examination. 120 days can't start count before examination complete.

I called US attorny who handle my case. He said they filed expedited name check to FBI. It appears US Attornay just want to dismiss this case back to USCIS and continue wait there,

I am in Virginia. Whats best way to response. I would appreciate a sample. How long I have to response?

Thank you

 

[paz1960]

Folks,
Here is my case
==
Passed Interview 2/13/2006, pending on name check
1447(b) filed 11/7/2006
US Attorney served - 11/7/2006
Answer due - 1/7/2007
1/8/2007 - receive Mail from US Attorney for Montion to Dismiss

They think name check same as Interview is part of examination. 120 days can't start count before examination complete.

I called US attorny who handle my case. He said they filed expedited name check to FBI. It appears US Attornay just want to dismiss this case back to USCIS and continue wait there,

I am in Virginia. Whats best way to response. I would appreciate a sample. How long I have to response?

Thank you

Hello msenior, welcome to this forum.
Defendants are using a case which they won in the Eastern District of Virginia, Alexandria division, the judge was T.S. Elliot III. This case is Danilov v. Aguirre, case no. 1:05-cv-00101-TSE-TRJ, (E.D. Va, May 26, 2005).

Unfortunately, if you are in the same district, your chances are worse than in some other districts, although there are plenty of examples when one judge in a district is very hostile to such Plaintiffs (see judge Kenneth M. Hoyt, in Houston, Tx, e.g., Siddiqui v. Chertoff, case no. 4:06-mc-00350 (S.D. Tx, 08/24/2006)), but others are reasonable.

Because defendants filed a motion, you should file an Opposition to Defendants' Motion to Dismiss. You should consult the Local Rules of your court and see how many days you have till you can file this Opposition. In my court the limit is 28 days and the Opposition (as well as the original motion) is limited to 25 pages.

Your Opposition should concentrate in convincing the Court why the examination=interview, so more than 120 days passed since your interview, so the court has jurisdiction. For this you will need the following:

(i) The majority of opinions reject Defendants' definition of "examination."
(ii) The text of 8 U.S.C. § 1447(b) indicates that the date of examination is the date USCIS interviews the applicant.
(iii) The statutory context demonstrates that the terms “examination” and “investigation” refer to two distinct stages of naturalization.
(iv) Interpreting the 120-day period as running from date on which USCIS interviews the applicant comports with Congressional intent.

But this is only the first step. If the Court agrees with you and assumes jurisdiction, there is still a possibility that there will be no hearing and the case will be remanded to USCIS with some instruction. If this instruction is something like: "USCIS should adjudicate Plaintiff's application immediately after the FBI name check is completed", you are practically back to square one. You will need to concentrate to convince the judge that in the event of remand, the instruction should contain a precise timetable, i.e., ordering FBI to complete your name check in XX days and ordering USCIS to adjudicate you application in YY days after the FBI completed your name check.

From your posting I suspect that you are just at the beginning of this journey, albeight you are a little late, because AUSA already filed a motion to dismiss. I think that you wasted valuable time what you could use to prepare yourself for a fight. There is a lot of useful info posted on this forum, as well as many cases what were successful and accessible with PACER.

One place where you can find citations for many successful cases is at:
http://www.ailf.org/lac/natz_delay0806.shtml#336

Using PACER you can retrieve any document from these cases, and there you will find good samples of the Opposition you will need to write.

Good luck!

 

[rs0a1383]

Address Change

I guess Paz is right that if you ahve lived in the Texas for certain months. you can file 1447b since this law does not require that you fil has to be in the same district where u live. I would, however, doublecheck with a ggod lawyer before filing a lawsuit. And did you file AR-11 and send it to the address that is on that form. Also, you were supposed to call the 800 number and they should have sent you 2 notices. one in your old address and one in your new address. I am saying this because I moved in September within my state(not to another state), and I did both of these things. I got two letters from them, which I have saved for the proof. If you have not called the 800 number, do it immediately and also do the AR-11 because it is requirment by the law and most importantly, if you are gonna sue them, judje may ask you about those letters in the court. hope it is helpful. good luck again!!

Dude12190,

Thanks a lot for your reply. I called 800# and received two letters of confirmation of address change too. I probably will check with a lawyer before planning to do anything.

Thanks,

RS

 

[DUDE12190]

Thank you Paz!!

Hello zl2007 and welcome to this forum. Although I'm not Publicus - he is not active anymore on this forum - but we all owe him a big "Thank you" and have the moral obligation to try to help the newcomers on this journey, which means sueing the federal government.

First of all, don't let AUSA to intimidate you. Seems to me that he is not one of the nice persons who have compassion and try to help. But you should respect him and yourself, so stay calm and professional and of course, firm on your ground. The law is on your side and with perseverence, preparation and a little luck you will prevail.

Be assured that AUSA will file something by the deadline. It is very rare (although not unheard) that AUSA files nothing by the deadline.
This can be:
1. the Answer to your complaint (in that case you don't have to file any document, the next move will come from the judge)
2. Another motion to extend. Because there was already one, the judge will be less eager to grant it, although it will greatly depend on what cause will be listed for the extension
3. AUSA will file a Motion to dismiss or remand

In this case they invariantly argue that the name check is part of the examination, which is not a single event, but rather a process, so the 120 days clock from 1447(b) didn't even start (this is based on Danilov v. Aguirre, an early victory for the Government in the Easter District of Virginia). If they prevail, the court has no subject matter jurisdiction so your case would be dismissed. This means that your first goal will be to convince the judge that examination is not a process, it is a well defined event which happened when USCIS interviewed you and that was far more than 120 days ago.

If you are successful with this, there is the other part of the motion: remand. 1447(b) leaves at the judge's discretion to either conduct a hearing and decide the matter or to remand the matter to the Service with appropriate instructions. There is very little chance that the judge will opt for the first choice. The reason for this is that no judge in this country will naturalize you without the completed full criminal background check, which contains (according to USCIS), among others, the name check, which is missing for almost all of the members of this forum. AUSA was right when he told you that there are literally many thousands of applicants with the name check pending. You still can try to argue against the remand and ask the judge that this name check should be produced during the discovery phase of the lawsuit and have a hearing to decide the matter.

Most likely the judge will simply decide the motion without a hearing and order a remand. And here comes, in my opinion, the most critical part of the whole lawsuit: to convince the judge to include in the remand order a well defined timetable. Without this, you will be back to square one, i.e., exactly where you were before your lawsuit.

If AUSA files an answer, the judge most likely will order an initial case management conference and ultimately it will be a hearing on your case.

As a general recommendation: you need to study a lot in order to be prepared to defend your case. The best place to start is the beginning of this forum. Try to read as much as you can (I read every single post, you just need lot of time and lot of patience). Take notes, save the useful info and cases posted as attachements.

Make a PACER subscription and study similar cases first in your district and after that in other jurisdictions.

Read the HANDBOOK FOR LITIGANTS WITHOUT A LAWYER - UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA (you can download it from their website. Even if you are in a different district, you can learn a ton from this well written document).

Read you court's Local Rules.

Ask questions on this forum. We are here to help each other. And good luck!

Dear Paz!
Thanks alot for this response. You see, you answered one of the many questions that were haunting my mind. That is a great thing about this forum. because all of us are in the same boat, we can learn from each other. I am preparing to file in next two months, therefore, I wanna get as much valuable information as possible. I just have a quick question for you Paz.
In this whole process of 1447b, if I am finling as a pro se, at any point, do I require to have a lawyer? I am asking this because I really have problem finding a lawyer and I do not believe that even a good lawyer can follow my case as I will. Thats why I am planning to file pro se? Please answer this important question: Does law require that I have to have a lawyer at any point in 1447b lawsuit if I am filing as a Pro se?? Thanks again paz. Please keep up the good work!!! dude

 

[paz1960]

Dear Paz!
Thanks alot for this response. You see, you answered one of the many questions that were haunting my mind. That is a great thing about this forum. because all of us are in the same boat, we can learn from each other. I am preparing to file in next two months, therefore, I wanna get as much valuable information as possible. I just have a quick question for you Paz.
In this whole process of 1447b, if I am finling as a pro se, at any point, do I require to have a lawyer? I am asking this because I really have problem finding a lawyer and I do not believe that even a good lawyer can follow my case as I will. Thats why I am planning to file pro se? Please answer this important question: Does law require that I have to have a lawyer at any point in 1447b lawsuit if I am filing as a Pro se?? Thanks again paz. Please keep up the good work!!! dude

Although I'm not 100% sure (I'm not a lawyer) but I'm not aware of any law which would require to have a counsel during any part of your lawsuit, even if you have to appeal it up to the Supreme Court.

But you should consider that now it is more likely, that your case will be not solved just because you filed your complaint. Since apparently USCIS is not requesting automatically an expedited processing of the name check, it is highly probable that you will need to fight a motion to dismiss or go to a hearing and defend your case in front of the judge. This will require hard work to prepare yourself for the fight, lots of hours spent studying similar cases and generally, how the whole litigation process works. You should go Pro Se only if you are decided that you spend enough time to get well prepared and you are comfortable with the idea to appear in person in front of a judge to defend your case.

 

[deebath]

Stuck IN NC .. WEB SITE?

Hello Guys,
I am new here!! Great board
I’m in same limbo for last 11 months. 2 time info pass same answer FBI NC is pending. I am thinking about filling WOM.
Just want to check if any of you guys have use following website for filing a writ.
www.my-n400.com

Thanks
Dee


File : Nov 2005
FP : Jan 15th 2006
Interview: March 15th 2006 (Passed but no oath date NC pending)

 

[micahel1008]

No More Name Check expedite

I just called my AUSA, and she submitted name check inquiring to USCIS, but USCIS said "NO MORE NAME CHECK EXPEDITE" for WOM even she think my case is very special and she was willing to help. I guess everyone file your WOM after December will be affected, which means that we have to go to court and fight to the last step to get USCIS moving their lazy butt. I will perpare my fight now and wish you good luck! sorry for the bad news.

 

[Annamalai96]

I just called my AUSA, and she submitted name check inquiring to USCIS, but USCIS said "NO MORE NAME CHECK EXPEDITE" for WOM even she think my case is very special and she was willing to help. I guess everyone file your WOM after December will be affected, which means that we have to go to court and fight to the last step to get USCIS moving their lazy butt. I will perpare my fight now and wish you good luck! sorry for the bad news.

Hi Michael1008:
Which USCIS Field gave you this answer? Is it Vermont?

 

[micahel1008]

Hi Michael1008:
Which USCIS Field gave you this answer? Is it Vermont?

All AUSA will go to USCIS General Console Office request name check expedite, nothing to do with which center. It is just my guess. I am in NSC, which is the worst one, I guess

 

[DUDE12190]

Thanks for your response!

Although I'm not 100% sure (I'm not a lawyer) but I'm not aware of any law which would require to have a counsel during any part of your lawsuit, even if you have to appeal it up to the Supreme Court.

But you should consider that now it is more likely, that your case will be not solved just because you filed your complaint. Since apparently USCIS is not requesting automatically an expedited processing of the name check, it is highly probable that you will need to fight a motion to dismiss or go to a hearing and defend your case in front of the judge. This will require hard work to prepare yourself for the fight, lots of hours spent studying similar cases and generally, how the whole litigation process works. You should go Pro Se only if you are decided that you spend enough time to get well prepared and you are comfortable with the idea to appear in person in front of a judge to defend your case.

Paz,
Thanks for your response. I have joined the pacers ansd "Yes", I am willing to fight my case and would try my best.

 

[wenlock]

I just called my AUSA, and she submitted name check inquiring to USCIS, but USCIS said "NO MORE NAME CHECK EXPEDITE" for WOM even she think my case is very special and she was willing to help. I guess everyone file your WOM after December will be affected, which means that we have to go to court and fight to the last step to get USCIS moving their lazy butt. I will perpare my fight now and wish you good luck! sorry for the bad news.

When did you served AUSA? Is it after Dec 22nd 2006?