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

No, it is not too late

Hi Akbari,
No, it is not too late, USCIS still expediting name check. Before Dec 22, 06 it was automatically but now after the judge's decision. So, read the thread carefully, gain knowledge and go ahead and file WoM.
Good luck.



Akbari said:
Hi every one !

MY case

pd 1/23/1998
I-485 RD 1/3/2003
employment base : EB3 - India

USCIS submitted name check request on 9/10/2003. And according to communication through congress woman of Long Island, NY, my case stuck because USCIS has not received result of name/date of birth check from FBI.

I read that since December 22, 2006, USCIS changed the rule and will not request to expedite Name check from FBI.

Can I still file WOM in light of this change of rule?

Please advise. Any one done WOM in Eastern Dictrict NY ? In long island, NY?
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thank you a lot, Paz
paz1960 said:
I need to finish my draft Opposition first and as soon as my case is closed and I'm sure that I don't have to use it, I will remove the personal info from it and I will post it on this forum.

In the meantime, I attached one of the very well worded Oppositions I used for drafting mine, written by a professional lawyer in the Al-Kudsi v. Gonzales case. You should get enough inspiration from this in order to draft yours.
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paz1960 said:
I would never recommend to somebody to file a complaint Pro Se if you are not prepared and decided to fight till the end. Just filing the complaint and hoping that this will solve automatically this name check problem was always a bad idea, in my opinion.
.
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Hi paz I read the good news I am so happy for you that you got your approval. You sure deserve it.

My AUSA is suppose to file 30 day extension but he has not filed it yet. Answer was due yesterday but I am not sweating it. He is nice and professional I am not planning to file motion for default judgement as it does not help any way in case of governoment.
 
paz1960 said:
This is a question which doesn't have a unique answer. If you are talking about sympathy, this is a human feeling, so you imply that the judge doesn't just applies the law, (s)he has also feelings. And you are probably correct. But accepting this, you also have to accept, that there are several hundred district court judges and they may have different feelings. It is impossible to guess, that what will be the feeling of a judge, even if you would know in advance, who will be your judge. The field officer was right, but a lawsuit is not necessary about fair play; it is more about following the letter and spirit of the statue. And if you consider that, you certainly are entitled to a court action after 120 days passed from your interview.

However, I don't deny that your chances are better if the waiting time is longer and you have all kind of proofs that you tried everything possible to avoid filing your complaint and resolve the case peacefully. And you definitely can't go yet with a WOM lawsuit.
Click to expand...
PAZ1960
Do you know where I can find any documentation or judication if goverment agency mistake cause damage, what fedaral law or regulationcan I follow to reinforce my argument
 
paz1960 said:
This is a question which doesn't have a unique answer. If you are talking about sympathy, this is a human feeling, so you imply that the judge doesn't just applies the law, (s)he has also feelings. And you are probably correct. But accepting this, you also have to accept, that there are several hundred district court judges and they may have different feelings. It is impossible to guess, that what will be the feeling of a judge, even if you would know in advance, who will be your judge. The field officer was right, but a lawsuit is not necessary about fair play; it is more about following the letter and spirit of the statue. And if you consider that, you certainly are entitled to a court action after 120 days passed from your interview.

However, I don't deny that your chances are better if the waiting time is longer and you have all kind of proofs that you tried everything possible to avoid filing your complaint and resolve the case peacefully. And you definitely can't go yet with a WOM lawsuit.
Click to expand...

LaPaz1960,

the question is also if you have a AUSA who is returning phone calls. I contacted mine last Friday and have not heard from him (finally, the court was able to figure out who was assigned the case). He could be on holidays.
From what i understand it might take a while until you receive some paper information on whether the AUSA is planning on filing to dismiss the case or ask for an extension. Do you have any thoughts on this?

Again many thanks from an employee of the State of Florida!

Best

D.
 
wenlock said:
Hi paz I read the good news I am so happy for you that you got your approval. You sure deserve it.

My AUSA is suppose to file 30 day extension but he has not filed it yet. Answer was due yesterday but I am not sweating it. He is nice and professional I am not planning to file motion for default judgement as it does not help any way in case of governoment.
Click to expand...
If I try to extrapolate from my timeline, your adjudication should come in the first half of February, in about a week or two after your FP appointment. You are close now.

And you are right about resisting the temptation to run and file a motion for default judgement. You certainly would risk your good relationship with your AUSA and you would not get anyway a default decision without a hearing or other action. Of course, this rest should not be unlimited, but I'm convinced that you do whatever is the best in your situation. I sincerely hope that your day will come soon.
 
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myang1969 said:
PAZ1960
Do you know where I can find any documentation or judication if goverment agency mistake cause damage, what fedaral law or regulationcan I follow to reinforce my argument
Click to expand...
Unfortunately, my "experience" is extremely narrow minded: I looked only to cases where the name check was pending and this caused the delay in adjudication. I don't have a special interest in immigration matters and I am feeling good with my present profession, I have no desire to switch and re-train to be an immigration lawyer.

But my guess would be that somewhere in the Mandamus Act or APA should be something about agency inaction, wrongful doing unreasonably delaying your case. That's were I would start my research. See 28 U.S.C. § 1361 and 5 U.S.C. § 701, et seq., in combination with 28 U.S.C. § 1331.
 
Gurus I have a question

I served defendens, Chertoff,Muller, Attorney General, Gonzales and US immigration in Washington. The got my copies Jan 17, I dont have yet the green paper from the usps. Is that normal?
 
Saarlaender said:
LaPaz1960,

the question is also if you have a AUSA who is returning phone calls. I contacted mine last Friday and have not heard from him (finally, the court was able to figure out who was assigned the case). He could be on holidays.
From what i understand it might take a while until you receive some paper information on whether the AUSA is planning on filing to dismiss the case or ask for an extension. Do you have any thoughts on this?

Again many thanks from an employee of the State of Florida!

Best

D.
Click to expand...
This is regulated by the Local Rules. In my district, here is the relevant rule:

"Attempt to obtain concurrence - With respect to all motions, the moving party shall ascertain whether the motion will be opposed. In addition, in the case of all discovery motions, counsel or pro se parties involved in the discovery dispute shall confer in person or by telephone in a good-faith effort to resolve each specific discovery dispute. All motions shall affirmatively state the efforts of the moving party to comply with the obligation created by this rule." (Local Rule 7.1(d))

This means, that according to this rule, AUSA needs to contact Plaintiff if (s)he plans to file a Motion to dismiss. Because AUSA is required to file anything electronically (again this is regulated locally, but I saw practically in every district that AUSA files anything electronically), you can follow on PACER your docket. In a couple of days after filing (sometimes already next day) you can download thedocument Defendants filed. There is a so called "Roseboro Notice", which requires to notify a Pro Se plaintiff if a dispositive motion is filed against him/her. I don't know who is supposed to send you this notice: the Court or AUSA.
 
colonel said:
Gurus I have a question

I served defendens, Chertoff,Muller, Attorney General, Gonzales and US immigration in Washington. The got my copies Jan 17, I dont have yet the green paper from the usps. Is that normal?
Click to expand...
I used as proof of service the USPS tracking web page printouts together with the green receipts I received when I mailed the certified mails. The green card (return receipt) from FBI never was returned. The other return receipts from Washington arrived in about 3 weeks after mailing.
 
which form to file for FOIA?

does anybody know which form to fill for FOIA if i want to get the reply from the FBI about my name check status/background records? Is it form # G639? the instructions above the form says that we should not use it to get the USCIS status. what should I do?
can this inquiry have bad effect on my N400 application?
Thanks!!!
 
Very interesting document: 120 day period

Hello, everyone! I am new to this thread and first thing I'd like to say is thanks to everyone for your contributions. There is great information here.

Now my time to contribute: I found a very very interesting document on what to do if you've been waiting for more than 120 days after your interview:

http://www.ailf.org/lac/lac_pa_100605.pdf

I apologize if the link has already been posted in the past. At least in my case, I know this will let me sleep better tonight, for now I have a better idea on what to do if things go wrong. I hope it helps you too.
 
Hi, paz1960.
Did you confirmed/got a copy from AUSA? I think he wouldn't cheat on this. USCIS... nobody could never understand...

But, you got approved. Congratulations!
Your knowledge, efforts, and kindness make you deserve it more than most people like me here.

paz1960 said:
After I tried today again unsuccessfully to call my AUSA, I received finally the following e-mail from him:

"I understand that your N-400 application was adjudicated and approved on
January 9, 2007. Did you receive notice etc. directly from DHS/CIS? I
can get my hands on a copy if you have not received it by now. Can we
agree to dismiss the complaint? If not, let's discuss some alternative
to my responding and kicking the litigative process into gear. Thanks,"

I still can't believe... The problem is that the deadline for Defendants to file something (after the 30 day extension) is Thursday, Jan. 25. The other suspicious thing is how is it possible that I didn't receive anything from USCIS, although according to this e-mail, an approval was made on Jan. 9.

I will need to be careful with the wording of the Joint Stipulation to Dismiss. But first of all, I need to really see that copy of the approval notice...
Click to expand...
 
huxf said:
Hi, paz1960.
Did you confirmed/got a copy from AUSA? I think he wouldn't cheat on this. USCIS... nobody could never understand...

But, you got approved. Congratulations!
Your knowledge, efforts, and kindness make you deserve it more than most people like me here.
Click to expand...
Hi huxf, yes, yesterday I got a copy of the first page of my N-400 application with the big APPROVED stamp on it and signed by the same officer who interviewed me. It was sent by the AUSA as a pdf attachment to his e-mail. Later, after playing some phone tag, we managed to speak, and he agreed that he will try to arrange an oath date as soon as possible. I'm waiting today for this information. He also needs to draft a Joint Stipulation for a Motion to Dismiss, but I asked him to send me that first to review it before I agree to sign it. The (30 day extended) deadline for him to file something is today...
 
alone_in_ep said:
Hello, everyone! I am new to this thread and first thing I'd like to say is thanks to everyone for your contributions. There is great information here.

Now my time to contribute: I found a very very interesting document on what to do if you've been waiting for more than 120 days after your interview:

http://www.ailf.org/lac/lac_pa_100605.pdf

I apologize if the link has already been posted in the past. At least in my case, I know this will let me sleep better tonight, for now I have a better idea on what to do if things go wrong. I hope it helps you too.
Click to expand...
Hello alone_in_ep, welcome to this forum. Hopefully, you will not need all the info posted here, because you will get your oath letter without any litigation. If 120 days pass after your interview and you still didn't receive anything, I would recommend to write a nice letter to the director of the USCIS District Office where you were interviewed and tell him/her that you are going to file a lawsuit in the federal district court based on 8 U.S.C. 1447(b) if they don't issue you a notice with the oath ceremony date in 15-(30) days. And if they don't react, do not hesitate, go and file the lawsuit.

Reading your posts on another forum, I understand that you had your interview and the officer didn't mention anything about a pending background check. In the view of the USCIS memo dated back to May 2006, they were not supposed to call you for the interview if your full criminal background check wasn't cleared. They did this frequently before this memo, exposing themselves to thousands of lawsuits, because the FBI didn't complete the name check part of the background check in 120 days after the interview.

The link and the document what you can download from there was posted several times on this forum, but because the active users are revolving (people tend to leave after their case is solved) and most of the newcomers don't have the time and patience to go through more than 8000 postings, it is worth to post again useful info.
 
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ashlie23 said:
does anybody know which form to fill for FOIA if i want to get the reply from the FBI about my name check status/background records? Is it form # G639? the instructions above the form says that we should not use it to get the USCIS status. what should I do?
can this inquiry have bad effect on my N400 application?
Thanks!!!
Click to expand...

Hi ashlie kindly go to FBI website they have section for FOIpa request. You can download PDF file with form and instrustions how to send FOIPA request. Make sure you fill all the fields properly also put all addresses that you lived in last 5 years on seperate page. This information is vital and it cut down your response time from FBI. I was informed about this by that lady who manages FOIPA at FBI.

Make sure you sign the request with blue ink they need hand signiture NOFAX PLEASE. they do not take FOIPA via fax they need original signiture.

You do not need to attest by notory public if you put statement like under the penalty of perjury you sign that information provided is accurate.

use this link for for information

http://foia.fbi.gov/
 
ashlie23 said:
does anybody know which form to fill for FOIA if i want to get the reply from the FBI about my name check status/background records? Is it form # G639? the instructions above the form says that we should not use it to get the USCIS status. what should I do?
can this inquiry have bad effect on my N400 application?
Thanks!!!
Click to expand...
See the FBI FOIA web site at http://foia.fbi.gov/. Use the form under the link http://foia.fbi.gov/privacy_request.htm


I never heard anybody who filed a FOIPA request that this caused any negative effect on his/her N-400 application. Many of the users who filed complaints in district courts because stalled application/petition due to pending name check, asked and received this FOIPA report stating: "no records". This still doesn't tell you anything about the status of your name check, which is a different check and you can have a positive "hit" (usually false) during your name check process without having any responsive record which would be revealed during a FOIPA search.

I know that it is disturbing, that you ask what kind of possible derogatory information is stored about you, and they don't tell you, but this is the present situation...
 
paz1960 said:
Unfortunately, my "experience" is extremely narrow minded: I looked only to cases where the name check was pending and this caused the delay in adjudication. I don't have a special interest in immigration matters and I am feeling good with my present profession, I have no desire to switch and re-train to be an immigration lawyer.

But my guess would be that somewhere in the Mandamus Act or APA should be something about agency inaction, wrongful doing unreasonably delaying your case. That's were I would start my research. See 28 U.S.C. § 1361 and 5 U.S.C. § 701, et seq., in combination with 28 U.S.C. § 1331.
Click to expand...

PAZ1960

I am still waiting for 60 days deadline to come, I am also prepared some evdence and study for upcomimg AUSA motion. Can you spent a little time to tell me if I have enough understanding to different motion.
(1) Motion to Dismiss: I believe this is the strongest one to plaintiff but it may also backfire to defendent; I guess Judge will lean to your side if (s)he denny the motion. after both side file the Motion, Judge will rule directly or rule after pre-hearing, am I right?
(2) Answer; I believe this is a middle intense fight back. Defendent will agree something, but denny rest part. They like to discuss issue in court and next thing is also hearing or conference.
(3) Motion to extension. it is the weakest one, possible they want settle, but need more time, but they may fight back with (1) after 30 days extension.
(4) Motion to remand: same as (1) but a little less intensive reply.
Feel free to comment for any of you. I believe for most of us, we have to go through this now.
 
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