Depending how desperately you need your immigration benefit. According to other positively decided WOM cases, 2 years is a good limit. But if you are desperate, you can file when you have 22 months, AUSA will have 2 more months to file something, so till the judge will rule, you will have at least two years.seagull009 said:
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
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>> A owe you money, you sue A as defendent, but A said B owe he money, if B return money to him, he will give it back to you. You can sue them both.
This is not correct. Basically, if I have a contract with you, I cannot enforce your contract with someone else (unless it's a delegation of the tasks you owe me according to our contract), because I lack what's called "privity" of the second contract (between you and someone else), which means I will lack standing to sue. If your contract with someone else is enforced and I would benefit, I will become an incidental beneficiary, but incidental beneficiary has no standing to enforce a contract he incidentally benefits from.
However, as paz1960 has noted, we sue the Government, and given complex relationships between the agencies, I would be really surprised to see a requirement to be in direct relationship with the defendant. Even if there was such a requirement, to process our applications USCIS has delegated their duties to FBI for proper completion of the namechecks, so yes, we can and should sue them *both*.
Note - I cannot see how a court could ever force USCIS to send an expedite request - USCIS does not owe that action to us (and that's probably why they will not do it anymore). However, a court could require FBI to perform their job.
paz1960, thanks for such detailed information !!!
This is not correct. Basically, if I have a contract with you, I cannot enforce your contract with someone else (unless it's a delegation of the tasks you owe me according to our contract), because I lack what's called "privity" of the second contract (between you and someone else), which means I will lack standing to sue. If your contract with someone else is enforced and I would benefit, I will become an incidental beneficiary, but incidental beneficiary has no standing to enforce a contract he incidentally benefits from.
However, as paz1960 has noted, we sue the Government, and given complex relationships between the agencies, I would be really surprised to see a requirement to be in direct relationship with the defendant. Even if there was such a requirement, to process our applications USCIS has delegated their duties to FBI for proper completion of the namechecks, so yes, we can and should sue them *both*.
Note - I cannot see how a court could ever force USCIS to send an expedite request - USCIS does not owe that action to us (and that's probably why they will not do it anymore). However, a court could require FBI to perform their job.
paz1960, thanks for such detailed information !!!
myang1969 said:
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This simple logic does not work in legal matters, especially involving the Government. All the agencies you sue are the Governmental agencies and the general rule is that you have to sue all and every agency that you might even remotely suspect to be involved in denying you the service. As ridiculous as it sounds, if I thought that, say, DMV was somehow responsible for delaying my naturalization I would not hesitate to put them on the defendant’s list.myang1969 said:
I would suggest sticking with Paz and his suggestions – he is way ahead of most of us and obviously has put a lot of time, effort and thought figuring this all out and generously sharing his knowledge at this forum.
Best of luck to all,
snorlax
igor_ch said:
Ok if you are not satisfied with Defendents list provided by Paz you can sue United States of America.
When you file your law suit just make USA as your defendent it will cover all the United States run agencies. In some cases it is recomended this way. One benefit of doing it this way is that when you move forward in law suit and if defendents make argument that background check is more then FBI name check and involves other unnamed agencies because you filed suit against USA it covers all the Federal agencies so you can easily handle defendents argument.
I have seen many lawyers has done it that way. If you read AILF advisory about suing goveronment you will find it recommended way of Suing.
paz1960 said:
I agree with Pz it is very very important that you put FBI as defendent. Remember we are hearing stories that USCIS is not automatically requesting expediate request for name check. If you can develop good relations with AUSA he can force directly FBI about finishing name check with out going through USCIS.
In my case AUSA is in direct contact with FBI attorney. Infect he was nice enough to provide me his contact information too but I did not contacted him directly because I do not think it is good idea to by pass AUSA and contact FBI attorney directly. I do have requested status inquiries via AUSA.
Actually, I'm satisfied with the list as long as both USCIS and FBI are on that list. I was trying to clarify some legal matters here and Pz has given a very nice explanation. However, from the legal perspective, I did no agree with that specific contract-based explanation suggested by myang1969. I guess we're all on the same page with regards to the list of defendants : )
wenlock said:
paz1960 said:
You only send summons to Attorney General Office and your local US attorney. He represent USA. Yes this will probably not trigger automatic name check as USCIS general counsel is not aware of Law suit but that is the job of your local AUSA to notify them about pending law suit.
About Intent to Sue Letter, Please answer this!!
I have a some questions and will be very thankful if Paz or anyone can answer them.
1) Do I have to send a "Intent to Sue" letter before filing 1447b or is it something that I should do??
2) Whom do I need to send this letter to? I believe the one person is the District Director of USCIS. which other people??
3) How long before filing a lawsuit should I send these letters?
4) Should I send the Intent to sue letter to US attorney in my district.
Please answer these questions. Thank you all!!! and please keep up the good work
I have a some questions and will be very thankful if Paz or anyone can answer them.
1) Do I have to send a "Intent to Sue" letter before filing 1447b or is it something that I should do??
2) Whom do I need to send this letter to? I believe the one person is the District Director of USCIS. which other people??
3) How long before filing a lawsuit should I send these letters?
4) Should I send the Intent to sue letter to US attorney in my district.
Please answer these questions. Thank you all!!! and please keep up the good work
1) No, strictly speaking there is no regulation which would require to sent this letter of intent to sue. Thre are reports posted earlier on this forum based on some immigration attorney's experience that in about 30 % of the cases such a letter was enough. I tried, but seems that I was in the other 70%.DUDE12190 said:
2) I sent this letter only to the USCIS DO director
3) People typically give them about 30 days. I asked them to notify me in 2 weeks if they initiated the expedited name check or else...
4) Some people recommended this but my understanding is that they will do nothing till there is a case filed in the district court. The US Attorney's Office will assign an AUSA to the case after there is a case. Till you sent them only a letter of intent to sue, there is no case to assign it to an AUSA. I may be wrong with this...
paz1960 said:
Thank you Paz. I called the clerk and was told that their docketing has been falling behind a little and I need to wait for another week or two to see it on PACER.
May I ask another question -- Just realized that the summons I got back from the clerk are different. One has her original signature while two other copies only bear a stamp. I took it for granted that the original one was for me and the two other copies for defendents and served all defendents with copies of the stamped one (instead of the signed one). Is that the right way? Also do I need to return any of the summon copies back to the court? -- Read that somewhere on this board some people did that, which worried me since I've no clue why. The clerk refused to answer any of these questions saying these are legal advices.
Thanks much!
There is no formal rule of 2 years. This is just the time what is considered unreasonable delay in several court orders and applies only to WOM lawsuits. For stalled naturalization applications when you file a lawsuit based on 1447(b) you can do this if there is more than 120 days passed since your interview (=examination).cacd07 said:
In my case all the summonses were identical and had both stamps and signatures. I remeber seeing here on the forum that courts require to have the original summonses returned, with the serving info completed. If you look to the summons, on page two you have to fill the information who, how and when served the summons to the named defendant. This has to be filled and returned to the court with some proof of delivery. In some districts (like mine) this portion is at the bottom half of the summons first (and unique)page.cacd07 said:
My Summons only has one page. I did file the Proof of Services for Summons and Complaints with usps receipts and delivery confirmation and got stamped copies from the clerk. I guess I have to dig into the local rules here to see any requirement to return the one page Summons to the court or not -- It would be weird if they gave it to me just to let me return to them...paz1960 said:
need your help
Thank you, wenlock and all other guys for your contribution to this forum.
As I mentioned before, I filed the WOM for My GC this Jan. However, I did not list FBI as the defendant only USCIS, DHS, and attoney general. As you said, USCIS might response back with the reason that USCIS is not handling the name check but FBI is. They might file the motion to dismiss. Do you have any suggestion how to oppose this kind of motion to dismiss. What I can think of is that USCIS is my customer, FBI is not.
I have a pacer account, how can find out which case has the opposite to the motion to dismiss.
To my understanding , after I file the motion to dismiss, the AUSA will fight a rebut, what the next step, I should do?
Thank you very much!
paz1960 said:You can sue with no problem even the Attorney General, because he is in charge to grant you citizenship. But this is not necessary, you will need to send him a set of summons+complaint anyway.
But in my opinion, you should sue the FBI director. I saw a case, when Plaintiff didn't sue the FBI; USCIS basically said that the name check is stuck at FBI, it is not their fault; the judge bought this and said in the opinion & order, that he can't compel FBI to complete the name check, because FBI is not a defendant in the lawsuit.
I respectfully disagree with you when you say that the law is clear. Unfortunately, in my opinion, this whole mess around the name check is created exactly because the law is not sufficiently clear. Let me explain why I think so:
Congress mandated USCIS to perform a "full criminal background check" on each applicant before they can adjudicate the application. This is sneeked in an Appropriation Act for FY98. There is no clear definition, what is a "full criminal background check", who does it, in what timeframe should be done, and what are the consequences if it is not done in due time.
Apparently, up to November 2002, the name check was done simply running your name on the 'main" file database, by a computer program, and the whole process was done in 1-2 days after the tape was submitted to FBI from USCIS. After Nov. 2002, they decided to extend the name check and include the "reference" file searches and all kind of combinations with your first, last, middle name, with different spelling, different DOB etc. You can imagine, how the number of "hits" skyrocketed. Now if somebody got a "hit" an agent, not a computer program, has to manually investigate that hit and determine if there is real derogatory info about the applicant or it is only a "false alarm", like in the vast majority of the cases. Because USCIS pays only $4/ name check request, FBI doesn't have the necessary resourses to work on these manual processing of the flagged cases. And this change in their name check policy is still covered by the same Congressional mandate, from the FY98 Appropriation Act.
I'm not advocating against the name check. This is probably a very important tool to screen out criminals, potential terrorrists, spies and all kind of bad people. They should do this, but in a more efficient way. DHS and FBI would need to go back to Congress and ask to ammend the law to define precisely what should contain a "full criminal background check", who should do it, in what timeframe, what happens if is not done in the mandated timeframe and who pays for the cost. If they need to raise the cost what USCIS is paying to FBI from $4/request to $40/request or $100/request, it's fine. I'm sure that we all agree that we would rather pay $36 or $96 extra in the application fee, than wait for years and pay a lot more after for the lawsuit to force them to act.
The rollercoaster evolution of your mood is normal. I think that we all went through this and you should remember that you will ultimately prevail if you are stron enough and have patience. Failure is not an option. We are here to support each other and first of all, to help each other with (preferably) reliable information. Knowledge is power. (I know a lot more of such slogans, but I will abstain from them in the future).
Thank you, wenlock and all other guys for your contribution to this forum.
As I mentioned before, I filed the WOM for My GC this Jan. However, I did not list FBI as the defendant only USCIS, DHS, and attoney general. As you said, USCIS might response back with the reason that USCIS is not handling the name check but FBI is. They might file the motion to dismiss. Do you have any suggestion how to oppose this kind of motion to dismiss. What I can think of is that USCIS is my customer, FBI is not.
I have a pacer account, how can find out which case has the opposite to the motion to dismiss.
To my understanding , after I file the motion to dismiss, the AUSA will fight a rebut, what the next step, I should do?
Thank you very much!
If you listed the Attorney General as a defendant, you should be fine, because FBI is part of the Department of Justice so Alberto Gonzales is Robert Mueller's boss. The judge can order the Attorney General to instruct FBI to complete the name check in a prescribed timeframe.phlipimi said:
AUSA will file a Motion to Dismiss not likely on the basis that you didn't list FBI as defendant. They will challenge either that USCIS doesn't have a clear ministerial, non-discretionary duty to adjudicate your GC petition in certain timeframe (which is true), so Plaintiff failed to state claim upon which relief can be granted, or/and they will argue that the delay in the adjudication is due to the backlog in the FBI name check process and is not unreasonably long.
Because there is really no defined time limit in any statue (for GC applications), you will need to rely mainly on case law, on previous court decisions in similar cases like yours. wenlock is the specialist on WOM cases, I think that he has lot of such cases in his collection. I concentrated mainly on 1447(b) based lawsuits.
But one recent case I was following (I-485, WOM) which has a happy ending is Dang v. Gonzales, 2:06-cv-00217 in the Eastern District of Washington. You can download the Opposition to Defendants' Motion to dismiss (as well as all the other documents associated to this case) from PACER .
Another successful case with Opposition to Motion to Dismiss is Elkathib v. Bulger, case no. 04-22407-CIV-SEITZ (S. D. Fla. June 6, 2005).
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sksharma76
Registered Users (C)
Just wanted to say thanks to everybody i went ahead and filed my WOM for N400 today it wouldnot have been possible without the help of this forum.I went to the clerk today and gave her my complaint,summons and fees she told me to come back tomarrow and she would have it docketed and summons ready and have a case number for me.I am in 4th circuit court in eastern distrcit of North carolina.I will keep everybody updated on how it goes thanks.