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

AUSA filed the "Answer" not "motion"!

Hi Paz 1960 and other Gurus!

I filed my WOM in NM 11/22/2006 and my 60 days finished on 1/30/2007 and AUSA filed his "answer" to my (plaintiff) complaint on the last day. Basically it is a generic response with request to dismiss the case due to lack of subject matter jurisdiction etc. I am the 3rd WOM case in this state and response is similar to previous cases. I have some questions for the forum:

1- My understanding from different posts from Paz is that answer does not need an answer. So I dont need to file anything. Is this correct? In the local NM Guide for Pro Se Litigants, under section "Filing Motions" it states "failure to file and serve a response in opposition to any motion constitutes a consent to grant the motion". I just wanted to make sure that I have the difference between two cleared.

2-The next step in my opinion is initial schaduling conference and discovery plan. Should I suggest to AUSA that I am agreeeable to an extension? or I should let the events unfold itself.

I appreciate your input.

Thanks

sfdurrani

I-485 pending since Oct 2004
WOM filed 11/22/2006
Proof of service 11/30/2006
 
information back from AUSA

After served C & S to defendants and US Attorney on 1/24/2007, I got a letter from AUSA today, which says "please be advised that CIS will no longer request an expedited FBI name check, or otherwise expedite the processing of an adjustment of status application, based on the filing of a mandamus action. Accordingly, you should expect that we will be vigorously defending this action and proceeding with the normal course of litigation." Did you guys get a similar message like this? Please share your thoughts
 
sfdurrani said:
Hi Paz 1960 and other Gurus!

I filed my WOM in NM 11/22/2006 and my 60 days finished on 1/30/2007 and AUSA filed his "answer" to my (plaintiff) complaint on the last day. Basically it is a generic response with request to dismiss the case due to lack of subject matter jurisdiction etc. I am the 3rd WOM case in this state and response is similar to previous cases. I have some questions for the forum:

1- My understanding from different posts from Paz is that answer does not need an answer. So I dont need to file anything. Is this correct? In the local NM Guide for Pro Se Litigants, under section "Filing Motions" it states "failure to file and serve a response in opposition to any motion constitutes a consent to grant the motion". I just wanted to make sure that I have the difference between two cleared.

2-The next step in my opinion is initial schaduling conference and discovery plan. Should I suggest to AUSA that I am agreeeable to an extension? or I should let the events unfold itself.

I appreciate your input.

Thanks

sfdurrani

I-485 pending since Oct 2004
WOM filed 11/22/2006
Proof of service 11/30/2006
Click to expand...
Hello sfdurrani,
You are right; after AUSA files an ANSWER, you don't have to file anything. The Answer is not a motion, which needs to be opposed. According to the FRCP, all allegations in an answer are automatically denied by the Plaintiff.

The next move now will come from the Court. There is no reason why you or AUSA could ask for an extension. AUSA could ask for an extension in a Motion to Extend, to have more time to answer your complaint or to file any dispositive motion. But now that (s)he answered your complaint, there is no room to ask for extension.

In my opinion, the next move will be an initial case management conference or something like this (sometimes is called scheduling conference or pre-hearing; these are - in my understanding - essentially the same events and are more important in other types of lawsuits). In these type of lawsuits essentially there are no factual disputes, it is a matter of interpreting the law. Not much can be discovered, of course, if you reach that phase, you should ask for all kind of documents, like your Alien file or the information from FBI which prevented them to clear your background check in the first round. They certainly would object and will not disclose especially this second info, maybe only to the judge.

It will be very intersting to closely watch these cases where presumably USCIS didn't ask FBI to expedite the name check of the Plaintiff.

Do you know anything about the status of your name check (obviously it is still pending, but did they ask to expedite and if yes, when).

I wish you good luck!
 
whatha said:
I agree with u paz1960 that it is not as easy as "copy and paste" :) actually I was trying to say that after reading this blog and learning from pros like yourself it is fairly easy to go pro se. I have second interview next week which will be video taped and will last 2 hours. Even though I have not heard any thing back from the judge yet which court told me last month my case after US Attorney filed a rebuttal was reffered to judge.
Click to expand...
I'm humbled that you call me a pro, but I am not. I am an amateur and I don't have any desire to change profession and become an immigration specialist :) . And as you saw, there are many relatively simple questions where I don't know the answer. I will always tell to people when I don't know the answer and I am just trying to guess and use common sense. This may not always work in legal matters.

About your second videotaped interview: as aka808 said about his/her similar experience, don't get too stressed but be very careful what you say and stick with the details you put in your application. If you don't have any problems to conceal, you should be fine. They will certainly look for everything they can use against you to deny your application, but I'm convinced that they will be fair and they will not try to invent anything, just to deny you. Remember, that the video taping actually protects you too, because if there is any later dispute, there is a hard evidence, not only "I said, you said".
 
bobsunzi said:
After served C & S to defendants and US Attorney on 1/24/2007, I got a letter from AUSA today, which says "please be advised that CIS will no longer request an expedited FBI name check, or otherwise expedite the processing of an adjustment of status application, based on the filing of a mandamus action. Accordingly, you should expect that we will be vigorously defending this action and proceeding with the normal course of litigation." Did you guys get a similar message like this? Please share your thoughts
Click to expand...
This is the fiirst time I saw reporting such a letter, although we already knew about this change in USCIS' policy and that this will be the consequence. I still consider that this letter is more an attempt to intimidate you, but you should not get scared. Just do your homework, study, prepare yourself for the "normal course of litigation".
 
Expedited name check?

Hi Paz1960!
As always I really appreciate your answer to my questions. It is nice that you you are still with this forum even though your own case is approved. We all appreciate that.
I have been in touch with the AUSA since mid December (two weeks after he was served). Initially she told me that all my information has been sent to CIS counsel attorney. From this I assume that CIS should have requested expedited name check. I kept on bugging her every week (e-mail and phone) and last week she told me that since she has not received any response from CIS so she will have to file an answer. She has been very nice and polite and responds promptly to e-mails. I am just as hopeful as everyone else. The end WOM case in this state for WOM filed 9/25/2005 has recently got his name cleared (according to AUSA) only after 60 days of extension. I am thinking that the expedited name check is on average taking 3-4 months. Makes me wonder why they still call it "expedited"!!

sfdurrani

I-485 pending for name check since 0ct,2004
WOM filed 11/22/2006
AUSA served 11/30/2006
 
thanks paz

paz1960 said:
This is the fiirst time I saw reporting such a letter, although we already knew about this change in USCIS' policy and that this will be the consequence. I still consider that this letter is more an attempt to intimidate you, but you should not get scared. Just do your homework, study, prepare yourself for the "normal course of litigation".
Click to expand...

That's what I told my wife. Actually this letter will encourage me to do more research. Now it's the time to burn some midnight oil. Thanks paz!

bobsunzi
 
sfdurrani said:
Hi Paz1960!
As always I really appreciate your answer to my questions. It is nice that you you are still with this forum even though your own case is approved. We all appreciate that.
I have been in touch with the AUSA since mid December (two weeks after he was served). Initially she told me that all my information has been sent to CIS counsel attorney. From this I assume that CIS should have requested expedited name check. I kept on bugging her every week (e-mail and phone) and last week she told me that since she has not received any response from CIS so she will have to file an answer. She has been very nice and polite and responds promptly to e-mails. I am just as hopeful as everyone else. The end WOM case in this state for WOM filed 9/25/2005 has recently got his name cleared (according to AUSA) only after 60 days of extension. I am thinking that the expedited name check is on average taking 3-4 months. Makes me wonder why they still call it "expedited"!!

I was told by AUSA that even expedite name check list got backlog. You just verify this. For AUSA, they have to deal with plaintiffs to buy some time. See for your case, they maybe expedite namech check already, but due day is coming, they have to file an answer, until conference kick in, they maybe got another month; If they are lucky, second conference will give them another month... This is maybe the strategy they using to finish their "Expedite" backlog in 3~4 monthes. I dont know if PAZ and anybody else can have some strategy to handle it.

sfdurrani

I-485 pending for name check since 0ct,2004
WOM filed 11/22/2006
AUSA served 11/30/2006
Click to expand...
 
Filed mid December. AUSA assigned beginning of January.
Asked her on the phone 2 weeks ago if expedite name check requested.
She said that she emailed CIS and waiting for instructions and will call when
CIS responds.
60 days will end a week from now. If I don't get any response, is it to my
favor to file for default judgment or should I bug AUSA more?
Thanks
 
end of lawsuit?

Now It looks like what I heard comes to true. I was about to file my lawsuit, as many of people are saying, now I have to do more research!

I could not understand why USCIS could stop expediting name checking legally even with lawsuit? It means they are making rules, and also they are players. That sounds not correct in US. Also that sounds not fair to all of us. As we all know, FBI always give us the wellknown reason, fighting with terrorist, but how do we know this is not just an execuse? how do we know they are doing their job and not abusing their power? First, FBI decline to tell us how long will the name checking take, 4 months, 6 months, 1 year, 2 years or more? what is the bottom line? for example, I was stuck for 29 months and I believe I am not only unlucky guy. Second, I strongly suspect they could just stop doing this, that really sound unfair to us. It should have some way to prevent gorvement from abusing their power, not just waiting there and let them play. Our problem is that we are not farmiliar with all rules. Hopefully any expert could help us. Please let all of us know if you do know any rule could help us. thanks in advance.
 
Thanks

Hi Paz,
Really appreciate you are still coming back to this forum after your
case is done. We need you great hand to help and input.
Really appreciate !!!

liuym

paz1960 said:
I saw several such cases.
Click to expand...
 
Expedited FBI Name Check abolished?

bobsunzi said:
That's what I told my wife. Actually this letter will encourage me to do more research. Now it's the time to burn some midnight oil. Thanks paz!

bobsunzi
Click to expand...

Hi Bobsunzi,

my AUSA, who evidently is very nice and kindly asked whether I would join him in a motion of enlargement of time by 15 days for my WOM, told me that the FBI is planning to abolish the expedited name check in the near future. It is my understanding that this action has not taken place yet as I was just added to the expedited list by the USCIS.
Having the case in court should, and again, this is my personal opinion, should and will expedite the process. However, these letters might just serve as deterrent! Nonetheless, listen to Paz and prepare for the next step.
 
opinions & orders part 3

This is part 3 of the opinions and orders one could use in opposing a Motion to Dismiss or Remand filed by AUSA in a 1447(b) lawsuit.
 
Saarlaender said:
Hi Bobsunzi,

my AUSA, who evidently is very nice and kindly asked whether I would join him in a motion of enlargement of time by 15 days for my WOM, told me that the FBI is planning to abolish the expedited name check in the near future. It is my understanding that this action has not taken place yet as I was just added to the expedited list by the USCIS.
Having the case in court should, and again, this is my personal opinion, should and will expedite the process. However, these letters might just serve as deterrent! Nonetheless, listen to Paz and prepare for the next step.
Click to expand...
The real factor is: there are 4000 WOM cases pending in USA. USCIS can't using automatic expedite policy anymore. Even they want to, there will be a average 3 ~4 monthes waiting time for expedite name check to be cleared. At this time, they have to stop the backlog accumulation of expedite name check. Immaging that court order USCIS and FBI to finish name check in 60 ~90 days, they will be busted. Stop name check expedite (they can never stop fullly) will buy some time for USCIS, eventrully, every WOM can be solved in 3~6 monthes range. The next thing they can do is simplfy name check process. USCIS are in big trouble, thousands of WOM already did enough damage to goverment reputation. Somebody should resign.
 
quick question guys

after you serve the US att and get the green slips do you have to file anythintg with the court?
 
mredil24 said:
after you serve the US att and get the green slips do you have to file anythintg with the court?
Click to expand...
A good rule of thumb:
1.Whenever you file something with the court, you serve a copy to the US Attorney's Office.
2. Whenever you serve a document to Defendants counsel (AUSA), you file a proof of service with the court.
 
mredil24 said:
after you serve the US att and get the green slips do you have to file anythintg with the court?
Click to expand...


yes you have to file certificate of service with Court. This thing confirms when your 60 days start. Some people say they start ones you file local AUSA but in my case it started from the day last defendent was served.

It is good idea to send copy of service to AUSA. This way he knows when his answer is due.

Once Court clerk dock your certificate of service it will send you email when is answer due if you have electronic filing enabled.
 
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