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

Back from initial hearing

Today I had an initial hearing with the judge and AUSA. All together it took 3 minutes. I was asked to give my name, then AUSA said her name and then she briefly explained the nature of my case and told to judge that FBI is planning to file a motion to dismiss the case, since there is no law with the timeframe. After this judge asked me if I understood what she said and if I know what should I do next. I said not really, since juridicial terminology is new to me. Then he told me that if I do not want my case to be dismissed I need to file oposition for the dismission. Then he asked me if I had a lawer. I said - no. Then he said that he would suggest me to hire one, because I need a very strong grounds to explain why I do not want case to be dismissed. So tomorrow I am expecting to receive a letter from AUSA and then I have 14 days to file an opposition.
AUSA told me in the elevator on our way back that if judge will accept my oposition then we will have a real hearing later. Also she told me that she has 100 similar cases on her table and she calls FBI every day to ask the status.
That is it. Nothing new and nothing exciting.
 
kefira said:
Today I had an initial hearing with the judge and AUSA. All together it took 3 minutes. I was asked to give my name, then AUSA said her name and then she briefly explained the nature of my case and told to judge that FBI is planning to file a motion to dismiss the case, since there is no law with the timeframe. After this judge asked me if I understood what she said and if I know what should I do next. I said not really, since juridicial terminology is new to me. Then he told me that if I do not want my case to be dismissed I need to file oposition for the dismission. Then he asked me if I had a lawer. I said - no. Then he said that he would suggest me to hire one, because I need a very strong grounds to explain why I do not want case to be dismissed. So tomorrow I am expecting to receive a letter from AUSA and then I have 14 days to file an opposition.
AUSA told me in the elevator on our way back that if judge will accept my oposition then we will have a real hearing later. Also she told me that she has 100 similar cases on her table and she calls FBI every day to ask the status.
That is it. Nothing new and nothing exciting.
Click to expand...


What court district you reside in?
 
First call to AUSA

O.K. Team here some update on my suit.
Filled case 2/1/2007, AUSA assigned same day.
Called her this morning (2/9/07), she picked the phone her self; she is really a nice person to talk to, spent about 20 to 25 minutes on phone with her. Told me that USCIS and FBI is aware of your suit, also spoke to district USCIS about my case. USCIS is no more asking for expedited name check to FBI because there is already a line for it. I will wait 60 days to see if it is cleared, if not with your permission we will ask for an extension. Afterwards if nothing happened, we will file motion to dismiss. She told me that she did not file a motion to dismiss yet because all of the cases were solved before motion. I asked her that if she spoke to General Counsel in DC, she said, she do not need to because they already aware of your suit. They included you into their list of priority but I do not know when your name will be clear.
She is really nice person. She told me that she understands the reason for these entire law suits. She said she will update me or I can call her.
She also told me that if she’ll file the motion it will be base on “No jurisdiction”, so paz the counter motion that you posted will work. I will be working this week end on it.
Thank you.
 
I have talked to the officer in charge of my application. They said that they pushed my application through however FBI name check came back positive. I already disclosed my arrest by INS, so they are now looking into what the results were outcome was, etc... They said that the only thing holding my application up is a "REP (Rap?) sheet which the original they have has expired, so they requested another of this rep sheet from the FBI. I don't know how long is that going to take to come back, what is the REP sheet? After the rep sheet arrives, which they already requested, they will sit down and evaluate and come to a decision. I am holding my breath and I don't know what else I can do after this.
 
paz my man, need some info

paz my man,
Other than these three cases that you mentioned in your previous post, are there any more cases in Michigan that been remanded to USCIS with specific instruction?

1. Al Saidi v. Jenifer, No. 05-71832, (E.D. Mich. Dec. 23, 2005) (ordering Defendants to adjudicate Plaintiff’s N-400 application in 80 days from the date of the order)
2. Khelifa v. Chertoff, No. 06-10147 (E.D. Mich. Jun. 9, 2006) (instructing USCIS to promptly determine Plaintiff’s N-400 application in 90 days from the date of the order)
3. Ismail v. Jones, No. 2:06-cv-13320-PJD-RSW (E.D. Mich. Oct. 11, 2006) (ordered Defendants to complete in 3 months the necessary security background checks needed to decide the naturalization application).


Had a discussion with AUSA today and she said that in Michigan judges are remanding back to USCIS by saying “adjudicate the application immediately as soon the checks completed by FBI”. I told her that there are three cases (paz that you told me) which have been remanded with very specific instruction and she was not aware of them. She asked me the case numbers which I gave it to here.
So, please let me know if there are any more in Michigan with specific instruction.
Thank you so much for your help.

riz
 
786riz said:
paz my man,
Other than these three cases that you mentioned in your previous post, are there any more cases in Michigan that been remanded to USCIS with specific instruction?

1. Al Saidi v. Jenifer, No. 05-71832, (E.D. Mich. Dec. 23, 2005) (ordering Defendants to adjudicate Plaintiff’s N-400 application in 80 days from the date of the order)
2. Khelifa v. Chertoff, No. 06-10147 (E.D. Mich. Jun. 9, 2006) (instructing USCIS to promptly determine Plaintiff’s N-400 application in 90 days from the date of the order)
3. Ismail v. Jones, No. 2:06-cv-13320-PJD-RSW (E.D. Mich. Oct. 11, 2006) (ordered Defendants to complete in 3 months the necessary security background checks needed to decide the naturalization application).

Had a discussion with AUSA today and she said that in Michigan judges are remanding back to USCIS by saying “adjudicate the application immediately as soon the checks completed by FBI”. I told her that there are three cases (paz that you told me) which have been remanded with very specific instruction and she was not aware of them. She asked me the case numbers which I gave it to here.
So, please let me know if there are any more in Michigan with specific instruction.
Thank you so much for your help.

riz
Click to expand...
Hello 786riz,
Unfortunately, I don't have more such cases (but neither additional cases where the remand was meaningless, in the E.D. of MI). Believe me, I would put them in that draft of the Opposition!
 
Last edited by a moderator:
Bushmaster said:
I have talked to the officer in charge of my application. They said that they pushed my application through however FBI name check came back positive. I already disclosed my arrest by INS, so they are now looking into what the results were outcome was, etc... They said that the only thing holding my application up is a "REP (Rap?) sheet which the original they have has expired, so they requested another of this rep sheet from the FBI. I don't know how long is that going to take to come back, what is the REP sheet? After the rep sheet arrives, which they already requested, they will sit down and evaluate and come to a decision. I am holding my breath and I don't know what else I can do after this.
Click to expand...
This is from the FBI web page:

An FBI Identification Record, often referred to as a Criminal History Record or Rap Sheet, is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service. If the fingerprints are related to an arrest, the Identification Record includes name of the agency that submitted the fingerprints to the FBI, the date of arrest, the arrest charge, and the disposition of the arrest, if known to the FBI. All arrest data included in an Identification Record is obtained from fingerprint submissions, disposition reports and other reports submitted by agencies having criminal justice responsibilities.
 
Bushmaster said:
I have talked to the officer in charge of my application. They said that they pushed my application through however FBI name check came back positive. I already disclosed my arrest by INS, so they are now looking into what the results were outcome was, etc... They said that the only thing holding my application up is a "REP (Rap?) sheet which the original they have has expired, so they requested another of this rep sheet from the FBI. I don't know how long is that going to take to come back, what is the REP sheet? After the rep sheet arrives, which they already requested, they will sit down and evaluate and come to a decision. I am holding my breath and I don't know what else I can do after this.
Click to expand...


FBI RAP sheet comes from FBI fingerprint department not from name check. They just maintain one's arrest record. If you are arrested for any reason it shows up in RAP sheet.

An FBI Identification Record, often referred to as a Criminal History Record or Rap Sheet, is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service. If the fingerprints are related to an arrest, the Identification Record includes name of the agency that submitted the fingerprints to the FBI, the date of arrest, the arrest charge, and the disposition of the arrest, if known to the FBI. All arrest data included in an Identification Record is obtained from fingerprint submissions, disposition reports and other reports submitted by agencies having criminal justice responsibilities.
 
Bushmaster said:
I have talked to the officer in charge of my application. They said that they pushed my application through however FBI name check came back positive. I already disclosed my arrest by INS, so they are now looking into what the results were outcome was, etc... They said that the only thing holding my application up is a "REP (Rap?) sheet which the original they have has expired, so they requested another of this rep sheet from the FBI. I don't know how long is that going to take to come back, what is the REP sheet? After the rep sheet arrives, which they already requested, they will sit down and evaluate and come to a decision. I am holding my breath and I don't know what else I can do after this.
Click to expand...

In your congressman inquiries did they ever mention to you the status of your fingerprint check like wether fingerprints cleared or not ? Rap sheets seems to be associated with fingerprint checks at least from the FBI info site so do you know if your FPs cleared (results come within a day of giving the FP)
 
I just went to the clerk office this afternoon to drop the certificate of service and original summons. When I got home I checked the pacer. I found all the files were already in the docket report. The following is the answer due for defendants,

Robert Mueller served on 1/29/2007, answer due 2/20/2007
Paul Novak served on 1/24/2007, answer due 2/13/2007
Emilio Gonzalez served on 2/5/2007, answer due 2/26/2007
Michael Chertoff served on 2/2/2007, answer due 2/22/2007

Looks like they only got 20 days to answer my complaint. Have you seen similar answer due like that? What I need to do when the first answer due comes next tuesday? Can I call the AUSA to get an answer?

Thanks! Have a nice weekend
 
paz1960 said:
There might be a possibility, which has to be explored. In many district courts (maybe in all, I don't know) there is a so called "Roseboro notice" in effect.

<<A “Roseboro Notice” should be filed with any dispositive or partially dispositive motion in which a pro se party is involved. See Local Civil Rule 7(K). >> (this is form the Eastern Virginia District, Richmond division court web site).

As I remember, this means that if you are a Pro Se Plaintiff and the defendants file, e.g., a Motion to Dismiss, they (or the court?) have to send you a notice that Plaintiff has XX days to Oppose the Motion, and otherways the Motion will be considered unopposed and treated accordingly.

Because you didn't receive any such notification, if this "Roseboro notice obligation" is in effect in your district, you can ask the court to accept your Opposition even now, when the deadline passed. I would give it a try...
Click to expand...

Paz et al,

Just an update to my case. I went to see a very famous lawyer in our area who has won quite a few WOM cases. What she told me is that 1) I have lost the chance to file an opposition to dismiss; 2) even the case is dismissed finally by the judge, we can file it again providing evidence that there are strong grounds based on which the case should be processed. So I will be waiting to see how it goes.

Meanwhile, I received a notice to do my third FP next week. The lawyer said this is a good sign that USCIS is working on my case. To summarize, lawsuit is still a good way to fight for our rights. Even USCIS becomes tougher, they still look after the lawsuit.


Olin
_______
I-485 name check pending since March 2003
Filed WOM on October 23, 2006
AUSA filed Motion to Dismiss on Dec. 23, 2006
 
bobsunzi said:
I just went to the clerk office this afternoon to drop the certificate of service and original summons. When I got home I checked the pacer. I found all the files were already in the docket report. The following is the answer due for defendants,

Robert Mueller served on 1/29/2007, answer due 2/20/2007
Paul Novak served on 1/24/2007, answer due 2/13/2007
Emilio Gonzalez served on 2/5/2007, answer due 2/26/2007
Michael Chertoff served on 2/2/2007, answer due 2/22/2007

Looks like they only got 20 days to answer my complaint. Have you seen similar answer due like that? What I need to do when the first answer due comes next tuesday? Can I call the AUSA to get an answer?

Thanks! Have a nice weekend
Click to expand...
Unfortunately, the clerk in the court made a mistake. When you sue the US Government, the response time is 60 days counting from the date you served the US Attorney's Office. Did you serve them? You posted only the serving time of the Defendants, in such lawsuits the most important is the date when you served the US Attorney's Office.

20 days is the time limit in civil suits where the defendants are other than the US government. I'm sure that AUSA will complain about this and will file a motion to extend at least to the legal 60 days. You can see this time limit in the Federal Rules of Civil Procedure.
 
Olin said:
Paz et al,

Just an update to my case. I went to see a very famous lawyer in our area who has won quite a few WOM cases. What she told me is that 1) I have lost the chance to file an opposition to dismiss; 2) even the case is dismissed finally by the judge, we can file it again providing evidence that there are strong grounds based on which the case should be processed. So I will be waiting to see how it goes.

Meanwhile, I received a notice to do my third FP next week. The lawyer said this is a good sign that USCIS is working on my case. To summarize, lawsuit is still a good way to fight for our rights. Even USCIS becomes tougher, they still look after the lawsuit.


Olin
_______
I-485 name check pending since March 2003
Filed WOM on October 23, 2006
AUSA filed Motion to Dismiss on Dec. 23, 2006
Click to expand...
Did you tell to this lawyer that you never received the "Roseboro Notice" from the court or defendants that you have to file an Opposition to the Motion to Dismiss?

If this "Roseboro Notice" is not required in your district or you got some sort of notification when the Motion was served to you, there is indeed no possibility to file an Opposition.

You can file again the same lawsuit if this one is dismissed only if the dismissal is not with prejudice.

But as a general rule, I would recommend to trust your lawyer (if you decided to hire her). An immigration lawyer is a professional and knows way lot more about these issues and the general litigation procedures than we know here on this forum. We are all amateurs, who maybe learned couple of things about one very specific type of lawsuit but still, only amateurs...
 
paz1960 said:
Did you tell to this lawyer that you never received the "Roseboro Notice" from the court or defendants that you have to file an Opposition to the Motion to Dismiss?

If this "Roseboro Notice" is not required in your district or you got some sort of notification when the Motion was served to you, there is indeed no possibility to file an Opposition.

You can file again the same lawsuit if this one is dismissed only if the dismissal is not with prejudice.

But as a general rule, I would recommend to trust your lawyer (if you decided to hire her). An immigration lawyer is a professional and knows way lot more about these issues and the general litigation procedures than we know here on this forum. We are all amateurs, who maybe learned couple of things about one very specific type of lawsuit but still, only amateurs...
Click to expand...

Can you explain what's different between "with prejudice" and "without prejudice"?
 
While defending their fee increase,USCIS finally conceded that the delay in name check is due to the lack of funding.

"• Improving the timeliness of background checks by expanding current name check resolution capacity, establishing co-located name check resolution capacity, and fully funding the FBI background check process"

The link is courtesy of dragonhead.
http://www.uscis.gov/files/nativedo...February_07.pdf

I think we should support the fee increase if USCIS can guarantee that FBI will clear the name check within a timeframe (say 3 months) after the fee increase.
 
Help on opposition to Motion to Dismiss

PAZ1960, Wenlock and other experts,
Please help! I filed WOM pro se on 12/11/2006 at the US District Court for the Northern District of Texas. I called the US attorney two weeks ago, but he refused to talk with me. Today, on Feb, 9, 2007, I checked the PACER and found out that the US attorney have already filed the Motion To Dismiss. PAZ1960, Wenlock and other big names here, would you please spare some time reading the attached file and give me some advice on how to prepare the Opposition.

Olin, since we are in the same district. Can you share with me your lawyer’s contact information, and how much she will charge for the service?
 
myang1969 said:
Can you explain what's different between "with prejudice" and "without prejudice"?
Click to expand...
Here is the detailed explanation from http://www.answers.com/topic/dismissal

Dismissal without Prejudice
A plaintiff is not subsequently barred from suing the same defendant on the same cause of action when a court grants a dismissal without prejudice of his or her case. Such a dismissal operates to terminate the case. It is not, however, an ultimate disposition of the controversy on the merits, but rather it is usually based upon procedural errors that do not substantially harm the defendant's rights. It effectively treats the matter as if the lawsuit had never been commenced, but it does not relieve a plaintiff of the duty of complying with the statute of limitations, the time limit within which his or her action must be commenced. A dismissal without prejudice is granted in response to a notice of dismissal, stipulations, or a court order.

Dismissal with Prejudice
A dismissal with prejudice is a judgment rendered in a lawsuit on its merits that prevents the plaintiff from bringing the same lawsuit against the same defendant in the future. It is a harsh remedy that has the effect of canceling the action so that it can never again be commenced. A dismissal with prejudice is res judicata as to every issue litigated in the action.
The possibility of such a dismissal acts as a deterrent to the use of dilatory tactics by a plaintiff who wants to prejudice a defendant's case by unreasonably hindering the disposition of the action from the time of the filing of the action to the actual trial of the issues. It is also designed to minimize, if not eliminate, the congestion of court calendars caused by unnecessary delays in pending cases. Because it is regarded as a drastic remedy, courts grant dismissals with prejudice only in the most egregious cases in response to a motion brought by a defendant or by a court sua sponte, or on its own will.
 
paz1960 said:
Here is the detailed explanation from http://www.answers.com/topic/dismissal

Dismissal without Prejudice
A plaintiff is not subsequently barred from suing the same defendant on the same cause of action when a court grants a dismissal without prejudice of his or her case. Such a dismissal operates to terminate the case. It is not, however, an ultimate disposition of the controversy on the merits, but rather it is usually based upon procedural errors that do not substantially harm the defendant's rights. It effectively treats the matter as if the lawsuit had never been commenced, but it does not relieve a plaintiff of the duty of complying with the statute of limitations, the time limit within which his or her action must be commenced. A dismissal without prejudice is granted in response to a notice of dismissal, stipulations, or a court order.

Dismissal with Prejudice
A dismissal with prejudice is a judgment rendered in a lawsuit on its merits that prevents the plaintiff from bringing the same lawsuit against the same defendant in the future. It is a harsh remedy that has the effect of canceling the action so that it can never again be commenced. A dismissal with prejudice is res judicata as to every issue litigated in the action.
The possibility of such a dismissal acts as a deterrent to the use of dilatory tactics by a plaintiff who wants to prejudice a defendant's case by unreasonably hindering the disposition of the action from the time of the filing of the action to the actual trial of the issues. It is also designed to minimize, if not eliminate, the congestion of court calendars caused by unnecessary delays in pending cases. Because it is regarded as a drastic remedy, courts grant dismissals with prejudice only in the most egregious cases in response to a motion brought by a defendant or by a court sua sponte, or on its own will.
Click to expand...
Thank you so much!
I notice most of volunteer stipulate dismissal are "with prejudice" including yours. Do we need fight AUSA for "without prejudice" since I may have issue with USCIS again for citezenship after 5 years (hehe)?
 
You must log in or register to reply here.
Top