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

gcbez said:
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.

I'm pessimistic about this and feel that all of this is just justification why they have to increase fee by 80%-90% as well as all this PR action ( XXI etc) is oriented. The reason is because prior increases were only 5-10%. I don't see program behind this, only calculations about profits. I think this way because you already know that USCIS was mandated by President to eliminate backlog by Oct 2006. What do we have in reality? 135K of applications were simply dropped from backlog with excuse that nothing could be done by USCIS since they're delayed by FBI - different agency that didn't have any mandate. We paid $400 for the place on this endless bench but from Oct 2007 new folks will have same place for $675.

I hope I'm wrong.
 
One month ago, after talking with my immigration attorney on my plan of filing lawsuit againt the FBI and USCIS, he suggested me to send a warning letter to the US attorney in my district before I file any legal lawsuit. I did it according to his suggestion. However, so far I have not received any response from the local US attorney office. I called them twice. They told me that they did not deal with immigration issue. I need to ask immigration officer for information or help. I told them that I sent a warning letter of filing lawsuit to them and would like to check the status. They told me they do not want to help people in immigration issue and if I file a lawsuite, they will stand for the federal agency. It sounds very tough. Also, I heard that the FBI, USCIS and AUSA became tougher than before now. Except those who filed the lawsuit have to wait for longer, some people even received a notice for hearing. I have no idea about hearing. But it sounds scary. And I am worried what will happen if peole lose the hearing. what to do and how much possiblity to win the lawsuit if people receive a hearing notice. I am asking so many questions because I am considering to file a lawsuit against the FBI and USCIS regarding my name check for my green card application soon but have some concerns. I would greatly appreciate your answer.
 
I actually talked to two officers today, one was the lady in charge of military applications (who was going on leave today until March if I understood correctly) and the second lady was the Congressional Liaison person who answers to the congressional staff like senators, congresspeople.

My main reason was to find out, since I requested a name change, when would the court ceremony take place in my district. She looked and said "July 31" I said "we can't do that because I will be deployed already most likely by then" She proceeded to hang up in an attitude I perceived as "well, though shit for you!" I kept asking questions. After getting my alien number, to one of them she said well we got your FBI name check back and results were positive, which I again perceived as good, saying "oh that is good then" you know, being positive, but it was the other way around I guess like an HIV test, she said "no that is NOT good" She mentioned about the rap sheet and giving the file to the congressional liaison. Most of what I talked with her is kind of blank to me right now as I was kind of nervous anyway. Every word I said, she proceeded to hang up by saying "alright? ok?" My conversation with the liaison lady was more comforting, she painstakingly explained the procedure, being military automatically brings you in front of everyone, and that is what they did with my application. FBI name checks and rap sheet are not the same thing, the name check results indicated my 2001 arrest for the overstay visa. They had fingerprints in file, I do not need to give new fingerprints however the rap sheet had expired therefore they requested a new one, my question was of course how long, fearing another 3 years, she said about 1-2 weeks. She said at the someone will call me from Atlanta to go in whenever possible which I assumed for the oath ceremony. I don't have anything that they don't already know in that rap sheet, as a matter of fact I have one of them that has been done for my military enlistment, it clearly indicates the date, agency and location of the arrest.

Still, I am nervous as hell, because those words of the lady who is in charge of military applications "No, that is not good" rings through my mind, I wonder if she meant "we are going to deny this case" And on the other hand, liaison lady's comment about someone would be calling me and setting up a date comforts me, but negative takes over the positive.

So yet again I am in limbo, at least very close to a decision. A military friend of mine of whose N400 I prepared for the most part back in October, got an interview notice for me March 6 and most likely same day oath and naturalization.
 
seagull009 said:
One month ago, after talking with my immigration attorney on my plan of filing lawsuit againt the FBI and USCIS, he suggested me to send a warning letter to the US attorney in my district before I file any legal lawsuit. I did it according to his suggestion. However, so far I have not received any response from the local US attorney office. I called them twice. They told me that they did not deal with immigration issue. I need to ask immigration officer for information or help. I told them that I sent a warning letter of filing lawsuit to them and would like to check the status. They told me they do not want to help people in immigration issue and if I file a lawsuite, they will stand for the federal agency. It sounds very tough. Also, I heard that the FBI, USCIS and AUSA became tougher than before now. Except those who filed the lawsuit have to wait for longer, some people even received a notice for hearing. I have no idea about hearing. But it sounds scary. And I am worried what will happen if peole lose the hearing. what to do and how much possiblity to win the lawsuit if people receive a hearing notice. I am asking so many questions because I am considering to file a lawsuit against the FBI and USCIS regarding my name check for my green card application soon but have some concerns. I would greatly appreciate your answer.
Everyone of us was struggling for a long time before file the lawsuit to against goverment agency. They are so big and so powerful. We go through INFOPASS, Senator's Office, Sending letters to Diretor of USCIS, Frist Lady, you even send a warning letter, but all these steps can do nothing to compel USCIS move our cases. A thousand of time, I told myself, forget about this green card, I just need focus on my job, my family, it will come someday, but another thousand of time, I woke up in the middle night, and ask myself, what 's going happen, should I do something to end this pain? Nobody like this lawsuit business, it 's tough and pain, but you have to stand up and action, otherwise, this nightmire will go with you forever. I can tell you, this justice system is not a failure as USCIS, most of time, it works. If you stand still and make your point infront of judge, you will win you deserved. As PAZ mentioned in his comments again and again, you need study hard and make your point strongly. Dont worry, the worst case is Judge remand your case back to USCIS without instruction, you go back your start point, that's all. Good Luck!
 
Study this case, find it in pacer and see what his lawyer answered
http://www.google.com/url?sa=t&ct=r...ZtHclOUId4q7_104=&sig2=coCqRaMm6rww3h3zO5zC-w

veryfree said:
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?
 
veryfree said:
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?


Please post relief section of your complaint. Defendents are trying to use Real ID act for your case dismissal. Did you asked for your application adjudication in your relief section or you asked for approval notice?

Remember you can not ask them to provide approval of your application under mandamus act you can only ask for adjudication.

Adjudication is the process that leads to approval or denial.

Other then that it is standard motion to dismiss no worries
 
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...

Yes, whenever she heard that I did not respond within 20 days she told me my case is over. The Roseboro Notice does not apply in Texas. She suggested me to wait for another three months and then file another WOM in a different division (note: Northern Texas District has several divisions).
 
veryfree said:
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?

Her name is Karen Pennington. There are several situations for the fees, send me a PM and we can talk on the phone if you wish. But the general fee for opposition is $2000, which I think is reasonable.
 
Last edited by a moderator:
veryfree said:
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?

I also received today motion to dismiss my case. I am planning to start writing something this weekend. May be we can together come up with some meaningfull oposition.
 
z350 said:
I'm pessimistic about this and feel that all of this is just justification why they have to increase fee by 80%-90% as well as all this PR action ( XXI etc) is oriented. The reason is because prior increases were only 5-10%. I don't see program behind this, only calculations about profits. I think this way because you already know that USCIS was mandated by President to eliminate backlog by Oct 2006. What do we have in reality? 135K of applications were simply dropped from backlog with excuse that nothing could be done by USCIS since they're delayed by FBI - different agency that didn't have any mandate. We paid $400 for the place on this endless bench but from Oct 2007 new folks will have same place for $675.

I hope I'm wrong.

From where did u get these numbers? I need to file opposition to dismiss my case and I think I can use it, specially "hat USCIS was mandated by President to eliminate backlog by Oct 2006"
Thank you in advance
 
Update on my case

An update on my case. I filed WOM on Nov. 20th, and all defendents received the summon on Nov. 27th. USAS filed answer on Jan. 26th and then I checked with the court, the clerk told me that the USAS I have been working with retires on Jan. 31st. Today, an new USAS is assigned to my case and we scheduled a tele-conference on March 1st. Is there anything I should prepare for the teleconference? Also, I talked to the new USAS and she said she hasn't heard anything about my case, she needs to make some calls before she can tell me the status of my case. And she will be out of town next a couple of weeks, so, she will get back to me,say in two weeks.

Should I do something or just wait?
 
veryfree said:
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?
Please find attached several documents from Elkatib v. Bulger. This was a similar case as yours and Plaintiff was represented by a professional lawyer. They won this case and the Court issued an order to compel defendants to complete background check and adjudicate Plaintiff's petition for AOS. You can download from PACER the missing documents of this case. AUSA used the same arguments in the motion to dismiss as in your case. I think that if you follow the TWO oppositions posted below, you should be able to fight the Motion filed by your AUSA.
 
The relief section

wenlock said:
Please post relief section of your complaint. Defendents are trying to use Real ID act for your case dismissal. Did you asked for your application adjudication in your relief section or you asked for approval notice?

Remember you can not ask them to provide approval of your application under mandamus act you can only ask for adjudication.

Adjudication is the process that leads to approval or denial.

Other then that it is standard motion to dismiss no worries

Here is the relief section:
"requiring Defendants to properly adjudicate Plaintiff’s and his wife’s applications for action on an approved petition;

requiring Defendants to provide the Plaintiff with a Notice of Approval.

awarding Plaintiff reasonable attorney’s fees and costs of Court pursuant to the Equal Access to Justice Act.

Granting such other relief at law and in equity as justice may require."

I used a sample complaint post earlier on this board without carefully study. Now I realize it is a big mistake. Do I still have a chance?
 
thanks paz

paz1960 said:
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.

I served the US Attorney's Office on 1/24/2007. But the clerk didn't put an answer due for him. Is this normal or do I need to talk to the clerk to mention this mistake?

Thanks paz
 
veryfree said:
Here is the relief section:
"requiring Defendants to properly adjudicate Plaintiff’s and his wife’s applications for action on an approved petition;

requiring Defendants to provide the Plaintiff with a Notice of Approval.

awarding Plaintiff reasonable attorney’s fees and costs of Court pursuant to the Equal Access to Justice Act.

Granting such other relief at law and in equity as justice may require."

I used a sample complaint post earlier on this board without carefully study. Now I realize it is a big mistake. Do I still have a chance?

Now you know why defendents used Real ID act for your opposition. You are asking for approval notice means positive outcome of your pending application. Under mandamus act you are not allowed to ask court about favourable out come of your case you can just ask for adjudication.

This again underlines importance of studying and research before filling complaints. Those days are over when you file complaint and your case will get adjudicated not AUSA started fighting so they are looking for these kind of loop holes in plaintiff's complaint.

Still it is not a big deal you can fix this when you file opposition to motion to dismiss you can mention that you are withdrawing that portion from complaint where you ask for approval. Just highlight you are asking for adjudication of your application. Adjudication is a process that can lead to denial or approval. Adjudication is not a descretionary measure it is mandated. see following

A mandamus plaintiff must demonstrate that: (1) he or she has a clear right to the relief requested; (2) the defendant has a clear duty to perform the act in question; and (3) no other adequate remedy is available. Iddir v. INS, 301 F.3d 492, 499 (7th Cir. 2002). Under the Mandamus Act, the court may compel the government to take action, but the court cannot compel the agency to exercise its discretion in a particular manner, nor can it grant the relief the plaintiff seeks from the agency.

Send me personal message with your email. I will send you some important notes and recommendation about preparing Motion to oppose. Don't worry you can still win this case.
 
gmlvsk said:
Study this case, find it in pacer and see what his lawyer answered
http://www.google.com/url?sa=t&ct=r...ZtHclOUId4q7_104=&sig2=coCqRaMm6rww3h3zO5zC-w
I'm surprised, why Plaintiff asked FBI to issue the Alien Registration card. As far as I know, this is issued by USCIS, the only role of FBI in the whole process is to perform part of the full criminal background check and they did it. And without the vaccination record I don't think that USCIS can approve Plaintiff's petition.
 
paz1960 said:
Please find attached several documents from Elkatib v. Bulger. This was a similar case as yours and Plaintiff was represented by a professional lawyer. They won this case and the Court issued an order to compel defendants to complete background check and adjudicate Plaintiff's petition for AOS. You can download from PACER the missing documents of this case. AUSA used the same arguments in the motion to dismiss as in your case. I think that if you follow the TWO oppositions posted below, you should be able to fight the Motion filed by your AUSA.


Thank you.
The documents are very helpful.
 
bobsunzi said:
I served the US Attorney's Office on 1/24/2007. But the clerk didn't put an answer due for him. Is this normal or do I need to talk to the clerk to mention this mistake?

Thanks paz
I wouldn't worry much about this. It is AUSA's problem, s/he will take care of this. But if you need the exact reference, here it is:

Rule 12(a)(3)(A) of the Federal Rules of Civil Procedure states that the United States, an agency of the United States, or an officer or employee of the United States sued in an official capacity must file a written response to the complaint within sixty days after the United States Attorney is served.
 
thanks :)

paz1960 said:
Here we go:
In the party, you put Chertoff (he is always a defendant in such cases) and under the nature of lawsuit you put 890 or 540 (most of the WOM cases are filed under 540, but sometimes under 890. The 1447(b) lawsuits are filed usually under 890.)

Unfortunately, you will find some cases which are different types (like habeas corpus) during these searches, but with some luck, you will find most of what you are looking for. Ask also this question from wenlock, he did extensive searches on PACER for WOM cases.

Best regards,
paz1960

The reason why I sent him/her this in a PM is, beause I received this request in a PM.

Because I filed my lawsuit as Pro Se and I never considered hiring an attorney, I don't know how reasonable or unreasonable is the $2500. My guess is that this can depend on the local market conditions. You can ask for references this lawyer (ask him/her to give you the number of some similar cases what (s)he represented). Although (fortunately) I never had to deal with any lawyer, I think that I would be entitled to receive some references about his/her previous work, like in many other areas of everyday business before I make up my mind and hire him/her.


Awww..Thanks Paz..

You're the best!!
 
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