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

[paz1960]

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 never saw a report that sending a letter of intent to sue to the US Attorney's Office produced any results. There are some reports that sending this letter to USCIS in some cases helped, but certainly not in my case.

The reason why I don't think that the US Attorney will care about the letter of intent to sue, is that they deal only with lawsuits. Till they don't have a complaint filed in the district court, they don't have a "case", so they can't assign it to an AUSA, and they can't work on it. And they are right: when you will file the complaint, they will be your adversary, they will represent the government who will be the defendants in your case. Of course, they would be also interested to settle the case outside litigation, but usually they do whatever the DHS/USCIS/FBI General Counsel tells them to do.

As wenlock said, you should be prepared for the hearing or to oppose the motion to dismiss. It is definitely a bad idea to only file the complaint and cross your finger and hope that your case will be finished before more actions should be taken in the litigation.

 

[zevs]

Gcbez-link

Gcbez,

can you please check the link. It does not work.

Thanks

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.

 

[zevs]

Kefira, this might help you

Kefira,

check the link below... It's basically USCIS "explanation" on why they need to increase the fee for the immigration petitions. But there is a paragraph indicating that USCIS was mandated by the President to eliminate backlog by the end of FY 2006. This was published on Federal Register on February 1, 2007.

Alika


http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/E7-1631.htm

DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

8 CFR Part 103

[CIS No. 2393-06; Docket No. USCIS-2006-0044]
RIN 1615-AB53


Adjustment of the Immigration and Naturalization Benefit
Application and Petition Fee Schedule

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Proposed rule.



2. Presidential Mandate To Eliminate the Backlog
In FY 2002, the President called for an average processing time
standard of six months for the adjudication of most immigration benefit applications and petitions to eliminate the backlog of pending applications and petitions at USCIS within five years (end of FY 2006). USCIS received a total of $460 million in appropriated funds for this effort. At the end of FY 2006, the backlog was significantly reduced from a high of 3.84 million cases
in January 2004 to 9,482 cases. Additionally, a six-month processing time standard was achieved for fifteen out of sixteen Backlog Elimination Plan applications. In some instances, such as
naturalization applications, USCIS decreased processing times to below the six-month goal.

This fee rule would provide the necessary resources to maintain these processing time standards and fund further improvements to USCIS business operations to continue to reduce processing times while ensuring the appropriate level of security. The President's FY 2006 Budget prioritized USCIS resources to achieve the time standard and eliminate the backlog. After FY 2006, USCIS' budget requests for adjudication programs will be limited to fee resources, as USCIS strives to maintain the six-month or less
processing time standard and identify opportunities for performance improvements within a fee-based environment.

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

 

[liuym]

Please cc one copy of your recommendations

Dear Wenlock,
I am also interested in your notes and recommendaitons. Because
I file WOM Pro Se recently for my 485 application. Because AUSA, USCIS and FBI become tougher than before, most probabaly I will receive Motion to Dismiss. So, I need this knowledge to fight for my case. Could you cc a copy of information for Veryfree to me ?
Here is my email: ymliu99@gmail.com
Thank you very much for your precious time and valuebale help !

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.

 

[veryfree]

No claim under APA

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 just find this in the USAS's Motion To Dismiss:" However, Plaintiff does not have a claim under the APA, therefore, there is no jurisdiction under 28 U.S.C $1331."

What does it mean? Can any one give an example of "claim under APA"? How am I going to answer it?

Thanks

 

[liuym]

This may help you

Dear Veryfree,
Your case is similar to mine. We are all fighting for 485. The attached
is a good example and similar case. Please take a look.

Good luck !
Please

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]

Thank you.

Dear Veryfree,
Your case is similar to mine. We are all fighting for 485. The attached
is a good example and similar case. Please take a look.

Good luck !
Please

Thank you.

 

[jsms10]

AOS Case approved after 2nd FP notice

Hi all:
My AOS application was approved 4 days after USCIS received an acknowledgement of my 2nd FP....
I am not sure what triggered the 2nd FP notice, but my last communication to my USCIS IO was a letter stating the number of days since my application was pending after my FP and interview. I had also asked her an explanation/reason for the delay....She never replied but, I got my 2nd FP notice 4 months after sending this letter....

Thank you all for your help.... I wish all of you best of luck in your GC/N400 pursuit....Please PM me if you have specific questions....
Thanks again!

Hi All:
My AOS case has been stuck in FBI Nme Check since my interview in 03/2006. (So I was gearing up to do a WOM.) My first FP was done sometime in Sep/Oct 2005. I just received a letter from USCIS Disctrict Office stating:
"Your case is pending because your previous fingerprints expired. Please report to ASC for fingerprinting. Upon completion, submit a copy of your fingerprint confirmation letter in the attached green envelope."
The envelope is addressed to ATTN: DAO <FirstNameInitial> <LastName>

Does this mean my FBI Name Check has been completed?
What do you guys think?
Thanks!

 

[nc-pending]

Action Suit Against Government

Hi Guys,
ACLU files law suit in the Northern CA . See following link for more details:

http://www.aclu.org/immigrants/gen/28284prs20070208.html

 

[needsolution]

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.

You do not need to pay an attorney to draft an opposition to their motion to dismiss. There are several opposition motions available on this board posted, you can simply use them.

 

[veryfree]

You do not need to pay an attorney to draft an opposition to their motion to dismiss. There are several opposition motions available on this board posted, you can simply use them.

I will try to draft the opposition with the help of the experts here. But I am not so confident with my knowlege of law and my english. So I may try to contact the attorney, just in case.

 

[kefira]

Finally I read my motion to dismiss my case (WOM GC). Tomorrow I will post it. It looks that it is true NO MORE expedite name checks starting Dec 21, 2006. Prior to it USCIS accepted the filing of a mandamus as a criterion for expediting security checks, but on Dec 21 that policy has changed and the agency will no longer seek to expedite required security checks. So, my AUSA lied to me and she did not do anything.
INS ordered already twice my name check (first one march 2005 and next one Nov 1, 2006), but none of them are expedited.
Also if you review my document u will see, that they want to dismiss it, since they want to close this door and not to give an opportunity for others to use this in clearing delayed name checks. As AUSA wrote : ".. Court would have to create a temporal standard from thin air." I liked it

 

[yvesliu]

Anyone?

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?

 

[kefira]

Anyone?

From my experience, since I filed Oct 30 (21 days earlier then you) and also PerSe, nothing usefull on the teleconference. All the talking will be doing AUSA and magistrate judge that probably will recommend hearing in a court. So for now you do not have to do anything, but just wait and hope that your NC will be cleared soon. Read my posts.

 

[yvesliu]

Thanks kefira

From my experience, since I filed Oct 30 (21 days earlier then you) and also PerSe, nothing usefull on the teleconference. All the talking will be doing AUSA and magistrate judge that probably will recommend hearing in a court. So for now you do not have to do anything, but just wait and hope that your NC will be cleared soon. Read my posts.

 

[Saarlaender]

i never saw a report that sending a letter of intent to sue to the US Attorney's Office produced any results. There are some reports that sending this letter to USCIS in some cases helped, but certainly not in my case.

The reason why I don't think that the US Attorney will care about the letter of intent to sue, is that they deal only with lawsuits. Till they don't have a complaint filed in the district court, they don't have a "case", so they can't assign it to an AUSA, and they can't work on it. And they are right: when you will file the complaint, they will be your adversary, they will represent the government who will be the defendants in your case. Of course, they would be also interested to settle the case outside litigation, but usually they do whatever the DHS/USCIS/FBI General Counsel tells them to do.

As wenlock said, you should be prepared for the hearing or to oppose the motion to dismiss. It is definitely a bad idea to only file the complaint and cross your finger and hope that your case will be finished before more actions should be taken in the litigation.

PAz1960,

I have a general question as far as the handling of different cases.
When the FBI performs a name check do they distinguish between
applicants for
a. an applicant for the initial conditional permanent residence (I-485)
b. removal of the conditional status of the residence
c. applicants for U.S. Citizenshiops (N-400)

A friend of mine, citizen of Egypt with an arrest record and guilty deposition (disorderly contact), received her green card (conditional permanent residence) in 2006 without much fuss. Her name check must have been a hit,
Why did her name check go through while so many here have to deal with the law suit, etc? Is it a mere roulette game?

Best

D.

 

[newdawn]

Just because someone has a arrest record or guilty plea doesn't mean there will be a name check hit. FP will show the arrest but as long as the person was not part of an FBI investigation, I don't think NC will return a hit.

 

[kefira]

Just because someone has a arrest record or guilty plea doesn't mean there will be a name check hit. FP will show the arrest but as long as the person was not part of an FBI investigation, I don't think NC will return a hit.

I do not agree. Read Class Act petition for delayed naturalization that was submitted 3 days ago (somebody posted here links to this document 3 times, including me) and in paragraph 35 p.8 is written:
"18. Plaintiff are informed and believe that the FBI name check requirements is implemented in such a manner that it is highly likely that in applicant may be identified erroneously as a person “of interest” to the FBI, thereby delaying adjudication of the status, even though the applicant has committed no crimes and is not a suspect. For example, the name check may identify a different person with a name similar to the applicant’s, or result in a “hit” when the applicant has been an innocent witness or victim of crime."

 

[paz1960]

PAz1960,

I have a general question as far as the handling of different cases.
When the FBI performs a name check do they distinguish between
applicants for
a. an applicant for the initial conditional permanent residence (I-485)
b. removal of the conditional status of the residence
c. applicants for U.S. Citizenshiops (N-400)

A friend of mine, citizen of Egypt with an arrest record and guilty deposition (disorderly contact), received her green card (conditional permanent residence) in 2006 without much fuss. Her name check must have been a hit,
Why did her name check go through while so many here have to deal with the law suit, etc? Is it a mere roulette game?

Best

D.

I didn't read anywhere reliable information about doing the name check differently depending on the type of immigration benefit sought by the applicant. Most of the details how this name check is performed, are unknown for us and probably there is a reason for that. The problem is that this whole name check is not very reliable and it is very resource consuming in many cases. Here is a lot more relevant testimony about this, than my opinion or guess:

After an analysis comparing name-based and fingerprint based checks of criminal history records, the FBI reported, “The great weight of the evidence supports the FBI and the CJIS APB's [Criminal Justice Information Services Advisory Policy Board] conclusion that a name check of criminal history record systems is a ‘rough’ process which produces many ‘false negatives’ (in which a criminal is not identified) and ‘false positives’ (in which an individual without a criminal record is identified as having a record).”

From the House Judiciary Subcommittee on Crime Regarding H.R. 3410 and Name Check Efficacy, Hearing on Crime Regarding HR 3410 and Name Check Efficacy, May 18, 2000 (statement of David R. Loesch, Assistant Director in Charge, Criminal Justice Information Services Division, FBI).

Obviously, many people at different levels are aware about this bottleneck in the immigration process; the problem is that I don't see yet the sign that somebody with actual power would try to fix this broken system. If the anticipated application fee raise would be used to streamline this process, people who don't have anything to hide would benefit from this because they would not sit forever at the bottom of this black hole called name check. I am rather pessimistic now, but let's wait and see. In the meantime, I still believe that the only way to get out of this black hole is to file a lawsuit and defend vigurously your just case.

 

[paz1960]

Anyone?

I don't think that you can do anything specific with AUSA or the court. Of course, you should use the reamining time to prepare for the fight. You should get really familiar with your complaint, and read as many motions to dismiss and oppositions to these motions as you can.