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

Hiram said:
Hi Guys,
I am really desperate for your help. I am in NJ, and I have applied for an I-485

Date Applied: Nov 1, 2005
Finger Prints: December 2005
Interview: May 2006 – Case pending due to name check

I called the USCIS 3 times since then, and my case is still pending due to name checks.
I am determined to file the WOM but I have 3 questions, I would really appreciate if you can help me

I have a friend lawyer who is not in NJ who will prepare the WOM for me, but I have to file it myself.

1- will the new internal regulation by USCIS not to expedite name checks anymore affect me?
2- Would I need to appear in court? What is the likelihood for that to happen?
3- Would it be a grilling session?

I hope you guys can help !!!
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1. very likely
2. That depends. AUSA may submit a Motion to Dismiss, most likely arguing lack of subject matter jurisdiction; you will need to oppose this motion; defendants will have one more turn to reply to your opposition. After that the Court either will order a hearing or rule solely based on the papers filed with the court. Another possibility is that defendants file a simple Answer to your complaint and there will be a hearing in the case. And of course, it still can happen that your name check is finished during this time and your petition gets adjudicated without too advancing too far with the litigation. But don't bet on this. I believe that with this USCIS policy change (i.e., no automatic expedite request from FBI for name check processing, after filing a WOM lawsuit), the likelihood of longer and more complex litigation, which eventually goes to trial, is higher than before the Dec. 21, 2006 memo.
3. I don't think so. But you will need to be prepared; either to oppose the motion to dismiss, or to present essentially the same argument in an oral hearing.

The biggest problem what I see is that you filed your petition only 15 months ago. It will be rather difficult to convince the judge that your case was unreasonably long delayed, but you may be lucky. There is really no well defined time frame what is considered unreasonable delay; most of the courts who ruled on this considered that 2 or more years of waiting was unreasonable.
 
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phlipimi said:
Hey Paz:
Thank you very much for your help!
Now I understanded the format.

I have another question.
The cases in the pacer with opposing motion to dismiss must cite some cases. All the cited cases have to come from the federal supplyment?

Because I filed pro se, I don't know which cases can be cited. I have to reference the cases cited by other case. Do I have to read through the case before I cite it?

Are there any handbook or procedures on how to cite cases?

Again, thank you very much!
Philipimi
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Theoretically, you can cite only published court decisions. But I saw many citations of cases which were not published yet in the F.Supp. Usually, LEXIS or Westlaw citations are fine, although they don't have such a strong value like a published opinion & order. Finally, in couple of cases, where I could not find out either the Westlaw or LEXIS citation, I just used the parties name, case number and district court, with the date of the opinion & order. It is important that the other party or the court should be able to check the case what you cite.

Also, it is a good idea to read at least the opinion & order of the cases you cite. That's why I posted mot of the opinion&orders of the cases I used in my draft opposition to a motion to dismiss or remand. Some of the older cases I could not find and I was lazy to go to the law library and dig them out from books (F.Supp).
 
paz1960 said:
Theoretically, you can cite only published court decisions. But I saw many citations of cases which were not published yet in the F.Supp. Usually, LEXIS or Westlaw citations are fine, although they don't have such a strong value like a published opinion & order. Finally, in couple of cases, where I could not find out either the Westlaw or LEXIS citation, I just used the parties name, case number and district court, with the date of the opinion & order. It is important that the other party or the court should be able to check the case what you cite.

Also, it is a good idea to read at least the opinion & order of the cases you cite. That's why I posted mot of the opinion&orders of the cases I used in my draft opposition to a motion to dismiss or remand. Some of the older cases I could not find and I was lazy to go to the law library and dig them out from books (F.Supp).
Click to expand...

Thank you very much Paz!

By the way,
Where can I find the opinion and orders? I googled the federal supplyment, it costs around $9000. Is there anyway I can check online?

Thank you very much!

Philipimi
 
Hi lotech,
I tired the phone number written on the complaint for Ms. Wong. It went to a voice mail who told me to press 785 if my call is regarding citizenship delays; from there it went to ACLU San Francisco chapter. I tried several times finally got a live operator who told me to call at 415-343-0770 ext 5. I called the number and the voice mail told me to leave my name, email and contact number, someone will call me, 3 days passed but none called me yet. As you also know that I have called several times Michigan ACLU chapter in past and left messages with my story no reply yet.
So, call the number in my post listen the voice mail and do what it said.
Thank you.



lotechguy said:
Can you post the number the call ? are there also any residency requirements to join, like location etc ?
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shvili said:
Dear gctarget06,

From reading much earlier posts (year-old, I think), I saw number of members adding exhibits after they filed. Here is one of the blank forms a member posted back then:
Also, your pro se handbook should deal with properly adding an exhibit.
Good luck.
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Thanks a lot Shvili.....Highly appreciate your efforts helping others.
 
Thank you so much for reply, everyone.

Since FBI's response is standard answer,I have to file the lawsuit, can't take it anymore. I called a Chinese lawyer firm but they charge $5000 for the case. I won't give them that money even I have. I will prepare to do pro se. and yes, beforehand I will spend a lot of time to read the info of this wonderful forum.

Wish everyone luck!
 
phlipimi said:
Thank you very much Paz!

By the way,
Where can I find the opinion and orders? I googled the federal supplyment, it costs around $9000. Is there anyway I can check online?

Thank you very much!

Philipimi
Click to expand...
I didn't find either the Fed. Supp. online. You probably can find it in a law library.
 
Thank you

paz1960 said:
I didn't find either the Fed. Supp. online. You probably can find it in a law library.
Click to expand...

Hey Paz:

Sorry for causing confusion

this is your previous post

"Usually, LEXIS or Westlaw citations are fine, although they don't have such a strong value like a published opinion & order. Finally, in couple of cases, where I could not find out either the Westlaw or LEXIS citation, I just used the parties name, case number and district court, with the date of the opinion & order. It is important that the other party or the court should be able to check the case what you cite. "

I thought you cited cases from LEXIS or Westlaw.
When you mention opinion & order, how do I look for them? Should I look for them in pacer or LEXIS and WestLaw.
Again, thank you very much for your patience!

Philipimi
 
phlipimi said:
Hey Paz:

Sorry for causing confusion

this is your previous post

"Usually, LEXIS or Westlaw citations are fine, although they don't have such a strong value like a published opinion & order. Finally, in couple of cases, where I could not find out either the Westlaw or LEXIS citation, I just used the parties name, case number and district court, with the date of the opinion & order. It is important that the other party or the court should be able to check the case what you cite. "

I thought you cited cases from LEXIS or Westlaw.
When you mention opinion & order, how do I look for them? Should I look for them in pacer or LEXIS and WestLaw.
Again, thank you very much for your patience!

Philipimi
Click to expand...
In PACER you can access the full docket, so you can download every document (including the opinion & order) related to the particular case. The opinions are usually free, the other documents 8 c/page. In LEXIS and Westlaw I believe that you can look only to the opinion and order. Both services are for a fee, I didn't use them so I don't know much about them.

If I had a citation from LEXIS or Westlaw I used that, but in fact, I downloaded the relevant documents from PACER.
 
thank you very much

paz1960 said:
In PACER you can access the full docket, so you can download every document (including the opinion & order) related to the particular case. The opinions are usually free, the other documents 8 c/page. In LEXIS and Westlaw I believe that you can look only to the opinion and order. Both services are for a fee, I didn't use them so I don't know much about them.

If I had a citation from LEXIS or Westlaw I used that, but in fact, I downloaded the relevant documents from PACER.
Click to expand...

Thank you very much for your constant help!

Have a good night!

Philipimi
 
I am joining club of people with motion to dismiss :)
However I got a lot of info from this forum and will have fun writing
opposition (which was Paz dream:)
AUSA attached description of case which is sealed in PACER, how can I look it up?
I attached this example
Thanks guys
 
485 finger print question.

To all the gurus out there,
My 485 (marriage based) is pending since 8/2003.
Finally filed WOM with the help of an attorney on Dec 27, 06. Summons served Jan 12, 07. (Yes my lawyer is very prompt!)
We had an interview 9/21/05, they took my finger prints for the second time on the same day. Since then stuck in name check.
To make matters worst I didn't get my EAD this time. So I am out of my job.

Question: Its been over 15 months since my last finger prints and the mandamus didn't seem to make a difference. Does this mean the CIS is just not considering my case?
PACER doesn't show any motions filed. The last update was PPTC scheduled with my attorney today, I couldn't talk to him today. Will update once I talk to him. The last time I talked to him, he said he was in contact with the USA but no indication of motions to dismiss.
Has any one been in a similar situation? Any other advice?

Thanks in advance.
- ipoh
 
gmlvsk said:
I am joining club of people with motion to dismiss :)
However I got a lot of info from this forum and will have fun writing
opposition (which was Paz dream:)
AUSA attached description of case which is sealed in PACER, how can I look it up?
I attached this example
Thanks guys
Click to expand...
Is it your opposition for motion to dismiss or you downloaded it from somewhere? I am aslo writing my oposition and have to deliver it to AUSA by friday next week. So far I have only 3 examples (including yours) for motion for I485. It would be nice if we can get more examples.
 
It's AUSA example in their defense.
I have not started mine yet.
What's funny AUSA sites Danilov case, which is 1447b, mine is 485.
I don't have more opposition examples besides posted in this forum

kefira said:
Is it your opposition for motion to dismiss or you downloaded it from somewhere? I am aslo writing my oposition and have to deliver it to AUSA by friday next week. So far I have only 3 examples (including yours) for motion for I485. It would be nice if we can get more examples.
Click to expand...
 
ipoh said:
To all the gurus out there,
My 485 (marriage based) is pending since 8/2003.
Finally filed WOM with the help of an attorney on Dec 27, 06. Summons served Jan 12, 07. (Yes my lawyer is very prompt!)
We had an interview 9/21/05, they took my finger prints for the second time on the same day. Since then stuck in name check.
To make matters worst I didn't get my EAD this time. So I am out of my job.

Question: Its been over 15 months since my last finger prints and the mandamus didn't seem to make a difference. Does this mean the CIS is just not considering my case?
PACER doesn't show any motions filed. The last update was PPTC scheduled with my attorney today, I couldn't talk to him today. Will update once I talk to him. The last time I talked to him, he said he was in contact with the USA but no indication of motions to dismiss.
Has any one been in a similar situation? Any other advice?

Thanks in advance.
- ipoh
Click to expand...
It is still too soon to tell what's going to happen next only if you have a chance to call AUSA who was assigned to your case, but since you hired lawyer to handle WOM, she/he should be the best person to talk to AUSA. Here is my guess what's going happen to your case; AUSA usually will contact USCIS General Counsel Office, tell them due day and request name check expedite after they received your summons; USCIS will then arrange your case from low to high priority depend on how USCIS category your WOM case from all over the country (three factors, how much trouble they can get from your case before they fight in court; communication between AUSA and USCIS; District Judge opinion on WOM cases)
By end of March, you may have something from AUSA:(1) Motion of Dismiss, which is the worst, USCIS put your case on a low priority, you have to fight; (2) Motion of Extension for 30 days, imply they want solve it but not enough time, but later on, they may file Motion of Dismiss Again to buy more time; (3) Answer, which push ball to the court, also can buy some time for USCIS.
(4) Your case is solved by end of March which is the best;
 
Is it Ok to file motion of opposition to dismiss and motion for summary judgment
in one document together?
 
I am preparing arguments in reference to opposition to motion to dismiss
I was reading this following code

1446(d)

(d) Determination to grant or deny application
The employee designated to conduct any such examination shall make a determination as to whether the application should be granted or denied, with reasons therefor.

Now I want to use this statue in my argument that Defendents have none descretionary duty to adjudicate application.

What do you guys think I do not see any language like descretion it uses word "shall" in making determination to grant or deny application.

I did not see any attorney using this but I am not able to find single case on pacer about pending N-400 application with out interview. So no one probabaly needed this argument they all use 1447(b) for arguments.
 
wenlock said:
I am preparing arguments in reference to opposition to motion to dismiss
I was reading this following code

1446(d)

(d) Determination to grant or deny application
The employee designated to conduct any such examination shall make a determination as to whether the application should be granted or denied, with reasons therefor.

Now I want to use this statue in my argument that Defendents have none descretionary duty to adjudicate application.

What do you guys think I do not see any language like descretion it uses word "shall" in making determination to grant or deny application.

I did not see any attorney using this but I am not able to find single case on pacer about pending N-400 application with out interview. So no one probabaly needed this argument they all use 1447(b) for arguments.
Click to expand...
Good point! You should use this. However, the biggest difficulty, in my opinion, will be to convince the judge that the delay is unreasonable. This is the hardest in each WOM suit because there is no clear definition in any statue what is reasonable and what is not.
 
Opposing motion to dismiss

Do we know how many guys from this forum filed an opposition to
"a motion to dismiss"?
How many did it work for?
How many lost?

it is important to understand the process and the likelyhood of succeeding after receiving a motion to dismiss

Paz, thanks a lot for all your hard work !!!
do u know the answer to this?
 
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