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

1447b and Motion to Dismiss

After seeing some motion to dismiss filed by AUSA for 1447b I am preparing one for my self. The appropriate statute reads as follows:

(b) Request for hearing before district court
If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.

It seems that language "after the date on which the examination is conducted" makes it clear that the examination reffered to here is the interview. If it was a series of events like the AUSA wants the judge to beleive, the statute would read as just "of the 120-day period after examination" and it does not. The fact that it says date on which should mean one day, ny common english language standards.

Can someone put this argument in a legal langage so we include it in our opposition to motion to dismiss ? Thanks
 
Paz wenlock and team here is my case update and a question I Called the AUSA Today he didnt seemed to be very knowledgable about my case when i introduced myself he said is it about property case and when i said no its about name check he said oh ok.Then he told me that he is waiting for response from USCIS.I asked if he has talked to USCIS about expediting my name check his respnse was USCIS didnt see any justification to expedite the name check.He said basically they are gonna wait till deadline for name check to clear and if not they will file some motion to extend or dismiss.So what now
1.Should i keep calling him or contact him after couple of weeks again.
2. Should i should start preparing my oppostion or there is still hope.

looking on pacer for same type of cases in my district are getting resolved.Somebody filed a WOM on DEC 19th and got there name check approved and case dismissed on FEB 13th.

Timeline

N400 Filed August 29,2005
Interview Scheduled and Descheduled March 20,2006
WOM Filed Jan 29,2007
 
Hiram said:
zl2007, can you please post yours once it is completed.

FYI:

I talked to a lawyer and he told me that there is an intention from USCIS/FBI to put an end for WOM to expedite namecheck through congressional voting... This is way more dangerous than the internal guidelines set by the USCIS last January to no longer automatically expedite namechecks when a mandamus suite is filed

so if you're still hesitant... file before April 2007
Click to expand...

Hi Hiram,
Where you got the date April 2007?
I have seen in this forum, folks were talking about this issue for long but still nothing happened. Best way to resolve the namre check is still to file a suit.
Thank you.
 
Hi relyonself,
Different AUSA have different attitude but the reality is after post 12/22/06 they have nothing to offer. AUSA assigned to my case is very nice and cooperative but she said she can not do any thing, if CIS wants to resolve fine otherwise I will come with a motion to dismiss.
So, what you, me and all need to do is to keep eye on pacer, keep in touch with AUSA, once in 2 to 3 week and ready our counter motion.
God luck to you, me and all of us.
Thank you



relyonself said:
Totay, I called us attorney office, and no body was there and I left message, 5 mins later, one lady called me, and said that they are aware of the case and they already contact uscis and fbi, also, she said, they do not expediate the name check any more. and also told me that the due day to answer is April 9th. Then I asked her can I get AUSA for this case, she said there is nothing more we can talk. Then it looks that the only thing left for me is another type of waiting. anything else we could do? thanks.
Click to expand...
 
Hi sksharma76,
Same situation here, talked to AUSA and she said CIS is aware of your suit (filed case on 2/1/07), if CIS wants to expedite fine otherwise we wait for 60 days, then one month extension and finally motion to dismiss.
In my opinion, we still have to keep in touch with AUSA because I believe that they still could push CIS to do more than what they are doing.
Thank you



sksharma76 said:
Paz wenlock and team here is my case update and a question I Called the AUSA Today he didnt seemed to be very knowledgable about my case when i introduced myself he said is it about property case and when i said no its about name check he said oh ok.Then he told me that he is waiting for response from USCIS.I asked if he has talked to USCIS about expediting my name check his respnse was USCIS didnt see any justification to expedite the name check.He said basically they are gonna wait till deadline for name check to clear and if not they will file some motion to extend or dismiss.So what now
1.Should i keep calling him or contact him after couple of weeks again.
2. Should i should start preparing my oppostion or there is still hope.

looking on pacer for same type of cases in my district are getting resolved.Somebody filed a WOM on DEC 19th and got there name check approved and case dismissed on FEB 13th.

Timeline

N400 Filed August 29,2005
Interview Scheduled and Descheduled March 20,2006
WOM Filed Jan 29,2007
Click to expand...
 
lotechguy said:
After seeing some motion to dismiss filed by AUSA for 1447b I am preparing one for my self. The appropriate statute reads as follows:

(b) Request for hearing before district court
If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.

It seems that language "after the date on which the examination is conducted" makes it clear that the examination reffered to here is the interview. If it was a series of events like the AUSA wants the judge to beleive, the statute would read as just "of the 120-day period after examination" and it does not. The fact that it says date on which should mean one day, ny common english language standards.

Can someone put this argument in a legal langage so we include it in our opposition to motion to dismiss ? Thanks
Click to expand...

Hi lotech,
Word examination vs. interview (Danilov v. Aguirre) has been discussed in all of the motions and counter motions filled under 1447b. So, far I like the counter motion drafted by paz (again thank you so much paz) and you can see it is discussed in it too with very detailed manner. I will suggest you to read this and make changes as appropriate.
Thank you.
 
Hearing and no AUSA

Hi Paz and other members,

I have a status hearing coming soon, however so far no AUSA was assigned to my case. I called the US Attorney several times, but nobody knows why they have no AUSA assigned to my case.

My questions are:
1) Should I keep calling until they will assign somebody to my case?
2) Is it better to leave them alone for now. If nobody from the Defendants side will appear to the hearing, would be this an additional indication for the Judge that USCIS/FBI don't do what they suppose to do? Or may be I will just waist my time because Judge will re-schedule the hearing for another date? What do you think, guys?

Thank you.
 
Hiram said:
Akram
I will file in Newark, NJ next week to...
WOuld you please keep me updated on your progress?

I also have 3 quick questions for u or anyone who can answer:

1- do you expect to receive the 4 copies of (original complaint + exhibits + cover sheet + summons) in the mail with court signature and then you send them to the defendants? and then you take proof of mail delivery to the court again??

2- Were you able to find out wether AUSA still does expedite NC requests in NJ?

3- how long did the whole process take at the Federal Court in Newark, NJ? any suggestions on what time to go etc?
Click to expand...


1- the 4 copies are for court. I have extra 6 copies stamped (you can have them stamp one and photocopy the rest). I guess one of the summons copies will be sent back to me.

2- no, not from court or lawyers.

3- probably now 60+60+xx days

by the way I forgot to mention two things: 1- the court asked for a CD containing complaint + exhibits + Cover sheet + Summons -2- the second lawyer is asking for $6000 + filling fees + mailing fees. I'll edit my previous post to mention this
 
Last edited by a moderator:
cacd07 said:
I filed in central CA and got both signed Summons (no stamp)and the stamped one (no signature)when I filed in person. I simply sent the stamped ones out to all defendants and so far it's fine with me. -- PACER showed all fine with one exception saying 'original Summons not returned'. I went to court again for that and was told it is up to me to either keep the original Summons or return to the court (which is safer). However, if returning to court, you have to file with something else such as prrof of services. They do not take original Summons alone. Therefore I just kept mine in my own firesafe at home.

Also I'm lucky that name check cleared soon after filing. My AUSA just told me to wait for oath letter then we will dismiss the case jointly.

PS in LA they did not even charge $350 for 1447b filing till recently the judge changed the rule due to a flood of similar filings, according to what the clerk told me.
Click to expand...

I think I should wait for the summons to come back from court, I dont even have a case number.
 
zevs said:
Hi Paz and other members,

I have a status hearing coming soon, however so far no AUSA was assigned to my case. I called the US Attorney several times, but nobody knows why they have no AUSA assigned to my case.

My questions are:
1) Should I keep calling until they will assign somebody to my case?
2) Is it better to leave them alone for now. If nobody from the Defendants side will appear to the hearing, would be this an additional indication for the Judge that USCIS/FBI don't do what they suppose to do? Or may be I will just waist my time because Judge will re-schedule the hearing for another date? What do you think, guys?

Thank you.
Click to expand...

Hello zevs,

Basically, it is their problem, how they run their business, you can't influence that. I would try to call them again just 1-2 days before the status hearing; it is likely that they will have somebody assigned by then. At least you can try to figure out what is likely the AUSA's position. But seems now more and more probable, that these cases will go like this: defenants wait till the end of 60 days, they will askfor a 30 day extension and if the name check is not cleared during te extension period, they will file a motion to dismiss. This means that you should prepare at least a draft of your opposition which can be quickly adapted to the specifics of the actual motion what AUSA will file (if name check is not cleared before the expiration of the extension).

Good luck,
paz1960
 
To anyone considering filing 1447(b) in Northern CA

I am about to file 1447b in San Jose, probably this week.
Unfortunately, beginning Aug. 23, 2006 USCIS has stopped posting the names of local directors on their website. I could not get it from the USCIS lady over the phone. Does anybody know if the same guy is still in charge or the name of current Officer-In-Charge in San Jose?

Many thanks!
Good luck to you all!
snorlax
__________________
09/21/05: N-400 receipt
12/28/05: FP
03/16/06: N-652, passed. Pending FBI name check
??/??/??: 1447b Filed, Pro Se, in San Jose, CA

Snorflax and anybody considering filing in Northern CA:

I am a passive reader, just preparing to file here (!447(b) after examination in May 2004). Tonight I finally heard from the Assistant to attorneys in ACLU in San Francisco, Leona Quan. I called them and the LA office of ACLU 2 wks. ago after reading of the class actions filed in CA.
Ms. Quan asked me the details of our case and said, that they are finally collecting info from numerous callers regarding their N-400 cases. As I understood, they will be showing to the court the huge amt. of local cases and she said they might consider including our cases as members into a class. "In this happens, you will be asked to submit a declraration to court" (in order to be included). I told her, that I am currently considering filing pro se for my husband and depending on her advise I'd rather wait if we could join them. She said, she can't give me a legal advice and it's up to me. Then I asked, what's the hope and their timeline? She said, that I should hear back from them within a month and if we are allowed to join (-I should have asked, what are the chances, but didn't) they are requesting to adjudicate all pending cases within 30 days.

The correct question from me would be, if they already filed in their petition to consider all N-400 applicants with delayed applic-s to be included as class members, why even bother with our individual declaration to court? But as usual, good ideas always come little late. The questions I DID ask her were:

1)In case I don't hear back, what'e their contact telephone number and she gave me a cell to call if no answer within a month; and:
2)would she mind if I give her info. to other Immigration forum members interested to file, and she (again) replied, it's up to me. (But apparently she won't mind).

So, Snorlax at everybody, if you need her info. please let me know (can e-mail me privately).

Also, I'd appreciate anyone's opinion about our decision to postpone filing and wait for their reply...

Thank you in advance,

Shvili
______________________________________
Our info: (for My husband, I'm a Citizen)
N-400 Application filed October 2003 In San Jose, CA;
Interview May 2004;
NC pending since (before?) the interview;
Letters to Senator, Congresswoman, calls to CIS-same reply: "name check pending".
 
Do you have to wait numer of days (i was reading 20?) before filing for summary judgment?
Is it in general to Petitioner advantage to file for summary judgment?
Thanks

ournyla said:
my judge was presiding over Enron cases so she was quite busy thats why it took her sometime to reach decesion.
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1447b cases where remand was made with instruction

Some one posted for 1447b cases where remand was made by the judge with instructions. Here is a list I have collected so far. Please post if you have more cases like this.
 
lotechguy said:
Some one posted for 1447b cases where remand was made by the judge with instructions. Here is a list I have collected so far. Please post if you have more cases like this.
Click to expand...

Several of the cases in the list you posted are not good examples. (El-Daour, or Shveilem). Remanding the case with such an instruction to adjudicate the application as soon as the FBI completes your name check, is really not what a Plaintiff would want, this is what Defendants want.

If you would listen to 786riz's advice, you would have already a couple of more cases in which the courts made some meaningful instructions.
 
paz1960 said:
Go to the Eastern Michigan district, enter in the case number box 2:06cv13219

The case is Ibrahim v. Chertoff
Click to expand...

I think I missed something. I was under impression that this case had a good opposition for I485 cases and this case was not dismissed, BUT case was dismissed and closed on Feb 8. So this opposition is a bad one.
 
kefira said:
I think I missed something. I was under impression that this case had a good opposition for I485 cases and this case was not dismissed, BUT case was dismissed and closed on Feb 8. So this opposition is a bad one.
Click to expand...
I also think that you missed something. If you read the stipulation and order of the court, you will see that this case was dismissed after BOTH parties agreed, i.e., the case was resolved by USCIS before the stipulation was entered. The opposition of the motion to dismiss was written by one of the most known immigration lawyers in Michigan. I saw many cases represented by him, although I didn't read this case, so I can't speak for the quality of this particular opposition.
 
to Akram

HI Akram
thanks for the reply.
As for my 3rd question,
"3- how long did the whole process take at the Federal Court in Newark, NJ? any suggestions on what time to go etc?"

I meant, when you went to the Fed Court in NJ, how long did you spend there waiting for your turn and filing the lawsuits and paper work? I need to know how much time off work I need to get this thing over with. Is there any suggestions as to what time to go? (Morning vs Afternoon)

Thanks again
 
Some initial information - Please reply

Hello PAZ and Gurus,

I have a question for you. I am waiting for this name check I want to start building grounds for my WOM in future.

Can you please answers following questions one by one:

1) I filed my application and used to live in Philadelphia. My interview was also conducted in Philadelphia. I recently moved to NJ but my permanent house is still in Philadelphia. Even though I work in Jersey and have an apartment there, I go back every weekend to Philadelphia.

Do I need to change address in my case and move it to Jersey or I can stay in Philadelphia. I mean I can always say Philadelphia is my permanent address.

2) Do you know any one in this forum who filed WOM from Philadelphia for Marriage based I-485 case?

Its strange that I filed WOM for my wife for N-400 when this thread was started. Publicus guided me at that time. It has been a year ago and now I find myself in same spot again.

Please advise
 
Akram,

Question about summons, did you prepare and submit just one summons or
multiple summons (one for each defendant). If only one summons is required,
what would one write in the section where the defendants name
and address is required (or do we leave this blank until the court
clerk returns the summons signed and then make copies and fill it with each defendant's name and address). Also what about page 2 of
the summons (certificate of service), did you submit this page (as blank)
as well or just page 1 of the summons?

Thanks.
 
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