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

[Comfused]

Comfused,
I am very surprised that your case went into discovery... My AUSA said to magistrate judge that FBI never do any discoveries. So for now I filed for Opposition Motion to Dismiss and basically I do not expect anything good to happen, since they said no discovery and what really judge can do? The easier thing for him to do is just to dismiss the case. I am in N CA

The following is the judge order for my case on Jan. 19th
1) Plaintiff's motion to Amend Dicket Entry No 13 is granted
2) Parties may conduct paper discovery for 60 days
3) Joint pretrial order shall be filed by April 6, 2007
4) Docket Call shall be held April 13, 2007 at 4:00 pm.

My case is in the discovery stage. AUSA was really frustrated to get any state report for my case from FBI and FBI avoided to answer any of my questions. That is why my AUSA finally told FBI if they didn't provide any info about my case before March 13th, he could not write any thing about Pretrial order. I guess your AUSA told the judge that FBI will never cooperate with her/him for discoveries. Don't be pessimistic! Judge still has sense of justice and will not make decision based on how easier he can finish his work. He may deny the defendants MTD and directly order the defendants, then no discovery needed. So far I never saw a WOM case really failed. Even the court dismiss the case, Plaintiff will get the adjudication in another 6 months. The only difference is the different level of torture to the Plaintiff.

 

[kefira]

Thank you for encouragement, but I am really pessimistic. My AUSA just told me that there NEVER expedited name checks for the I485 WOM cases... So the new rule from Dec 21 did not affect my case at all.. and second name check that CIS requested went trough regular way.. In any case now my second NC takes over 120 days.
I checked PACER and basically all WOM cases filed with the attorneys during the same month that I filed were dismissed with the record 12 days after filing. My case is already open for 4 month and if I will ever have a hearing it is another month to wait.

The following is the judge order for my case on Jan. 19th
1) Plaintiff's motion to Amend Dicket Entry No 13 is granted
2) Parties may conduct paper discovery for 60 days
3) Joint pretrial order shall be filed by April 6, 2007
4) Docket Call shall be held April 13, 2007 at 4:00 pm.

My case is in the discovery stage. AUSA was really frustrated to get any state report for my case from FBI and FBI avoided to answer any of my questions. That is why my AUSA finally told FBI if they didn't provide any info about my case before March 13th, he could not write any thing about Pretrial order. I guess your AUSA told the judge that FBI will never cooperate with her/him for discoveries. Don't be pessimistic! Judge still has sense of justice and will not make decision based on how easier he can finish his work. He may deny the defendants MTD and directly order the defendants, then no discovery needed. So far I never saw a WOM case really failed. Even the court dismiss the case, Plaintiff will get the adjudication in another 6 months. The only difference is the different level of torture to the Plaintiff.

 

[lotechguy]

Thank you for encouragement, but I am really pessimistic. My AUSA just told me that there NEVER expedited name checks for the I485 WOM cases... So the new rule from Dec 21 did not affect my case at all.. and second name check that CIS requested went trough regular way.. In any case now my second NC takes over 120 days.
I checked PACER and basically all WOM cases filed with the attorneys during the same month that I filed were dismissed with the record 12 days after filing. My case is already open for 4 month and if I will ever have a hearing it is another month to wait.

Old USCIS expedite memo

 

[Mercury369]

Lexis and Westlaw

Hello Mr.LA,

Thank you very much for your information about how to use PACER. The old cases, maybe before 2003, are not available in PACER. I am thinking about Lexis and Westlaw, I found the below information about the charge of these two online libraries. Is there anyone has experience on using Lexis and Westlaw?

Thanks
Mercury

Pricing for Lexis and Westlaw varies depending on the size and nature of the organization, the volume of research performed, and the pricing plan. There are three basic options for pricing Lexis and Westlaw -- transactional, hourly, and fixed rate. Each has implications for searching. Some organizations have a combination of plans.

With transactional pricing, you incur a charge every time a new search is entered. You can view your search results for as long as you want with no additional communications or database charges. Under these plans, start with very broad searches and then narrow them using locate or focus rather than starting new searches.

The price per search depends on the file selected. As of Spring 2000, Lexis prices range from $0-$145 per search. Westlaw search charges also vary from database to database; for example: as of Spring 2001, individual state case files are $35 per search, the Wall Street Journal is $14 and ALLFEDS is $70.

Hourly pricing is based on the size and perceived value of the file or database. Larger, "mega" type files and public record files are more expensive. When searching under an hourly contract, select the smallest file possible (e.g., use US instead of COURTS to search Supreme Court cases). Get offline as soon as possible. If you need to view search results online, use KWIC or focus/locate to identify relevant documents. Better yet, print a cite list and read the cases or articles in hard copy.

Before volume discounts are applied, Lexis rates for private firms are $175- $885 per hour. Westlaw charges $48 per hour for communications and connect charges plus a fee to search each database. For example, individual state case files are $259.80 per hour. Hourly rates for government agencies are significantly discounted.

For both pricing options there are additional charges for printing and downloading ($5.00 per document for both services); charges for LEXSEE/LEXSTAT or FIND ($5 per cite); and charges for using the citator services, such as KeyCite, and Shepherd’s ($3.75 per cite).

More and more organizations are opting for fixed rate plans which are based on anticipated or past use. These contracts are customized and sometimes restrict access to parts of the service. The terms are confidential and vary with each client; Lexis has indicated that the pricing can range from $500.00 to $50,000.00 per month. Check with the library for searching guidelines and restrictions.

Hello Mercury,

Pacer:

1- Go here to register with pacer: http://pacer.psc.uscourts.gov/
2- Go here http://pacer.psc.uscourts.gov/ and click on U.S party Case Index, Click on Login.
3- After you login and you put your password, it will take you to PACER SERVICE CENTER.
4- You will be clicking on Search then Civil.
5- You will be in Civil Search window now.
6- In the of the window you will see Region, under that Case Filed date [ you can go back to 1980]
7- In party name you should put (Chertoff), leave the case Number empty
8- In Nature of Suit (NOS) put (890).

I wish this is can help, my advice to you to be careful with the search, or your bill it will be high, I have learned my listen. I have not register on LEXIS, so forgive me please.

I wish you the best to you and everyone here.

 

[Mercury369]

enjoy your this victory!

I don't think I really get rid of the nightmares. I may need to deal with them again if I want to natualize after several years. I can not really relax until I hold the card and make sure the info on the card is correct. I wish I don't need to deal with them anymore!

Congratulations! Just enjoy your victory now, I am sure you will receive your card very soon, do not worry too much now about dealing with them again when you apply naturalization several years later.

 

[akram88]

Hello all,
usps.com is showing that all defendants received their packages. what is the next step here?
My understanding is that I need to print out the usps results and file them along with the green usps tracking sheets and the "return of service" (page 2 of the summons form) that the court mailed back to me.
couple of questions, I see on that sheet that I have to put name of Server, I'm assuming I should put usps? and I don't see a place where I should put the name of the defendant... does any of you guys have a sample return of service form filled out?

I just went on pacer and put Andrea Quarantillo the Newark USCIS district director in the search for cases between 12/17/06 and 2/27/07. there was about 60 cases in the list most of them 890 cases (one of them was my case).
Assuming there is 50 cases that have been filed (1447(b) and WOM) since the new law came out, 50 is a big number for a couple of month periodin NJ alone. Assuming the majority of ppl stuck in Name check are not filling complaints, I imagine the number of name check victims is very high.

Like I said my case showed up on PACER but it seems they scanned the documents from papers even thought I have given them a soft copy of the complaint + exhibits + cover sheet...

Thanks you guys for help

 

[junzhe]

sample return of service

you can use the sample posted on page 479 post #7176.

Hello all,
usps.com is showing that all defendants received their packages. what is the next step here?
My understanding is that I need to print out the usps results and file them along with the green usps tracking sheets and the "return of service" (page 2 of the summons form) that the court mailed back to me.
couple of questions, I see on that sheet that I have to put name of Server, I'm assuming I should put usps? and I don't see a place where I should put the name of the defendant... does any of you guys have a sample return of service form filled out?

I just went on pacer and put Andrea Quarantillo the Newark USCIS district director in the search for cases between 12/17/06 and 2/27/07. there was about 60 cases in the list most of them 890 cases (one of them was my case).
Assuming there is 50 cases that have been filed (1447(b) and WOM) since the new law came out, 50 is a big number for a couple of month periodin NJ alone. Assuming the majority of ppl stuck in Name check are not filling complaints, I imagine the number of name check victims is very high.

Like I said my case showed up on PACER but it seems they scanned the documents from papers even thought I have given them a soft copy of the complaint + exhibits + cover sheet...

Thanks you guys for help

 

[DUDE12190]

Please reply!

Paz and other seniors,
I have read the post #7176. please correct me if I am wrong. It means that we have to mail or deliever the Certificate of service and return of service at the same time. Am i right? Another thing is I understand certificate of service, but what is actually this return of service. when I get back those green cards in mail, do I then have to file this return of service?? please reply, thanks!

 

[snorlax]

Update on my case:
I got my summons stamped and signed from court on Friday along with 2 copies of my complaint stamped. and one copy of the cover sheet.
I made copies of the summons and send it along with a copy of the complaint to each of the defendants and one to the NJ AUSA on Saturday.
I sent the packages thru usps with tracking confirmation but with no signature confirmation (I read some ppl were doing this here, was this a mistake?)

I also got the summons return service sheets with no stamps, I guess I have to fill them up and submit them to court with usps green paper and printouts from the internet once I get them.

I would suggest to check your local court rules. There should be some kind of “Pro Se Handbook” or something similar on your local court website. You can also consult with your clerk.

In District Court for the Northern District of California ProSeHandbook-Rev4-06a it says “Send a copy of the summons and complaint by registered or certified mail” - nothing about signature confirmation or return receipts.

Best of luck,
snorlax

 

[snorlax]

Paz and other seniors,
I have read the post #7176. please correct me if I am wrong. It means that we have to mail or deliever the Certificate of service and return of service at the same time. Am i right? Another thing is I understand certificate of service, but what is actually this return of service. when I get back those green cards in mail, do I then have to file this return of service?? please reply, thanks!

I am not one of the seniors, but please see my message #9200. In the Northern District of California one does not need to file the return receipts. The rules may be different in other courts.

Bets of luck,
snorlax

 

[sfdurrani]

Comfused,
I am very surprised that your case went into discovery... My AUSA said to magistrate judge that FBI never do any discoveries. So for now I filed for Opposition Motion to Dismiss and basically I do not expect anything good to happen, since they said no discovery and what really judge can do? The easier thing for him to do is just to dismiss the case. I am in N CA

Hi Kefira and Comfused!
Discovery is part of the usual court procedures and is defined under FRCP Rule 26 I think. But the AUSA tries to strongly oppose it because they don't want to produce any or your files from USCIS and claimed as confidential. Here is what my AUSA is mentioning in his stipulations as part of JSR in order to preclude discovery:

"Defendants assert that, if jurisdiction exists for this action (which is denied), the only basis would be the APA under which discovery is generally improper. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir. 1994); Franklin Savings v. Director, Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir. 1991), cert. denied, 503 U.S. 937 (1992). The merits of Plaintiff’s immigration application are not at issue in this case, only whether the delay by the agency in acting on it is unreasonable. In such circumstances, the matter should be resolved on agency declarations stating the reasons for the delay. See, e.g., Center for Biological Diversity v. Norton, 163 F.Supp.2d 1297, 1298-1300 fn 2, fn 6 (D.N.M. 2001) (citing to CIV No. 01-0258 PK/RLP, Docket Nos. 17 & 23). Thus, if discovery is required, Defendants will provide a declaration from the appropriate individuals from the agencies involved and copies of any releasable documents from Plaintiff’s immigration file".

I have have got these three cases from local law school and I am trying to make sense out of them as these are not immigration cases obviously. But what I have understood so far is that they include discovery of current record and dont allow using any new information in the trial. What AUSA ends up doing is submit a generic statement from Michael Connon from FBI Name Check Department. They dont actually produce your file.

 

[shvili]

Re. DUDE post:

I would suggest to check your local court rules. There should be some kind of “Pro Se Handbook” or something similar on your local court website. You can also consult with your clerk.

In District Court for the Northern District of California ProSeHandbook-Rev4-06a it says “Send a copy of the summons and complaint by registered or certified mail” - nothing about signature confirmation or return receipts.

Best of luck,
snorlax

From what I got, it looks like you do need to show return receipts:

San Jose Courthouse gave me a pamphlet of instructions, ex.: "what is the sertificate of service?"-which states: "After you complete service of the complaint and summons, you should file a "certificate of service" (or a "proof of service") with the court which shows when and how you served the complaint and summons on each defendant."

The next page is the blank form "Return of Service" where you should mark under method of service "other"-and write:"via USPS Certified Mail with Return Receipt Requested", and further in "stat-t of Service fees" it has $5.36 The next (and last page) is, "track and Confirm"-copy from the internet link, apparently. On it, under "search Results" it has a photo of a filled "Certified Mail Receipt" which you get after sending registered mail at the post office. The page shows the link:
http://trkenfrm1.smi.usos.com/PTSInternetWeb/InterLabelDetail.do

Also I think most members mentioned some form of return recept confirmation with court. Just call the court clerk, hopefully they should advise.

To Snorlax, good luck with your case! Also perhaps return of Service varies from court to court.

Shvili

 

[wenlock]

I didn't search PACER, but when I went to my local federal court asking for a pro se package, I was told by the clerk that there are a lot of suits filed lately about the name check delays.

I also talked with a UCSIC officer today. He was very courteous and knowledgeable about name checks, and the 1447b law requirement. He said there is nothing USCIS can do unless FBI finishes name check. He doesn't know if a 1447b lawsuit will spark anything though. He also said FBI not only checks a candidate's record in the US, but also awaits results from his/her native country. In my case, FBI may be waiting for my record from the Chinese government. Oh my goodness! talking about dealing with bureaucracy. I mean bureaucraciessss.

I am not exactly sure that FBI name check process goes back to your home country specially in N-400 cases. Attorney General usually goes back to 5 year history of applicant for N-400 application. I am not sure how FBI name check goes to home country. Yes if your application is under special investigation then ya they go back and dig in to your history.

 

[z350]

I am not exactly sure that FBI name check process goes back to your home country specially in N-400 cases. Attorney General usually goes back to 5 year history of applicant for N-400 application. I am not sure how FBI name check goes to home country. Yes if your application is under special investigation then ya they go back and dig in to your history.

FBI can use information provided by special services from "friendly" countries.
As you understand it is not a case for China or Russia.
They can query agencies withing US. Most probably the story about 70 agencies involved in to it is rather theoretical case and used by officials to excuse low performance of NNCP. If they'll send some queries aboard it will be mission impossible for us to live that long when the answer may come back. 125 employees simply cannot handle 440K backlog in addition to annual 6.5M checks.
Does anyone knows about any successful endings of 1-2 spent in NC other then 1447b?

 

[snorlax]

Re. DUDE post:

From what I got, it looks like you do need to show return receipts:

San Jose Courthouse gave me a pamphlet of instructions, ex.: "what is the sertificate of service?"-which states: "After you complete service of the complaint and summons, you should file a "certificate of service" (or a "proof of service") with the court which shows when and how you served the complaint and summons on each defendant."

The next page is the blank form "Return of Service" where you should mark under method of service "other"-and write:"via USPS Certified Mail with Return Receipt Requested", and further in "stat-t of Service fees" it has $5.36 The next (and last page) is, "track and Confirm"-copy from the internet link, apparently. On it, under "search Results" it has a photo of a filled "Certified Mail Receipt" which you get after sending registered mail at the post office. The page shows the link:
http://trkenfrm1.smi.usos.com/PTSInternetWeb/InterLabelDetail.do

Also I think most members mentioned some form of return recept confirmation with court. Just call the court clerk, hopefully they should advise.

To Snorlax, good luck with your case! Also perhaps return of Service varies from court to court.

Shvili

Thanks, same to you!
Most certainly one has to file the “proof of service” with the court, which is the filled back side of the original stamped summons, the printouts of the USPS website tracking page and the USPS Certified Mail receipts attached – all according to the sample from page 479 post #7176. Following the Northern California Pro Se Handbook it should be sufficient to write: "via USPS Certified Mail” or "via USPS Registered Mail”. I think “… with Return Receipt Requested" is excessive as nowhere in the Northern California Handbook it says that Return Receipt in needed.
I am planning to file my proof of service with the San Jose court later this week and will let you know how it will have worked out withot the Return Receipts.

Best of luck to all!
snorlax

 

[liuym]

Motion or Answer ?

Dear Paz and Wenlock and other seniors,
We can expect how tough the AUSA will be in their motion, but I can
never expect this kind of reply, just found from pacer. Is this a motion
or answer ? Paz, Wenlock and other seniors, do you have any suggestions
how to answer or oppose this kind AUSA reply ?
For security purpose, I blocked the plaintiffs' name and their personal information. My case has been pending for more than a month, no furthur
motion yet. I am from the same court as this plaintiff, I am a littled worried
my case will be similiar to this one. Please input your invaluable suggestions.

Thanks

 

[786riz]

FBI can use information provided by special services from "friendly" countries.
As you understand it is not a case for China or Russia.
They can query agencies withing US. Most probably the story about 70 agencies involved in to it is rather theoretical case and used by officials to excuse low performance of NNCP. If they'll send some queries aboard it will be mission impossible for us to live that long when the answer may come back. 125 employees simply cannot handle 440K backlog in addition to annual 6.5M checks.
Does anyone knows about any successful endings of 1-2 spent in NC other then 1447b?

I spoke to a former AUSA who told me that for name check process, FBI does not go outside the country for investigation. FBI only searches in their database (per him no 5 year time limit) but if they saw something in their files, then they search in other countries.
Thank you.

 

[786riz]

Dear Paz and Wenlock and other seniors,
We can expect how tough the AUSA will be in their motion, but I can
never expect this kind of reply, just found from pacer. Is this a motion
or answer ? Paz, Wenlock and other seniors, do you have any suggestions
how to answer or oppose this kind AUSA reply ?
For security purpose, I blocked the plaintiffs' name and their personal information. My case has been pending for more than a month, no furthur
motion yet. I am from the same court as this plaintiff, I am a littled worried
my case will be similiar to this one. Please input your invaluable suggestions.

Thanks

Hi liuym,
This is just standard answer to the complaint. It will buy some time to the AUSA. Before this answer, did AUSA ask for any extensions?
Thank you.

 

[lotechguy]

Dear Paz and Wenlock and other seniors,
We can expect how tough the AUSA will be in their motion, but I can
never expect this kind of reply, just found from pacer. Is this a motion
or answer ? Paz, Wenlock and other seniors, do you have any suggestions
how to answer or oppose this kind AUSA reply ?
For security purpose, I blocked the plaintiffs' name and their personal information. My case has been pending for more than a month, no furthur
motion yet. I am from the same court as this plaintiff, I am a littled worried
my case will be similiar to this one. Please input your invaluable suggestions.

Thanks

This is not a motion to dismiss. Its just an answer. There are not asking for dismissal but to deny the relief ie expidited processing. Several districts have begun filing these kinds of answers and motions. In the next 2 moths we have to see how the judges will rule on this. By June this year the picture on WOM should become more clearer with some decisions by judges being out there by that time.

 

[paz1960]

Dear Paz and Wenlock and other seniors,
We can expect how tough the AUSA will be in their motion, but I can
never expect this kind of reply, just found from pacer. Is this a motion
or answer ? Paz, Wenlock and other seniors, do you have any suggestions
how to answer or oppose this kind AUSA reply ?
For security purpose, I blocked the plaintiffs' name and their personal information. My case has been pending for more than a month, no furthur
motion yet. I am from the same court as this plaintiff, I am a littled worried
my case will be similiar to this one. Please input your invaluable suggestions.

Thanks

This is definitely an Answer which doesn't require any Opposition. Only a motion can be opposed.

I see immediately one problem with Plaintiffs' original complaint. They asked in their Prayer (Par. 23) at (b) "requiring Defendants to provide the Plaintiffs a Notice of Approval". The Court can't compel USCIS for a certain outcome of the adjudication. Adjudicating is non-discretionary, the outcome of the adjudication (i.e., approval or denial) is discretionary. WOM cases can ask the courts only to compel an agency to perform a non-discretionary duty in reasonable time.

If AUSA will not file a Motion to Dismiss, the next step will be initiated by the Court. It can be an Initial Case Management conference or pre-trial hearing, or something similar. Ultimately it will go to trial and both parties will have a chance to present their cases in front of the judge.