It would be helpful if you tell us at least what kind of immigration benefit are you asking...it's difficult to guess
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Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
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It would be helpful if you tell us at least what kind of immigration benefit are you asking...it's difficult to guess
Hi, paz and wenlock......
how many days i have to file my OPP after the AUSA filed MTD? Should the judge or the court send me something after they get the MTD? I got it from email, but i didn't get the paper file yet.
Usually you get 20 days but some local rules may have different rules. Best way to learn is by calling court clerk. Ask him that defendents filed motion to dismiss how many days you have to respond. Mostly with Pro se litigants most of the courts send out letter informing Pro Se litigant about how many days are allowed for filling response.
Dear Paz and Wenlock,
how should we response to the MTD if the defendants using 5USC 704, the court lacks subject mater jurisdiction because "final decision is not made"?
Thank you very much.
If possible attach your motion to dismiss you can strip out your personal information if you like.
bill introduced, but would it help i-485
http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/03-07-2007/0004541634&EDATE=
http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/03-07-2007/0004541634&EDATE=
OK, let's try this one more time. I forgot my pendrive at my work, so I can't cite specific paragraphs and cases, but I'll try my best to make my point without these.
The naturalization process has several steps, one follows the previous and you can't change the order of these steps.
After you apply for naturalization, USCIS initiates an investigation, which contains also the name check where most of us got stuck. There is no time limit prescribed in any of the statues or regulations, how much time they can take to complete this investigation. After this is done, they will examine the applicant, this is the interview. (USCIS usually disputes this and tries, in most of the cases unsuccessfully, to show that the examination is a process and the name check is part of it). From the day when USICS interviewed the applicant, 1447(b) kicks in and the 120 day clock start ticking. If they don't adjudicate the application, applicant can file a complaint with the district court and ask for a hearing. The court can conduct a hearing and decide the matter or can remand the matter to the Service with specific instructions.
So UNTIL the applicant didn't have his/her interview, there is no time limit for USCIS how long they can take to call you for the interview. In these cases only the mandamus+APA can help, but it is a lot more difficult case, because you have to prove that USCIS owes you a non discretionary duty to adjudicate your case without an unreasonable delay. What is unreasonable, it is discretionary and will depend on the court.
If you are lucky and you already had your interview, you don't need the mandamus because of 1447(b). The first thing is to fight the USCIS twisted interpretation of the word "examination" (they will claim that the name check is part of it so the 120 day clock didn't even start) to prove that the court has subject matter jurisdiction. But this is only half of the story, because no court will determine the matter (i.e., grant you citizenship) without the finished background check. So the judge will elect the second option conferred by 1447(b): to remand the case back to the Service. And here is the second critical issue: to convince the judge to order certain actions in certain timeframe. Otherways, if the remand is like: "USCIS should adjudicate application immediately after the FBI finishes the background check", this will not solve your problem.
You are correct when you put the emphasis on the word "shall" in your citation from 335.3. But only AFTER applicant has complied with all requirements for naturalization, which include also the "full criminal background check". The name check is part of it, so no name check completed, no adjudication. I wonder why so many people left out FBI from their defendants' list... Remeber: if the sequence is A then B then C..., you can't ask C before A and B is not finished. If you don't sue the agency responsible for B, the court can't compel them to complete B and if the court compels the agency responsible for C, without B being completed, the only way to comply with the court order is to deny the application, because the law mandated B before C.
Finally, you are right. "it is the sense of the Congress..." means that Congress recommends this timeframe but it is not mandatory. If this would be mandatory, all these cases (N-400, I-485) would be trivial. They didn't adjudicate in 180 days, so they broke the law and you can sue them. As you see from this forum and many, many WOM and 1447(b) cases, life is more complicated. Absolutely none of the lawsuits were won because this "it is the sense of the Congress...180 days..."
I hope that this helps.
Paz,
your patience is extraordinary! Thank you for explaining it again. After you re-phrazed it, I see your emphasis is on background check process (which also includes the name check), and you say, UNTIL this process is completed, USCIS doesn't owe any duty. I agree. What I didn't make clear in my reasoning, by Mandamus, what USCIS (and mostly FBI) owes us is the duty to PROCESS the background check within "reasonable time". But "reasonable" is in a judge's discretion to define. And (I agree with you again), it's much harder to win than a plain& simple 120 days rule.
My only comment is, most law suits filed lately (as I see) still include Mandamus statues (in addition to 1447b) because (as I guess) we still need to compel FBI to process Name check. And Mandamus makes the argument stronger. Without it, a judge may just remand it to USCIS without further instruction and as you said, we end up on the stage where we started. And I agree with everything else in your answer.
WHat I hope is, most sensible judges would consider almost 3 years waiting (since the day of the interview) quite unreasonable time to wait for a nc and will remand it to USCIS with a time limit instruction for the FBI.
In addition, another argument no one mentioned: our name check is the second time in a row, as we have passed it (supposedly) for the GC. In my husband's case, it took them about 6 months total time to issue the green card. After that, he also acquired a rifle license (in order to buy a rifle), which also required a background check. That background check took 2 weeks (which is in accordance to the Brady's law (?)). So even assuming second nc takes longer 'cause he lived in the US and this time needs to be also checked, and remembering that the rifle license criminal check only took 2 weeks, isn't it obvious that 3+years (after nc started) of waiting is WAY BEYOND reasonable comparible to gc wait of 6 months??? I understand, everyone else here may not have this extra criminal check but may think of something to built similar argument. (I don't think AUSA may argue, that the first time the nc for the gc was not as thorough as this time, because it should actually be the opposite: when they admit an alien to reside, they must check him rather more thoroughly than when he continues to live in US without any criminal record).
Thank you very much!
Shvili.
Case history:
N-400 filed October 2003.
Interview May 2004
nc initiated October 2003,
still waiting.
guys,
I've filed i-485 wom end of January; got a notice for FP. When appeared for fingerprinting today, the officer refused to take FP because of the damn cut on my finger. He did put a stamp on my Notice with today's date and told me to come back later. Any advice to indemnify myself?
Thanks!
I've filed i-485 wom end of January; got a notice for FP. When appeared for fingerprinting today, the officer refused to take FP because of the damn cut on my finger. He did put a stamp on my Notice with today's date and told me to come back later. Any advice to indemnify myself?
Thanks!
You are right paz, although I am unlucky
In fact the morning right before filing my 1447b complaint, I called the service line one last time. The CIS agent said "the law does not require CIS to adjudicate within 120 days after the interview, the law only says the applicant can sue if there is no decision after 120 days". To me, it almost sounded like CIS encourages people to sue. So I went to the court and filed.
The officer is wrong. According to sec. 335.3 they are supposed to adjudicate application either before the exam or within 120 days:
Sec. 335.3 Determination on application; continuance of examination.
(a) The Service officer shall grant the application if the applicant
has complied with all requirements for naturalization under this
chapter. A decision to grant or deny the application shall be made at
the time of the initial examination or within 120-days after the date of
the initial examination of the applicant for naturalization under
Sec. 335.2. The applicant shall be notified that the application has
been granted or denied and, if the application has been granted, of the
procedures to be followed for the administration of the oath of allegiance pursuant to part 337 of this chapter.
It would be helpful if you tell us at least what kind of immigration benefit are you asking...it's difficult to guess
Dear Paz,
My case is I-485, pending on name check for 30 months, figureprint twice. Filed WOM jan 2007 to Compel FBI and USCIS to take action to complete the name check in a reasonable time.
Thanks.
If possible attach your motion to dismiss you can strip out your personal information if you like.
Dear Paz and Wenlock,
My case is I-485, pending on name check for 30 months. I filed WOM in Jan, 2007. I have not received MTD yet. But sart preparing one in ahead. After reading many posters in this forum, I am trying to think of all the possiblities that Defenants may raise. Currenlty I found the claim under 5 USC 704, might be one of the tougest ones and I have no idea how to response.
Thanks.
iwantitnow
New Member
Thank you
Thank you for the information. I'm not sure if I would have time to do it myself. I would just go for initial consultation and see how much time and money I should anticipate if I were to hire him.
Thank you!
From what I searched in PACER, there is a John Alcorn immigration law firm in Irvine which has filed a couple of 1447 litigations at the US District Court - Central district. I didn't use a lawyer because it's too expensive plus there is enough information online, and above all, the law 8 U.S.C 1447(b) itself is quite plain and simple.
Thank you for the information. I'm not sure if I would have time to do it myself. I would just go for initial consultation and see how much time and money I should anticipate if I were to hire him.
Thank you!
Well, I have a different take, which I think is important to clarify with gurus who know. The basis of WOM for AOS applicant is NOT about whether AOS applicant has the right to green card ("the status" in your word below). AOS WOM suit only compells the government to take an action, and that action could lead to either approval or denial. In another word, AOS WOM suit's basis is AOS applicant has the right to a timely decision, not an approval. Am I making sense?
...Here is the main point, which may be hard to argue in AOS cases:
as I understand, AOS is a discretionary act, i.e., applicant has no right to the status, and it is a benefit, not a right, but naturalization appl-nt has a right to apply and a right to receive it (if he complied with all rules)...
Mingjing,
What I meant (which was discussed in detail by Paz answering my questions above and below), is: To grant AOS is discretionary, but u could use WOM to compel them to adjudicate (i.e. decide AOS) in a "reasonable time". The hardest part is, to convince judge that the time it took is unreasonable. SO I agree with you, but WOM may be hard as I understand.
Shvili
Well, I have a different take, which I think is important to clarify with gurus who know. The basis of WOM for AOS applicant is NOT about whether AOS applicant has the right to green card ("the status" in your word below). AOS WOM suit only compells the government to take an action, and that action could lead to either approval or denial. In another word, AOS WOM suit's basis is AOS applicant has the right to a timely decision, not an approval. Am I making sense?
I concure you ask for adjudication of application not approval or disapproval. Adjudication is the act that leads to adjustment or no adjustment of status. It is defendents duty to adjudicate with in reasonable time. What is reasonable time that is where you have to convince Judge that delay you are experiencing is unresonable.
Wenlock,
I agree with you. Also, according to the most recent WOM cases posted, it looks like more than 3.5 yrs. delay in nc may be considered ureasonable (Lazli case just posted). So things may be looking better, depending on the wait and personal circumstances.
paz, i did find the related clause on local district page
(1) No application will be heard unless the moving papers and a brief, prepared in accordance withL.Civ.R. 7.2, and proof or acknowledgment of service on all other parties, are filed with the Clerk at least 24 days prior to the noticed motion date. The brief shall be a separate document for
submission to the Court, and shall note the motion date on the cover page.
(2) The brief and papers in opposition to a motion, specifying the motion date on the cover page, with proof or acknowledgment of service thereof on all other parties, must be filed with the Clerk at least 14 days prior to the original motion date, unless the Court otherwise orders, or an automatic
extension is obtained pursuant to L.Civ.R. 7.1(d)(5).
Is this mean i have 14 days after the MTD date to file my OPP?
My OPP only mail to the court and ausa? or all other defendents?
(1) No application will be heard unless the moving papers and a brief, prepared in accordance withL.Civ.R. 7.2, and proof or acknowledgment of service on all other parties, are filed with the Clerk at least 24 days prior to the noticed motion date. The brief shall be a separate document for
submission to the Court, and shall note the motion date on the cover page.
(2) The brief and papers in opposition to a motion, specifying the motion date on the cover page, with proof or acknowledgment of service thereof on all other parties, must be filed with the Clerk at least 14 days prior to the original motion date, unless the Court otherwise orders, or an automatic
extension is obtained pursuant to L.Civ.R. 7.1(d)(5).
Is this mean i have 14 days after the MTD date to file my OPP?
My OPP only mail to the court and ausa? or all other defendents?
(1) No application will be heard unless the moving papers and a brief, prepared in accordance withL.Civ.R. 7.2, and proof or acknowledgment of service on all other parties, are filed with the Clerk at least 24 days prior to the noticed motion date. The brief shall be a separate document for
submission to the Court, and shall note the motion date on the cover page.
(2) The brief and papers in opposition to a motion, specifying the motion date on the cover page, with proof or acknowledgment of service thereof on all other parties, must be filed with the Clerk at least 14 days prior to the original motion date, unless the Court otherwise orders, or an automatic
extension is obtained pursuant to L.Civ.R. 7.1(d)(5).
Is this mean i have 14 days after the MTD date to file my OPP?
My OPP only mail to the court and ausa? or all other defendents?
You have to file your Opposition with the Court and send a copy to AUSA with certified mail. You will need to file a Proof of Service after that showing how and when did you serve defendants' counsel (AUSA) with the Opposition. You don't have to mail the Opposition to all of the Defendants. After the initial serving of the complaint and summonses, AUSA is representing all of the Defendants in such cases.
Filed for I -485 in August 2005. Had first code 3 fingerprint in Oct 2005. Name check was pending for a long time. Filed WOM in Feb 6, 2007. On Feb 26 Judge ordered defendants to respond within 20 days. Received a second code 3 fingerprint appointment. Will have it done next week. Does any one know how long it takes the I-485 to get approved after second fingerprint? I am FED UPPPPPPPPPPP.
plz keep us updated.. i filed around your time !
did u contact your AUSA? did he mention requesting to have your name check expedited? and do u mind telling us what state are you in?
as for your question... this is a definitly a very good sign... but i don't think anyone can answer it accurately
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5 Usc 704
Dear Paz and Wenlock,
This is the MTD that triggers me to think about how to fight against 5 USC 704. I really appreciate your kind help.
Thanks.
It would be helpful if you tell us at least what kind of immigration benefit are you asking...it's difficult to guess
Dear Paz and Wenlock,
This is the MTD that triggers me to think about how to fight against 5 USC 704. I really appreciate your kind help.
Thanks.
Last edited by a moderator:
Dear Paz and Wenlock,
This is the MTD that triggers me to think about how to fight against 5 USC 704. I really appreciate your kind help.
Thanks.
Is it your case? Did you file Opposition to motion to dismiss?
Is it your case? Did you file Opposition to motion to dismiss?
No, this is not my case. Some one posted it a couple days ago. I read it but have no idea how to response to the defendants claim.
thanks
Mr.Forever485
Registered Users (C)
Stuck in Name Check. Planning to WOM
I am stuck in name check since Jan 2003. I have done everything ( congressman, senator, firt lady, letter to fbi, etc). I am 100% fedup and planning to WOM. but I have very little knowledge about it. I started to read this thread. This is a long thread, so I started from bottom. Any idea how I can get to know more about WOM and related stuffs? For example,
1. How do I find out case "ibrahim Vs Chertoff"
2. What is a motion and what is discovery?
3. What is 1447(b) ? Is it different than WOM?
I am stuck in very basic questions. I apologize if these are stupid questions.
I am stuck in name check since Jan 2003. I have done everything ( congressman, senator, firt lady, letter to fbi, etc). I am 100% fedup and planning to WOM. but I have very little knowledge about it. I started to read this thread. This is a long thread, so I started from bottom. Any idea how I can get to know more about WOM and related stuffs? For example,
1. How do I find out case "ibrahim Vs Chertoff"
2. What is a motion and what is discovery?
3. What is 1447(b) ? Is it different than WOM?
I am stuck in very basic questions. I apologize if these are stupid questions.
See ibrahim Vs Chertoff in Eastern Michigan District.