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Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
dissmissed with prejudice and dissmissed without prejudice?
dismissed with prejudice means you have used your right of litigation in this particular subject matter. You can not bring same matter in front of court any more.
dismissed with out prejudice means you have not given up your right to bring same subject matter in front of court. You can open same or file another lawsuit regarding same captioned issue.
It is always better to dismiss case without prejudice. But AUSA will stress to dismiss with prejudice so that you give up your right for bring same matter to court again.
In US there is law you can not get trial for same crime twice period. If you commit crime you can not be punished for same crime twice. Best example is OJ simpson case he got away with murder trial even if he comes back and say ya i commited that crime no one can run trial against him again.
Mark Brown
Registered Users (C)
Very useful for writing opposition.
A correction, Razaq's case is not I-485, but I-130.
Many of us like to submit a list our inquries with FBI or USCIS , Razaq's court order teaches us one lesson: "Ironically, it is evidence that petitioners have submitted that indicates that the government took a series of actions in response to petitioner's I-130 application between September 13, 2004, and August 11, 2006."
USCIS and FBI (specifically FBI) generally cannot show what acts they took, but if you show too much details on your inquries, it appears they are working diligently on your case. We all experience that USCIS agents often give contradictory answers to our inquires, so most likely it's just some excuses they use to dismiss your call/letter. It you show those unvalidated and unofficial answers to the court, it can work against you.
Very useful for writing opposition.
Thank you for posting this. It is very interesting, I had a phone conference at the almost same time as these 2 previous cases and also in N CA with magistrate judge. Basically my AUSA told to Magistrate Judge to shut up and she will file MTD. And Magistrated Judge could not argue... and based on these 2 cases it is different. Probably here an attorneys were involved and I am without one.
Ok, will see if my case will be dismissed this week...
Thank you for posting this. It is very interesting, I had a phone conference at the almost same time as these 2 previous cases and also in N CA with magistrate judge. Basically my AUSA told to Magistrate Judge to shut up and she will file MTD. And Magistrated Judge could not argue... and based on these 2 cases it is different. Probably here an attorneys were involved and I am without one.
Ok, will see if my case will be dismissed this week...
Hi kefira:
No reason to be depressed!
Let the AUSA file MTD, file your counter-motion and see what happens. You have the right to escalate your case to district judge if you disagree with the magistrate judge’s decision. Easier said than done, but just keep pushing!
Best of luck!
snorlax
don't scare file your OPP TO MTD, I am doing it
Pursuant to Rule 78 of the Federal Rules of Civil Procedure, a motion will be decided on the papers submitted unless a party requests oral argument and the request is granted by the Judge or Magistrate Judge. Any request for oral argument shall be clearly marked on the front page of a brief or other document filed by the party making such request. In the absence of a request for oral argument, the Court, sua sponte, may direct that oral argument be held.
according to this rule, should I have to put my request for oral argument on the front page of my OPP to MTD? Because the AUSA wanted my case ended on papers which I don't want.
Pursuant to Rule 78 of the Federal Rules of Civil Procedure, a motion will be decided on the papers submitted unless a party requests oral argument and the request is granted by the Judge or Magistrate Judge. Any request for oral argument shall be clearly marked on the front page of a brief or other document filed by the party making such request. In the absence of a request for oral argument, the Court, sua sponte, may direct that oral argument be held.
according to this rule, should I have to put my request for oral argument on the front page of my OPP to MTD? Because the AUSA wanted my case ended on papers which I don't want.
Plaese reply!
Is your case 1447b? please keep us update and can you post AUSA's motion to dissmiss please. You can take out the persoanl info. Good luck! regards, dude
Hi Team,
Thank you so much for the memos, thses will be the part of my counter motion to dismiss.
Is your case 1447b? please keep us update and can you post AUSA's motion to dissmiss please. You can take out the persoanl info. Good luck! regards, dude
Hi kefira:
No reason to be depressed!
Let the AUSA file MTD, file your counter-motion and see what happens. You have the right to escalate your case to district judge if you disagree with the magistrate judge’s decision. Easier said than done, but just keep pushing!
Best of luck!
snorlax
This is already history. AUSA filed MTD, I filed OPP, 4 days later AUSA filed additional memorandum for their MTD. So now I have no idea what will be next, I mean I hope that I will have a hearing this week, but if judge dismiss the case, then I have no other options.
Is your case 1447b? please keep us update and can you post AUSA's motion to dissmiss please. You can take out the persoanl info. Good luck! regards, dude
Hi DUDE,
Yes, my case in 1447b.
No MTD yet, per my calculation it will be in next three months. I have prepared mine counter MTD (with the help of paz's motion, thank you paz) and keep adding more updates.
Per my AUSA, she spoke to FBI last Monday with no progress on their side.
Thank you.
Opp
Kefira,
would you mind to post or send by PM your OPP (of, course w/o personal info)? I would really appreciate it... I think our cases are pretty similar (marriage-based I-485)... I am working on mine OPP, and it will be nice to have another example of I-485 OPP.
Thank you in advance,
Alika
Kefira,
would you mind to post or send by PM your OPP (of, course w/o personal info)? I would really appreciate it... I think our cases are pretty similar (marriage-based I-485)... I am working on mine OPP, and it will be nice to have another example of I-485 OPP.
Thank you in advance,
Alika
This is already history. AUSA filed MTD, I filed OPP, 4 days later AUSA filed additional memorandum for their MTD. So now I have no idea what will be next, I mean I hope that I will have a hearing this week, but if judge dismiss the case, then I have no other options.
haven't slept for 24 hours
I spent one day and one night together, go through this forum from page 500 to page 600, and my complaine, and MTD. search and google as crazy as i can to understand the juristic term.
I didn't make mistake in my complaine, my "reasonable" delay adds up to 60 months, i forgot add my waiting time for 130 due to paper lost and computer broke down,i can not show the exhibit. guess what, in MTD they mention that.i also re-download some file into different fold in my computer, the priviouse downloading was a mess in one folder. everything stay together. did something else for draft my opp. have to sleep now for the stressful work tomorrow. new week, new battle.
life was something about working and waiting, but now, it's about studying and fighting.good night everyone
I spent one day and one night together, go through this forum from page 500 to page 600, and my complaine, and MTD. search and google as crazy as i can to understand the juristic term.
I didn't make mistake in my complaine, my "reasonable" delay adds up to 60 months, i forgot add my waiting time for 130 due to paper lost and computer broke down,i can not show the exhibit. guess what, in MTD they mention that.i also re-download some file into different fold in my computer, the priviouse downloading was a mess in one folder. everything stay together. did something else for draft my opp. have to sleep now for the stressful work tomorrow. new week, new battle.
life was something about working and waiting, but now, it's about studying and fighting.good night everyone
This is already history. AUSA filed MTD, I filed OPP, 4 days later AUSA filed additional memorandum for their MTD. So now I have no idea what will be next, I mean I hope that I will have a hearing this week, but if judge dismiss the case, then I have no other options.
I do not believe the magistrate judge will rule in AUSA’s favor unless there is some serious flaw in the Complaint or OPP, but this can be hardly expected from anyone following this forum. I would expect either a hearing or favorable ruling, but would try to prepare escalating the case to the district judge.
Best of luck!
snorlax
Kefira,
would you mind to post or send by PM your OPP (of, course w/o personal info)? I would really appreciate it... I think our cases are pretty similar (marriage-based I-485)... I am working on mine OPP, and it will be nice to have another example of I-485 OPP.
Thank you in advance,
Alika
Alika,
There is no point for me to send u my OPP, since first of all nobody knows yet if it is really good. Second I used almost every sentence from the OPP that were published here on the forum (basically AUASA argue standard things that 2 years are reasonable for delay and that Judge cannot rule, APA, etc. ) and Third-I answered and questioned every paragraph that they put in their MTD. So, just follow OPP from this forum and then answer sentence by sentence for your MTD with examples from your personal life in US. For example before my marriage I had a working visa, that I received after 9/11, so I questioned why my NC was done at least 3 times and I had no problems living here and nobody tried to deport me or invite me for the investigation.
Good luck
A correction, Razaq's case is not I-485, but I-130.
Many of us like to submit a list our inquries with FBI or USCIS , Razaq's court order teaches us one lesson: "Ironically, it is evidence that petitioners have submitted that indicates that the government took a series of actions in response to petitioner's I-130 application between September 13, 2004, and August 11, 2006."
USCIS and FBI (specifically FBI) generally cannot show what acts they took, but if you show too much details on your inquries, it appears they are working diligently on your case. We all experience that USCIS agents often give contradictory answers to our inquires, so most likely it's just some excuses they use to dismiss your call/letter. It you show those unvalidated and unofficial answers to the court, it can work against you.
Thank you, Mark Brown,
Great points in both orders, especially for WOM petitioners!
One more mistake-Judge Chen's order signed with a wrong year (last page, yr. 2006 instead of 2007).
Otherwise, great arguments especially on pg.6 and 8
On I-130 case- also great argt on p. 6 and 10.
i am in similar situation--criminal offense--
i am in similar sitution, i have misdmeanor offense about 12 years ago, it happen 1995, i was only fine. i was told my offense were minor, but now i am scared to death, about the whole issue. i file wom, and my hearing date was set on march 19, 2007, i do not know what will happen, can government real deny my application because of this offense 12 years ago. and if they do how do i appeal to my case to court to be heard on en banc.
or appeal court.
i am in similar sitution, i have misdmeanor offense about 12 years ago, it happen 1995, i was only fine. i was told my offense were minor, but now i am scared to death, about the whole issue. i file wom, and my hearing date was set on march 19, 2007, i do not know what will happen, can government real deny my application because of this offense 12 years ago. and if they do how do i appeal to my case to court to be heard on en banc.
or appeal court.
i am in similar situation
i am in similar situation men, i had criminal offense in 1995, i was convicted on misdmeanor offensive and i was fine and never went to jail. now i regret for what i did. it is hunting me a lot and i can not turn the clock back. felony is more serious, and five years i think it is too short i think you should have waited about 7years, or more. second, if your criminal records was committed during statutory period, they migth give you hard time. it happen after or before staturory period, you are ok. --The staturoy period, is the period given o all legal resident to stay clean. i am not quite sure but i think it is five years. and if you were married to citizen it is 3years. if you stay clean during this period when you got your residence then i think you are ok. but chek this out and let me know.
Hi,
Did anybody are in similar situation before wherein a felony crime was committed 5 years before naturalization application and the felony is a non-aggravated felony and receive no imprisonment sentence before but just with probattion sentence only. My question is whether it will affect my application for 1447(b) since the USCIS has not response to me eventhough 120 days is already up. I understand that the government cannot denied my naturalization petition because the felony was comitted more than 5 years and without any imprisonment imposed on me. Thank u. Can anyone share with me of any such encounter?
i am in similar situation men, i had criminal offense in 1995, i was convicted on misdmeanor offensive and i was fine and never went to jail. now i regret for what i did. it is hunting me a lot and i can not turn the clock back. felony is more serious, and five years i think it is too short i think you should have waited about 7years, or more. second, if your criminal records was committed during statutory period, they migth give you hard time. it happen after or before staturory period, you are ok. --The staturoy period, is the period given o all legal resident to stay clean. i am not quite sure but i think it is five years. and if you were married to citizen it is 3years. if you stay clean during this period when you got your residence then i think you are ok. but chek this out and let me know.
how do you used pacer
can anyone help me and send me instruction on how to use pacer. i am trying to find out about my case. i live in california Los Angeles.
i am new to this--sorry i got to start somewhere!!! some body upgrade my skills-- i all the way at the buttom
Hello msenior, welcome to this forum.
Defendants are using a case which they won in the Eastern District of Virginia, Alexandria division, the judge was T.S. Elliot III. This case is Danilov v. Aguirre, case no. 1:05-cv-00101-TSE-TRJ, (E.D. Va, May 26, 2005).
Unfortunately, if you are in the same district, your chances are worse than in some other districts, although there are plenty of examples when one judge in a district is very hostile to such Plaintiffs (see judge Kenneth M. Hoyt, in Houston, Tx, e.g., Siddiqui v. Chertoff, case no. 4:06-mc-00350 (S.D. Tx, 08/24/2006)), but others are reasonable.
Because defendants filed a motion, you should file an Opposition to Defendants' Motion to Dismiss. You should consult the Local Rules of your court and see how many days you have till you can file this Opposition. In my court the limit is 28 days and the Opposition (as well as the original motion) is limited to 25 pages.
Your Opposition should concentrate in convincing the Court why the examination=interview, so more than 120 days passed since your interview, so the court has jurisdiction. For this you will need the following:
(i) The majority of opinions reject Defendants' definition of "examination."
(ii) The text of 8 U.S.C. § 1447(b) indicates that the date of examination is the date USCIS interviews the applicant.
(iii) The statutory context demonstrates that the terms “examination” and “investigation” refer to two distinct stages of naturalization.
(iv) Interpreting the 120-day period as running from date on which USCIS interviews the applicant comports with Congressional intent.
But this is only the first step. If the Court agrees with you and assumes jurisdiction, there is still a possibility that there will be no hearing and the case will be remanded to USCIS with some instruction. If this instruction is something like: "USCIS should adjudicate Plaintiff's application immediately after the FBI name check is completed", you are practically back to square one. You will need to concentrate to convince the judge that in the event of remand, the instruction should contain a precise timetable, i.e., ordering FBI to complete your name check in XX days and ordering USCIS to adjudicate you application in YY days after the FBI completed your name check.
From your posting I suspect that you are just at the beginning of this journey, albeight you are a little late, because AUSA already filed a motion to dismiss. I think that you wasted valuable time what you could use to prepare yourself for a fight. There is a lot of useful info posted on this forum, as well as many cases what were successful and accessible with PACER.
One place where you can find citations for many successful cases is at:
http://www.ailf.org/lac/natz_delay0806.shtml#336
Using PACER you can retrieve any document from these cases, and there you will find good samples of the Opposition you will need to write.
Good luck!
can anyone help me and send me instruction on how to use pacer. i am trying to find out about my case. i live in california Los Angeles.
i am new to this--sorry i got to start somewhere!!! some body upgrade my skills-- i all the way at the buttom
how do you used pacer
how do you use the pacer, i am trying to find my case, and other cases to learn how to fight for my case, can anyone upgrade my skills. and send my instruction on how to search. --- please do not laugh!!-- not everyone is like you. some of us we are dam.--give me a chance i am learning. soon i will catch up with you!
Paz,
Thanks for your response. I have joined the pacers ansd "Yes", I am willing to fight my case and would try my best.
how do you use the pacer, i am trying to find my case, and other cases to learn how to fight for my case, can anyone upgrade my skills. and send my instruction on how to search. --- please do not laugh!!-- not everyone is like you. some of us we are dam.--give me a chance i am learning. soon i will catch up with you!
Opp-2
Kefira,
Thanks for your reply. I hope everything will be fine with your case. Good luck.
I had an initial hearing a few days ago. Both Judge and AUSA were very sympathetic to me. Since the hearing was before the 60 days deadline, no major decisions were made. Basically the Judge asked AUSA to act on my complaint, and set the second hearing after the deadline.
While AUSA was very nice and sympathetic, I believe that he will still do whatever his clients want to do. So, I am drafting my OPP. Well, in generic terms at the moment since I don't have any specifics related to my case. As you mentioned before, there are two major arguments raised by AUSA: (1) the lack of jurisdiction, and (2) unreasonable delay. So, I am covering that part at the moment.
Alika
Kefira,
Thanks for your reply. I hope everything will be fine with your case. Good luck.
I had an initial hearing a few days ago. Both Judge and AUSA were very sympathetic to me. Since the hearing was before the 60 days deadline, no major decisions were made. Basically the Judge asked AUSA to act on my complaint, and set the second hearing after the deadline.
While AUSA was very nice and sympathetic, I believe that he will still do whatever his clients want to do. So, I am drafting my OPP. Well, in generic terms at the moment since I don't have any specifics related to my case. As you mentioned before, there are two major arguments raised by AUSA: (1) the lack of jurisdiction, and (2) unreasonable delay. So, I am covering that part at the moment.
Alika
Alika,
There is no point for me to send u my OPP, since first of all nobody knows yet if it is really good. Second I used almost every sentence from the OPP that were published here on the forum (basically AUASA argue standard things that 2 years are reasonable for delay and that Judge cannot rule, APA, etc. ) and Third-I answered and questioned every paragraph that they put in their MTD. So, just follow OPP from this forum and then answer sentence by sentence for your MTD with examples from your personal life in US. For example before my marriage I had a working visa, that I received after 9/11, so I questioned why my NC was done at least 3 times and I had no problems living here and nobody tried to deport me or invite me for the investigation.
Good luck
Yes, of course we should all of us send support letters to Senator Obama and our local senator(s) as soon as possible.
Citizenship Promotion Act of 2007 by U.S. Senator Barack Obama (D-IL) and U.S. Rep. Luis Gutierrez (D-IL):
"In addition, the CPA would strengthen our national security by providing for greater accountability in the system of conducting background checks on naturalization applicants. Many naturalization applicants have experienced lengthy waiting times during their application processing because these checks are not completed in a timely manner. The bill generally would require the FBI to complete those background checks within 90 days, and impose documentation and Congressional reporting requirements on the FBI if background check delays for specific applicants extend beyond that period. The CPA also would mandate a comprehensive Government Accountability Office (GAO) study on the FBI's background checks procedures."
I have quoted some part of the bill...
Do you think we should send support letters to the senator, will that add weight ??? What do you all think??
I am not sure when and if it will ever be immplemented... But may be writing to senator supporting him will help?? Just expressing my opinion..