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

[united2007]

A Bad case or a good case?

Hi Team,
Here are some more very recent successful cases that I am citing in my motion.


Qazi v. Gonzales, No. H-06-1574, 2007 WL 446040 (S.D.Tex. Feb. 6, 2007) (ordering Gonzalez to direct the FBI to complete the required background check within the next 120 days and deliver to CIS. CIS ordered to make prompt determination. Case administratively closed with Plaintiffs right to reinstatement upon notification); Lazli v. USCIS, No 05-CV-1680-BR, 2007 WL 496351(D. Or. Feb. 12, 2007) (Gonzales ordered to instruct FBI to complete checks within 90 days; CIS ordered to complete checks within 90 days; and CIS ordered to adjudicate naturalization application within 120 days and file copy of adjudication with Court within 5 business days of adjudication); Aarda v. USCIS, et. al., No. 06-1561 RHKJAJB, 2007 WL 465220 (D. Minn. Feb. 8, 2007) (CIS and defendants ordered to complete all background checks as necessary to process naturalization application and that the required action be completed within 120 days of said order. Court will retain jurisdiction to ensure compliance); Hussein v. Gonzales, No. 306-CV-497J-32MCR, 2007 WL 328691 (M.D. Fla. Jan. 31, 2007) (FBI and CIS are directed to act on Plaintiffs naturalization application no later than March 26, 2007); Manzoor v. Chertoff, et. al., No. 2:06cv455, 2007 VL 413227 (E.D. Va. February 8, 2007) (CIS directed to make a decision within 120 days of order); Bahran Mechanic v. DHS, et. al., No. 4-06-3524, 2007 U.S. Dist. Lexis 1154 (S.D. Tex. Feb. 20, 2007) (ordered to complete investigation as expeditiously as possible, case administratively closed, but Plaintiff may reinstate if further review proves necessary)

Hi,

Today I finally got the MTD from my AUSA. Its argument is not at all novel.

However, in his MTD, it heavily cited the following cases to support his point.
Manzoor v. Chertoff, et. al., 2007 WL 413227 (E.D. Va.)

However, I can't find his case. The only case I can find in E.D.Va. is the case you mentioned as follows:
Manzoor v. Chertoff, et. al., No. 2:06cv455, 2007 VL 413227 (E.D. Va. February 8, 2007) (CIS directed to make a decision within 120 days of order);

Strange!! It seems that this is indeed a good case for us. I tried to download the order from Pacer. Strange, my login/password does not work for this case. I wonder if it is possible for you to upload a copy of the order of this trial.

Many thanks for your help

 

[kefira]

Hi Team,
With the help of you and especially lotech, paz and couple of attorneys I am able to come up with the attached draft for my Motion to Alter or Amend. Please review and pass your comments.
Again thank you so much for your help in this matter.

Number each paragraph.

 

[united2007]

I got the MTD today

Hi, Friends:

Finally, I got the MTD today, as promised by the AUSA. or :-(

Frankly speaking, the MTD is not as strong as I originally thought. It cited many irrelavent cases, I think. However, the most damaging case is what I mentioned before: the Safadi WOM of AOS case.

Meanwhile, it cited a few other cases from some Circuit court. For example:

Castillo v. Ridge 445 F.3d 1057 (8th Cir. 2006)
Gomez-Chavez v. Perryman 308 F.3d 796 (7th Cir. 2002)
Li v. Agagan 2006 WL 637903 (8th Cir.)

I wonder if you can tell me how I can find the original Order. I don't know how to use the Pacer system to find the case in Cir. court.

Thank you very much in advance.

 

[786riz]

Hi,

Today I finally got the MTD from my AUSA. Its argument is not at all novel.

However, in his MTD, it heavily cited the following cases to support his point.
Manzoor v. Chertoff, et. al., 2007 WL 413227 (E.D. Va.)

However, I can't find his case. The only case I can find in E.D.Va. is the case you mentioned as follows:
Manzoor v. Chertoff, et. al., No. 2:06cv455, 2007 VL 413227 (E.D. Va. February 8, 2007) (CIS directed to make a decision within 120 days of order);

Strange!! It seems that this is indeed a good case for us. I tried to download the order from Pacer. Strange, my login/password does not work for this case. I wonder if it is possible for you to upload a copy of the order of this trial.

Many thanks for your help

Hi There,
Please find the attached order.
Thank you.

 

[snorlax]

Hi Team,
With the help of you and especially lotech, paz and couple of attorneys I am able to come up with the attached draft for my Motion to Alter or Amend. Please review and pass your comments.
Again thank you so much for your help in this matter.

IMHO, this is great text! Especially the legal argument part. I hope it will work for you!

My reading of this lady judge tells me that you should tread cautiously, trying not to irritate her. In my opinion it is better to avoid the use of word “reconsider’ wherever possible. I would change the footer to “MOTION TO ALTER OR AMEND” or even “MOTION TO AMEND”.

Just a couple of remarks

pp. 2-3
Remanding the matter to the USCIS without specific and detailed instructions would constitute an exercise in futility and would strip the Plaintiff of any meaningful relief.
Proposed edition:
Remanding the matter to the USCIS without specific time deadline and detailed instructions would be a cruel result in effect striping the Plaintiff of any meaningful relief.

C. STANDARD FOR RECONSIDERATION AND REOPENING
Proposed edition:
C. STANDARD OF REVIEW

a. USCIS should request immediately from FBI an expedited processing of Plaintiff’s background check;
Proposed edition:
a. USCIS should immediately request an expedited processing of Plaintiff’s background check from FBI;

Best of luck!
snorlax

 

[drm_ks]

Done

Interesting forum!

I just wanted to share my story and to encourage everyone to proceed with necessary steps, whenever necessary, the sooner the better. Pro se for 1447 is SIMPLE, please do not be affraid.

Dec 7, 2005: my N-400 application received.
March 3, 2006: fingerprinted.
May 4, 2006: interview passed, but name check pending.....
January 5, 2007: sent a 30-day warning to defendants, plus the US district attorney.
February 7, 2007: filed 1447, pro se at the US district court in San Jose, CA.
March 7, 2007: called Us district attorney office, politely inquired about my case. I was told that the day before (sic) they sent an expedite request to FBI.
March 14, 2007: received a call back, USCIS confirmed through the US district attorney's office, they are ready to adjudicate. They wanted me to drop the case first, by signing mutual stipulation. I refused to do so without a firmed up Oath date.
March 15, 2007: they called back.Proposed that stipulation says that the Oath will be scheduled,if thereis a space (??), some time in April. I rejected such text. They then found a spot for March 21 and they faxed me N-445 with that date on it. It was included into the stipulation. I accepted the stipulation.
March 21, 2007 (TODAY): I am happily staring at my brand new Certificate of Naturalization as I am typing this for you.

The only mistake I made since my interview: I should have sent them a 30-day warning in September 2006, after I called the National Service center and after I was told at the InfoPass that they don't care about 120 days... And then, I should have sued them in October.

The courts work, especially when you are up against bureaucratical free-riding on taxpayers monies, such as "USCIS long FBI name checks".
This is the gratest country in the world, checks and ballances in favor of all THE PEOPLELIVING IN AMERICA (citizens and citizens-to-be, The Bill of Rights). That's why we all dream about the day to become citizens. So as I said: go for it, the sooner the better!

All the best!

MANY thanks to all the bloggers. Very helpfullstuff here...

 

[snorlax]

\Today my wife called who was screaming with joy that she has my Oath Ceremony in her hands. It took me few minutes to fully comprehend that yes “WE DID IT”.

Dear whatha, congratulations!!!

We are happy for you – you can now enjoy your life and think of other problems – no CIS for you anymore. Hopefully we will eventually join you.

Cheers!
snorlax

 

[snorlax]

February 7, 2007: filed 1447, pro se at the US district court in San Jose, CA.
March 7, 2007: called Us district attorney office, politely inquired about my case. I was told that the day before (sic) they sent an expedite request to FBI.
March 14, 2007: received a call back, USCIS confirmed through the US district attorney's office, they are ready to adjudicate. They wanted me to drop the case first, by signing mutual stipulation. I refused to do so without a firmed up Oath date.
The only mistake I made since my interview: I should have sent them a 30-day warning in September 2006, after I called the National Service center and after I was told at the InfoPass that they don't care about 120 days... And then, I should have sued them in October.
MANY thanks to all the bloggers. Very helpfullstuff here...

One more success story, congratulations!!! Happy to hear that it has worked out for you!

I have filed in the same court and two weeks later got second FP appointment letter. I agree, with 1447b I should have filed immediately upon 120-day term expiration too. Hoped to be able to resolve this through letters, senator, congressman, etc…

Did you need to get your second FP done? Who from AUSAs office was assigned to your case? It looks like Kevin Ryan got kicked out of the office…

Cheers!
snorlax

 

[united2007]

it turns out to be a mixed case

Hi There,
Please find the attached order.
Thank you.

Thank you very much 786riz.
I carefully read the case, and found it turns out to be a mixed case.
Although the judge did remand to CIS with 120-day instruction, the language in the order is not at all friendly. The bottomline of his oppinion is that
====
In summary, regardless of whether an action such as this one
is dismissed for lack of subject matter jurisdiction or remanded to
CIS, the bottom line is the same. This court, like the
overwhelming majority of courts, will not assume CIS’s
responsibilities related to the adjudication of a particular
naturalization application merely because the FBI’s investigation
of the applicant has been delayed.
====

Therefore, we should be caucious when we cite this case.

 

[united2007]

One point to fight in the MTD

Hello Friends:

I carefully read the MTD from my AUSA, and noticed that the MTD does cited a case from Supreme court.

The Supreme Court of United States case is
Norton v. So. Utah Wilderness Alliance, 542 U.S. 55 (2004).

The MTD cited that this case claimed "A §706(1) claim can proceed only where a plaintiff asserts that an agency failed to take a *discrete* agency action that it is required to take."

This is the only new thing I see in this MTD.

 

[hopeforall2]

AUSA usually files something (an Answer or a Motion to Dismiss or Remand) in the last moment, sometimes literally 5 minutes before 5 pm in the last day. They can file electronically. So be patient, you will get something on March 26.

paz , Thank you for your reply, I will keep you all posted of the outcome.

I know remanding the case back to USCIS is not a good sign at all, but Can you elaborate on what I should expect from their answer or MTD?

Appreciate your help.

 

[paz1960]

Hi There,
Please find the attached order.
Thank you.

This case (Mansoor v. Chertoff) is a good example. But not to support our side of the story (unfortunately). It is a good example that without reading a case VERY carefully (not just the Conclusions) we can shoot ourselves in the leg. This case, in my opinion will take over the infamous Danilov v. Aguirre and I predict that we will see referenced by the Government in many of the future cases. It is really bad!!!

Here are the critical paragraphs, why I think so:

1.In light of the fact that CIS lacks authority to grant an application for naturalization until the background checks are completed, see 8 U.S.C. § 1446(a), it is readily apparent to the court that when CIS fails to make a timely decision on an application due to delays in the completion of the background checks, the appropriate remedy for that failure invariably will be simply to remand the matter back to CIS, and direct CIS to make a decision on the application within a reasonable time after the background checks are completed.

2. Third, and finally, the court does not want to provide an incentive for naturalization applicants to file civil actions in an effort to expedite the naturalization process. Lawsuits such as this one divert CIS’s attention and resources away from the adjudication of naturalization applications. Judicial intervention should thus be reserved for those rare circumstances in which CIS unnecessarily delays the adjudication of an application following the completion of all background checks. There is no indication that, in enacting § 1447(b), Congress intended to expedite the background investigation part of the application process. And the court has no desire to make the filing of a lawsuit a means for a naturalization applicant to “jump to the front of the line.” For this reason, and the others discussed above, the court REMANDS this matter to CIS, and DIRECTS CIS to make a decision on Manzoor’s
naturalization application within 120 days of the date of this Memorandum Order.Supra note 11

3. This is the worst part:
Supra note 11. The court is allowing 120 days because the FBI name check for Manzoor has been completed, and it appears that the other two background checks require very little time to complete. See supra note 2. If the FBI had not yet completed the name check, the court would have instructed CIS to make its decision within 120 days of the completion of all background checks.

This order has essentially the same consequence as in 786riz case. The court would refuse to instruct FBI to complete the name check in a finite timeframe, Plaintiff would have to wait till FBI does its job (if ever) and this lawsuit would be not more and not less than a $350 reminder for USCIS to do its job AFTER the name check is completed by FBI, whenever they want. Bad, really bad...

 

[SHAFFI]

My attorney is ready to file my Writ case. I have a real quick question! Is it law to provide the Defendants 60 days to respond? What if we decide to give the defendants 30 days instead of the normal 60 days?

Does it matter! I would be much obliged for your guys help!

when a lawsuit is filed and the defendant is any branch of the US government, the defendant has 60 days to answer. It is the law, and it is not up to plaintiff or court.

 

[Mercury369]

Hi, Friends:

Finally, I got the MTD today, as promised by the AUSA. or :-(

Frankly speaking, the MTD is not as strong as I originally thought. It cited many irrelavent cases, I think. However, the most damaging case is what I mentioned before: the Safadi WOM of AOS case.

Meanwhile, it cited a few other cases from some Circuit court. For example:

Castillo v. Ridge 445 F.3d 1057 (8th Cir. 2006)
Gomez-Chavez v. Perryman 308 F.3d 796 (7th Cir. 2002)
Li v. Agagan 2006 WL 637903 (8th Cir.)

I wonder if you can tell me how I can find the original Order. I don't know how to use the Pacer system to find the case in Cir. court.

Thank you very much in advance.

Hi United2007,

You can find the Circuit (&supreme) court opinion free from findlaw.com after register, it is free too.

Good luck,

Mercury

 

[pankajkandhari]

I am creating list of successful Mandamus actions here are the ones in my list please add any more that you are aware of this will give us good collection at one place.

Mandamus Actions

Lazli v. USCIS, No 05-CV-1680-BR, 2007 WL 496351(D. Or. Feb. 12,2007)

Elkhatib v. Bulter, No. 04-22407, 2005 US Dist. Lexis 22858 (S.D. Fla. June 6, 2005)

Aboushaban, 2006 U.S. Dist. LEXIS 81076

Singh v. Still No. C-06-2458-EMC (N.D Cal 2006)

Agbemaple v. INS No. 97 C 8547, WL 292441 (N.D. Ill. May 18, 1998)

Galvez v. Howerton, 503 F. Supp. 35, 39 (C.D. Cal. 1980)

(holding a six-month delay unreasonable)

Paunescu v. INS, 76F. Supp. 2d 896, 901-02 (N.D. Ill. 1999)

(holding a ten-month delay unreasonable)

Yu, 36 F. Supp. 2d at 932 (holding a two-and-a-half year delay unreasonable).

Nyaga v. Ashcroft, 186 F. Supp. 2D 1244, 1252 (2002) rev'd on other grounds,
323 F. 3d 906 (11th Cir. 2003)

Iddir v. I.N.S 166 F. Supp.2d 1250, 1258, 301 F.3d 492 (7th Cir. 2002)

Razaq v. Poulos No. 06-2461-WDB (N.D. Cal 2006)

1447(b)

U.S.A. v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004)
Khelifa v. Chertoff, 433 F. Supp. 2d 836 (E.D. Mich. 2006)
Castracani v. Chertoff, 377 F. Supp. 2d 71 (D.D.C. 2005)
El-Daour v. Chertoff, 417 F. Supp. 2d 679 (W.D. Pa. 2005)
Khan v. Chertoff, No. 05-560, 2006 U.S. Dist. LEXIS 48937 (D. Ariz. 2006)
Al-Kudsi v. Gonzales, No. 05-1584 (D. Ore. Mar. 22, 2006) (unpublished)


Please Add more to the List if you are aware of any thing that I did not listed.

Thanks for the list. sorry but i have a trivial quastion...

Wenlock, Shivili and others....

how do you read this info like - 05-560, 2006 U.S. Dist. LEXIS 48937

is this case in PACER also or LEXIS is a different thing?

What is the right way of citation for cases?

for example how do I find these cases in PACER:

76F. Supp. 2d 896, 901-02 (N.D. Ill. 1999)

359 F.3d 1144 (9th Cir. 2004)

Sorry if this is a premitive information to give but I am having a hard time understanding these terms..

Thanks

 

[DUDE12190]

Hello every one, here is my journey:

Applied for Citizenship and was interviewed in August 2006, I passed the test but the officer requested more evidence, which I mailed the next day.

During the interview, after I finished answering the questions in the N400 form, the Officer questioned me from his computer more questions and had me sign on the print out of the questions and answers, I did not know that those extra questions are voluntary in nature until I was half way in the questioning when he mentioned it. I did not want to argue in fear of any negative outcome with him. At the end of the interview He had me sign the application and Photos and gave me the N652, which stated that I passed the test and that I need to provide more evidence.

Since then no news, Tried following:

1) Called numerous times to the National Customer line. Outcome was that my file is now with Supervisory review.
2) Contacted My congressman who requested information from USCIS, outcome was that my file is with Supervisory review.
3) Numerous Info passes, outcome was " wait " , your file is with Supervisory Review.

I know for fact that my background check was completed (as per 1-800 IIO) somewhere in April 2006.

I filed (with a help on an attorney) a lawsuit based on 1447 (b) in Jan 2007,
Answer due 26 Mar 2007 (Court gave defendants 60 days to reply).

Until today have not received or heard any news from the defendants.

Is this normal, what should I expect and why they did not reply yet???

Thank you.

If you have a Pacer account, you can check any update on your case. Because you are not filing Pro Se, as most people on this forum, AUSA can not answer you directly, but do not worry, AUSA will need to file something by the due date. It could be a request for extension though!! Good Luck, regards, dude

 

[united2007]

PAZ's analysis is right

This case (Mansoor v. Chertoff) is a good example. But not to support our side of the story (unfortunately). It is a good example that without reading a case VERY carefully (not just the Conclusions) we can shoot ourselves in the leg. This case, in my opinion will take over the infamous Danilov v. Aguirre and I predict that we will see referenced by the Government in many of the future cases. It is really bad!!!

Here are the critical paragraphs, why I think so:

1.In light of the fact that CIS lacks authority to grant an application for naturalization until the background checks are completed, see 8 U.S.C. § 1446(a), it is readily apparent to the court that when CIS fails to make a timely decision on an application due to delays in the completion of the background checks, the appropriate remedy for that failure invariably will be simply to remand the matter back to CIS, and direct CIS to make a decision on the application within a reasonable time after the background checks are completed.

2. Third, and finally, the court does not want to provide an incentive for naturalization applicants to file civil actions in an effort to expedite the naturalization process. Lawsuits such as this one divert CIS’s attention and resources away from the adjudication of naturalization applications. Judicial intervention should thus be reserved for those rare circumstances in which CIS unnecessarily delays the adjudication of an application following the completion of all background checks. There is no indication that, in enacting § 1447(b), Congress intended to expedite the background investigation part of the application process. And the court has no desire to make the filing of a lawsuit a means for a naturalization applicant to “jump to the front of the line.” For this reason, and the others discussed above, the court REMANDS this matter to CIS, and DIRECTS CIS to make a decision on Manzoor’s
naturalization application within 120 days of the date of this Memorandum Order.Supra note 11

3. This is the worst part:
Supra note 11. The court is allowing 120 days because the FBI name check for Manzoor has been completed, and it appears that the other two background checks require very little time to complete. See supra note 2. If the FBI had not yet completed the name check, the court would have instructed CIS to make its decision within 120 days of the completion of all background checks.

This order has essentially the same consequence as in 786riz case. The court would refuse to instruct FBI to complete the name check in a finite timeframe, Plaintiff would have to wait till FBI does its job (if ever) and this lawsuit would be not more and not less than a $350 reminder for USCIS to do its job AFTER the name check is completed by FBI, whenever they want. Bad, really bad...

Both the point 1 and 2 mentioned by PAZ were cited in my MTD. I think PAZ is right about the nature of this order.

One strategy I was think about breaking the logic of "CIS adjudiction after NC"
is to reveal that FBI also has a non-discretionary duty to finish his background check in a reasonable time-frame.

Do you think this is a reasonable and useful argument to argue?

I know I need laws and cases to support this argument. Do you have suggestion on this part.

 

[DUDE12190]

Hi There,
Please find the attached order.
Thank you.

Mansoor v. Chertoff
Look at the pages 12 and 13 and notice how the judge refers to the USCIS own regulations that clearly proves that interview=examination. I think it can be used againist CIS in the court or in opposing Motion. I do not mean to use this whole case but just those things I mentined above Thank you and Good luck. Regards, dude

 

[paz1960]

Both the point 1 and 2 mentioned by PAZ were cited in my MTD. I think PAZ is right about the nature of this order.

One strategy I was think about breaking the logic of "CIS adjudiction after NC"
is to reveal that FBI also has a non-discretionary duty to finish his background check in a reasonable time-frame.

Do you think this is a reasonable and useful argument to argue?

I know I need laws and cases to support this argument. Do you have suggestion on this part.

In the light of this decision and that USCIS is already using it in other cases, I must admit that shvili has a good point when s/he is pushing for a joint 1447(b)+WOM type of complaint in these stalled naturalization cases. It will be a lot harder and probably won't work for limited waiting time, but the time in that case should be counted from the date of the 1st FP, when the full criminal background check was initiated. If the time passed is longer than ~2 years, I think that this can be considered unreasonable delay and the Court may consider to compel FBI to finish the name check in XX days.

 

[ipoh]

The Answer is not a motion. A motion can (and should) be opposed by the non-moving party, an Answer can't be opposed. If a Motion is filed before the Answer to the original complaint is due, the Court will rule first on the motion and the Defendants (supposed that they filed a motion) don't have to answer your complaint till the motion is decided.

If the document filed by AUSA was indeed the Answer to your complaint (you should be able to get a copy contacting AUSA, s/he filed it most likely electronically, so it wouldn't be a big deal for her/him to forward you a copy by e-mail), the ball is with the Court. The judge may decide the case based only on the complaint and the answer (unlikely), or may order a case management conference or pre-trial hearing or something like that and ultimately can order a hearing (trial). After April 1st nobody is allowed to file any motion, so if AUSA doesn't file a Motion to Dismiss till that time, you will be heading most likely to a hearing in front of the judge, which I think is good, because it is less likely that your case wuld be simply dismissed. I don't have any hard statistics, but I got the impression reading many reports and court cases, that when actually a hearing happens, Plaintiff has a good chance to get some meaningful relief. If the judge is not sympatetic to your case, it is most likely that will decide (negatively) your case solely based on the filed documents. This gives me some hope that Kefira's case will also be resolved positively for her.

Paz,
I spoke to my attorney this morning. He received the copy of Answer. He said its not different from others he has seen.
He has several cases WOM in 2 states he practices and he said the naturalizations cases are getting through without much of a litigation as compared to the AOS ones, so good for most of the folks in this forum. Also he told me that the judge assigned to my case is conservative . He is also preparing to file a motion before the Apr 1st, I will have to talk to him what kind of motions a plaintiff can file when there is no motion from the AUSA.


Joyeia,
Paz was talking about my specific case's last day (Apr 1st) to file motions.