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

What to do, what to do? Paz, Please review this. Thanks!

Dear all who suffered the same,

First, I want to thank all esp. Paz for providing many useful info on this board. There is some bad news on my WoM case.

My 485 case has been pending on my namecheck since July 2003. I obtained 140 approvals in both NIW and outstanding researcher categories. After numerous queries to seek adminstrative resolution on the pending namecheck, in Jan, I and my wife hired an attorney, and filed WoM in East PA district. In early March, we had 30 days extension filed by the assigned assistant USA, and the judge granted that extention but also orderd a pre-trial hearing conference in Apr. We were hoping to have our side of story heard at the conference.

Bad news came in yesterday, our case received a very strong worded motion to dismiss from USAs (it is 18 page long, and full of legal jargon and citation of previous cases). Paz, would you mind I send that letter to you to take a look? Our lawyer called and had our permission to file the opposition.

However, I checked Pacer myself and noticed the order from the Judge that the (1) motion is granted (2) This case is dismissed without prejudice.

Does this mean we've lost even a hearing opportunity? That's is it?!
 
shvili said:
Lotechguy!

You just phrased my question for me! My dilemma is, these are not very strong, but still usable points (re. unreasonable delay). But I feel it may somehow irritate the judge if I become too specific and include it in my original complaint. So I was going to ask yours and everybody's advise: given that my complaint is already 13+pages, should I remove the part WHY I think the delay is ureasonable and simply state:

"Plaintiff further brings complaint against Defendants under APA sections 5 U.S.C. § 555(b) and 5 U.S.C. § 706(1), which direct the reviewing court “to compel agency action unlawfully withheld or unreasonably delayed”. While the meaning of “reasonable time” is often interpreted differently and within a context of a certain case, Plaintiff believes that his name check and adjudication delays in excess of 41 months each are clearly unreasonable."

I repeat, my complaint will have BOTH 1447and WOM parts.
And I agree with your reasoning, we just might motivate our unreasonable delay in the very beginning.
We are asking relief for that, so we need to explain it, right?

At the same time, I was hoping that since my husband's delay is Already 41 +months (from nc start), wouldn't it be obvious that this delay is already unreasonable, so no need to go into all the points?

I'll appreciate your comments...

P.S. And I'll send you my draft when it's completed.

Thank you, Shvili
Click to expand...

I think a 41+ delay is a good candidate for a standard WOM+1447b template without resorting to the detailed explanation info I posted. I still think there may be room to include very briefly something to the effect

The delay of more than a year is in flagrant contradiction with 8 U.S.C. § 1571(b), which clearly lays down the parameters of reasonableness in immigration adjudications, stating:“…It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.” The Government’s lays down statutory obligations to timely adjudicate filed applications. 8 U.S.C. § 1447(b) (120 days after naturalization interviews).“When Congress by organic statute sets a specific deadline for agency action, neither the agency nor any court has discretion. The agency must act by the deadline. If it withholds such timely action, a reviewing court must compel the action unlawfully withheld. To hold otherwise would be an affront to our tradition of legislative supremacy and constitutionally separated powers.” Forest Guardians v. Babbitt, 164 F.3d 1261, 1272 (10th Cir. 1998).
 
Appledaily said:
Dear all who suffered the same,

First, I want to thank all esp. Paz for providing many useful info on this board. There is some bad news on my WoM case.

My 485 case has been pending on my namecheck since July 2003. I obtained 140 approvals in both NIW and outstanding researcher categories. After numerous queries to seek adminstrative resolution on the pending namecheck, in Jan, I and my wife hired an attorney, and filed WoM in East PA district. In early March, we had 30 days extension filed by the assigned assistant USA, and the judge granted that extention but also orderd a pre-trial hearing conference in Apr. We were hoping to have our side of story heard at the conference.

Bad news came in yesterday, our case received a very strong worded motion to dismiss from USAs (it is 18 page long, and full of legal jargon and citation of previous cases). Paz, would you mind I send that letter to you to take a look? Our lawyer called and had our permission to file the opposition.

However, I checked Pacer myself and noticed the order from the Judge that the (1) motion is granted (2) This case is dismissed without prejudice.

Does this mean we've lost even a hearing opportunity? That's is it?!
Click to expand...

First, welcome to this forum. I am not an expert in AOS WOM cases, mine was a stalled naturalization, based on 8 USC 1447(b) (this is the paragraph from the statue which makes possible to sue USCIS in the district court, but is applicable only to naturalization cases). I collected most of the pertinent info about cass similar to mine. Somebody in similar situation like yours probably can help you. Although you hired a lawyer and unless the contrary is proven, I maintain my opinion that we, amateurs, can't compete with an immigration professional. You should trust your lawyer, (if you don't trust him/her, you should find another one or do it yourself, but that takes a lot of your time)

You didn't provide enough info to answer meaningfully your last question. It is suspicious that Defendant just filed a motion to dismiss and the judge immediately granted this motion and dismissed the case. The non-moving party usually has certain number of days to file an opposition to the motion, after that the moving party has one more turn to file a Reply to the Opposition and after this, the judge will decide the motion either based solely on the filed documents or ordering a hearing. something is just not right in the scenario what you presented. I don't want to speculate, but if you have access to PACER, you can look up the exact sequence and timing of the documents filed with the court in your case.

Doesn't matter how this happened, but at this stage you don't have much options. Plaintiff can file a Motion to Reconsider, chances are usually extremely small that the judge will change his/her mind. Of course, you can appeal the judgement at the Circuit Court of Appeal where you belong.
 
lotechguy said:
I think a 41+ delay is a good candidate for a standard WOM+1447b template without resorting to the detailed explanation info I posted. I still think there may be room to include very briefly something to the effect

The delay of more than a year is in flagrant contradiction with 8 U.S.C. § 1571(b), which clearly lays down the parameters of reasonableness in immigration adjudications, stating:“…It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.” The Government’s lays down statutory obligations to timely adjudicate filed applications. 8 U.S.C. § 1447(b) (120 days after naturalization interviews).“When Congress by organic statute sets a specific deadline for agency action, neither the agency nor any court has discretion. The agency must act by the deadline. If it withholds such timely action, a reviewing court must compel the action unlawfully withheld. To hold otherwise would be an affront to our tradition of legislative supremacy and constitutionally separated powers.” Forest Guardians v. Babbitt, 164 F.3d 1261, 1272 (10th Cir. 1998).
Click to expand...

8 U.S.C. 1571(b) combined with the Forest Guardians v. Babbitt doesn't fly. The problem is with the former paragraph. the 180 days is only "the sense of the Congres...", it is not a mandatory deadline. If this would be mandatory for all the immigration cases, life would be a lot simpler. Do you belive that we would have to try to come up with all kind of countermeasures for all the arguments what the government is throwing to us? All these stalled cases could be automatically solved with a court order if the 180 days would be mandatory for every immigration case. Unfortunately, as we all painfully experience, it is not the case.
 
Hi Paz,

Thanks for a promot reply! The timestamp of my MTD letter from USAs is March 20th and we heard of it today from our lawyer, and we discussed the opposition matter. Then when we checked Pacer tonight, we noticed the judge oder attached on top of that MTD says:
And now, this ....day of ..., 2007, the defendants having filed a MTD, and the court having considered the memoranda and other materials submitted in support thereof and in opposition thereto, and the Court having determined that it lacks subject matter jurisdiction, IT IS HEREBY ORDERED THAT:
1. The Motion is granted.
2. This case is dismissed without prejudice.

The date poriton is however missing from the document we can view in PACER, probably just because it's hand filled.

What a bad news.
 
shvili said:
Paz,

Since several courts considered 2+yrs. delay unreasonable, I repeat my question in the previous letter to Lotechguy, should I dilute my 1447+WOM complaint with a somewhat weak points that I posted above?

Also, Snorlax's point about non-discretionary duty is worth putting in, I think: the discretion stops when you paid to USCIS. After that, they OWE you to act on your application. This point works for both, AOS and naturalization.

I am leaving for a 3-day weekend where there will be no internet :(. But I'll reply and post again when I return, on Sunday night. I'll hopefully work on my complaint there, but without access this forum.

Good luck to everybodey!
Click to expand...

Shvili, your husband's 41 months waiting time for the name check completion is a very strong case to be considered unreasonable. You should go with the 1447(b) (to show that the court has jurisdiction) and WOM to show that the Governement has a non-discretionary duty to process timely the application.

It is clear that the Government has a non-discretionary duty to adjudicate your application in a reasonable timeframe, the problem is that there is no prescribed time limit for processing the name check. You have to rely on the judge's opinion, what is reasonable and what is not.

Because I didn't use the WOM arguments and I didn't study that legislation, I don't know what is worth to include in your complaint and what should be left for an Opposition.
 
Appledaily said:
Hi Paz,

Thanks for a promot reply! The timestamp of my MTD letter from USAs is March 20th and we heard of it today from our lawyer, and we discussed the opposition matter. Then when we checked Pacer tonight, we noticed the judge oder attached on top of that MTD says:
And now, this ....day of ..., 2007, the defendants having filed a MTD, and the court having considered the memoranda and other materials submitted in support thereof and in opposition thereto, and the Court having determined that it lacks subject matter jurisdiction, IT IS HEREBY ORDERED THAT:
1. The Motion is granted.
2. This case is dismissed without prejudice.

The date poriton is however missing from the document we can view in PACER, probably just because it's hand filled.

What a bad news.
Click to expand...

Till now I always thought that the non-moving party has a chance to oppose the motion before the judge rules on the motion. But I have no previous legal training and I don't know all these procedural finesses. Certainly your lawyer should know these and you should rely on what he is suggesting.
 
How to hold FBI for its responsibility

Hello Friends:

I think most of use are indeed stuck in FBI's name check. If we can successfully justify FBI should be compeled to finish its unreasonably delayed work, we are directly targeting the core of the issue (instead of working around the issue with CIS). If we do successfully estabilish this point, many AUSA defense will become meaningless, and our problem can be solved quick.

The logic in my mind is as follows:

Since currently CIS claim in all cases:
(1) If FBI background check is not clear, CIS can't adjudicate the case, and
(2) If FBI background check is clear, CIS can move forward to adjudicate the case.

These statement indeed makes FBI a necessary (may even a sufficient dondition in some context) condition for CIS adjudiation.

Because CIS adjudication (ie. Attorney General in DJ) is required by law (in many application types), and FBI is a necessary condition for the adjudication, and FBI is a branch in DJ, FBI should have a derivitive non-discretionary duty to finish the name check within a reasonable timeframe.


* Can we find laws to justify each turn of the logic reasoning?
The related laws that I can find are:
Executive Order 10450, and 8 U.S.C. § 1105(b),
but neither provision obligates the FBI to conduct a name check investigation in connection with AOS application.

* I need your input and comments to make the whole logic sounds more straightforward.
 
united2007 said:
Hello Friends:

I think most of use are indeed stuck in FBI's name check. If we can successfully justify FBI should be compeled to finish its unreasonably delayed work, we are directly targeting the core of the issue (instead of working around the issue with CIS). If we do successfully estabilish this point, many AUSA defense will become meaningless, and our problem can be solved quick.

The logic in my mind is as follows:

Since currently CIS claim in all cases:
(1) If FBI background check is not clear, CIS can't adjudicate the case, and
(2) If FBI background check is clear, CIS can move forward to adjudicate the case.

These statement indeed makes FBI a necessary (may even a sufficient dondition in some context) condition for CIS adjudiation.

Because CIS adjudication (ie. Attorney General in DJ) is required by law (in many application types), and FBI is a necessary condition for the adjudication, and FBI is a branch in DJ, FBI should have a derivitive non-discretionary duty to finish the name check within a reasonable timeframe.


* Can we find laws to justify each turn of the logic reasoning?
The related laws that I can find are:
Executive Order 10450, and 8 U.S.C. § 1105(b),
but neither provision obligates the FBI to conduct a name check investigation in connection with AOS application.

* I need your input and comments to make the whole logic sounds more straightforward.
Click to expand...

You wrote: "Because CIS adjudication (ie. Attorney General in DJ)...". CIS is part of the Department of Homeland Security, not of the Department of Justice. Nevertheless, they are both different parts of the US Government.

In my opinion it is hopeless (and useless) to try to convince the judge that the mandated "full criminal background investigation" doesn't necessarily include the FBI name check. Several people tryed this argument without the smallest success. I tried to get the pertinent legislation (which mandates this extended name check as part of the "full criminal background check") from the CIS Obmudsman; the answer to my letter was so useless that I didn't even bother to post it here on the forum to not increase the "noise level".

In rest, I agree. I always was advocating to include FBI in the list of the defendants because this was also my opinion that in fact, the black hole is in their courtyard, not at USCIS. Of course, USCIS can request an expedited processing, there is just not enough resourses to to this for every case which is stalled. Everybody know that this system is broken, just I don't see yet the political will (except maybe Sen. Obama proposed bill) to fix it.

I don't have any good idea how to make the reasonable/unreasonable argument in the case of the FBI name check to stick better. Unfortunately, I am not aware of any Congress mandated hard time limit which can be used for this part of the naturalization application or AOS.
 
few days ago some one posted some recent orders about WOM dismissal due to subject matter jurisdiction that AUSA are using as part of motion to dismiss. I think they were from VA District can some one post them again please.

Thanks
 
My 20 cents ... keep the change.

paz1960 said:
Till now I always thought that the non-moving party has a chance to oppose the motion before the judge rules on the motion. But I have no previous legal training and I don't know all these procedural finesses. Certainly your lawyer should know these and you should rely on what he is suggesting.
Click to expand...

Paz,
One of the judges in my district requires that all dispositive motions should accompany a motion to summary judgement, others don't! I guess he doesn't like trials. I wonder if Appledaily(keepsdoctoraway;) )'s judge has the same rules and ruled based on the Summary Judgement. Apple can you confirm?

On an unrelated note from your yesterdays post, I trust my attorney so far, I have seen at least 2 dozen cases he successfully letigated. I will let him do what he feels appropriate. He filed as an exhibit, a copy of the senators letter I received stating my name check is complete. A month later I wrote to the CIS district director and got a response stating that my name check is pending. I wonder if the judge considers senators letter as a credible.
 
Appledaily said:
Hi Paz,

Thanks for a promot reply! The timestamp of my MTD letter from USAs is March 20th and we heard of it today from our lawyer, and we discussed the opposition matter. Then when we checked Pacer tonight, we noticed the judge oder attached on top of that MTD says:
And now, this ....day of ..., 2007, the defendants having filed a MTD, and the court having considered the memoranda and other materials submitted in support thereof and in opposition thereto, and the Court having determined that it lacks subject matter jurisdiction, IT IS HEREBY ORDERED THAT:
1. The Motion is granted.
2. This case is dismissed without prejudice.

The date poriton is however missing from the document we can view in PACER, probably just because it's hand filled.

What a bad news.
Click to expand...

what is your lawyer saying. he should have gotten the copy of the motion,so he can oppose. It is very strange to me that judge granted the motion without giving you a chance. by the way, which district are you in? i am sorry about what has happened.
 
wenlock said:
few days ago some one posted some recent orders about WOM dismissal due to subject matter jurisdiction that AUSA are using as part of motion to dismiss. I think they were from VA District can some one post them again please.

Thanks
Click to expand...

If you think Manzoor v. Chertoff (E.D. Va) it is posted by 786riz at post #9793, but this is a naturalization case. I don't know what else you are referring to. Maybe shvili posted some cases, she is out till Monday. Search for her postings.
 
Paz, Wenlock, lotechguy, United2007 and others,

I will appreciate if you comment of my question about facial and factual attacks.

Thanks,
 
zeegeel said:
Paz, Wenlock, lotechguy, United2007 and others,

I will appreciate if you comment of my question about facial and factual attacks.

Thanks,
Click to expand...

I didn't come across to these terms so I can't comment. Here is the lack of the basics in law education. Sorry, I'm a physicist, not a lawyer.
 
DUDE12190 said:
what is your lawyer saying. he should have gotten the copy of the motion,so he can oppose. It is very strange to me that judge granted the motion without giving you a chance. by the way, which district are you in? i am sorry about what has happened.
Click to expand...

I believe this is just a propose order that defendents filled as part of MTD. It is not ordered by Judge.

It is recommended and common practice when you file any motion with Judge you file proposed order with it. If I am not mistaken you are reading proposed order from defendents but it is not actually ordered by Judge.
 
wenlock said:
few days ago some one posted some recent orders about WOM dismissal due to subject matter jurisdiction that AUSA are using as part of motion to dismiss. I think they were from VA District can some one post them again please.

Thanks
Click to expand...

Hi wenlock,
I posted some cases that I saw AUSA is using in their Motion to Dismiss. They are from different districts. I do not know if they are for 1447b or WoM or both. Please go to post 9774 @ page 652.
Thank you
 
My personal understanding

zeegeel said:
Hi all,

Today I filed a motion for extension of response time with E.D. VA for my response to MTD. It was due 3/26/2007 but I need more time to craft it. My hearing is set for 4/13/2007 and I have asked for 15 extra days which takes me to 4/10/2007. I do not nkow how things are going to turn out but I will let you know.

I have a basic question and I will appreciate your comments.

Other than confusing with 12(b)(1) and (6), the CIS has cited all kinds of cases and when I read some of them in WestLaw I noticed that some of them are really irrelevant. For instance, Saleh v. Ridge, where Saleh has entered the US illegally and he was later convicted of some kind of conspiracy of traficking cloth and has got 36 months of probition.

Now my question is how to show this in legal terms; for instance, can I say Defendants based the facial attack on cases that are factually irrelevant?

So first of all, is that the meaning of facial versus factual? and is that a right logic to say that because my case is not factually comparable to Saleh's, the facial conclusions in that case is not applicable to my case?

I think this is an important point which is worth to be discussed.

Thanks.
Click to expand...

zeegeel:

I am personally facing the same issues as you meantioned. The cases in MTD cited by my AUSA are something like:
(1) illegally entered US twice, and then tried to figure removal order.
(2) overstayed, and then convicted of child abuse,
etc.

According to my MTD, the AUSA cited these cases to show their argument, i.e. WOM on immigration is barred from court review. I think, although we can point out these cases are not directly relevant to our cases, but we still need to directly attack their core argument about the "subject-matter juridication" issue.

I persoally consider their citing these relatively "irrelevant" cases makes our opposition easier.

This is only my personally understanding so far. Please share your understanding if you have a better idea.
 
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AUSA Contact

Hi All,
No news on my case yet, the last thing Pacer is showing is the proof of delivery I sent dated 3/4/07.
Now I'm trying to establish a contact with the AUSA assigned to my case.
After calling several times last week to find the name of my AUSA, I finally got to speak to a paralegal. She return my call at the end of the day with the name of the AUSA and telling me there is nothing new with my case.

Yesterday I called to US attorney's and left message to the AUSA. I haven't heard from her yet so I called again today and got her voice mail but did not leave a message.
Is this normal? are all AUSAs busy and are not prompt in returning calls and picking up their phones?
I will try again today to see if I can get hold of her otherwise I'll try again on Monday.
I remember someone mentioning a generic format for AUSA emails (something like firstlast@usdoj.gov). do you guys know what it is?

I feel that my case is not heading good, cos otherwise I would have heard from AUSA...

have a great weekend everyone.
 
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