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

[paz1960]

Friends,

Does any one have opinion/experience on requesting a jury trial in our cases?
My thought is that it may help to speed up the resolution.

Thanks,
L.

Here is what the N.D.Cal. Pro Se handbook says about the jury vs. bench trial:

What is the difference between a jury trial and a bench trial?
There are two types of trials: jury trials and bench trials.
At a jury trial, a jury reviews the evidence presented by the parties, figures out which evidence to believe, and decides what it thinks actually happened. The court will instruct the jury about the law, and the jury will then apply the law to the facts that they have found to be true, and determine who wins the lawsuit. A jury trial occurs when:
1. The lawsuit is a type of case that the law allows to be decided by a jury
and
2. At least one of the parties asked for a jury trial within the right timeframe. The timeframe is set forth in Rule 38. A party that does not make a jury trial demand on time forfeits that right.
At a bench trial, there is no jury. The judge will determine the law, the facts, and the winner of the lawsuit. A bench trial is held when:
1. None of the parties asked for a jury trial (or did not ask at the right time);
or
2. The lawsuit is a type of case that the law does not allow a jury to decide;
or
3. The parties have agreed that they do not want a jury trial.

I could not find any description what type of cases are allowed by law to be decided by a jury trial, but I strongly suspect that these types of lawsuits (WOM and 1447(b)) don't qualify. The reason for this (I think) is that usually in these lawsuits there is no factual dispute between the parties, no contradictory evidence to decide, which one is valid/true or not. These lawsuits are mere interpretations of the laws and regulations, which can be done best by a well qualified expert: the judge.

And here I'm not talking about the very valid, practical argument raised by kefira...

 

[paz1960]

I 100% agree. I do not see any point at all in communicating with AUSAs. They r just middle tier who basically doing nothing, except of filing appropriate papers on time. Nothing is depends on them, so why bother? They want as the same as we do to close the case asap and calling/emailig them won't speed up the process, but just bother them.

I respectfully disagree. At least in my case, AUSA was indeed helpful, I think that my case was finished in reasonable time partly because he was making inquiries at FBI and USCIS and the last thing: arranging the oath ceremony in a record time was definitely his (and his assistant's) merit.

 

[paz1960]

I found from Pacer that my WOM case will be heard on paper:

Set Deadline as to 9 MOTION to Dismiss for Lack of Jurisdiction. Motion Hearing set for 4/9/2007 before Judge Stanley R. Chesler. (please be advised that this motion will be heard on the papers unless otherwise notified by the court) (sr, )

What will be the possible resulf of this? What is the judge never again touches the suit, is there anyway I can push for judge's rule?

In principle, there are two possible results: the judge either grants the AUSA's motion to dismiss (this means that you lost your case) or denies it. If the motion is denied, the judge can rule something in your favor (especially if you have a cross motion on file) or can let the lawsuit to proceed. In this case, defendants will need to answer your complaint (the motion filed just postponed their obligation to answer the complaint, didn't replace the Answer).

It is impossible to predict which one of these possibilities will happen in your case. The judge certainly will rule on the motion; it is just unpredictable when. There is not much what you can do to force the judge to decide when you want. It's practically up to him/her when s/he wants to decide. It greatly depends on the case load.

 

[paz1960]

I got my MTD on March 26th. And "Motion Hearing" is proposed by AUSA on June 15th 07. According to Pro Se book for Northern California district (I filed in San Francisco), deadline for me to oppose MTD is no later than 3 weeks before "Hearing".

Is this "Motion Hearing" for June 15th hearing specific to this MTD? Sounds 786riz believes June 15th hearing is NOT only to cover MTD, but entire case including complaint as well? If so, why it is dscribed as "Motion Hearing" as opposed to simply "Hearing"?

The outcome of this June 15th could be decision, could be discovery phase, could be many other things, right? How do I (and my lawyer) influence which path it chooses to go down? I certainly prefer a decision.

Thanks.

Hi Mingjing,
Judge rules on case, means on all filing (compliant, motions), not just on MTD and counter motions. It is true sometime judge just only rules on complaint, as happened in my case.
If judge rules on a case, it means case is closed (well, depends upon if it is a magistrate or district judge). But both (plaintiff / defendants) could file a motion to amend on the ruling.

Strictly speaking, the Motion Hearing on the calendar means that the judge will rule only on the motion and if the motion is denied, Defendants will need to answer your complaint and the whole case proceeds. Practically, in most of the cases, when a Motion to Dismiss is decided, the judge usually rules on the whole case, because if grants the motion, case is closed and you lost, if denies the motion, it will order something, which is related to the relief you asked in your complaint and in the Opposition to the Defendants' Motion to Dismiss.

I don't think that you can do anything to influence the judge which way s/he wants to go, i.e., to decide the motion only or to rule on the whole case, to do this in one or more hearings or solely based on the documents filed. The FRCP gives them enough freedom to decide this as they wish.

 

[lazycis]

mmz and lazycis,

My code is 1. What does it mean? Per my AUSA, NC is still pending and case transfer does not mean progress is being made.

Code 1 --- Only fingerprints taken
Code 2 --- Photos and signature taken (children under 14)
Code 3 --- Fingerprints, photo, and signature taken

 

[lazycis]

I respectfully disagree. At least in my case, AUSA was indeed helpful, I think that my case was finished in reasonable time partly because he was making inquiries at FBI and USCIS and the last thing: arranging the oath ceremony in a record time was definitely his (and his assistant's) merit.

I think it's a good idea at least try it once or twice. You will be able to figure out weather AUSA is inclined to help you or not.

 

[missingpa]

Meaning of FP codes

mmz and lazycis,

look at Post #2 on http://www.immigrationportal.com/showthread.php?t=205426 for what the FP codes mean.

Guess what, the same happened to me as well. FP notice had code 3 (which means 10 fingers, photo and signature are to be captured).
I-485 send to TSC 3/2, FP - 4/5, back to VSC - 4/12

 

[swimfitness]

Cross-Summary Judgement.

Paz and all:

I had my CMC this past wednesday. Since AUSA indicated his intention to file MTD on April 25th and move to Summary Judgement in case the judge dismisses the MTD. The Judge asked me if I intended to file a Cross-Summary Judgement. I said, I will think about it, as I did not know what that entails.

- What is a Cross-Summary Judgement?
- Where does one find examples of Summary Judgement and Cross-Summary Judgement?
- Does anyone have example to share?

Thank you,

 

[786riz]

Hey paz my man,
Here I am totally agreed with kefira. These days it is absolutely hopeless to speak to an AUSA, they are just dummy. They only follow the direction of UCIS general counsel and even general counsel not telling them the truth about the different cases. Your case was happened way before 12/22 and I think post 12/22, situation has been changed entirely. Now, AUSA has no power to tell USCIS or FBI to do anything, now power limits to only judge or the USCIS general counsel.
Thank you.

I respectfully disagree. At least in my case, AUSA was indeed helpful, I think that my case was finished in reasonable time partly because he was making inquiries at FBI and USCIS and the last thing: arranging the oath ceremony in a record time was definitely his (and his assistant's) merit.

I 100% agree. I do not see any point at all in communicating with AUSAs. They r just middle tier who basically doing nothing, except of filing appropriate papers on time. Nothing is depends on them, so why bother? They want as the same as we do to close the case asap and calling/emailig them won't speed up the process, but just bother them.

 

[paz1960]

Hey paz my man,
Here I am totally agreed with kefira. These days it is absolutely hopeless to speak to an AUSA, they are just dummy. They only follow the direction of UCIS general counsel and even general counsel not telling them the truth about the different cases. Your case was happened way before 12/22 and I think post 12/22, situation has been changed entirely. Now, AUSA has no power to tell USCIS or FBI to do anything, now power limits to only judge or the USCIS general counsel.
Thank you.

Maybe you and kefira is right. I just shared my experience with that particular AUSA.

I still believe that contacting AUSA would not harm your case (if you do this politely and professionally). Maybe you are wasting your time and effort, but at least you are doing something. Usually, in any type of situation (not only in my lawsuit) I found most difficult to sit back and just WAIT! This (when things are out of my control and I can do nothing to keep the case moving) just drives me nuts...

 

[lazycis]

Paz and all:

I had my CMC this past wednesday. Since AUSA indicated his intention to file MTD on April 25th and move to Summary Judgement in case the judge dismisses the MTD. The Judge asked me if I intended to file a Cross-Summary Judgement. I said, I will think about it, as I did not know what that entails.

- What is a Cross-Summary Judgement?
- Where does one find examples of Summary Judgement and Cross-Summary Judgement?
- Does anyone have example to share?

Thank you,

Cross-motion would be your motion for summary judgment if you decide to move for for summary judgment. Because the judge will have two motions from the opposite parties, it's called cross-motion. You should not really title is "cross-motion", it will be "motion for summary judgment".
In your motion you basically ask court for the same relief as in your complaint or you can be more specific. You cannot ask for more relief than originally sought. You also have to attach memorandum and explain why you are entitled to relief as a matter of law and state all undisputed facts.

It's common in this type of cases to move for summary judgment because, as Paz noticed, there are no disputed facts usually.

 

[kefira]

I think it's a good idea at least try it once or twice. You will be able to figure out weather AUSA is inclined to help you or not.

I agree with you, that some contact is good. I personally did have a contact with my AUSA and she was encouraging, although we were on two different sides of the border. I put my comment about somebody, who sent 3 emails, enumerous phone messages, etc. This I think is inappropriate.

 

[swimfitness]

Cross-motion would be your motion for summary judgment if you decide to move for for summary judgment. Because the judge will have two motions from the opposite parties, it's called cross-motion. You should not really title is "cross-motion", it will be "motion for summary judgment".
In your motion you basically ask court for the same relief as in your complaint or you can be more specific. You cannot ask for more relief than originally sought. You also have to attach memorandum and explain why you are entitled to relief as a matter of law and state all undisputed facts.

It's common in this type of cases to move for summary judgment because, as Paz noticed, there are no disputed facts usually.

HI Lazycis:

Acually, I just received the judges order in the mail and apparently, the judge prefer to use the terms "Summary Judgement" as opposed to "Motion to Dismiss" The order reads as follow:


May 9th, 2007 Defendants to file Motion for Summary Judgment
May 23rd, 2007 Plaintiff's Opposition to Defendants Motion for Summary Jud
June 6th, 2007 Defendant's reply in support for Defendants Motion for SJ
June 13th, 2007 Plaintiff's Reply in support of Plaintiff's Cross-Motion for SJ

Is Summary Judgement" used in lieu of "Motion to Dismiss" in my case. My case is filed with a Northen California District?

Paz, what are your thoughts?

Thank you.

 

[shvili]

I rather not worry about this until I get my citizenship though I paid 2850.00 to push a process which is done for free for servicemembers in about 4-6 months. And I pray to be safe and make it back OK in 15 months, just to save them from the embarrassment of giving a naturalization certificate to my wife.

Busmaster,

I hope you win before you deploy! The US government owes an apology to you (but you probably will never get it...).

Good luck in this fight!

 

[bsus]

I agree with you, that some contact is good. I personally did have a contact with my AUSA and she was encouraging, although we were on two different sides of the border. I put my comment about somebody, who sent 3 emails, enumerous phone messages, etc. This I think is inappropriate.

Not sure whether you are commenting on my previous post where I mentioned I tried to contact AUSA by sending him 3 emails (over 2 months period), and called him "numerous times" (not "numerous phone messages"), and never got answered.

So far I still have not got chance to talk to him or got email reply from him.

Tell me why do you think this is inappropriate??? (I'm not trying to defend myself, I'm just trying to learn from you). Maybe you have trick to improve success rate.

In addition, do you think it's appropriate for AUSA just not answer his phone at all, and not reply any email? What work ethics is this?

Thanks

 

[PALANG]

Letter to first lady

Hi Everyone,
A couple of times in this thread I saw people mentioning letter to the First Lady. I am looking for a sample letter if anyone has one. Please pm me or post it. I am thinking if we bombard them with letters we may get Laura to turn on George W and maybe turn the tides on us. We will at least know who wears the pants in the family...lool.. Just a joke.. but I seriously need the letter.

Thanks

 

[paz1960]

I agree with you, that some contact is good. I personally did have a contact with my AUSA and she was encouraging, although we were on two different sides of the border. I put my comment about somebody, who sent 3 emails, enumerous phone messages, etc. This I think is inappropriate.

I think I found the explanation why kefira had so many short meetings with the judge and AUSA. This is from her district's Pro Se Handbook:

What is a status conference?
A status conference can also be called a “subsequent case management conference.” Regardless of which term is used, it is just a conference that the judge holds after an initial case management conference has happened, to check on the status of the case. The rule providing for subsequent case management conferences is Civil Local Rule 16-10(c). Some judges hold status or subsequent case management conferences regularly, while other judges schedule them only when there is a particular need. Generally, a subsequent case management conference is a chance for the parties to tell the judge about the progress of their case, and about any problems they have had in preparing for trial or in meeting the original schedule. In addition, there is a pretrial conference held shortly before trial, where the judge and the parties decide the procedures for the upcoming trial.

 

[kefira]

Not sure whether you are commenting on my previous post where I mentioned I tried to contact AUSA by sending him 3 emails (over 2 months period), and called him "numerous times" (not "numerous phone messages"), and never got answered.

So far I still have not got chance to talk to him or got email reply from him.

Tell me why do you think this is inappropriate??? (I'm not trying to defend myself, I'm just trying to learn from you). Maybe you have trick to improve success rate.

In addition, do you think it's appropriate for AUSA just not answer his phone at all, and not reply any email? What work ethics is this?

Thanks

Please do not learn from me, since I am not a G-d and I have my own opinion that nobody should follow. What r u trying to get from him? Could you please be more specific? What kind of success r u trying to achieve? Do you have any new information that you can add to your initial complain? Then just file ammendment. Do not u think he wants exactly the same as u want to get rid of your case asap? There is a procedure in a court that you and him should follow. Trust me, if he would have some update for you, he would call you first. AUSAs are not our friends, they r on the other site and although they are simpatetic to us to some extend (they do not know what kind of nightmare is to leave without right papers in this country) they cannot do much.
If there is a paper to sign together, then it his responsibility to contact you and get your signature, because u r ProSe and he is a professional that is familiar with the court procedure and should follow it. I had to sign twice document with AUSA and every time we did on the last day. Only once I remind her through email that I want to see the document, but she sent me it the night before the due date. There is a court procedure that everybody follows. It does not depend on AUSA to give priority to your case or put it at the bottom of the pile. There are some other figures WHO decide how to proceed with our applications.
Do you have an attorney? Is INS affraid to loose thousands of dollars in case that u win? If both answers are "NO", then please prepare to wait and fight till end as I do and probably I am the oldest member on this forum who is still in process.
Your AUSA is a very nice guy. I talked to him only for 5 minutes, but I liked him and trust me he is overwhelmed with the cases.

 

[paz1960]

Not sure whether you are commenting on my previous post where I mentioned I tried to contact AUSA by sending him 3 emails (over 2 months period), and called him "numerous times" (not "numerous phone messages"), and never got answered.

So far I still have not got chance to talk to him or got email reply from him.

Tell me why do you think this is inappropriate??? (I'm not trying to defend myself, I'm just trying to learn from you). Maybe you have trick to improve success rate.

In addition, do you think it's appropriate for AUSA just not answer his phone at all, and not reply any email? What work ethics is this?

Thanks

Actually, bsus, I think that you are absolutely right. Not returning phone calls and not replying e-mails is not only a sign of bad manners, it is even against the rules. You have absolutely the right to confer with AUSA during the lawsuit. Here comes again a citation from the N.D. Cal Pro Se handbook which explains this:

What should I do before the initial case management conference?
There are several things the parties should do to prepare before the initial case management conference. As explained in more detail below, the parties are expected to call each other or meet in person, in a process that is called meeting and conferring, and try to agree on a number of issues. These include: making a single proposal for how and when discovery will be done (if a joint proposed discovery plan is required); deciding whether to submit the case to arbitration, mediation, or early neutral evaluation; and preparing the joint case management statement. Among other things, the joint case management statement tells the court the results of your meetings and what positions you have both taken about issues such as discovery and arbitration.

The requirements for case management conferences are explained in detail in Civil Local Rules 16-1 through 16-10, and in Rules 16(b) and 26(f) of the Federal Rules of Civil Procedure. You should also check your judge’s standing order, which may have additional rules.

Why do I have to meet and confer?
The point of meeting with the other side and conferring about issues like scheduling, discovery and resolving the case is to save everyone time, work out what you can before going to court, and to make sure both sides are clear on each other’s views. Under Rule 26(f) of the Federal Rules of Civil Procedure, unless the case is in one of the categories listed in Rule 26(a)(1)(E), all parties must meet and confer at least 21 days before the case management conference to:
1. Discuss the nature and basis of their claims;
2. Discuss whether there is a way to resolve the case quickly and informally through a settlement;
3. Arrange for initial disclosure of information by both sides as required by Rule 26(a)(1). This includes exchanging the names and contact information of every person who is likely to have information about the issues, certain documents (described in Rule 26(a)), and various other information described in that section; and
4. Develop a proposed discovery plan.
The meet-and-confer is also referred to as a “Rule 26(f) conference.”

 

[lotechguy]

Chevron Judgement

What is the Chevron case as it relates to us ? I read an AUSA filed MTD where AUSA says that the judge must follow Chevron and take the agency (USCIS) interpretation of "examination" and not the plaintiffs which is "interview". Paz, riz, Snorlax, shvilli, others, Does anybody know what is chevron case