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Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
What should I do for next step?
I fill lawsuit agaist USCIS for I-485 AOS name check pending. The Assistant U.S. Attorney write an answer to me. What should I do for next step? Did anyone know the whole procedure for the lawsuit? Thank you very much.
The next step (in fact this should be the FIRST step before you file a lawsuit) to prepare yourself reading the posts on this forum. Everything was already posted, most of the steps several times. Please, please, don't take these lawsuits against the government lightly. You are doing a big disservice for yourself and for the other people who will be suffering when a lost case is used by defendants as a precedence in their lawsuit.
A very well written source of info where you can get an idea what is the full procedure of a lawsuit is the N.D. of California Pro Se Handbook. You can download it from the court's website and it was posted here on this forum several times.
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Dear Paz and all friends, I need your help :-
The AUSA filed an answer to my suit but here is the thing I could not understand,
The AUSA sent his answer to my lawyer and when I called the court to check if any answer is filed, I was told that there is no answer filed yet.
1) Why would the AUSA send the answer to my lawyer instead of the court?
2) Could there be any "behind the seen" bargaining between my lawyer and the AUSA to settle the case out side the court and that is why the answer is not yet filed with the court?
What is going on, please in light me?
Thank you.
Usually there is a delay of several days (sometimes week/s) till anything filed with the court shows up in their system. I'm almost sure that AUSA filed the document also with the court. I don't believe that there is anything "behind the scene"; AUSA represents the government and s/he needs to follow exactly the FRCP.
My sense is that you don't really thrust your lawyer, otherways you would ask him/her this question. I would strongly recommend that give him/her the benefit of thrust till the contrary is proven (and in that case find another lawyer or do it yourself).
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parsfalcon
Registered Users (C)
I'm filing a motion for summary judgment and am attaching some new documents, this might be one way!
WOM,
Like to ask if you can let us know the case nubmer for the case at your district where judge denied defendants' MTD? I'd like to research it and add to my list of favorable cases and repost for all of us to study.
Thanks.
Originally Posted by wom
Guys, a question for you:
I've filed response to MTD ~ a weeek ago. Now I've found a similar MTD denied in my court by a different judge. I'm thinking it would be nice to ammend/add this judge's opinion to my Opposition - however, looks like I've used up my only chance to respond to MTD. Does anyone know if it may be possible to ammend my opposition or file a separate document?
Thanks!
mandatory duty in AOS cases
Paz & other friends,
I think I came up with an argument to prove that US AG does have a mandatory duty to process AOS application. I am posting it for your review:
Argument: The phrase “may be adjusted” in 8 USC 1255(a) relates only to the final decision of the Attorney General and not to the processing of an adjustment of status application itself
An adjustment of status petition framed by 8 USC 1255 is, in essence, a petition for an immigrant status defined in 8 USC 1154. Title 8 U.S.C. 1255 (a) was enacted in 1960 so that such aliens would not inevitably be required to leave the country and apply to a United States consul in order to obtain permanent residency status. If anything, the Congress intention was to make it easier, not harder to receive an immigrant status for aliens already residing in the USA. The only substantial difference between adjustment of status application and immigrant visa application is the location of an applicant. There is no reason to believe that the Congress intended to establish different procedures for handling adjustment of status petition versus immigrant visa petition. This point of view is supported in federal courts (see Padilla-Caldera v. Gonzales, 426 F.3d 1294 (10th Cir. 2005)).
Historically, 8 USC 1255 was enacted after 8 USC 1154 therefore it would be proper to confer with 8 USC 1154 regarding the details missing in 8 USC 1255. 8 USC 1154(b) does provide more details regarding the petition processing: “After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to accord a status under section 1153(b)(2) or 1153(b)(3) of this title, the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in section 1151(b) of this title, or is eligible for preference under subsection (a) or (b) of section 1153 of this title, approve the petition and forward one copy thereof to the Department of State.” It is clear that the Attorney General has a mandatory duty to process a petition for an immigrant visa as well as a petition for an adjustment of status. The only discretion given to the Attorney General by the Congress is the discretion to grant or deny an immigrant status after the processing of an adjustment of status petition is essentially complete. In this regard, the Attorney General has the same discretion as the Secretary of State has regarding issuance of an immigrant visa (see 8 USC 1204). The US Supreme Court itself distinguished between the discretion in the Attorney General as to the ultimate decision to grant relief and the underlying process (see Cardoza-Fonseca, 480 U.S. at 443-44). Furthemore, both Supreme Court and 1st Circuit Court of Appeals affirmed that an alien has a statutory right to have an application for discretionary relief considered (see Accardi, 347 U.S. at 268; Goncalves v Reno, 144 F.3d 110 at 125 (1st Cir. 1998)). Certainly, the Congress did not give the Attorney General the discretion to ignore or indefinitely delay a properly filed petition for adjustment of status. On the contrary, the Congress clearly expressed its intention in 8 USC 1571: “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.”
Paz & other friends,
I think I came up with an argument to prove that US AG does have a mandatory duty to process AOS application. I am posting it for your review:
Argument: The phrase “may be adjusted” in 8 USC 1255(a) relates only to the final decision of the Attorney General and not to the processing of an adjustment of status application itself
An adjustment of status petition framed by 8 USC 1255 is, in essence, a petition for an immigrant status defined in 8 USC 1154. Title 8 U.S.C. 1255 (a) was enacted in 1960 so that such aliens would not inevitably be required to leave the country and apply to a United States consul in order to obtain permanent residency status. If anything, the Congress intention was to make it easier, not harder to receive an immigrant status for aliens already residing in the USA. The only substantial difference between adjustment of status application and immigrant visa application is the location of an applicant. There is no reason to believe that the Congress intended to establish different procedures for handling adjustment of status petition versus immigrant visa petition. This point of view is supported in federal courts (see Padilla-Caldera v. Gonzales, 426 F.3d 1294 (10th Cir. 2005)).
Historically, 8 USC 1255 was enacted after 8 USC 1154 therefore it would be proper to confer with 8 USC 1154 regarding the details missing in 8 USC 1255. 8 USC 1154(b) does provide more details regarding the petition processing: “After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitions to accord a status under section 1153(b)(2) or 1153(b)(3) of this title, the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative specified in section 1151(b) of this title, or is eligible for preference under subsection (a) or (b) of section 1153 of this title, approve the petition and forward one copy thereof to the Department of State.” It is clear that the Attorney General has a mandatory duty to process a petition for an immigrant visa as well as a petition for an adjustment of status. The only discretion given to the Attorney General by the Congress is the discretion to grant or deny an immigrant status after the processing of an adjustment of status petition is essentially complete. In this regard, the Attorney General has the same discretion as the Secretary of State has regarding issuance of an immigrant visa (see 8 USC 1204). The US Supreme Court itself distinguished between the discretion in the Attorney General as to the ultimate decision to grant relief and the underlying process (see Cardoza-Fonseca, 480 U.S. at 443-44). Furthemore, both Supreme Court and 1st Circuit Court of Appeals affirmed that an alien has a statutory right to have an application for discretionary relief considered (see Accardi, 347 U.S. at 268; Goncalves v Reno, 144 F.3d 110 at 125 (1st Cir. 1998)). Certainly, the Congress did not give the Attorney General the discretion to ignore or indefinitely delay a properly filed petition for adjustment of status. On the contrary, the Congress clearly expressed its intention in 8 USC 1571: “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.”
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Question about opposition to MTD
Mine is a 1447b N400 complaint. In my initial complaint I just mentioned :
"Plaintiff <name> is a lawful permanent resident of the United States and within the jurisdiction of this court. Plaintiff applied for naturalization to the United States and was examined for his naturalization application on <date>.."
Now in the opposition to MTD can I say:
"Plaintiff <name> is a lawful permanent resident of the United States and a citizen of <country> and within the jurisdiction of this court. Plaintiff applied for naturalization to the United States and was examined for his naturalization application on <date>.."
ie Can I add the citizen of country in the MTD or is that going to be a problem ? I saw most complaints and MTD had the "citizen of <country>" clause, but sine I did not have it in my initial complaint will it be a problem if I add it now ?
Mine is a 1447b N400 complaint. In my initial complaint I just mentioned :
"Plaintiff <name> is a lawful permanent resident of the United States and within the jurisdiction of this court. Plaintiff applied for naturalization to the United States and was examined for his naturalization application on <date>.."
Now in the opposition to MTD can I say:
"Plaintiff <name> is a lawful permanent resident of the United States and a citizen of <country> and within the jurisdiction of this court. Plaintiff applied for naturalization to the United States and was examined for his naturalization application on <date>.."
ie Can I add the citizen of country in the MTD or is that going to be a problem ? I saw most complaints and MTD had the "citizen of <country>" clause, but sine I did not have it in my initial complaint will it be a problem if I add it now ?
I need somebody to review my question below and help. I am in process to complete my list of favorable I485 WOM cases, and like to consider adding this case below since judge order denied MTD. But the docket report of 12/31/2003 as I posted below might mean the case did not work out for plaintiff eventually?
Thanks.
My hunch is that they adjudicated his case. So, case was closed at that point.
looking for a good lawyer in NJ
Dear Forum,
I am new to this Forum. I filed for N-400 in May 2005 and had USCIS interview on June 12, 2006 and have waiting for my name check every since.
I am looking to hire a lawyer to file a lawsuit concerning the almost two-years delay in FBI name checking in my N-400 application. I have looked at almost all the cases filed between June 1, 2006 to December 30, 2006 but was told that things are much different now and that I cannot based the success rate then to make my decisions.
I have found this lawyer Edwin Rubiin. Does anyone know this guy? Also, is it common for lawyers like this to charge first a $3000 base fee and then $250 per hour afterwards. I am very uncomfortable with this no limit thing.
Please Help! Thanks.
Frusturated in New Jersey
Dear Forum,
I am new to this Forum. I filed for N-400 in May 2005 and had USCIS interview on June 12, 2006 and have waiting for my name check every since.
I am looking to hire a lawyer to file a lawsuit concerning the almost two-years delay in FBI name checking in my N-400 application. I have looked at almost all the cases filed between June 1, 2006 to December 30, 2006 but was told that things are much different now and that I cannot based the success rate then to make my decisions.
I have found this lawyer Edwin Rubiin. Does anyone know this guy? Also, is it common for lawyers like this to charge first a $3000 base fee and then $250 per hour afterwards. I am very uncomfortable with this no limit thing.
Please Help! Thanks.
Frusturated in New Jersey
Please comment on this!
Dear Paz and all others!
This is related to the 1447b. Case was filed on March 02, 2007. AUSAs are playing very dirty games now a days. As I discussed last week, I am in EDNY and in almost all cases AUSA was filing only an answer and NOT a MTD. I also notice that for whatever reasons, some complaints got cleared only within one and half months, while other cases are stuck for several months. This is a first MTD I am seeing from the same AUSA that has been assigned to my case. But the tricky part is, he did not file an extension in this case, but a MTD. And the reason for this is the Jugde that is assigned to the case. He is very very pro-defendent. I checked it on the Robing Room. So, I believe AUSA knows it and he wants to give him a chance to dissmiss the case.
But guess what the Planitiff is filing with a Lawyer. I checked the complaint. It is not that bad. I am attching a Motion to dissmiss and also the opposition to MTD filed by planitiff's lawyer. This should make all of those cautious who have filed in the EDNY that they have also started to fight back in this district.
AUSA is giving the same stupid reasons as they have done before that interview is a process and NOt a single event and 120- clock did not trigger at the day of examination. I will watch this case very closely and let all of you know the outcome. AUSA is talking another BS in this MTD that Planitiff is trying to jump ahead of those applicants, who filed before him and are still stuck in the background checks and have not filed a lawsuit. I think AUSA needs to understand that if those people do not know their rights or do not have courage to file for whatever reason, it is not a Planitiff's problem. How about those who filed 6 months ago and got their citzenship. Please comment on this Motion and Opposition! Good luck to all!! regards, dude
Dear Paz and all others!
This is related to the 1447b. Case was filed on March 02, 2007. AUSAs are playing very dirty games now a days. As I discussed last week, I am in EDNY and in almost all cases AUSA was filing only an answer and NOT a MTD. I also notice that for whatever reasons, some complaints got cleared only within one and half months, while other cases are stuck for several months. This is a first MTD I am seeing from the same AUSA that has been assigned to my case. But the tricky part is, he did not file an extension in this case, but a MTD. And the reason for this is the Jugde that is assigned to the case. He is very very pro-defendent. I checked it on the Robing Room. So, I believe AUSA knows it and he wants to give him a chance to dissmiss the case.
But guess what the Planitiff is filing with a Lawyer. I checked the complaint. It is not that bad. I am attching a Motion to dissmiss and also the opposition to MTD filed by planitiff's lawyer. This should make all of those cautious who have filed in the EDNY that they have also started to fight back in this district.
AUSA is giving the same stupid reasons as they have done before that interview is a process and NOt a single event and 120- clock did not trigger at the day of examination. I will watch this case very closely and let all of you know the outcome. AUSA is talking another BS in this MTD that Planitiff is trying to jump ahead of those applicants, who filed before him and are still stuck in the background checks and have not filed a lawsuit. I think AUSA needs to understand that if those people do not know their rights or do not have courage to file for whatever reason, it is not a Planitiff's problem. How about those who filed 6 months ago and got their citzenship. Please comment on this Motion and Opposition! Good luck to all!! regards, dude
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in NJ
I would check www.ailf.org for a lawyer in NJ ...
Dear Forum,
I am new to this Forum. I filed for N-400 in May 2005 and had USCIS interview on June 12, 2006 and have waiting for my name check every since.
I am looking to hire a lawyer to file a lawsuit concerning the almost two-years delay in FBI name checking in my N-400 application. I have looked at almost all the cases filed between June 1, 2006 to December 30, 2006 but was told that things are much different now and that I cannot based the success rate then to make my decisions.
I have found this lawyer Edwin Rubiin. Does anyone know this guy? Also, is it common for lawyers like this to charge first a $3000 base fee and then $250 per hour afterwards. I am very uncomfortable with this no limit thing.
Please Help! Thanks.
Frusturated in New Jersey
I would check www.ailf.org for a lawyer in NJ ...
Mine is a 1447b N400 complaint. In my initial complaint I just mentioned :
"Plaintiff <name> is a lawful permanent resident of the United States and within the jurisdiction of this court. Plaintiff applied for naturalization to the United States and was examined for his naturalization application on <date>.."
Now in the opposition to MTD can I say:
"Plaintiff <name> is a lawful permanent resident of the United States and a citizen of <country> and within the jurisdiction of this court. Plaintiff applied for naturalization to the United States and was examined for his naturalization application on <date>.."
ie Can I add the citizen of country in the MTD or is that going to be a problem ? I saw most complaints and MTD had the "citizen of <country>" clause, but sine I did not have it in my initial complaint will it be a problem if I add it now ?
Lo,
I remember from Pro SE CA handbook that you can't really add any new info after you filed unless you do it through an exhibit. But perhaps such a small add-on wouldn't matter? Perhaps our seniors have a comment...
Also, please pay att-n to the size limit posted in the local rules (25 pages?). I just reviewed it, here is the link:
LOCAL COURT RULES HERE:
http://www.cand.uscourts.gov/CAND/L...b2106e6db882569b4005a23f1?OpenDocument#TOC2_1
Mine is a 1447b N400 complaint. In my initial complaint I just mentioned :
"Plaintiff <name> is a lawful permanent resident of the United States and within the jurisdiction of this court. Plaintiff applied for naturalization to the United States and was examined for his naturalization application on <date>.."
Now in the opposition to MTD can I say:
"Plaintiff <name> is a lawful permanent resident of the United States and a citizen of <country> and within the jurisdiction of this court. Plaintiff applied for naturalization to the United States and was examined for his naturalization application on <date>.."
ie Can I add the citizen of country in the MTD or is that going to be a problem ? I saw most complaints and MTD had the "citizen of <country>" clause, but sine I did not have it in my initial complaint will it be a problem if I add it now ?
You cannot alter your complaint by filing an opposition to motion but it does not prohibit you from mentioning your citizenship in opposition. I do not think it's essential to your case, but if you really want to change the original complaint, you have to file a motion to amend.
Hi Dude,
Did you hire a lawyer or you did your N400 suit your self? I guess you are in EDNY.
I filed it as pro Se by myself.
stillstuck
Registered Users (C)
No response yet
The 60 days for responding to my case have expired and I checked on pacer and there are no updates on my case. I called yesterday to check on the name of teh AUSA who has been assigned to my case and they will not tell me. The just told me that "we cannot confirm or deny the case" implying thereby that they cannot give me any information. Any thoughts on what my next step should be?
Thanks
The 60 days for responding to my case have expired and I checked on pacer and there are no updates on my case. I called yesterday to check on the name of teh AUSA who has been assigned to my case and they will not tell me. The just told me that "we cannot confirm or deny the case" implying thereby that they cannot give me any information. Any thoughts on what my next step should be?
Thanks
LittlePine
New Member
Urgent help needed to oppose MTD
I am preparing for my opposition to MTD. One of the argument in my MTD was about 8 U.S.C. 1252(a)(2)(B)(ii):
[
Then, the MTD discussed in great detail the interpretation of "decision and action" in 1252(a).
Finally, in my MTD: "In sum, because USCIS's continuing evaluation of application and the action it is taking in doing so lie within the discretion of the Attorney General under 1255(a), this Court lacks subject matter jurisdiction over Plaintiff's claims."
Could you direct me to a successful opposition that directly opposed 1252(a)?
Greatly appreciate your help in this forum! I have only couple of days left to file my opposition, and this (1255(a)) is the only part that I don't have response to.
LittlePine
I am preparing for my opposition to MTD. One of the argument in my MTD was about 8 U.S.C. 1252(a)(2)(B)(ii):
[
no court shall have jurisdiction to review -
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified uner this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security ...
Then, the MTD discussed in great detail the interpretation of "decision and action" in 1252(a).
Finally, in my MTD: "In sum, because USCIS's continuing evaluation of application and the action it is taking in doing so lie within the discretion of the Attorney General under 1255(a), this Court lacks subject matter jurisdiction over Plaintiff's claims."
Could you direct me to a successful opposition that directly opposed 1252(a)?
Greatly appreciate your help in this forum! I have only couple of days left to file my opposition, and this (1255(a)) is the only part that I don't have response to.
LittlePine
The 60 days for responding to my case have expired and I checked on pacer and there are no updates on my case. I called yesterday to check on the name of teh AUSA who has been assigned to my case and they will not tell me. The just told me that "we cannot confirm or deny the case" implying thereby that they cannot give me any information. Any thoughts on what my next step should be?
Thanks
More likely they will respond in the next couple days. In the meantime you can prepare a motion for default judgment, which you will be able to use as a template for opposition or motion for summary judgment depending on AUSA response. I would wait 7-10 days and file for default judgment. Keep in mind, though, that you need to show in motion for default judgment that you are entitled to judgment as a matter of law, so you have to do your homework on this one.
I am preparing for my opposition to MTD. One of the argument in my MTD was about 8 U.S.C. 1252(a)(2)(B)(ii):
[no court shall have jurisdiction to review -
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified uner this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security ...
Then, the MTD discussed in great detail the interpretation of "decision and action" in 1252(a).
Finally, in my MTD: "In sum, because USCIS's continuing evaluation of application and the action it is taking in doing so lie within the discretion of the Attorney General under 1255(a), this Court lacks subject matter jurisdiction over Plaintiff's claims."
Could you direct me to a successful opposition that directly opposed 1252(a)?
Greatly appreciate your help in this forum! I have only couple of days left to file my opposition, and this (1255(a)) is the only part that I don't have response to.
LittlePine
Check these two files, they should help you fight 8 USC 1252. Supreme Court and other Appelate Courts rejected 1252 argument multiple times. There is a clear line between AG discretion to make ultimate decision weather to grant a relief and AG duty to process your application.
More likely they will respond in the next couple days. In the meantime you can prepare a motion for default judgment, which you will be able to use as a template for opposition or motion for summary judgment depending on AUSA response. I would wait 7-10 days and file for default judgment. Keep in mind, though, that you need to show in motion for default judgment that you are entitled to judgment as a matter of law, so you have to do your homework on this one.
Please, I think he will be wasting his time if he goes for default judgement. This issue has been discussed in very great detail on this forum. It is the law the in these cases, judges are not authorized to make a default judgement unless there is an extreme emergencies.
Here is what you can do if Ausa files an Answer and Not a MTD.
1) you can either go for summary judgement (Follow your local rules) or
2) you can request a pre-trial conference in which you will show your discovery plan( ex, if u want defensdents to bring some statistics or documents regarding your file and simialr cases that are stuck0
If you are a good communicator and have no problem in defending your case in front of a judge, u should go for the option 2 above; otherwise go for summary jugdment. And plesae start reading the old posts in this forum. It contains alot of useful info that can help you. regards, dude