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

[shvili]

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

LittlePine,

You need to use the Oppos-ns to motion to dismiss posted here 3 days ago, where the judges argue exactly the same thing: "the action it is taking in doing so lie within the discretion of the Attorney General under 1255(a)",

The AUSA purposefully confuse two different things: the action and the result of the action. The law refers to the DISCREATIONARY RESULT OF THE ACTION, but the Attorney General has non-discretioanry duty to ACT (See judges' opinions posted).
Also, read the attached doc., it may not be quoted but is helpful.

Good luck!

 

[tk123]

Hi Gurus

My wife had her interview more than 4 moths back for her naturalization. The officer had looked her application and said everything looks ok, but they are waiting for some information internally. We had taken several infopass appointments and each time we haer different stories. The IO mentioned that the case is in a decision stage and we should hear soon. We also call teh customer support and then got transferred to IO's, got difffernet replies. One officer mentioned that her name check was pending, but all others mentioned that her name check is complete.

However, we got two letters from the district office also, one stating that "We are actively processing this case", another one (received 3 weeks later) that "We have placed your case under active review by an IO so we can make a decision on your case asap". It has been more than a month since we received this letter, but there is no news from uscis.

I also want to add this information - My son (U.S.Citizen) was in another country with my mother in law while we applied for citizenship. When I had my interview, this question was raised and I showed proof of support and they approved my citizenship with in a month ( I did not have the proof during interview). For my wife, they never asked anything about that. We got annoyed waiting after three months and so we also send the support proof to the IO who did the interview for my wife. We think this is the reason why they are delaying the decision, but how long would they delay?


At this point, we are considering to file a pro se based on 120 days. We are still unsure whether the delay is due to name check or something else. What other reasons could be for the delay, assuming my wifes name check is complete. Since my son was not living with us, does it generate a red flag? Is that a valid reason for them to deny citizenship for my wife?

Thank you all your replies..

 

[shvili]

How to use citations

Lo and everyone interested,

I just googled this site which seems to explain in detail how to really use citations. Hopefully this would take care of my problem (Lotechguy was helping me with) of inserting citation correctly.

I'll be going to the courthouse to file tomorrow, will keep you all posted with any updates.

Good link on how to use citations:

http://www.rbs0.com/lawcite.htm#anchor222222

 

[lotechguy]

Hi Gurus

My wife had her interview more than 4 moths back for her naturalization. The officer had looked her application and said everything looks ok, but they are waiting for some information internally. We had taken several infopass appointments and each time we haer different stories. The IO mentioned that the case is in a decision stage and we should hear soon. We also call teh customer support and then got transferred to IO's, got difffernet replies. One officer mentioned that her name check was pending, but all others mentioned that her name check is complete.

However, we got two letters from the district office also, one stating that "We are actively processing this case", another one (received 3 weeks later) that "We have placed your case under active review by an IO so we can make a decision on your case asap". It has been more than a month since we received this letter, but there is no news from uscis.

I also want to add this information - My son (U.S.Citizen) was in another country with my mother in law while we applied for citizenship. When I had my interview, this question was raised and I showed proof of support and they approved my citizenship with in a month ( I did not have the proof during interview). For my wife, they never asked anything about that. We got annoyed waiting after three months and so we also send the support proof to the IO who did the interview for my wife. We think this is the reason why they are delaying the decision, but how long would they delay?


At this point, we are considering to file a pro se based on 120 days. We are still unsure whether the delay is due to name check or something else. What other reasons could be for the delay, assuming my wifes name check is complete. Since my son was not living with us, does it generate a red flag? Is that a valid reason for them to deny citizenship for my wife?

Go to your congressman office and have them call USCIS DO. They will tell you within a week whats going on.

Thank you all your replies..

Go to your local congressman's office and talk to an immigration specialist and have them call the local DO and get you an answer

 

[DUDE12190]

Hi Gurus

My wife had her interview more than 4 moths back for her naturalization. The officer had looked her application and said everything looks ok, but they are waiting for some information internally. We had taken several infopass appointments and each time we haer different stories. The IO mentioned that the case is in a decision stage and we should hear soon. We also call teh customer support and then got transferred to IO's, got difffernet replies. One officer mentioned that her name check was pending, but all others mentioned that her name check is complete.

However, we got two letters from the district office also, one stating that "We are actively processing this case", another one (received 3 weeks later) that "We have placed your case under active review by an IO so we can make a decision on your case asap". It has been more than a month since we received this letter, but there is no news from uscis.

I also want to add this information - My son (U.S.Citizen) was in another country with my mother in law while we applied for citizenship. When I had my interview, this question was raised and I showed proof of support and they approved my citizenship with in a month ( I did not have the proof during interview). For my wife, they never asked anything about that. We got annoyed waiting after three months and so we also send the support proof to the IO who did the interview for my wife. We think this is the reason why they are delaying the decision, but how long would they delay?


At this point, we are considering to file a pro se based on 120 days. We are still unsure whether the delay is due to name check or something else. What other reasons could be for the delay, assuming my wifes name check is complete. Since my son was not living with us, does it generate a red flag? Is that a valid reason for them to deny citizenship for my wife?

Thank you all your replies..

Most likely, it is the Name Check that is preventing your wife's citizenship. Believe me, these people do not know what they are doing. In my N-400 interview, which was more than two years ago, IO, at the end of interview, told me that we are still investigating my background information, as if I am an old criminal. Then, I, like you, put several differnt, info pass inquires and several times, i called the 800 number. Different times, u hear different stories depending on whom do u talk. It was after two years that one day, I spoke to the right person and he informaed me by going deeply in the CIS system that the only thing remaining is the FBI Name check.

If u really wanna know why your wife's application is getting delayed, u should put a congressman inquiry because it is very unlikely that they will play with a congressman office. But please remember, that even in that inquriy, they may not tell you that your name check is pending, but will just say that Background/or mandated checks pending. That is what happened in my case. Your son's stay outside the US has nothing to do with your wife's citizenship, so do not worry about it. I am also attaching a CIS Memo regarding Security checks. Good luck!! regards, dude

 

[tk123]

Thanks for your reply. I have already tried the senate, congressman and ombudsman and got the standard reply of 240 days from USCIS through them. I am still waiting for a reply letter from First Lady and the 2nd senate.

 

[dmakarov]

CMC anyone?

Hello guys,

Could anyone share his experience of going to CMC? What exactly can I say there?

I filed 1447(b) about two months ago. On the last day due got an answer from AUSA. He of course denies all my allegations in his answer. He claims in a personal email that they contacted "the agency" (I don't know what he means, probably USCIS) and "asked *them* to ask FBI to expedite the name checks" for my case! (Who needs this for Christ sake?! The agency failed multiple times and will most likely fail again and again to get their act together. I mean it's humiliating to be suspected criminal based on one's name (because this is exactly what the name checks are) and now they humiliate me further by suggesting the very same agency, that humiliated me, can help. I already came to the court because my trust and desire to deal with the agency is exhausted!) Then he suggests alternative resolution without further litigation in court. I think I'm going to refuse that, but not sure what I should say in CMC and in our common statement before CMC. Eventually I'm shooting for motion for summary judgment.

Thanks.

 

[Mingjing]

I thought so in the first place, but after reading judge's order for dimissal, it did not sound a dismissal at request of plaintiff. Please validate.

My hunch is that they adjudicated his case. So, case was closed at that point.

 

[lotechguy]

Hello guys,

Could anyone share his experience of going to CMC? What exactly can I say there?

I filed 1447(b) about two months ago. On the last day due got an answer from AUSA. He of course denies all my allegations in his answer. He claims in a personal email that they contacted "the agency" (I don't know what he means, probably USCIS) and "asked *them* to ask FBI to expedite the name checks" for my case! (Who needs this for Christ sake?! The agency failed multiple times and will most likely fail again and again to get their act together. I mean it's humiliating to be suspected criminal based on one's name (because this is exactly what the name checks are) and now they humiliate me further by suggesting the very same agency, that humiliated me, can help. I already came to the court because my trust and desire to deal with the agency is exhausted!) Then he suggests alternative resolution without further litigation in court. I think I'm going to refuse that, but not sure what I should say in CMC and in our common statement before CMC. Eventually I'm shooting for motion for summary judgment.

Thanks.

Were you in touch with the AUSA ie had you spoken to him before and exchanged emails etc ?

 

[dmakarov]

Were you in touch with the AUSA ie had you spoken to him before and exchanged emails etc ?

Well, yes, I called the US.A. office, asked who is AUSA on my case, they gave a number. Then I called the guy, asked: what's going on dude?, where's the answer?, it's due today! He sighed: "oh yes, I filed the answer today... I'll let you know what we answered..." and then an email came with what I described in my original post. How does it help my question about CMC?

 

[SLIS]

I thought so in the first place, but after reading judge's order for dimissal, it did not sound a dismissal at request of plaintiff. Please validate.

Even if it was eventually dismissed due to some other reasons, I don't think it matters. I can't seem to locate any further court ruling from LEXIS regarding this case.

However, I think it's still a good case to cite in your opposition to MTD as the August 03 court ruling is the only standing ruling that's known to AUSA as well.

 

[lotechguy]

Well, yes, I called the US.A. office, asked who is AUSA on my case, they gave a number. Then I called the guy, asked: what's going on dude?, where's the answer?, it's due today! He sighed: "oh yes, I filed the answer today... I'll let you know what we answered..." and then an email came with what I described in my original post. How does it help my question about CMC?

Well, I was not sure if you had been in touch with the AUSA since filing or just talked to him on the due date. Sounds like you spoke to him on the due date. I think you still got a good answer in that the AUSA is atleast saying they have asked for expedite of your name check. As far as I know case management is with magistrate judge and the AUSA will just say the same thing there. All you would need to do is to just state your name and say why the delay is affecting your life.

 

[SLIS]

Pennsylvania -- courts most favorable to WOM plaintiffs recently

It looks like Pennylvania is a great place to be at this time. There have been a couple of very favorable rulings from the district courts there:

--Duan v. Zamberry, 2007 U.S. Dist. LEXIS 12697 (Feb. 23, 2007)
--Song v. Klapakas, 2007 U.S. Dist. LEXIS 27203 (April 12, 2007)

What is significant about the Song case is that the plaintiffs did not even file an opposition to the MTD from the defendants. The judge could have chosen to grant the MTD; instead, he went ahead and ruled in favor of the plaintiffs and ordered USCIS to adjudicate their AOS applications within 30 days.

I wish we were all in Pennsylvania at this time.

 

[dmakarov]

Well, I was not sure if you had been in touch with the AUSA since filing or just talked to him on the due date. Sounds like you spoke to him on the due date. I think you still got a good answer in that the AUSA is atleast saying they have asked for expedite of your name check. As far as I know case management is with magistrate judge and the AUSA will just say the same thing there. All you would need to do is to just state your name and say why the delay is affecting your life.

lotechguy,

Yes, I only called on the last day when the answer was due and never spoke with any of them before the day. I have no reason to believe that what he claims is true, they might as well not ask anyone to expedite anything and even if he did it's not enough. You see they act as if they're doing me a favor: asking to expedite. The time's been up several months now. They're violating the very rules they make and offer some remedies to me already suffering a lot from their illegal actions.
The problem with CMC is, as I understand it, that we're going to agree how this case is going to be handled. Are we going to trial or are we going to reach some resolution without the trial. My intention is that I will not take any remedies without solid guarantees. And the only such guarantee is the ruling of the judge. So I don't know how exactly I am to refuse their proposals while we're in CMC. This is why I was asking what others' experiences with CMC were. Thanks for sharing. It helps to at least talk with people in the same boat as I am

 

[shvili]

lotechguy,

Yes, I only called on the last day when the answer was due and never spoke with any of them before the day. I have no reason to believe that what he claims is true, they might as well not ask anyone to expedite anything and even if he did it's not enough. You see they act as if they're doing me a favor: asking to expedite. The time's been up several months now. They're violating the very rules they make and offer some remedies to me already suffering a lot from their illegal actions.
The problem with CMC is, as I understand it, that we're going to agree how this case is going to be handled. Are we going to trial or are we going to reach some resolution without the trial. My intention is that I will not take any remedies without solid guarantees. And the only such guarantee is the ruling of the judge. So I don't know how exactly I am to refuse their proposals while we're in CMC. This is why I was asking what others' experiences with CMC were. Thanks for sharing. It helps to at least talk with people in the same boat as I am

dmakarov,
I can't comment on CMC itself as I'm only going to file (hopefully tomorrow).

However, I do have a comment on your attitude: while you feelings are totally clear and I share them, your attitude may negatively affect your cmc outcome.
What other steps do you expect from AUSA, if what he told you is not enough? From reading a lot of experiences on this forum, there's not much else s/he can do! In your place, if an AUSA told me they (at least!) are going to request to expedite, I would be glad, as it shows they're trying to settle you case and that's what you want, right? Yes, you can't trust CIS or FBI but if AUSA formally requested them to act and they agreed, your nc will be cleared and CIS will (hopefully) adjudicate. Isn't it what you're after? Also, my attitude at a cmc would be: courteous to AUSA (who I understand is stressed with too many cases and he isn't really a party to blame on my situation); firm on my ultimate goal to have a relief from court so a simple remand back to CIS would not suffice; requesting clear timetables from AUSA on any conditional promise s/he makes. Other than that, I agree with Lotech.

Have you started your OPP to MTD yet? Our seniors (Paz, Riz, Wenlock, etc.) may have really good advie on that.

Where have you filed?

 

[lotechguy]

Well, yes, I called the US.A. office, asked who is AUSA on my case, they gave a number. Then I called the guy, asked: what's going on dude?, where's the answer?, it's due today! He sighed: "oh yes, I filed the answer today... I'll let you know what we answered..." and then an email came with what I described in my original post. How does it help my question about CMC?

In my district AUSA's are actually filing extension for time in some cases stating clearly to the judge that due to an "overload" of manadmus cases defendants are unable to even respond with affidavits in time to file motion to dismiss, so they want an extension just to file an MTD!! My AUSA said he sympathises with our situation but they dont have time to talk to indivudual plaintiffs on phone due to case overload! He helpfully gave me date when he will file a Motion to dismiss or remand if agency does not resolve by then

 

[hopeforall2]

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).

Thanks paz , it has been 35 days since the AUSA sent his answer to my lawyer , but still no informantion from the court, when I called the court 2 days ago , I was told that there is no answer filed with the court otherwise Judge assigned to my case could have sechduled a conference.

This is why I am suspecious of the reason why the court does not have the answer yet...

What do you think?

Thanks

 

[ncblackhole]

It looks like Pennylvania is a great place to be at this time. There have been a couple of very favorable rulings from the district courts there:

--Duan v. Zamberry, 2007 U.S. Dist. LEXIS 12697 (Feb. 23, 2007)
--Song v. Klapakas, 2007 U.S. Dist. LEXIS 27203 (April 12, 2007)

What is significant about the Song case is that the plaintiffs did not even file an opposition to the MTD from the defendants. The judge could have chosen to grant the MTD; instead, he went ahead and ruled in favor of the plaintiffs and ordered USCIS to adjudicate their AOS applications within 30 days.

I wish we were all in Pennsylvania at this time.

Hello, Can you please post the actual cases? I am going to file soon and I am in Pennsylvania...but just so you know Philadelphia is not an easy place to do this. I am not sure where this cases are from?

Do you have actual cases? I have PACER but how do I get cases from LEXIS? Can anyone tell me?

 

[lazycis]

Hello, Can you please post the actual cases? I am going to file soon and I am in Pennsylvania...but just so you know Philadelphia is not an easy place to do this. I am not sure where this cases are from?

Do you have actual cases? I have PACER but how do I get cases from LEXIS? Can anyone tell me?

DUAN v. ZAMBERRY et al
Case Number: 06-01351
Court: Pennsylvania Western District Court


SONG et al v. KLAPAKAS et al
Case Number: 06-05589
Filed: December 22, 2006
Court: Pennsylvania Eastern District Court

 

[lazycis]

Thanks paz , it has been 35 days since the AUSA sent his answer to my lawyer , but still no informantion from the court, when I called the court 2 days ago , I was told that there is no answer filed with the court otherwise Judge assigned to my case could have sechduled a conference.

This is why I am suspecious of the reason why the court does not have the answer yet...

What do you think?

Thanks

When AUSA filed an answer to your lawyer, they attached the certificate of service. Take it and show to the court clerk. AUSA usually files electronically so it may be transmission problem or something like that.