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

[DUDE12190]

I received a blow today. My case got dismissed due to lack of subject matter jurisdiction, the judge sited Grinberg v. Swacina in his order.
There was no MTD or trial in my case, from the beginning both parties were instructed to file Summary judgement, then went back and forth with responses. My attorney kept telling me that our judge was pro government but I was just hopeful. I can't believe my bad luck.

Questions:
There was no mention of with or without prejudice, just dismissed. My attorney said we should appeal in the (7th) circuit court . Has any one gone through this phase?
Can it be done pro se? I am not sure how much he will charge for the appeal. I already coughed up enough for the district court work he did.
Any idea about how long this might take?

I am sorry about what has just happened. Did you do some reserach about this lawyer before hiring him? Yes, I believe that you can file an appeal by yourself, but offcourse, it should be convincing and well written. Can you please tell us which district are u in??
Don't get disappointed. You still have a chance. File a Well written and convincing appeal. regards, dude

 

[lazycis]

I received a blow today. My case got dismissed due to lack of subject matter jurisdiction, the judge sited Grinberg v. Swacina in his order.
There was no MTD or trial in my case, from the beginning both parties were instructed to file Summary judgement, then went back and forth with responses. My attorney kept telling me that our judge was pro government but I was just hopeful. I can't believe my bad luck.

Questions:
There was no mention of with or without prejudice, just dismissed. My attorney said we should appeal in the (7th) circuit court . Has any one gone through this phase?
Can it be done pro se? I am not sure how much he will charge for the appeal. I already coughed up enough for the district court work he did.
Any idea about how long this might take?

There is no prejustice 'cause it was dismissed for the lack of subject matter, i.e court did not make a ruling on the facts of your case.

You can do two things:
1. File a motion to reconsider and convice judge that he is mistaken. Chances are slim, but worth the try.
2. Go for appeal, it is possible to do it pro se, but the process is much harder for pro se than the process in district court. Attorney would be a big help and if you win (I do not see how you can lose in appeal court), government will pay for attorney. You have 60 days from the date of order to file notice of appeal, but I would do it right away, it's a very simple form and it should not take long to prepare it. It costs $455.
Here is a link for your circuit (you can find a sample form for notice of appeal): http://www.ca7.uscourts.gov/Rules/rules.htm
After you file notice of appeal, you will need to get a cerified copy of your docket from district court and file a docketing statement with court of appeals. Read federal and local rules of the appellate procedure. The court will set a case management schedule and a deadline to submit a brief. That's the main document for the appeal. You will have enough time to prepare it, but it has to conform to the rules. I am not sure how long it will take, it depends on court's calendar. After you file your brief, the government will file a brief in response. The good thing about appeal court is that a response brief should be no bigger than half the size of the appelant's brief

Sorry that you have to wait longer, but do not be discouraged and do not give up.

 

[gmlvsk]

What district is it in?
It's hard, but you could move to north california for few months and refile there
Judges are nicer there

I received a blow today. My case got dismissed due to lack of subject matter jurisdiction, the judge sited Grinberg v. Swacina in his order.
There was no MTD or trial in my case, from the beginning both parties were instructed to file Summary judgement, then went back and forth with responses. My attorney kept telling me that our judge was pro government but I was just hopeful. I can't believe my bad luck.

Questions:
There was no mention of with or without prejudice, just dismissed. My attorney said we should appeal in the (7th) circuit court . Has any one gone through this phase?
Can it be done pro se? I am not sure how much he will charge for the appeal. I already coughed up enough for the district court work he did.
Any idea about how long this might take?

 

[wenlock]

I received a blow today. My case got dismissed due to lack of subject matter jurisdiction, the judge sited Grinberg v. Swacina in his order.
There was no MTD or trial in my case, from the beginning both parties were instructed to file Summary judgement, then went back and forth with responses. My attorney kept telling me that our judge was pro government but I was just hopeful. I can't believe my bad luck.

Questions:
There was no mention of with or without prejudice, just dismissed. My attorney said we should appeal in the (7th) circuit court . Has any one gone through this phase?
Can it be done pro se? I am not sure how much he will charge for the appeal. I already coughed up enough for the district court work he did.
Any idea about how long this might take?

Sorry to hear this It is sad. I think if you talk to your lawyer and file Motion to reconsider. Highlight point that court assesment based on Grinberg v. Swacina is wrong. Highlight fundamental difference between Grinberg v. Swacina and your case that in Grinberg v. Swacina Plaintiff was asking for approval of applications but in your case you are not asking for that relief. You are asking for adjudication ( I am hoping that is what you asked ). This invalidates Grinberg v. Swacina argument. Certainly Motion to consider is better then appeal but I do not see any harm in trying as Judge already ruled against you.

 

[wenlock]

Sorry to hear this It is sad. I think if you talk to your lawyer and file Motion to reconsider. Highlight point that court assesment based on Grinberg v. Swacina is wrong. Highlight fundamental difference between Grinberg v. Swacina and your case that in Grinberg v. Swacina Plaintiff was asking for approval of applications but in your case you are not asking for that relief. You are asking for adjudication ( I am hoping that is what you asked ). This invalidates Grinberg v. Swacina argument. Certainly Motion to consider is better then appeal but I do not see any harm in trying as Judge already ruled against you.

Well I guess you can certainly move to some other District court and reapply. I found following argument which clarify this.

Frederickson v. City of Lockport, 384
F.3d at 438. A court that lacks subject matter jurisdiction
cannot dismiss a case with prejudice.

 

[ipoh]

Thanks for all your responses. I am in Wisconsin WD.
All we asked is to adjucate NOT approval.
I will talk to my attorney next week about the the motion to reconsider vs appeal. AFAIK he thinks appeal is better.
Will keep you posted.
Looks like the judge didn't even take time to read the responses from my attorney. He is a competant one. I will keep you posted, most likely I will have him do the appeal too.

- Still..... In Persuit Of Happiness.

 

[lazycis]

Thanks for all your responses. I am in Wisconsin WD.
All we asked is to adjucate NOT approval.
I will talk to my attorney next week about the the motion to reconsider vs appeal. AFAIK he thinks appeal is better.
Will keep you posted.
Looks like the judge didn't even take time to read the responses from my attorney. He is a competant one. I will keep you posted, most likely I will have him do the appeal too.

- Still..... In Persuit Of Happiness.

Go for appeal then. If judge is a jerk or incompetent, motion to reconsider is useless.
Here is a doc I have regarding appeals. Please note that it's a bit outdated, so fees are 200 less than current fees. But the sequence of events and timeline is current. It's from my circuit (1st).

 

[Mingjing]

The fact that AUSA asks for ADR (that is how the Pacer docket report shows) confuses me too. He might just want to clarify some minor things with my lawyer.

My lawyer just billed me additional $2,200 after initial $3,400 including file fees with court, due to additional work fighting MTD. I am thiking even if AUSA comes to me now to offer expedite on condition of joint dismissal of case, I will have to consider given larger $ involved here.

lazycis, SLIS and Mingjing,

thank you for your posts. As I already said to Lo, ECF is not for us, so we should "serve it and ignore it". And I agree with you, ADR should be pretty meaningless since there's nothing to mediate at this point, we argue statues interpretation and want them to work. Also, the clerk (kind of ) agreed with me and said, ADR would probably not apply but they have to serve docs and I must serve them together with my docs on all defendants.

But now I read Mingjing's last post and it puzzles me: why did they order ADR with your attorney, are they doing a discovery and what is there to negotiate??? Perhaps you can clarify it...

We are mailing (and delivering to AUSA tomorrow). Or should we wait to receive file Proof of Service and then deliver files to AUSA? Since we want them to start working on it, the sooner the better. So I'll try to do it tomorrow.

 

[ipoh]

Chicago lawyer referral please!

Can anyone refer a good lawyer or lawfirm in Chicago?

 

[shvili]

Thanks for all your responses. I am in Wisconsin WD.
All we asked is to adjucate NOT approval.
I will talk to my attorney next week about the the motion to reconsider vs appeal. AFAIK he thinks appeal is better.
Will keep you posted.
Looks like the judge didn't even take time to read the responses from my attorney. He is a competant one. I will keep you posted, most likely I will have him do the appeal too.

- Still..... In Persuit Of Happiness.

Ipoh'

sorry for your setback. This again proves how much our situation resembles a lottery: it all depends on teh judge and AUSA assigned to your case. Lazycis gave you a very knowledgeable and great advice, my extra comment is perhaps file mtn to reconsider first as it is probably easier than appealing.

God luck and keep fighting, do not give up!

 

[RYCeT]

Hi guys, where or whom should I spoke to get the information when did my FBI name check initiated. I tried infopass however she told me she don't have that information.

 

[akram88]

Hi Mingjing:

No, my case did not get to MTD which was scheduled for May 9th. AUSA knew that FBI and USCIS were working on resolving the case, so during the Case Management Conference, He suggested to the Judge to extend the date of MTD 4 weeks later.

Cheers,

Congratulations swimfitness!!! I hope you enjoy your new card and your new life as a resident.

I have a question do you know when your name check was expedited and when it was cleared?

 

[xil96]

appeal

I just got the WOM case dismissed by the judge today. We are considering the appeal currently. My attorney is willing to file the appeal for us, and she only asks for us to pay for the out of pocket expense (such as filing fees and mail, copy expenses), we don't have to pay for her legal fees. Any one has any idea how much the out of pocket fees will be, and how much the attorney ask for the legal fee for this kind of cases?

 

[DUDE12190]

Hi guys, where or whom should I spoke to get the information when did my FBI name check initiated. I tried infopass however she told me she don't have that information.

The FBI is no longer answering any Name check inquiries. You can try the 800 number, but it depends on your luck. If the IO is knowldgable and willing to help u, he/she will be able to tell u when extacly USCIS initiated the Name check. But most of the time, your name check was probably iniated on or after one week from your finger printing date.

I got lucky after two years. My call was tarnsfered to a very nice IO when I called the 800 number. He gave me the date, which was the a month before my first fingerpriting. I am still puzzled but according to what he told me, my name check was initiated before my fp. Good luck!!

 

[lnn]

Sorry to hear IPoh's case

My attorney told me that it was indeed getting harder to win cases now. In NJ, there were three dismissed cases already. Judge Pisano apparently is one of the pro-government judges despite that he approved many cases before. Something must have happened this year.

My lawyer hasn't filed yet. But I am equally concerned that how many of us can really afford going to the appeal stage? I have already coughed up $3000 not counting the filing fee. Additional money is due once we start fighting MTD which looks like a high possibility.

I have one question for the forum. With the election year coming, is there anything can we do politically to try to move things in a big picture way? Aren't any politicans happy to see millions more immigrants able to vote? Am I beling naive here?

--------------------------
N-400 filed in May 2005
Interview in June 2006
FBI Name checking pending since
Soon to file

 

[paz1960]

My attorney told me that it was indeed getting harder to win cases now. In NJ, there were three dismissed cases already. Judge Pisano apparently is one of the pro-government judges despite that he approved many cases before. Something must have happened this year.

My lawyer hasn't filed yet. But I am equally concerned that how many of us can really afford going to the appeal stage? I have already coughed up $3000 not counting the filing fee. Additional money is due once we start fighting MTD which looks like a high possibility.

I have one question for the forum. With the election year coming, is there anything can we do politically to try to move things in a big picture way? Aren't any politicans happy to see millions more immigrants able to vote? Am I beling naive here?

--------------------------
N-400 filed in May 2005
Interview in June 2006
FBI Name checking pending since
Soon to file

I'm affraid, that the answer to your last question is YES. This whole mess around the immigrants is a lot bigger than us, 1% of the total applications (if we believe the USCIS official numbers) stuck in the name check. You probably saw in the news the demonstrations across the country on May 1 where thousands and thousands of people marched asking an immigration reform. I am personally very pessimistic that anything will change substantially in the near future. The Congress is so divided on this issue that it is almost hopeless that they will takle the full picture. I would not exclude that there will be patchup measures, but in order to reform the whole system, I don't believe that there is much chance. Maybe (and hopefully) I'm wrong...

 

[birdie]

hi guys,

Just wanted to share a positive news. My case's MTD is denied by the judge, I am in Northern District of California.

I will appreciate if someone has a sample of Motion for Summary Judgement.

 

[gmlvsk]

Could you tell your district?

I just got the WOM case dismissed by the judge today. We are considering the appeal currently. My attorney is willing to file the appeal for us, and she only asks for us to pay for the out of pocket expense (such as filing fees and mail, copy expenses), we don't have to pay for her legal fees. Any one has any idea how much the out of pocket fees will be, and how much the attorney ask for the legal fee for this kind of cases?

 

[shvili]

hi guys,

Just wanted to share a positive news. My case's MTD is denied by the judge, I am in Northern District of California.

I will appreciate if someone has a sample of Motion for Summary Judgement.

Birdie, congratulaions!

What judge did you have and have you heard of Patricia Trumbull, she is a magistrate judge in San Jose and was assigned to us 2 days ago?

I don't have a motion sample but you can check the files I downloaded over the weekend before the last, there are at least a couple of MSJs listed there.

 

[DUDE12190]

I'm affraid, that the answer to your last question is YES. This whole mess around the immigrants is a lot bigger than us, 1% of the total applications (if we believe the USCIS official numbers) stuck in the name check. You probably saw in the news the demonstrations across the country on May 1 where thousands and thousands of people marched asking an immigration reform. I am personally very pessimistic that anything will change substantially in the near future. The Congress is so divided on this issue that it is almost hopeless that they will takle the full picture. I would not exclude that there will be patchup measures, but in order to reform the whole system, I don't believe that there is much chance. Maybe (and hopefully) I'm wrong...

I think the main issue in this FBI Name check Mess is the Reference files that they began to use in November 2002. If USCIS has statistics that they have caputred terrorists, and bad guys(Immigration and/or other Frauds) or criminals using this system after November 2002, then, I think, it should be continued, but these Name checks needs to be done in a very specific and timely manners and all applicants should be treated equally as far as the processing times are concerned. I mean those applicants with and without the positive hits in this reference file system.

So if CIS knows that it is working for them, then, they can contiune. But, if they have not caught people using this refernce file, then, it should be stopped atleast for immigration benefits. But who is going to understand this situation. I think they will start to wake up when they will have thousand of lawsuits pending in the courts instead of hundreds. We are all victims of this bureaucratic mess. In reality, FBI's situation is like a solider in a war. It's like you gave him a gun, but how about bullets!!!!!!! No bullets!! How can he fight!!