You just file amended opposition to motion to dismiss which will have all changes you want to include. Pretty simple.
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Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
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You just file amended opposition to motion to dismiss which will have all changes you want to include. Pretty simple.
I am considering filing an appeal as well; My lawyer missed the deadline to a MTD and the judge dismissed the case. Do you have any information on how to do this for central district of california?
Procedure is the same for all appelate courts.
Here is the link for your court of appeals:
http://www.ca9.uscourts.gov/ca9/Documents.nsf/519a025470af2daf88256406008016b7/b8e0c322c8fab06388256f9b006437f1/$FILE/prose.caseopening.07.pdf
frank Haan
New Member
Were you pro-se or attorney ? Did AUSA say anything about your case ? any expedite etc being requested ?
The AUSA said nothing about expediting....I filed through an attorney...I am 100% going to appeal the second part of the ruling (remanding it back to USCIS...where it all began in the first place!!!)
I have also tried everything else...congressmen, senator, letter to James Hardy FBI, Letter to first lady...so I am going to fight this to the end.
Has anyone had any problems travelling overseas while their name is stuck in this process?
FH
Procedure is the same for all appelate courts.
Here is the link for your court of appeals:
http://www.ca9.uscourts.gov/ca9/Documents.nsf/519a025470af2daf88256406008016b7/b8e0c322c8fab06388256f9b006437f1/$FILE/prose.caseopening.07.pdf
Lazycis,
Good luck on your appeal!!! Also, great help to everyone on the forum!!!
Guys, I need your advise. My wife's H4 Nunc pro Tunc is pending. This was a total mistake by my employer and i am hopeful that USCIS considers my request for not seperating my wife and my 10 month old from me. If they deny, I want to file a case against them.
Has anyone filed a similar case? Do I just follow the procedure mentioned in this thread to file a case? What kind of an attorney should be hired for this case?
Thanks,
kaaaash
Has anyone filed a similar case? Do I just follow the procedure mentioned in this thread to file a case? What kind of an attorney should be hired for this case?
Thanks,
kaaaash
Just wanted to add one more thing that I am in 9th circuit. If anyone has been in similar situation, can anyone please guide if waiting for the decision is the best option? If the case gets denied and I file an appeal against it in local court, what are the chances of success?
Thanks.
Thanks.
The AUSA said nothing about expediting....I filed through an attorney...I am 100% going to appeal the second part of the ruling (remanding it back to USCIS...where it all began in the first place!!!)
I have also tried everything else...congressmen, senator, letter to James Hardy FBI, Letter to first lady...so I am going to fight this to the end.
Has anyone had any problems travelling overseas while their name is stuck in this process?
FH
Frank,
You have 10 days after the judgement to file a motion to reconsider the judgement. There have been successful cases of filing reconsider motion and getting the judge to add a timeline to the remand decsion. i will post some after I look into pacer. But you have to act fast since it must be filed in 10 days after judgement.
hopeforall2
Registered Users (C)
If you do a careful search, you will find that during the past decade or so there were many proposed immigration reform bills, with all kind of proposed changings. This is one of them; introduced in Congress in the previous term (109th Congress, 2005-2006). "This bill was proposed in a previous session of Congress. Sessions of Congress last two years, and at the end of each session all proposed bills and resolutions that haven't passed are cleared from the books. This bill never became law." (from the website where this bill is described)
I didn't follow very closely the present negotiations (fortunately, I am already a citizen), but from the news reports and watching just a little the debate on C-SPAN, I got the impression that they are not as close to a compromise version as some of the reports were suggesting. Because of this, I wouldn't spend too much time speculating about what if one of the proposed (among many others) would be adopted. I am rather sceptical that we can influence the outcome in any meaningful way (see the large street demonstrations across the country on May 1st). There are much more important interests at stake; in my opinion we have no way to influence the outcome of these negotiations in the Congress and White House.
But assuming that the above mentioned wording of the proposed bill will be adopted in the new Immigration Act, it will become certainly much more difficult to sue the government, although I still would not exclude the WOM type lawsuits. These are not asking the court to grant any immigration benefits; they merely ask the court to compel USCIS and FBI to act on an unreasonably delayed petition/application. Of course, it will be up to the federal courts to interpret the text of the new law and see if the more general Mandamus and APA still applies or it is effectively excluded in immigration cases. I am not an immigration lawyer or federal court judge. Sorry that I could not be more helpful...
Paz , Thank you very much,
My lawyer told me that the AUSA contacted him and told him that he is going to request to adjourn the conference due to his non avalibility and that the governement officers are taking action resolving the security check issue holding my application
emphasis on " resolving " ,
what are they resolving , and why that long to resolve ?
What do you think of this reply?
The AUSA said nothing about expediting....I filed through an attorney...I am 100% going to appeal the second part of the ruling (remanding it back to USCIS...where it all began in the first place!!!)
I have also tried everything else...congressmen, senator, letter to James Hardy FBI, Letter to first lady...so I am going to fight this to the end.
Has anyone had any problems travelling overseas while their name is stuck in this process?
FH
Frank, I travelled 4-5 times overseas during the period when my name check was stuck in the system. I never had any problem returning to US. There were several other members of this forum in similar situation, with similar experience.
You have no chance for appeal if you only contest the fact that your case was remanded to USCIS by the district court. The language of 1447(b) provides this option to the judge. The key is that this remand should be coming with specific instructions. These specific instructions should be meaningful, not only like " adjudicate the application as soon as the name check is completed" because in this way the whole lawsuit is a mere $350 reminder to USCIS to do their job, with no consequences for your case.
As Lotech mentioned, first you can try a Motion to reconsider and ask the judge to add a specific timeline to the remand order. If this is denied, the appeal should be centered on this issue. You can't avoid the remand to USCIS but you should get a precise timeline ordered by the court.
Paz , Thank you very much,
My lawyer told me that the AUSA contacted him and told him that he is going to request to adjourn the conference due to his non avalibility and that the governement officers are taking action resolving the security check issue holding my application
emphasis on " resolving " ,
what are they resolving , and why that long to resolve ?
What do you think of this reply?
Well, defendants will never admit that they are just sitting on your case, doing nothing. But let's hope that they are REALLY doing now something to move your case. I definitely would not stop voluntarily the whole lawsuit till I would not see the proof of some definite action. You can make a counter offer to AUSA, suggesting that s/he should ask the court an extension of 30 days if USCIS and FBI is really moving now on your case and you will be gratefully not oppose this extension. You also can tell AUSA that you are willing to sign a joint stipulation to dismiss your case as soon as USCIS adjudicated your application.
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Guys, I need your advise. My wife's H4 Nunc pro Tunc is pending. This was a total mistake by my employer and i am hopeful that USCIS considers my request for not seperating my wife and my 10 month old from me. If they deny, I want to file a case against them.
Has anyone filed a similar case? Do I just follow the procedure mentioned in this thread to file a case? What kind of an attorney should be hired for this case?
Thanks,
kaaaash
Definitely, it will be a different procedure, not just a lawsuit in a local court.
In my understanding, your wife will face an immigration judge if USCIS will try to deport her. If immigrant judge approves deportation, she can file an appeal with Board of Immigration Appeals. If that fails, she can file an appeal with 9th circuit court of appeals. I am not 100% sure about your wife's situation. That's not something I would do on my own.
Contact an immigration lawyer in your area, s/he should be able to help.
Frank,
You have 10 days after the judgement to file a motion to reconsider the judgement. There have been successful cases of filing reconsider motion and getting the judge to add a timeline to the remand decsion. i will post some after I look into pacer. But you have to act fast since it must be filed in 10 days after judgement.
Lo is correct, you have 10 days to file a motion to reconsider/alter a judgement (see rule 59(e) FRCP).
Did not work in my case though, as judge was biased toward the government and did not read anything I wrote (including original complaint). My motion was denied post factum after I filed an appeal.
Lazycis,
Good luck on your appeal!!! Also, great help to everyone on the forum!!!
Thanks, shvili! I have a mixed feelings about my appeal as my AUSA is very nice and one of the two officials who actually showed some compassion regarding my situation (the other one is CIS Ombudsman). I'd rather see my AUSA catching crooks and criminals than defending bureaucracy.
Has anyone had any problems travelling overseas while their name is stuck in this process?
FH
A friend of mine (actually, the whole his family) travelled multiple times without any problems. His name check has been pending since June, 2004. He did not get his GC yet.
Thanks, shvili! I have a mixed feelings about my appeal as my AUSA is very nice and one of the two officials who actually showed some compassion regarding my situation (the other one is CIS Ombudsman). I'd rather see my AUSA catching crooks and criminals than defending bureaucracy.
I spoke to the AUSA on my case. The AUSA said "We asked for exedite of your case but I see that the FBI background check is still not back". Can AUSA ask for expedite ? I thought it was only USCIS that could ask for expedites. Any one with similar experience ?
I spoke to the AUSA on my case. The AUSA said "We asked for exedite of your case but I see that the FBI background check is still not back". Can AUSA ask for expedite ? I thought it was only USCIS that could ask for expedites. Any one with similar experience ?
I think AUSA can ask FBI directly as FBI is part of the DOJ. Or ask USCIS to request expedite name check from FBI.
Guys, how is this for an opening remark in OPP
Hi guys,
In preparation for my opposition, I have drafted the following as the opening remark. Could you guys comment on the language. Is it appropriate to use words like "contend" rather than more assertive words? Any input is welcome.
Hi guys,
In preparation for my opposition, I have drafted the following as the opening remark. Could you guys comment on the language. Is it appropriate to use words like "contend" rather than more assertive words? Any input is welcome.
INTRODUCTION
Plaintiffs A and B in the above-captioned case, by and through Pro Se representation, submit their opposition to Defendants’ Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim.
On the issue of Subject Matter Jurisdiction challenged by Defendants, Plaintiffs will contend that this Honorable Court has original jurisdiction in this matter because Plaintiffs are seeking a Mandamus action to compel Defendants to perform a non-discretionary duty, which is to adjudicate and not approve Plaintiffs’ I-485 applications for permanent residency, which have been stalled due to excessive delays in the Name Checks conducted by the Federal Bureau of Investigation (FBI). Plaintiffs do not ask the court to instruct Defendants to exercise their discretion in a particular manner, but only ask the court to issue an order requiring the U. S. Citizenship and Immigration Service (USCIS) to make a request with the FBI to expedite Plaintiffs’ name checks and requiring the FBI and USCIS to complete their investigations and adjudicate Plaintiffs’ I-485 applications within a reasonable amount of time. Defendants also argued in their motion that Plaintiffs failed to state a claim upon which relief can be granted. Plaintiffs will show that the Immigration and Nationality Act establishes a clear right to relief for them, and Defendants, in unreasonably delaying action on Plaintiffs applications, are in violation of the law. Lastly, since Defendants do not dispute the facts and timeline stated in Plaintiffs’ original Complaint, which are consistent with Herring Decl. and Cannon Decl. submitted by Defendants along with their motion, Plaintiffs will contend that Defendants’ delays in processing their applications are indeed unjust. For these reasons, Plaintiffs request that this Honorable Court DENY Defendants’ Motion to Dismiss and GRANT the relief sought in their original Complaint.
Plaintiffs A and B in the above-captioned case, by and through Pro Se representation, submit their opposition to Defendants’ Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim.
On the issue of Subject Matter Jurisdiction challenged by Defendants, Plaintiffs will contend that this Honorable Court has original jurisdiction in this matter because Plaintiffs are seeking a Mandamus action to compel Defendants to perform a non-discretionary duty, which is to adjudicate and not approve Plaintiffs’ I-485 applications for permanent residency, which have been stalled due to excessive delays in the Name Checks conducted by the Federal Bureau of Investigation (FBI). Plaintiffs do not ask the court to instruct Defendants to exercise their discretion in a particular manner, but only ask the court to issue an order requiring the U. S. Citizenship and Immigration Service (USCIS) to make a request with the FBI to expedite Plaintiffs’ name checks and requiring the FBI and USCIS to complete their investigations and adjudicate Plaintiffs’ I-485 applications within a reasonable amount of time. Defendants also argued in their motion that Plaintiffs failed to state a claim upon which relief can be granted. Plaintiffs will show that the Immigration and Nationality Act establishes a clear right to relief for them, and Defendants, in unreasonably delaying action on Plaintiffs applications, are in violation of the law. Lastly, since Defendants do not dispute the facts and timeline stated in Plaintiffs’ original Complaint, which are consistent with Herring Decl. and Cannon Decl. submitted by Defendants along with their motion, Plaintiffs will contend that Defendants’ delays in processing their applications are indeed unjust. For these reasons, Plaintiffs request that this Honorable Court DENY Defendants’ Motion to Dismiss and GRANT the relief sought in their original Complaint.
Three more questions
Hi guys,
I have three additional questions that I hope someone can enlighten me on:
1) In my original complaint, I misspelled the name of the FBI director. Can I correct it and add a footnote explaining the change?
2) I have some additional evidence. Can I attach them to the opposition? I dug up a printout of an E-mail I wrote to FBINNCP in August 2005. I also received responses to my FOIPA inquiries after I filed the complaint. Can I add these two pieces of evidence?
3) Would any of you advise me against moving my residence to a different local address during the time my WoM is pending?
Many thanks,
Hi guys,
I have three additional questions that I hope someone can enlighten me on:
1) In my original complaint, I misspelled the name of the FBI director. Can I correct it and add a footnote explaining the change?
2) I have some additional evidence. Can I attach them to the opposition? I dug up a printout of an E-mail I wrote to FBINNCP in August 2005. I also received responses to my FOIPA inquiries after I filed the complaint. Can I add these two pieces of evidence?
3) Would any of you advise me against moving my residence to a different local address during the time my WoM is pending?
Many thanks,
Hi guys,
In preparation for my opposition, I have drafted the following as the opening remark. Could you guys comment on the language. Is it appropriate to use words like "contend" rather than more assertive words? Any input is welcome.
INTRODUCTION
Plaintiffs A and B in the above-captioned case, by and through Pro Se representation, submit their opposition to Defendants’ Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim.
On the issue of Subject Matter Jurisdiction challenged by Defendants, Plaintiffs will contend that this Honorable Court has original jurisdiction in this matter because Plaintiffs are seeking a Mandamus action to compel Defendants to perform a non-discretionary duty, which is to adjudicate and not approve Plaintiffs’ I-485 applications for permanent residency, which have been stalled due to excessive delays in the Name Checks conducted by the Federal Bureau of Investigation (FBI). Plaintiffs do not ask the court to instruct Defendants to exercise their discretion in a particular manner, but only ask the court to issue an order requiring the U. S. Citizenship and Immigration Service (USCIS) to make a request with the FBI to expedite Plaintiffs’ name checks and requiring the FBI and USCIS to complete their investigations and adjudicate Plaintiffs’ I-485 applications within a reasonable amount of time. Defendants also argued in their motion that Plaintiffs failed to state a claim upon which relief can be granted. Plaintiffs will show that the Immigration and Nationality Act establishes a clear right to relief for them, and Defendants, in unreasonably delaying action on Plaintiffs applications, are in violation of the law. Lastly, since Defendants do not dispute the facts and timeline stated in Plaintiffs’ original Complaint, which are consistent with Herring Decl. and Cannon Decl. submitted by Defendants along with their motion, Plaintiffs will contend that Defendants’ delays in processing their applications are indeed unjust. For these reasons, Plaintiffs request that this Honorable Court DENY Defendants’ Motion to Dismiss and GRANT the relief sought in their original Complaint.
Missingpa,
I used the word "contend" in our 1447+WOM petition, when I argued a little that the delay was unreasonable, so I think it's ok. I don't have experience yet with Opposing MTD because we're on earlier stage, but my opinion is you state that "processing" your application is non-discreationary, only the aproval is, and then quote as many cases as you can get (better from your Circuit or state) to support your claim.
You have WOM AOS, as I understand.
Also, I have a comment on the order posted yesterday to grant MTD. (New Jersey, Li case). The judge there said that all cases that denied MTDs in similar cases ignored the section on "witholding adjudication", which gives increments of 6 months for continued consideration to CIS. Then he (again!) uses "jump in front of the line" argument. I think "withholding adjudication" statue can be used in our defence, as it specifically talks about "reasonable time" i.e., six months increments, to continue checks. Also, the fact it says in detail how these extra 6 mo. are added shows that Congress means that CIS has to be held accountable for the time it spends on the process. So we can argue that this statue itself indicates the accountability for the time alloted to CIS and means CIS has no right to withold adjudication indefinitely without any explanation to applicants. Also, as I mentioned here before, I think it's appropriate to say something like:
"this indefinite waithing, also caled an "in limbo state" by several judges ruling on this issue can not be the purpose of congress when it passed the statues in hand. There is another, totally different process which in fact provides no accountablility for agencies to return an answer to applicants for immigration status. That process is the "green card lottery", which provides no duty or a binding contract on the part of the processing center to notify applicants whether they "won" or "lost". But Plaintiff hopes this court can see the very clear difference between a Lottery process and AOS process. Unlike Lottery, AOS is a binding contract between applicant, who paid a fee so that CIS would process his application, and CIS. And just like in any fee-requiring contract, the agency has a duty to notify applicants of their decision, and in case their application is denied, for the reasons for the denial (Here quote the statue). This duty to notify applicants of CIS decision falls under APA laws which prescribe to process applications within "reasoanble time" and Plaintiff requests this court to compel CIS to act on his application."
ALso, on jump "in front of the line" argument: FBI has never said that there is a separate "line" for delayed cases, but on the opposite claimed that "all cases a processed in the order received". Had there been in fact a separate line for the delayed cases, in which as defendants claim, applicant tried to "jump to the front", Plaintif requests the information on how many cases in this line are delayed longer than his, so indeed he would be notifyed of his place in this "Line". Plaintiff doesn't want to jump in front of someone else who has been delayed longer than he. But according to the FBI testiomony, the situation is totally reversed: since there is only one line where all cases are processed "in order they are received", FBI in fact allows all those current applicants to jump in front of him and other delayed applications because he is unjustly pulled out of this line and delayed indefinitely. So please let's clarify if indeed there is a separate line of delayed cases, and if so, is FBI processing it in "order of delay"? If yes, FBI should notify Plaintiff of his place in this line.
Good luck!
Hi guys,
I have three additional questions that I hope someone can enlighten me on:
1) In my original complaint, I misspelled the name of the FBI director. Can I correct it and add a footnote explaining the change?
2) I have some additional evidence. Can I attach them to the opposition? I dug up a printout of an E-mail I wrote to FBINNCP in August 2005. I also received responses to my FOIPA inquiries after I filed the complaint. Can I add these two pieces of evidence?
3) Would any of you advise me against moving my residence to a different local address during the time my WoM is pending?
Many thanks,
Missingpa,
I also misspeled the name not of the defendant, but of the interviewing CIS officer in my husband's complaint. I decided not to bother with it, but in your case, since he is the dfendant, and since you want to add other evidence, I think you can do it. Please read civil rules/handbook on when you are allowed to add/amend your complaint (amending is easier before they responded). But here's a format of exhibits from a member from 2 yrs ago who added number of exhibits after he filed, and all seemed to work.