Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
Lo,
thank you for great advise. You and Paz are probably right, as a simple typo should not warrant any drastic steps. However, if it is really so simple to amend I'll call court tomorrow to see if they have any special protocol for amending and I might do it in a few days. And yes, I also think that following that logic (giving CIS more time to work on your case without working yourself), it's better to wait. Heck, if they admitted they are working on the case, I would file for extention as you previously advised! (they DID start to work, as we received CIS letter inviting my husband for the FP.) THis is after 3.5 years of no letters!!! I don't believe in miracles and we only got it thanks to the law suit. So we wait and see...
Good luck to you! Hope you get some good news soon!
Technically speaking, once 120 days passed after an interview you have a right to complain to distr. judge (and that much is written nowadays on your N-652 form). Whatever the reason for your delay, it shouldn't matter, you can bring complaint after 120 days. But if you were stuck in the name check, I would have definitely advised you to wait because judges consider how reasonable a delay is depending on your case, and with the nc delays (and "poor FBI overwhelmed with nc backlog") I'd say, you should wait at least a year before filing to have better chances to win.
However, in your case CIS obviously don't have such an excuse as awaiting nc results, and no excuse period. Just to give them a benefit of the doubt, I'd wait till 180 days passed, then go for INFOPASS and if no news then file.
Good luck!
Birdie,
Congratulations!!! Glad to see you again, also, like Lazycs said, it's very encouraging to see more victories on the forum. Enjoy your gc status!
Do you mind sharing who was your AUSA and your judge? We got Olsen and magistrate judge Trumbull. Also, did you file your Opposition to MTD pro se or hire a lawyer? What's your approval date? Also, when are you getting your physical card?
always.wired
Registered Users (C)
Negligent Driving
Wenlock,
Thanks for the reply. Can you please explain what you meant by "more than one year"? here is what happened... After getting a "Negligent Driving 2nd Degree" which is not alcohol related, the judge eventually reduced the fine from 500 to 250. There was no other punishment other than a fine.
Wenlock,
Thanks for the reply. Can you please explain what you meant by "more than one year"? here is what happened... After getting a "Negligent Driving 2nd Degree" which is not alcohol related, the judge eventually reduced the fine from 500 to 250. There was no other punishment other than a fine.
always.wired
Registered Users (C)
Negligent Driving
Wenlock,
Thanks for the reply. Can you please explain what you meant by "more than one year"? here is what happened... After getting a "Negligent Driving 2nd Degree" which is not alcohol related, the judge eventually reduced the fine from 500 to 250. There was no other punishment other than a fine.
Wenlock,
Thanks for the reply. Can you please explain what you meant by "more than one year"? here is what happened... After getting a "Negligent Driving 2nd Degree" which is not alcohol related, the judge eventually reduced the fine from 500 to 250. There was no other punishment other than a fine.
Wenlock,
why are you saying that "You are entitled to file summary Judgement but that will not work if defandants are US govt agencies."?
I saw many cases (Birdie is the latest) where MSJ was filed and granted in many districts. From our handbook, I didn't see any restrictions on filing it, either. Perhaps you have some info from attorneys? Please share!
Thank you!
Help regarding filing my case:
Friends,
I am trying to go through all the posts in this thread before suing. Since there are 700 pages, it is taking long time.
Do you folks think I can go ahead with filing pro se package? I am planning to go through the other posts within 2-3 weeks. I am planning to use PUBLICUS's first post in this thread. This way the clock can start ticking. Do you folks have any recent sample which needs to be used?
I see references to reading about other cases somewhere online. Where do you guys research? I am looking for cases (where the delay is because of USCIS bureacracy not becos of background or name check).
This is a great thread. My sincere thanks for everyone in this thread.
Thank you
Friends,
I am trying to go through all the posts in this thread before suing. Since there are 700 pages, it is taking long time.
Do you folks think I can go ahead with filing pro se package? I am planning to go through the other posts within 2-3 weeks. I am planning to use PUBLICUS's first post in this thread. This way the clock can start ticking. Do you folks have any recent sample which needs to be used?
I see references to reading about other cases somewhere online. Where do you guys research? I am looking for cases (where the delay is because of USCIS bureacracy not becos of background or name check).
This is a great thread. My sincere thanks for everyone in this thread.
Thank you
andrew_sun
Registered Users (C)
Thank you, Wenlock, Lazycis and Shvili.
I really appreciated your advice and ecouraging words. This week I will prepare a general draft to oppose the MTD. I have downloaded some samples from your previous posts.
Best regards,
Andrew
I really appreciated your advice and ecouraging words. This week I will prepare a general draft to oppose the MTD. I have downloaded some samples from your previous posts.
Best regards,
Andrew
8 USC 1447(b) is a very strong case. I have a case from MA district where plaintiff filed a lawsuit on 121st day after the interview and prevailed. I mean, got naturalized very fast. The court, however, refused to grant attorney fees because 1) government acted before court deadline, 2) plaintiff injury was minimal.
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Use 1st post and also http://en.wikibooks.org/wiki/FBI_name_check to start.
It really does not matter what is the reason for the delay as long as it is on the government side and the government has authority to act (i.e. your priority date is current, etc.).
So your case may have a different factual background than name check cases, but you can rely on the same authorities (laws, regulations, resolved cases). Is your case I-485 or N-400?
Here is a good template for I-485 case in word format (name check related).
Let me clarify. I think you are understanding like plaintiff is never entitled for summary judgement that is not what I am saying. Once Defandents answer your complaint you are entitled to file summary judgement.
I am saying that in case Defandants (US agencies) does not respond to your complaint in 60 days legally you are entitled to file summary judgement but Judge will never grant it if Govt fails to respond.
(see Rule 55(e) of the
Federal Rules of Civil Procedure);
Based on your explaination I do not think you will have any problem. if you have repeated offense then it might be different they can take it as person with out good moral character. send me personal message with email address I will send you Guide to Naturalization read it Good Moral Character chapter it will give you good idea about your situation.
Guide is about 6 MB I am not able to post it here.
Over all AOS complaint looks good but i will edit relief section and ask for adjudication of application instead of acting upon permanent residency.
How do you define the term "Act upon the petitioner's application"
lets suppose they move your file from one office to other now that seems to me like they acted upon your application hence providing you relief you are asking but that does not mean they adjudicated it.
it is better to ask for firm action "Adjudication"
Also you are asking for Declaratory Judgement I am not sure what this will buy you. It is more symbolic then actually bring you any benefit.
Other then that it looks good. I always stress that writting your complaint is the key thing. It use to be the case where you file complaint and boom you are done with the case NOT ANY MORE. Now AUSA go throught MTD and other legal loophole that Pro Se litigant don't take it seriously. remember Judge always make decision based on actual complaint. Your response to MTD is just in support of actual complaint you can not bring new arguments in MTD response until you amend original complaint.
wenlock,
The complaint is not mine. I asked for adjudication and the judge interpreted it as "approval". Go figure. Now I think it is better to use a broad definition in relief prayer and narrow it down later on when you advance motion for summary judgement. If someone uses broad definition, it will be harder to dismiss a complaint. That's my opinion, but I am not 100% sure what's the best approach.
Declaratory judgment is not just symbolic. If court declares USCIS actions as "arbitrary, capricious, an abuse of discretion", USCIS will have a hard time denying your application (5 usc 706(2)). It is important for AOS. Declaratory judgment act does not provide jurisdiction by itself, however.
I agree with your other points. We cannot advance new arguments/facts in our opposition to MTD. The good news is that MTD is not an answer to the complaint so it's easy to amend if you've made some mistakes after MTD is received. Technically, you do not even need to ask court permission to amend in such situation.
Please some Help - Twist in my case
hello all;
I'm a long time reader for this forum since it started in 05.
my case is in a twist now, I filed my N400 7/05, FP 8/05, passed the interview on 6/06, second FP 3/07, filed my WOM on 11/06 (using a lawyer) in centeral IL, all the motions was done on 4/24/07 and the judge didn't say a word since then, I was scheduled for pre-trial conf on 6/30 and a bench trial on 7/30, first I dont know why the judge didnt rule on this case all this time!! also I though the judge will rule without a bench trial!!!
the US attorney tried all his tricks to delay my case and never cooperated with my lawyer and never bother to call the FBI to work it out.
The twist is this week is that the US attorney in my case filed for a 14 days to submit another motion based on a new appellate case from Texas was just decided. Attached case. This case found the exact opposite of what other common cases have found and, in essence, found that the person could not sue yet because, until the FBI has completed its exam, the 120 day time has not yet started, so what they say passing the interview is not the start of the 120 days.
This poor guy in the case (Shabir Hussein Walji) is being a lawful perm resident since 1980, and applied his N400 since 2003, and he got denied and now my US attorney wants to use his case against me.
so what do I expect !!!!
I'm in a shock cuz i guess the judge will find a good reason to deny my case now.
my lawyer is upset and he said he'll do his best but wanted to know if there's any other appellate case one of us has won.
any advice will be appreciated
thanks folks
melbashir
hello all;
I'm a long time reader for this forum since it started in 05.
my case is in a twist now, I filed my N400 7/05, FP 8/05, passed the interview on 6/06, second FP 3/07, filed my WOM on 11/06 (using a lawyer) in centeral IL, all the motions was done on 4/24/07 and the judge didn't say a word since then, I was scheduled for pre-trial conf on 6/30 and a bench trial on 7/30, first I dont know why the judge didnt rule on this case all this time!! also I though the judge will rule without a bench trial!!!
the US attorney tried all his tricks to delay my case and never cooperated with my lawyer and never bother to call the FBI to work it out.
The twist is this week is that the US attorney in my case filed for a 14 days to submit another motion based on a new appellate case from Texas was just decided. Attached case. This case found the exact opposite of what other common cases have found and, in essence, found that the person could not sue yet because, until the FBI has completed its exam, the 120 day time has not yet started, so what they say passing the interview is not the start of the 120 days.
This poor guy in the case (Shabir Hussein Walji) is being a lawful perm resident since 1980, and applied his N400 since 2003, and he got denied and now my US attorney wants to use his case against me.
so what do I expect !!!!
I'm in a shock cuz i guess the judge will find a good reason to deny my case now.
my lawyer is upset and he said he'll do his best but wanted to know if there's any other appellate case one of us has won.
any advice will be appreciated
thanks folks
melbashir
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wenlock,
I was about to direct my questions to you but luckely you have answerd me.
i live in the southern district of iowa.
please let me know if there are possibilites of winning the case.
thanks
wenlock,
I was about to direct my questions to you but luckely you have answerd me.
i live in the southern district of iowa. they recieved my N 400 on march 22 2006 and did the finger print on april 17 06.
please let me know if there are possibilites of winning the case.
thanks
I was about to direct my questions to you but luckely you have answerd me.
i live in the southern district of iowa. they recieved my N 400 on march 22 2006 and did the finger print on april 17 06.
please let me know if there are possibilites of winning the case.
thanks
This is a bad development for 1447(b) cases. That's why it is important to advance all possible causes of action, including mandamus, APA and declaratory judgment. Luckily, you are in a different circuit. You can use Ahmed v. DHS, 328 F.3d 383, 386-87 (7th Cir. 2003), Iddir v. INS, 301 F.3d 492, 497 (7th Cir. 2002). These cases are from your Circuit and your Circuit acknowledges that mandamus jurisdiction exists when INS refuses to act. Do you have FBI as a defendant? What about a writ of mandamus against FBI? You can also add another cause of action using APA 5 USC 555(b) and 5 USC 702, 706(1). See also Supreme Court cases ACCARDI v. SHAUGHNESSY, 347 US 260 (1954) (alien has a right to have an application for discretionary relief considered), NORTON V. SOUTHERN UTAH WILDERNESS ALLIANCE (03-101) 542 U.S. 55 (2004) (claim under 706(1) can proceed only where a plaintiff asserts than an agency failed to take a discrete agency action that is required to take). FBI is required to respond to CIS with the result of background investigation, according to the regulations cited in Walji's case, i.e. FBI has a duty to complete check in reasonable time. You have to push for a discovery and force FBI to provide processing history of your name check. You have to show that FBI's delay is egregious. Use government opposition (docket entry #23, 10/8/2004, civil case 03-cv-02606 District of Columbia). There, the government acknowledges that all background checks should take days, not years (45 days, to be exact, for the name check, few days for fingerprint check, few minutes for IBIS check).
See also Kowalczyk v INS (10th Cir 2001) (APA has provisions to compel INS to act within reasonable time);
You can argue that any ambiguity in an immigration statute should be resolved in favor of the alien. See, e.g, INS v. Errico, 385 U.S. 214, 225 (1966); Costello v. INS, 376 U. S. 120, 128 (1964); Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948); Janvier v. United States, 793 F. 2d 449, 455 (2d Cir. 1986)(“To the extent that there is any doubt as to Congress’ intention, we resolve that doubt in construing [an immigration statute] as providing the alien as much protection as possible”); Lennon v. INS, 527 F.2d 187 (2d Cir. 1975) (“deportation statutes must be construed in favor of the alien”)
Consider also advancing due process violation as USCIS had a policy to expedite FBI check when there is a lawsuit pending in district court. The policy was changed on 12/21/2006, but you have filed your WOM earlier. Apparently your NC was not expedited.
So at least you can ask court to compel USCIS to submit expedite request to FBI.
Hope this helps,
Lazycis
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