Thanks lazycis!
I will be filing with Southern District of Texas, which is in the 5th Circuit. You implied that the 5th Circuit was not good. Could you please elaborate?
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
Thanks lazycis!
I will be filing with Southern District of Texas, which is in the 5th Circuit. You implied that the 5th Circuit was not good. Could you please elaborate?
it is not good idea to apply 1447(b) pending due to name check in Fith Circuit any more. Recent ruling by Fifth Ciruit appellete court ruled that 120 days does not kick in until name check is not complete. No Judge in this Circuit will rule against it now until matter goes higher and decision gets reversed.
So chances of winning 1447(b) case based in pending name check is next to nothing under this Circuit.
You might be better off filing Mandamus but even that might not be very convincing. If some how you can prove that FBI owes Plaintiff ministerial obligation to finish name check in reseanable time that is the only way you can get your name check finish.
As wenlock mention, the 5th Circuit ruling is primarily affecting 1447(b) - naturalization cases. The court also rejected mandamus claim.
However, it does not mean you have no chance. It does mean you have to be prepared. Advance mandamus claim against USCIS and FBI, as well as APA violations. Gather all supporting evidence available for your particular case and include it in your complaint (average processing time, letters from congressmen/senators, etc.). You have to show that the delay is unreasonable in your case. Describe damages to you because of the delay. Not just state it, include numbers/evidence (i.e. how much did you spend for annual EAD/AP renewals, etc.)
Wang v Chertoff 06-3477 is a successfull case from your district.
http://www.immigrationportal.com/attachment.php?attachmentid=16088&d=1177024047
Thank you both, wenlock and lazycis!
Thank you both, wenlock and lazycis!
I just came back from InfoPass appointment.
As I expected, the result is still "pending because of security check". I asked the immigration officer: "is that name check conducted by FBI?", she answered:"name check is part of security check, and FBI is one of agencies"
The immigration officer was nice and we chattered for a while. She said that USCIS will approve 99% of I-485 cases as long as the national security check is done, but for my case, they have to wait for the clearance of security check. I told her that our cases had been pending for almost 3 years and she showed some sympathy and said "that was a little long...". I am not sure if I can use these conversations in the mandamus claim since USCIS will be one of the defendants?
Thanks.
Thank you both, wenlock and lazycis!
I just came back from InfoPass appointment.
As I expected, the result is still "pending because of security check". I asked the immigration officer: "is that name check conducted by FBI?", she answered:"name check is part of security check, and FBI is one of agencies"
The immigration officer was nice and we chattered for a while. She said that USCIS will approve 99% of I-485 cases as long as the national security check is done, but for my case, they have to wait for the clearance of security check. I told her that our cases had been pending for almost 3 years and she showed some sympathy and said "that was a little long...". I am not sure if I can use these conversations in the mandamus claim since USCIS will be one of the defendants?
Thanks.
I am sorry to hear your situation. I always told people if you have sound case like delay around 2 years do not wait file your case as soon as possible. Because longer you wait less chances of success you have considering problems with all these cases pending in courts. I am sure some will rule for Plaintiff but some for defandants all depends how you present your case.
I think your wait of three years is good reason for mandamus. Prepare your self and file good complaint. In your complaint distance your self from 1447(b) so that AUSA can not use that appellete court rulling in your Mandamus actions.
I guess you still will have good chance.
always.wired
Registered Users (C)
One years from Namecheck Submission date
For N-400 cases, 1 year from namecheck submission date is considered reasonable for filing WOM?
For N-400 cases, 1 year from namecheck submission date is considered reasonable for filing WOM?
Folks,
I got some good news yesterday.
AUSA emailed me and told me my namecheck cleared and told me to take a new fingerprint. Also she said she will issue stip. to dismiss without prejudice which will state USCIS to act in 30 days. I believe the recent cases has been all dismissed in this manner, right?
thanks
I got some good news yesterday.
AUSA emailed me and told me my namecheck cleared and told me to take a new fingerprint. Also she said she will issue stip. to dismiss without prejudice which will state USCIS to act in 30 days. I believe the recent cases has been all dismissed in this manner, right?
thanks
As someone said: "Realizing that you need more information is a sign of being bright....that's not stupid and that's not dumb. Knowing that you want more knowledge shows that you are a clever and thoughful person. "
Check your case on PACER, you will find all necessary info about person handling your case. If you just filed recently, PACER may not have that information just yet. Remember, the government has 60 days to respond and they usually use all of them (job security, I guess) You are in a good district, but prepare to fight anyway.
Laz,
Thanks for your advice. I have some valuable suggestions from you and offline that should help me figure it out. I think my case is too early to show up in PACER and I got a few more phone # to help track the AUSA down.
Thank you, lazycis,
The defendants argument in their MSJ is "the Court lacks subject matter jurisdiction because the Mandamus Statute, the APA and declaratory judgment act does not specify a time period within which the USCIS must complete I485 applications." They quoted several cases:
Li v. Chertoff, 482 F.Supp.2d 1172 (S.D. Calif. 2007)
Yan v. Mueller,2007 WL 1521732, *9 (S.D.Tex. 2007)
Safadi v. Howard, 466 F.Supp.2d 696 (E.D.Va. 2006)
Qiu v. Chertoff, 2007 WL 1430207, *6(D.N.J. 2007).
Later they submitted the supplement of Walji v Gonzales case. Here is the quote from their file:"At the time this case was filed the issues of whether the district court could assume jurisdiction over adjudicate an application for naturalization or compel the USCIS to perform their duty to adjudicate an application for naturalization has not been decided by the fifth circuit. Defendants believe their is sufficient law supporting dismissal of this case already before the court now"
I did file my MSJ with recent successfull AOS cases. But do you think I need to file supplement to remind the judge that my case is not a naturlalization case?
unfortunately I am in northern district of Texas, which should belong to 5th circuit.
Thanks
vkholunov,
why don't you try to write to the First Lady? Since you have nothing to lose, yet contacting her has helped several forum members to clear name check. Please search under "firts lady" on the forum, one member even provided letter blank to fill. (I didn't do it myself, because by the time I wrote, we would have better luck filing 1447+WOM so we sued.)
Good luck!
Shvili
LittlePine
New Member
I-485 approved
My I-485 was approved yesterday (so was my wife's) after 4.5 years of waiting. My sincere appreciation to this forum for the help and encouragement.
My journey to LPR:
I-140 (EB-1, OR) filed April 02, Approved Nov 02
I-485 filed Jan 03, two finger prints, stuck in FBI name check
Mandamus Writ filed Jan 07
USA MTD April 07
My response to MTD May 07
USA reply to response to MTD May 07
I-485 approved June 27, 2007
It's still working to file Mandamus Writ to expedite name check, and eventually get the LPR status.
There is always hope; don't be discouraged; you will eventually get there!
Good luck to everybody in this forum!
Little Pine
My I-485 was approved yesterday (so was my wife's) after 4.5 years of waiting. My sincere appreciation to this forum for the help and encouragement.
My journey to LPR:
I-140 (EB-1, OR) filed April 02, Approved Nov 02
I-485 filed Jan 03, two finger prints, stuck in FBI name check
Mandamus Writ filed Jan 07
USA MTD April 07
My response to MTD May 07
USA reply to response to MTD May 07
I-485 approved June 27, 2007
It's still working to file Mandamus Writ to expedite name check, and eventually get the LPR status.
There is always hope; don't be discouraged; you will eventually get there!
Good luck to everybody in this forum!
Little Pine
Catching up...
DUDE,
that is really nice of you! Great idea, so ditto for me (except, unlike you, I haven't won yet and still have to face the outcome...)But I have huge number of files (alas-poorly organized!) so I'll gladly share them. My immediate problem though, my e-mail browser doesn't attach PDF files for some reason, so I still can't send a personal e-mail with attached PDF files. However, I've been thinking about this- how about putting all the relevant docs (like, 1447(b) text, summons, proof of service, etc), in addition to Publicus info in the very beginning of this thread? So for a newcomer, s/he could immediately find it without browsing through 780 pages? I might try to address it after our case is resolved (-if it is resolved) and talk to the thread managers. Yes, some very good WOM info is filed into wiki name check page by our member, but I think we need this thread to have easily accessible centralized info.
In addition to SLIS and Lazycis advise, my two cents' worth: our district court specifically issued a doc saying that pro se clients don't have to use ECF (although they can), while all professional litigators must use it. It depends on your district, but no matter what, you will not be required to ECF you docs if you're pro se. We file everithing on paper, too
I went to the link and saw suggested formats of a letter to reps. Do you know if there's a specific blank form I can just fill in and sign? I'm a citizen and my GC-husband is stuck in nc for nearly four years.
I'll share my thoughts on this unfortunate TX decision later, but my immediate suggestion is either:
move to another state (or list your permanent address in care of a trusted friend who lives in another state;
file because soon enough at least some judges will sidetrack this decision just like they did Danilov;
hope that this case is better argued on a higher level-it should be going to the Upreme Court being as obnoxious as it is.
Congratulations! What is your timeline and where?
We got a fingerprint appointment letter but no communication from our AUSA. That's after 3.5 yrs silence. I still take it as a good sign, but there's no indication nc is cleared. My husband goes to INFOPASS on Monday we'll see if they say anything new (doubt it, though) Recent cases in CA all follow this pattern.
DUDE,
that is really nice of you! Great idea, so ditto for me (except, unlike you, I haven't won yet and still have to face the outcome...)But I have huge number of files (alas-poorly organized!) so I'll gladly share them. My immediate problem though, my e-mail browser doesn't attach PDF files for some reason, so I still can't send a personal e-mail with attached PDF files. However, I've been thinking about this- how about putting all the relevant docs (like, 1447(b) text, summons, proof of service, etc), in addition to Publicus info in the very beginning of this thread? So for a newcomer, s/he could immediately find it without browsing through 780 pages? I might try to address it after our case is resolved (-if it is resolved) and talk to the thread managers. Yes, some very good WOM info is filed into wiki name check page by our member, but I think we need this thread to have easily accessible centralized info.
Flying 123,
In addition to SLIS and Lazycis advise, my two cents' worth: our district court specifically issued a doc saying that pro se clients don't have to use ECF (although they can), while all professional litigators must use it. It depends on your district, but no matter what, you will not be required to ECF you docs if you're pro se. We file everithing on paper, too
Rollingstone,
I went to the link and saw suggested formats of a letter to reps. Do you know if there's a specific blank form I can just fill in and sign? I'm a citizen and my GC-husband is stuck in nc for nearly four years.
Wenlock,
I'll share my thoughts on this unfortunate TX decision later, but my immediate suggestion is either:
move to another state (or list your permanent address in care of a trusted friend who lives in another state;
file because soon enough at least some judges will sidetrack this decision just like they did Danilov;
hope that this case is better argued on a higher level-it should be going to the Upreme Court being as obnoxious as it is.
If your N-400 case had interview and a nc delay you could still file early in CA and the 9th Circuit, in other places I'd say wait for at least a year, two years even better, so you having a year is barely sufficient. Check Pacer in your district, see how similar cases are worked upon and follow the pattern.
ams_sim,
Congratulations! What is your timeline and where?
We got a fingerprint appointment letter but no communication from our AUSA. That's after 3.5 yrs silence. I still take it as a good sign, but there's no indication nc is cleared. My husband goes to INFOPASS on Monday we'll see if they say anything new (doubt it, though) Recent cases in CA all follow this pattern.
5th Circuit Walji v Gonzales case
I read the case judgment. It appears that the defendant claimed relief because more than 120days had passed after his interview with an IO. The whole prayer for relief was based on this 120 day rule. So all that the AUSA had to do was demolish the claim that the 120 day rule started on the day he was interviewed. It was quite easy to do so by ruling that the IO had by passed due process by interviewing the plaintiff before his NC was cleared. Since the whole claim was based on an event that shouldn't have happened in the first place his prayer for relief was denied. I think the defendant can still file for expedited NC clearance if he is delayed beyond reasonable time.
For all the I485 cases where the 5th circuit case is being used to MTD, one can argue that I485s are very different from the case being cited. No event has occurred that bypassed proper processes and procedures. Infact an I485 WOM is prayer for proper procedures to occur in a reasonable time. Most people whose NCs are pending for more than 2.5 years are in good wicket when it comes to reasonableness.
I would like to hear from lazycis and others on this.
I read the case judgment. It appears that the defendant claimed relief because more than 120days had passed after his interview with an IO. The whole prayer for relief was based on this 120 day rule. So all that the AUSA had to do was demolish the claim that the 120 day rule started on the day he was interviewed. It was quite easy to do so by ruling that the IO had by passed due process by interviewing the plaintiff before his NC was cleared. Since the whole claim was based on an event that shouldn't have happened in the first place his prayer for relief was denied. I think the defendant can still file for expedited NC clearance if he is delayed beyond reasonable time.
For all the I485 cases where the 5th circuit case is being used to MTD, one can argue that I485s are very different from the case being cited. No event has occurred that bypassed proper processes and procedures. Infact an I485 WOM is prayer for proper procedures to occur in a reasonable time. Most people whose NCs are pending for more than 2.5 years are in good wicket when it comes to reasonableness.
I would like to hear from lazycis and others on this.
Congratulations, Little Pine!!
Where did you file your case? In which district court? Did AUSA tell you that they were going to ask USCIS/FBI to expedite your name check or were you left in the dark until they informed you of the approval? I filed my case in January as well and am in the summary judgment phase. All along, my AUSA told me that USCIS has been very firm about their new policy of no expedite for AOS cases despite pending law suit....
My understanding is that you could file an reply to their supplement and you could also choose not to. It really depends on your level of comfort. If you don't the judge will rule based on whatever you have already filed. And if you want to make extra sure that everything that defendants have raised is opposed to, then by all means file a short and targeted reply to the supplement.
I've seen in a couple of case rulings where the judge pointed out the apparent confusion/mistake on the defendants' part in citing naturalization cases in AOS cases. But, it wouldn't hurt if you could file a short reply pointing that out to the court.
keep on trying never say give up.....
So far good news folks i had been calling uscis since last thurs found out my case was approved and i was pending for oath and than yesterday got a motion from defandants to dismiss as they had my orginal application copy stamped saying approved...and my oath is being arranged on sept 6 and i should be getting a oath letter...judge has not reponded to dismiss motion by ausa....thank guys great help.....i filed my own 1447 b had thousand obstacles anytime i had question i came to this website.....keep up the good work proud of u guys.......i gathered info to reply motion to dismiss in jan from this website and used my own knowledge and argument too ....filed againest motion to remand with a date set...it was afight till end but i never gave up even when i met the judge i made ausa look stupid and clumsey.....never give up.....always keep trying.......thank paz specially to u and other guys who helped me......that uscis # came in handy thank u,,,,
So far good news folks i had been calling uscis since last thurs found out my case was approved and i was pending for oath and than yesterday got a motion from defandants to dismiss as they had my orginal application copy stamped saying approved...and my oath is being arranged on sept 6 and i should be getting a oath letter...judge has not reponded to dismiss motion by ausa....thank guys great help.....i filed my own 1447 b had thousand obstacles anytime i had question i came to this website.....keep up the good work proud of u guys.......i gathered info to reply motion to dismiss in jan from this website and used my own knowledge and argument too ....filed againest motion to remand with a date set...it was afight till end but i never gave up even when i met the judge i made ausa look stupid and clumsey.....never give up.....always keep trying.......thank paz specially to u and other guys who helped me......that uscis # came in handy thank u,,,,
Rulings like that on Appelate court level is a shame for judical system (similar to Danilov). I'd like those judges to apply for a renewal of a driver license, pay a fee and than wait a few years for a new license. Then they go to court to sue and their case is thrown out because DMV clerk violated procedures and forgot to conduct a vision test.
They dismissed mandamus claim in one sentence, no explanation. There are number of Supreme court and appellate decisions that we can use to argue our case. I'll post them later.
use it at your own risk
Fellow members,
As I concluded my appellate brief, I have decided to share it with you all so you could use it to fight the injustice. Also, if you find any weaknesses/bad points/mistakes/typos, please let me know so that I can fix them before I fire.
Please keep in mind that I am not a lawyer and that the brief is tilted toward my Circuit (1st).
Wish me luck!
Lazycis
Fellow members,
As I concluded my appellate brief, I have decided to share it with you all so you could use it to fight the injustice. Also, if you find any weaknesses/bad points/mistakes/typos, please let me know so that I can fix them before I fire.
Please keep in mind that I am not a lawyer and that the brief is tilted toward my Circuit (1st).
Wish me luck!
Lazycis