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

Please help to discuss "answer" and "MTD"

I got the answer from AUSA, the clerk told me that there is no need to file a response.

I read Pro Se handbook (p.46), It wrote "There is no such thing under the Federal Rules of Civil Procedure as a “Response to an Answer.” Even if you strongly disagree with the statements in the answer, there is no nedd to file a response. Under Rule 8(d) of the Federal Rules of Civil Procedure, all statement in an answer are automatically denied by the other parties to the lawsuit."

What does it mean "Under Rule 8(d) of the Federal Rules of Civil Procedure, all statements in an answer are automatically denied by the other parties to the lawsuit".
 
help me please,

i passed my citizenship interview in June however THe DO stated they cant make a deciosion because my A file was never transfered to them , when do u think i can file a WOM and am i eligible to file one after the 120 days or should i wait a yr before doing so?
 
aryin said:
I got the answer from AUSA, the clerk told me that there is no need to file a response.

I read Pro Se handbook (p.46), It wrote "There is no such thing under the Federal Rules of Civil Procedure as a “Response to an Answer.” Even if you strongly disagree with the statements in the answer, there is no nedd to file a response. Under Rule 8(d) of the Federal Rules of Civil Procedure, all statement in an answer are automatically denied by the other parties to the lawsuit."

What does it mean "Under Rule 8(d) of the Federal Rules of Civil Procedure, all statements in an answer are automatically denied by the other parties to the lawsuit".
Click to expand...

By default you dispute all the points given in the answer by AUSA. Would you be kind enough to post the answer ?
 
worried2007 said:
help me please,

i passed my citizenship interview in June however THe DO stated they cant make a deciosion because my A file was never transfered to them , when do u think i can file a WOM and am i eligible to file one after the 120 days or should i wait a yr before doing so?
Click to expand...

Check with your local senetor's office to file status check with USCIS and FBI on your behalf in regards to your pending application. Now if delay is due to pending "security checks" then you have to see which Court District you live in and make decision about filling Mandamus based on that.

Secondly if Delay is not due to Security Check let say it is due to missing A-file or some screwup within USCIS I would definatly say go ahead and file Mandamus base on 1447(b). This will clearly get the ball rolling.

If you live in Fifth District court DO NOT attempt to file 1447(b) if delay is due to security check. You will get your complaint dismissed due to BAD BAD appellete court decision in Fifth Circuit court.

Give some more details about your case for better picture.
 
Walji's case this is encouraging

I got it from AILA website this is interesting. It is not a bad idea in fifth circuit court applicant to hold matter in abeyance while results of rehearing from Walji's appeal comes.

The petitioner in Walji is considering filing a petition for rehearing. Petitioners with pending district court actions in the Fifth Circuit may want to ask the courts to hold their cases in abeyance pending a decision on rehearing and/or issuance of the mandate.
At least one district court already has disagreed with the ruling in Walji. In Naos v. Swacina, No. 07-20724 (S.D. Fla. June 27, 2007), the court explicitly found that the Fifth’s Circuit’s reasoning was wrong. The court held that it had jurisdiction over the § 1447(b) petition even though the FBI checks were not complete.
 
Wenlock, lazycis and others

I filed my WoM yesterday for I-485 in the district court of Oregon. The defendants in my complaint are Robert Mueller, Michael Chertoff, Emilio.T.Gonzalez and Gerard Heinauer. I got 12 summons from the clerk, one to be kept with the clerk, one for the defendants and the other to be filed with proof of delivery. I didn't get a summon to be served on the local AUSA. Should I just send my complaint with the case number written on it to the AUSA ?

Thanks and wish me luck.
 
worried2007 said:
help me please,

i passed my citizenship interview in June however THe DO stated they cant make a deciosion because my A file was never transfered to them , when do u think i can file a WOM and am i eligible to file one after the 120 days or should i wait a yr before doing so?
Click to expand...
I would suggest reading more from this forum, starting with the first page. Since you had your interview, your case is likely to become qualified for 1447(b) on the 121st day from the date of your interview. If you believe that your application is going to get stuck – you may start building your case now by writing to your Congressman, Senator, First Lady, etc.

Best of luck,
snorlax
 
to wenlock

wenlock said:
Check with your local senetor's office to file status check with USCIS and FBI on your behalf in regards to your pending application. Now if delay is due to pending "security checks" then you have to see which Court District you live in and make decision about filling Mandamus based on that.

Secondly if Delay is not due to Security Check let say it is due to missing A-file or some screwup within USCIS I would definatly say go ahead and file Mandamus base on 1447(b). This will clearly get the ball rolling.

If you live in Fifth District court DO NOT attempt to file 1447(b) if delay is due to security check. You will get your complaint dismissed due to BAD BAD appellete court decision in Fifth Circuit court.

Give some more details about your case for better picture.
Click to expand...

my security and name check have cleared and thats based n whats the ongressional liason for DHS stated the reason of the delay is that my A file was never transfered to the service center and therefor wasnt transfered to the DO , i was intereviewed based on my N400 application and now iam waiting on my oath letter , it aslo clearly states on the N652 that if i dont hear from the DO in 120 days to contact my district court.

my timeline is as follows: filed Jan 5 2007
FP jan 18 2007
IL april 21
interview JUN 18
oath ??
my Service ceneter is Nebraska and i live in detroit.

so please tell me which one sgould i file 1447 or WOM and when should i wait the 120 days or should i proceed now?
my name check cleared per DHS thru congressman inquiry?
 
AGC4ME said:
I'm trying to find details and documents about case CV.05--1584--PK. I'm not able to find it in PACER.
Click to expand...

It happens. Sometimes pacer does not have all documents associated with the case also. What's the case title and what's district?
 
aryin said:
I got the answer from AUSA, the clerk told me that there is no need to file a response.

I read Pro Se handbook (p.46), It wrote "There is no such thing under the Federal Rules of Civil Procedure as a “Response to an Answer.” Even if you strongly disagree with the statements in the answer, there is no nedd to file a response. Under Rule 8(d) of the Federal Rules of Civil Procedure, all statement in an answer are automatically denied by the other parties to the lawsuit."

What does it mean "Under Rule 8(d) of the Federal Rules of Civil Procedure, all statements in an answer are automatically denied by the other parties to the lawsuit".
Click to expand...

aryin,
It's true. You do not need to send a reply to an answer. And you do not have to prepare opposition because it's not MTD. Prepare motion for judgment on the pleadings, it will be helpful anyway.
 
AGC4ME said:
I filed my WoM yesterday for I-485 in the district court of Oregon. The defendants in my complaint are Robert Mueller, Michael Chertoff, Emilio.T.Gonzalez and Gerard Heinauer. I got 12 summons from the clerk, one to be kept with the clerk, one for the defendants and the other to be filed with proof of delivery. I didn't get a summon to be served on the local AUSA. Should I just send my complaint with the case number written on it to the AUSA ?

Thanks and wish me luck.
Click to expand...

First, by law you should also serve Attorney General A. Gonazales, so include him as your defendant. (You can check your pro se handbook for the statue number). In CA the court keeps stamped summons(or the copies with original stamps) from all of the defendants-the summons are issued and stamped when you file your complaint. We then file them together with proof of service/delivery. By law you don't have to issue a separate summons for AUSA (we also had a q-n about this), so the court clerk told us to serve a copy of one of the defendants' summons on AUSA together with his copy of complaint and all other docs you served on defendants. However, some local attrns. issued separate summons for AUSA, and served them as defendants. We only gave them a copy, and filed affidavit with court (a simple letter stating service) for our AUSA. It was entered in dockets as such.

One important thing, don't forget to serve Attorney General.

Good Luck!
 
shvili said:
First, by law you should also serve Attorney General A. Gonazales, so include him as your defendant. (You can check your pro se handbook for the statue number). In CA the court keeps stamped summons(or the copies with original stamps) from all of the defendants-the summons are issued and stamped when you file your complaint. We then file them together with proof of service/delivery. By law you don't have to issue a separate summons for AUSA (we also had a q-n about this), so the court clerk told us to serve a copy of one of the defendants' summons on AUSA together with his copy of complaint and all other docs you served on defendants. However, some local attrns. issued separate summons for AUSA, and served them as defendants. We only gave them a copy, and filed affidavit with court (a simple letter stating service) for our AUSA. It was entered in dockets as such.

One important thing, don't forget to serve Attorney General.

Good Luck!
Click to expand...

Since I didn't include Attorney General Gonzalez as defendant in my complaint should I file an amendment to include him ? Or can I use the 4 summons that I have now and send AUSA and USAG the complaint without explicitly having him as defendant ? I'll also touchbase with the court clerk on Monday.
 
Ninyte said:
Look in pacer under case # 3:05-cv-01584-PK
Click to expand...

Thanks. I'm interested in this case because my case is assigned to the same judge. He has adjudicated twice on cases involving USCIS, one for 1447(b) complaint and another an I140 denied case and ruled both of them in favor of the Plaintiff. Gives me great hope.

When I filed my complaint the clerk gave me Discovery and Pretrial Order papers. I got only one copy of it. It says that the Plaintiff is responsible for serving it to the defendants. While the summons say that the defendants have 60 days to answer the summons this pretrial order says the defendants have 120 days. What am I supposed to do with this order.
 
AGC4ME said:
Since I didn't include Attorney General Gonzalez as defendant in my complaint should I file an amendment to include him ? Or can I use the 4 summons that I have now and send AUSA and USAG the complaint without explicitly having him as defendant ? I'll also touchbase with the court clerk on Monday.
Click to expand...

on p. 47-48 of CA Pro se Handbook (you can check your OR version) it says, you must send a copy of your complaint and summons (by certified or registered mail) to Attorney General. However, it doesn't say you must list him as a defendant. I suggest check your local rules for more info and try to see if your court clerk has any advise (they are not supposed to provide any legal advise). Perhaps your district has a pro se office, like New York does and it can help.

In your place I would amend it (just to be on the safe side) to include Attorney General. By law, until defendant answered you only need to serve your AUSA with the amended complaint (and of course file it with court), and send it to the Attorney General. You may also check your district for similar lawsuits for any ideas. We listed him as a defendant, following other examples.
 
Shivli,
I enquired with the court clerk if they had a Pro Se handbook and they did not know. Infact one of them told me that I have file the complaint only in SFO. Luckily another lady corrected him and helped me out. Here's my plan of action on Monday.

1. File FIRST AMENDED COMPLAINT by including ATTORNEY GENERAL, ALBERTO GONZALEZ.
2. Obtain summons in AG's name.
3. Send AG his copy of the complaint.
4. Copy all the 5 summons and another copy of the complaint and send it to AUSA Oregon (who actually has her office in the same building as the court).

Let me know if I'm missing anything else. Thanks to all of you.

Here's another question. My PD is current as of now. So my complaint is valid what if tomorrow the dates retrogress beyond my PD ? Will that make my complaint moot ?
 
AGC4ME said:
Shivli,
I enquired with the court clerk if they had a Pro Se handbook and they did not know. Infact one of them told me that I have file the complaint only in SFO. Luckily another lady corrected him and helped me out. Here's my plan of action on Monday.

1. File FIRST AMENDED COMPLAINT by including ATTORNEY GENERAL, ALBERTO GONZALEZ.
2. Obtain summons in AG's name.
3. Send AG his copy of the complaint.
4. Copy all the 5 summons and another copy of the complaint and send it to AUSA Oregon (who actually has her office in the same building as the court).

Let me know if I'm missing anything else. Thanks to all of you.

Here's another question. My PD is current as of now. So my complaint is valid what if tomorrow the dates retrogress beyond my PD ? Will that make my complaint moot ?
Click to expand...

Sounds like a good plan. Now you've got it right. Keep in mind that you can amend only once without leave of court. It will be much harder to amend the second time around.
Interesting question about PD. It depends on what relief you requested. You can still ask court to compel FBI to complete name check, which is the reason for the delay anyway. But if you PD is not current, USCIS does not have a duty to adjudicate your AOS application.
 
Successful cases in the EASTERN DISTRICT OF VIRGINIA

Hello experts.

I have been reading this Forum for a while now and I am now quite inspired to file a Mandamus at this point. MY I-485 Has been pending Name Check since 2004.

I was wondering if anyone with access to PACER would be so nice to post some Successful I-485 Name Check cases in Norfolk or any of the the Eastern District Courts.

Respectfully.
 
My case is approved

Friends,

My case is approved. I followed with Senator, First Lady, Congressman, and Ombudsman. One of them seems to have cleards my case. My sincere thanks to everyone in the forum.

LM2006
 
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