Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
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lazycis
Hi lazycis,
I looked through your appellate brief and felt like giving my two cents on it. I think overall you have most of the winning ingredients and I am surprised to see that you received such a unfair decision from the district court.
My understanding is in your brief your primary objective would be to challenge the district court's decision of lack of jurisdiction, which you would achieve mainly by interpreting the relevant case laws such as Spencer Enterprise Inc v. USA. Your second object would be to demonstrate that the delay in your case is so extraordinary that it warrants further discovery to determine whether it is reasonable. Here you would concentrate on the facts and the statistics data. You have put in lots of argument on both these two points, but after reading your brief I got the impression that it can be further tightened up and made more focused. Will the judges in the appellate court have access to all the docketed documents on your case? If so, they can probably read about more details there. I have not read any appellate briefs other than yours. So gurus, please enlighten us on this.
I also went through and corrected some typos in the brief. I hope you will find it useful.
Hi lazycis,
I looked through your appellate brief and felt like giving my two cents on it. I think overall you have most of the winning ingredients and I am surprised to see that you received such a unfair decision from the district court.
My understanding is in your brief your primary objective would be to challenge the district court's decision of lack of jurisdiction, which you would achieve mainly by interpreting the relevant case laws such as Spencer Enterprise Inc v. USA. Your second object would be to demonstrate that the delay in your case is so extraordinary that it warrants further discovery to determine whether it is reasonable. Here you would concentrate on the facts and the statistics data. You have put in lots of argument on both these two points, but after reading your brief I got the impression that it can be further tightened up and made more focused. Will the judges in the appellate court have access to all the docketed documents on your case? If so, they can probably read about more details there. I have not read any appellate briefs other than yours. So gurus, please enlighten us on this.
I also went through and corrected some typos in the brief. I hope you will find it useful.
AGC4ME,
All your steps sound good. Lazycis has more experience re your PD question, as we have N-400. I agree with what he says re. it, perhaps if its not current you have to redo it. Lazycis, perhaps you can have more advise on this?
As for serving AG, you just do it just like you did for your other def-s. Oh, and the pretrial order and any other Bureaucratic-looking docs they give you in the clerks office- make copies of it all and serve on all defendants. Especially your discovery+pretrial order. As far as I know def-s have 60 days to answer, 120 days are given for further things, like CMC, discovery, etc. Try to catch a more sympathetic clerk and ask her about it.
You don't have to send copies of all you summonses to AUSA, (one is enough), but if you do it won't hurt anything.
Thanks, missingpa!
hi missingpa,
I really appreciate your input. You are right about the main points. The complete brief will come with appendix that includes extracts or record from the district court docket. The brief will have references to the appendix. I removed those references from the posted brief to avoid confusion. So yes, the judges will have my original complaint before them during appeal consideration. I know that I could've done better, but it's a matter of time. I did not have luxury to dedicate all my time to the brief. I am working full-time (including 3-4 hour commute) and have two little ones. Every day I was adding or changing pieces. I need to submit brief next Thursday so at some point I had to stop and work on the minor details (formatting, table of authorities, etc.). The brief has to conform to rules of appelate procedure, it cannot have more than certain number of words/lines/pages. So I could not include everything I wanted. Overall, the dismissal for lack of subject matter is easy to defeat, but the court of appeals can approve dismissal for other reasons so I had to prove that my complaint is not without merit.
I was surprised to see judge's ruling myself, especially because she is the chief judge in my district. I had to appeal because it was the first case decided in my circuit. I did not want to let it go and file in a different district.
Thank for your corrections, it's great to have another set of eyes going thru the text I've seen every day for the last month or so.
hi missingpa,
I really appreciate your input. You are right about the main points. The complete brief will come with appendix that includes extracts or record from the district court docket. The brief will have references to the appendix. I removed those references from the posted brief to avoid confusion. So yes, the judges will have my original complaint before them during appeal consideration. I know that I could've done better, but it's a matter of time. I did not have luxury to dedicate all my time to the brief. I am working full-time (including 3-4 hour commute) and have two little ones. Every day I was adding or changing pieces. I need to submit brief next Thursday so at some point I had to stop and work on the minor details (formatting, table of authorities, etc.). The brief has to conform to rules of appelate procedure, it cannot have more than certain number of words/lines/pages. So I could not include everything I wanted. Overall, the dismissal for lack of subject matter is easy to defeat, but the court of appeals can approve dismissal for other reasons so I had to prove that my complaint is not without merit.
I was surprised to see judge's ruling myself, especially because she is the chief judge in my district. I had to appeal because it was the first case decided in my circuit. I did not want to let it go and file in a different district.
Thank for your corrections, it's great to have another set of eyes going thru the text I've seen every day for the last month or so.
Thanks. lazycis is helping me format the amended complaint. The clerk didn't mention that I need send those pre-trial documents also along with the complaint. But I'll make copies of them send them out on Monday. It doesn't matter if the summons and complaints are already sent out and these documents are sent seperately ? does it ? And I'll follow through on the rest of the things tomorrow. The only piece of info I'm lacking is my I485 receipt notice that clearly stated the time range for approval.
My PD is current as of the filing date. They are already talking about retrogression in the revised bulletin for July.
AGC4ME,
Based on the local rules an CA Pro se handbook, p. 42, you have to serve all of the documents listed there (given by the clerk) together with your complaint on all defendants. See local rules, 4-2 and I attached the CA Pro se handbook below. You are in the same Circuit, so I assume the rules must be same or nearly the same. Please check with the clerk again, I really don't know the answer. On the one hand, you can repeat service on def-nts as long as your service was not filed with the court (because you didn't file your proof of service) But there must be a way to just forward the court docs to defendants without reserving them, to service them again (with summons etc) seems too awkward and I am not sure it's legal.
Please look for answers in the attached docs. Also, as a last straw, I attach the NY document on how to amend and it has a phone number for the Pro Se Office in NY. Give them a call, they might help.
Good Luck!
Local Civil Rules:
http://www.cand.uscourts.gov/CAND/L...b2106e6db882569b4005a23f1?OpenDocument#TOC2_1
Pro Se Office NY: also, see the attached doc: (718) 613-2665
LM2006;
Congratulations!!! I was just going to pm you with some ideas(I just got to it today) so it saves me some time but it saved you $350 and all the trouble filing
! Sometimes (and you case proves it again) we may get it through the letters. It just doesn't always work so we sued without writing to the First lady (Reps didn't do a thing in our case).Perhaps letter to the First Lady helped?Hope you get sworn soon!!! Enjoy your citizenship!
Discovery phase
hello all...my 1447(b) lawsuit, which i filed in January in SDNY is progressing, slowly, but well so far. Although there have been very few cases in this district that have gone to trial, recently the US Attorneys office seems to be fighting a bit harder in court, however, there are some recent cases in the last 60 days that have all gone for the benefit of the Plaintiffs and lots of great victories on our side. But we need to keep pushing!
I have a question regarding the discovery procedure and format: As of a conference call that I had with the AUSA and the magistrate judge almost a month ago, the magistrate judge set a number of dates and deadlines for the discovery phase: 1. Initial disclosure under Rule 26(a)(1) by July 9th, 2. Initial document requests no later than July 20th, 3. all fact discovery by October 1st, and trial is set for sometime in October.
However, while at the conference between me, AUSA and magistrate judge, the AUSA mentioned to the judge regarding some of the new cases that have been handled by other judges in the district and mentioned that recently 3 district judges in SDNY have ordered expedited name checks to FBI and have basically remanded the cases back to USCIS with specific instructions: typically 30 days to complete the name check and 30 days for USCIS to grant citizenship. Magistrate judge became very interested in these cases, and asked the AUSA for copies. He subsequently sent the copies of these recent cases to me and the judge. A week after receiving these documents, the District Judge in charge of my case issued an order which basically gives FBI 45 days to complete the name check and 45 days after that for the USCIS to grant/deny citizenship. This is certainly good news...my question is this:
because of this Order by the District Judge, does it mean that we no longer have to go through the discovery process? if we still have to complete the discovery process, I do know what to ask for, but i don't know what is the FORNMAT, i.e.; is there a specific format to write the requests? specific forms? etc....any help is highly appreciated
hello all...my 1447(b) lawsuit, which i filed in January in SDNY is progressing, slowly, but well so far. Although there have been very few cases in this district that have gone to trial, recently the US Attorneys office seems to be fighting a bit harder in court, however, there are some recent cases in the last 60 days that have all gone for the benefit of the Plaintiffs and lots of great victories on our side. But we need to keep pushing!
I have a question regarding the discovery procedure and format: As of a conference call that I had with the AUSA and the magistrate judge almost a month ago, the magistrate judge set a number of dates and deadlines for the discovery phase: 1. Initial disclosure under Rule 26(a)(1) by July 9th, 2. Initial document requests no later than July 20th, 3. all fact discovery by October 1st, and trial is set for sometime in October.
However, while at the conference between me, AUSA and magistrate judge, the AUSA mentioned to the judge regarding some of the new cases that have been handled by other judges in the district and mentioned that recently 3 district judges in SDNY have ordered expedited name checks to FBI and have basically remanded the cases back to USCIS with specific instructions: typically 30 days to complete the name check and 30 days for USCIS to grant citizenship. Magistrate judge became very interested in these cases, and asked the AUSA for copies. He subsequently sent the copies of these recent cases to me and the judge. A week after receiving these documents, the District Judge in charge of my case issued an order which basically gives FBI 45 days to complete the name check and 45 days after that for the USCIS to grant/deny citizenship. This is certainly good news...my question is this:
because of this Order by the District Judge, does it mean that we no longer have to go through the discovery process? if we still have to complete the discovery process, I do know what to ask for, but i don't know what is the FORNMAT, i.e.; is there a specific format to write the requests? specific forms? etc....any help is highly appreciated
what district are you in? what's your case (I-485 or N-400)? I've seen 2-3 successful cases from FL.
I found a few 1447(b) cases but they are still being adjudicated. Didn't find any I485 cases though.
Thank you, shvili. I am counting on you.
Hi Guys,
I got my EAD after filing a WOM! I would like to thank anyone in the forum who help me with my WOM. My WOM is still pending because i asked to main relief (intrim EAD and I-585 adjudication). AUSA has not filed a response to my complaint yet. She is supposed to filed response by July 3rd, but since i amended my original complaint, i don't know if she will got additional time. but I am very glad i was able to force to take action on my case. I have not work since 01/26/06 because of USCIS to process my EAD application because of background check. I am willing to help and share my experience with anyone looking to file a WOM once my case is resolved. I will create an immigration page on my website all the documents and links I used i my WOM. Once the site is ready, i will put the link to this forum under this threat. I will also update the forum once the AUSA filed her response. Thank you all! May God bless you!
KBLI
I got my EAD after filing a WOM! I would like to thank anyone in the forum who help me with my WOM. My WOM is still pending because i asked to main relief (intrim EAD and I-585 adjudication). AUSA has not filed a response to my complaint yet. She is supposed to filed response by July 3rd, but since i amended my original complaint, i don't know if she will got additional time. but I am very glad i was able to force to take action on my case. I have not work since 01/26/06 because of USCIS to process my EAD application because of background check. I am willing to help and share my experience with anyone looking to file a WOM once my case is resolved. I will create an immigration page on my website all the documents and links I used i my WOM. Once the site is ready, i will put the link to this forum under this threat. I will also update the forum once the AUSA filed her response. Thank you all! May God bless you!
KBLI
Lazycis, please see my comments in the attached doc. If it looks like too many redo-s, don't overstress yourself, but the main points are quite a few, really. Overall, I agree with the Missingpa that you might try to tighten it a bit. In my view, if you can remove the statement of facts part, I'd do it (see my reasons in the text).
Overall, I think you should add the final text of your appeal brief and put it in the annals of this thread, next to Publicus posts in the very beginning. I think it is good and should be very useful to anyone who (-God forbids!) faces the appeal.
Thank you for sharing it, good luck and please update on your developments!
Thanks to shivli, missingpa and other members
Your suggestions/corrections are great. My brief is in much better shape now.
After I file it, I'll post the final version.
Missingpa pointed quite few things that I would never noticed (ex. C.R.F. v C.F.R.,
weather and whether).
Shvili had several good points about logical conclusions, some of them I've noticed myself so it was good to get a confirmation.
Somebody else posted a recent opinion from my circuit that was really helpful.
I just wanted to clarify my point about whether FBI check is mandatory for AOS versus N-400. According to the law, USCIS will not receive funding if it adjudicates N-400 without receiving full background check results from FBI.
Pub. L. 105–119, title I, Nov. 26, 1997, 111 Stat. 2448, provided in part: “That during fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the Immigration and Naturalization Service has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed, except for those exempted by regulation as of January 1, 1997”.
There is no similar provision for I-485. I think it's logical - citizenship is another level so it should require more scrutinity. Otherwise why perform background check for N-400 if it was already done for I-485? What I was trying to say that they can require full background check for I-485, but they are not required by law to wait for a FBI response to adjudicate I-485.
Your suggestions/corrections are great. My brief is in much better shape now.
After I file it, I'll post the final version.
Missingpa pointed quite few things that I would never noticed (ex. C.R.F. v C.F.R.,
weather and whether).
Shvili had several good points about logical conclusions, some of them I've noticed myself so it was good to get a confirmation.
Somebody else posted a recent opinion from my circuit that was really helpful.
I just wanted to clarify my point about whether FBI check is mandatory for AOS versus N-400. According to the law, USCIS will not receive funding if it adjudicates N-400 without receiving full background check results from FBI.
Pub. L. 105–119, title I, Nov. 26, 1997, 111 Stat. 2448, provided in part: “That during fiscal year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to the Immigration and Naturalization Service shall be used to complete adjudication of an application for naturalization unless the Immigration and Naturalization Service has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed, except for those exempted by regulation as of January 1, 1997”.
There is no similar provision for I-485. I think it's logical - citizenship is another level so it should require more scrutinity. Otherwise why perform background check for N-400 if it was already done for I-485? What I was trying to say that they can require full background check for I-485, but they are not required by law to wait for a FBI response to adjudicate I-485.
My update on Infopass:
It proved true in my husband's case: the clerk told him that "background check is pending", nothing new. The funny thing, he also told him that he can contact senator and file a law suit (!). Really, thank you for the advise
kk405,
First of all, congratulations!! Your citizenship is almost there! As for your question, although I haven't gotten to that stage yet, although discovery is useless on this point you technically still can request docs. I don't know the exact process, but I suggest you check Wenlock's notes serving subpoena on local FBI. It's also discussed on pp.99-105 of CA Pro se handbook. But in your place, I would just wait to save myself trouble-I never heard that CIS/FBI disobeyed court order from judge.
Good luck!
Arrrrghhhhh....
I waited for 2 days for my Company's HR to give me I485 receipt notice. They email me now, after I filed my First Amendment, that they have a copy ready for me to pick up.
In order to include this do I have to do another amended complaint ? or is there another way I can submit additional evidences ?
I waited for 2 days for my Company's HR to give me I485 receipt notice. They email me now, after I filed my First Amendment, that they have a copy ready for me to pick up.
In order to include this do I have to do another amended complaint ? or is there another way I can submit additional evidences ?
Lazycis,
I can't disagree with you any more on this. Let's put all statues aside for a second and just honestly answer: who should be checked with more scrutiny-an alien who just stepped on American soil or an alien who is allowed to live on this soil for many years legally??? And what would be the intent of congress-first to admit a few terrorists here (just to see, if they use their time here to their advantage
) without checking their background, and demand their background check only after they wished to become citizens??? With all due respect, this logic reminds me of AUSAs logic on "cut in line argument". So let's admit it, it's totally twisted.
The other thing, of course, is, can you use this argument in your brief? Following the way most legal papers are written, the answer would be yes. Because it's common to use deficiencies in statues to one's advantage and I am not fighting against it. Why? Because unfortunately the judicial system is imperfect, and in fact all of us here (and especially you yourself) are the victims of its' (and bureaucratic) deficiencies. As we're its victims, should we be blamed if we sometimes use it to our advantage? Probably, not. So yes, you can use it. However, the reason I wouldn't use it is because the advantages for using it are very minor (-most judges would never buy an argument that AOS folks should not be subject to nc), while the disadvantage is the feeling that I contribute to system's problems by using these problems. Would I use it if this argument really helped me? Yes, but not in this case.
Good luck on filing your appeal, it's good! And please, post your developments.