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

[lotechguy]

Lazycis,

I can't disagree with you any more on this.

Lazycis, shvilli
My take on this is we should approach this just like the AUSAs do ie from purely litigation point of view, kind of like playing chess. Even though clear reading of law favours plaintiffs in WOM and N400 cases AUSAs still craft out 'outlandis'h defences to try and chip away at us. I believe that if those same AUSAs were our attorneys they would chew the defence out, just like our attorneys hopefully will try to do for us if we have one...so its all a litigation game to protect the lazy CIS (forgive the punn!)

For your reading pleasure:

http://villagevoice.com/blogs/bushbeat/archive/2007/07/judge_raps_fbis.php

 

[missingpa]

With or without name check clearance from FBI

Lazycis, shvili, and lotechguy,

I was surprised to hear that there is no statutory requirement of FBI name check for AOS applicants. But in light of the new political and judicial landscapes in the US after 9-11, I do agree with shvili that courts will probably not buy this arguement. Even though I admire lazycis' courage for making such an audacious claim, I really think this will not help his chances of winning the appeal.

Lazycis, I would suggest that you consider following paz's example (I can point you to the post # if you don't have it): even though he contends that "[searching the reference files in the FBI CRS] was never codified or promulgated in a statue or Federal Regulation," he takes a more conciliatory approach and accepts that "By no means Plaintiff implies that this change in the name check process is not needed, not useful or meaningless in the light of the necessary measures taken to protect the security of our homeland... In no way does the Plaintiff take the national security of the United States of America and the safety of American people lightly by filing this complaint. Plaintiff is not asking this Honorable Court to short-circuit the name check process, which according to Defendants it is an important step necessary for our homeland security." His actual attack is on the deficiencies in the name check process that cause applications to stall for a long time ("However, by the admission of the DHS Office of Inspector General, the USCIS does have problems with a fraction of security, name and background checks and those problems arise from the inefficiencies within the system rather than national security threats.").

I guess my point is that it may not be impossible for you to win on this argument, but your chances of proving the delay is unreasonable are much better so why not focus on that?

No matter what you decide to do, I wish you best of luck. Please do keep us posted of any developments.

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.

 

[AGC4ME]

I agree with shivli and others

lazycis,
Toning your argument down will definitely help your case. I would suggest taking the path of least resistance.

 

[SLIS]

Any impact of the latest revised (July) visa bulletin on WOM outcomes?

Are you guys aware of the latest twist? USCIS rush-exhausted 60,000 employment-based visa numbers in June. Today, DOL revised its July visa bulletin annoucing visa numbers in all employment-based categories for fiscal year 07 have been exhausted and that visa numbers for fiscal year 08 will be available starting October.

With visa numbers unavailable, USCIS could argue that they cannot adjudicate any AOS cases. I can see we could counter that argument potentially with citing visa number availability throughout our long wait. However, I want to see how everybody stuck in this mess think about the latest twist in this never-ending saga....

 

[lazycis]

lazycis,
Toning your argument down will definitely help your case. I would suggest taking the path of least resistance.

Ladies and gentlemen, I appreciate your advice. Looking back, I 'd probably toned it down a bit, but it's too late now - I've submitted it today to be binded.
That was one of my goals - to show the inefficiency of the current NC system.
I even thought about advancing due process violation claim 'cause I believe NC system is unfailr to people with transliterated names (coming from non-latin alphabets) or to people with common name. Also, the way the system works, if you have a middle name, there are more chances that search on your name will produce a hit.
There is a little bit of strategy involved as well - distract AUSA resources. I also wanted to distinguish my case from Walji case.
I do not want to argue, but aren't you agree that the vast majority of AOS is approved without an interview, while N-400 cannot be approved without passing one?

 

[james_gmail]

Yes. Coask.

I am now in lawsuit but no visa number is available until Oct. Is here still any possiblity for AUSA help to solve the problem. Any suggestion on how to proceed?

Thank you very much!!

Are you guys aware of the latest twist? USCIS rush-exhausted 60,000 employment-based visa numbers in June. Today, DOL revised its July visa bulletin annoucing visa numbers in all employment-based categories for fiscal year 07 have been exhausted and that visa numbers for fiscal year 08 will be available starting October.

With visa numbers unavailable, USCIS could argue that they cannot adjudicate any AOS cases. I can see we could counter that argument potentially with citing visa number availability throughout our long wait. However, I want to see how everybody stuck in this mess think about the latest twist in this never-ending saga....

 

[AGC4ME]

Are you guys aware of the latest twist? USCIS rush-exhausted 60,000 employment-based visa numbers in June. Today, DOL revised its July visa bulletin annoucing visa numbers in all employment-based categories for fiscal year 07 have been exhausted and that visa numbers for fiscal year 08 will be available starting October.

With visa numbers unavailable, USCIS could argue that they cannot adjudicate any AOS cases. I can see we could counter that argument potentially with citing visa number availability throughout our long wait. However, I want to see how everybody stuck in this mess think about the latest twist in this never-ending saga....

Yes this is a new twist in the 485 WOMs. The way I am going to tackle this is to split my Prayer for Relief in to
Expedite and complete the FBI Namecheck process
Expedite the adjudication of I485 application.

To accomplish the completion of the namecheck process they don't need a visa number.

More and more defendants are ducking under Walji case. I just saw Walji again quoted in case in Oregon.

 

[AGC4ME]

Ladies and gentlemen, I appreciate your advice. Looking back, I 'd probably toned it down a bit, but it's too late now - I've submitted it today to be binded.
That was one of my goals - to show the inefficiency of the current NC system.
I even thought about advancing due process violation claim 'cause I believe NC system is unfailr to people with transliterated names (coming from non-latin alphabets) or to people with common name. Also, the way the system works, if you have a middle name, there are more chances that search on your name will produce a hit.
There is a little bit of strategy involved as well - distract AUSA resources. I also wanted to distinguish my case from Walji case.
I do not want to argue, but aren't you agree that the vast majority of AOS is approved without an interview, while N-400 cannot be approved without passing one?

I was reading Shivli's notes on your arguments and at the same reading Defendants argument in yvesliu's case. In yvesliu's case the Defendants argue that if the Congress had wanted to set a timeline for processing they would have done it in the relevant sections of the law. And then it struck me that you are just using the reverse here. If the congress wanted to have an FBI namecheck on AOS they would have explicitly laid it down in the law. But omission of process doesn't necessarily mean anything. Congress didn't foresee such inordinate delays happening to have a set time frame in the law, Congress probably didn't foresee events like 9/11 that would necessitate name checks. In any case it's up to the judges interpretation of the intent of Congress. I do agree that AoS happens without an interview and that's a good point too. Anyway Good Luck !!! Remember there are thousands of eyes watching your petition.

 

[AGC4ME]

8 U.S.C 1571 specifically states that "It is the sense of Congress that the processing of an immigration
benefit application should be completed not later than 180 days
after the initial filing of the application"

how is that the AUSA s argue that the PACE of AoS adjudication is upto the Attorney General of USA ?

 

[lazycis]

I was reading Shivli's notes on your arguments and at the same reading Defendants argument in yvesliu's case. In yvesliu's case the Defendants argue that if the Congress had wanted to set a timeline for processing they would have done it in the relevant sections of the law. And then it struck me that you are just using the reverse here. If the congress wanted to have an FBI namecheck on AOS they would have explicitly laid it down in the law. But omission of process doesn't necessarily mean anything. Congress didn't foresee such inordinate delays happening to have a set time frame in the law, Congress probably didn't foresee events like 9/11 that would necessitate name checks. In any case it's up to the judges interpretation of the intent of Congress. I do agree that AoS happens without an interview and that's a good point too. Anyway Good Luck !!! Remember there are thousands of eyes watching your petition.

That's exactly my point. Nobody is saying that NC is not necessary. What I was trying to say that after 9/11 appropriate legislation should've been enacted instead of USCIS changing the NC rules without discussion, analysis and development of appropriate regulations. Nobody analyzed whether FBI has enough resources to do it. USCIS suddenly changed policy and requested search for reference files in addition to main files in November, 2002. That lead to this mess – NC value is close to zero for national security, DOJ resources are distracted from fighting criminals, hundred thousands people (potential good citizens) are suffering. The way USCIS implemented it is against the law.

 

[shvili]

Yes this is a new twist in the 485 WOMs. The way I am going to tackle this is to split my Prayer for Relief in to
Expedite and complete the FBI Namecheck process
Expedite the adjudication of I485 application.
To accomplish the completion of the namecheck process they don't need a visa number.
More and more defendants are ducking under Walji case. I just saw Walji again quoted in case in Oregon.

AGC4ME,

I also separated my 1447+WOM into two parts, WOM part-to compel FBI to complete "all necessary background checks" within a month and 1447 part for CIS to "act immediately or upon receipt of background check results." I am not sure it would help though, as in Walji case judge refused to address nc process and just said FBI should be left alone to work at their pace.

To address your next post about nc necessity, as I said before, it has been argued in several 1447 suits and especially in LA and SF class actions, that congress didn't authorize use of nc in natural-n process. (See the attached complaint). I never saw this point argued in AOS case, but there's always a 1st time for everything. Like I said before, the words "at a minimum" at the background check statue for N-400 means that it is not limited to only described checks. So again, in our case, I refuse to use this argument.

But if to extend Spencer logic to Lazycis case, (judge ruled that since there's no specific reference of investor's visa in 1252 (-to be in discretion), therefore, jurisdiction is not precluded), then in essence Lazycis used identical logic here. Again, these a two very different cases (procedural concerns vs. security concerns) and like I said before, when a statue contradicts common sense, there must be something deficient in this statue. You want to take advantage of this deficiency? I wouldn't, not for principal reasons but because I won't gain anything from using it and it leaves a bad taste in my mouth.

Lazycis, shvili, and lotechguy,

I was surprised to hear that there is no statutory requirement of FBI name check for AOS applicants. But in light of the new political and judicial landscapes in the US after 9-11, I do agree with shvili that courts will probably not buy this arguement. Even though I admire lazycis' courage for making such an audacious claim, I really think this will not help his chances of winning the appeal.

Lazycis, I would suggest that you consider following paz's example

Missingpa,

That would also be my advise (-and I liked how Paz and yourself used this). But let's see, perhaps Lazycis gets a great judge and s/he'd swallow his whole argument without chewing (and that would be ideal for us all, not just for Lazycis!)

That was one of my goals - to show the inefficiency of the current NC system.
I even thought about advancing due process violation claim 'cause I believe NC system is unfailr to people with transliterated names (coming from non-latin alphabets) or to people with common name. Also, the way the system works, if you have a middle name, there are more chances that search on your name will produce a hit.
There is a little bit of strategy involved as well - distract AUSA resources. I also wanted to distinguish my case from Walji case.
I do not want to argue, but aren't you agree that the vast majority of AOS is approved without an interview, while N-400 cannot be approved without passing one?

"There is a little bit of strategy involved as well - distract AUSA resources."-
Lazycis, if your goal was to distract defense I think you succeeded But I really wish you luck and no matter how you fight it, what matters is you fight it.

 

[lazycis]

Friends,

I think it's a win-win situation for me because either defense will prove that NC is mandatory by law for AOS (I did not have time to figure it out on my own ), which will create a duty for FBI to process it within a reasonable time or it's not required and USCIS delay is unreasonable without a question. I've seen this argument in another case and it was accepted by the judge. Again, I may be wrong (as I was many times), but there is one way to find out - test it in real life. I filed it today. Let's move on. I'll keep you posted.

 

[AGC4ME]

shvili,
you guys talk about paz example. Is there a link to it somewhere ? Also one of the arguments the defendants use against having the court expedite the name check is that it is unfair to those who are in the queue. But the fact is that most of us have been overlooked and superseded by others in this process. Even in the latest EB fiasco there are so many people with PDs of 2003 from EB3-IND who got approval.

I would like to pose atleast this question to AUSA
How many petitions with priority date after the Plaintiff's have been approved in the last 1 month ?

DoS had to move priority dates by 2 years (for EB3-IND) in order to use up all available visa numbers. Doesn't this show that the agency in its own process supersedes applications etc.

At what point can we pose these questions or is it even possible ?

Another important question, in my complaint at one place instead of "delayed" I had written "denied". How do I correct this ?

 

[netrin]

Hi folks,

In early June I followed someone's advice on this board to file a motion asking for an expedited decision on Defendants' motion to dismiss. AUSA moved quickly to file a motion stating that such a motion (asking for an expedited decision) is improper and does not exist under law. I did not answer that motion. Three weeks after I filed the motion, the judge has not issued an order on that motion. I don't know if the Judge has to make an order on such a motion. Does anyone has any input?

I filed my WOM last Oct. The waiting is really tough. Apparently the lawsuit does help the name-check which was completed by FBI in mid Jan. I have no idea why USCIS has not made a decision on my case six months after name-check was done.

If anyone knows what I can do to push the court to make a decison, I would be grateful to you for letting me know of that. I called the Judge's office and was told that there is no time limit to make a decision on the case. That means it may take years for the Judge to make a decision. That will really sucks.

Another fact is that another person's WOM was also MTD'ed after AUSA asked for two extensions. This person was represented by an immigration lawyer in our State. The immigration lawyer seems an America by name as well.

Thanks in advance for any insight into the case. Have a great July 4th!

 

[gmlvsk]

If it's in CIS, not FBI, senators can help, just fax complain to all of them in your state

Hi folks,

In early June I followed someone's advice on this board to file a motion asking for an expedited decision on Defendants' motion to dismiss. AUSA moved quickly to file a motion stating that such a motion (asking for an expedited decision) is improper and does not exist under law. I did not answer that motion. Three weeks after I filed the motion, the judge has not issued an order on that motion. I don't know if the Judge has to make an order on such a motion. Does anyone has any input?

I filed my WOM last Oct. The waiting is really tough. Apparently the lawsuit does help the name-check which was completed by FBI in mid Jan. I have no idea why USCIS has not made a decision on my case six months after name-check was done.

If anyone knows what I can do to push the court to make a decison, I would be grateful to you for letting me know of that. I called the Judge's office and was told that there is no time limit to make a decision on the case. That means it may take years for the Judge to make a decision. That will really sucks.

Another fact is that another person's WOM was also MTD'ed after AUSA asked for two extensions. This person was represented by an immigration lawyer in our State. The immigration lawyer seems an America by name as well.

Thanks in advance for any insight into the case. Have a great July 4th!

 

[Bou]

time after MTD

Have you filed opposition to MTD? At least based on the info on this forum, most cases got approved after NC cleared. As for the ruling of OPP to MTD, the judge can take whatever amount of time s/he feels necessary. My OPP to MTD was filed 2.5 months ago, still waiting, I read another member of this forum also waiting after 2-3 months of MTD. Frustrating!

Hi folks,

In early June I followed someone's advice on this board to file a motion asking for an expedited decision on Defendants' motion to dismiss. AUSA moved quickly to file a motion stating that such a motion (asking for an expedited decision) is improper and does not exist under law. I did not answer that motion. Three weeks after I filed the motion, the judge has not issued an order on that motion. I don't know if the Judge has to make an order on such a motion. Does anyone has any input?

I filed my WOM last Oct. The waiting is really tough. Apparently the lawsuit does help the name-check which was completed by FBI in mid Jan. I have no idea why USCIS has not made a decision on my case six months after name-check was done.

If anyone knows what I can do to push the court to make a decison, I would be grateful to you for letting me know of that. I called the Judge's office and was told that there is no time limit to make a decision on the case. That means it may take years for the Judge to make a decision. That will really sucks.

Another fact is that another person's WOM was also MTD'ed after AUSA asked for two extensions. This person was represented by an immigration lawyer in our State. The immigration lawyer seems an America by name as well.

Thanks in advance for any insight into the case. Have a great July 4th!

 

[nastena]

Motion of Summary Judgement

Please explain what is the "Motion of Summry Judgement" and "Cross-motion MSJ"? How to oppose first? Can we oppose with cross-motion?
Any good examples? I only found Mohammed MSJ.
Little bit of my history:
File WOM in Feb 2007 Pro Se.
March 07 defendants filed Motion to dismiss
April 07 - MTD denied by Judje
June 07 - pretrial hearing->discovery start
end of June received discovery docs (not much info however)
July 07 - got MSJ
Any recommendation about subpoena? Is it possible to do ProSe.
We can't find any lawyer who be willing to proceed on our case.

 

[shvili]

shvili,
you guys talk about paz example. Is there a link to it somewhere ? Also one of the arguments the defendants use against having the court expedite the name check is that it is unfair to those who are in the queue. But the fact is that most of us have been overlooked and superseded by others in this process. Even in the latest EB fiasco there are so many people with PDs of 2003 from EB3-IND who got approval.

I would like to pose atleast this question to AUSA
How many petitions with priority date after the Plaintiff's have been approved in the last 1 month ?

DoS had to move priority dates by 2 years (for EB3-IND) in order to use up all available visa numbers. Doesn't this show that the agency in its own process supersedes applications etc.

At what point can we pose these questions or is it even possible ?

Another important question, in my complaint at one place instead of "delayed" I had written "denied". How do I correct this ?

AGC4ME,

Paz has posted his draft of Opposition to MTD for the forum members to use 5-8 mo. ago. You need to keep in mind that his case was Naturalization, so you hopefully have access to other AOS Oppositions which deal with GC issues as well. But Paz put a pretty good argument, which Missingpa quoted in his post.

I hope Missingpa has a page # with Paz post so you can find it. The other way, send Paz a pm or search his posts using the search.

In terms of "cut in line argument", please read my posted ideas from May 30- on GC lottery comparison with a binding contract which CIS entered once we paid our fees. I believe Missingpa also has some good points. The other part of my ideas (which need to be brushed in order to include into opposition):

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", Plaintiff requests the information on how many cases in this line are delayed longer than his, so indeed he would be notified 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 testimony, the situation is completely opposite: 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.


"DoS had to move priority dates by 2 years (for EB3-IND) in order to use up all available visa numbers. Doesn't this show that the agency in its own process supersedes applications etc."-unfortunately I can't comment on this at all (having nat-n case).

Delayed vs denied may be just the same problem we had with misquoted number in our complaint. The only way to correct is amending, but it may not be worth it. Remember I posted the NY Pro se office phone number? I called it today. The person who answered first said that he isn't supposed to help us since we are not from NY but he kept on answering all my questions once I asked if he could refer me to someplace which could help. One of my questions was about amending for a typo mistake. He replied, "since judge knows you're pro se, they are usually quite lenient about such things, so you don't have to amend for this".

I suspect, your mistake is of the same category, so hope it won't really matter.

 

[shvili]

I will be gone for the next 5 days, good luck to all!

Please explain what is the "Motion of Summry Judgement" and "Cross-motion MSJ"? How to oppose first? Can we oppose with cross-motion?
Any good examples? I only found Mohammed MSJ.
Little bit of my history:
File WOM in Feb 2007 Pro Se.
March 07 defendants filed Motion to dismiss
April 07 - MTD denied by Judje
June 07 - pretrial hearing->discovery start
end of June received discovery docs (not much info however)
July 07 - got MSJ
Any recommendation about subpoena? Is it possible to do ProSe.
We can't find any lawyer who be willing to proceed on our case.

Nastena,

PLease read Pro se book p. 102 and Rule 45-it explains how to get it. (Yes, you can get it pro se, but I haven't done it yet, so read Wenlock posts) As I understand, you need a subpoena to get FBI people to testify on your nc delay.

I can't find other MSJ but please read Pro se book-it talks on how to oppose and how to write MSJ. Also, I only found these orders (posted many times before) But from them you can also find actual MSJ-s on Pacer, just search under the case number. Don't panic, you really may be able to do it yourself, you already got one victory!

I wish I could provide more info., but we will be out of town from tomorrow till Sunday and I must pack. Also, until Sunday I won't have access to internet so I will not be able to post.

Good luck! Hope you'll get some good advices from other readers.

Also, as a last straw, call that NY Pro se phone number, here it is again:
(718) 613-2665. Perhaps if they won't help themselves, they'd direct yo to some other place.

This is a very useful number for all NY filers! Guys, use it, they will help NY Pro se litigants!

Good luck to you all!

 

[LM2006]

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!

Shvili,

Thanks for all your help. My congressional rep, I think helped. Good luck to you and your family.

with regards
LM2006