It depends on how you feel about doing it yourself. It also depends on AUSA. If your AUSA refuses to cooperate (expedite the process), than get a lawyer if you can afford it. Getting a lawyer will help you and also may speed up the process. Contact your AUSA and find out his position, then make a decision.
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Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
- Start date
It depends on how you feel about doing it yourself. It also depends on AUSA. If your AUSA refuses to cooperate (expedite the process), than get a lawyer if you can afford it. Getting a lawyer will help you and also may speed up the process. Contact your AUSA and find out his position, then make a decision.
andrew_sun
Registered Users (C)
Help to opp MTD about 8 U.S.C. sec. 1329
Thank you, Lazycis for your reponse to my previous questions and your generous posting your appealing docu. I hope you win it.
In the AUSA MTD to my complaint, the first section is discussion about my wrong citing of 8 usc sec 1329. I know I am running to trouble how to defeat this. I copied that part from a winning complaint filed by an attorney and that case helped the petitioner got his card in 2 months after wom without MTD. When I prepared my wom and I did not read the code 1329.
NOW, I noticed that Lazycis and Pal and others did not cite the 1329. And I searched there are some cases were dissmissed becuase AUSA pointed that 8 usc sec. 1329 deprived the right of federal court for any immigrations brougt by aliens.
I searched for a whole day, and I did not find good answer to defeat AUSA's point.
I may just attact it with emphasis that "1329 and to combined with 28 U.S.C. §§1331 and 1361 because I mentioned them together. And I will point out that 1329 only provided general federal subject matter jurisdiction over “all causes, civil and criminal, arising under any of the provisions” of the immigration statutes---.
And another paragraph I got from order as:
with respect to § 1329, the Government claims that it limits district court
jurisdiction to only those actions “brought by the United States.”14 The Government provides no authority to support its interpretation of this provision as depriving the district court of jurisdiction over all claims brought by anyone but the United States. And the existence of many cases brought by aliens in the district courts in which subject matter jurisdiction was upheld clearly contradicts such an interpretation. See, e.g., St. Cyr, 121 S. Ct. 2271; Rosales-Garcia v. J.T. Holland, 238 F.3d 704 (6th Cir.)(holding thatdistrict court had jurisdiction to decide alien’s challenge to indefinite detention by the INS), vacated and remanded on other grounds, 122 S. Ct. 662 (2001).
Hope this can convince Judge.
I welcom your guys' any suggesitons. I will appreciate if you can let me know an existing opp again AUSA's MTD about 8 usc 1329.
Thank you,
Andrew
Thank you, Lazycis for your reponse to my previous questions and your generous posting your appealing docu. I hope you win it.
In the AUSA MTD to my complaint, the first section is discussion about my wrong citing of 8 usc sec 1329. I know I am running to trouble how to defeat this. I copied that part from a winning complaint filed by an attorney and that case helped the petitioner got his card in 2 months after wom without MTD. When I prepared my wom and I did not read the code 1329.
NOW, I noticed that Lazycis and Pal and others did not cite the 1329. And I searched there are some cases were dissmissed becuase AUSA pointed that 8 usc sec. 1329 deprived the right of federal court for any immigrations brougt by aliens.
I searched for a whole day, and I did not find good answer to defeat AUSA's point.
I may just attact it with emphasis that "1329 and to combined with 28 U.S.C. §§1331 and 1361 because I mentioned them together. And I will point out that 1329 only provided general federal subject matter jurisdiction over “all causes, civil and criminal, arising under any of the provisions” of the immigration statutes---.
And another paragraph I got from order as:
with respect to § 1329, the Government claims that it limits district court
jurisdiction to only those actions “brought by the United States.”14 The Government provides no authority to support its interpretation of this provision as depriving the district court of jurisdiction over all claims brought by anyone but the United States. And the existence of many cases brought by aliens in the district courts in which subject matter jurisdiction was upheld clearly contradicts such an interpretation. See, e.g., St. Cyr, 121 S. Ct. 2271; Rosales-Garcia v. J.T. Holland, 238 F.3d 704 (6th Cir.)(holding thatdistrict court had jurisdiction to decide alien’s challenge to indefinite detention by the INS), vacated and remanded on other grounds, 122 S. Ct. 662 (2001).
Hope this can convince Judge.
I welcom your guys' any suggesitons. I will appreciate if you can let me know an existing opp again AUSA's MTD about 8 usc 1329.
Thank you,
Andrew
It's better to use all available courses of action: 1447b, 28 USC 1361, 28 USC 1331 and 5 USC 555(b), 702,706. Look for sample complaints among winning cases. You can file a lawsuit on the 121 st day after the interview.
Most certainly, you should file 1447b, not WoM. You can combine 1447b with WoM, but the core should be still 1447b as a stronger ground for the case. On the other hand - you delay appears to be caused by USCIS, not the FBI. You should continue to work through your Congressman and/or Senator - USCIS usually responds well to their enquires and accelerates the adjudication.yes my name check have cleared and yes i completed my interview i thought i can file 1447b instead of WOM
Best of luck,
snorlax
It depends on how you feel about doing it yourself. It also depends on AUSA. If your AUSA refuses to cooperate (expedite the process), than get a lawyer if you can afford it. Getting a lawyer will help you and also may speed up the process. Contact your AUSA and find out his position, then make a decision.
Thank you again lazycis!
I just exchanged email with the AUSA and did not know his position on this yet. But he did say that he's going to find out from the defendants whether a 26(f) conference is necessary for this. Do you or anyone know what are the possible senarios if they think the conference is not necessary? What should I prepare for?
Thanks again!
And I searched there are some cases were dismissed because AUSA pointed that 8 usc sec. 1329 deprived the federal court of jurisdiction to hear immigration related suits brought by aliens.
And another paragraph I got from order as:
with respect to § 1329, the Government claims that it limits district court
jurisdiction to only those actions “brought by the United States.”14 The Government provides no authority to support its interpretation of this provision as depriving the district court of jurisdiction over all claims brought by anyone but the United States. And the existence of many cases brought by aliens in the district courts in which subject matter jurisdiction was upheld clearly contradicts such an interpretation. See, e.g., St. Cyr, 121 S. Ct. 2271; Rosales-Garcia v. J.T. Holland, 238 F.3d 704 (6th Cir.)(holding thatdistrict court had jurisdiction to decide alien’s challenge to indefinite detention by the INS), vacated and remanded on other grounds, 122 S. Ct. 662 (2001).
Hope this can convince Judge.
Why don't you just admit that you included 8 usc 1329 by mistake in your response. And use that paragraph from the order, it's good. Definitely USA interpretation of it (that 1329 deprives court of jurisdiction if suit brought by a non-government party) contradicts existing case law.
See Sulit v. Schiltgen, 213 F.3d 449 (9th Cir. 2000):
"However, we note that 8 U.S.C. S 1329, as amended by IIRIRA, no longer provides the district court with jurisdiction to consider the Sulits' equitable estoppel claim. Cf. Baria v. Reno, 94 F.3d 1335, 1339 (9th Cir. 1996); Jaa v. INS, 779 F.2d 569 (9th Cir. 1986). As amended by IIRIRA, section 1329 only allows the district courts to exercise jurisdiction over all civil actions brought by the United States that arise under the provisions of subchapter 12 of the INA. See IIRIRA S 381(b) (providing that amendment to S 1329 "shall apply to actions filed after the date of the enactment of this Act [Sept. 30, 1996]"). However, nothing in the language of S 1329 forecloses the operation of other jurisdictional mechanisms such as S 2241. See Sabhari v. Reno, 197 F.3d 938,
941-42 (8th Cir. 1999)."
Andrew_Sun,
You can always reply that you would like to withdraw that 8 U.S.C 1329 from your complaint. I have seen judges who in their opinion have sided with Defendants when a particular statute cited is wrong but have still continued to go on and argue that the other statutes cited still provide grounds of jurisdiction.
I have a question to others on the TRAC test. This is often cited as the test that I485 WoMs fail. Can someone explain what "rule of reason" mean in the first test ?
worried2007,
you should include all possible statutes that can provide you with jurisdiction. I just mentioned WoM as an all encompassing word for such law suit.
You can always reply that you would like to withdraw that 8 U.S.C 1329 from your complaint. I have seen judges who in their opinion have sided with Defendants when a particular statute cited is wrong but have still continued to go on and argue that the other statutes cited still provide grounds of jurisdiction.
I have a question to others on the TRAC test. This is often cited as the test that I485 WoMs fail. Can someone explain what "rule of reason" mean in the first test ?
worried2007,
you should include all possible statutes that can provide you with jurisdiction. I just mentioned WoM as an all encompassing word for such law suit.
Andrew_Sun,
You can always reply that you would like to withdraw that 8 U.S.C 1329 from your complaint. I have seen judges who in their opinion have sided with Defendants when a particular statute cited is wrong but have still continued to go on and argue that the other statutes cited still provide grounds of jurisdiction.
I have a question to others on the TRAC test. This is often cited as the test that I485 WoMs fail. Can someone explain what "rule of reason" mean in the first test ?
worried2007,
you should include all possible statutes that can provide you with jurisdiction. I just mentioned WoM as an all encompassing word for such law suit.
The first factor is usually combined with the second and the court looks for guidance provided by Congress. Under the first and second TRAC factors, the parties focus on the length of the delay in relation to the time for action contemplated by the statute.
For I-485 the statute does not specify the deadline to process the application, but 1571 has a reference to Congress intention (180 days).
See also MCI Telecommunications Corp. v. FCC, 627 F.2d 322, 340 (D.C. Cir. 1980) (noting that a "reasonable time" for the agency action at issue could "encompass months[], occasionally a year or two, but not several years or a decade"). So if your application is pending more than two years in and considering 180 days in 8 usc 1571, the delay is unreasonable under factors 1 and 2. All 6 factors are considered. See also Ibrahim v Chertoff 2007 US.Dist. LEXIS 38352 at *18, were the court analyzed TRAC factors in I-485 case.
Last edited by a moderator:
The first factor is usually combined with the second and looks for guidance provided by Congress.
Under the first and second TRAC factors, the parties focus on the length of the delay in relation to the time for action contemplated by the statute.
For I-485 the statute does not specify the deadline to process the application, but 1571 has a reference to Congress intention (180 days).
See also MCI Telecommunications Corp. v. FCC, 627 F.2d 322, 340 (D.C. Cir. 1980) (noting that a "reasonable time" for the agency action at issue could "encompass months[], occasionally a year or two, but not several years or a decade"). So if your application is pending more than two years in and considering 180 days in 8 usc 1571, the delay is unreasonable under factors 1 and 2.
hmmm... I think I still don't understand what "rule of reason" is and how we can prove that we pass the test.
worried2007
Registered Users (C)
hello,
any of u guys know any winning cases in Michigan that i can look at for filing law suit under 1447b for delay after 120 days after interview completed and name check have cleared, my congress person ststed that uscis DO stated that they doing a last security check on me?
im a female never been in trouble with the law never been in any bad position or done anything wrong why is it that im being scrutinized by the uscis any one has any input>
by interview was on June 18 at the detroit office?
any of u guys know any winning cases in Michigan that i can look at for filing law suit under 1447b for delay after 120 days after interview completed and name check have cleared, my congress person ststed that uscis DO stated that they doing a last security check on me?
im a female never been in trouble with the law never been in any bad position or done anything wrong why is it that im being scrutinized by the uscis any one has any input>
by interview was on June 18 at the detroit office?
hmmm... I think I still don't understand what "rule of reason" is and how we can prove that we pass the test.
Simply put, the "rule of reason" is a rule of common sense. For example, a friend has sent you a letter. You do not know when you will get it, but you do expect to get it within a week a so. If you do not get it in two weeks, you realise that it is very unusual, but still possible. At some point, however, the delay becomes unreasonable and you know for sure that something did not work out right. It all depends on the facts in each particular case.
To prove that the delay is unreasonable we have to present the evidence that something went wrong during the processing of our applications. If it's a name check delay, we can point out that FBI has processed 3.8 mln requests a year. We also should get a operating instructions from FBI and the number of "hits" they have to investigate to resolve a name check. If your name got a couple hits it will be obvious to the court that it should not take 3 years to do that. In regard to USCIS, does it make sense that your application is pending for 3 years when average processing time is 7 months?
Okay so that's it now I understand it more. It is kinda disheartening to see when AUSA proposes arguments such as
Since the Plaintiff is not unduly harmed by delay in petition, as he can continue to work and travel freely with EADs, there is no need for the court to order the agencies to expedite the processing.
What kind of bs arguments are these ?
Since the Plaintiff is not unduly harmed by delay in petition, as he can continue to work and travel freely with EADs, there is no need for the court to order the agencies to expedite the processing.
What kind of bs arguments are these ?
Hello,
Does anyone know how the courts in Maryland, Virginia, DC, etc. have been with MTDs? Are they usually granting or denying MTDs filed by AUSA's?
Also, once you have filed a response/opposition to the MTD, how long does it take the judge to give a decision?
I believe you can register for a pacer account and search for it.
Shoot holes in this argument.
“(B) Denials of discretionary relief
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182 (h), 1182 (i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158 (a) of this title.
”
The law states that any other decision or action of the attorney general is outside the purview of the court. And the plaintiff does not ask the court to take jurisdiction on any decision or action on the part of the Attorney General in discharging his duties towards adjudication of I485 applications. The fact of the matter is that there appears to be no decision taken on the case. There are two possible decisions that could be made with respect to plaintiff’s I485 application approve or deny. No decision is not a decision at all and therefore is within the purview of this Honorable Court. The agencies and their processes that result in such limbo status is also within the jurisdiction of this Honorable Court. The plaintiff respectfully submits that though decisions such as, one has to have name check cleared, is discretionary to the Attorney General, and having decided on the name check and the agency to do the same Attorney General’s discretionary powers end. If the agency chosen to do the name check delays the process unreasonably then such an action, rather non-action, is with in the Jurisdiction of this Honorable Court.
“(B) Denials of discretionary relief
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182 (h), 1182 (i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158 (a) of this title.
”
The law states that any other decision or action of the attorney general is outside the purview of the court. And the plaintiff does not ask the court to take jurisdiction on any decision or action on the part of the Attorney General in discharging his duties towards adjudication of I485 applications. The fact of the matter is that there appears to be no decision taken on the case. There are two possible decisions that could be made with respect to plaintiff’s I485 application approve or deny. No decision is not a decision at all and therefore is within the purview of this Honorable Court. The agencies and their processes that result in such limbo status is also within the jurisdiction of this Honorable Court. The plaintiff respectfully submits that though decisions such as, one has to have name check cleared, is discretionary to the Attorney General, and having decided on the name check and the agency to do the same Attorney General’s discretionary powers end. If the agency chosen to do the name check delays the process unreasonably then such an action, rather non-action, is with in the Jurisdiction of this Honorable Court.
halotinman
Registered Users (C)
Just sent summons via certified mail, what's next?
Hi, like several people on this forum, my application for naturalization has been delayed because of FBI name check.
Yesterday, I filed a civil case in the district court and have since mailed all the summons via certified mail.
I have a question on filing out the second page of the AO-440 "Summons in a Civil Action" form. The first page of the form has been mailed. What do I do with the second page ? Do I wait for all the return receipts to come back before filing out the second page? Is there a sample document which I can look at for people who have sent the summon via certified mail?
Thank you so much!
Hi, like several people on this forum, my application for naturalization has been delayed because of FBI name check.
Yesterday, I filed a civil case in the district court and have since mailed all the summons via certified mail.
I have a question on filing out the second page of the AO-440 "Summons in a Civil Action" form. The first page of the form has been mailed. What do I do with the second page ? Do I wait for all the return receipts to come back before filing out the second page? Is there a sample document which I can look at for people who have sent the summon via certified mail?
Thank you so much!
I believe you can register for a pacer account and search for it.
How much does it cost to open one? And where do you open one from?
How much does it cost to open one? And where do you open one from?
Go to this site http://pacer.psc.uscourts.gov/ and open an account. It does not cost to open an account, but it costs 0.08 per page downloaded from archives. Be careful while searching. Limit the dates, district, case types (naturalization is 890). Otherwise the costs might add up.
There's another site http://dockets.justia.com/ where you can look for a specific case or judge and then get the docs from pacer.
Go to this site http://pacer.psc.uscourts.gov/ and open an account. It does not cost to open an account, but it costs 0.08 per page downloaded from archives. Be careful while searching. Limit the dates, district, case types (naturalization is 890). Otherwise the costs might add up.
There's another site http://dockets.justia.com/ where you can look for a specific case or judge and then get the docs from pacer.
Ninyte,
Thank you so much for the help. I took a look at the pacer website as well as the dockets website. My case is a I-485 based WOM, what is the number for that? Also, when they say $0.08 per 'page', I read on their site but couldn't understand what exactly it meant. Do they count the number of pages that were included let's say in the original complaint, or the judge's decision? And then are you charged for however many pages you downloaded or opened?
Ninyte,
Thank you so much for the help. I took a look at the pacer website as well as the dockets website. My case is a I-485 based WOM, what is the number for that? Also, when they say $0.08 per 'page', I read on their site but couldn't understand what exactly it meant. Do they count the number of pages that were included let's say in the original complaint, or the judge's decision? And then are you charged for however many pages you downloaded or opened?
I am not sure what number is for Writ of mandamus cases, as my case is naturalization. But like I said you can find wom cases on the dockets site. When you open docket report you will see all the transactions that is going on with the case. Before you open any of the documents (complaint or mtd) the site will tell you how many pages it is and how much it costs. and ususally if the comlaint is 8 pages they will charge you for 8 pages. Then you can save it on your computer. Judges opinions are free.
I am not sure what number is for Writ of mandamus cases, as my case is naturalization. But like I said you can find wom cases on the dockets site. When you open docket report you will see all the transactions that is going on with the case. Before you open any of the documents (complaint or mtd) the site will tell you how many pages it is and how much it costs. and ususally if the comlaint is 8 pages they will charge you for 8 pages. Then you can save it on your computer. Judges opinions are free.
Thank you so much for the help!