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

[duck008]

I don't remember where I got this line from but here's what I sent to the AUSA about discovery
"Plaintiff anticipates minimal discovery requests that may include written interrogatories and request for production of documents.".


I don't think different judges matter in this kind of cases. So far 4 MTDs have been dismissed in our district by 3 different judges. No decisions have been made on MSJs. I'm keeping my eyes on 3 cases (07-0083, 07-0103, 07-0122) that are at the MSJ step.


There was only one and it took 15 minutes. I did talk to the AUSA the day before. Take the chance to ask questions if you didn't talk to AUSA before the conference.


Besides the discovery plan, the only other significant thing is that I put this under the ADR method:
"Plaintiff agrees that this case is not amendable to ADR, as it is extremely unlikely that this type of immigration proceeding can be settled. Plaintiff suggests that the Court issue a proposed briefing schedule setting forth the dates for the filing of summary judgment motions and any responses thereto."

Since my AUSA told me that he will file MTD, I ask the court to set dates for summary judgment motions hoping that things can move faster. I saw this in a case (JSR attached) filed by a professional. If you think the AUSA is working on your case and it can be resolved before MTD, you might want to do it differently. It seems to me that the due date for dispositive motions set by the court is usually quite late. That means the government can wait longer before they file MTD.

Thank you so much w&w.

 

[lazycis]

Hi everyone,

I am glad to report that the judge on my case has issued an order denying Defendants' MTD. To bring everyone up to speed, my case is in the central district of CA and my AOS application has been delayed for 2.25 years. Two weeks after I filed my OPP in late June, the AUSA filed a reply brief where she attached 4 recent court orders in my district all favoring the government. Fortunately, the judge on my case is really immigrant-friendly and denied the MTD despite that.

In the opinion the judge says:

Accordingly, Defendants' motion must be denied. The parties are instructed to meet and confer regarding a schedule for the filing of cross-motions for summary judgment in this matter.

How should I proceed at this point, gurus? Please give me some suggestions.

Hey missingpa,
I was wondering how your case is going. This is great!!!
Well, the next step would be to contact AUSA to develop a schedule for the filing of cross-motions for summary judgment. I would insist on discovery, albeit minimal and limited to administrative records as it is customary in APA cases. Ask defendants (USCIS and FBI) to produce timeline for processing of your case. Ask FBI to provide some details regarding your name check processing (how many hits your name generated, a few samples of those "hits", how many hits had to be reviewed manually, when actions were taken, etc.). If AUSA does not agree to discovery, seek subpoena.
As for writing MSJ, I am sure you can do it with no problem.
If I can do anything to help you, just ask. Looking forward for your GC approval message!

 

[lazycis]

Is there a way to find out how a particular AUSA replies generally, and how a specific judge rules on mandamus cases? Or any experiences of the current forum members about my AUSA and District and Magistrate Judge. Here are the details:
AUSA: Marcus M Kerner
Court: California Central District Court
County: Orange
Presiding Judge: Andrew J. Guilford
Referring Judge: Marc L. Goldman

Use http://dockets.justia.com/
it has information about judges assigned to cases and it also gives you a link to pacer if you need details about a particular case

 

[AGC4ME]

So I've filed my complaint and I've filed my summons in the court showing that those summons were executed. I've also established contact with AUSA though we haven't talked yet but just trading voice mails. I'll talk to him tomorrow for sure. I'm thinking of asking him in general how he handles I485 WoM cases. But in general what did you guys ask the AUSA ?

I understand that the Defendants have 60 days to answer to my complaint. Will the Court schedule a conference after the answer is filed ? I'm confused as to the steps between the time answer is filed and MTD is filed.

Thanks guys.

 

[SLIS]

Answer will come after the MTD phase

So I've filed my complaint and I've filed my summons in the court showing that those summons were executed. I've also established contact with AUSA though we haven't talked yet but just trading voice mails. I'll talk to him tomorrow for sure. I'm thinking of asking him in general how he handles I485 WoM cases. But in general what did you guys ask the AUSA ?

I understand that the Defendants have 60 days to answer to my complaint. Will the Court schedule a conference after the answer is filed ? I'm confused as to the steps between the time answer is filed and MTD is filed.

Thanks guys.

If the AUSA has already told you that he will be filing MTD against your complaint, then he will not be filing an answer at this point. What's going to happen is that he's going to wait till 60 days are up and then file MTD on the 60th day. Then, it will take the Court up to a month or longer to rule on the MTD. Once the Court has ruled on the MTD and denied it, the AUSA has within 7-14 days to file his answer. After that, you can go ahead and file your motion for summary judgment if the Court does not set a specific scheduling for doing so.

 

[AGC4ME]

If the AUSA has already told you that he will be filing MTD against your complaint, then he will not be filing an answer at this point. What's going to happen is that he's going to wait till 60 days are up and then file MTD on the 60th day. Then, it will take the Court up to a month or longer to rule on the MTD. Once the Court has ruled on the MTD and denied it, the AUSA has within 7-14 days to file his answer. After that, you can go ahead and file your motion for summary judgment if the Court does not set a specific scheduling for doing so.

So the discovery/JSR etc if at all it happens will happen after MTD is denied by the court ?

 

[lazycis]

So the discovery/JSR etc if at all it happens will happen after MTD is denied by the court ?

JSR/conference can happen before, it all depends on the district. But discovery can start only after the answer is received (which, as SLIS noted, happens after MTD is denied).

 

[lazycis]

another good reason to file 1447b

Check this out: a person filed 1447b, the case was remanded to USCIS and USCIS denied N-400 because the plaintiff was studying in Canada and left USA for more than 6 months (less than a year). The plaintiff then asked court to review her N-400 de novo by the court and the court dismissed USCIS arguments and ordered USCIS to naturalize the plaintiff!

http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=tauro/pdf/li_v_chertoff.pdf

 

[DUDE12190]

Dude,

thank you for your help! I'm now calling the Trafffic court number (from the link Snorlax provided) We'll see what they say (-looong waiting on phone trying to talk to records division).

Technically speaking, I wonder what happens to those who put "no" in all fields even while they had a minor offence??? I suspect, CIS would not search it on those guys and even if this later becomes known what are they going to do? Take away citizenship because a person failed to disclose a traffic (minor) offence??? I don't think so! But in our case, my husband actually had a prior traffic ticket (also paid and dr. school cleared 9 yrs ago) which (under the old CIS rules) he did not report when he filed his N-400. Since the form only asks "since you had your naturalization interview" not disclosing it should not violate anything.

Just spoke to the tr. court clerk: she said that we have to go there and make a request, they then search microfilm and it takes several weeks to get the answer! When I explained that the ceremony is Aug 22, she said "get it requested right away, you may not get it on time". So now I'm going to the traffic court.

I'll post later on the developments.

Shvili, if that traffic ticket was given and paid before the interview, do not even worry about it. As u know, everthing in that form is "Since the day you have your Natuarlization Interview". Anything prior to the interview, just disregard. Good luck again, regards, dude

 

[DUDE12190]

Hey Dude,
It's nice to see you back helping others! I really have limited experience with 1447b so it'd be great if you can share yours.
It seems that brendroba's case is stuck waiting for A-file transfer. Needless to say, USCIS has a tendency to lose A-files (OIG report, anyone?) so I think lawsuit is the only option at this point.

hi Dear!
I hope you are doing fine! I am glad too that you are really helping people here. I wish you get out of this mess soon. I saw your appeal. Wish you best of luck in your case. regards, dude

 

[lazycis]

another good AOS case

Cao v. Upchurch, 07-1232, PAED, Order on MTD and Plaintiff's MSJ

The case has very good analysis of 8 usc 1252(a)(2)(B) and 1252(g) applicability in AOS cases.

It seems also that the judge has a good sense of humor, I like his footnotes and remarks.

"We also find unconvincing the argument that courts should refrain from interfering with the speed at which
applications are processed because "delays of this nature are inevitable and becoming more frequent in light of heightened security concerns in the post-911 [sic] world." Id. at 701 n.6 (quoting Mustafa v. Pasquerell, 2006 WL 488399 (W.D. Tex. Jan. 10, 2006) at *5). Given that USCIS unquestionably has absolute and unreviewable discretion to deny an application for permanent residency, national security does not require that it also have
absolute discretion to delay such an application to Dickensian lengths."

 

[AGC4ME]

Cao v. Upchurch, 07-1232, PAED, Order on MTD and Plaintiff's MSJ

The case has very good analysis of 8 usc 1252(a)(2)(B) and 1252(g) applicability in AOS cases.

It seems also that the judge has a good sense of humor, I like his footnotes and remarks.

"We also find unconvincing the argument that courts should refrain from interfering with the speed at which
applications are processed because "delays of this nature are inevitable and becoming more frequent in light of heightened security concerns in the post-911 [sic] world." Id. at 701 n.6 (quoting Mustafa v. Pasquerell, 2006 WL 488399 (W.D. Tex. Jan. 10, 2006) at *5). Given that USCIS unquestionably has absolute and unreviewable discretion to deny an application for permanent residency, national security does not require that it also have
absolute discretion to delay such an application to Dickensian lengths."

There are couple of things that bother me though. If USCIS can show that it has regulary issued FP notices would that prove that USCIS is taking steps to adjudicate our apps ?
And the other thing is that the Judge ordered Plaintiff's application to be adjudicated before August 17th knowing fully well that defendants can deny the application due to lack of FBI clearance. I guess this order is dependent on how the Plaintiff worded his MSJ.

 

[SLIS]

Cao v. Upchurch, 07-1232, PAED, Order on MTD and Plaintiff's MSJ

The case has very good analysis of 8 usc 1252(a)(2)(B) and 1252(g) applicability in AOS cases.

Thank you, lazycis, for posting this! This is a very timely ruling indeed for people in the MSJ phase!

 

[mt100]

Originally Posted by w&w
I don't think different judges matter in this kind of cases. So far 4 MTDs have been dismissed in our district by 3 different judges. No decisions have been made on MSJs. I'm keeping my eyes on 3 cases (07-0083, 07-0103, 07-0122) that are at the MSJ step.

Which district are these 3 cases in?

 

[vicky2006]

I filed wom and served summons, and contacted the attorney. He told me he would like to go with magistrate judge, and I asked if he will file somehting. He said he will not file anything. Do that mean he will not file motion to dismiss? or it is too early for him to file?

I am in chicago. The magistrate judge is keys. My current judge is Gostchall. Should I go with the Magistrate judge. I am wondering why the US attorney want to go with the Magistrate judge. Did anyboy know how to check the the inforamtion about he judge? I heard the case will be processed faster with Magistrate judge since he gets less workload. should I go with him?

Thanks

 

[lazycis]

I filed wom and served summons, and contacted the attorney. He told me he would like to go with magistrate judge, and I asked if he will file somehting. He said he will not file anything. Do that mean he will not file motion to dismiss? or it is too early for him to file?

I am in chicago. The magistrate judge is keys. My current judge is Gostchall. Should I go with the Magistrate judge. I am wondering why the US attorney want to go with the Magistrate judge. Did anyboy know how to check the the inforamtion about he judge? I heard the case will be processed faster with Magistrate judge since he gets less workload. should I go with him?

Thanks

I understand that your district is Norther Ill. You can check this site
http://www.nysd.uscourts.gov/courtweb/public.htm
to find the judge's rulings. You can select a particular judge on that site. You may not find similar cases, but you will be able to find out whether the judge is biased toward the government or not and whether his/her rulings are well-reasoned.
It's hard to tell what judge is better, magistrate or regular judge. It depends.

 

[yvesliu]

Just a quick update on my case. The court date is 30th, the next monday and my lawyer asked for the oral debate. So, I will be present as well. Hopefully everything will go well.

 

[AGC4ME]

Just a quick update on my case. The court date is 30th, the next monday and my lawyer asked for the oral debate. So, I will be present as well. Hopefully everything will go well.

Wow !!! This must be the first case to go in for an oral debate. Say Hi to James.E.Cox for me.

 

[w&w]

Which district are these 3 cases in?

Western district of Washington

 

[w&w]

So I've filed my complaint and I've filed my summons in the court showing that those summons were executed. I've also established contact with AUSA though we haven't talked yet but just trading voice mails. I'll talk to him tomorrow for sure. I'm thinking of asking him in general how he handles I485 WoM cases. But in general what did you guys ask the AUSA ?

I understand that the Defendants have 60 days to answer to my complaint. Will the Court schedule a conference after the answer is filed ? I'm confused as to the steps between the time answer is filed and MTD is filed.

Thanks guys.

In my case, the court ordered initial conference and JSR before answer dues. The AUSA told me he will file answer before the JSR due date. He also said that he will file MTD eventually. My understanding is that defendants can file MTD at any time before the due date of dispositive motions.