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

Hi,

I applied for my N-400 from TX processing center on Oct 10, 06 and got my FP done on Oct 20, 06 in OK City local office. My case is stalled due to FBI NC since then. I was wondering to know how long should I wait before thinking to file WOM. Can anyone please shed some lights on it. My details is:
_____________________________________
N-400 filed in TX Center on Oct 10, 06
FP in OK City on Oct 20, 06
FBI NC is pending for about 9 months
Senator/Congressman of NO help
What should I do???
 
mt100 said:
Thanks lazycis. Now the next question is, is it advisable to file supplemental pleading in my case? My original pleading has similar details of events from March 2005 to Decemeber 2006. Now adding these new events that occurred between Jan 07-Jul07, could it help my case? The current Answer Due by Defendants date is September 6. If I file motion for supplemental pleadings, and then file the actual supplemental pleadings, could it push out the Answer Due date? And in turn push out the schedule for my case? What would you suggest? To file or not to file supplemental pleading is the question.
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AUSA has already asked for two extensions, I doubt the court will grant AUSA more time. FRCP allow up to 10 extra days to answer to amended pleadings (if you file right before the answer is due). So you are OK timewise. On the other hand, if the same or similar info is already attached to the original complaint, supplemental pleadings are not really necessary. If supplemental pleadings can make your case stronger, then do it.
 
AGC4ME said:
duck008, I can certainly help you. I have filed amendments twice. You should file an amendment to make sure your prayer for relief doesn't ask for an approval but rather just and adjudication. I have uploaded my motion to file second amendment and my second amendment. The court clerk told me that I do not need to file a motion but it doesn't hurt. The CA handbook said only the first amendment can be filed without Court's permission. If this is your first amendment you don't need the motion. Just title your complaint as FIRST AMENDED COMPLAINT, Change your prayer for relief and file it with court clerk. You also have to execute a certificate of service (attached to my sample) showing the court that the AUSA was served with the amended complaint. I delivered mine personally to the AUSA's office.
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Thank you very much AGC4ME for this instruction and the documents. I also spoke to a court clerk, he basically confirmed what you and lazycis have said. Thank you very much and have a great night!
 
If stuck in name check, what to do?

OK-Boy said:
Hi,

I applied for my N-400 from TX processing center on Oct 10, 06 and got my FP done on Oct 20, 06 in OK City local office. My case is stalled due to FBI NC since then. I was wondering to know how long should I wait before thinking to file WOM. Can anyone please shed some lights on it. My details is:
_____________________________________
N-400 filed in TX Center on Oct 10, 06
FP in OK City on Oct 20, 06
FBI NC is pending for about 9 months
Senator/Congressman of NO help
What should I do???
Click to expand...

chicagoboy3 said:
I was recently told by an IO I am stuck in name check. It has been more than 120 days since my fingerprinting. My filing date is not that old (relatively speaking) as you can see in the timeline below, but I am starting to think that I may be in for a long wait. I understand I am still within the processing timelines as well - for now. Have there been any cases where a WOM was filed by someone who hasn't had their interview yet? What are the chances of success in such a scenario? Snorlax, Shivli, lazycis, other veterans of this board - would appreciate your thoughts on this.

My timeline:
N400 Fedexed: 2/20/07
Priority Date: 2/22/07
Checks Cashed: 3/02/07
FP Letter Received: 3/07/07
FP Scheduled & Taken: 3/20/07
IL Received:
IL Scheduled:
Oath Letter:
Oath Date:
Click to expand...


Resonable time

--------------------------------------------------------------------------------
Alright guys

This is a previous post by Wenlock. I am just doing copy and paste thing.
Quote: From Wenlock


I have read the Milena's posts. Watching the judges' turn seems logical but moving (?) to another parts of the US will be the last resort!

OK i contacted many lawyers about what is the resonable time before attempting WOM here is info I received from different lawyers.

Resonable time is some times more then two years
Resonable time can be three times the current processing time.
Resonable time is that is double the processing time of DO you live in and you have some thing in your personal life that kind of makes you eligible for expedited processing but USCIS does not consider it emergency but you think that you have enough argument to convince Judge that it is very critical.

"Resonable Time" is all dependent on how you put together complaint. How you gather all facts. How you present them to Judge and make your case important. REMEBER WRIT OF MANDAMUS is some thing that Judges DO NOT like to deal with until it is very clear that

Indivitual have clear right to relief asked
Duty owed to indivitual is non-descretionary
No administrative remedy available
Exchaust all available avenues to solve matter out of court
Delay is UNRESONABLE or Intentional DELAY ( Must present some sort of proof in case of intentional delay in immigration matter it is almost imposible to convince that delay is intentional )

These are all my facts findings. Lawyers in California said that any thing more then one year is unreasonable. I know some lawyers in east coast who say 1.5 year is border line for unreasonable others say 2 year. NO HARD AND FAST RULE for what is unresonable.

My personable advice is wait for one year send all letters and inquiries to congressman and District directors KEEP PROOF of every piece of mail.
GET CALL reference number when you inquire via USCIS Help line WRITE IT note DATE AND TIME get agent NUMBER or NAME.

GET FOIPA from FBI.
Send letters to white house
First lady
Senate Joint commitee for immigration
Write letters to local US attorney.
Make Infopass and keep records of Officer you talked to and info collected
Document whole process.
Draft complaint with all information and sent it to local DO director and US attorney give them 30 days to respond.
If no response from US attorney or USCIS DO Director add this information your complaint.

After one year file complaint. Now you have enough information to convince Judge that you tried every thing possible short of filling complaint. You will have more sympathey from Judge.

I hope this helps in making your decision for WOM.
 
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Again the relief statement

Suppose that I changed my relief statement to not requiring for an approved petition, now what if the USCIS rejects my petition? What can I do to protect myself under this kind of situation?
 
duck008 said:
Suppose that I changed my relief statement to not requiring for an approved petition, now what if the USCIS rejects my petition? What can I do to protect myself under this kind of situation?
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You cannot protect yourself against denial of application but the director of USCIS is supposed to tell on what basis they rejected your application. The courts have full jurisdiction to review such a determination. The court cannot review the denial itself but only the factors or decisions that USCIS used to deny your application. I think you have to go thru BIA and other immigration boards before you can approach the court for relief in this case.
 
AGC4ME said:
You cannot protect yourself against denial of application but the director of USCIS is supposed to tell on what basis they rejected your application. The courts have full jurisdiction to review such a determination. The court cannot review the denial itself but only the factors or decisions that USCIS used to deny your application. I think you have to go thru BIA and other immigration boards before you can approach the court for relief in this case.
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I see. I hope I don't have to go through this :-(

Thanks AGC4ME!
 
duck008 said:
I see. I hope I don't have to go through this :-(

Thanks AGC4ME!
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I hope so! But to me, it's better to have a resolution than wait forever.

To raise your spirit, please note that:

a) AOS approval rate is close to 99%
b) if it's denied, you can file a motion to reopen/reconsider the decision with USCIS within 30 days.
c) if motion to reconsider is denied and you do not have a fallback (a legal status), you can renew your AOS application at removal (deporatation) hearings before immigration judge (IJ)
d) if IJ denies it, you can appeal to the border of immigration appeals (BIA). The BIA has a 2-3 years backlog.
e) if BIA denies it, you can appeal to the Appellate court (another year or two).
f) if you lose in appellate court, you can petition for en banc rehearing before the full panel.
g) Worst case scenario, you go to the US Supreme court (it does not have to consider your request though)
h) even if you lose all appeals, US AG can grant you withholding of removal for the variety of reasons.

So by the time you get a final decision, your US-born children grow up and can sponsor you as an immediate relative :)
 
lazycis and others

I spoke to the AUSA dealing with my case, appears to be a nice guy. He said he has asked me if I have any discovery to be made and if so has asked me to forward those to him. He also said he would file an answer to my complaint. He said there has been some confusion about jurisdiction and so he expects to file MTD also. Now my question is should I go through the discovery phase or should I just let him file the answer and MTD and forego the discovery. The other stuff is consent to trial by a magistrate judge.

Why are AUSAs this Magistrate Judge v District Judge ?
 
lazycis said:
I do not recall a favorable AOS ruling in the 6th Cir. However, here is a good case for you to withstand lack of jurisdiction attack:
Coal Operators & Assocs., Inc., v. Babbitt, 291 F.3d 912
http://www.ca6.uscourts.gov/opinions.pdf/02a0193p-06.pdf
Basically, the court says that mandamus jurisdiction exists to review mandamus claim under 28 usc 1361.
The Coal Operators case is cited in Ahmed v. DHS, 328 F.3d 383 (7th Cir. 2003)
http://www.ca7.uscourts.gov/tmp/540RBCDU.pdf
"We agree with the Coal Operators court that unless the claim is so frivolous that it fails the Bell v. Hood test, the district court has jurisdiction under § 1361 to determine whether the prerequisites for mandamus relief have been satisfied: does the plaintiff have a clear right to the relief sought; does the defendant have a duty to perform the act in question; and is there no other
adequate remedy available. See Iddir, 301 F.3d at 499. A conclusion that any one of those prerequisites is missing should lead the district court to deny the petition, not because it now realizes that it had no power to be thinking
about the case in the first place, but because the plaintiff has not demonstrated an entitlement to this form of extraordinary relief."

Have you filed an opposition to MTD yet?
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Lazycis,
Thanks for the coal operators case, and yes, I have filed response to MTD.

Do you know What is the Motion for leave to file supplemental authority in support of motion to dismiss? The AUSA has just filed that and copied the three recent unfavorable rulings in my district. Does this motion requires a reply?
 
Slow_CIS said:
Lazycis,
Thanks for the coal operators case, and yes, I have filed response to MTD.

Do you know What is the Motion for leave to file supplemental authority in support of motion to dismiss? The AUSA has just filed that and copied the three recent unfavorable rulings in my district. Does this motion requires a reply?
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To file something that is not part of a pleading, motion or reply to motion, a party should ask for permission or "leave" of court. A court may allow or deny the request. You can object to it, but it is not required.
 
AGC4ME said:
I spoke to the AUSA dealing with my case, appears to be a nice guy. He said he has asked me if I have any discovery to be made and if so has asked me to forward those to him. He also said he would file an answer to my complaint. He said there has been some confusion about jurisdiction and so he expects to file MTD also. Now my question is should I go through the discovery phase or should I just let him file the answer and MTD and forego the discovery. The other stuff is consent to trial by a magistrate judge.

Why are AUSAs this Magistrate Judge v District Judge ?
Click to expand...

Of course you need to ask for a discovery. Aren't your curious why it's taking so long? :) You also need to prove that a delay is unreasonable.

Here is what wiki says regarding magistrate judges:
http://en.wikipedia.org/wiki/Magistrate
"In the United States federal court system, a magistrate judge is an Article I judge authorized by 28 U.S.C. §§ 631 et seq. Magistrate judges are appointed by the life-term federal district judges of a particular court, serving terms of eight years if full-time, or four years if part-time, and may be reappointed. Magistrate judges conduct a wide range of judicial proceedings to expedite the disposition of the civil and criminal caseloads of the United States District Courts. Congress set forth in the statute powers and responsibilities that could be delegated by district court judges to magistrate judges. To achieve maximum flexibility in meeting the needs of each court, however, it left the actual determination of which duties to assign to magistrate judges to the individual courts.

In civil proceedings, Magistrate Judges may preside over jury or non-jury trials of civil cases of any kind with the consent of the parties. They manage pretrial discovery of civil cases scheduled to be tried before district judges, and issue rulings on discovery disputes. They may also be assigned to handle habeas corpus cases and social security appeals.

All decisions of a magistrate judge are subject to review and either approval, modification or reversal by a district judge of that court, except in civil cases where the parties consent in advance to allow the magistrate judge to exercise the jurisdiction of the district judge."

It sounds like magistrate judge handles less important cases, has less authority and responsibilities. In a civil case, however, his/her authority is the same as district judge. I am not sure whether the process will go faster with magistrate judge or not.
 
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lazycis said:
Of course you need to ask for a discovery. Aren't your curious why it's taking so long? :) You also need to prove that a delay is unreasonable.

Here is what wiki says regarding magistrate judges:
http://en.wikipedia.org/wiki/Magistrate
"In the United States federal court system, a magistrate judge is an Article I judge authorized by 28 U.S.C. §§ 631 et seq. Magistrate judges are appointed by the life-term federal district judges of a particular court, serving terms of eight years if full-time, or four years if part-time, and may be reappointed. Magistrate judges conduct a wide range of judicial proceedings to expedite the disposition of the civil and criminal caseloads of the United States District Courts. Congress set forth in the statute powers and responsibilities that could be delegated by district court judges to magistrate judges. To achieve maximum flexibility in meeting the needs of each court, however, it left the actual determination of which duties to assign to magistrate judges to the individual courts.

In civil proceedings, Magistrate Judges may preside over jury or non-jury trials of civil cases of any kind with the consent of the parties. They manage pretrial discovery of civil cases scheduled to be tried before district judges, and issue rulings on discovery disputes. They may also be assigned to handle habeas corpus cases and social security appeals.

All decisions of a magistrate judge are subject to review and either approval, modification or reversal by a district judge of that court, except in civil cases where the parties consent in advance to allow the magistrate judge to exercise the jurisdiction of the district judge."

It sounds like magistrate judge handles less important cases, has less authority and responsibilities. In a civil case, however, his/her authority is the same as district judge. I am not sure whether the process will go faster with magistrate judge or not.
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I'm curious as to why it is taking so long. I just don't want them to use discovery as an excuse to delay filing the motions. Obviously these cases are non-trial cases and are dealt with just motions.

I have a document that is both JSR/Discovery. The court has not asked for a JSR. Do you have a sample document that is just for discovery ?
 
chicagoboy3 said:
I was recently told by an IO I am stuck in name check. It has been more than 120 days since my fingerprinting. My filing date is not that old (relatively speaking) as you can see in the timeline below, but I am starting to think that I may be in for a long wait. I understand I am still within the processing timelines as well - for now. Have there been any cases where a WOM was filed by someone who hasn't had their interview yet? What are the chances of success in such a scenario? Snorlax, Shivli, lazycis, other veterans of this board - would appreciate your thoughts on this.

My timeline:
N400 Fedexed: 2/20/07
Priority Date: 2/22/07
Checks Cashed: 3/02/07
FP Letter Received: 3/07/07
FP Scheduled & Taken: 3/20/07
IL Received:
IL Scheduled:
Oath Letter:
Oath Date:
Click to expand...
There is some confusion about what to call WOM. In this forum “WOM” primarily means cases where no statue for the specifically mandated processing time can be cited. Plaintiffs have to go by “unreasonable delay” and it is ultimately the judge’s call what is reasonable and what is not. It appears that 2+ years is considered unreasonable by the majority of the judges and they tend to grant a relief. If one had an interview – there is a statutory requirement for the USCIS to adjudicate one’s application within 120 days since the date of the interview – and that is the ground for 1447b cases. Technically both types of cases are WOMs, but the latter can use a statue with a specific timeframe.

I agree with everything recommended by springbranch.

In addition I would also try:
- to contact you local Senator and Congressman offices and ask them to send inquires about you Name Check to FBI. Add result (or no results) to your future case.
- to get yourself an interview (nagging through IFOPASS appointments) without your Name Check cleared. It is not likely to happen, but if you get yourself an interview, you will be able to file 1447b case 120 days after the interview.

Keep building your case. If that is 2 years for WOM, than you will arrive there with a very-well prepared case.

Best of luck,
snorlax
 
AGC4ME said:
I spoke to the AUSA dealing with my case, appears to be a nice guy. He said he has asked me if I have any discovery to be made and if so has asked me to forward those to him. He also said he would file an answer to my complaint. He said there has been some confusion about jurisdiction and so he expects to file MTD also. Now my question is should I go through the discovery phase or should I just let him file the answer and MTD and forego the discovery. The other stuff is consent to trial by a magistrate judge.

Why are AUSAs this Magistrate Judge v District Judge ?
Click to expand...

AGC4ME,

Your AUSA is really involved (and hopefully it's a good sign) if he asked for discovery already. Perhaps he just wants to build a good defense...:confused: According to Ch. 11 of CA Pro se book, discovery shouldn't start either till your judge sends you a case Management order setting deadlines for discovery, of after your "meet and confer" date (I understand you didn't have any of those yet. Read to ch.11 to see which category applies to you.) It can only start earlier if both sides agree to it or judge issues a permissive order. But I also think that you should pick your AUSA on this offer now.

AGC4ME said:
I'm curious as to why it is taking so long. I just don't want them to use discovery as an excuse to delay filing the motions. Obviously these cases are non-trial cases and are dealt with just motions.

I have a document that is both JSR/Discovery. The court has not asked for a JSR. Do you have a sample document that is just for discovery ?
Click to expand...

I can't find an actual "Request for documents" among my files, but you can probably draft it yourself, following the pro se ch. 11, "request for Document Production" instructions. Also read FRCP rule 34 (a). Serve it onto AUSA, specify each doc and see what he says.

I do have a draft text posted by another forum member. It's JSR also but it has a provisional discovery plan, incl. doc production too. I post it in case this is not the one you have. Specifically, it says in discovery plan part:

"Identify and depose all individuals who are responsible for submission and adjudication of security checks regarding this matter. Depositions, interrogatories, request for admission, request for production of documents to obtain information on the subjects set forth in the discovery plan. The full scope of discovery cannot be ascertained in this matter until the identities of individual(s), and agencies that are actually performing the security checks are revealed"

Hope someone else can post and actual "request".

Good luck!
 
Reviewing my original complaint after a long time, I see an error in the jurisdiction that I cited. I should not have used 28 USC 1391 as jurisdiction. It should have been 28 USC 1331 (federal question).

My original complaint:
JURISDICTION: Jurisdiction in this case is proper under 28 USC §1391 and 1361, 5 USC §701 et seq., and 28 USC §2201 et seq. Relief is requested pursuant to said statutes.

I want to file an amendment as follows:
JURISDICTION: This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331 (federal question jurisdiction) and the Adminitrative Procedure Act ("APA") at 5 USC §§ 555(b), 701 et.seq. and under the Mandamus Act at 5 USC § 1361 and under the Declaratory Judgement Act 28 USC §2201. This Court may grant relief pursuant to 28 U.S.C. §§1361, 2202, and 5 U.S.C. § 702 et seq.

Question for pros on the forum. Does this look alright? Is that a good idea to file an amendment for this?
 
mt100 said:
Reviewing my original complaint after a long time, I see an error in the jurisdiction that I cited. I should not have used 28 USC 1391 as jurisdiction. It should have been 28 USC 1331 (federal question).

My original complaint:
JURISDICTION: Jurisdiction in this case is proper under 28 USC §1391 and 1361, 5 USC §701 et seq., and 28 USC §2201 et seq. Relief is requested pursuant to said statutes.

I want to file an amendment as follows:
JURISDICTION: This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331 (federal question jurisdiction) and the Adminitrative Procedure Act ("APA") at 5 USC §§ 555(b), 701 et.seq. and under the Mandamus Act at 5 USC § 1361 and under the Declaratory Judgement Act 28 USC §2201. This Court may grant relief pursuant to 28 U.S.C. §§1361, 2202, and 5 U.S.C. § 702 et seq.

Question for pros on the forum. Does this look alright? Is that a good idea to file an amendment for this?
Click to expand...

You can also add 8 USC 1101 et. seq, 8 CFR 245. Otherwise, it looks good. Go ahead and amend it, do not let this opportunity to go by.
 
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mt100 said:
Reviewing my original complaint after a long time, I see an error in the jurisdiction that I cited. I should not have used 28 USC 1391 as jurisdiction. It should have been 28 USC 1331 (federal question).

My original complaint:
JURISDICTION: Jurisdiction in this case is proper under 28 USC §1391 and 1361, 5 USC §701 et seq., and 28 USC §2201 et seq. Relief is requested pursuant to said statutes.

I want to file an amendment as follows:
JURISDICTION: This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331 (federal question jurisdiction) and the Adminitrative Procedure Act ("APA") at 5 USC §§ 555(b), 701 et.seq. and under the Mandamus Act at 5 USC § 1361 and under the Declaratory Judgement Act 28 USC §2201. This Court may grant relief pursuant to 28 U.S.C. §§1361, 2202, and 5 U.S.C. § 702 et seq.

Question for pros on the forum. Does this look alright? Is that a good idea to file an amendment for this?
Click to expand...

Mt100,

I made very similar mistake (misquoted the statue number in Venue) and following a good advise of several forum members simply ignored it-my AUSA never noticed mistake as shown in his filed answer (-search that correspondence by "typo" key word). You can amend it (don't need a permission until answer filed) and need to file it, serve AUSA -just follow some recent posts and if you need more info (-link on how to amend) pm please. But since your nc is cleared I think you should not worry about it- hopefully AUSA is just waiting for CIS to process FBI results and shouldn't fight you. If it prolongs beyond their answer-then depending on what they say you still may amend and since you're pro se, they shouldn't fuss too much about the typo.

In case you still want to amend, you may add 1447 into your jurisdiction too. Here's what I have in Jurisdiction section:

"This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331 (federal question jurisdiction), because Plaintiff’s claim arises under the laws of the United States, specifically, the Immigration and Nationality Act (8 U.S.C. § 1101 et seq.) as amended, and the regulations arising hereunder. This court also has jurisdiction under: 8 U.S.C. § 1447(b) (jurisdiction for hearing cases arising from failure of USCIS to adjudicate naturalization applications within 120 since the date of the naturalization examination); and under: 28 U.S.C. § 1361 (Mandamus Act), § 2201, (Declaratory Judgment Act), 5 U.S.C. §§ 555 et seq. and 701 et seq. (Administrative Procedures Act). The court may grant relief pursuant to 28 U.S.C. §§ 1361, 1651 (All Writs Act), 2202, and 5 U.S.C. § 702.
5. This action challenges the failure of Defendants to complete action on the application and issue the decision due to Plaintiff and does not challenge any discretionary act by Defendants. This action does not challenge the granting or denial of an application. Therefore, the jurisdictional limitations of INA § 242, 8 U.S.C § 1252, do not apply."
 
Thanks Shvili

I have the same document. I am going take the Provisional discovery plan and use it to come up with my document. BTW I would like to find out if USCIS has approved any 485 cases in my category with a later priority date. Does this belong to discovery ?
 
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