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

AGC4ME said:
Here's a link to District of New Mexico forms page. There's sample JSR and Discovery Plan

http://www.nmcourt.fed.us/web/DCDOCS/files/courtfrms.html
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AGC4ME,
There is a great sample of request for production of documents right here:
http://www.immigration.com/litigation/I-485/First Request for Production of Documents.pdf

Overall, I found that the whole section dedicated to Immigrationportal.com v Ridge is quite interesting:
http://www.immigration.com/litigation/I-485_litigation.html
 
amendment and supplemental pleading!!!

lazycis said:
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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Thanks lazycis and shvili. I was also thinking about filing supplemental pleading which will include letter from FBI that my nc request was received by FBI in April 2005, and FBI is working on it, etc.. plus other new docs I received from USCIS and a new family hardship caused by this delay.

Should I file the amendment and supplemental pleading separately? Or can I combine them, say just write one amendment and sneak in the additional info without any mention that I am making supplemental pleading. Maybe it can be considered as part of my amendment????
 
Are AOS WOM cases getting resolved post MTD only in CA?

Earlier, somebody in the forum made the observation that many AOS WOM cases are getting resolved post MTD stage. I tend to agree with that since there have not been many rulings on motion to summary judgment. However, it also seems that it perhaps is a unique phenomenon in Northern District of California. I'm saying that because I'm not seeing a clear trend in other district courts including Washington.

Any theories? :confused:
 
WOM Denied due to Request for Favorable Judgement

My lawyer has filed the WOM and asked the judge to order the approval of my GC application.

I am very worried that this may be grounds for the rejection of the writ but the lawyer keeps on telling me he has done everything right.

Does anyone know of a WOM case that was rejected due to asking for approval of the 485 (rather than prompt adjudication)?

I am meeting him on tuesday and really need some help here. He took over 7-weeks to file the WOM. When he did file it and I got to read it I was shocked to see that the whole think was less than 2 pages long. He did cite a single hardship I have encountered (like having been refused advance parole), nor did he attach a single attachment to the writ. I have already paid him in full and am stuck with him.

If anyone has any information to help me convince him to ammend the WOM to remove the request for approval please let me know. I have waited 6-years and don't want my WOM refused due to lawyer incompetence.

thanks.

lazycis said:
Hey Majman,

You are right in your conclusions. You cannot ask for approval. Also, it's necessary to include the description of your hardships and as much supporting documents as possible. You can check a 485-template lawsuit template posted here
http://boards.immigration.com/attachment.php?attachmentid=16571&d=1182786004

Also, you can check Quan v Chertoff case in NDCal on pacer, it was done by professionals.
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Majman said:
If anyone has any information to help me convince him to ammend the WOM to remove the request for approval please let me know. I have waited 6-years and don't want my WOM refused due to lawyer incompetence.
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Read AILF's advisory on Mandamus Actions: Avoiding Dismissal and Proving the Case located at http://www.ailf.org/lac/lac_pa_081505.pdf.

Also read AILF's clearing house regarding recent Mandamus litigations located at http://www.ailf.org/lac/clearinghouse_mandamus.shtml

I would say all rulings on AOS WOM cases have a section discussing "approval" versus "adjudication/processing" as the former is a discretionary act while the latter is a non-discretionary act. So, you can basically pick up any ruling and read through the analysis to get a sense of how critical this distinction is. The best way to prepare yourself for the discussion with your attorney is to read through a couple of case rulings yourself. You can pick any case to read. There are many that have already been posted in this forum.

Good luck! And I would suggest swap out the attorney if you really don't trust his/her ability....
 
Majman,

as SLIS and Lazycis said, you cannot request to approve your application. Show your lawyer these two cases for starters:

While a judge in one of the cases was nice (he didn't throw it out of court), I remember the case where the judge actually denied complaint because Plaintiff requested "approval".

So if your lawyer refuses to amend your complaint I suggest you fire him/her and amend it on your own-it's serious.

Majman said:
My lawyer has filed the WOM and asked the judge to order the approval of my GC application.

I am very worried that this may be grounds for the rejection of the writ but the lawyer keeps on telling me he has done everything right.

Does anyone know of a WOM case that was rejected due to asking for approval of the 485 (rather than prompt adjudication)?

I am meeting him on tuesday and really need some help here. He took over 7-weeks to file the WOM. When he did file it and I got to read it I was shocked to see that the whole think was less than 2 pages long. He did cite a single hardship I have encountered (like having been refused advance parole), nor did he attach a single attachment to the writ. I have already paid him in full and am stuck with him.

If anyone has any information to help me convince him to ammend the WOM to remove the request for approval please let me know. I have waited 6-years and don't want my WOM refused due to lawyer incompetence.

thanks.
Click to expand...
 
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mt100 said:
Thanks lazycis and shvili. I was also thinking about filing supplemental pleading which will include letter from FBI that my nc request was received by FBI in April 2005, and FBI is working on it, etc.. plus other new docs I received from USCIS and a new family hardship caused by this delay.

Should I file the amendment and supplemental pleading separately? Or can I combine them, say just write one amendment and sneak in the additional info without any mention that I am making supplemental pleading. Maybe it can be considered as part of my amendment????
Click to expand...

You may try to combine two, but I do not think it's a good idea as FRCP specifically distinguish between amendments as to the original complaint and supplemental pleadings that cover events that happened after the complaint was filed. You need a leave of court for the latter, but the former does not need it and is more important to your case. So file the first amended complaint first, then file a motion for supplemental pleadings. Sorry, I forgot that your case is N400. Instead of 8 CFR 245, just mention 8 CFR. There is no need to use 1447b as you had no interview. It is good idea to include a paragraph that 8 usc 1252 does not bar jurisdiction because it does not apply to naturalization cases (1252 applies only to subchapter II, naturalization is in subchapter III).
 
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Majman said:
My lawyer has filed the WOM and asked the judge to order the approval of my GC application.

I am very worried that this may be grounds for the rejection of the writ but the lawyer keeps on telling me he has done everything right.

Does anyone know of a WOM case that was rejected due to asking for approval of the 485 (rather than prompt adjudication)?

I am meeting him on tuesday and really need some help here. He took over 7-weeks to file the WOM. When he did file it and I got to read it I was shocked to see that the whole think was less than 2 pages long. He did cite a single hardship I have encountered (like having been refused advance parole), nor did he attach a single attachment to the writ. I have already paid him in full and am stuck with him.

If anyone has any information to help me convince him to ammend the WOM to remove the request for approval please let me know. I have waited 6-years and don't want my WOM refused due to lawyer incompetence.

thanks.
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Majman,
If you can get a hold of any MTD in your district, you will find plenty of cases cited by AUSA that were dismissed because the plaintiffs asked for approval.

Show your lawyer 8 USC 1252(2)(B)
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.

Then, 8 USC 1255(a) specifically say that the decision whether grant or deny adjustment of status is within the Attorney General's discretion ("may be adjusted"). Note that 8 USC 1252 also specifically mentions mandamus statutes.

Check also Cao v. Upchurch, 2007 WL 2071900 E.D.Pa. Jul 16, 2007 ruling that I posted recently. Here is what it says:

We begin by noting that plaintiffs do not challenge a decision on their applications for adjustment of status, nor do they ask this Court to compel a particular result. Rather, they seek only to compel an adjudication. Compl. ¶ 29. Therefore, defendants' reliance on cases such as Sharkey v. Ganter, 2006 WL 177156 (S.D.N.Y. Jan. 24, 2006), is misplaced. Sharkey's holding that "the mandamus statute alone cannot create subject matter jurisdiction in cases challenging the denial or revocation of adjustment of status," id. at *3, has no relevance here where no such denial or revocation has happened. Similarly, the Eighth Circuit's ruling in Castillo v. Ridge, 445 F.3d 1057 (8th Cir. 2006), is inapposite because plaintiff in that case sought "a writ of mandamus to compel the INS to adjudicate in his favor his adjustment of status application," id. at 1060 (emphasis added).

Do not blame yourself that your attorney seems a bit incompetent in this particular subject. It can happen to anyone. If you noticed that asking for approval is not right, the government attorney will notice it too. You definitely do not want to lose both money and your court case after waiting 6 years. You may be able to recover your money if you go to court and lose because of the incompetent attorney. It's called legal malpractice. You can hire legal malpractice attorney and try to get your money back. There should also be a procedure to file a complaint against an attorney.
To me it looks like you better of firing your current attorney and either getting another one or doing it yourself. It's easy to amend your complaint now. Of course, it is a good idea to talk to your attorney first and ask him to amend the complaint or give your money back. Technically, you can do all the work yourself and just have attorney filing papers with the court. But in any case, do not agree to pay him another penny.
 
Section 1252

I was reading section 1252 and read this

(D) Judicial review of certain legal claims
Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

Is there any way I485 WoM cases take advantage of this provision ?
 
lazycis said:
AGC4ME,
There is a great sample of request for production of documents right here:
http://www.immigration.com/litigation/I-485/First Request for Production of Documents.pdf

Overall, I found that the whole section dedicated to Immigrationportal.com v Ridge is quite interesting:
http://www.immigration.com/litigation/I-485_litigation.html
Click to expand...

Thanks lazycis. Man he has asked for the entire USCIS documentation to be at his disposal. using the document posted by shvili I could ask

ALL documents of Plaintiff’s USCIS file.
ALL documents of all requests for FBI and Name Check Security Clearance.
ALL document with potential derogatory info about me that prevents USCIS to adjudicate my application.
ALL documents of requests to expedite adjudication of background check.

I would like to bolster my case by asking for documents on approvals on applications with a later priority date and later receipt date than the applicant. How should I word it appropriately ?

Any documents about approvals granted to applicants with a priority date and receipt date later than Plaintiffs'.
 
re interview

Well as I explained you guys that they have called me for re-interview. My interviewer grilled me like anything. She spent one and half hour. She took 3 sworn written statement. In the end she told me that she is having hard time to approve currently since I lived more than 8 month outside the country it violates continuance residence in US. She asked me that do you have lease document, or any utility bill coming to your address which I said I don't have currently but I could provide my cousins where I lived, she agreed to it. I requested her to notify me about the decesion because I have to go back out of the country for some important business.

last week I emailed her and notified her my alternate phone number and asked her about the status of my case, and to stay on the optimist side I asked about my oath cermony. She called me yesterday, and told me that july is not possible, not even august, it will be done in september. She hanged up before I could asked further question.

Confusion, is she telling me that they will decide about my case in september, or she is notifying me about my oath cermony is in september since I allready know that july and August is completely booked. Please your thoughts will be helpful.
 
gmlvsk said:
If a case is dismissed, but has no clauses "with prejustice" "without prejustice".
Which one is it?
Thanks
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It depends on the reason for dismissal. If it's for technicality (i.e., did not pay a filing fee), then without. If the court issued an opinion and dismissed it, it means "with prejustice".
 
AGC4ME said:
I was reading section 1252 and read this

(D) Judicial review of certain legal claims
Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

Is there any way I485 WoM cases take advantage of this provision ?
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That section is for Appellate Court. Any final decision of the administrative agency can be disputed in Appellate Courts. It does not apply to district courts. An because we have not received a final decision from USCIS (indefinite delay does not qualify as the final decision for some unknown reason), we cannot go directly to the Appellate court.
 
AGC4ME said:
Thanks lazycis. Man he has asked for the entire USCIS documentation to be at his disposal. using the document posted by shvili I could ask

ALL documents of Plaintiff’s USCIS file.
ALL documents of all requests for FBI and Name Check Security Clearance.
ALL document with potential derogatory info about me that prevents USCIS to adjudicate my application.
ALL documents of requests to expedite adjudication of background check.

I would like to bolster my case by asking for documents on approvals on applications with a later priority date and later receipt date than the applicant. How should I word it appropriately ?

Any documents about approvals granted to applicants with a priority date and receipt date later than Plaintiffs'.
Click to expand...

Well, if you ask for all this you may wait for a few months :) How about avoiding delays?
But you definitely can ask for
ALL documents of Plaintiff’s USCIS file (it's nice to have a free copy :)
ALL administrative records from FBI and USCIS associated with Plaintiff's name check
Statistical information from USCIS regarding processing times of AOS application of the same type as Plaintiff's but filed after the Plaintiff's
Statistical information from USCIS regarding requests to expedite adjudication of background check.of AOS application of the same type as Plaintiff's but filed after the the Plaintiff's
Statistical information from FBI regarding average processing time of the name check and average resolution time of the "hit" produced by search in FBI "reference" files.
Operating procedures from FBI regarding name check processing

That's my proposition, I do not insist I am right. Let's work together and come up with something good.
 
ournyla said:
Well as I explained you guys that they have called me for re-interview. My interviewer grilled me like anything. She spent one and half hour. She took 3 sworn written statement. In the end she told me that she is having hard time to approve currently since I lived more than 8 month outside the country it violates continuance residence in US. She asked me that do you have lease document, or any utility bill coming to your address which I said I don't have currently but I could provide my cousins where I lived, she agreed to it. I requested her to notify me about the decesion because I have to go back out of the country for some important business.

last week I emailed her and notified her my alternate phone number and asked her about the status of my case, and to stay on the optimist side I asked about my oath cermony. She called me yesterday, and told me that july is not possible, not even august, it will be done in september. She hanged up before I could asked further question.

Confusion, is she telling me that they will decide about my case in september, or she is notifying me about my oath cermony is in september since I allready know that july and August is completely booked. Please your thoughts will be helpful.
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You have to prove that you did not abandon your residency in the US during those 8 months. That's why it's important to come with utility bill or something like that proving that you did not abandon your US residency. Did you maintain your employment in US?
Check this case, it's exactly about your situation:
http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=tauro/pdf/li_v_chertoff.pdf
 
mt100 said:
Thanks lazycis and shvili. I was also thinking about filing supplemental pleading which will include letter from FBI that my nc request was received by FBI in April 2005, and FBI is working on it, etc.. plus other new docs I received from USCIS and a new family hardship caused by this delay.

Should I file the amendment and supplemental pleading separately? Or can I combine them, say just write one amendment and sneak in the additional info without any mention that I am making supplemental pleading. Maybe it can be considered as part of my amendment????
Click to expand...

lazycis said:
You may try to combine two, but I do not think it's a good idea as FRCP specifically distinguish between amendments as to the original complaint and supplemental pleadings that cover events that happened after the complaint was filed. You need a leave of court for the latter, but the former does not need it and is more important to your case. So file the first amended complaint first, then file a motion for supplemental pleadings. Sorry, I forgot that your case is N400. Instead of 8 CFR 245, just mention 8 CFR. There is no need to use 1447b as you had no interview. It is good idea to include a paragraph that 8 usc 1252 does not bar jurisdiction because it does not apply to naturalization cases (1252 applies only to subchapter II, naturalization is in subchapter III).
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Mt100,

I understood that you had an interview, so in your case with no interview you definitely cannot refer to 1447. Other than that, Lazycis pointed a very good thing about the 1252: it applies to a different subchapter so in the extra paragraph peemptively write that the jurisdictional limitation of subchapter II does not apply to the current case because naturalizations are covered by subchapter III.

Also: since you received no answer yet, you can amend your complaint AND add any other facts you didn't include before. So why do you need a supplemental pleading? Here (again) is a file on amending in case you don't have it. According to it you can add ANY new facts/ defendants in your first amended complaint. So I would just do the amended complaint.
 
lazycis said:
Well, if you ask for all this you may wait for a few months :) How about avoiding delays?
But you definitely can ask for
ALL documents of Plaintiff’s USCIS file (it's nice to have a free copy :)
ALL administrative records from FBI and USCIS associated with Plaintiff's name check
Statistical information from USCIS regarding processing times of AOS application of the same type as Plaintiff's but filed after the Plaintiff's
Statistical information from USCIS regarding requests to expedite adjudication of background check.of AOS application of the same type as Plaintiff's but filed after the the Plaintiff's
Statistical information from FBI regarding average processing time of the name check and average resolution time of the "hit" produced by search in FBI "reference" files.
Operating procedures from FBI regarding name check processing

That's my proposition, I do not insist I am right. Let's work together and come up with something good.
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Those are really good ones lazycis. Don't they have a timeline for making such discoveries, like 30 days ? or does the court set one ?
 
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