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

[lazycis]

Here's my situation.

I filed WOM (485 based) in early july. Unluckily the judge has a reputation of moving cases very quickly, and scheduled conference call in mid august.

The ausa in my case has taken position that my case should be dismissed, since visa numbers are not available. My lawyer is recommending that I withdraw my case and refile it in october. In the meantime the ausa is verbally promising my lawyer that he would work with FBI to get my name check expedited.

I asked my lawyer to seek an extension for 45 days, since my PD would become current again in october, but she is not sure that it would be granted because of the judge. I dont really like the idea of delay and rely on verbal promise of ausa.

What should I do? Any suggestions/ ideas of what else me/my lawyer can do?

WhyThisDelay (good question),
The AUSA position is not valid.

a) You filed a lawsuit when visa numbers were available.
b) You can still ask for declaratory judgment
c) You can still ask court to compel FBI to complete your name check or to order USCIS to expedite your name check because it was unreasonably and unfair delayed
d) You may amend your prayer for relief and ask court to compel USCIS to adjudicate your application as expeditiously as possible after a visa number becomes available to you. Prayer for relief is important. I hope you did not ask for immediate adjudication.
e) This one may fly or not, but you can claim that the government should be estopped from enforcing INA provision regarding visa numbers because government was involved in affirmative misconduct during the processing of your application. Your lawyer should have an idea about the estoppel doctrine. There are other elements you'll have to show besides the affirmative misconduct (also delay alone cannot be used as a prove of affirmative misconduct, see Miranda v. INS, SC case). At least that will be enough to drag your case until October bulletin comes out, which is about a month from now.

 

[AGC4ME]

did anyone notice that the page numbers are in 4xx yesterday it used 828 or something. Did the moderators trim this thread ? Did we lose info ? I hope not.

 

[AGC4ME]

Dear friends,

I have an important update: today I received automatic emails from the DHS saying that my I-485 applications have been approved and the notices have been sent on August 3. Later, the AUSA emailed me the PDF of a fax of what appeared to be the first page of my I-485 form with an "approved" stamp on it. She also asked me to voluntarily dismiss my WoM case and sent me this stipulation:

Pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, the parties, by and through their undersigned counsel, stipulate to the dismissal of the entire action without prejudice, with each party to bear its own costs and fees, including attorney fees.​

Since it did not mention anything about Plaintiffs expecting approval notices and resident alien cards to be sent to them, I asked the AUSA if she could add a clause that says if Plaintiffs do not receive those within 30 days, the parties agree that the case may be re-opened. Here is her reply:

Thanks for the suggestion but I don't think we can agree to incorporate that language into the stipulation -- my office generally does not like to include such language in stipulations b/c it's not applicable to all situations and we don't want to give courts unrealistic expectation that this might happen in all cases before them.​

What do you think, guys, should I sign it or not? I certainly do not want to irritate the AUSA and now that the DHS system has confirmed that they have sent me the approval notice, what more can I ask for? But in the mean time, I do want to make sure that I have not overlooked any potential pitfalls especially since I have devoted so much time and energy to come this far. Please give me some advice.

I will follow up on this shortly and, as promised, will share all the documents in my case which may be useful to those still fighting.

missingpa you deserve it. Looking forward to seeing your arguments.

 

[lazycis]

did anyone notice that the page numbers are in 4xx yesterday it used 828 or something. Did the moderators trim this thread ? Did we lose info ? I hope not.

I did notice it today, but to me it looks like they just made pages longer so I also hope that we did not lose any info. One of my posts from page 800 is currently on page 400. Inability to post attachments does hurt, however. I just noticed a change in posting rules: "You may not post attachments". Maybe it's time to start our own site?

 

[SLIS]

I did notice it today, but to me it looks like they just made pages longer so I also hope that we did not lose any info. One of my posts from page 800 is currently on page 400. Inability to post attachments does hurt, however. I just noticed a change in posting rules: "You may not post attachments". Maybe it's time to start our own site?

Maybe we should contact the adminstrator first to see why the rule is changed? Except for not being able to post attachments, I didn't notice other anomalies like you guys did.

 

[OK-Boy]

Hello Guys,

I planning to file CIS Ombudsman Form DHS-7001 due to not having a response of my N-400 application after 10 months; NC is pending. My question is does it work to expedite the case or just a waste of time? Thanks,

 

[lazycis]

Hello Guys,

I planning to file CIS Ombudsman Form DHS-7001 due to not having a response of my N-400 application after 10 months; NC is pending. My question is does it work to expedite the case or just a waste of time? Thanks,

It did not work out for me. I did get a response from both Ombudsman and USCIS, but all they are saying is "to be patient".

 

[OK-Boy]

How long have you been waiting and from which city/District?

 

[lazycis]

3+ years, district of RI (VSC), I-485

 

[AGC4ME]

Today I met with my AUSA. He had a big file in my name. Guess I'm now officially in FBI's database. I showed him my FOIPA result and asked him why it takes so long when one doesn't have a record. He was clueless. He also admitted that he had seen number of cases where it has been argued that name check was not even required (lazycis rule). He said it is an USCIS requirement not a statutory or regulatory. So my request for document included a request for specific statutory/regulatory rules authorizing and requiring USCIS to conduct a name check before LPR. Let us see what he comes out with.

I also had a chance to hear the arguments in yvesliu's case (had to pay $26 for the friggin' CD). The Judge in that case literally told the AUSA that she is inclined to grant the MSJ for yvesliu.

One another thing, would filing an amendment cause the clock to start all over again ? My local court says so but another clerk before her said it won't.

 

[WhyThisDelay]

Thanks lazycis.

In my prayer i had asked for immediate adjudication by uscis as well as immediate background check be done by fbi. I can ask my lawyer to amend it.

BUT the bigger question is if it is worth it the risk. My PD is almost guaranteed to become current in october. Even with the amended prayer, what are the chances of my arguments holding against the ausa's? Are you sure that this 'quciky' judge will decide in my favor and not in ausa's? What is your opinion?

(I looked at estoppel at wikipedia. That thing is definitely not gonna fly in my (or as a matter of fact in any wom case). )

WhyThisDelay (good question),
The AUSA position is not valid.

a) You filed a lawsuit when visa numbers were available.
b) You can still ask for declaratory judgment
c) You can still ask court to compel FBI to complete your name check or to order USCIS to expedite your name check because it was unreasonably and unfair delayed
d) You may amend your prayer for relief and ask court to compel USCIS to adjudicate your application as expeditiously as possible after a visa number becomes available to you. Prayer for relief is important. I hope you did not ask for immediate adjudication.
e) This one may fly or not, but you can claim that the government should be estopped from enforcing INA provision regarding visa numbers because government was involved in affirmative misconduct during the processing of your application. Your lawyer should have an idea about the estoppel doctrine. There are other elements you'll have to show besides the affirmative misconduct (also delay alone cannot be used as a prove of affirmative misconduct, see Miranda v. INS, SC case). At least that will be enough to drag your case until October bulletin comes out, which is about a month from now.

 

[lotechguy]

Today I met with my AUSA. He had a big file in my name. Guess I'm now officially in FBI's database. I showed him my FOIPA result and asked him why it takes so long when one doesn't have a record. He was clueless. He also admitted that he had seen number of cases where it has been argued that name check was not even required (lazycis rule). He said it is an USCIS requirement not a statutory or regulatory. So my request for document included a request for specific statutory/regulatory rules authorizing and requiring USCIS to conduct a name check before LPR. Let us see what he comes out with.

I also had a chance to hear the arguments in yvesliu's case (had to pay $26 for the friggin' CD). The Judge in that case literally told the AUSA that she is inclined to grant the MSJ for yvesliu.

One another thing, would filing an amendment cause the clock to start all over again ? My local court says so but another clerk before her said it won't.

Amendments can be made to the original complaint within 60 days or before AUSA files answer/MTD. In this case it will extend the 60 day deadline by 10 days only. Also, no need to serve all defendents only AUSA.

 

[duck008]

Today I met with my AUSA. He had a big file in my name. Guess I'm now officially in FBI's database. I showed him my FOIPA result and asked him why it takes so long when one doesn't have a record. He was clueless. He also admitted that he had seen number of cases where it has been argued that name check was not even required (lazycis rule). He said it is an USCIS requirement not a statutory or regulatory. So my request for document included a request for specific statutory/regulatory rules authorizing and requiring USCIS to conduct a name check before LPR. Let us see what he comes out with.

I also had a chance to hear the arguments in yvesliu's case (had to pay $26 for the friggin' CD). The Judge in that case literally told the AUSA that she is inclined to grant the MSJ for yvesliu.

One another thing, would filing an amendment cause the clock to start all over again ? My local court says so but another clerk before her said it won't.

Well AGC4ME,

What other documents have you asked your AUSA to provide? Also, regarding to this request for statutory/regulatory rule in your opinion, how would it help us in this fight in pratice if it is true?

About the amendment, I remember seen in a court rule (western wa district) that filing an amendment won't restart the clock. It states something like "the defendants must respond before the date set by the original complaint or 10 days after the amendment".

 

[lazycis]

Thanks lazycis.

In my prayer i had asked for immediate adjudication by uscis as well as immediate background check be done by fbi. I can ask my lawyer to amend it.

BUT the bigger question is if it is worth it the risk. My PD is almost guaranteed to become current in october. Even with the amended prayer, what are the chances of my arguments holding against the ausa's? Are you sure that this 'quciky' judge will decide in my favor and not in ausa's? What is your opinion?

(I looked at estoppel at wikipedia. That thing is definitely not gonna fly in my (or as a matter of fact in any wom case). )

I would amend. I've seen a few cases that where dismissed because plaintiffs asked for immediate adjudication. I usually do not collect unfavorable cases, so I do not remember exactly what was the judge's reasoning. Also, you do not weaken your position by amending "immediate" to "expeditious". In fact, it will increase your chances to prevail. So there is no risk for you. What district are you in? Who is your judge?

 

[WhyThisDelay]

My case is in NY Eastern dist. and judge is Brian M Cogan.

My case# is 1-07-cv-2747 .

Can you please take a look and tell me what you think.

I would amend. I've seen a few cases that where dismissed because plaintiffs asked for immediate adjudication. I usually do not collect unfavorable cases, so I do not remember exactly what was the judge's reasoning. Also, you do not weaken your position by amending "immediate" to "expeditious". In fact, it will increase your chances to prevail. So there is no risk for you. What district are you in? Who is your judge?

 

[WhyThisDelay]

And here is the url to query cases in eastern new york:

https://ecf.nyed.uscourts.gov/cgi-bin/login.pl

I would amend. I've seen a few cases that where dismissed because plaintiffs asked for immediate adjudication. I usually do not collect unfavorable cases, so I do not remember exactly what was the judge's reasoning. Also, you do not weaken your position by amending "immediate" to "expeditious". In fact, it will increase your chances to prevail. So there is no risk for you. What district are you in? Who is your judge?

 

[WhyThisDelay]

Another interesting case.

A friend of mine at office who filed his/her case at same dist. as mine has ausa filed answer to their wom. Ausa basically rebutted each of their wom points. and in the final defense, he gave 4 arguments why the case should be dismissed. Seems like ausa now is not relying on just motion to dismiss based on lack of jurisdiction, but a couple of arguments to win their case.

Here is excerpt from ausa's answer document:


GENERAL DENIAL
Defendants deny each and every allegation not previously specifically admitted or otherwise qualified.
FIRST DEFENSE
The Complaint fails to state a claim for which relief can be granted.
SECOND DEFENSE
The Court lacks jurisdiction over the subject matter of this action.
THIRD DEFENSE
3
Case 1:XX-XX-XXXXX-XXXXX Document 9 Filed 08/07/2007 Page 3 of 4
Defendants have not unlawfully withheld or unreasonably delayed the processing of Plaintiffs’ applications.
FOURTH DEFENSE
There is no clear present right to the relief sought and no present duty to adjudicate Plaintiffs’ applications.
WHEREFORE, Defendants respectfully request that this Court enter judgment dismissing the Complaint in its entirety, together with costs and disbursements, and for such other relief as this Court deems proper.

 

[paz1960]

A friend of mine at office who filed his/her case at same dist. as mine has ausa filed answer to their wom. Ausa basically rebutted each of their wom points. and in the final defense, he gave 4 arguments why the case should be dismissed. Seems like ausa now is not relying on just motion to dismiss based on lack of jurisdiction, but a couple of arguments to win their case.

Here is excerpt from ausa's answer document:


GENERAL DENIAL
Defendants deny each and every allegation not previously specifically admitted or otherwise qualified.
FIRST DEFENSE
The Complaint fails to state a claim for which relief can be granted.
SECOND DEFENSE
The Court lacks jurisdiction over the subject matter of this action.
THIRD DEFENSE
3
Case 1:XX-XX-XXXXX-XXXXX Document 9 Filed 08/07/2007 Page 3 of 4
Defendants have not unlawfully withheld or unreasonably delayed the processing of Plaintiffs’ applications.
FOURTH DEFENSE
There is no clear present right to the relief sought and no present duty to adjudicate Plaintiffs’ applications.
WHEREFORE, Defendants respectfully request that this Court enter judgment dismissing the Complaint in its entirety, together with costs and disbursements, and for such other relief as this Court deems proper.

This looks to me the end of an Answer to the Complaint. Nothing unusual; defendants have to state in the Answer all their defenses, otherways later they will not be allowed to use them.

A Motion to Dismiss usually is only the first step, sometimes is not even used. The Defendants are required by law to file an Answer; the motions won't replace the answer, but the court first has to rule on them and defendants' answer should follow.

 

[paz1960]

I did notice it today, but to me it looks like they just made pages longer so I also hope that we did not lose any info. One of my posts from page 800 is currently on page 400. Inability to post attachments does hurt, however. I just noticed a change in posting rules: "You may not post attachments". Maybe it's time to start our own site?

Forbidding attachements is a huge blow to the value of this forum. Exchanging documents was one of the most valuable feature. We really need this feature and we should petition the SysAdmin to reinstate this feature.

Lazycis, where did you see the change "You may not post attachments"? I looked under the ImmigrationPortal Forums> FAQ>How to Use this Forum> Reading and Posting Messages> What Are Attachments? and I didn't see anything about forbidding attachments. Obviously, I didn't look at the right place...

 

[AGC4ME]

Forbidding attachements is a huge blow to the value of this forum. Exchanging documents was one of the most valuable feature. We really need this feature and we should petition the SysAdmin to reinstate this feature.

Concur and second the suggestion. I'm sending a message to the sysadmin now.