I just sent one too.
Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
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I just sent one too.
F.R.C.P. says
AUSA doesn't get any extension for an amended complaint.
The time limits are different for responding to an amended complaint. According to Rule 15(a) of the Federal Rules of Civil Procedure, a defendant must file a response to an amended complaint within the time remaining to respond to the original complaint, or within ten days after being served with the amended complaint, whichever period is longer, unless the court orders otherwise.
http://www.law.cornell.edu/rules/frcp/Rule15.htm
But I guess it varies locally. I need to check my Local Rule.
AUSA doesn't get any extension for an amended complaint.
The time limits are different for responding to an amended complaint. According to Rule 15(a) of the Federal Rules of Civil Procedure, a defendant must file a response to an amended complaint within the time remaining to respond to the original complaint, or within ten days after being served with the amended complaint, whichever period is longer, unless the court orders otherwise.
http://www.law.cornell.edu/rules/frcp/Rule15.htm
But I guess it varies locally. I need to check my Local Rule.
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catching up
The argument that N-400 has 120day limit and I485 has no time limit is hogwash. N-400 time limit is only for a portion of the process (after examination) not the entire process. Now that USCIS has changed its procedure and will not schedule interview before namecheck clears are the N400s just going to sit and spin beads ? One has to argue that 8 U.S.C. 1571 provides Congress' desire to get any immigration benefits within 180 days and where it makes an exception it is usually less than 180 days (ex. 8 U.S.C. 1447(b)). And where it did not provide a timeline, it shouldn't be taken as a blank cheque for ever but the agencies should follow APA "and conclude the matter presented to them within a reasonable time".
The argument that N-400 has 120day limit and I485 has no time limit is hogwash. N-400 time limit is only for a portion of the process (after examination) not the entire process. Now that USCIS has changed its procedure and will not schedule interview before namecheck clears are the N400s just going to sit and spin beads ? One has to argue that 8 U.S.C. 1571 provides Congress' desire to get any immigration benefits within 180 days and where it makes an exception it is usually less than 180 days (ex. 8 U.S.C. 1447(b)). And where it did not provide a timeline, it shouldn't be taken as a blank cheque for ever but the agencies should follow APA "and conclude the matter presented to them within a reasonable time".
Collaboration with AUSA
SLIS,
I called my AUSA and we filed "Stipulation to briefing schedule on cross-motion for summary judgment and order". So both of us have about 4 weeks to file cross-motion and 2 weeks to file opposition, hearing will occur in 2 weeks after opposition filing. So working with your AUSA can benefit both sides.
SLIS,
I called my AUSA and we filed "Stipulation to briefing schedule on cross-motion for summary judgment and order". So both of us have about 4 weeks to file cross-motion and 2 weeks to file opposition, hearing will occur in 2 weeks after opposition filing. So working with your AUSA can benefit both sides.
Paz,
I fully support your conclusions regarding attachments. I'll send a message to the webmaster as well.
If you expand "posting rules" in the bottom left corner, you'll see that message.
It worked! The attachments button is back!
Good for you!
What I meant earlier is that you don't have to work with your AUSA on the scheduling part. It's not required and you have every bit of freedom to do what you want. But, it's great to know that you are on amicable terms with your AUSA and have worked out a schdule for the convenience of both parties. That's great!
In my case, I do have a regular and amicable email exchange with the AUSA. I sometimes even ask her to help explain some procedural questions, which she usually responds promptly and thoroughly. She's very courteous and professional. And she also sends me everything she files in email so I can get it promptly. She has been very good at that. But, she's still an attorney representing the defendants' interests. She wanted to wait for the court to set the schedule for the next steps. So, I decided to file MSJ without waiting for the court's scheduling order....
Chrismartin76
Registered Users (C)
I have a similar situation except that I'm about to file a mandamus suit and visas are not currently available. In you opinion, lazycis, would it be better to file now or in October? Thanks.
-Chris
-Chris
immediate adjudication and some recent victories
OK, here is one of the favorable rulings that mentions immediate adjudication, albeit the circumstances are a bit different in your case.
Toor v Still, CAND, 07-0645
"Safadi, a case upon which a number of courts have relied in reaching a different conclusion, is factually distinguishable. There, all background checks had been completed. The USCIS was in the process of exercising its
discretion to make its final adjudication. 466 F. Supp. 2d at 697-98. To order “immediate” adjudication, as the applicant requested, would have stripped the USCIS of its discretion to make a final determination. No such circumstances exist here."
OK, here is one of the favorable rulings that mentions immediate adjudication, albeit the circumstances are a bit different in your case.
Toor v Still, CAND, 07-0645
"Safadi, a case upon which a number of courts have relied in reaching a different conclusion, is factually distinguishable. There, all background checks had been completed. The USCIS was in the process of exercising its
discretion to make its final adjudication. 466 F. Supp. 2d at 697-98. To order “immediate” adjudication, as the applicant requested, would have stripped the USCIS of its discretion to make a final determination. No such circumstances exist here."
Scheduling conference
Okay My AUSA is as clueless as I am if not more on Scheduling. He sent me a pdf file with a sample discovery plan, only to have the Court tell me that they do not entertain written discovery plan. Now he called to set up a scheduling conference only to hear that scheduling conference will not take place until he answers the complaint....
BTW the filing of MTDs, Opp to MTDs etc are they dependent on the discovery time frame. The court in district of Oregon gives parties 120days to complete the discovery. I don't want the case to wait until discovery is complete for him to file MTD and then me Opp to MTD. According to AUSA whether I ask for discovery (request for documents) or not he will still ask the court for 120 days to file MSJ from his side.
Okay My AUSA is as clueless as I am if not more on Scheduling. He sent me a pdf file with a sample discovery plan, only to have the Court tell me that they do not entertain written discovery plan. Now he called to set up a scheduling conference only to hear that scheduling conference will not take place until he answers the complaint....
BTW the filing of MTDs, Opp to MTDs etc are they dependent on the discovery time frame. The court in district of Oregon gives parties 120days to complete the discovery. I don't want the case to wait until discovery is complete for him to file MTD and then me Opp to MTD. According to AUSA whether I ask for discovery (request for documents) or not he will still ask the court for 120 days to file MSJ from his side.
Final case summary
Dear friends,
After receiving a second DHS e-mail stating that card production has been ordered, I decided to sign the stipulation to dismiss the case and faxed it back to the AUSA. The MTD on my case was denied by the judge on Friday, July 20th, and my I-485 was approved on Friday, Aug 3rd, proving that the USCIS can really move extremely swiftly once they are motivated!
I owe my success mostly to the help I got from this forum. For one thing, I originally used one of those standard "templates" to prepare my complaint and erroneously asked for "approval" in the earlier version. It was not until I started following this forum when I realized that mistake and changed it to "adjudication." I was later faced with the daunting task of writing my own opposition to the MTD and was fortunate to receive enormous help from PAZ, Lazycis, Shvili and others. In fact, if you go through my documents, you will see bits and pieces of PAZ's and Lazycis' oppositions in my version posted below. So, my most sincere thanks to you guys!
I have been in this process for over 6 months and have been depressed and stressed between my full time job and this legal battle. But I do not believe this day would have come if I had not fought for it. To those who are still in the process and those who had a little tougher luck and will have to go through the appeal stage, keep on fighting for what you believe in and your victory will come like mine did!
Best of luck to all!
Dear friends,
After receiving a second DHS e-mail stating that card production has been ordered, I decided to sign the stipulation to dismiss the case and faxed it back to the AUSA. The MTD on my case was denied by the judge on Friday, July 20th, and my I-485 was approved on Friday, Aug 3rd, proving that the USCIS can really move extremely swiftly once they are motivated!
I owe my success mostly to the help I got from this forum. For one thing, I originally used one of those standard "templates" to prepare my complaint and erroneously asked for "approval" in the earlier version. It was not until I started following this forum when I realized that mistake and changed it to "adjudication." I was later faced with the daunting task of writing my own opposition to the MTD and was fortunate to receive enormous help from PAZ, Lazycis, Shvili and others. In fact, if you go through my documents, you will see bits and pieces of PAZ's and Lazycis' oppositions in my version posted below. So, my most sincere thanks to you guys!
I have been in this process for over 6 months and have been depressed and stressed between my full time job and this legal battle. But I do not believe this day would have come if I had not fought for it. To those who are still in the process and those who had a little tougher luck and will have to go through the appeal stage, keep on fighting for what you believe in and your victory will come like mine did!
Best of luck to all!
My dear friend missingpa, congratulations to your victory and thank you for posting your case files here!
Have a great day!
Discovery plan
Hi folks, I'm thinking about adding a discovery plan to my JSR and below is a draft. I'm throwing it out for you to help me grind on it. Any suggestion is appreciated. P.S. my AUSA give November 1 as the discovery cut off date.
Plaintiffs are all well educated law binding citizens, have never committed any crime, and have all kept their legal alien status since coming to the US in 1995 and 1996. As indicated in Exhibit E of the complaint, responses to FOIPA requests for the plaintiffs have returned “no record”. A delay of 27 months for FBI Name Check Clearance when the Plaintiffs have “No Record” or “Hit” is not right.
To ensure that the FBI is treating plaintiffs’ name checks fairly, actively working on it, and to avoid further delay, plaintiffs request that the defendants produce, at minimum, the following documents:
1) Report from FBI representatives showing FBI steps in processing a name check / background check requested from USCIS on behalf of an Adjustment of Status (I-485) applicant;
2) Statistics showing the typical time it takes to complete each step of a name check / background check process during the last 27 months;
3) Report from FBI representatives showing timeline in processing of plaintiffs’ name check / background check;
4) Statement showing how much of plaintiffs’ name check / background check have been completed and an estimation of how much more time is needed to complete the checks.
5) Report from USCIS that contains steps completed in reference to plaintiffs’ cases.
Plaintiffs request that the above discovery be completed by September 15, 2007.
Plaintiffs may request for further documents based on the responses the defendants may have to the above requests.
Hi folks, I'm thinking about adding a discovery plan to my JSR and below is a draft. I'm throwing it out for you to help me grind on it
. Any suggestion is appreciated. P.S. my AUSA give November 1 as the discovery cut off date.Plaintiffs are all well educated law binding citizens, have never committed any crime, and have all kept their legal alien status since coming to the US in 1995 and 1996. As indicated in Exhibit E of the complaint, responses to FOIPA requests for the plaintiffs have returned “no record”. A delay of 27 months for FBI Name Check Clearance when the Plaintiffs have “No Record” or “Hit” is not right.
To ensure that the FBI is treating plaintiffs’ name checks fairly, actively working on it, and to avoid further delay, plaintiffs request that the defendants produce, at minimum, the following documents:
1) Report from FBI representatives showing FBI steps in processing a name check / background check requested from USCIS on behalf of an Adjustment of Status (I-485) applicant;
2) Statistics showing the typical time it takes to complete each step of a name check / background check process during the last 27 months;
3) Report from FBI representatives showing timeline in processing of plaintiffs’ name check / background check;
4) Statement showing how much of plaintiffs’ name check / background check have been completed and an estimation of how much more time is needed to complete the checks.
5) Report from USCIS that contains steps completed in reference to plaintiffs’ cases.
Plaintiffs request that the above discovery be completed by September 15, 2007.
Plaintiffs may request for further documents based on the responses the defendants may have to the above requests.
duck0008 Here's what I had asked for
1. ALL documents of Plaintiff’s USCIS file.
2. ALL administrative records from FBI and USCIS associated with Plaintiff's name check .
3. Regulatory and Statutory rules authorizing and requiring USCIS to complete name check before granting LPR status. As an alternative Statutory and Regulatory guidelines defining Criminal Background check will suffice.
4. Statistical information from USCIS regarding processing times of AOS application of the same type as Plaintiff's but filed after the Plaintiff's.
5. 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.
6. 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.
7. Statistical information from USCIS on number of AOS applications approved without obtaining FBI name check clearance.
1. ALL documents of Plaintiff’s USCIS file.
2. ALL administrative records from FBI and USCIS associated with Plaintiff's name check .
3. Regulatory and Statutory rules authorizing and requiring USCIS to complete name check before granting LPR status. As an alternative Statutory and Regulatory guidelines defining Criminal Background check will suffice.
4. Statistical information from USCIS regarding processing times of AOS application of the same type as Plaintiff's but filed after the Plaintiff's.
5. 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.
6. 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.
7. Statistical information from USCIS on number of AOS applications approved without obtaining FBI name check clearance.
AGC4ME,
Where did you get the ideas from and how was the response to these if there has been any? I guess the purpose of this is to force them to look at your case, to make them feel uneasy so that they will look at your case, and to prepare for arguments in the next step in the WOM case. Am I right?
duck0008
Most of them from a gentleman who posts here as lazycis. I added points #3 and #7. The AUSA took my request for documents and said he will try to get them all answered. He might ask for an extension of time may be. Well Basically the questions are mostly towards establishing the facts that USCIS actions are arbitrary and capricious and not driven by any national security concern and neither do they process the case in a "first-in, first-out" basis.
By the way I received an email from the court in response to my AUSA's email to the court saying we are ready for 16-F conference.
"We don't hold R16 conferences until after (all) defendants have appeared and closer toward the discovery deadline which, in this action, is set for 10/29/07. We will set the conference once an answer is filed."
From the email is the deadline to complete discovery is 10/20/2007 or is 10/29/2007 the deadline to come up with a discovery plan ? I am tending to think it's the former and not the latter.
Most of them from a gentleman who posts here as lazycis. I added points #3 and #7. The AUSA took my request for documents and said he will try to get them all answered. He might ask for an extension of time may be. Well Basically the questions are mostly towards establishing the facts that USCIS actions are arbitrary and capricious and not driven by any national security concern and neither do they process the case in a "first-in, first-out" basis.
By the way I received an email from the court in response to my AUSA's email to the court saying we are ready for 16-F conference.
"We don't hold R16 conferences until after (all) defendants have appeared and closer toward the discovery deadline which, in this action, is set for 10/29/07. We will set the conference once an answer is filed."
From the email is the deadline to complete discovery is 10/20/2007 or is 10/29/2007 the deadline to come up with a discovery plan ? I am tending to think it's the former and not the latter.
WhyThisDelay,
The complaint overall is good enough, but you definitely need to amend prayer for relief to avoid dismissal.
Not only your are asking for immediate completion of background check (APA provision can force agency to act within "reasonable time", but there is no provision to force it to act immediately), but you are asking court to order DHS "immediately grant ... permanent residence (the decision whether to grant or deny permanent residency is discretional, you cannot force agency to excercise its discretion in any particular way).
Check the missingpa's complaint posted above for a good sample of prayer for relief.
Best regards,
lazycis