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

How long is too long?

The answer comes from the United States Court of Appeals for FOR THE DISTRICT OF COLUMBIA CIRCUIT:

http://caselaw.findlaw.com/data2/circs/DC/031122A.pdf

In re American Rivers and Idaho Rivers United, 372 F.3d 413, 58 ERC 1746, 362 U.S.App.D.C. 46 D.C.Cir. Jun 22, 2004

"There is ‘‘no per se rule as to how long is too long’’ to wait for agency action, In re Int’l Chem. Workers Union, 958 F.2d at 1149, but a reasonable time for agency action is typically counted in weeks or months, not years. "
 
AGC4ME said:
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.
Click to expand...

Thanks AGC4ME! What are 16-F and R16 conference?
 
One more AOS victory, CT district

Koren v. Chertoff, Slip Copy, 2007 WL 1431948 D.Conn. May 14, 2007

"Defendants cite Safadi v. Howard, 466 F. Supp. 2d 696 (E.D. Va. 2006), for the proposition that the word “action” in § 1252(a)(2)(B)(ii) encompasses the entire process of reviewing an adjustment application, including the pace at which CIS processes these applications. The Safadi court concluded, based on that determination, that Congress had vested the Secretary of Homeland Security with complete discretion over the process of adjudicating 1-485
applications, including the process of reviewing the applications and the pace at which that process proceeds. 466 F. Supp. 2d at 699. The court made clear, however, that its decision did not address “the question whether jurisdiction would exist in a district court to review plaintiff’s case where USCIS refused altogether to process an adjustment application or where the delay was so unreasonable as to be tantamount to a refusal to process the application.” Id. at 700. The courts in Huang, 2007 U.S. Dist. LEXIS 32276 at *10, and Duan, 2007 U.S. Dist. LEXIS 12697, at *9, raised the question of whether, based on this disclaimer, a reasonable delay might qualify as “action,” whereas an unreasonable delay would not. In any event, this Court is not persuaded by the Safadi court’s reasoning. Section 1255(a) does not commit the entire “process” or “pace” of adjusting an applicant’s status to the Attorney General, but says only that he may make an adjustment “in his discretion.” This Court’s reading of the statute, i.e., that the pace of
adjudicating adjustment applications is not specifically committed to the Attorney General’s discretion in § 1255(a), accords with the Second Circuit’s general presumption in favor of judicial review. See Sanusi, 445 F.3d at 199; Sepulveda, 407 F.3d at 62. Accordingly, this Court finds that § 1252(a)(2)(B)(ii) does not divest this Court of subject matter jurisdiction over Plaintiffs’ claim that the adjudication of their applications for adjustment of status has been unreasonably delayed. Accord Huang, 2007 U.S. Dist. LEXIS 32276 at *10."
 
prayer for relief...

Looking at missingpa's original complaint, I feel I have made a mistake in Item "c" in my prayer for relief, Instead of "within a reasonable time period specified by this court", I should have said something like "within 30 days". How can the court enter an order like "adjudicate Plaintiff's application within a reasonable time period specified by this court"? I am implicitly assuming that the court will first determine the time period which it thinks is reasonable, and then issue the order that "adjudicate Plaintiff's application within 30 days or 60 days or whatever". Does it look like a minor issue that I should ignore, or should I file my second amended complaint?

52. WHEREFORE, in view of the arguments and authority noted herein, Plaintiff respectfully prays that the Defendants be cited to appear herein and that, upon due consideration, the court enter an order:
a. Assume jurisdiction over this matter.
b. Declare that the Defendants’ failure to act is illegal, arbitrary, capricious, and abuse of discretion.
c. Compel Defendants and those acting under them to perform their duty to act on completing Plaintiff’s name check and to adjudicate Plaintiff’s application for naturalization within a reasonable time period specified by this court.
d. Award Plaintiff reasonable costs of this suit.
e. Grant such other and further relief as this Court deems just and appropriate.
 
mt100 said:
Looking at missingpa's original complaint, I feel I have made a mistake in Item "c" in my prayer for relief, Instead of "within a reasonable time period specified by this court", I should have said something like "within 30 days". How can the court enter an order like "adjudicate Plaintiff's application within a reasonable time period specified by this court"? I am implicitly assuming that the court will first determine the time period which it thinks is reasonable, and then issue the order that "adjudicate Plaintiff's application within 30 days or 60 days or whatever". Does it look like a minor issue that I should ignore, or should I file my second amended complaint?

52. WHEREFORE, in view of the arguments and authority noted herein, Plaintiff respectfully prays that the Defendants be cited to appear herein and that, upon due consideration, the court enter an order:
a. Assume jurisdiction over this matter.
b. Declare that the Defendants’ failure to act is illegal, arbitrary, capricious, and abuse of discretion.
c. Compel Defendants and those acting under them to perform their duty to act on completing Plaintiff’s name check and to adjudicate Plaintiff’s application for naturalization within a reasonable time period specified by this court.
d. Award Plaintiff reasonable costs of this suit.
e. Grant such other and further relief as this Court deems just and appropriate.
Click to expand...

I think you did the right thing. The determination of what is a resonable time is in the court's discretion. I've seen courts giving USCIS up to 9 months to make the final determination. So from the court's standpoint, your prayer is more attractive. It also increases your chances to win the first round (MTD). And do not forget that you can set specific timeframe when you move for summary judgment. In MSJ you can ask court to order USCIS to make the decision within 30/15/whatever days.
 
LazyCis.

Thanks for your input.

Can you point me to the official version of "APA provision" that you are quoting here. I want to read it, before forcing my attorney to file an amendment to prayer.

Also I looked at MissingPa's complaint. In his prayer, the first point says:
(a) requiring Defendants Michael Chertoff, Emilio T. Gonzalez, and Paul Novak and those acting under them to request expedited name checks on the Plaintiffs with the FBI immediately;

Well now a days even "expedite request" takes at least few months to clear (if ever). Why should I ask court to seek 'expedited request' rather than asking them to do it in some stipulated amount of time such as 30 days? It is not unthinkable that once might just meander from "name check backhole" to "expedited name check blackhole".

I really would appreciate your opinion/help on above 2 points.

lazycis said:
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
Click to expand...
 
Sample document for filing case against USCIS

Hi

I am new to the forum.

I filed N400 in July 2005 for my wife and myself. We both had finger printing and interview by Jan - 2006. She got her letter for oath in mid-Feb-2006 but I am still waiting for FBI name check to be cleared.

I understand that I need to file a civil case in local District Court to keep the file moving by FBI and USCIS.

I downloaded the forms. But are there any samples for the papers that need to be filed. That will make the things easier for me.

Thanks,

-Naveen
 
WhyThisDelay said:
LazyCis.

Thanks for your input.

Can you point me to the official version of "APA provision" that you are quoting here. I want to read it, before forcing my attorney to file an amendment to prayer.

Also I looked at MissingPa's complaint. In his prayer, the first point says:
(a) requiring Defendants Michael Chertoff, Emilio T. Gonzalez, and Paul Novak and those acting under them to

Well now a days even "expedite request" takes at least few months to clear (if ever). Why should I ask court to seek 'expedited request' rather than asking them to do it in some stipulated amount of time such as 30 days? It is not unthinkable that once might just meander from "name check backhole" request expedited name checks on the Plaintiffs with the FBI immediately;to "expedited name check blackhole".

I really would appreciate your opinion/help on above 2 points.
Click to expand...

We are talking about 5 USC 555(b)
"With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. "
and 5 USC 706(1)
"To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall
compel agency action unlawfully withheld or unreasonably delayed;
"

As you can see, 5 USC 706 leaves up to court to decide what is "reasonable time" in every particular case. It does not specify the timeframe for an agency to perform the required action. In regard to processing of AOS application, it could be months, in regard to request for expedited processing of the name check it could be hours or a few days (i.e. the initial request, the rest of the process could take weeks, as you just said). That's why it may be OK to ask court to compel USCIS to request expedited name checks immediately, but it is not OK to ask for immediate adjudication.

As for requesting court to compel USCIS to adjudicate your application within a certain timeframe, I am not against it, but being a generous person, I'd rather give court an opportunity to set that timeframe.
Also, please keep in mind that lawyer is not my primary job. I am a programmer so I can be wrong in my legal conclusions (as oppose to logical conclusions).
 
njain1 said:
Hi

I am new to the forum.

I filed N400 in July 2005 for my wife and myself. We both had finger printing and interview by Jan - 2006. She got her letter for oath in mid-Feb-2006 but I am still waiting for FBI name check to be cleared.

I understand that I need to file a civil case in local District Court to keep the file moving by FBI and USCIS.

I downloaded the forms. But are there any samples for the papers that need to be filed. That will make the things easier for me.

Thanks,

-Naveen
Click to expand...

Welcome to che club, Naveen.
The sample N400 suit (1447b petition in your case) can be downloaded from the first page:
http://boards.immigration.com/showthread.php?t=194681

or here is a direct link
http://boards.immigration.com/attachment.php?attachmentid=13567&d=1134252007

The first page is a good place to start. You do not have to read thru the rest of the pages, just post your questions as you go thru the process.

What district are you in?
 
OPP. brief

I have started to prepare my Response to the expected MTD that the defendants will file in about 3 weeks. Using lazycis's post #12465, I am planning to add the following into my OPP.brief.

There is ‘‘no per se rule as to how long is too long’’ to wait for
agency action, In re Int’l Chem. Workers Union, 958 F.2d at
1149, but a reasonable time for agency action is typically
counted in weeks or months, not years. See Midwest Gas
Users Ass’n v. FERC, 833 F.2d 341, 359 (D.C. Cir. 1987)

Does the format and matter look appropriate to use it in the OPP.brief? I am specifically concerned about the citations of the example cases (highlighted in red). I know they are required to be in some specific format.
 
SLIS said:
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! :)
Click to expand...
SLIS, I was just sharing my experience of communication with AUSA. It's a good point that one can file MSJ anytime after MTD is denied, I did not realize it before contacting AUSA.
Also I would like to add that every time I deal with AUSA I do realize that he/she only represents interests of USCIS/FBI/DHS and those interests are contrary to mine. But at least it's nice to be polite and save each other's time :)
 
dear friends:
I started to follow this forum several months back. if is encouraging to see so many people going through the pain and win. Now I have decided to stop waiting and fight for my right. I have been waiting for almost 3 years after I got my I-485 receipts. a lot of happiness are deprived from my family because of this painfull waiting.
I have one question that needs you guys help. I filed a complaint in court several days back and now I need to serve the complaints and summons to the defendents. could you help on what the exact addresses I need to serve for Secretary of DHS, director of USCIS and director of USCIS, NSC. thanks a million.

My info:
EB2 (China)
I485 RD ---- 12/04
 
eagle69 said:
I have one question that needs you guys help. I filed a complaint in court several days back and now I need to serve the complaints and summons to the defendents. could you help on what the exact addresses I need to serve for Secretary of DHS, director of USCIS and director of USCIS, NSC. thanks a million.
Click to expand...

Wow, our I-485 apps were filed in the same time frame.... Anyway, here're the addresses you would need to mail the complaints + summons:

Alberto Gonzales, United States Attorney General
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, D.C. 20530-0001

Michael Chertoff, Secretary of DHS
Office of the General Counsel
U.S. Department of Homeland Security
Washington, D.C. 20528

Robert S. Mueller, Director
Federal Bureau of Investigation
J. Edgar Hoover Building
935 Pennsylvania Ave., NW
Washington, D.C. 20535-0001

Emilio T. Gonzalez, Director
U.S. Citizenship and Immigration Services
Department of Homeland Security
425 Eye Street, NW
Washington, D.C. 20536

Gerard Heinauer, District Director -- only if you're through NSC and if not, swap this with the one for your service center
Nebraska Service Center
U. S. Citizenship and Immigration Services
850 S. Street
Lincoln, NE 68501

And of course, you'll also need to send a copy of everything to the U.S. Attorney's Office in your district court.

Good luck and prepare for the long haul. ;)
 
delta345 said:
Also I would like to add that every time I deal with AUSA I do realize that he/she only represents interests of USCIS/FBI/DHS and those interests are contrary to mine. But at least it's nice to be polite and save each other's time :)
Click to expand...

Absolutely. :)
 
njain1 said:
Hi

I am new to the forum.

I filed N400 in July 2005 for my wife and myself. We both had finger printing and interview by Jan - 2006. She got her letter for oath in mid-Feb-2006 but I am still waiting for FBI name check to be cleared.

I understand that I need to file a civil case in local District Court to keep the file moving by FBI and USCIS.

I downloaded the forms. But are there any samples for the papers that need to be filed. That will make the things easier for me.

Thanks,

-Naveen
Click to expand...

Naveen,

Attached is a format for your template for the complaint. Use this and simply edit the paragrpahs. You can see other complaints on pacer to update this. Its not very complicated may be about 1/2 day job. When you have your complaint ready, just do the following:

Assuming you are in NJ (for other states, go to your district court website): You need the following

1. First Civil cover sheets for your court is a fillable PDF at: http://www.njd.uscourts.gov/forms/JS44.pdf

2. Summons for your court is a fillable PDF at: http://www.njd.uscourts.gov/forms/ao440.pdf

3. Exhibits and WOM: I would suggest that you carefully study the WOM you prepared and look at at least 5 or 6 other WOMs on cases almost identical to yours then finalize your WOM. You will find that in this process the other WOMS you read have indeed used exhbits like letters to senators, FOIPA, INFOPASES etc. In WOM it is very important to show that you tried everything and no Administrative remdies are left. Unless its a 1447b N400 case, WOM must include a lot of exhibits to show to the judge that you tried to resolve this. The danger is waiting till MTD is that the judge may just dismiss your case even without waiting fro MTD if he finds the complaint is light. I dont know that this has happened but certainly a possiblity, So make complaint good and forceful.

Copies: say you have X number of defendants.

Then
The number of copies of complaints you need = X + 1 AUSA + 2 court + 1 your copy so X+4.

The number of copies of Exhibits you need = X + 1 AUSA + 2 court + 1 your copy so X+4.

The number of Summons you need = 2 * X + 2 AUSA
ie 2 sets of X+1 Summons. One set you actually send to defendants and AUSA, the other set you file back to court with RETURN SERVICE PAGE FILLED
Make sure Court Clerk stamps both sets of X+1 copies ie 2 *(X+1) copies of suimmons shuld be stampled by the court clerk. When you file return of service you need to file the other set of X+1 copies with retune service filled.

Take a stapler, a whitener in you bag in case you need to change something on a document.

You need to go to the court clerks office when you go to the court
 
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