Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
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Paz1960 and gurus on naturalization cases,
I have an AOS case. So, that's what I've been focusing on up to this point.
Now, I have a friend who wants to file a citizenship case. He's had an interview and his name check has been pending for 2 years now. I'd like to give him some help if possible.
Do you know if shvili posted her complaint as a sample? I can't seem to find it. Any pointer to a recent sample complaint would be greatly appreciated.
I do not recall Shvili posting her husband's complaint. Your best bet would be to get a recent victorious sample from the pacer (i.e. Civ. No. 07-2017, D.Minnesota).
I am new to the forum and see a lot of good suggestions from other members.
I recently filed WOM due to a 3.5-year delay in AOS and just received AUSA’s motion to dismiss which seems a typical one. I am in preparation of the opposition.
1. What is the timeline before which I have to file the opposition?
2. In Motion to dismiss, AUSA wrote: “ Plaintiffs also seek attorney’s fees and cost pursuant to 5 U.S. C. §504 and 28 U.S. C. § 2412. Gonzales denies that Plaintiff, who are currently proceeding pro se, are entitled to attorney’s fee and costs pursuant to the cited statutes.” I am currently pro se, but may hire an attorney later on depending on the process of the lawsuit, therefore in the prayer of the complain, attorney fee was mentioned. How should I respond to this point in the opposition?
Thanks a lot.
I recently filed WOM due to a 3.5-year delay in AOS and just received AUSA’s motion to dismiss which seems a typical one. I am in preparation of the opposition.
1. What is the timeline before which I have to file the opposition?
2. In Motion to dismiss, AUSA wrote: “ Plaintiffs also seek attorney’s fees and cost pursuant to 5 U.S. C. §504 and 28 U.S. C. § 2412. Gonzales denies that Plaintiff, who are currently proceeding pro se, are entitled to attorney’s fee and costs pursuant to the cited statutes.” I am currently pro se, but may hire an attorney later on depending on the process of the lawsuit, therefore in the prayer of the complain, attorney fee was mentioned. How should I respond to this point in the opposition?
Thanks a lot.
That's a good point! I'll check out the one you referenced and maybe a couple more from pacer then. Thanks, Lazycis!
gcwom,
1. It depends on local rules. Usually two weeks+3 days if MTD was served by mail. Check you case in pacer an you may be able to see when the answer is due.
2. There is no question that your are entitled to the costs of court under those statutes. As for attorney fees, I do not see why the explanation you just provided would not do. It's good enough and the issue is not worthy more than a couple of sentences in your opposition.
I need help on Informal Brief
Dear all,
I am new member. I have learnt a lot from this Forum. Thanks for your information.
My GC petition situation:
I-140 filed in Sep. 2002, EB1, Approved in 2005.
I-485 filed in Sep. 2003, is still pending
I filed a Complaint in this March, Pro Se, which finally got dismissed in July.
I filed a Notice to Appeal. Now I have been requested to file a Informal Brief.
I have tried to hire an attorney to handle my case, but I am unable to afford to it, as they have asked for $5,000 to $10K.
My family and I have been very frustrated. I want to give up. The only stoped me is my children.
I am seeking you help on how to write the Brief. Any help and information related will be greatly appreciated.
Have a nice weekend.
Dear all,
I am new member. I have learnt a lot from this Forum. Thanks for your information.
My GC petition situation:
I-140 filed in Sep. 2002, EB1, Approved in 2005.
I-485 filed in Sep. 2003, is still pending
I filed a Complaint in this March, Pro Se, which finally got dismissed in July.
I filed a Notice to Appeal. Now I have been requested to file a Informal Brief.
I have tried to hire an attorney to handle my case, but I am unable to afford to it, as they have asked for $5,000 to $10K.
My family and I have been very frustrated. I want to give up. The only stoped me is my children.
I am seeking you help on how to write the Brief. Any help and information related will be greatly appreciated.
Have a nice weekend.
Welcome to the forum. Can you tell us which circuit you are in ?
Lazycis, Thank you very much for your advice!
xiaocao,
I am in process of appeal myself. Feel free to use my brief which is posted on page 400, or just click here:
http://www.immigrationportal.com/attachment.php?attachmentid=16658&d=1184176069
The sample brief is formatted to comply with the rules of appellate procedure.
Another document of interest is here:
http://www.immigrationportal.com/attachment.php?attachmentid=16800&d=1186592058
Feel free to ask any questions, as I filed the notice of appeal on May 16th and is currently working on the reply brief to the appellees brief.
What is your timeline?
Thank you sooooo much, Lazycis!
I got your Brief. It is really solid. It should be a good reference for mine. I may only need to find some positive cases in the Forth Cricuit.
The dealine for the Informal Brief is on Sep. 3rd.
The dealine for "Disclosure of Corporate Affiliations and Other Entities With A Direct Financial Interest in Litigation" is on Aug.26.
I do not know if I need to fill out the latter one, if I do not hire an attorney.
thanks for your advice.
Xiaocao
You are welcome. I would not be able to write such brief without the help of this forum.
I did not have to file informal brief, that's a local rule for your circuit. So the form may be different, but you should be able to figure it out.
You may also consider filing a motion to expedite the appeal as it's a long process. Let me know if you need a sample.
You do need to file a corporate disclosure, it's only for organizations.
All the best,
lazycis
Interesting N-400 No interview mandamus case.
Lazli et al v. McNamee
The judge granted MSJ and also awarded attorney fees of $37,000+
USCIS complied with the court order to adjudicate the N-400, but denied him naturalization(see attachment). Along with other reasons to come to the conclusion, they specified that he failed to declare the following incidences:
1) Unlawful or Unsignaled Turn. Records do not provide a disposition of this charge, nor any sentence, fine, or restriction related to this charge.
2) Improper Display Valid Sticker. Records do not provide a disposition of this charge, nor any sentence, fine, or restriction related to this charge.
This seems scary....
When I was filling out my N-400 form, I called USCIS and asked if I needed to mention the traffic violations, as I did not recall the dates when I got the tickets. The officer said, there is no need.
What do you guys think? Should I do my investigation on the traffic tickets proactively? I recall I got my first traffic ticket about 14 years ago in Florida !! Anybody knows how to find out this info from the different traffic courts?
Lazli et al v. McNamee
The judge granted MSJ and also awarded attorney fees of $37,000+
USCIS complied with the court order to adjudicate the N-400, but denied him naturalization(see attachment). Along with other reasons to come to the conclusion, they specified that he failed to declare the following incidences:
1) Unlawful or Unsignaled Turn. Records do not provide a disposition of this charge, nor any sentence, fine, or restriction related to this charge.
2) Improper Display Valid Sticker. Records do not provide a disposition of this charge, nor any sentence, fine, or restriction related to this charge.
This seems scary....
When I was filling out my N-400 form, I called USCIS and asked if I needed to mention the traffic violations, as I did not recall the dates when I got the tickets. The officer said, there is no need.
What do you guys think? Should I do my investigation on the traffic tickets proactively? I recall I got my first traffic ticket about 14 years ago in Florida !! Anybody knows how to find out this info from the different traffic courts?
Don't worry
While the misrepresentations you have made to USCIS regarding travel and law enforcement issues may not have necessarily disqualified you from naturalization, together they build a picture of an applicant who is not forthcoming with facts relevant to his eligibility for naturalization. What did him was the failure to disclose his trip to Algeria.
While the misrepresentations you have made to USCIS regarding travel and law enforcement issues may not have necessarily disqualified you from naturalization, together they build a picture of an applicant who is not forthcoming with facts relevant to his eligibility for naturalization. What did him was the failure to disclose his trip to Algeria.
lazycis, thank you very much.
Excuse me, you may meant that I do not need to file out the Disclosure form that came with the Informal Brief form, as you said it's only for organization.
Actually, the Attorney of the US has moved very fast. I have received his "Appearance of Counsel From", which should be done before Aug. 28.
If I turn in the Informal Brief, I may get some thing back within several days. The problem is that I do not know how to wirte it and how far I have to go. I have wanted to give up and withdraw the appeal, as I have been totally exhausted. we do not have anything knowledge about the law and procedure of the lawsuit. The references or samples we got were very limited.
Today, I am so happy to be a number of this forum and have received help from the some people here, like you. I do feel some relief.
I am going to write the Informal Brief first, then send to you. I would very much appreciate if you could have a look and give me some suggestions about it.
I upload the Form here, which I got from the Fourth Court.
Thank you very much.
Xiaocao
vcs_victim
Registered Users (C)
AUSA's Reply to my MSJ
Hello all,
AUSA filed her reply to my MSJ on 08/15. She filed 3 exhibits with her reply. The first one is the classical Declaration of Michael A. Cannon explaining about the namecheck fiasco. More concerning is the other two exhibits. She used two very recent cases' orders granting the government's MTD. The cases are:
Mohammad Eldeeb v. Michael Chertoff et. al. 8:07-cv-236-T-17EAJ, Order Date: 07/30/07
Sergey Borisov et. al. v. Robert R. Gonzales et. al. CV 06-8240-VBF(JWJx), Order Date:08/03/07
Has anyone encountered these cases?
Any idea about how to attack the judges' reasonings about the courts not having the juristiction based on all relevant statutes (mandamus, apa, etc.)?
I want to file my brief to her opposition to my MSJ and any help from the members would be greatly appreciated.
Thanks,
vcs_victim
Hello all,
AUSA filed her reply to my MSJ on 08/15. She filed 3 exhibits with her reply. The first one is the classical Declaration of Michael A. Cannon explaining about the namecheck fiasco. More concerning is the other two exhibits. She used two very recent cases' orders granting the government's MTD. The cases are:
Mohammad Eldeeb v. Michael Chertoff et. al. 8:07-cv-236-T-17EAJ, Order Date: 07/30/07
Sergey Borisov et. al. v. Robert R. Gonzales et. al. CV 06-8240-VBF(JWJx), Order Date:08/03/07
Has anyone encountered these cases?
Any idea about how to attack the judges' reasonings about the courts not having the juristiction based on all relevant statutes (mandamus, apa, etc.)?
I want to file my brief to her opposition to my MSJ and any help from the members would be greatly appreciated.
Thanks,
vcs_victim
The whole point of sending the warnings (notice of legal action) is to later add those as exhibits to the complaint. Any response from the agencies can be hardly expected. The only use is to demonstrate the plaintiff’s last attempt to settle the case prior to going to court. Judges are believed to be appreciative when plaintiffs truly exhaust all means they have and use litigation as the last resort.Hello
LazyCIS told me that my case is strong and I do not need to collect evidence about trying to solve my N400 in a peaceful way - I had interview on 1/31/06, case is still pending in security checks.
I've sent out the drafts to USA and local CIS, just received the certified slip back from USA office.
NOw... I've been reading this board for the last 3 weeks (I'm still on page 220 in October of last year
I promised to file in 30 days in the warning. Can I file 1447b before 30 days expired ? or it'll make USA mad ? or maybe nobody is really looking at those drafts in USA office ?
thanks
Best of luck,
snorlax
I have read through Eldeeb
Here's the conundrum in Eldeeb judgment
To summarize, CIS has a non-discretionary duty to act on an application, a discretionary duty as to the pace of processing the application, and a non-discretionary duty to adjudicate an application.
so if CIS had complete discretion over pace of processing then it can effectively nullify the other 2 non-discretionary duties (act on an application and adjudicate an application). Eldeeb actually had a hit in the FBI database "The IBIS
check showed a "hit" for Eldeeb as a "possibly excludable alien smuggler."". In your case was that true ?
To conclude the court says CIS is doing whatever it can but it depends on FBI for nc clearance. Since FBI is separate from CIS and since the FBI does not owe the applicant any duty there is no jurisdiction on FBI. So the Court is deviating from normal assumption that the duty for CIS subsumes FBI also.
So there are many things that can be pointed out in Eldeeb.
I have not read the other case. will do that tomorrow.
Here's the conundrum in Eldeeb judgment
To summarize, CIS has a non-discretionary duty to act on an application, a discretionary duty as to the pace of processing the application, and a non-discretionary duty to adjudicate an application.
so if CIS had complete discretion over pace of processing then it can effectively nullify the other 2 non-discretionary duties (act on an application and adjudicate an application). Eldeeb actually had a hit in the FBI database "The IBIS
check showed a "hit" for Eldeeb as a "possibly excludable alien smuggler."". In your case was that true ?
To conclude the court says CIS is doing whatever it can but it depends on FBI for nc clearance. Since FBI is separate from CIS and since the FBI does not owe the applicant any duty there is no jurisdiction on FBI. So the Court is deviating from normal assumption that the duty for CIS subsumes FBI also.
So there are many things that can be pointed out in Eldeeb.
I have not read the other case. will do that tomorrow.
The USCIS does have some discretion over the pace of adjudication, but it's not the absolute discretion.
If there is a non-discretionary duty to adjudicate a case, a plaintiff can require it to be completed within reasonable time. It's supported by SC in Norton case. Read also Forest Guardians v. Babbitt (10th Cir). There, the court distinguished between agency action "unlawfully witheld", which is when there is a statutory deadline (i.e. 1447(b)) and agency action "unreasonably delayed", which is what we have in other cases. If we are to accept that logic from Eldeeb, APA provisions become not enforceable. Also, how about the TRAC case. There is no question that FCC had a discretion about the pace of application processing, but nevertheless the DC Appellate court analyzed whether delay is unreasonable and came up with TRAC factors which are accepted as judicial standard in many Circuits. In other words, the absence of mandatory deadline doe not make non-discretional duty non-reviewable and non-enforceable by court.
As for the FBI part, there is a good case in our support: Kaplan v Chertoff, 06-5304, PAED, which I posted a few months back. It has two good points:
1.
"Here, there appears to be no single statute that, standing alone, expressly imposes a mandatory duty on the FBI to perform background checks. See Zaytsev v. Gantner, 2004 WL 2251665, at *1 (S.D.N.Y. 2004) (“The Zaytsevs have pointed to no authority demonstrating that the FBI owes a duty to conduct background checks, and this Court has found no such authority.”)."
The court concluded that Name check is indeed required for naturalization:
2.
"Under these limited circumstances, where Congress has conditioned CIS’s mandatory action on the FBI’s completion of background checks, and where applicants must pay the FBI, through CIS, to complete the background checks, the Court holds that Congress has, by implication, imposed on the FBI a mandatory duty to complete the background checks."
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