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

[worried2007]

lazycis

I agree with the lawyer. There will be no trial in your case, that's for sure. Expect to be a citizen within 2 months of filing the suit.

do u forsee any complications for me , can they deny my application just for retaliation purposes or would the judge deny my case because its only 120 days and other people sometimes wait years and consider me impatient and give immigration all the time they need to resolve my case?

 

[lotechguy]

do u forsee any complications for me , can they deny my application just for retaliation purposes or would the judge deny my case because its only 120 days and other people sometimes wait years and consider me impatient and give immigration all the time they need to resolve my case?

No. Basically your attorney will talk to AUSA and work out an oath schedule for you.

 

[lazycis]

I agree with lotechguy.

 

[lazycis]

hey lazycis..i asked ur suggestion 2 days ago about going for a lawsuit and u asked me what area..i am from..
first sorry for late reply..
i am from new hampshire
i dont know which district..and please help me where to satrt?
do i need a lawyer?

So your district is NH. That's not bad. You have a good chance to prevail. If you can afford a lawyer and do not have time to do it yourself, get one. Otherwise, do not be scared to go Pro Se. We'll help.
Here is a sample complaint
http://boards.immigration.com/attachment.php?attachmentid=16571&d=1182786004
Check the first page of this forum and this page as a starting point
http://en.wikibooks.org/wiki/FBI_name_check

 

[xiaocao]

Hey, Xiaocao,

You do not have to put anything in No.6 as it is only for bankruptcy cases. Amicus does not relate to you as well. Amicus is related to a third party which is not involved in the case directly. For example, AILA can file an amicus brief to support your position, if it wants to.

Wish you the best.

Thank you very much for your advice.

Xiaocao

 

[mt100]

OK-Boy,
I decided to share my pleading with this forum after removing all personal info from it, so that it can benefit others too, in addition to you. I expect there will be quite a number of N-400 NO INTERVIEW cases now, as since April 2006, USCIS stopped interviewing N-400 applicants whose name check is not complete.

Please note that it was my "First Amended" pleading, so I removed the first couple of lines, so that you can simply use it as "Original" pleading.

Please feel free to contact me via PM if you need any help. I am hoping my case will resolve soon, but I will still be around in the forum after my case is resolved. Until this point, USCIS has caused too much damage for me, and I hope they schedule my interview soon and don't cause any more delay in approving my naturalization. If any of you can, do pray for me. This is not over till I take my oath.

 

[w&w]

In response to my request for documents I received about 1000 pages worth of useless USCIS-FBI communication and about 300 pages of some power point presentation which was completely blacked out. Oh by the way my wife's name check cleared in 4 days. Mine had a hit and they don't know what happened after Sept. 2004....

AGC4ME,

Would you mind sharing how you did request for documents? Did you file the request to the court or did you just communicate it with the AUSA? I'm thinking of doing it but I couldn't find any examples in PACER.

 

[AGC4ME]

AGC4ME,

Would you mind sharing how you did request for documents? Did you file the request to the court or did you just communicate it with the AUSA? I'm thinking of doing it but I couldn't find any examples in PACER.

w&w, it is done with the AUSA. The court allows the parties 120 days from the date of filing of complaint to ask for documentation from each other in order to arrive at a common set of facts. My AUSA is a nice guy and he in fact has helped me out with some documents. For example all our cases are probably priority level 3 which is Routine requests from major customers with no specific deadline.

How to request it ?
Just like how you filed the complaint. The caption should be REQUEST FOR DOCUMENTS. and you can list all the documents you want. But be very specific. My queries were dismissed by USCIS as being too vague. I wanted statistical information which they said would be too difficult to compute.

 

[AGC4ME]

Sample document request

Here's sample documents request.

 

[AGC4ME]

Vermont for u

Here we go. MTD Denied in VT.

 

[zlcjf]

Giving AUSA more time is OK only if he is working to resolve your case. Otherwise you just give him/her more time to prepare and prolong your case which is not in your best interest.

Thanks, lazycis. Do you have an example file of opposition motion to extesion of time?

I am also preparing my opposition for MTD. The AUSA I am against had recently persuaded several judges to dismiss WOM cases due to "no subject matter jurisdiction" Here are the main arguements from AUSA:

"The court lacks subject matter jurisdiction to grant mandamus because 8 U.S.C & 1252(a)(2)(B)(ii), divests courts of jurisdiction to review discretionary action of USCIS. ...pursuant to 28 U.S.C.&1367, plaintiff has no clear right to immediate adjudiction...pursuant to 5 U.S. C. $701(a((2), APA precludes the Court from reviewing Plaintiff's claim"

I see examples how to argue about discretionary action. However, the court decided that "USCIS has submitted that it will continue to perform any outstanding background and security checks as expeditiously as possible"..the Court simply cannot find nor conclude on these factos that the delay or slow pace is ...a failure to adjudicate or process". Apparently, they dont consider FBI is the main reason for dealy and USCIS is doing whatever they can. What should I argue about that? Do you have good examples against APA and immediate adjudiction arguments?

 

[lazycis]

Thanks, lazycis. Do you have an example file of opposition motion to extesion of time?

I am also preparing my opposition for MTD. The AUSA I am against had recently persuaded several judges to dismiss WOM cases due to "no subject matter jurisdiction" Here are the main arguements from AUSA:

"The court lacks subject matter jurisdiction to grant mandamus because 8 U.S.C & 1252(a)(2)(B)(ii), divests courts of jurisdiction to review discretionary action of USCIS. ...pursuant to 28 U.S.C.&1367, plaintiff has no clear right to immediate adjudiction...pursuant to 5 U.S. C. $701(a((2), APA precludes the Court from reviewing Plaintiff's claim"

I see examples how to argue about discretionary action. However, the court decided that "USCIS has submitted that it will continue to perform any outstanding background and security checks as expeditiously as possible"..the Court simply cannot find nor conclude on these factos that the delay or slow pace is ...a failure to adjudicate or process". Apparently, they dont consider FBI is the main reason for dealy and USCIS is doing whatever they can. What should I argue about that? Do you have good examples against APA and immediate adjudiction arguments?

If you asked for immediate adjudication in your complaint, amend your complaint and ask court to compel USCIS to adjudicate your AOS within a reasonable time as required by 5 USC 555(b).

I do not have a sample for an opposition to motion for enlargement of time, but it should be pretty simple. Mention that 1) one extension for 60 days has been already granted; 2) the nature of the case is time-sensitive (agency delay) and that you are sufferring unrepairable injury because of the delay; 3) you will need to pay for EAD/AP extension which will cost you such and such amount if the case is not resolved by such a date.

 

[thanksuscis]

Expedited namecheck not complete in 3 months?

Thank you AGC4ME.

She is offering to file a joint motion if I want, but advises against it,
saying that my case is being treated as if there was court litigation anyway.
She sent me a USCIS fax where a request to expedite my namecheck was
approved on July 16th. It is unbelievable that 3 months is not enough
to complete an expedited namecheck but I guess that is the case.

The reason I am still thinking about it, is if namecheck was to complete
soon, and I had the case reopened, USCIS won't be able adjudicate my
case, because it would be in court's jurisdiction. So then I'd have to
withdraw it again to let USCIS adjudicate it, or wait for judge ruling?
I think I read somewhere that there are limits as to how many times a
complaint can be reopened or withdrawn. I may be wrong, but I'm trying
to consider all the possible paths this can take carefully.

Without prejudice means that you can either open it or you can file a new case. Man if your AUSA offers to file a joint motion to reopen, grab it with both hands and do it immediately. Have him do the work of creating the motion and just sign it.

 

[thanksuscis]

Voluntary dismissal text

Yes, I was carried away and impressed when AUSA called me and trusted
her. I was being an idiot. It would have been a much better option to
have her file a promise to adjudicate with the court.

Here is what I put in voluntary dismissal:

COME NOW XXX Plaintiff, PRO SE, hereby voluntary dismisses this cause of action, without prejudice, pursuant to Rule 41 of FRCP. Plaintiff was informed by XXX, AUSA, that USCIS received the results of background checks, and is prepared to proceed with adjudication. Thus Plaintiff no longer wishes to pursue his claims as set forth in the compliant.

Wow! How blindly you trusted AUSA when he said that they cleared your name check. I am mad!!! Why did you do that dear??? I mean you can see what a mess CIS is just by visiting this forum. You should have atleast made an infopass appoinment and find out by yourself or should have called the 800 number and talked to the IO.

Anyway, if you closed the case WITHOUT prejudice, then, there is no problem. You can re-open it any time. But if you did either a joint dismissal or dissmissal with Fed rule 41, then, you may have problem because this means that you closed it WITH prejudice, which means that you can not re-open the case. How did you do the dissmissal?? And did AUSA send you anything at that time that USCIS is ready to adjudicate your case??

 

[thanksuscis]

Thanks for the excellent comments and attachments Screaming_Eagle.
I absolutely agree with you that the judicial system really works,
e.g. in response to my complaint 1447b filed on July 2nd,
they expedited my namecheck on July 16th.

See comments in red. good luck.

 

[w&w]

w&w, it is done with the AUSA. The court allows the parties 120 days from the date of filing of complaint to ask for documentation from each other in order to arrive at a common set of facts. My AUSA is a nice guy and he in fact has helped me out with some documents. For example all our cases are probably priority level 3 which is Routine requests from major customers with no specific deadline.

How to request it ?
Just like how you filed the complaint. The caption should be REQUEST FOR DOCUMENTS. and you can list all the documents you want. But be very specific. My queries were dismissed by USCIS as being too vague. I wanted statistical information which they said would be too difficult to compute.

Thank you AGC4ME. How long did it take to receive the documents? I want to file MSJ as early as possible but the AUSA hasn't filed the answer yet. He seems to be nice but every time I asked about the answer he said he's too busy. He also said that the absence of the answer doesn't impede the process. I think getting some documents from the defendants will help my MSJ.

 

[AGC4ME]

Thank you AGC4ME.

She is offering to file a joint motion if I want, but advises against it,
saying that my case is being treated as if there was court litigation anyway.
She sent me a USCIS fax where a request to expedite my namecheck was
approved on July 16th. It is unbelievable that 3 months is not enough
to complete an expedited namecheck but I guess that is the case.

The reason I am still thinking about it, is if namecheck was to complete
soon, and I had the case reopened, USCIS won't be able adjudicate my
case, because it would be in court's jurisdiction. So then I'd have to
withdraw it again to let USCIS adjudicate it, or wait for judge ruling?
I think I read somewhere that there are limits as to how many times a
complaint can be reopened or withdrawn. I may be wrong, but I'm trying
to consider all the possible paths this can take carefully.

Here's a suggestion. Try to find out how much time you have to reopen this case again, may be ask your AUSA. Also find out if you can file a new complaint since you specified without prejudice, again may be ask AUSA. Then tell the AUSA that you are willing to wait xx days before exercising your option of reopening or filing a new one.

Since yours is a nat. case, even the courts could nat. you. So once you file the case the jurisdiction goes to the court. It can order FBI to complete the name check expeditiously and nat. you. Read Al-Kudsi opinion. The Court even offered the Plaintiff to set a date convenient for him to be naturalized. This country right now runs because of efficient judiciary not because of efficient bureaucracy. So if the court has jurisdiction over your case, I would rather do it ASAP. Remember the court has to deal with your case only and may be a few other nat. cases whereas USCIS handles hundreds of thousands. Which one would you think would be more responsive and efficient.

 

[AGC4ME]

Thank you AGC4ME. How long did it take to receive the documents? I want to file MSJ as early as possible but the AUSA hasn't filed the answer yet. He seems to be nice but every time I asked about the answer he said he's too busy. He also said that the absence of the answer doesn't impede the process. I think getting some documents from the defendants will help my MSJ.

Submitted the request in August first week. Got it in about a month, day before yesterday.

 

[Bou]

I'm thinking about writing a letter to Ombudsman regarding excessive nc delay, mine has been pending 46 months, he's been talking about some immediate resolution for cases pending 33+ months, don't know how much effect it will have. My WOM still waiting judge rule on MTD for 5 months now. I'm too stressed out, need do whatever possible to resolve the case. How do you guys think? Paz, Lotechguy, Lazycis, GC4ME and other active members, what should I do?

I agree with lotechguy.

 

[lotechguy]

I'm thinking about writing a letter to Ombudsman regarding excessive nc delay, mine has been pending 46 months, he's been talking about some immediate resolution for cases pending 33+ months, don't know how much effect it will have. My WOM still waiting judge rule on MTD for 5 months now. I'm too stressed out, need do whatever possible to resolve the case. How do you guys think? Paz, Lotechguy, Lazycis, GC4ME and other active members, what should I do?

Bou,
My attorney had told me to continue all efforts like letter writing etc in paralel with the law suit. So I kept writing to senators, first lady ect eevn while law suite was in progress.