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

[lazycis]

Fifth Circuit Reverses Walji! (and joins 9th and 4th Cir. regarding 1447b)

Here we go:
"Further, we believe the definition of “examination” in § 1447(b) urged by the Government, which would permit virtually unbounded time to respond to naturalization applications, is contrary to the intended purpose of Congress in passing the Immigration and Nationality Act. A central purpose of the statute was to reduce the waiting time for naturalization applicants."
Judgment REVERSED; cause REMANDED.

 

[lazycis]

Thanks for taking the time to reply, Bou.

So what determines whether a MTD will be dealt with just through briefs or whether it will require a hearing? Any examples from the Northern District of CA?

It's up to the judge whether to schedule a hearing. Either party can request a hearing as well, but it's the judge's decision.

 

[AGC4ME]

Were you able to comply with page limitations

Yep. I cut out my history in the concise statement of facts. The page limits applied only to Concise statement of facts. My MSJ still ran 26 pages. BTW all the FBI documents should be scanned in PACER on Monday. Once it's there it's public domain. Anyone can use it right ? I won't be accused of leaking out anything ?

 

[AGC4ME]

Here we go:
"Further, we believe the definition of “examination” in § 1447(b) urged by the Government, which would permit virtually unbounded time to respond to naturalization applications, is contrary to the intended purpose of Congress in passing the Immigration and Nationality Act. A central purpose of the statute was to reduce the waiting time for naturalization applicants."
Judgment REVERSED; cause REMANDED.

There's still justice and hope for this country :-0). I'm also thrilled to see Al-Kudsi being mentioned by the appellate court. Gives me great hope.

 

[lotechguy]

Here we go:
"Further, we believe the definition of “examination” in § 1447(b) urged by the Government, which would permit virtually unbounded time to respond to naturalization applications, is contrary to the intended purpose of Congress in passing the Immigration and Nationality Act. A central purpose of the statute was to reduce the waiting time for naturalization applicants."
Judgment REVERSED; cause REMANDED.

This is Great News and a defining moment for this thread!! This judgement is more direct than the original 9th circuit judgement and of course more recent! Some things said by the judges here will no doubt be quoted in many cases to come!!! Thanks LazyCIS!

 

[greenpea]

"No motion date/time"

.

 

[AGC4ME]

I filed "motion for judgement on the pleadings" like 2 weeks ago. today got a letter from the court. it is a notice of document discrepancies, saying:

"upon the submission of the attached document(s),it was notied that the following discrepancies exist:

no motion date/time

order of the judge/magistrate judge:

it is hereby ordered:
the document is to be filed and processed. the filing date is ordered to be the date the document was stamped "received but not filed" with the clerk. consel is advised that any further failure to comply with the local rules may lead to penalities pursuant to local rule 83-7.
"

no motion date/time...does that mean I should have specified some motion date/time in my motion when all parties are to meet in the cournt..something like that?

is this letter a bad thing?

thanks,
greenpea

what district are you in ? Have u complied with all your district rules ?

 

[AGC4ME]

Hello,

My judge granted the Motion to Extend for 60 days and he sent out one more letter titled as "decision and order", saying that the defendants shall file their brief in reponse to my petition no later than that 60th day.

Does this "order" mean a final decision should be made at that time? i.e. if by that day USCIS/FBI it's still not finished, he will deny another Motion to Extend and make a decision for me to get natualized or not?

Thanks!

It appears that the decision and order applies to the order granting the motion to extend. What was the reason given by the AUSA for the extension. May be your AUSA is working to get your case mooted.

 

[Slow_CIS]

slow_CIS, which district court you belong?

I am in E.D. Mich but this can take place in any district. I just wanted to warn the members who have hired an attorney to show up in person for their hearings.
So far as I know, only one person can present the arguments for each side. But you always have the right to dismiss your attorney and hire another one or present yourself.

 

[setmefree]

So what determines whether a MTD will be dealt with just through briefs or whether it will require a hearing? Any examples from the Northern District of CA?

It's up to the judge whether to schedule a hearing. Either party can request a hearing as well, but it's the judge's decision.

Thanks for the reply, lazycis.

So I guess this is the big random factor in determining attorney costs. If everything is done just through filing briefs you might get away with just paying the basic retainer; but if the judge decides to ask for a hearing or the AUSA decides to -- then your attorney fees could shoot up.

 

[lazycis]

good case

Yep. I cut out my history in the concise statement of facts. The page limits applied only to Concise statement of facts. My MSJ still ran 26 pages. BTW all the FBI documents should be scanned in PACER on Monday. Once it's there it's public domain. Anyone can use it right ? I won't be accused of leaking out anything ?

Here is another case to cheer you up:
Dong v. Chertoff, Slip Copy, 2007 WL 2601107 N.D.Cal. Sep 06, 2007

MSJ granted to the Plaintiff. It has a very good discussion about a number of arguments, including "cut in line","national security requires the delay","agency burden", etc.

"The Court, however, is not in a position to relieve the defendants’ of their obligation to comply with their mandatory duties. Under the APA, a court “shall” “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). In this instance, it is not the place of the judicial branch to weigh a plaintiff’s clear right to administrative action against the agency’s burdens in complying."

 

[nc-pending]

Need advice

Greetings,
We filed lawsuit in July 2007 and recently Finger Printed 2nd time. AUSA informed us that our name check have cleared and we need to dismiss the case so the USCIS can resolve this case. So, I need advice how to proceed with my case , should I just dismiss it ?

Thanks,

1/2006 Applied for N-400
03/2006 1st FP
05/2006 IW - Told nc pending
07/2007 Filed lawsuit
09/2007 2nd FP
09/2007 AUSA told that nc cleared

 

[lazycis]

Greetings,
We filed lawsuit in July 2007 and recently Finger Printed 2nd time. AUSA informed us that our name check have cleared and we need to dismiss the case so the USCIS can resolve this case. So, I need advice how to proceed with my case , should I just dismiss it ?

Thanks,

1/2006 Applied for N-400
03/2006 1st FP
05/2006 IW - Told nc pending
07/2007 Filed lawsuit
09/2007 2nd FP
09/2007 AUSA told that nc cleared

I hope you asked to compel adjudication in your prayer. Tell AUSA that you'll dismiss the case as soon as your N-400 is adjudicated. In any case, agree to remand it back to the USCIS, but do not dismiss the case.

 

[purlban]

Oath Letter Received after 900 Days

Finally after waiting for almost 3 years my spouse received the oath letter. We have not filled 1447b but send letters and intent to letters three times to all the agencies involved. I am not sure if it is the normal processing or just one of the agencies received the letter help with the case.

Timeline:

N400:
PD: April-2005
Interview: Aug'2005
Second Fingerprinitng: (Do not remember the exact date but about 4 months ago)
Oath Letter Send: Sep'05,2007
Oath Ceremony: Sep'19, 2007
District: Sac, CA

 

[nc-pending]

Thanks McMahon . Yes, I will ask for it . I think I should not rely on verbal communications.

 

[nc-pending]

I hope you asked to compel adjudication in your prayer. Tell AUSA that you'll dismiss the case as soon as your N-400 is adjudicated. In any case, agree to remand it back to the USCIS, but do not dismiss the case.

Thanks lazycis for the response. But AUSA is saying that USCIS does not have jurisdiction and they can not decide until I dismiss the case . So, I am puzzled what to do now ?

 

[AGC4ME]

Great judgment

I liked the judges reasoning that violation of 8 C.F.R. 103.2(b)(18) conferring subject matter jurisdiction automatically. I read my memorandum again and found out that I didn't refer to 28 U.S.C. 1361 but simply Mandamus statute. I hope that it is only minor.

 

[AGC4ME]

Greetings,
We filed lawsuit in July 2007 and recently Finger Printed 2nd time. AUSA informed us that our name check have cleared and we need to dismiss the case so the USCIS can resolve this case. So, I need advice how to proceed with my case , should I just dismiss it ?

Thanks,

1/2006 Applied for N-400
03/2006 1st FP
05/2006 IW - Told nc pending
07/2007 Filed lawsuit
09/2007 2nd FP
09/2007 AUSA told that nc cleared

I wouldn't recommend dismissing the case. Request the judge to remand the case back to USCIS with a stipulation that your case will be adjudicated within certain time limit and that USCIS should present the court with a notice of compliance.

Or since your nc's have cleared, ask the court to naturalize you. The court has the jurisdiction to make you a citizen.

 

[AGC4ME]

Thanks lazycis for the response. But AUSA is saying that USCIS does not have jurisdiction and they can not decide until I dismiss the case . So, I am puzzled what to do now ?

Not true. Either AUSA is ignorant or is misleading you. Court can remand the jurisdiction back to USCIS but not necessarily dismiss the case.

 

[lazycis]

I liked the judges reasoning that violation of 8 C.F.R. 103.2(b)(18) conferring subject matter jurisdiction automatically. I read my memorandum again and found out that I didn't refer to 28 U.S.C. 1361 but simply Mandamus statute. I hope that it is only minor.

BTW, the Plaintiff is from China. Did the judge mention anything about visa numbers for October?