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

[lazycis]

Click "Go Advanced" button, there you can find management of attachment.

Nice to see you back, liuym. Can you PM TLong your case #? I think he can use your case in his appeal

There is no way to attach a file to PM.
TLong, you can upload brief to google documents and share it with me and Slow_CIS.

 

[TLongTLong]

Click "Go Advanced" button, there you can find management of attachment.

Thank you very much liuym! Please pardon my stupidity, but I didn't find the "Go Advanced" button in the private message window? Can you give me some more hinds about this? I don't major computer and I am really not good at this. Thanks!

 

[TLongTLong]

Nice to see you back, liuym. Can you PM TLong your case #? I think he can use your case in his appeal

There is no way to attach a file to PM.
TLong, you can upload brief to google documents and share it with me and Slow_CIS.

Thanks lazycis! I will be working on it. Hope I can figure it out. Also thanks to liuym! I appreciate if you would share your victory experience.

 

[TLongTLong]

I will be happy if I can provide any input.

Slow_CIS, I have just sent you a PM. I tried to upload my document on google document as recommended by lazy, but they do not accept PDF file. So I guess I better just directly send the documents to you if possible. Thanks!

 

[Slow_CIS]

Yes, they did file a motion to dismiss on 12/3. AILF provided a template to AUSA. I did not have much of a choice as I agreed that AILF will represent my interests. The circuit precedent was not in my favor. See Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001). I have mixed feeling about it because it was against my will.
Now Liu's case from the 3rd circuit becomes the first one in line.
Congrats on meeting the deadline. I know that you have much more important things to do.

If I understood correctly, the AILF was not just an amicus; it was your attorney representing you. If AILF was participating in that capacity, most probably you would not have been able to speak in the court, had you gone that far.
AILF did not respond to my request to file amicus, but their brief on your case just did the same contribution. Thanks to you.

 

[TLongTLong]

Slow_CIS, I have just sent you a PM. I tried to upload my document on google document as recommended by lazy, but they do not accept PDF file. So I guess I better just directly send the documents to you if possible. Thanks!

Thanks Slow_CIS! I have just sent the doc. to you. Since I am currently working on my reply brief and I am totally a layman on the law issue, any input from you and lazy and other friends here are highly appreciated.

 

[lazycis]

If I understood correctly, the AILF was not just an amicus; it was your attorney representing you. If AILF was participating in that capacity, most probably you would not have been able to speak in the court, had you gone that far.
AILF did not respond to my request to file amicus, but their brief on your case just did the same contribution. Thanks to you.

That how the court clerk explained it to me. She told me that I do not have to attend a hearing. I have little knowledge of the court procedures that's where professional attorney with experience could've helped me. Getting AILF brief out of this is better than nothing, but I have a feeling the government escaped this time... I think I should've pressed court to set aside the judgment of the district court even if the matter is moot.

 

[Slow_CIS]

I think you should've too. We certainly missed the chance to cite Lazycis v. Chertoff 495 F. 3d, 555 at 1252 (1st Cir. 2008) (finding that USCIS has a nondiscretionary duty to adjudicate adjustment of status applications within a reasonable time and nothing ever bars the court's jurisdiction to review the agency's inaction and procrastination)

 

[parsfalcon]

parsfalcon,
I had the same deliema and contacted an attorney for advice. He said only "without Prejudice" should be signed before Oath. If after Oath you can
sign "With Prejudice". The logic here is that till you actually get administered the Oath you have not got what you want ie "A final Decision by DHS" so you reserve the right to reopen the case. After the Oath you have got what you asked so case can only be dismissed with prejudice for sake of judicial economy.

thanks for your advise...

 

[liuym]

Lazycis

I have been here all the time. I found it is hard to leave this wonderful
forum even after your case is over. God bless you because HE want you
to be blessing to others. I am here to see I can do any help to other
NC victims and share their victory happiness.
I will PM TLong to see what help I can do.

Nice to see you back, liuym. Can you PM TLong your case #? I think he can use your case in his appeal

There is no way to attach a file to PM.
TLong, you can upload brief to google documents and share it with me and Slow_CIS.

 

[hyyz]

Seeking advice on filed WOM

I filed WOM on my I-485 delay due to NC on 11/21 by myself. On Dec.3, the judge sent me a letter and ordered the case to be referred to Magistrate Judge. I 'm not familiar with this. Is this a bad sign or a good sign? Shall I do anything?

I filed at Eastern District of Michigan. Thanks.

 

[TLongTLong]

The defendants' brief has been docketed and the due date for my reply brief is Dec. 28. I will be working on my reply brief next week and any input from you gentlemen are highly appreciated.
Thank you very much liuym! I have sent you an email.

 

[lazycis]

I filed WOM on my I-485 delay due to NC on 11/21 by myself. On Dec.3, the judge sent me a letter and ordered the case to be referred to Magistrate Judge. I 'm not familiar with this. Is this a bad sign or a good sign? Shall I do anything?

I filed at Eastern District of Michigan. Thanks.

It's neither good nor bad. Standard procedure. No need to do anything except preparing opposition to MTD. Tough district though..

 

[lazycis]

TLong

The defendants' brief has been docketed and the due date for my reply brief is Dec. 28. I will be working on my reply brief next week and any input from you gentlemen are highly appreciated.
Thank you very much liuym! I have sent you an email.

You main point should be to prove that the defendants have non-discretionary duty to process AOS. The process is not fully discretionaly as they say. Use Chevron analysis to show that the AUSA interpretation of 8 usc 1255 as giving the DHS unlimited authority regarding AOS is not reasonable and contradicts Congress intention. Use AILF brief filed in my case. And, of course, Iddir and Ahmed cases. Also, didn't your judge dismissed AUSA MTD first and stated that the court has jurisdiction and then reversed itself? You should use that also.

 

[Slow_CIS]

TLong

In addition to what lazy mentioned, I want to add a few things.
1- Your circuit is among the minority circuits interpreting the 1252 as baring jurisdiction in the intermediate steps of the discretionary relief which is fine. Your main thrust of your argument should be emphasis on inaction of the government. Inaction is not a discretionary action. You can use the relevant parts on AILF brief for lazy or Grinberg indicating that inaction cannot be within the plain meaning of inaction. You are not challenging any action but inaction.

2- To make Iddir and Ahmed case ineffective, the reply brief tries to make a distinction between "inaction" and "some action". It concedes that your case is “some action” and claims that Iddir’s was inaction. Remember that processing an application is continuous in nature, so "some action" is nothing but prolonged inaction following a very few actions at the beginning (fingerprints etc). You are indeed challenging the inaction part which is the name check.

3- They have distorted some facts in Iddir case. Iddir case was a lottery for Green card NOT citizenship. Furthermore, the lottery is equivalent to an approved I-140 with a current priority date. I-485 application still needs to be made. As in Iddir, USCIS in your case had the same obligation to process the adjustment. Remember in Iddir, it was the determination of the court that INS did not take a single step (no action). I am sure INS has not admitted so in Iddir court. That is what you are asking your own court to determine that their prolonged inaction in unjustified even in the light of their linguistic twist.

I have not finished reading the brief yet. If I come across with flaws in their argument, I will let you know. But in the interim, I suggest that you should summarize the main argument in the government brief into a few (maybe 5-6) bulleted items. Present those items to the forum, so you can get more focused responses to each particular item.

 

[Slow_CIS]

I filed WOM on my I-485 delay due to NC on 11/21 by myself. On Dec.3, the judge sent me a letter and ordered the case to be referred to Magistrate Judge. I 'm not familiar with this. Is this a bad sign or a good sign? Shall I do anything?

I filed at Eastern District of Michigan. Thanks.

Who is your judge? and what is the name of the magistrate judge the case was referred to?

 

[TLongTLong]

Thanks lazycis and Slow_CIS, I have marked your comments and will use these points in my writing.

 

[vasearcher]

My Citizenship

I have used your experiences in reference with obtaining my Citizenship and filed a Lawsuit against the USCIS and FBI back in November 2007. I have filed my N 400 and called for my face to face interview in Feb 16th, 2006. Since then my case has not been completed due to lack of answer from CIS representative and incompletion of my background check. I have received 2 email messages followd by phone call from US attorny office on Tuesdday Dec 11th, 2007 inviting me for a fresh fingerprint which was done yesterday December 13th 2007. In the meantime, as US Attorney is suggesting the FBI has completed my background investigation. CIS informs the US Attorney that once they receive updated fingerprint results, they will be ready to adjudicate my application. Please note that due to a recent change in the law in this court district (Alexandria District Court), my federal court lawsuit must be dismissed prior to CIS being able to actually adjudicate the application. The US Attorny can prepare and send me the appropriate forms, which we would both sign, and file with the Court. Can you tell me what would be the next step for me. It seems that I have to dismiss my case. What are the
guarantees that I would receive my citizenship. Is it appropriate to speak about my concerns to the US Attorny office or should I leave it this way that they contact me. My private email address is parirad1@aim.com. Please help.

Yours,

Paris

 

[TLongTLong]

In addition to what lazy mentioned, I want to add a few things.

Thanks Slow_CIS.
I think the main points in AUSA's brief are:

1. USCIS/FBI have absolute authority for how and when to process the application. Even the pace of processing is under their descretion.

2. USCIS/FBI have been having "some actions" on plaintiff's case, such as collection of FP, finishing all the other background check other than NC. It is therefore different from "inaction" and therefore subject to 1252

3. Plaintiff's name, somehow, fails into less than 10% cases that need extensive review, which is FBI/USCIS's descretion.

4. Since 1252 applied, APA becomes nullified.

I can write responses to these points. The difficult part for me is the citation of other cases. I will use lazy's reply brief as model but his citations are all from the 1st Circuit. I guess I should use 7th Circuit instead but hard to find good cases. By the way, do you friends really think the writing is important for a case like this? It seems to me that the Judges make their decision on their own mind that do not depend on what you wrote. They pick up what they want from the parties' writing and just ignore what they don't want. So it seems the lawsuit is also a kind of lottery, like the GC itself. What do you friends thinks?

 

[07cantwait]

What should I do next?

Dear all,

I filed my WOM back to June, and got dependants MTD on 11/29/07. I submitted my opposition on 12/12/07. What should I do next? Do I need to prepare MSJ or interprogatory?

Thank you in advance.

xiao


Here is my I-485 case status:

2/2004 entered US with K-1 visa
5/3/2004 filed I-485 based on marriage
6/17/2004 CIS submitted NC to FBI
2/2006 finished interview through local office, and infromed NC pending