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

[wommei]

about MSJ

Lazycis and other memebers,

The AUSA said that she would file an answer in March 3rd rather than a motion to dismiss. I have a status hearing scheduled on March 19th. I think she will probably mention that the name checks have been cleared. But USCIS cannot adjudicate my cases because the visa numbers are unavailable. My question is: Should I file a Motion for Summary Judgement as a response to her answer? Or should I wait for the judge to rule and don't need to do anything? Thanks.
Also I got a RFE for EB1A over the weekend. I am thinking maybe I should file a response to that first and to see if it can be approved. If not, then I need to fight hard in court about the visa number problem.
Thanks a lot for your advice.

 

[AGC4ME]

Lazycis and other memebers,

The AUSA said that she would file an answer in March 3rd rather than a motion to dismiss. I have a status hearing scheduled on March 19th. I think she will probably mention that the name checks have been cleared. But USCIS cannot adjudicate my cases because the visa numbers are unavailable. My question is: Should I file a Motion for Summary Judgement as a response to her answer? Or should I wait for the judge to rule and don't need to do anything? Thanks.
Also I got a RFE for EB1A over the weekend. I am thinking maybe I should file a response to that first and to see if it can be approved. If not, then I need to fight hard in court about the visa number problem.
Thanks a lot for your advice.

Answer the RFE first and ASAP within the next 10 days, because if you don't then USCIS will shift the cause of delay on you. Are u in EB1 ? And they don't have visa numbers ? Typically I would wait for the answer to be filed before filing MSJ because the answer should document the reason why your application cannot be adjudicated.

 

[wommei]

Agc4me

Answer the RFE first and ASAP within the next 10 days, because if you don't then USCIS will shift the cause of delay on you. Are u in EB1 ? And they don't have visa numbers ? Typically I would wait for the answer to be filed before filing MSJ because the answer should document the reason why your application cannot be adjudicated.

I applied in EB2 in 2005 and got approve in Oct 2005. Then I applied in EB1 in March 2007 and got a RFE on Jan 4th. I will try my best to answer the RFE first and then deal with the lawsuit. On top of that, I found I just lost my job because our devision is shut down after new year. Luckily I found another offer pretty quick. Otherwise it would be nerve-wrecking for me...

 

[zouy]

Hi lazycis and other members,

I have been around in this thread for a while. Like many of you who stuck in FBI name check, I am looking WOM as a final solution. I married in China in Mid 2006 and then I filed N400 in Nov 2006, thought I might finish it within three months and then I can upgrade my wife's I130 to US-citizen category and have her join me in US soon. I never thought there is a FBI name check which could stuck my application for years without any valid reason. I have written tens of letters to senators, FL, USCIS, VP, etc, but no avail. My wife got pregnant last year, however I have to return US to satisfy the residence requirement. Now she will give birth in March, I have to go back China for several months. I am thinking of filing WOM at near 2-years mark.However I live in Jacksonville, FL, which does not seems to be a very friendly district for WOM. I am thinking of moving a favorable district Northern California for the sake of WOM, I really need some good suggestions from you guys.

1 If I move to another State, do I have to stay at least three months before filing WOM?
2. Will USCIS revenge me by being picky at the interview? because I went out of US for a total of almost 800 days during past 5 years, but never a trip longer for six months.
3 It is very obvious I moved to a new state for the purpose of WOM, will USCIS or the court have some issues with this?

Thanks all if you could offer some help!! Greatly appreciated.

Zouy

 

[YS07]

YSO7

Congrats, so you weren't asked to go for a second interview or second fingerprinting??
I m in the same boat, and just filed my 1447 back in Dec 07


Congrats again

I had to do the 2nd set of fingerprints a month ago, but I didn't have a 2nd interview. I was prepared to fight against it based on the case that Lazycis or one of the other members referred to in recent posts: Hussain v. Chertoff, CA 06-11926-MLW. Good luck!

 

[lazycis]

Hi lazycis and other members,

I have been around in this thread for a while. Like many of you who stuck in FBI name check, I am looking WOM as a final solution. I married in China in Mid 2006 and then I filed N400 in Nov 2006, thought I might finish it within three months and then I can upgrade my wife's I130 to US-citizen category and have her join me in US soon. I never thought there is a FBI name check which could stuck my application for years without any valid reason. I have written tens of letters to senators, FL, USCIS, VP, etc, but no avail. My wife got pregnant last year, however I have to return US to satisfy the residence requirement. Now she will give birth in March, I have to go back China for several months. I am thinking of filing WOM at near 2-years mark.However I live in Jacksonville, FL, which does not seems to be a very friendly district for WOM. I am thinking of moving a favorable district Northern California for the sake of WOM, I really need some good suggestions from you guys.

1 If I move to another State, do I have to stay at least three months before filing WOM?
2. Will USCIS revenge me by being picky at the interview? because I went out of US for a total of almost 800 days during past 5 years, but never a trip longer for six months.
3 It is very obvious I moved to a new state for the purpose of WOM, will USCIS or the court have some issues with this?

Thanks all if you could offer some help!! Greatly appreciated.

Zouy

1. Not sure. I'd say no. Anyway, my recommendation is to file WOM in your district (Middle Florida). It's not as bad as it seems, especially for naturalization cases. Also I would not wait until 2 year mark, I'd do it right away. The purpose of the suit is to force the gov't to look at your case. You have very compelling reasons - separation from your wife+upcoming baby, presidential elections. I am sure you'll see movement on your case after filing WOM.
2. You never know. They do check travel records whether you file WOM or not.
3. I do not think so. Still, I recommend you to try your district first. Northern California is swamped with the WOM lawsuits so you may wait a long time for resolution. Plus you will avoid the hassle of moving, filing change of address form with the USCIS, etc.

 

[Clueless123]

1) I got my green in August, 2003. When can I apply for citizenship? I can't wait to get my citizenship!

2) How can I start a new thread /topic?

I got a lot of help from this forum for getting my GC. Now it's time for me to get the same kind of help from here for citizenship. Thanks to all in advance!

Clueless

 

[zouy]

Hi Lazycis,

Thank you very much for your suggestions. I have talked with two lawyers before, one said Florida court rules is too strict, another said federal litigations is not that successful. I checked pacer online, not many cases in Middle Florida, some is for cases waited several years, some is 1447b cases. I guess my wait time of just a little over one year is too short. Do you have some recommendations of good lawyers who can accept cases like mine?

Another thing is, if I filed WOM case now and get unfavorable result, can I then move to another state and file WOM again? will the previous result affect my case?

Thanks!

1. Not sure. I'd say no. Anyway, my recommendation is to file WOM in your district (Middle Florida). It's not as bad as it seems, especially for naturalization cases. Also I would not wait until 2 year mark, I'd do it right away. The purpose of the suit is to force the gov't to look at your case. You have very compelling reasons - separation from your wife+upcoming baby, presidential elections. I am sure you'll see movement on your case after filing WOM.
2. You never know. They do check travel records whether you file WOM or not.
3. I do not think so. Still, I recommend you to try your district first. Northern California is swamped with the WOM lawsuits so you may wait a long time for resolution. Plus you will avoid the hassle of moving, filing change of address form with the USCIS, etc.

 

[yiliuer]

Retrogression for WOMers

I contacted a lawyer in the bay area about the possibility of compelling USCIS to get a visa number. He replied that it is impossible. Here is a quote of his reply.

"It is difficult to argue for just the name check - asking for a visa number is impossible. The best you can hope for now is to save the case by putting it on hold and them moving for SJ when visas become available again."

Putting the case on hold is the same as doing nothing. But from his response, the retrogressed applicants like us are in a pretty bad situation.

Any retrogressed WOMers have some updates? I need to file my opposition to MSJ in two days and I am working on a sum up of all the arguments I got from this board. Maybe we could exchange opinions.

 

[PALANG]

Ready to File WOM

Here it is, I am ready to file WOM for my wife I-485. I am going to file in Cent Dist. CA , Santa Ana Court. I have attached a copy of my original complaint. Any input from the members is greatly appreciated. I do have a few pressing questions regarding fillings. IF anyone has filed in the same district and has copies of civil cover sheet, summons and certification and notice of interested parties, please post it or pm me.

I am not sure if this certification and notice of interested parties applicable in wom filings. local rules says for every pro se filling complaint, summon, notice must be present.
Regarding the Civil cover sheet: on second page there is a
a question asking to list related case numbers and judge name...I used a list on wikepedia from ND CA. did not find any Central Distric of CA ..is that ok? how can I find the judge's name for each of these cases? is the case number 0X-XXXX or lexis no?

Regarding Summons:
Do I list one defendant on each summons Defendants section or all defendants go on the summons?
Same question for Proof of service?

The local rules state that all documents for filing or lodging to be blue backed and hole punched on top...does that include complaint and summons etc.

I am very greatfull to the good people who established and are maintaining this thread. Since I would only be able to do this with their help.
Palang

 

[peaceman57]

Hi Lazycis,

Thank you very much for your suggestions. I have talked with two lawyers before, one said Florida court rules is too strict, another said federal litigations is not that successful. I checked pacer online, not many cases in Middle Florida, some is for cases waited several years, some is 1447b cases. I guess my wait time of just a little over one year is too short. Do you have some recommendations of good lawyers who can accept cases like mine?

Another thing is, if I filed WOM case now and get unfavorable result, can I then move to another state and file WOM again? will the previous result affect my case?

Thanks!

Hi Zouy,

I would keep trying with the politicians, and hopefully someone could pull some strings on your behalf, and get your namecheck completed. Make sure that you mention that your wife is about to give birth overseas.

If you have exhausted trying with the politicians, then I would look for a lawyer. Most are not familiar with these type of cases, even immigration attorneys. Many have no idea what is 1447b, nor deal with litigation. You should check under Pacer and try to find one that has some experiene in these cases. You should also check to make sure the lawyer is responsive, and will not burn you in fees. If the lawyer is going to keep jacking up the charges, say goodbye and look for someone else that will not burn you.

In your situation, however, you may be able to get uscis to expedite your case, without filing a suit. I am not sure what response you will get from the uscis, however I think you have a really impending reason with your wife about to deliver, and they might request the fbi to expedite your case without you having to file suit. You might want to talk to someone there (higher up) that can request the fbi to expedite your namecheck. Also, by talking with them, you can get your case cleared up, if it is stuck for some other reason besides the namecheck.

As far as the time you spent abroad, you still qualify for naturalization, if you did not abandon your residency. If you were present in the states for 30 months during the last 5 years, without leaving for more than 6 months at a time, you qualify according to the uscis website. Since you did not have your interview yet, they will update your n400with the new information when you go for the interview.

If you move to a different state like Northern CA, you can still file suit at the new district. Make sure that you fill out the AR-11 form, and notify the uscis of your move. Also, make sure that you really reside there by physically moving there, and not just filing there; as they will probably check your phone number, drivers license, etc., and possibly the fbi might check up on you.

As far as your district is concerned, I can guarantee that the district will change to one favorable to these type of lawsuits, if you send out letters to lawyers in your area (see my post:
http://www.immigrationportal.com/showthread.php?p=1829269#post1829269
)

I know how you feel by the harm that has affected you and your family by this unjust delay. Good luck.

 

[yiliuer]

Basova case

1) Could any one please upload the Basova case (Basova v. Ashcroft, 2005 Lexis 12150 (E.D. NY, 2005)) so that I could use that in my opposition to MSJ? I couldn't locate it in Justia.

What would be the correct citation of the case: Przhebelskaya v. USCIS, 2003 03-CV-3303-NG (NY)?

I have a couple more questions that I hope you could help me to clarify.

When i file my opposition, is it correct that i only need to file it with the court, or do I need serve it to the AUSA with certified mail?

The deadline would be Wednesday according to the two-week mark. Should the date be the time when the documents are stamped or when the documents are actually received by the court/AUSA?

Thanks very much.

 

[lazycis]

Basova order

Although a number of courts have dismissed actions for adjustment of status by plaintiffs who filed their claims after the statutory deadline, those rulings specifically reserve judgment – and imply a contrary holding – for cases instituted prior to that deadline. See Coraggioso, 355 F.3d at 734 & n.8 (3d Cir. 2004) ("Had Coraggioso sought relief prior to the expiration of the 1998 fiscal year, our analysis may have been different.").

The Basova plaintiffs brought a timely action challenging the actions of the various agencies charged with carrying out the terms of the DV statute. Whatever "fatal mistake" a DV plaintiff makes by failing to "arrang[e] immediately for a lawsuit to be brought on her behalf . . . prior to September 30," Ahmed, 328 F.3d at 385, the Basova plaintiffs avoided such a mistake by taking affirmative steps before the deadline approached. Their proactive decision should redound to their benefit. Moreover, defendants have "a non-discretionary duty to issue a decision on the plaintiffs' applications within a reasonable time." Paunescu, 76 F.Supp.2d at 901 (citing cases). Defendants' arguments are insufficient to support their motion to dismiss the Basova plaintiffs' claim, and, therefore, the motion is denied with respect to those plaintiffs.

Basova case give all retrogressed folks a lot of hope. The court actually did not issue an order before the fiscal year expired.

Przhebelskaya v. U.S. Bureau of Citizenship and Immigration
Services, 338 F.Supp.2d 399 (E.D.N.Y. 2004)

You do need to serve opposition to AUSA. Include a certificate of service when you file it with the court. It's the date when you file it with the court (stamped date).

 

[ThreeYears?]

I need your opinion plz - pending NC for 4 years!!

For those of you who've followed this website for more than a year, you may remember me. I am "ThreeYears?" - Well, the last time I posted was in Jan 2007, that was my 3year anniversary for the Name Check.

Now it is Jan 2008 and there is NO CHANGE in my Name Check. I'm pushing 4 years in a pending and also emotionally stressful situation.

I contacted all the senators in my state, 2 current ones and one ex-senator. Talked with USCIS many times and got the typical response.

I got married early 2004. Did not leave the state since. Never got in ANY kind of trouble or violated any immigration laws. Not even a traffic ticket.

Now it's been 4 years and I am stuck in the Name Check. I did 3 fingerprints, my last was in late 2007 because my fingerprints expired whatever the *flip* that means.

I have to say my wife and I had our interview in 2005. At that point we were told that the name check was pending. I think that because we had the interview already this is helpful for a wom case.

One attorney (from a famous law firm) suggested I just wait since a lawsuit wont help expedite anything. Another attorney (from a smaller lesser known firm) said that I've waited long enough and I should sue now.

Guys, I need as much advice from as many of you, since i got 2 different answers from the attorneys I need the opinion of experienced people like you. If you have filed a WOM your opinion will weigh a lot to me, please let me know what you think I should do Wait or Go to Court?:

SHOULD I FILE A WOM LAWSUIT?

Thank you so much

 

[MDwatch]

Here it is, I am ready to file WOM for my wife I-485. I am going to file in Cent Dist. CA , Santa Ana Court. I have attached a copy of my original complaint. Any input from the members is greatly appreciated. I do have a few pressing questions regarding fillings. IF anyone has filed in the same district and has copies of civil cover sheet, summons and certification and notice of interested parties, please post it or pm me.

I am not sure if this certification and notice of interested parties applicable in wom filings. local rules says for every pro se filling complaint, summon, notice must be present.
Regarding the Civil cover sheet: on second page there is a
a question asking to list related case numbers and judge name...I used a list on wikepedia from ND CA. did not find any Central Distric of CA ..is that ok? how can I find the judge's name for each of these cases? is the case number 0X-XXXX or lexis no?

Regarding Summons:
Do I list one defendant on each summons Defendants section or all defendants go on the summons?
Same question for Proof of service?

The local rules state that all documents for filing or lodging to be blue backed and hole punched on top...does that include complaint and summons etc.

I am very greatfull to the good people who established and are maintaining this thread. Since I would only be able to do this with their help.
Palang

Palang, I think you made a mistake in the number of days your wife application has been pending (page 4 line 18). You are saying 480 days when the application was filed in 2004. It should be around 1200+ days.

 

[lazycis]

more arguments to support estoppel in retrogressed cases

These arguments can be used in non-retrogressed I-485 WoM as well.

When it expanded the FBI name check in November 2002, USCIS did not promulgate a proposed rule or give notice and an opportunity for public comment on the rule, as it had done, for example, in 1998 when implementing the FBI criminal background check requirement for naturalization applications.
The expanded FBI name check was a substantive departure from prior USCIS policy because it imposed a new requirement in AOS procedure not based on statute or regulations and because it has had a substantial adverse effect on applicants for adjustment of status by causing significant delays in adjudication.
As such, the Administrative Procedure Act, 5 U.S.C. § 701 et seq., required USCIS to promulgate a proposed rule, provide a notice and comment period, and thereafter promulgate a final rule prior to enacting the November 2002 expanded FBI name check.
The court also may hold unlawful and set aside agency action that, inter alia, is found to be: "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. 706(2)(A); "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right," 5 U.S.C. 706(2)(C); or "without observance of procedure required by law," 5 U.S.C. 706(2)(D).
"Agency action" includes, in relevant part, "an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. 551(13).
The failure of Defendants Mukasey and Mueller to timely complete FBI name checks, or to set or adhere to any timelines for completion of FBI name checks, with the full knowledge that USCIS requires the completion of such name checks for adjudication of AOS applications and with the full knowledge of the explicit Congressional intent to reduce immigration backlogs (see 8 USC 1571-1573), violates the Administrative Procedure Act, 5 U.S.C. 555(b); 5 U.S.C. 706(1), 706(2)(A), 706(2)(C), 706(2)(D).
Defendants Mukasey and Mueller have a duty pursuant to the Administrative Procedure Act, agreements with USCIS, and Executive Order 10450, to timely complete USCIS-initiated name checks for AOS applications, given Defendants' full knowledge that FBI name checks are required to finally adjudicate Plaintiff's application within the 180 days as expressed by Congress in 8 USC §1571(b). Defendants' unlawful conduct in failing to do so has resulted, inter alia, in unreasonable delays in and unlawful withholding of the adjudication of Plaintiff’s application. As a result of Defendants' actions in utter indifference to statutory deadlines, Plaintiff has suffered and continues to suffer injury. Declaratory and injunctive relief is therefore warranted.

 

[lazycis]

to Palang

Palang, I think you made a mistake in the number of days your wife application has been pending (page 4 line 18). You are saying 480 days when the application was filed in 2004. It should be around 1200+ days.

Yes, I've noticed that as well. Also, Palang, you are asking about "immediate" adjudication in your prayer, which is not good. Ask court to compel defendants to complete adjudication of your AOS application and to issue a written notice about the decision to you.

I am not sure if this certification and notice of interested parties applicable in wom filings. local rules says for every pro se filling complaint, summon, notice must be present.

Not sure about this. Need to check local rules for your district, but I would ignore it.

Regarding the Civil cover sheet: on second page there is a
a question asking to list related case numbers and judge name...I used a list on wikepedia from ND CA. did not find any Central Distric of CA ..is that ok? how can I find the judge's name for each of these cases? is the case number 0X-XXXX or lexis no?

I believe that refers to cases filed by you and related to the same matter. So you should leave it blank.

Regarding Summons:
Do I list one defendant on each summons Defendants section or all defendants go on the summons?
Same question for Proof of service?

One defendant per summon, same for proof of service (second page or back page of the summons form).

The local rules state that all documents for filing or lodging to be blue backed and hole punched on top...does that include complaint and summons etc.

Ignore it.

 

[lazycis]

For those of you who've followed this website for more than a year, you may remember me. I am "ThreeYears?" - Well, the last time I posted was in Jan 2007, that was my 3year anniversary for the Name Check.

Now it is Jan 2008 and there is NO CHANGE in my Name Check. I'm pushing 4 years in a pending and also emotionally stressful situation.

I contacted all the senators in my state, 2 current ones and one ex-senator. Talked with USCIS many times and got the typical response.

I got married early 2004. Did not leave the state since. Never got in ANY kind of trouble or violated any immigration laws. Not even a traffic ticket.

Now it's been 4 years and I am stuck in the Name Check. I did 3 fingerprints, my last was in late 2007 because my fingerprints expired whatever the *flip* that means.

I have to say my wife and I had our interview in 2005. At that point we were told that the name check was pending. I think that because we had the interview already this is helpful for a wom case.

One attorney (from a famous law firm) suggested I just wait since a lawsuit wont help expedite anything. Another attorney (from a smaller lesser known firm) said that I've waited long enough and I should sue now.

Guys, I need as much advice from as many of you, since i got 2 different answers from the attorneys I need the opinion of experienced people like you. If you have filed a WOM your opinion will weigh a lot to me, please let me know what you think I should do Wait or Go to Court?:

SHOULD I FILE A WOM LAWSUIT?

Thank you so much

Of course you should. Waiting is meaningless.

 

[what'sinaname]

For those of you who've followed this website for more than a year, you may remember me. I am "ThreeYears?" - Well, the last time I posted was in Jan 2007, that was my 3year anniversary for the Name Check.

Now it is Jan 2008 and there is NO CHANGE in my Name Check. I'm pushing 4 years in a pending and also emotionally stressful situation.

I contacted all the senators in my state, 2 current ones and one ex-senator. Talked with USCIS many times and got the typical response.

I got married early 2004. Did not leave the state since. Never got in ANY kind of trouble or violated any immigration laws. Not even a traffic ticket.

Now it's been 4 years and I am stuck in the Name Check. I did 3 fingerprints, my last was in late 2007 because my fingerprints expired whatever the *flip* that means.

I have to say my wife and I had our interview in 2005. At that point we were told that the name check was pending. I think that because we had the interview already this is helpful for a wom case.

One attorney (from a famous law firm) suggested I just wait since a lawsuit wont help expedite anything. Another attorney (from a smaller lesser known firm) said that I've waited long enough and I should sue now.

Guys, I need as much advice from as many of you, since i got 2 different answers from the attorneys I need the opinion of experienced people like you. If you have filed a WOM your opinion will weigh a lot to me, please let me know what you think I should do Wait or Go to Court?:

SHOULD I FILE A WOM LAWSUIT?

Thank you so much

I agree with Lazycis's view. File the WOM (assuming it is n400). My wife and I had our interview in June 2006 and were told namecheck pending. had numerous Infopass etc and letters to senator. Contacted USCIS over phone and got a letter six months later telling me that NC is pending.

Finally started the WOM process thru an attorney. Filed third week of Nov 2007. Attorney called me yesterday and told me that he has been asked to dismiss and they will adjudicate withing 3 weeks. Waiting for the written offer.

PM me and I will give you all my details. The end seems to be in sight.

 

[PALANG]

Palang WOM

<Yes, I've noticed that as well. Also, Palang, you are asking about "immediate" adjudication in your prayer, which is not good. Ask court to compel defendants to complete adjudication of your AOS application and to issue a written notice about the decision to you.>

Thank you Lazycis and others for your input. Lazycis should I put the above prayer in place of:

Court enter an order
a. (above statement)

and

30. In Alternative (above statement)

both places or one place....

thanks so much
Palang