Federal Rules of Civil Procedure 15 define the rules around amended complaints. I don't see see why you can't reference but maybe a separate pleading is where you should oppose the MTD.
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Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)
- Thread starter Publicus
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Federal Rules of Civil Procedure 15 define the rules around amended complaints. I don't see see why you can't reference but maybe a separate pleading is where you should oppose the MTD.
Palang Wom
Hi Everyone,
Many thanks to the great support of Lazycis and others in this forum, I finally completed and filed WOM for my wife in CD Ca court in Santa Ana, CA this past Thursday 10th. I served all the summons this past saturday via cert. mail. Obviously, the return receipt for the local AUSA and USCIS director was recieved first. I still have not recieved the long distance defendants. The reciept showed that USCIS director recieved my summons on 14th jan. Well today we recieved a letter from USCIS stamped with name of Director asking for my wife to go in for another fingerprint. The form says: "To continue processing of your app for AOS, INS must send your fingerprint to FBI for a criminal history check. You have been scheduled.............
Reason for Appt. The validity of your previous fingerprint has expired."
This is a marriage based I485 and this would be her third fingerprint since our interview in April 2005.
Is this a sign for things happening? or just a coincidence? if its response to the summons, I would imagine this is the fastest WOM success in history..lol
BTW... if she has an A#, does this mean she already has a visa number and the visa number argument is not going to be the case here?
Thanks to all
Palang
Hi Everyone,
Many thanks to the great support of Lazycis and others in this forum, I finally completed and filed WOM for my wife in CD Ca court in Santa Ana, CA this past Thursday 10th. I served all the summons this past saturday via cert. mail. Obviously, the return receipt for the local AUSA and USCIS director was recieved first. I still have not recieved the long distance defendants. The reciept showed that USCIS director recieved my summons on 14th jan. Well today we recieved a letter from USCIS stamped with name of Director asking for my wife to go in for another fingerprint. The form says: "To continue processing of your app for AOS, INS must send your fingerprint to FBI for a criminal history check. You have been scheduled.............
Reason for Appt. The validity of your previous fingerprint has expired."
This is a marriage based I485 and this would be her third fingerprint since our interview in April 2005.
Is this a sign for things happening? or just a coincidence? if its response to the summons, I would imagine this is the fastest WOM success in history..lol
BTW... if she has an A#, does this mean she already has a visa number and the visa number argument is not going to be the case here?
Thanks to all
Palang
AOS delay and hardship, should I put into my cross motion?
Hi,
Here is my story, I don't know whether it is OK to put into my response to defendants' MSJ and cross-motion:
Because my AOS is pending so I have to apply for AP in order to visit my family abroad. I applied AP back in Septembe last year but still waiting for my AP in December. My grand mother who I had not seen for over 10 years was all of a sudden ill but I could not go back to see her before she passed away. I tried to expedite the AP case through my congressman but did not make it soon enough. I cold not even attend any of the funeral services! I finally received the AP approval but still stuck here trying to take care of this response to MSJ!
I really want to put this into my response and let the Judge see it. Should I do it？
Hi,
Here is my story, I don't know whether it is OK to put into my response to defendants' MSJ and cross-motion:
Because my AOS is pending so I have to apply for AP in order to visit my family abroad. I applied AP back in Septembe last year but still waiting for my AP in December. My grand mother who I had not seen for over 10 years was all of a sudden ill but I could not go back to see her before she passed away. I tried to expedite the AP case through my congressman but did not make it soon enough. I cold not even attend any of the funeral services! I finally received the AP approval but still stuck here trying to take care of this response to MSJ!
I really want to put this into my response and let the Judge see it. Should I do it？
Hi,
Here is my story, I don't know whether it is OK to put into my response to defendants' MSJ and cross-motion:
Because my AOS is pending so I have to apply for AP in order to visit my family abroad. I applied AP back in Septembe last year but still waiting for my AP in December. My grand mother who I had not seen for over 10 years was all of a sudden ill but I could not go back to see her before she passed away. I tried to expedite the AP case through my congressman but did not make it soon enough. I cold not even attend any of the funeral services! I finally received the AP approval but still stuck here trying to take care of this response to MSJ!
I really want to put this into my response and let the Judge see it. Should I do it？
I wouldn't do it because it is unnecessary to vent your frustration at the whole process in this manner. The judge is here to help you solve your issue with USCIS. If you piss him off he will become bias in their favor.
Hi,
Here is my story, I don't know whether it is OK to put into my response to defendants' MSJ and cross-motion:
Because my AOS is pending so I have to apply for AP in order to visit my family abroad. I applied AP back in Septembe last year but still waiting for my AP in December. My grand mother who I had not seen for over 10 years was all of a sudden ill but I could not go back to see her before she passed away. I tried to expedite the AP case through my congressman but did not make it soon enough. I cold not even attend any of the funeral services! I finally received the AP approval but still stuck here trying to take care of this response to MSJ!
I really want to put this into my response and let the Judge see it. Should I do it？
I would include it as defendants often argue that because we can get AP/EAD, there is no harm in waiting. Well, obviously there is. No need to put your emotions on paper, but I do not see why you should not include it in your opposition to Defendants MSJ and in your MSJ.
another interesting case
Mocanu v Mueller, 1/14/2008, PAED
http://www.paed.uscourts.gov/documents/opinions/08D0052P.pdf
"The Court does not believe that either Congress or the agency has provided any definition of what is meant by a “full criminal background check,” but notes that the government has submitted a declaration from the FBI and has also provided a Memorandum as to the Status of FBI checks, which seem to indicate that the FBI check in these cases is much broader than just looking into whether an individual has a criminal record. Plaintiffs’ counsel do not dispute the accuracy of these declarations or contest their admissibility. Although careful security checks must be made for individuals seeking entry into the United States, and for applications for permanent legal residency, I fail to see why an individual who has achieved legal permanent residency must undergo a detailed security clearance in order to become a naturalized citizen.
Their risk to the security of the United States (if any) certainly does not change when they become a citizen. However, it is very relevant to conduct a criminal background check to determine whether they have had any law enforcement contacts during the period of time they have been legal permanent residents."
...
"For reasons stated at the hearing and in this Memorandum, I have reached a tentative conclusion that Defendant USCIS, overwhelmed by these applications, has adopted a strategy of favoring delay by litigation, instead of developing an orderly and transparent administrative resolution. Although this strategy is often evident in private party damages litigation, it is improper in these cases. Congress did not intend that the path to citizenship be conducted along a detoured and rocky road of litigation."
Mocanu v Mueller, 1/14/2008, PAED
http://www.paed.uscourts.gov/documents/opinions/08D0052P.pdf
"The Court does not believe that either Congress or the agency has provided any definition of what is meant by a “full criminal background check,” but notes that the government has submitted a declaration from the FBI and has also provided a Memorandum as to the Status of FBI checks, which seem to indicate that the FBI check in these cases is much broader than just looking into whether an individual has a criminal record. Plaintiffs’ counsel do not dispute the accuracy of these declarations or contest their admissibility. Although careful security checks must be made for individuals seeking entry into the United States, and for applications for permanent legal residency, I fail to see why an individual who has achieved legal permanent residency must undergo a detailed security clearance in order to become a naturalized citizen.
Their risk to the security of the United States (if any) certainly does not change when they become a citizen. However, it is very relevant to conduct a criminal background check to determine whether they have had any law enforcement contacts during the period of time they have been legal permanent residents."
...
"For reasons stated at the hearing and in this Memorandum, I have reached a tentative conclusion that Defendant USCIS, overwhelmed by these applications, has adopted a strategy of favoring delay by litigation, instead of developing an orderly and transparent administrative resolution. Although this strategy is often evident in private party damages litigation, it is improper in these cases. Congress did not intend that the path to citizenship be conducted along a detoured and rocky road of litigation."
I would do it too. In fact on similar lines.. I have seen AUSA argue that delay does not cause hardship to plaintiff as they can get EAD and parole.. even change jobs using AC21. I put an exhibit of a job opening in my company that required a GC(and was a promotion from my position).. not that I am interested in that job.. sort of to nullify that argument.
The other thing about judge being pissed and being biased..
I would not worry much about factors that we cannot control.
If some judge is biased(like Chesler in NJ).. there is nothing we can do about it.. and most likely.. we are not the genesis of that bias.. it has deep roots..
The other thing about being pissed.. Judges read lot of arguments on paper.. that is their job.. In my WOM process.. I have submitted voluminous reports.. bcos.. as a pro-se applicant, I don't know what would eventually be important. In reading many opinions.. I have seen judge dismiss arguments A, B, C.. and agree with D. So I would not worry much about how we present our case and how much we put into it..(so long as it is consistent with the rest of the arguments and forms a valid basis for establishing our case).
The other thing about judge being pissed and being biased..
I would not worry much about factors that we cannot control.
If some judge is biased(like Chesler in NJ).. there is nothing we can do about it.. and most likely.. we are not the genesis of that bias.. it has deep roots..
The other thing about being pissed.. Judges read lot of arguments on paper.. that is their job.. In my WOM process.. I have submitted voluminous reports.. bcos.. as a pro-se applicant, I don't know what would eventually be important. In reading many opinions.. I have seen judge dismiss arguments A, B, C.. and agree with D. So I would not worry much about how we present our case and how much we put into it..(so long as it is consistent with the rest of the arguments and forms a valid basis for establishing our case).
Hi,
Here is my story, I don't know whether it is OK to put into my response to defendants' MSJ and cross-motion:
Because my AOS is pending so I have to apply for AP in order to visit my family abroad. I applied AP back in Septembe last year but still waiting for my AP in December. My grand mother who I had not seen for over 10 years was all of a sudden ill but I could not go back to see her before she passed away. I tried to expedite the AP case through my congressman but did not make it soon enough. I cold not even attend any of the funeral services! I finally received the AP approval but still stuck here trying to take care of this response to MSJ!
I really want to put this into my response and let the Judge see it. Should I do it？
Did USCIS lied to the court
In USCIS' response to the court's order, it clearly stated that "on 12/28/2007, USCIS received notice that FBI had send Plaintiff's name check result to USCIS".
However, in today's inforpass visit, the immigration officer told me that my name check is still pending and USCIS did not order expedite name check for me.
Did USCIS lied to the court?
In USCIS' response to the court's order, it clearly stated that "on 12/28/2007, USCIS received notice that FBI had send Plaintiff's name check result to USCIS".
However, in today's inforpass visit, the immigration officer told me that my name check is still pending and USCIS did not order expedite name check for me.
Did USCIS lied to the court?
In USCIS' response to the court's order, it clearly stated that "on 12/28/2007, USCIS received notice that FBI had send Plaintiff's name check result to USCIS".
However, in today's inforpass visit, the immigration officer told me that my name check is still pending and USCIS did not order expedite name check for me.
Did USCIS lied to the court?
Very interesting. So the NC was completed on Dec 28 and the USCIS did not request a visa number for you? They have no excuse for failing to adjudicate. File a motion for contempt.
I trust the USCIS affidavit more then IO opinion. It just proves that the agency is a mess.
Remember Safadi v Howard
Completed NNCP is not adequate. It only means USCIS got the NNCP results from FBI. In somecases, they further investigate the results(like they did in Safadi).
Can we force discovery request to obtain the results and question what they need to review further.
Completed NNCP is not adequate. It only means USCIS got the NNCP results from FBI. In somecases, they further investigate the results(like they did in Safadi).
Can we force discovery request to obtain the results and question what they need to review further.
In USCIS' response to the court's order, it clearly stated that "on 12/28/2007, USCIS received notice that FBI had send Plaintiff's name check result to USCIS".
However, in today's inforpass visit, the immigration officer told me that my name check is still pending and USCIS did not order expedite name check for me.
Did USCIS lied to the court?
CFR for visa number retrogression
Thanks Lazycis! This is a good one for the naturalization delays.
wom_ri, agc4me, lazycis and others: Do you know the CFRs around immigrant visa number processing. 8 CFR Part 245 establishes the eligibility for Adjustment and it states clearly that a visa number should be available at the time of filing. I know USCIS has adopted a process where it seeks visa number towards the end of the process but do you know where that is documented in a CFR. Is there a state department CFR around this processing as well?
Mocanu v Mueller, 1/14/2008, PAED
http://www.paed.uscourts.gov/documents/opinions/08D0052P.pdf
"The Court does not believe that either Congress or the agency has provided any definition of what is meant by a “full criminal background check,” but notes that the government has submitted a declaration from the FBI and has also provided a Memorandum as to the Status of FBI checks, which seem to indicate that the FBI check in these cases is much broader than just looking into whether an individual has a criminal record. Plaintiffs’ counsel do not dispute the accuracy of these declarations or contest their admissibility. Although careful security checks must be made for individuals seeking entry into the United States, and for applications for permanent legal residency, I fail to see why an individual who has achieved legal permanent residency must undergo a detailed security clearance in order to become a naturalized citizen.
Their risk to the security of the United States (if any) certainly does not change when they become a citizen. However, it is very relevant to conduct a criminal background check to determine whether they have had any law enforcement contacts during the period of time they have been legal permanent residents."
...
"For reasons stated at the hearing and in this Memorandum, I have reached a tentative conclusion that Defendant USCIS, overwhelmed by these applications, has adopted a strategy of favoring delay by litigation, instead of developing an orderly and transparent administrative resolution. Although this strategy is often evident in private party damages litigation, it is improper in these cases. Congress did not intend that the path to citizenship be conducted along a detoured and rocky road of litigation."
Thanks Lazycis! This is a good one for the naturalization delays.
wom_ri, agc4me, lazycis and others: Do you know the CFRs around immigrant visa number processing. 8 CFR Part 245 establishes the eligibility for Adjustment and it states clearly that a visa number should be available at the time of filing. I know USCIS has adopted a process where it seeks visa number towards the end of the process but do you know where that is documented in a CFR. Is there a state department CFR around this processing as well?
Thanks Lazycis! This is a good one for the naturalization delays.
wom_ri, agc4me, lazycis and others: Do you know the CFRs around immigrant visa number processing. 8 CFR Part 245 establishes the eligibility for Adjustment and it states clearly that a visa number should be available at the time of filing. I know USCIS has adopted a process where it seeks visa number towards the end of the process but do you know where that is documented in a CFR. Is there a state department CFR around this processing as well?
Check 22 CFR 42.
A few extracts:
§ 42.53 Priority date of individual applicants.
(a) Preference applicant. The priority date of a preference visa applicant under INA 203 (a) or (b) shall be the fiing date of the approved petition that
accorded preference status.
§ 42.32 Employment-based preference
immigrants.
(a) First preference—Priority workers—
(1) Entitlement to status. An alien shall be classifiable as an employment-based first preference immigrant under INA 203(b)(1) if the consular office has received from DHS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such Preference status,
I.e. PD should be I-140 filing date
§ 42.54 Order of consideration.
...
(1) In the chronological order of the priority dates of all applicants within each of the immigrant classifications specified in INA 203 (a) and (b);
§ 42.33 Diversity immigrants.
(f) Allocation of visa numbers. To the extent possible, diversity immigrant visa numbers will be allocated in accordance with INA 203(c)(1)(E) and will
be allotted only during the fiscal year for which a petition to accord diversity immigrant status was submitted and approved. Under no circumstances will immigrant visa numbers be allotted after midnight of the last day of the fiscal year for which the petition was submitted and approved.
Interestingly enough, there is NO similar laguage for EB visas.
adding dos & retrogression
Judge Baylson has consolidated many cases here(including I-485). The arguments presented by the Judge are applicable to naturalization and adjustment as well.
look at case 07-4747(Plaintiff Jean Elissaint)(filed 485 in 2000 !)
Judge Baylson has consolidated many cases here(including I-485). The arguments presented by the Judge are applicable to naturalization and adjustment as well.
look at case 07-4747(Plaintiff Jean Elissaint)(filed 485 in 2000 !)
Thanks Lazycis! This is a good one for the naturalization delays.
wom_ri, agc4me, lazycis and others: Do you know the CFRs around immigrant visa number processing. 8 CFR Part 245 establishes the eligibility for Adjustment and it states clearly that a visa number should be available at the time of filing. I know USCIS has adopted a process where it seeks visa number towards the end of the process but do you know where that is documented in a CFR. Is there a state department CFR around this processing as well?
send certified mail every time to AUSA ?
Lazycis, others:
Do I have to send a certified mail copy to AUSA everytime I file something
(like amended complaint,MSJ, opposition to MTD). Can't they be directed to
obtain the ecopy filed with the court instead ?
I found this filed by a attoryney in PACER:
I certify that on this date a copy of the foregoing Plaintiff’s Motion for Summary
Judgment and Supporting Memorandum of Law was filed electronically and is available for viewing and downloading from the Court’s ECF system and was directed to:
XXX, Esquire
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106-4476
Lazycis, others:
Do I have to send a certified mail copy to AUSA everytime I file something
(like amended complaint,MSJ, opposition to MTD). Can't they be directed to
obtain the ecopy filed with the court instead ?
I found this filed by a attoryney in PACER:
I certify that on this date a copy of the foregoing Plaintiff’s Motion for Summary
Judgment and Supporting Memorandum of Law was filed electronically and is available for viewing and downloading from the Court’s ECF system and was directed to:
XXX, Esquire
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106-4476
Last edited by a moderator:
Lazycis, others:
Do I have to send a certified mail copy to AUSA everytime I file something
(like amended complaint,MSJ, opposition to MTD). Can't they be directed to
obtain the ecopy filed with the court instead ?
I found this filed by a attoryney in PACER:
I certify that on this date a copy of the foregoing Plaintiff’s Motion for Summary
Judgment and Supporting Memorandum of Law was filed electronically and is available for viewing and downloading from the Court’s ECF system and was directed to:
XXX, Esquire
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106-4476
Yes first class mail with proof of service ideally executed by someone not related to the case. The proof of service will serve as evidence that the service was performed if required (unlikely).
Visa number argument from the AUSA
How do we argue with this?:
See 8 C.F.R. § 245.2(a)(5)(ii) (“An application for adjustment of status, as a preference alien, shall not be approved until an immigrant visa number has been allocated by the Department of State, except when the applicant has established eligibility for the benefits of Public Law 101-238.”). If the law does not require USCIS to complete the application, Petitioners cannot use the Administrative Procedure Act to compel USCIS to act. Respondents are therefore entitled to judgment as a matter of law, and this action should be dismissed.
Note: Pub. L. 101-238 pertains to the employment of aliens in the United States as temporary workers, i.e., not lawful permanent residents. Cf. Appendix A, at 12 (“Temporary Worker” is “[a] foreign worker who will work in the United States for a limited period of time.”); id. at 7 (defining “Lawful Permanent Resident”).
How do we argue with this?:
See 8 C.F.R. § 245.2(a)(5)(ii) (“An application for adjustment of status, as a preference alien, shall not be approved until an immigrant visa number has been allocated by the Department of State, except when the applicant has established eligibility for the benefits of Public Law 101-238.”). If the law does not require USCIS to complete the application, Petitioners cannot use the Administrative Procedure Act to compel USCIS to act. Respondents are therefore entitled to judgment as a matter of law, and this action should be dismissed.
Note: Pub. L. 101-238 pertains to the employment of aliens in the United States as temporary workers, i.e., not lawful permanent residents. Cf. Appendix A, at 12 (“Temporary Worker” is “[a] foreign worker who will work in the United States for a limited period of time.”); id. at 7 (defining “Lawful Permanent Resident”).
In the I140 approval notice, there is a priority date. Isn't this the priority date we are talking about?
Check 22 CFR 42.
A few extracts:
§ 42.53 Priority date of individual applicants.
(a) Preference applicant. The priority date of a preference visa applicant under INA 203 (a) or (b) shall be the fiing date of the approved petition that
accorded preference status.
§ 42.32 Employment-based preference
immigrants.
(a) First preference—Priority workers—
(1) Entitlement to status. An alien shall be classifiable as an employment-based first preference immigrant under INA 203(b)(1) if the consular office has received from DHS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such Preference status,
I.e. PD should be I-140 filing date
§ 42.54 Order of consideration.
...
(1) In the chronological order of the priority dates of all applicants within each of the immigrant classifications specified in INA 203 (a) and (b);
§ 42.33 Diversity immigrants.
(f) Allocation of visa numbers. To the extent possible, diversity immigrant visa numbers will be allocated in accordance with INA 203(c)(1)(E) and will
be allotted only during the fiscal year for which a petition to accord diversity immigrant status was submitted and approved. Under no circumstances will immigrant visa numbers be allotted after midnight of the last day of the fiscal year for which the petition was submitted and approved.
Interestingly enough, there is NO similar laguage for EB visas.
In the I140 approval notice, there is a priority date. Isn't this the priority date we are talking about?
That's the USCIS interpretation of the statue which we are trying to dispute.