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

[veryfree]

Thanks so much

Here is my edition of the response. You have a very strong position and should get your GC very soon. I forgot to turn on "track changes" feature from the beginning so hopefully you can sort it out.

lazycis,
Can not say enough thanks to your help. Your input makes a much stronger argument for my case.

 

[RYCeT]

Hi guys, I just want to share this great news. My I485 was approved 2 days ago. I just got their letter today Woohoo.
The DA sent me letter to dismiss their case. I have to thank her for doing her job. I also like to thank you guys, without your help and this thread, I don't think I will get my greencard now. See sig for my timeline.

 

[lazycis]

Congrats, RYCet! As the USCIS says, "Welcome to America!" Enjoy the feeling and God bless you!

 

[suethem]

Hi guys, I just want to share this great news. My I485 was approved 2 days ago. I just got their letter today Woohoo.
The DA sent me letter to dismiss their case. I have to thank her for doing her job. I also like to thank you guys, without your help and this thread, I don't think I will get my greencard now. See sig for my timeline.

Congrat. It makes me smile from the bottom of my heart to hear your victory.

 

[lazycis]

There is a God!

Finally, one of the first successfull cases in the 4th circuit! Aslam v. Mukasey, Order on Plaintiff Motion for Summary Judgment, Eastern District of Virginia, 1/25/2008. It's coming from the same court that issued Safadi decision.

"Recognizing the "well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action," McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991), a plain reading of Section 1252(a)(2)(B)(ii) confirms that the INA only strips the judiciary of jurisdiction to review those discretionary decisions and actions that are "specified under this subchapter." See Khan v. Att'v Gen.. 448 F.3d 226, 232 {3d Cir. 2006) ("The key to § 1252(a)(2)(B)(ii) lies in its requirement that the discretion giving rise to the jurisdictional bar must be 'specified' by statute.") (citation and alternations omitted); Ahmed v. Gonzales. 447 F.3d 433, 436 (5th Cir. 2006) (same); Spencer Enter.. Inc. v. United States. 345 F.3d 683, 689 (9th Cir. 2003) (same). Although the INA places the decision of whether to adjust status in the sound discretion of the Secretary, it says nothing about the Secretary's discretion to set the pace of that decision. Accordingly, the Court retains jurisdiction under the APA to determine whether the Secretary has unlawfully delayed or withheld final adjudication of a status adjustment application."

 

[wom_ri]

USCIS v/s CIS(very interesting)

not related to wom.. but enjoy USCIS stand on this issue.. and how they lost in 10th circuit..

Lazycis..
thanks for the info.. yes.. there is a god.. AND that is why I believe all of us
filed WOM in the first place..
Can we file a REPLY MEMORANDUM IN SUPPORT of PLAINTIFF's OPPOSITION TO
DEFENDANTS MOTION TO DISMISS and attach this opinion(aslam_ED_VA) and Mocanu_v_Mueller ?

I hope a SUPERIOR god(circuit courts) delivers a verdict soon.. on this issue..
..
It will be interesting.. to see how USCIS and DOS act when estoppel claims. will win too...
It will the SUBPRIME scandal in immigration context!!!!
USCIS going with a begging bowl to DOS.. for additional visa numbers...

 

[imhrb]

Simply awesome! I read through this decision and the judge has really ripped them apart! Examples:

there is no evidence of any
efforts by CIS to take responsibility for and help remedy the
existing name check process. Rather, CIS forwards the request to
the FBI and then disclaims any accountability for a delay. This
is the very definition of agency recalcitrance - an inability or
unwillingness to fix an obvious problem that it helped to create.


For
all the Court knows, Aslam's name check file is sitting in an
analyst's inbox collecting dust.


She really let them have it! Let's hope for the best for all 4th circuit filers!

Finally, one of the first successfull cases in the 4th circuit! Aslam v. Mukasey, Order on Plaintiff Motion for Summary Judgment, Eastern District of Virginia, 1/25/2008. It's coming from the same court that issued Safadi decision.

"Recognizing the "well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action," McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991), a plain reading of Section 1252(a)(2)(B)(ii) confirms that the INA only strips the judiciary of jurisdiction to review those discretionary decisions and actions that are "specified under this subchapter." See Khan v. Att'v Gen.. 448 F.3d 226, 232 {3d Cir. 2006) ("The key to § 1252(a)(2)(B)(ii) lies in its requirement that the discretion giving rise to the jurisdictional bar must be 'specified' by statute.") (citation and alternations omitted); Ahmed v. Gonzales. 447 F.3d 433, 436 (5th Cir. 2006) (same); Spencer Enter.. Inc. v. United States. 345 F.3d 683, 689 (9th Cir. 2003) (same). Although the INA places the decision of whether to adjust status in the sound discretion of the Secretary, it says nothing about the Secretary's discretion to set the pace of that decision. Accordingly, the Court retains jurisdiction under the APA to determine whether the Secretary has unlawfully delayed or withheld final adjudication of a status adjustment application."

 

[gc_mania]

Simply awesome! I read through this decision and the judge has really ripped them apart! Examples:

there is no evidence of any
efforts by CIS to take responsibility for and help remedy the
existing name check process. Rather, CIS forwards the request to
the FBI and then disclaims any accountability for a delay. This
is the very definition of agency recalcitrance - an inability or
unwillingness to fix an obvious problem that it helped to create.


For
all the Court knows, Aslam's name check file is sitting in an
analyst's inbox collecting dust.


She really let them have it! Let's hope for the best for all 4th circuit filers!

Earlier immigrants faced arrows from the natives and struggled. The new batch of immigrants face this USCIS and FBI.

 

[Slow_CIS]

Specified under Subchapter II

Lazy,
Can you do me a favor and look at the 6th circuit opinion in Abu-Khaliel v. Gonzales 436 F.3d 627 (6th Cir. 2004).
http://www.ca6.uscourts.gov/opinions.pdf/06a0044p-06.pdf
According to the Abu-Khaliel, are the regulations, which make explicit the implicit provisions in statutes under the subchapter II, considered specified under subchapter?
For example, the 11th Cir. in Zafar does not count the discretionary provisions specified in the regulations as statutorily specified under the subchapter thereby reviewable. But the sixth circuit seems to be a bit different.
I appreciate if you could share your interpretation with me, so I can double check my interpretation.
Thanks,

 

[lazycis]

I believe they do consider regulations as part of the INA in that decision. It's not good, but it's not critical.

 

[lazycis]

Slow_CIS

Government is trying to moot Grinberg appeal so I believe he's got his GC. So eventually you'll get yours.

 

[wom_ri]

Reply memorandum in support of defendants motion to dismiss

Lazycis,others:
I filed a response to AUSA MTD. Now AUSA has filed a reply memorandum in support of defendants MTD. What is the legal significance of such a memo ?

It does not add anything new.. It just repackages some of his arguments based on my response and reemphasises the judgement in Grinberg,safadi...
Also AUSA added complete opinions from 7(seven) district cases where judge granted MTD(to add pagecount on his memo)
(It sort of gives me a moral victory that he needed to file such a memo..or is he pulling a new trick on me)
Do I have to file any reply memo.. in support of my response ?

 

[lazycis]

Lazycis,others:
I filed a response to AUSA MTD. Now AUSA has filed a reply memorandum in support of defendants MTD. What is the legal significance of such a memo ?

It does not add anything new.. It just repackages some of his arguments based on my response and reemphasises the judgement in Grinberg,safadi...
Also AUSA added complete opinions from 7(seven) district cases where judge granted MTD(to add pagecount on his memo)
(It sort of gives me a moral victory that he needed to file such a memo..or is he pulling a new trick on me)
Do I have to file any reply memo.. in support of my response ?

File a surreply to his memorandum and include recent decisions from 7th Cir, 4th Cir. (Saleem, Attisha, Aslam, etc.). You can also oppose AUSA motion to file a memo. Did he ask for a leave of court?

 

[kcguy2004]

good news guys

This friday I got my GC approved. Last week AUSA called with the good news and also said something along the lines of "isn't it surprising how a lawsuit brings results"

I would like to thank all members of this thread esp. lazycis for all replies to my dumb querys.

I'll miss hanging out here so I may keep hanging out here!
anyway, what am I supposed to do next as in update SSN, etc?

 

[Slow_CIS]

Lazycis

Is the successful case in the fourth circuit the one that used the 4th cir. appellant Brief you helped preparing based on your own brief?

 

[lazycis]

Is the successful case in the fourth circuit the one that used the 4th cir. appellant Brief you helped preparing based on your own brief?

I cannot take credit for this one However, the opinion has another confirmation of government affirmative misconduct.

"The government concedes that the agency within the FBI responsible for name checks, the National Name Check Program Section {"NNCPS"), is understaffed. Approximately 3.3 million name checks are requested each year, resulting in 330,000 checks that proceed past the second stage. As of 2006, NNCPS only employed 103 personnel, 59 of which are dedicated to performing name checks for CIS. To meet its internal goals, the FBI has
estimated that it needs 180 employees to process the CIS requests alone."

It's nice to see how the judge rebuffs USCIS arguments that they are trying to address the delay.

"There is no evidence of any efforts by CIS to take responsibility for and help remedy the existing name check process. Rather, CIS forwards the request to the FBI and then disclaims any accountability for a delay. This is the very definition of agency recalcitrance - an inability or unwillingness to fix an obvious problem that it helped to create."

 

[lazycis]

Hay Lazycis, what is a Leave of court? What's it significance in WOM cases and our possbilbe actions? It seems it's not discuss in this thread. I have read most of them.

For certain filings you have to ask a court permission ("leave of court"). You can file anything you want, but the court may not consider those filings if court did not grant a permission to file. For example, in wom_ri case, AUSA filed memorandum after wom_ri filed opposition to MTD. AUSA does not have a right to do so without court permission because it may result in prejustice (AUSA may gain an advantage because wom_ri is not able to respond to new arguments). Another example - to amend your complaint second or third time, you need to get a consent from an opposing party or you have to ask leave of court, otherwise the court will not consider amended complaint.

 

[zoro3]

Lawsuit in Brooklyn, NY

Hi All,
I am an old timer in this website. "El hamdou l'Illah" Thanks to Allah, I finally received my oath letter after I filed a lawsuit through my lawyer three months ago. I think you all should do the same thing. File a suit through a lawyer. It makes your case stronger. Further AUSA will know that you are serious and determined to win. I have been waiting for my name chech to clear for more than three years. I filed an N400 more than three years ago. The lawyer charged me $ 1500 for my case. Of course I had to pay $360 for the suit fee.
Good luck to everyone and remember GET an ATTORNEY. You can always work overtime to balance you finances

 

[wommei]

one more advice

lazycis,
Can not say enough thanks to your help. Your input makes a much stronger argument for my case.

I read the arguments and it is very inspiring and pretty good, I would say. There is only one thing I suggest you to check on. As I remember, the retrogression date has been 2000 on October 2005. So the claim of "the priority date has remained current for 39 months" may not be factual. You may want to revise on that one.

 

[wom_ri]

motion for leave...

Timeline:
1. WOM(08/29/08)- USCIS,FBI defendants
2. first amendment(09/18/07)- added Alberto Gonzalez as defendant
3. AUSA extension upto 11/26(11/09/07)
4. second amendment(11/19/07)-added Job posting that required GC,info on RFE issued by USCIS.
5. AUSA second extension upto 12/7/07(11/20)
>>> here, I did not ask leave of court or obtain permission from AUSA.. but AUSA agreed to my amendment but in the process asked second extension to reply..
6. AUSA MTD(12/21/07)
7. my opposition to MTD(1/7/08)
8. motion for leave to file 3rd amended complaint(add DOS as defendant,
spouse as plaintiff) (1/18/08)
9. AUSA reply memorandum in support for MTD(1/24/08)
10. Plaintiff memo to Judge Smith(1/28/08) citing aslam and mocanu.
( If you look at case docket for Qiu_v_Chertoff in N.J, AUSA submitted a similar memo to Judge Chesler about his decision on
a related unpublished opinion, Li_v_Gonzalez).
I didn't crib about AUSA memo; I merely submitted a letter to Judge including copies of Aslam case and Mocanu_v_Mueller(order covers Eliassaint case, I-485). The letter merely states that Aslam is very similar to my case.
Both Courts also have precedent cases where MTD was granted.
The previous judgement in my court, cited Safadi as the prime reason why MTD was granted.

I have a pre-trial conference in Feb 4, 2008. Depending on what transpires there, I may submit a surreply to AUSA's memo. Any suggestions/experiences on what goes on in a pre-trial conference ? Do I have to wear a suit and/or tie ?

For certain filings you have to ask a court permission ("leave of court"). You can file anything you want, but the court may not consider those filings if court did not grant a permission to file. For example, in wom_ri case, AUSA filed memorandum after wom_ri filed opposition to MTD. AUSA does not have a right to do so without court permission because it may result in prejustice (AUSA may gain an advantage because wom_ri is not able to respond to new arguments). Another example - to amend your complaint second or third time, you need to get a consent from an opposing party or you have to ask leave of court, otherwise the court will not consider amended complaint.