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

lazycis said:
I think we have a very good cause to backdate our GCs. It is clear now that they should've considered our I-485 in 180 days. I am just not sure how to proceed - file a complaint now or wait a couple years and apply for naturalization at 5.5 year mark after I-485 receipt date and fight N-400 rejection (if it happens) in court. To be honest, I need some rest now. Will think about it later. A lot was going on lately, hopefully I'll be able to retire from this thread soon :)
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Hi Lazycis, Not sure if you already retired from the thread. Well deserved rest indeed. If you are still around:
I am exploring precdence for backdating GC as well. Did you find any case law or statutes that can be used?
 
Question for those who have been to court

If you loose your case , do we have to pay the defendants court costs ?

I have a CSPA which is being heard in July 08 and have two dates, pre trial and trial. Never set foot in a court room and the thought scares the life out of me. Will I be cross examined and made to feel a criminal ? How does it work?

Even though I have been very fortunate to get legal representation pro bono I am worried that I may still have legal fees to pay

Do the plaintiffs, ever change their minds and agree mistakes a couple of days before the hearing, has anyone experience of this? and if so was this conditional on some sort of gagging order ?
 
susan ward said:
Question for those who have been to court

If you loose your case , do we have to pay the defendants court costs ?

I have a CSPA which is being heard in July 08 and have two dates, pre trial and trial. Never set foot in a court room and the thought scares the life out of me. Will I be cross examined and made to feel a criminal ? How does it work?

Even though I have been very fortunate to get legal representation pro bono I am worried that I may still have legal fees to pay

Do the plaintiffs, ever change their minds and agree mistakes a couple of days before the hearing, has anyone experience of this? and if so was this conditional on some sort of gagging order ?
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It depends, but in the vast majority of cases each party bears its own costs. You need to really screw up to pay defendants costs. I do not think you will be cross examined and so forth. It's not a criminal trial. In my understanding, your case is a matter of law interpretation, correct? You have nothing to worry about, especially if you have a lawyer with you.
 
mandated duty to utilize visa numbers for a year

I remember reading this argument in some case opinion..
tha USCIS has a mandated duty to utilize to the fullest extent possible, EB based and Family based immigration visa numbers that are available in a current year. Not doing so, these visa numbers are lost forever...
If someone remembers or obtains a case that substantiates this position please post...

My argument goes like this:
USCIS has a mandated duty to utilize visa numbers.
Plaintiffs application was pending namecheck for 180 days in year 2006.
10000+ visa numbers were lost that year. EB2 India was current in
Sept 2006.

Even if court can't grant relief for year 2006, this substantiates affirmative miisconduct on part of USCIS and can estopp DOS from denying visa numbers for 2008 as complaint was filed in Aug 2007.

Further 1153(e) mandates that USCIS maintain a waiting list of eligible applicants. Plaintiff has a priority date of April 2000. Plaintiff should have been on that waiting list since April 2005 and that alone is sufficient reason to have expedited the namecheck to honor congressional mandate of order of consideration of applicants for visa number as experessed in 1153(e)

8 U.S.C. § 1152(e) further states
Nothing in this subsection shall be construed as limiting the number of visas that may be issued to natives of a foreign state .. under section .. 1153 (b) of this title if there is insufficient demand for visas for such natives ...
8 U.S.C. § 1156 states
If an immigrant having an immigrant visa is denied .., or does not apply for admission before the expiration of the validity of his visa, or if .., an immigrant visa or a preference immigrant visa, as the case may be, may be issued in lieu thereof to another qualified alien.
Congress was very clear in its intent : USCIS had a mandatory duty to utilize visa numbers to the fullest extent possible.
 
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Galves v Howerton

"Another aspect of the present misconduct relates to the agency's failure to fulfill a statutory duty. The INS has a statutory obligation to issue visas to qualified applicants to the full extent of the annual quota limits established by Congress. 6 The legislative history of the Immigration & Naturalization Act indicates that this duty has not been left to agency discretion, see S.Rep. No. 748, 89th Cong., 1st Sess. reprinted in (1965) U.S.Code Cong. & [*39] Ad.News, pp. 3328, 3337-38, but is obligatory upon the agency. "
 
WOM fees ?

You may qualify for EAJA fees.
look at :
NABIL SHALAN v. MICHAEL CHERTOFF, et al.
CIVIL ACTION NO. 05-10980-RWZ
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
2006 U.S. Dist. LEXIS 82795
A. Entitlement to Attorneys' Fees and Costs

In general a "prevailing party" 1 in a naturalization proceeding is entitled to attorneys' fees and costs under the EAJA. 2 However, the Act does not allow for the award of costs and attorneys' fees where "the court finds that the position of the United States was substantially justified or that [*4] special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). In general, a position is "substantially justified" if it has a "reasonable basis in both law and fact." United States v. Yoffe, 775 F.2d 447, 449 (1st Cir. 1985). The test is three-part: (1) "did the government have a reasonable basis for the facts alleged;" (2) "did it have a reasonable basis in law for the theories advanced;" and (3) "did the facts support its theory." Id. at 450. The government has the burden of demonstrating by a preponderance of the evidence that its position was "substantially justified." Id. Here, the government cannot do so.


CAUSA said:
Is it ok to withdraw WOM after only getting 485 approval notice not physical cards?
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Sorry.. my mistake.. Plaintiff has to be prevailing party.. I guess...
also.. you might just be happy with GC and not interested in antagonizing USCIS further :)
 
This is no good. I guess his 2008 report was coming out too gloomy... The guy did respond to my letter, so looks like he did want to help.
 
Do finger prints still "expire" after 15 ,months? Or has USCIS found a way to "refresh" them from previously captured prints?
 
I got a notice for the new fingerprinting after 16 months and have the following details:

1- N-400---Receipt date, Oct-06
2-First Finger-printing---Oct-06
2- Namecheck cleared---Nov-07
3- Infopass---Case is under extended review---Jan-08
4-2nd Fingerprinting---will do Feb-08 end
5-IV---?
6-Oath?

lazycis said:
LOL! May be they finally realized that a person does not develop a new fingerprint pattern with age.
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lazycis said:
It depends, but in the vast majority of cases each party bears its own costs. You need to really screw up to pay defendants costs. I do not think you will be cross examined and so forth. It's not a criminal trial. In my understanding, your case is a matter of law interpretation, correct? You have nothing to worry about, especially if you have a lawyer with you.
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Thanks for your reply, that helps a lot.

If anyone knows whether it is likely for the other side to approve my case just before it goes to court I would be interested to hear from you, or if you have any tips for me when I attend court.
 
Predicted Visa Bulletin movement

According to a posting on 02/14/2008 at http://immigration-information.com/forums/showthread.php?t=4285

"
Last night, at a meeting of the American Immigration Lawyer's Assocation Southern California chapter, Charles Oppenheim spoke. Mr. Oppenheim is the officer within the Visa Office tasked with calculating visa bulletin cutoff dates each month. He offered the following thoughts as to cutoff date movement in the upcoming months:

* In April, India and China EB2 will be set at 12/01/2003
* EB3 for India and China will slow down for the rest of the fiscal year
"

And EB-2 ROW may remain current through rest of the fiscal year.
 
WOM in the post-memo world

Guys,
I think it's not too early to start thinking about analyzing the WOM in a post-memo world. It remains to be seen if in fact USCIS will adjudicate all I485 application eligible pursuant to memo in couple of months. I'm starting to think that the I485 waiters shouldn't relent and continue prepping their WOMs but with different strategy now. Include memo in your requests for help to senators and congressmen, FL etc and include the possibility of retrogression if case not adjudicated while visa number and priority dates are current.

I for one don't want to sit back and relax only to find out later that it's same old song and dance again and this time with a USCIS promise of "we just have too many cases eligible because of the memo and working on them in order of receipt and eventually will get to yours".

Folks what do you think?

FAQ on how long it may take to implement the memo and WOM:

http://www.hooyou.com/news/news021508faq.html

Tying Congress's intent of 180 days processing times and memo in arguments:

http://immigration-information.com/forums/showthread.php?t=4254

Little skepticism on USCIS deadline as reported by AILF's and suggestion to still push forward with WOM:

http://immigration-information.com/forums/showthread.php?t=4257

Encouraging to file WOM even post-memo:
http://immigration-information.com/forums/showthread.php?t=4258
 
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