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

[jefkorn]

Ask AILF to update their

Should we ask AILF to update their guidelines in regards to Mandamus and new memo?

http://www.ailf.org/lac/clearinghouse_mandamus.shtml

May be we should wait until after April 30,2008 or may be not. Lazycis, you had a contact there who wrote Amicus Brief for your case, can that be helpful?

 

[gc_mania]

Are you India EB2 ?

......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.

....

if so, your PD of 2000 means you will become currnet in Oct,2008 visa bulletin ?

 

[wom_ri]

where is justice ?

Yes. Iam EB2 India.
Maybe I will get GC in Oct 08..(depends if retrogression dates moves forward(last it was Jan 2000)- Feb visa bulletin.
But that is besides the point.
10000+ visa numbers were lost in 2006. My namecheck was over a year old then. Even if I get GC in 2008, those numbers in 2005 & 2006 are lost..until another AC21 is passed for recapturing the numbers..
I dont think applicants need to wait with a begging bowl before USCIS.
I agree GC is a privilege not a right. However, USCIS is an organization that is payed from User fees.. Those damn guys do have a duty owed to us.
When they litigate, they hire AUSA, who are payed from taxpayers money( am not sure if USCIS or DHS pays them from our user fees).

AUSA & USCIS & DHS dragged my WOM(filed Aug 29, 2007) bcos of a single wom losing earlier in Rhode Island.
Their arrogance is seen in their MTD. They claim that court does not have jurisdiction and pace is discretionary. They think pro-se don't have any chance to win ? I have a point to prove here...

For two years my company lawyer told me to wait.. that is the only option he said...He told me i would lose if i file wom. worst still they will reject my 485.

However, USCIS adjudicated two EB2 India case in D.D.C filed by Sheila Murthy firm filed Dec 20, 2007. They lost the preceding case there of Liu v Chertoff.

Since filing WOM I have read quite a bit on this subject and how USCIS has litigated these cases.

At this point, I want USCIS to be clear.. for now and for the future..
1. USCIS has a mandatory non-discretionary duty owed to 485 applicants.
2. USCIS has a mandatory non-discretionary duty to use visa numbers.(stakes are too high here for retrogression country applicants)
3. Even USCIS is not above law.
- All it takes to change things for a better future is the will to try...

if so, your PD of 2000 means you will become currnet in Oct,2008 visa bulletin ?

 

[gc_mania]

Yes. Iam EB2 India.
Maybe I will get GC in Oct 08..(depends if retrogression dates moves forward(last it was Jan 2000)- Feb visa bulletin.
......

There is something floatin around regarding PD movement:


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"

 

[waitinfori130]

Still Very Desperate to have my wife with me

waitinfori130,
Are you a U.S. citizen? If yes, have you filed for a K-3 visa (Form I-129F) for your wife & dependants? This way, at least they can get into USA while your I-130 is pending and your WOM is going on. Once inside U.S. they can file for AOS. And I believe there is no filing fee for I-129F if you have already filed I-130. You can check with USCIS Cust Svc for more info.

I read this response to my original post. I really didn't know of my option to file the K3 (for no charge) until this post, or I would have done it months ago. I did file it, that K3 (I-129f) that is. I receive my NOA1 earlier this week. Still it seems I won't receive the Next NOA2 until maybe 7-8 months, if I'm lucky.

7-8 months would put me at 2 years since the USCIS first received my NOA1 for my I-130 in August,2006.

I recently received a FOPIA from the FBI and a congressman sent it to the USCIS and was told that my case was not released for adjudication.

It is very difficult that my wife is not with me. It is beginning to put a strain on the relationship. I don't think she will give up and neither will I, but there seems no end in sight. I love my wife and I know she loves me. I will have to pay the expense of going to China again this year,... very expensive.

My thought is, if we don't receive any P2(NOA2) for my I-130 or K3(I-129F) by August, it will be 2 years for the I-130 and 7 months for the k3.

I was thinking this time would be the time to file the WOM.

Please give me your opinions. I really need your help. as I have limited resources.

 

[wom_ri]

court granting motion for leave

Lazycis,others:
I have the following update in my case.
TEXT ORDER GRANTING 14 Motion for Leave to File; Plaintiff shall file his third amended complaint on or before February 28, 2008; denying without prejudice as moot in view of the Court's Order granting Plaintiff leave to file a third amended complaint 11 Motion to Dismiss for Lack of Jurisdiction. So Ordered by Magistrate Judge Lincoln D. Almond on 2/14/08. (Noel, Jeannine) (Entered: 02/14/2008).

So it seems Judge is granting me leave to file 3rd amendment(add DOS as defendant & spouse as plaintiff). It this correct ?

Does it mean AUSA's MTD was denied ?
what does denied without prejudice mean ?

 

[paz1960]

Lazycis,others:
I have the following update in my case.
TEXT ORDER GRANTING 14 Motion for Leave to File; Plaintiff shall file his third amended complaint on or before February 28, 2008; denying without prejudice as moot in view of the Court's Order granting Plaintiff leave to file a third amended complaint 11 Motion to Dismiss for Lack of Jurisdiction. So Ordered by Magistrate Judge Lincoln D. Almond on 2/14/08. (Noel, Jeannine) (Entered: 02/14/2008).

So it seems Judge is granting me leave to file 3rd amendment(add DOS as defendant & spouse as plaintiff). It this correct ?

Does it mean AUSA's MTD was denied ?
what does denied without prejudice mean ?

This means that AUSA's MTD is denied as moot, because it was referring to your previous complaint, which will be now replaced by a new complaint (your third ammended complaint).

"Without prejudice" means that Defendants can file another MTD after they get your ammended complaint, basically using the same arguments they used previously, maybe adding some additional ones addressing the ammended part in your new complaint.

 

[lazycis]

wom_ri

I concur with Paz. This is actually an encouraging development. If judge was ready to dismiss complaint for lack of subject matter, he would not wait for amended complaint.

 

[waitinfori130]

I read this response to my original post. I really didn't know of my option to file the K3 (for no charge) until this post, or I would have done it months ago. I did file it, that K3 (I-129f) that is. I receive my NOA1 earlier this week. Still it seems I won't receive the Next NOA2 until maybe 7-8 months, if I'm lucky.

7-8 months would put me at 2 years since the USCIS first received my NOA1 for my I-130 in August,2006.

I recently received a FOPIA from the FBI and a congressman sent it to the USCIS and was told that my case was not released for adjudication.

It is very difficult that my wife is not with me. It is beginning to put a strain on the relationship. I don't think she will give up and neither will I, but there seems no end in sight. I love my wife and I know she loves me. I will have to pay the expense of going to China again this year,... very expensive.

My thought is, if we don't receive any P2(NOA2) for my I-130 or K3(I-129F) by August, it will be 2 years for the I-130 and 7 months for the k3.

I was thinking this time would be the time to file the WOM.

Please give me your opinions. I really need your help. as I have limited resources.

I was hoping for a response. I know there are a lot of ideas here. I simply want some input. It would be appreciated.

 

[lazycis]

I was hoping for a response. I know there are a lot of ideas here. I simply want some input. It would be appreciated.

I think you need to file WOM asap. They usually move fast if US citizen files WOM.

 

[waitinfori130]

Thanks Lazycis, I will begin my quest again. My biggest concern now is I plan to visit my wife in China in late May, I'm concerned that if file, I wont be around to receive papers in response to a filing.

If I file, should I expect a response within 60 days? Any thoughts, I know this is more complicated than it needs to be, but I don't want to miss ay papers or deadlines.

 

[wom_ri]

am happy..

Thanks.. Paz, Lazycis
it seems surreal.. after all these months to hear to +ive development in the case.
My amendment was to add wife as plaintiff & DOS for visa numbers. I had put my estoppel arguments in there as well.

The AUSA in his opposition had the following :
Plaintiff, however, does not contend that any of his proposed amendments to the Complaint cure the fatal lack of subject matter jurisdiction that defendants identified in their motion to dismiss.

Plaintiff’s proposed amendments, like all of the relief that plaintiff seeks, would require that the Court impermissibly exercise jurisdiction over the pace at which plaintiff’s I-485 application is processed.

Because, as explained in defendants’ motion to dismiss, the Court lacks subject matter jurisdiction over plaintiff’s claims regarding the pace
of adjudication of his adjustment application, plaintiff’s new allegations are futile, and plaintiff’s motion for leave to amend should be denied. See Fuller v. Secretary of Defense, 30 F.3d 86, 89 (8th 1994) (holding that amendment would have been futile because “Fuller's claim seeks judicial relief for a discretionary, and hence unreviewable, decision of the Secretary of the
Navy”); Rogatch v. Chertoff, 1160358, at *2 n.2 (D.R.I. Apr. 17, 2007) (Denying motion for leave to add claim for declaratory judgment); Athans v. F.B.I., 2007 WL 2288037, at *3 (D.Ariz. Aug. 8, 2007);

Now I plan to draw up arguments for backdating my GC in my amendment. That ways.. even if my GC is granted..My complaint will not be moot.
In the post Mocanu & aslam world; I am confident now of estoppel against USCIS for backdating GC's.
Sun Il Yoo v INS, 534 F.2d. 1325, ( 9th Cir.1976) “ in short, no apparent justification for the Service's unreasonable delay in recognizing the bona fides of Yoo's petition. Such conduct, it seems to us, fully merits the [**7] characterization of "oppressive".

I concur with Paz. This is actually an encouraging development. If judge was ready to dismiss complaint for lack of subject matter, he would not wait for amended complaint.

 

[wom_ri]

MTD granted in N400 delay for lack of jurisdiction

LOAI SALEH ALZURAIKI, Plaintiff, v. GERARD HEINAUER, Director Nebraska Service Center, U.S. Citizenship and Immigration Services,
4:07CV3189
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
2008 U.S. Dist. LEXIS 10809
February 13, 2008, Decided
The plaintiff submitted a N-400 application for naturalization to U.S. Citizenship and Immigration Services ("USCIS"). The plaintiff has not yet been interviewed because the Federal Bureau of Investigation ("FBI") name check is not complete, so he seeks to speed up the decision making. Jurisdiction is asserted under 28 U.S.C. § 1361 (Mandamus Act), 5 U.S.C. §§ 555 and 701 et seq. (Administrative Procedure Act or "APA"), and 28 U.S.C. § 1331 (federal question jurisdiction). 1 This action is before me upon a motion [*2] to dismiss for lack of jurisdiction, or, alternatively, for failure to state a claim. I will grant the motion for the reasons set forth below.
USCIS can be compelled to act under § 706(1) of the APA only if it has withheld action "legally required." Norton, 542 U.S. at 63. USCIS is legally required to take further action now on Plaintiff's application only if there is a clear, nondiscretionary duty to adjudicate naturalization applications-prior to the interview which triggers the 120-day period of 8 U.S.C. § 1447(b)-within a reasonable time. USCIS has no such duty 6, since the next action USCIS could take is legally prohibited.
The naturalization statutes and regulations do not prescribe a time limit for the pace of the "investigation/examination" required by § 1446. The only time limit relates to the USCIS interview which is part of that "investigation/examination." Once the interview has been conducted, [*11] if USCIS does not reach a decision within 120 days, then the naturalization applicant may petition the district court for a hearing. 8 U.S.C. § 1447(b); Walj, 500 F.3d 432. As evidenced by the 120-day time limit of § 1447(b), when Congress intended time limitations on adjudication of naturalization petitions, it expressly created them. I will not judicially impose any other time limit.

 

[wom_ri]

485 mandamus victory

Roopalakshmi Sharadanant and Mahinda Ferdinando, Plaintiffs, v. United States Citizenship and Immigration Services (USCIS)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA, SOUTHEASTERN DIVISION
2008 U.S. Dist. LEXIS 11383
February 13, 2008, Decided
Although it appears at first blush that the Court is therefore without jurisdiction to address the claims presented by the Plaintiffs, the nuances between the situation here and the general case for which the jurisdiction-stripping provision was enacted require further examination.
District courts around the country were more or less divided on this matter the last time this issues was addressed by the Court, some concluding there is jurisdiction to compel action on adjustment applications, see Linville v. Barrows, 489 F.Supp.2d 1278, 1281 (W.D. Okla. 2007); Haidari v. Frazier, 2006 WL 3544922 (D. Minn., Dec. 8, 2006); [*8] and others concluding there is not, see, Qiu v. Chertoff, 486 F.Supp.2d 412 (D.N.J. 2007); Sharif v. Chertoff, 2007 WL 2045489 (N.D. Ill., July 18, 2007). However, recent opinions the district courts within the Eighth Circuit show a growing tendency to find courts have such jurisdiction. See Ansari v. United States Citizenship and Immigration Services, 2007 WL 4553920 (D. Neb., Dec. 18, 2007); Zhu v. Chertoff, 2007 WL 4365733 (W.D.Mo., Dec. 11, 2007);

 

[lazycis]

Thanks Lazycis, I will begin my quest again. My biggest concern now is I plan to visit my wife in China in late May, I'm concerned that if file, I wont be around to receive papers in response to a filing.

If I file, should I expect a response within 60 days? Any thoughts, I know this is more complicated than it needs to be, but I don't want to miss ay papers or deadlines.

You can follow your case online using PACER and file anything you want via mail so I would not worry about it. Yes, the government has 60 days to respond after you file a complaint and serve it upon district US Attorney. You'll get their response by mail or you will be able to view it online in PACER.

 

[shamrockNYC]

LOAI SALEH ALZURAIKI, Plaintiff, v. GERARD HEINAUER, Director Nebraska Service Center, U.S. Citizenship and Immigration Services,
4:07CV3189
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
2008 U.S. Dist. LEXIS 10809
February 13, 2008, Decided
The plaintiff submitted a N-400 application for naturalization to U.S. Citizenship and Immigration Services ("USCIS"). The plaintiff has not yet been interviewed because the Federal Bureau of Investigation ("FBI") name check is not complete, so he seeks to speed up the decision making. Jurisdiction is asserted under 28 U.S.C. § 1361 (Mandamus Act), 5 U.S.C. §§ 555 and 701 et seq. (Administrative Procedure Act or "APA"), and 28 U.S.C. § 1331 (federal question jurisdiction). 1 This action is before me upon a motion [*2] to dismiss for lack of jurisdiction, or, alternatively, for failure to state a claim. I will grant the motion for the reasons set forth below.
USCIS can be compelled to act under § 706(1) of the APA only if it has withheld action "legally required." Norton, 542 U.S. at 63. USCIS is legally required to take further action now on Plaintiff's application only if there is a clear, nondiscretionary duty to adjudicate naturalization applications-prior to the interview which triggers the 120-day period of 8 U.S.C. § 1447(b)-within a reasonable time. USCIS has no such duty 6, since the next action USCIS could take is legally prohibited.
The naturalization statutes and regulations do not prescribe a time limit for the pace of the "investigation/examination" required by § 1446. The only time limit relates to the USCIS interview which is part of that "investigation/examination." Once the interview has been conducted, [*11] if USCIS does not reach a decision within 120 days, then the naturalization applicant may petition the district court for a hearing. 8 U.S.C. § 1447(b); Walj, 500 F.3d 432. As evidenced by the 120-day time limit of § 1447(b), when Congress intended time limitations on adjudication of naturalization petitions, it expressly created them. I will not judicially impose any other time limit.

I reside in nyc and i filed my N-400 application may 2 2007(priority date). Had my fingerprints taken in june and had my citizenship interview on August 16 2007 at the federal plaza.i passed my civic and english exam and was asked to summit a prof of payment of a traffic ticket i had gotten in 2005 (Fine was $90 and according to their own regulations and the interview package , any traffic tickets less than $500 without arrest doesnt have to be disclosed on the application) I have no DUI or DWI record.It was a simple traffic ticket.She gave me a 30 day time frame to summit that proof of payment receipt for that traffic ticket .i went back 2 days later with this document and i was told that everything is fine , she has all she needs and i should wait for my oath letter in the mail in couple weeks. i have checked my case status with the online service they offer.Last update has been made the day after i dropped that proof of payment for that ticket.So far i have not received my oath letter and my priority date is outside of processing dates for nyc field office.I have made phone calls to the 1-800 hotline 3 times and the first two times i was told that my case is under review and the third time i filed a case status inquiry since it is outside of processing times and 120 days passed since my examination .I am getting ready to file 1447b in court in march.I will be mailing a FOIPA request to the FBI tomorrow. Already faxed them and havent heard anything from FBI yet in regards to my FOIPA.
PAZ1960 and LAZICS i need your help on how to bring this matter into court .I cant seem to find any information about the nyc field office director to include this person in my claim.Can you please help me with Who to serve and their adresses since you have friends and connections and lots of experience with this . Do you think the court system is friendly to this type of cases in nyc or it s a tough district? I really would appreciate all your help , input and wisdom

 

[lazycis]

I reside in nyc and i filed my N-400 application may 2 2007(priority date). Had my fingerprints taken in june and had my citizenship interview on August 16 2007 at the federal plaza.i passed my civic and english exam and was asked to summit a prof of payment of a traffic ticket i had gotten in 2005 (Fine was $90 and according to their own regulations and the interview package , any traffic tickets less than $500 without arrest doesnt have to be disclosed on the application) I have no DUI or DWI record.It was a simple traffic ticket.She gave me a 30 day time frame to summit that proof of payment receipt for that traffic ticket .i went back 2 days later with this document and i was told that everything is fine , she has all she needs and i should wait for my oath letter in the mail in couple weeks. i have checked my case status with the online service they offer.Last update has been made the day after i dropped that proof of payment for that ticket.So far i have not received my oath letter and my priority date is outside of processing dates for nyc field office.I have made phone calls to the 1-800 hotline 3 times and the first two times i was told that my case is under review and the third time i filed a case status inquiry since it is outside of processing times and 120 days passed since my examination .I am getting ready to file 1447b in court in march.I will be mailing a FOIPA request to the FBI tomorrow. Already faxed them and havent heard anything from FBI yet in regards to my FOIPA.
PAZ1960 and LAZICS i need your help on how to bring this matter into court .I cant seem to find any information about the nyc field office director to include this person in my claim.Can you please help me with Who to serve and their adresses since you have friends and connections and lots of experience with this . Do you think the court system is friendly to this type of cases in nyc or it s a tough district? I really would appreciate all your help , input and wisdom

Andrea J. Quarantillo, Director
USCIS New York City District
Jacob Javits Federal Building
26 Federal Plaza, Room 1104
New York, NY 10278

Here is a sample complaint
http://www.immigrationportal.com/attachment.php?attachmentid=16817&d=1186914549

I know Paz posted a sample complaint as well, I just could not find the reference.

I like your district, it's not bad. Recently two cases I was following resulted in green cards without defendants even filing an answer or MTD.

 

[OK-Boy]

You need to study this site for teh civil suite:

http://en.wikibooks.org/wiki/FBI_name_check

Goodluck!

OK-Boy

I reside in nyc and i filed my N-400 application may 2 2007(priority date). Had my fingerprints taken in june and had my citizenship interview on August 16 2007 at the federal plaza.i passed my civic and english exam and was asked to summit a prof of payment of a traffic ticket i had gotten in 2005 (Fine was $90 and according to their own regulations and the interview package , any traffic tickets less than $500 without arrest doesnt have to be disclosed on the application) I have no DUI or DWI record.It was a simple traffic ticket.She gave me a 30 day time frame to summit that proof of payment receipt for that traffic ticket .i went back 2 days later with this document and i was told that everything is fine , she has all she needs and i should wait for my oath letter in the mail in couple weeks. i have checked my case status with the online service they offer.Last update has been made the day after i dropped that proof of payment for that ticket.So far i have not received my oath letter and my priority date is outside of processing dates for nyc field office.I have made phone calls to the 1-800 hotline 3 times and the first two times i was told that my case is under review and the third time i filed a case status inquiry since it is outside of processing times and 120 days passed since my examination .I am getting ready to file 1447b in court in march.I will be mailing a FOIPA request to the FBI tomorrow. Already faxed them and havent heard anything from FBI yet in regards to my FOIPA.
PAZ1960 and LAZICS i need your help on how to bring this matter into court .I cant seem to find any information about the nyc field office director to include this person in my claim.Can you please help me with Who to serve and their adresses since you have friends and connections and lots of experience with this . Do you think the court system is friendly to this type of cases in nyc or it s a tough district? I really would appreciate all your help , input and wisdom

 

[shamrockNYC]

Thank you LAZYCIS

Thank you LAZYCIS for the adress and the templet .Although i did fax the FBI and requested my FOIPA (via fax) i have not received anything from them and i will be sending a registered mail requesting my FOIPA again tomorrow . I dont know how long that will take to get it from them .Should i wait for an answer from FBI before i go to court or i should just go ahead and file it considering it might take a long time to get something from FBI ,given the situation agency is in as we all know .I remember somebody was mentioning that when u sue the Attorney General , u have to serve the counsel or send the summons to the legal counsel's office . Can you please clerify that with me and again supply me with the name and the adress of this person . I really appreciate all your help , you have been doing a great job all this time helping people and we r all very grateful and in debt to you

 

[lazycis]

Thank you LAZYCIS for the adress and the templet .Although i did fax the FBI and requested my FOIPA (via fax) i have not received anything from them and i will be sending a registered mail requesting my FOIPA again tomorrow . I dont know how long that will take to get it from them .Should i wait for an answer from FBI before i go to court or i should just go ahead and file it considering it might take a long time to get something from FBI ,given the situation agency is in as we all know .I remember somebody was mentioning that when u sue the Attorney General , u have to serve the counsel or send the summons to the legal counsel's office . Can you please clerify that with me and again supply me with the name and the adress of this person . I really appreciate all your help , you have been doing a great job all this time helping people and we r all very grateful and in debt to you

Do not wait for a response from FBI, you do not have to do it for 1447b lawsuit