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

Well I don't know if I am the beneficiary of the feb 4 memo but I can tell you one thing for sure, the RFE are coming down en masse and they are requesting the most bizzare documents these days. In my case, I was on J1 back in 98 and was subject to the 212(e) rule of two yr out of the country requirement. I got a waiver in 99 and since then I got another J1, and my H1 that I renewed once. Now they are asking me for proof of the waiver :eek:

How the can the mighty USCIS, grand protector of the security of the country that has withheld my app for ayear not know that they have granted me a waiver. That should be in my A file no ? They are indeed placing the burden of proof on the immigrant :(
 
Question about Green Card(PR) Complaint lawsuit

Dear members:

I'm happy to find this forum because i found many people with similiar condition here. I hope i can find answer of my condition here. Thx!!

1)Now i plan a lawsuit to fight my GC. My mother already have green card and my application form of GC is dependent on my mother's GC. It was already delayed five years..... We have waited such a long time and i hope to speed up this procedure. My aunt said something wrong about my I-130.
Does anyone have sample complaint ilke my case?

2)If i need a attorney with this kind experience, who can i find in Minnesota?
This forum mentioned most american attorney don't want to fight with court.
I believe this because my aunt's son(law student) also say so.
 
klamakl said:
Dear members:

I'm happy to find this forum because i found many people with similiar condition here. I hope i can find answer of my condition here. Thx!!

1)Now i plan a lawsuit to fight my GC. My mother already have green card and my application form of GC is dependent on my mother's GC. It was already delayed five years..... We have waited such a long time and i hope to speed up this procedure. My aunt said something wrong about my I-130.
Does anyone have sample complaint ilke my case?

2)If i need a attorney with this kind experience, who can i find in Minnesota?
This forum mentioned most american attorney don't want to fight with court.
I believe this because my aunt's son(law student) also say so.
Click to expand...

Here is a sample complaint.
http://www.immigrationportal.com/showpost.php?p=1795238&postcount=13632

Check also this page as a starting point.
http://en.wikibooks.org/wiki/FBI_name_check#Lawsuit_steps

It's not true that attorneys do not want to take on such cases, but it is true that a lot of attorneys do not have a clue about our situation.
 
MTD granted by Chesler croney

ANNA CHOLEWINSKA, Plaintiff, v. MICHAEL CHERTOFF, IN HIS CAPACITY AS SECRETARY FOR THE DEPARTMENT OF HOMELAND SECURITY, EDUARDO AGUIRRE, IN HIS CAPACITY AS DIRECTOR FOR THE UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ANDREA J. QUARANTILLO, IN HER CAPACITY AS DISTRICT DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendants.

Civil Action No. 07-518

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

2008 U.S. Dist. LEXIS 13755


February 21, 2008, Decided
February 21, 2008, Filed
The Court is not persuaded by those cases which have held that immigration officials have a non-discretionary duty to adjudicate I-485 applications. Plaintiff's reliance on Song is misplaced because, there, "USCIS ha[d] yet to take action on plaintiffs' adjustment of status application[.]" 2007 U.S. Dist. LEXIS 27203, at *3-4. [*11] The court in Elzerw drew a distinction, relevant here, stating: "[T]he cases cited [mirroring Song] are inapposite because no action at all had been taken on the applications there, and the decisions reasoned consequently that the Secretary does not have discretion to refuse to resolve an application." 2007 U.S. Dist. LEXIS 30429, at *8. The Elzerw court concluded that "in the present case, Plaintiffs have not alleged that Defendants have taken no action on their applications[,] . . . but rather that the FBI has not completed its work early enough to avoid inconvenience to the Plaintiffs." Id. at *8-9. Therefore, Elzerw dismissed the complaint for lack of subject matter jurisdiction because the time taken by the government to process I-485 applications is committed to the agency's discretion. Id.

Similarly, Defendants have not refused to consider Plaintiff's I-485 application, but rather "told that [Plaintiff that] her application was 'pending,'" subject to a background check and "fingerprint procedure." (Compl. PP 12, 14, 15.) Thus, Song and similar cases are of little avail to Plaintiff.

More importantly, in another case supporting Plaintiff's argument, Pool, 2007 U.S. Dist. LEXIS 39946, at *8, [*12] the court failed to accord weight to a clear, dispositive provision of the APA that states: "The only exceptions to this general rule [that any person adversely affected by agency action is entitled to judicial review] are situations in which '(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.'" Smriko, 387 F.3d at 290-91 (quoting 5 U.S.C. § 701(a)). "Because the matter is discretionary and there is no requisite time frame [stated in the INA for processing I-485 applications], the matter is unreviewable under the APA as unreasonably delayed." Conigliaro, 2008 WL 108953, at *5; see also Shah v. Chertoff, No. 07-874, 2007 WL 2084891, at *4 (D.N.J. July 18, 2007) ("[T]he APA does not apply to agency action that 'is committed to agency discretion by law.'"); Liu, 2007 WL 2916511, at *6 (same).

The Court finds Safadi's explication, quoted by Judge Debevoise in Serrano, particularly relevant here:

Importantly, not addressed here is the question whether jurisdiction would exist in a district court to review plaintiff's case where USCIS refused altogether to process an adjustment application or where the delay was so unreasonable as to be tantamount [*13] to a refusal to process the application. This case presents no such facts. To be sure, the nearly four years thus far consumed in the processing of plaintiff's application is far from an inconsiderable period of time and it is easy to understand plaintiff's frustration. It is also understandable that the length of the process is causing plaintiff substantial hardship. Nonetheless, in this post-9/11 world USCIS must carefully and thoroughly investigate adjustment applications to ensure they are not granted without the appropriate good cause. Our national security requires that caution and thoroughness in these matters not be sacrificed for the purpose of expediency. Given this, while the application processing time that has elapsed in this case has been substantial, the evidence that USCIS is actively processing plaintiff's application makes clear that this is not a case where USCIS has refused to adjudicate or process an application. Instead, it is a case in which USCIS is and has been processing plaintiff's adjustment of status application, but has done so at a pace plaintiff finds unsatisfactory.

Serrano, 2007 WL 1101434, at *3 (quoting Safadi, 466 F. Supp. 2d at 700-01) (emphasis [*14] added).

For the reasons discussed above with regard to the INA, this Court finds that the process to adjudicate Plaintiff's application has been committed to agency discretion and, therefore this Court cannot review this matter under the APA.
 
It's not true that attorneys do not want to take on such cases, but it is true that a lot of attorneys do not have a clue about our situation.
Click to expand...

>> It's also true that lot of AUSA's fighting these cases for the govt have no clue either. My AUSA says, they are usually briefed by DHS lawyers on how to proceed.
 
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Update on CIS processing of AOS cases formerly held up by FBI name check issues

Folks, latest update on USCIS handling of name check pending cases posted by Ron Gotcher at his forum:

http://immigration-information.com/forums/showthread.php?t=4398

"
The American Immigration Lawyers Association has just released the minutes of a meeting held with CIS Service Center Operations. Some of the highlights of that meeting include:

Note: USCIS had previously asked the public to wait until 4-30-08 before sending inquiries on adjustments affected by this memo. That has since been changed to 3-30-08. AILA will notify it members.


Yes, if the fingerprint results have expired, the applicant will need to have new fingerprints taken. Those new fingerprints usually clear within a week or so. USCIS will check with the ASCs to make sure that there is an efficient process and that significant delays do not occur with scheduling these applicants for new biometrics. USCIS will get back to AILA with the approximate number of I-485 applications (of the combined 25,000 mentioned above) where the fingerprint results have expired. Also, note that as of July of 2007, the biometrics are stored under a new system and those fingerprints will be able to be "refreshed" so that new ones don't need to be taken in the future.

At the Service Centers, there are approximately 10,000 I-485 applications that are awaiting name checks only. We estimate that over the next 3 months an additional 15,000 cases will fit into this category as well.
"
 
Question about Green Card(PR) Complaint lawsuit

lazycis said:
Here is a sample complaint.
http://www.immigrationportal.com/showpost.php?p=1795238&postcount=13632

Check also this page as a starting point.
http://en.wikibooks.org/wiki/FBI_name_check#Lawsuit_steps

It's not true that attorneys do not want to take on such cases, but it is true that a lot of attorneys do not have a clue about our situation.
Click to expand...

Thanks for your complaint sample and weblink, lazycis:

I'm a new one and have no idea about how to start my lawsuit.
Let me introduce my case. My case should be simple.
My mother got GC as least five years ago and then she applied a application
(I-130) for me. We only got one reply letter of I-130 from US and told us delay message. That's all story. Now i hope to speed this procedure and here are my questions:

1)The complaint sample you sent me is I-485 delay. Are I-130/I-485 the same? Because we don't know much about the law and hope to find sample to modify. Does the sample you provided work? Do you have sample similiar with my case(Just I-130)?
2)If we find a lawyer to help us, how much cost do we need?
 
What DHS had to say about NC policy change?

"...
This is not only good business, but it is also the right thing to do. The policy change better aligns the background check screening processes between DHS agencies. It’s worth noting that 99 percent of all FBI name check results are received within six months. Through process improvements, we fully expect all name-check results to be obtained within that period by the end of this year.
...
"
Source:http://www.dhs.gov/journal/leadership/labels/USCIS.html
 
Question about Marriage Certificate

Hello Folks,

The CIS had asked me to send an original copy of the marriage certificate in their detailed RFE to my I-130. I just found out this week that my name check has been cleared (after 3.5 years of waiting) and the case is now transfered to the Baltimore office. My question is, when and how can I get my original marriage certificate? Would they just give it back to me at the interview? Or would they mail it back with or after the green card?

Any one has had similar experiences?
 
imhrb said:
Hello Folks,

The CIS had asked me to send an original copy of the marriage certificate in their detailed RFE to my I-130. I just found out this week that my name check has been cleared (after 3.5 years of waiting) and the case is now transfered to the Baltimore office. My question is, when and how can I get my original marriage certificate? Would they just give it back to me at the interview? Or would they mail it back with or after the green card?

Any one has had similar experiences?
Click to expand...

Bring it to the interview, they will give it back to you
 
Lazycis

I will have a continuos MTD hearing next week, and I realized that it's too late to file a MSJ before the hearing. Then I'd like to argue on the Court with AUSA about waiting another 60 - 90 days to get adjudicated. Yesterday I received the hearing notice from AUSA. He attached the new memo to the notice.

In the first hearing, the judge didn't order, he thought he was lack of judicaton. He didn't grant MTD either. Can I ask him to order in this hearing because of the new memo? The AUSA told me that my case will be processed in about 60-90 days as other similiar cases. My NC has been pending for 4 years, I heard many times about 90 days or 6 months update from USCIS. I don't trust it any more. But if the Judge order 60 -90 days, can I ask a shorter time, like 30 - 60 days? Should I still file the MSJ before the hearing or after the hearing if the judge doesn't order? Timing, Timing, Timing. Thanks for your suggestions.

lazycis said:
Yes, file MSJ to speed things up. With new memo delay more than 180 days is not reasonable.
Click to expand...
 
patricia_432 said:
I will have a continuos MTD hearing next week, and I realized that it's too late to file a MSJ before the hearing. Then I'd like to argue on the Court with AUSA about waiting another 60 - 90 days to get adjudicated. Yesterday I received the hearing notice from AUSA. He attached the new memo to the notice.

In the first hearing, the judge didn't order, he thought he was lack of judicaton. He didn't grant MTD either. Can I ask him to order in this hearing because of the new memo? The AUSA told me that my case will be processed in about 60-90 days as other similiar cases. My NC has been pending for 4 years, I heard many times about 90 days or 6 months update from USCIS. I don't trust it any more. But if the Judge order 60 -90 days, can I ask a shorter time, like 30 - 60 days? Should I still file the MSJ before the hearing or after the hearing if the judge doesn't order? Timing, Timing, Timing. Thanks for your suggestions.
Click to expand...

You may want to file a lates memo with the court. You can file MSJ as well, it depends on wheter you have enough time to prepare it. You should ask for immediate adjudication as delay in your case is clearly unreasonable in light of the new policy/memo.
 
klamakl said:
Thanks for your complaint sample and weblink, lazycis:

I'm a new one and have no idea about how to start my lawsuit.
Let me introduce my case. My case should be simple.
My mother got GC as least five years ago and then she applied a application
(I-130) for me. We only got one reply letter of I-130 from US and told us delay message. That's all story. Now i hope to speed this procedure and here are my questions:

1)The complaint sample you sent me is I-485 delay. Are I-130/I-485 the same? Because we don't know much about the law and hope to find sample to modify. Does the sample you provided work? Do you have sample similiar with my case(Just I-130)?
2)If we find a lawyer to help us, how much cost do we need?
Click to expand...

You can use the same template. I-130 case is even stronger.
 
jefkorn said:
Q & A regarding new Feb. 04 memo:

http://www.uscis.gov/files/pressrelease/name_check_faq-20feb08.pdf

"
Q5. How many applications for lawful permanent residence are affected by this policy change?
A3. USCIS is currently aware of approximately 47,000 applications for permanent residence (I-485) cases that are otherwise approvable but for the fact that an FBI name check is pending. In a subset of these case, the FBI name check request that been pending for more than 180 days. USCIS anticipates that the majority of the cases that are subject to this policy modification will be processed by mid-March 2008.

Q6. How long will it take for USCIS to work through these cases affected by the policy change?
A6. USCIS has begun identifying the cases affected by this policy modification in each field office and service center. Each office will evaluate the pending cases and will adjust their workload accordingly. USCIS anticipates that the majority of the cases that are subject to this policy modification will be processed by mid-March 2008. We recommend that customers wait until mid-March before inquiring about their cases. This will allow each office sufficient time to identify and adjudicate pending cases.

Q9. Should customers contact USCIS through the 1-800 customer service number or make an INFOPASS appointment to visit their local office if they believe their application meets the criteria of this new policy?

A9. We recommend that customers wait until mid-March before inquiring about cases affected by this policy modification. This will allow each office sufficient time to identify and adjudicate the relevant pending cases. If no action is taken by mid-March, we recommend inquiring with the USCIS customer service line at 1-800-375-5283.
"
Click to expand...


Does anyone knows if the above applies to LPR cases filed outised the US?

My parents filed for LPR outside the US (May 2007 interview date) and my mother got the GC in Jan 2008 where as my father's cases is pending because they do not have the name check result. It is already 9 months since the interview for him so should I expect that they will be processing that case soon if initial findings were clear?
thx for your input.
 
Lazycis

lazycis said:
You may want to file a lates memo with the court. You can file MSJ as well, it depends on wheter you have enough time to prepare it. You should ask for immediate adjudication as delay in your case is clearly unreasonable in light of the new policy/memo.
Click to expand...

Thanks for your response, Lazycis. A late memo? Is it something I can bring with me to the court, or I have to file it before the hearing?
I want to make sure the judge will be able to look at it before the hearing. Once again, thank you.
 
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patricia_432 said:
Thanks for your response, Lazycis. A late memo? Is it something I can bring with me to the court, or I have to file it before the hearing? Do you have a template? My hearing is scheduled on next Thursday. Once again, thank you.
Click to expand...

PLAINTIFF'S MOTION FOR LEAVE FOR TO FILE SUPPLEMENTAL PLEADINGS

Plaintiff XXX, Pro Se hereby move the Court, pursuant to Rule 15(a) and (d) of the Federal Rules of Civil Procedure, for leave to file a supplemental pleading following USCIS memorandum of February 4, 2008.
The supplemental pleading is intended to update court on the latest developments relevant to the case.

Background
On September 27, 2007, having exhausted all administrative measures for making the USCIS to act on Plaintiff's application to Adjust status (I-485), Plaintiff filed a civil complaint under the APA and mandamus in this Honorable court alleging that the USCIS unreasonably delayed the processing of Plaintiff's application. On October 1, 2007 the summons were served on the Defendants. The Plaintiff was told by the USCIS that the reason for the delay in processing his application is that the USCIS have not received the results of FBI name check from the FBI. See, generally, Complaint.

New Facts
On February 4, 2008, Mr. Michael Aytes, the Associate Director of Domestic Operations at USCIS, distributed an Interoffice Memorandum that revises National Security Adjudication and Reporting requirements (see attached Exhibit A). The Memorandum states:

“Where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the I-485, I-601, I-687, or I-698 and proceed with card issuance”.

The Plaintiff's name check request was submitted to the FBI on January 23, 2007 (see Complaint), which is more than 365 days ago. The new USCIS memorandum effectively removes pending FBI name check as obstacle to the adjudication of Plaintiff's adjustment of status application.

Plaintiff request leave to file a supplemental pleading under Rule 15(a) and (d) of the Federal Rules of Civil Procedure, which authorizes a court to grant leave “freely when justice so requires” and to permit a party “to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.” The defendants have not filed an answer yet so the granting of this motion will not result in prejustice.
Plaintiff respectfully suggest that granting leave to file supplemental pleading in this case would serve the interests of justice.

Further, as has been previously explained, supplemental pleadings may introduce new causes of action not alleged in the original complaint so long as their introduction does not create surprise or prejudice the rights of the adverse party. Montgomery Envtl. Coalition v. Fri, 366 F. Supp. 261, 265-66 (D.D.C. 1973). Moreover, "leave to file a supplemental pleading should be freely permitted when the supplemental facts connect it to the original pleading." Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995). Finally, the purpose of pleading "is to facilitate a proper decision on the merits" and avoid the dismissal of potentially meritorious claims due to procedural missteps. Conley v. Gibson, 355 U.S. 41, 48 (1957).

Respectfully submitted,
XXX, Pro Se
 
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